Exam (elaborations)
IND2601- NOTES
- Course
- IND2601
- Institution
- University Of South Africa (Unisa)
IND2601- NOTES Detailed work, solutions, memos, notes, and explanations
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IND2601-NOTES
,THE LAW AND HUMAN RELATIONSHIPS
The purpose of any legal system is to regulate the relations of its people, including those
between the government and its subjects. This includes the relationships between individuals or
groups, as well as between the government and its subjects. In customary law, the emphasis is
on duties, while in traditional law, the emphasis is on rights. Rights and duties are two sides of
the same coin, with one person's rights creating duties for another.
Public law is the legal relations between a government and its subjects, and the relations
between the different parts of government. Legislative organs are responsible for passing
statutes, executive organs are responsible for the application of statutes, and judicial organs
refer to the courts.
Private law is the legal relationship between individuals and groups in their capacity as private
persons, which also applies to customary law.
The aim of any legal system is to maintain order within the society. Legal sanctions can mean
approval or punishment for non-compliance with statutes or behavioural prescriptions. These
sanctions are supported by public opinion, education, respect for property, participation in the
judiciary, political control, and economic factors. In customary law, these factors play an even
more important role than purely legal sanctions in ensuring people obey the law.
THE NAME OF THIS SUBJECT
Customary law is the customs and usages observed by indigenous African peoples of South
Africa, which are now regarded as synonymous with "indigenous law".
THE DIVISION OF CUSTOMARY LAW
The law is divided into national and international law. National law governs the relations
between subjects and foreigners, as well as the relations between subjects and government
within a state. International law governs the relations between states. Customary law is divided
into tribal law (national law) and the law of different tribes (international law). Little is known
about intertribal law, which is also known as “indigenous international law”. Tribes entered into
agreements to help one another against common enemies, marriages between tribal chiefs and
women from the ruling families of other tribes, and the sporadic practice of barter between
tribes.
Tribal law is a distinction between public law and private law. It is divided into three parts:
customary constitutional and administrative law, customary adjudicatory organs and the law of
procedure, and customary criminal law. Customary public law governs the relations between
traditional authorities and subjects, and the relations between these authorities within the tribe.
It is subdivided into four parts: customary constitutional and administrative law, customary
adjudicatory organs and the law of procedure, and customary criminal law. The tribal chief and
each headman have the power to legislate, and the chief-in-council has the power to see to it
that these laws are applied. The chief and each headman have a court in which cases are tried.
,The law of things and the law of immaterial property are often collectively known as the law of
property. The law of persons determines the status of a person, while family law is distinct from
the law of persons. The law of things consists of the rules concerning real rights over material
objects, such as land, cattle, motor vehicles and furniture. The law of immaterial property
consists of the rules concerning rights over immaterial property, such as patents and copyright.
This legal concept is unknown in South African customary law. The law of obligations is a legal
tie between the debtor and the creditor that requires the debtor to perform. In South African
customary law, the parties were previously agnatic (family) groups. The law of succession is the
aggregate of rules determining what is to become of a deceased person’s estate, namely
his/her patrimonial rights and duties. The law of personality (right to honour, good name and
privacy) is indicated by the term itself. This division of indigenous private law is dealt with in a
more advanced module.
Law can be divided into substantive and adjective law. Substantive law prescribes norms or
requirements and attaches sanctions, while adjective law prescribes the manner in which norms
are enforced and sanctions applied. South African customary law distinguishes between rights
according to the object, as summarised in table 1.1.
TABLE 1.1
The most important details in this text are that the first three rights fall within the vestee’s estate,
and any violation of these entails patrimonial loss. Rights of personality do not fall within the
vestee’s estate, and any violation of a right of personality results in an action for satisfaction
(solatium). Group ownership is typical among indigenous African people and covers movables
such as cattle and agricultural produce, as well as immovable property such as land. The
example of obligatory rights in the table is as valid for South African customary law as it is for
Western systems, and there is every reason to accept such rights for South African customary
law. The duty to perform also applies to an agnatic group, as in the case of the right of a bride’s
family to have marriage goods delivered to them by the bridegroom’s family.
, The indigenous African people do not have any rights comparable to the immaterial property
rights of Western systems. However, the patrimonial group right of "guardianship" is well known
in customary law and entitles the group concerned to the productivity of its members. Examples
of rights of personality include rituals performed to remove pain, sorrow, or defilement, such as
the defilement of a woman among some Southern Nguni, where a beast is taken from the
wrongdoer’s place of residence and slaughtered by the group as an act of cleansing and
satisfaction. The vestee of the right may be a group, but it does not alter the nature of the right.
If pregnancy follows, the girl’s guardian is also considered to have suffered patrimonial loss and
may recover damages.
VARIOUS AFRICAN CUSTOMARY LEGAL SYSTEMS
When studying customary law, it must be kept in mind that there has never been one general
legal system that applied to all indigenous African groups. Among most Zulu tribes in KwaZulu-
Natal, it is customary to deliver all the marriage goods (ilobolo and ukulobola) before or during
the marriage ceremony. In most Xhosa-speaking communities of the Eastern Cape, the
marriage goods are delivered over a period of time after the woman has been handed over to
the man’s family group. In some Xhosa groups, the woman’s family “impounds” her from time to
time and keeps her until the husband has delivered a further portion of the marriage goods. This
study guide will focus on these common underlying principles and give an overview of the most
important differences between the legal systems of the different indigenous African people of
Southern Africa.
THE DIVISIONS AND FEATURES OF THE INDIGENOUS AFRICAN PEOPLE OF SOUTHERN
AFRICA
The term “African language” refers to a family of languages with a marked degree of
correspondence and a common origin. People speaking one of these languages are referred to
as “African-speaking”. In South Africa, Botswana, Lesotho and Swaziland, there are four main
groups: the Nguni groups, the Sotho groups, the Venda and the Shangaan-Tsonga. These
groups differ from one another in important respects, such as their language, legal system, and
customs. However, they all have a system of traditional succession to leadership, although their
rules of succession differ greatly.
These differences do play an important role in the practical application of the law, so it is often
necessary to determine the personal laws of a specific community. However, if one focuses on
the underlying legal principles, it is easy to determine the legal implications of the marriage
goods being delivered at different stages in different groups.
Characteristics of the main groups
The Nguni groups: The Nguni groups were composed of Zulu, Xhosa, Swazi and
Ndebele. They settled in KwaZulu-Natal, the Eastern Cape, Swaziland and
Mpumalanga, and Mpumalanga. They had a composite household divided into two or
three sections, each with its own identity, rank, property and successor. The household
is divided into three sections, each with a senior wife. Wives 4 and 5 are affiliated to the
senior wife in section A, while wife 6 is affiliated to senior wife 2 in section B, and wife 7
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