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RPR210
RPR210: Chapter 1 – historical overview of customary law
- 1.3.2 – 1.5
Political background and wider legal context of the Union (1910-1947)
• Gov wanted to restrict movement of natives
Why? = wanted to reduce state resources that regulating the natives use, and ensure that
natives were available for labor
• Little interest in customary law as a mode of rule … it became easier to change it legislatively
• Traditional leaders continued to misuse their power which made the indigenous people
unhappy
• Socio-economic and political shifts led to intra-community problems (land shortages,
distortion of authority and power, large-scale urbanization, migration)
• Migration needed to be reduced so the state attempted to reverse urbanization by means of
forced relocation to tribal areas
• The state also introduced the Natives Land Act (NLA) which prevented black people from
acquiring land except within the scheduled native areas/reserves (black people were
confined to 7% of the country)
• NLA also prevented whites from owning land in reserves to keep races spatially segregated
• Later, the CC declared the NLA to be unconstitutional in the Alexor Ltd v Richtersveld
Community case
• The state also introduced the Black Administrations Act (BAA) which gave the governor-
general the power to reshuffle the tribes, alter the reserve boundaries, appoint traditional
leaders, and remove traditional leaders
Customary law, chiefs’ courts, and state courts
• BAA amended, Section 20 (1): trad courts got jurisdiction to punish under customary law.
• BAA also regulated estates of indigenous people, and only men could inherit land -> this
became known as black law and custom/rule of primogeniture
• Male primogeniture: a rule of succession whereby the oldest male relative of the deceased
inherited his intestate estate and women could not inherit from their spouses
• Section 11 of BAA set up separate court systems for customary law (Native Commissioners’
Court & Native Appeal Court)
• 5 ways which common law infiltrated customary law:
1. Union officials staffed customary courts, but lacked knowledge of customary law so
they interpreted it through the lens of common law
2. common law courts relied on stare decisis (precedent system)
3. customary law was treated as a fact that had to be proved in every case
4. Application of the repugnancy clause (customary law applied only when not repugnant
or contrary to statues)
5. witnesses and assessors who helped judges to determine the true content of customary
law were typically old men that used the power given to them to advance their own
interests.
Apartheid (1948-1990)
• policy of indirect rule was adopted by the National Party (NP)
, - indirect rule = policy applied by colonial gov where native administrations, courts, and
treasuries were established according to their understanding of customary law to ensure the
cooperation of traditional leaders and communities and to relieve the financial burden on
the gov
• Separate development was supposedly intended to lead to the self-government of black
people in the homelands
• however, NP wanted control with minimal cost and to ensure maximal control labor and
land resources.
Customary law and indigenous communities
• Ex parte Minister of Native Affairs: In re Yako v Beyi – court ruled that no presumption was
to exist in favour of applying either common law or customary law, but courts should apply
the law that was most applicable to the parties and the circumstances of the case.
• Tongoane v National Minister for Agriculture and Land Affairs - held that the state president
provided tribal authority and can take it anytime when necessary
• Various laws were repealed in order to deal with the demands of uprising and new laws
were formed
• The colonial, apartheid, and union eras gave birth to 3 diff forms of customary law (CL):
1. Official customary law – the CL captured in state precedent and directly influenced by
roman-Dutch and English principles
2. Academic CL – this was the body of treaties on CL often referred to by courts when deciding
disputes
3. Living CL – this was the version of CL developed and used by indigenous communities
Transitional period (1990 – 1996)
• There was a debate between traditional leaders and women’s rights activists as to whether
customary law should be subject to or independent of the BoR
- Traditional leaders feared that the equality clause would lead to the eradication of large
parts of customary law
- Women’s rights activists feared that if traditional leaders succeed, rural women would
continue to be subjected to the patriarchy under customary law
• The interim constitution provided for a role of traditional leaders: leaders were allowed to
continue to function in their roles and exercise power in terms of their customary law
• The interim constitution also said that customary law was subject to the rights in the
constitution which supports gender equality
• interim constitution incorporated concept of Ubuntu from traditional African jurisprudence
(ubuntu recognizes a person’s status as a human being entitled to unconditional respect,
dignity, value and acceptance)
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