Unit 11 Case Law (jurisprudence)

Legally Pluristic society

Multiplicity of cultural backgrounds, religious communities and ethnic identities

Customary Law

customs and usages traditionally observed amongst the indigenous people of South Africa

The term ‘indigenous’ is preferred because:

• its history is not complicated by the colonial apartheid project like the term ‘customary law’ which was positioned as inferior because it was based on customs and traditions in contrast with common law ( but common law is also derived from customs and traditions)

• the term has the added advantage that relative to south africa, it locates and identifies the people whose laws we are concerned with by reference to its origins,as suggested by the idea of indigeneity.

Indigeneity

the idea of having ones origins in or attached to a particular place. in the context of indigenous law, it is also associated with those people who, prior to colonialism have their ancestral roots of lineage primarily to the african continent

Indigenous law

• The history of indigenous law precedes the arrival and occupation of the european settlers and the advent of the colonial conquest of South Africa

• Was commonplace in African communities to have their own social structures and legal apparatus. in the pre-colonial, indigenous law practices and institutions derived their legitimacy and general acceptance from the communities in which they originated and prevailed. indigenous law of specific groups/communities differed.

living customary law

usually consists of unwritten customs that have been passed down orally from generation to generation.

official customary law

customs that have been recorded or written down

system of indirect rule

system of governance invented by the british - instead of attempting to rule over the territories they had conqured militarily themselves, co-opted leaders of conquered authorities on behalf of the colonial government.

affairs were administered separately from those systems, institutions and structures reserved for the settler population.

Repungnancy proviso

stipulated that indigenous indigenous law was to be recognised only insofar as it was not repungant to the principles of mortality, civilisation, and natural justice.

Bifurcated State

the centrally organised colonial state of settler citizens with rights and liberties, rule directly by an appointed governor and on the other hand a decentralised subordinated form of state inhabited by ‘native’ subjects, with few rights and duties, rule indirectly via chiefs appointed by the colonial administration.

Native Administration Act in 1927 (later black administration act) - a uniform approach to the recognition emerge across South Africa

In line with indirect rule, act established a separate administrative and legal system for black people parallel with the common law system reserved primarily for white people. BAA applied to numerous and overarching matters as it regulated daily experience of black life, including matters of administrative and substantive nature, allowing the state to exercise control over the traditional authorities.

BAA effects (two fold effect)

• formally co-opting all systems and structures of indigenous authority by conferring power to state president to appoint and depose of traditional leaders.

• establishing indigenous law as an official subservient and separate system of laws in line with the general segregationist colonial policy.

S 11(1) of BAA

commissioners courts could recognise and apply customary law in matters between black people, subject to the repugnancy proviso.

Courts had to apply apply their minds in each case to determine whether customary law or common law was appropriate.

Indigenous law came to be grossly distorted through being instrumentalised and taken out of its social context.

Official Customary Law

• Understood as invented traditions supposedly derived from indigenous law but its roots in colonial system of indirect rule.

• Constituted by African laws and customs that were reduced to writing in legislation, academic books and case law.

• Evolved into a strict and rigid rule-based legal framework modelled on the Western Legal tradition, in which precedent applied.

Living Customary Law

• System of law rooted in and developed within the community in which it operates, ever-evolving rules and principles grounded in traditions and customs known to their community; contextually applied.

• Captured and transmitted in terms of an oral tradition from generation to generation.

• As community level-dispute resolution, it is primarily concerned with social harmony rather than upholding formal procedures.

Legislative examples of customary law:

• recognition of customary marriages act 120 of 1998

• reform of customary law of succession and regulation of related matters act 11 of 2009

• communal land rights act 11 of 2004

Bhe v Magistrate, Khayelitsha 2005

-mother of bride involved in the negotiation process for lobolo in terms of the living customary law, even though official versions may have created the impression that only the father of the bride could do so.

Facts: The case involved the ability of two minor children, both extra-marital daughters, to qualify as heirs in the interstate of their deceased father.

Legal Questions:

• The question of the constituttional validity of section 23 of the Black Administration Act that provided that estates should be administered under ‘black law and custom’

• The consittutional validity of the principle of male primogeniture (only legitimate male heirs would inherit from a parent) in the context of law of succession.

• Judgement → s 23 of the BAA ossified official customary law and caused violations of the rights of black african persons.

• s23 created a parallel system for black africans without taking into account living customary law.

• s23 is dicriminatory and in breach of the right to equality in s9(3) - discrimination on the grounds of birth (extra-marital children) and gender (daughters) and the right to dignity s10.

• Rule of male primogeniture → in denying female and extra-marital children the ability and opportunity to inherit from their deceased fathers is also a violation of section 9(3) of the constitution. It upholds patriarchy and male domination.

• court emphasised that indigenous law is not a fixed body of formally classified and easily ascertainable rules.

Shilubana and others v Nwamitwa 2008

CC was faced with a case where Valoyi community collectively decided to enthrone a woman as their leader. Past practice dictated that a man should hold the position of the chief. Court held that the community is entitled to develop their own customary law, especially where this was done in line with the constitution. CC endorsed changing living customary law.

Legal question → was the SCA correct in its decision that past practice of the community regarding chiefmanship should be allowed. CC held that the community is entitled to develop thier own customary law, especially where this is done in line with the constitution

When is indigenous law applicable

1) If the parties to the dispute agree to be bound by customary law/Indigenous law when they established the legal relationship( the court will take cognisance of the behaviour leading up to the event, that gave rise to the dispute)

2) If it meets the requirements in Van Breda v Jacobs (practiced for a long time, certainty, uniformity and reasonableness)

3) If it meets the requirements for section 1(1) of the Law of Evidence Amendment Act 45 of 1998: Judicial notice may be taken of customary law if it is readily ascertainable and with sufficient certainty- not against public policy.

Judicial notice → This rule in evidence stipulates that a court may allow a fact to be introduced into evidence as already proven without having to hear the evidence.

Constitutional recognition of Customary law

section 211:

• 1 the institution, status and role of traditional leadership, according to customary law, are recognised, subject to the constitution.

• 2 a traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs.

• 3 The courts must apply customary law when that law is applicable, subject to the constitution and any legislation that specifically deals with customary law.

• s39(2) - courts, in developing the customary law, must promote the spirit, objects and purport of the bill or rights

• s39(3) - the constitution does not deny any rights and freedoms that were granted through customary law, as long as they were in line with the constitution.