Comprehensive Study Notes: African Customary Law (IND2601)

 # THE RELATIONSHIP BETWEEN LAW AND HUMAN RELATIONSHIPS

• Purpose of Legal Systems: The fundamental objective of any legal system is to regulate relations among its people, whether as individuals or groups. This includes the relationship between the government and its subjects, which constitutes the scope of Public Law.
• Rights and Duties: Legal relationships create responsibilities. While modern focus is often on rights, African Customary Law places primary emphasis on duties. One person's rights effectively create duties for another.
• Public Law Definition: Governs relations between a government and its subjects, and between different government organs (Legislative, Executive, and Judicial).
• Private Law Definition: Governs legal relationships between individuals or groups in their capacity as private persons.
• Maintenance of Order and Sanctions:
  • Order is supported by legal sanctions meaning either approval of an action or punishment for non-compliance.
  • Sanctions are reinforced by public opinion, religion, education, political control, and economic factors (fines).

THE DEFINITION AND DIVISION OF CUSTOMARY LAW

• Definition of Customary Law: Per Section $1$ of the Recognition of Customary Marriages Act $120$ of $1998$, it refers to the customs and usages traditionally observed among the indigenous African peoples of South Africa which form part of their culture. It is regarded as synonymous with "Indigenous Law."
• Classification of Law:
  • National Law: Governs relations within a state between subjects, foreigners, and the government.
  • International Law: Governs relations between states. In the customary context, this includes intertribal agreements and marriages between ruling families of different tribes.
• Subdivisions of Customary Public Law:
  • Constitutional and Administrative Law: Relates to the composition, powers, and functions of public organs (Tribal Chief, King, Councils, Wards, and Headmen).
  • Adjudicatory Organs and Procedure: Concerns the composition and jurisdiction of customary courts, trial procedures, evidence, and execution of judgment.
  • Criminal Law: Deals with public action against subjects to punish transgressions of rules.
• Subdivisions of Customary Private Law:
  • Law of Persons: Determines status (rights, duties, capacities) based on sex, age, and marital status.
  • Family Law: Concerns marriage, guardianship, and parent-child relationships.
  • Law of Things (Property): Rules concerning real rights over material objects (land, cattle).
  • Law of Obligations: Legal ties between debtors and creditors arising from contract (e.g., medical specialist), quasi-contract, or delict (willful damage).
  • Law of Succession: Rules determining the fate of a deceased person's estate.
  • Law of Personality: Rights to honor, good name, and privacy.
• Rights in Customary Law:
  • Real Rights: Ownership of corporeal things (cattle, agricultural produce).
  • Obligatory Rights: Performance (e.g., professional fees).
  • Rights of Authority: Guardianship over group members' productivity and freedom.
  • Rights of Personality: Corporeal or incorporeal parts of personality (e.g., the right to one's honor).
• Group Ownership: Typical in indigenous systems; covers movables and immovable property like land.
• Ritual Cleansing (Example): Among some Southern Nguni, defloration of a woman requires the isihewula beast to be ritually slaughtered for satisfaction and cleansing.

CHARACTERISTICS OF THE INDIGENOUS AFRICAN PEOPLE OF SOUTHERN AFRICA

• Main Linguistic/Cultural Groups:
  • Nguni Groups: Zulu (KwaZulu-Natal), Xhosa (Eastern Cape), Swazi (Swaziland/Mpumalanga), and Ndebele (Mpumalanga).
  • Sotho Groups: Tswana (Botswana/North West), Northern Sotho (Limpopo), and Southern Sotho (Lesotho/Free State).
  • Shangaan-Tsonga: Originally Limpopo and Mpumalanga.
  • Venda: North-eastern Limpopo.
• Social Structures:
  • Nguni: Composite households divided into two or three sections. Each section has a senior wife and affiliated wives. Each section forms a "house" with its own rank, property, and successor.
  • Sotho: Households are not divided into sections. Each married woman has a specific rank, and her house has its own identity, property, and successor.
• Local Customs (Example):
  • Zulu: Customary to deliver all marriage goods (ilobolo) before or during the ceremony.
  • Xhosa: Deliver ilobolo over time. Use the theleka custom where the woman's family "impounds" her until further goods are delivered.

GENERAL CHARACTERISTICS AND NATURE OF CUSTOMARY LAW

• Unwritten Nature: Historically transmitted orally across generations via public participation in the administration of justice.
• Legal Maxims:
  • Motho ke motho ka batho (Sotho) / Umuntu ngumuntu ngabantu (Zulu): "A person is a person in relation to other people."
  • O mo tshware ka diatla tše pedi (Northern Sotho): "You should hold him/her with both hands" (regarding marital relationships).
  • Kgoši ke kgoši ka batho le batho ke batho ka kgoši: "A ruler is a ruler through his people, and the subjects are subjects through their ruler."
• Customary Basis: Result of age-old traditions; excludes a system of precedent (previous decisions are not binding).
• Community Values: Focus on reconciliation ("human justice") rather than strict legal justice. Disputes involve family groups, and harmony is prioritized over individual rights.
• Magico-Religious Conceptions:
  • Ancestral Spirits: Belief that ancestors protect the law; deviations lead to supernatural punishment (drought, illness).
  • Sorcery: Belief in supernatural powers used by sorcerers to harm the community; necessitates identifying and removing the sorcerer.
• Factors Encouraging Observance:
  • Sacral/holy nature of law.
  • Public opinion and community sensitivity.
  • Self-protection (use of medicinal protections).
  • General knowledge of the law due to participation.
  • Fear of supernatural and secular punishment.
  • Influence of hereditary leaders as representatives of ancestors.

SPECIALISED VS. UNSPECIALISED LEGAL SYSTEMS

• Specialisation Definition: Refers to the differentiation and classification of activities, functions, and concepts.
• Time:
  • Specialised: Exact moments (seconds/milliseconds) matter for contracts, prescription of actions (lapsing of claims), and birth/death records.
  • Unspecialised: Marriage is viewed as a process rather than a point in time; prescription of legal actions is unknown.
• Court Procedure:
  • Specialised: Clear division between criminal and civil courts/procedures.
  • Unspecialised: Criminal and civil cases tried in a single hearing; public plays an active role in cross-examination.
• Group vs. Individual Orientation:
  • Specialised: Individual-centric (individual ownership, individual liability for crimes).
  • Unspecialised: Group-centric (agnatic groups as parties to contracts/marriages; family group can be punished for member's crime).
• Concrete vs. Abstract:
  • Specialised: Abstract acts like registration in a deeds office.
  • Unspecialised: Concrete acts like the physical transfer of a bride or the display of a cow's hide to prove death.
• Governmental Functions:
  • Specialised: Separation of powers (Executive, Legislative, Judicial).
  • Unspecialised: Chief acts as lawmaker, executive, and judge-in-chief.

RECOGNITION OF CUSTOMARY LAW IN THE CONSTITUTION

• Historical Context: Recognized under the Black Administration Act $38$ of $1927$. Section $11$ previously gave courts discretion to apply it if not opposed to public policy or natural justice.
• Law of Evidence Amendment Act $45$ of $1988$ (Section $1$):
  • Courts may take judicial notice of indigenous law if it can be ascertained readily and with sufficient certainty.
  • Indigenous law must not be opposed to public policy or natural justice (the "Repugnancy Clause").
  • Lobolo/Bogadi cannot be declared repugnant.
• Constitution of $1996$ Provisions:
  • Section $211(3)$: Mandatory application of customary law when applicable, subject to the Constitution and legislation specifically dealing with it.
  • Section $30$: Right to participate in a cultural life of choice.
  • Section $31$: Rights of cultural/religious/linguistic communities to maintain associations.
  • Section $8(1)$: Bill of Rights applies to all law, including customary law.
  • Section $39(2)$: Courts must promote the spirit, purport, and objects of the Bill of Rights when developing customary law.
• Hierarchy/Conflict: The Constitution is the supreme law (Section $2$). Fundamental rights like Equality (Section $9$) generally have priority. Male primogeniture (inheritance by the eldest male) was a major point of conflict.
• Judicial Reform Examples:
  • Bhe v Magistrate, Khayelitsha: Declared male primogeniture in succession unconstitutional.
  • Mabuza v Mbatha: Validated customary marriage without ukumekeza ritual.
  • Shilubana v Nwamitwa: Ruled that traditional authorities can develop law to allow women to succeed to leadership.

CUSTOMARY LAW OF PERSONS AND STATUS

• Agnatic Group: A group of related houses (the household/kraal) related by marriage or kinship in the male line.
• Legal Subjects: Historically, only natural persons were recognized; juristic persons (like companies) were unknown. Rights are shared within the agnatic group.
• Status vs. Rank:
  • Status: General legal standing/possession of competencies (Legal capacity, Contractual capacity, Capacity to appear in court).
  • Rank: Hierarchy within the family (Family Rank) or between sections of a household (House Rank).
• Age of Majority:
  • Original Law: No fixed age; based on physical/mental maturity (initiation/puberty).
  • Modern Law: Section $17$ of the Children's Act $38$ of $2005$ sets majority at age $18$ for all.
  • KwaZulu-Natal: Natal Code (Proclamation $R151$ of $1987$) previously set majority for females at $21$, now superseded by the Children's Act.
• Sex: Historically, women were under permanent guardianship. Modern law prohibits gender discrimination per Section $9$ of the Constitution and Act $4$ of $2000$.
• Household Composition:
  • Family Head: The father or his successor.
  • Polygyny: Results in multiple "houses" within one household.
  • Primogeniture Principle: The eldest son has the highest rank; the eldest brother's children rank higher than the children of his younger brothers.

CUSTOMARY LAW OF MARRIAGE AND BETROTHAL

• Definitions of Marriage Types:
  • Traditional Customary Marriage: Pre-colonial/unregulated form.
  • Customary Union: Statutorily recognized marriage (e.g., Section $35$ of Act $38$ of $1927$) as a "conjugal relationship" but not a full marriage.
  • Customary Marriage (Post-$1998$): Full recognition under the Recognition of Customary Marriages Act $120$ of $1998$ (effective Nov $15$, $2000$).
• Betrothal (Engagement):
  • Agreement between family groups; initiated by "knocking on the door" ceremonies.
  • Termination: By death (goods usually returned), agreement, or unilateral termination (guilt factor: if the man terminates without cause, he forfeits gifts).
• Requirements for Validity (Pre-$2000$):
  • No relationship within prohibited degrees of kinship.
  • Consensus between family groups.
  • Lobolo agreement (actual delivery not always mandatory immediately).
  • Transfer of the bride.
• Requirements for Validity (Post-$2000$ Act):
  • Spouses must both be above age $18$ (minors need parents/Minister's consent).
  • Mutual consent to marry under customary law.
  • Negotiated and entered/celebrated in accordance with customary law.
• Registration: Spouses have a duty to register the marriage within $3$ months (new) or $12$ months (old). Failure to register does NOT affect validity.
• Conversion: A monogamous customary marriage can be converted into a civil marriage under the Marriage Act of $1961$.

CONSEQUENCES AND DISSOLUTION OF MARRIAGE

• General Consequences: Creation of a new legal unit (house); mutual duties of cohabitation and sexual fidelity (fidelity is stricter for the wife in a polygynous system).
• Proprietary Consequences:
  • Section $7(2)$ of Act $120$ of $1998$: Monogamous marriages entered after the Act are in community of property unless excluded by antenuptial contract.
  • Section $7(1)$ (Old Rule): Previously governed by customary law (husband's control).
  • Gumede v President of RSA: Ruled that Section $7(1)$ was discriminatory; now ALL customary marriages are in community of property regardless of when concluded.
  • Mayelane v Ngwenyama: Ruled that in Tsonga law, the first wife's consent is a requirement for the validity of a husband's subsequent customary marriage.
• Ranking in Complex Households:
  • Nguni: Divided into "Great House" (Indlunkulu) and "Right-hand House" (Indlu yasekunene). Further wives are added as "Rafters" (Amaqadi).
  • Sotho-Tswana: Chronological ranking by order of marriage, unless a "Tribal Wife" is married later with group contributions.
• Dissolution (Divorce):
  • Can only be dissolved by a court order since Nov $15$, $2000$.
  • Ground: Irretrievable breakdown (Section $8(1)$).
  • Lobolo and Divorce: If the wife is at fault, goods are generally returned. Deductions are usually allowed for children born (e.g., $1$ beast per child).

CUSTOMARY LAW OF PROPERTY AND SUCCESSION

• Categories of Property:
  • General Property: Belongs to the whole household; controlled by the family head; includes his mother's house inheritances and unallotted land.
  • House Property: Belongs to a specific house (e.g., lobolo received for daughters of that house, earnings of members, ubulungu beast).
  • Personal Property: Individual belongings (snuff boxes, clothes); modern law allows individual ownership of modern assets.
• Succession vs. Inheritance:
  • Inheritance: Division of assets; liabilities are subtracted.
  • Succession (Customary): "Stepping into the shoes" of the deceased; universal succession (assets and liabilities both transfer).
• Order of Succession:
  • Monogamous: Eldest son $\rightarrow$ his eldest son $\rightarrow$ second son $\rightarrow$ father $\rightarrow$ eldest brother.
  • Polygynous: Divided into General Successor (usually eldest son of the main house) and House Successors for each specific house.
• Moseneke v The Master: Found Section $23(7)$ of Act $38$ of $1927$ unconstitutional; Masters of the High Court now oversee all estates.
• Reform of Customary Law of Succession Act $11$ of $2009$:
  • Intestate estates are now distributed according to the Intestate Succession Act.
  • Spouses inherit a "child's portion" or a statutory minimum (currently $R300,000$), whichever is greater.
  • Includes seed-raisers and children born of woman-to-woman marriages in the definition of descendants.

JUDICIAL APPLICATION AND COURT PROCEDURE

• Legal Courts: Constitutional Court, SCA, High Courts, Magistrates' Courts, and the Courts of Traditional Leaders.
• Types of Actions:
  • Civil: Claims for seduction, adultery, damage to property, debt.
  • Criminal: Offences like contempt of ruler or theft.
• Traditional Court Procedure:
  • Public Sessions: Held in the open; anyone can attend and participate.
  • Inquisitorial System: The court actively questions parties to find the "truth."
  • Representation: No professional legal representation; parties are assisted by senior relatives.
  • Registration: Judgments must be registered with the magistrate within $2$ months or they lapse.
• Jurisdiction of Traditional Leaders (Act $38$ of $1927$):
  • Civil (Section $12$): Between blacks residing in their area; based on customary law.
  • Criminal (Section $20$): Limited to blacks; excludes $35$ serious offences (e.g., murder, rape, fraud, arson) listed in the Third Schedule.
  • Maximum Fines: Limited to $R40$ or $2$ head of large stock / $10$ head small stock.
• Evidence:
  • Admissibility: Open system; no evidence (including hearsay) is strictly excluded.
  • Extraordinary Proof: Use of a diviner (inyanga / ngaka) to point out guilty parties if facts are obscure.
  • Presumptions: "Children of a married woman are children of her husband"; "A person does not voluntarily give clothes to a stranger."
• Execution of Sentence: Fines/compensation paid at court. Refusal can lead to seizure of property (thupa levy added for costs). Magistrates can imprison for up to $3$ months for unpaid traditional fines.

AFRICAN CUSTOMARY CRIMINAL LAW

• Elements of a Crime:
  • The Act: Conscious human act or omission causing harm. Attempts with no harm are not usually punishable.
  • Unlawfulness: Act must be in conflict with community interests.
  • Guilt (Culpability): Intent (maikaelelo / boomo) or Negligence (botlhaswa). Accidents exclude criminal liability.
  • Punishment: Designed for retribution and reconciliation.
• Grounds of Justification (Excluding Unlawfulness):
  1. Defence: Self-defence or defending others/property.
  2. Necessity: Danger to person/property (e.g., killing a sorcerer).
  3. Self-help: Catching a thief/adulterer in the act (vengeance after the fact is NOT justified).
  4. Executing Orders: Valid official orders.
  5. Impossibility: Inability to comply with a summons.
  6. Consent: Not valid if it harms group rights.
  7. Institutional Action: Recognized customs like stick-fights or circumcision rites.
  8. Discipline: Adult power to chastise children.
• Specific Crimes:
  • Contempt of Ruler (go nyatsa kgosi): Rejecting authority, conspiring, establishing independent authority. Subject to fines (previously banishment or death).
  • Assault (go itia): Unlawfully hurting a body where blood flows. Blood "belongs to the ruler"; injury requires a reconciliatory meal.
  • Rape (kato / petelelo): Forcible non-consensual intercourse. Group honor is also harmed. Killing/assaulting a rapist caught in the act is considered lawful self-help.

TRADITIONAL LEADERSHIP AND GOVERNANCE

• Act $41$ of $2003$ Framework: Categories of leaders include King/Queen, Principal Traditional Leader, Senior Traditional Leader, and Headman/Headwoman.
• Traditional Councils: Must be established in every community. $40\%$ must be elected; $30\%$ must be women. Functions include supporting municipalities and land administration.
• Houses of Traditional Leaders:
  • National House: Advises Parliament on customary law; must be consulted on Bills affecting culture.
  • Provincial Houses: Established per province.
  • Local Houses: Established in districts with more than $6$ traditional councils.
• Succession Disputes: Caused by divorce of tribal wives, civil marriage conflicts, or ranking issues. Resolved internally, or by the Provincial House, or the Premier.
• Administrative Acts: Must be valid in Author ( genealogical ruler), Form (publicly announced), Purpose (public interest), and Consequences (reasonable).
• Relief and Review: Subjects can use mediation by the private council, internal review by magistrates/Premiers, or judicial review under PAJA (Act $30$ of $2000$).