Chapter 1: Historical Overview of Customary Law

Question 1

Terra Nullius

Answer 1

• Empty lands
• Where land has not been productively used by the people inhabiting it.
• Not owned by the people living on it

Question 2

Lex Nullius

Answer 2

• Natives were without land
• Natives were lawless
• ‘Empty of law’

Question 3

Indirect rule

Answer 3

• Colonial policy established by the British Government
• Implemented native administrators, courts, and treasuries
• Operated based on the colonizers’ interpretation of customary law
• Aimed to gain cooperation from traditional leaders and communities
• Goal was to alleviate financial strain on the colonial government

Question 4

What were the three parts in which the British implemented indirect rule?

Answer 4

1. British established ‘native’ administrations, incorporating traditional leaders.
2. Native Courts were set up for local dispute resolution.
3. ‘Native’ taxes funded ‘Native’ administration, avoiding colonial wealth utilization(Wealth gained by colonial exploits .

Question 5

Direct rule

Answer 5

To largely assimilate the natives under English common law.

Question 6

Capitalism

Answer 6

• An economic policy system where European countries sought to enlarge their wealth by expanding their assets and domains to foreign lands.
• Primary driver of colonialism.

Question 7

The Enlightenment

Answer 7

• Tremendous leap in its intellectual understanding and accomplishments.
• Through processes of imperialism, it served to support broadly acceptable social knowledge and developments based on materialism and humanism as opposed to tradition.

Question 8

Materialism

Answer 8

For knowledge to be accepted as truth, it must be veriefiable by science.

Question 9

Humanism

Answer 9

All knowledge must be rational and thus verifiable through human reason.

Question 10

Policy of assimilation

Answer 10

Compels people not originally subject to a culture or law to embrace that culture or law as their own and conform to it in their practice.

Question 11

In terms of socioeconomic and political context, what was colonialism

Answer 11

Largely a struggle over natural and Human Resources and authority as well as a cultural and moral legitimacy often referred to as ‘civlisation’.

Question 12

What were colonisers particularly interested in?

Answer 12

Securing control of contractual relationships and financial dealings, particularly control over property.

Question 13

What was the main asset colonizers wanted to legally posses and own?

Answer 13

Property was the main asset colonizers wanted to legally own.

Question 14

What are two forms property came in?

Answer 14

• Land
• People (enslaved or exploited labour)

Question 15

How did colonizers dispossessed the local population of their property

Answer 15

They relied on the ‘terra nullius’
If land is not productively used by the people inhabiting it, it is then not owned by them.

Question 16

Why did colonizers insist on the direct rule as their legal strategy?

Answer 16

• It compelled the natives to succumb to the force and authority of the colonisers’ legal systems.
• It offered the colonisers security in that any legal dispute would be governed by a system of law they understood and would typically favour them.

Question 17

What was the result of capitalism becoming the core element of the British colonial enterprise?

Answer 17

Led to the seizure of territory and the inclusion of indigenous peoples in the settler economy as labourers

Question 18

What are the two major purposes the British hoped to accomplish by moving to a policy of indirect rule?

Answer 18

1. Hoped it would fragment the majority population into ‘tribes’. Resulting in perception of small groups, as opposed to one dominant race, also reducing threat of revolt.
2. Create impression of group autonomy and independence. Allow indigenous communities to govern themselves, unless their self-rule clashes with colonial government regulations or the government’s changing property interests.

Question 19

Explain the ‘Repugnancy Clause’

Answer 19

• Chiefs and courts applied customary law, ensuring it aligned with justice and humanity.
• This clause ensures that customary laws are not applied if they are contrary to fundamental principles or rights.

Question 20

Explain the policy of assimilation

Answer 20

Roman-Dutch law was applicable in all matters where no legislation was applicable.

Question 21

Explain the concept ‘Reverse Urbanisation’

Answer 21

A process where the government compels people who moved from rural areas to urban areas to return to the rural areas.

Question 22

How did they achieve ‘Reverse Urbanisation’?

Answer 22

Through: Law, forced removals, creation and compulsory assignment of language-based ‘homelands’ for black people.

Question 23

What is intra-community problems?

Answer 23

• Land shortages
• Distortion of authority and power
• Large scale urbanisation and migration

Question 24

What was the purpose of the Natives Land Act?

Answer 24

Prevented people from acquiring land except within the ‘scheduled’ native areas.

Question 25

What happend in the Alexkor Ltd v Richtersveld Community?

Answer 25

• It stated that the Natives Land Act deprived black South Africans of the right to own land and rights in land in the vast majority of the South African land mass.
• Precluded white people from acquiring land in those area = ensuring race were spatially segregated.
• CC declared the Natives Land Act as unconstitutional

Question 26

What was the purpose of the Black Administration Act(BAA)?

Answer 26

Gave the Governor General power to reshuffle tribes.

Question 27

What powers did the Governor General have in terms of the BAA?

Answer 27

• Define and alter boundaries
• Divide tribes
• Order removal of tribes

Question 28

With the BAA making the Governor General ‘supreme chief’ of all natives, what did it permit him to do?

Answer 28

• Recognise/Appoint any person as chief/headman in charge of a tribe/location.
• Make regulations prescribing duties, powers and privileges of such chiefs/headmen.
• Despose any chief so recognised or appointed’

Question 29

Section 20(1) of the BAA

Answer 29

Governor General may confer upon any native chief jurisdiction to try and punish according to native law, any native who has committed, in the area under the control of the chief concerned, any offence specified by the Governor General.

Question 30

Explain the rule of primogeniture

Answer 30

Oldest male relative of the deceased inherit his intestate estate and women could not inherit from their spouses.

Question 31

Section 11 of the BAA

Answer 31

Set up a separate state court system for the application of customary law.
- Traditional courts
- Commissioners courts
- Appeal courts

Question 32

Give five ways which Common law infiltrated Customary law

Answer 32

• Staff in Commissioners courts and Appeal courts lacked knowledge in Customary law
• Precedent system was applied
• Customary law had to be proven in all cases
• Application of the repugnancy clause
• Witnesses and assessors had an agenda

Question 33

What happened in the Yako v Beyi case?

Answer 33

Court held that no favour of applying either customary law or common law, but rather apply the law that was most applicable to the parties and circumstances of the case.
Customary law was not seen as law of general application.

Question 34

What happen in the Tongoane v National Minister for Agriculture and Land Affairs?

Answer 34

Court held that the state president provided tribal authority and can revoke it at any time necessary.