Chapter 4: Ascertainment and proof of customary law Flashcards
Evaluate the impact section 1(1) of the Law of Evidence Amendment Act 44 of 1988 had on the development of customary law.
- It constrained the development of customary law as courts only relied on recorded sources of customary law.
- Any court may take judicial notice of indigenous law in so far the law can be ascertained readily and with sufficient certainty.
- Confirmed the reliance on written records; Statutes, precedents, and textbooks were unkown to oral traditions and became ascertainable sources.
- Written sources were not part of social practices of indigenous community; sources revealed uncustomary characteristics.
Indicate the consequences of the repugnancy clause on the formation and determination of customary law.
- Section 11(1) of the Black Administration Act (BAA) reflects the repugnancy clause.
- The repugnancy clause constricted the application of customary law to those rules that they deemed not opposed to the priniciples of public policy and natural justice.
- If customary law was not in line with common law standards of justice and morality, it was not applicable.
- This changed how customs would develop as they had to assimilate with common law to be enforced.
What was the purpose of the Hoetex Commission?
- Investigate the condition of customary law and its institutions in South Africa
- Investigated commissioners courts
- It found that blacks-only Commissioners’ courts discriminated between litigants on the grounds of race.
What did the Hoetex Commission conclude in terms of blacks-only Commissioners’ Courts?
- Found to be repugnant institutions that needed to be abolished.
- The remedy was repealing Section 11 of the BAA and replaced it with Section 1(1) of the LEAA.
What was the purpose of Section 1(1) of LEAA?
Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty.
What features did S1(1) of the Law of Evidence Amendment Act introduce?
- All courts in South Africa (SA) can apply customary law subject to the discretion of the commissioners.
- All courts are required to take judicial notice.
- Oral evidence is permitted in courts.
- Customary law put on the same position with foreign law.
- Repugnancy clause was retained.
- Exceptions on lobolo\lobola was retained.
Why is S1(1) of the Law of Evidence Amendment Act regarded as transformative?
- Facilitated proof of customary law, relieving courts of the burden of proving it.
- Allowing courts to take judicial notice of customary law.
- Therfore S1(1) does not limit courts just to written evidence, but also allowing oral evidence to prove unwritten version.
What was S1(2) 1) of the Law of Evidence Amendment Act’s purpose?
Provides ascertainment and proof of the unwritten customary law by way of evidence.
What were the key provisions of section 1 of the LEAA and how did they impact ascertainment proceedings regarding customary law?
- Section 1(1):
- Allowed courts to take judicial notice of customary law from written records.
- Relieved courts from the burden of proving customary law in each case.
- Section 1(2):
- Permitted courts to receive evidence of oral rules during legal proceedings.
- Ensured the relevance of living customary law by accommodating oral traditions.
Describe how the Constitutional era has enhanced the application of customary law.
- In the Beyi case; The court decided that in general, common law is the law of the land and is applicable to all matters. However, in certain circumstances, custoamry law may be applied in the interests of justice.
- Section 211(3) of the Constitution states that, courts must apply customary law when the law is applicable, subject to the Constitution.
- Customary law is not subordinate to common law. It has to align with the Constitution.
- Indirect application of the Bill of Rights is favoured.
Does customary law prefer direct or indirect application of the Bill of Rights, and why?
- Direct application of the Bill of Rights will cause customary law to be completely struck down because of the violation of the equality clause in the BoR.
- Indirect application of the Bill of Rights, contributes to the development of customary law. Gives recognition to Living Customary Law.
Therefore, Indirect application of the Bill of Rights is favoured.
What were the problems associated with official customary law?
- Recorded customary law was there to assist judicial proceedings to be efficient and well driven.
- Alleviated the court from having to ascertain customary law in each and every case.
- However, recording of customary law exacerbated the repugnancy clause as it could not keep up with the pace of the dynamic developments.
- Recorded versions were favoured by courts, which reflected the common law moral standards as opposed to customary law normative values.
- Outdated laws were in place
- Lay assessors were recruited to assist courts with the developments of customary law, however it was unsuccessful.
- It became a mere administrative tool, resulting in a negative impact on customary credentials.
Certification case
CC acknowledged the survival of an evolving customary law.
Resulting in ascertaining living customary law as the version recognised by the Constitution.
Was a case of recognition and ascertainment.
Alexkor case
Affirmed position of customary law.
Customary law is only subject to the Constitution and not common law.
Importance of living customary law was also emphasised.
Mabena case
Court deviated from the standard textbook approach and applied Living customary law that recognises what people do in practice.
