Chapter 6: Reforming South African law by amalgamating customary and common law

Question 1

Harmonisation

Answer 1

Bringing two systems together and integrating them one another without joining them into a single entity.
Keeping them separate under the umbrella of the Constitution.

Question 2

Amalgamation

Answer 2

Bringing them together into a single form of law so that they are not regarded or treated separately.

Alexkor case: CC first affirmed that customary law was a legitimate component of Sout African legal order, not subordinate to the common law but subject to the Constitution.

Question 3

Possibilities of NATIVE LAW in South Africa:

Answer 3

1. Complete disappearance of Native Law replaced by European Law.
2. Native Law developing as a separate substantive system of jurisprudence.
3. Gradually assimilating to European Law to form South African Law.

Question 4

What forum did the codification of customary law provide?

Answer 4

Legislative arena

Question 5

Why were customary marriages regarded as controversial?

Answer 5

They did not obtain the status of inherently monogamous, civil marriages because they were potentially polygynous.

Question 6

Section 11(1) of the Native Administration Act

Answer 6

Legislature upheld bride wealth and polygyny; construed as the essence of customary marriage and families; from being struck down by the courts in terms of the repugnancy clause.

Question 7

What changes did colonial courts introduce in terms of the effects colonialism had on dispute resolution?

Answer 7

1. Compartmentalisation of judicial matters and processes. Individual rights and duties accentuated over community interests.
2. Matters were also dealt with in an adversarial manner. Intended to determine the wrongdoer and the wronged. Resolved by means of an irrevocable judgment.
3. State refused to recognise legal obligations inherent in certain relationships.

Question 8

Mosii case

Answer 8

SCA dictated that in the ordinary courts of law native custom must be proved in the same manner as any other custom

Question 9

Van Breda and others v Jacobs and others (Proving custom)

Answer 9

1. Must have existed for a long time.
2. Must have been uniformly observed by the community concerned.
3. Must be reasonable.
4. Must be certain

Question 10

Alexkor case

Answer 10

Court recognised the difficulty in ascertaining the principles of customary law. Concluded that the meaning of customary law includes living law.

Living law applies to both individuals and corporations. It is subject to the Constitution and it must be developed by courts in terms of Section 39(2) of the Constitution.

Question 11

Shilubana case

Answer 11

Court outlined 3 part test for ascertaining customary law:

1. Content of customary law must be ascertained from both past and present usage of certain community. Must be studied in historical and current context.
2. Where content is under dispute, evidence of present practice must be presented. Courts must acknowledge developments within the community and give effect to developments without compromising rights.
3. Courts may not shy away from developing customary law

Question 12

What does Complete disappearance of NATIVE LAW entail and due to what?

Answer 12

• The Repugnancy clause
• The Colonial agenda
• Dominant factors of colonisers
• The subservience of customary law to common law

Question 13

What does Separate parallel development of Native Law entail?

Answer 13

• Constitutional dispensation witnessed directed effort at development of Customary Law.
• However, full development of customary law has failed.
• Continued dominance of Common Law.

Question 14

What does Gradual assimilation into European Law entail?

Answer 14

• Existence of a unitary system not plausible.
• Ehrlich’s calls for direct observation of life by legal system.
  1. Retaining choice of law and make both options generally applicable to everyone.
  2. Retain choice of law but reform Common law.
  3 Remove choice of law and merge the legal systems.

Question 15

Why is the complete disappearance of native law not possible?

Answer 15

Only the ‘official’ version of native law would disappear, living version will continue to exist.

Question 16

Three-part test for ascertaining content of Customary law:
Shilubana case

Answer 16

i. Custom’s past and present usage
ii. Evidence of present practice
iii. Judicial development

Question 17

Amalgamation can be effected by taking the following steps:

Answer 17

1. Retaining choice of law and make both options generally applicable to everyone.
2. Retain choice of law but reform Common Law.
3. Remove choice of law and merge the legal systems.

Question 18

Challenges regarding amalgamation

Answer 18

1. Diversity and expression of Customary law in South Africa.
2. General basis for application can be established
3. Selection of a specific iteration of localized customary law.
4. Compelling reasons must be presented for applying localized law over another.
5. Concerns regarding potential ‘forum shopping’.

Question 19

Mayelane case

Answer 19

If the first wife is not informed of the impending marriage, the second union will not be recognized, but the children of the second union will not be prejudiced by this as they will still be regarded as legitimate children.

Question 20

Ramentele case

Answer 20

Held, that it will seldom be an easy task for the court to identify a firm and inflexible rule of customary law for the purpose of deciding upon its constitutionality or enforceability.