Learning unit 1, Historical overview of customary law

Question 1

What does the term ‘ubuntu’ mean in the context of African customary law?

Answer 1

Humanness and humanity in the African sense

Ubuntu includes values such as communal living, group solidarity, responsibility, accountability, generosity, a sense of belonging, cooperation, and reciprocity.

Question 2

What was the primary legal system in South Africa during the pre-colonial era?

Answer 2

Customary law

Customary law was applied in its original form underpinned by an indigenous frame of reference.

Question 3

What historical event marked the beginning of the colonial era in South Africa?

Answer 3

The Dutch settlers’ arrival in 1652

The Khoisan people lost their kingdom to the Dutch settlers at this time.

Question 4

What was the impact of the British occupation of the Cape in 1806 on customary law?

Answer 4

Roman-Dutch law was retained, leading to the obsolescence of indigenous systems

Indigenous Khoisan communities continued to apply their own legal systems in theory, but in practice, they faced integration into settler society.

Question 5

True or False: The Native Administration Act of 1927 recognized indigenous law as prima facie applicable.

Answer 5

False

The Act indicated that common law was to be followed unless the native commissioner chose to apply native law.

Question 6

What were the consequences of the Native Administration Act for African communities?

Answer 6

Forced removals and suffering

The Act enabled the removal of entire African communities from white areas.

Question 7

What period followed the apartheid era in South Africa?

Answer 7

The transitional period (1990–1996)

This period was characterized by significant changes in the recognition of customary law.

Question 8

Fill in the blank: Indirect rule was a colonial policy articulated by _______.

Answer 8

Frederick Lugard

Indirect rule aimed to govern Africans by understanding their traditional structures.

Question 9

What principle underlies the concept of terra nullius?

Answer 9

Land not productively used is not owned

This principle justified colonial claims to land inhabited by indigenous peoples.

Question 10

What does the term ‘lex nullius’ refer to?

Answer 10

The notion that ‘natives’ were without law

This term highlights the dismissal of indigenous legal systems during colonialism.

Question 11

What was one of the primary drivers of colonialism according to the text?

Answer 11

Capitalism

European countries sought to enlarge their wealth by expanding assets and domains in foreign lands.

Question 12

What cultural movement in the 1600s and 1700s supported imperialism?

Answer 12

The Enlightenment

This movement promoted materialism and humanism over tradition.

Question 13

What was the outcome of applying direct rule in the Cape?

Answer 13

Assimilation under English common law

This was easier due to the smaller indigenous population in the Cape.

Question 14

What does the policy of assimilation compel people to do?

Answer 14

Embrace and conform to the dominant culture or law

This policy was often applied to indigenous populations under colonial rule.

Question 15

What was the general attitude of colonizers towards traditional leaders and institutions?

Answer 15

Undermined legitimacy

Colonizers typically did not recognize traditional authority, asserting their own power instead.

Question 16

What does the term ‘civilisation mission’ refer to in the context of colonialism?

Answer 16

A struggle over resources and cultural legitimacy

Colonizers often justified their actions as a means to ‘civilize’ indigenous populations.

Question 17

What does the Constitution of the Republic of South Africa, 1996, recognize regarding traditional institutions?

Answer 17

The recognition of traditional institutions including customary law

This is outlined in various chapters and sections of the Constitution.

Question 18

What is often referred to as the ‘civilisation’ mission in the context of colonisation?

Answer 18

The assertion of cultural and moral legitimacy by colonisers

This concept refers to the idea that colonisers justified their control over indigenous peoples by claiming to bring civilisation and moral standards.

Question 19

How did colonisers implement their authority over indigenous peoples?

Answer 19

Through physical and legal coercion

This involved the use of force and the establishment of legal systems that favored colonisers.

Question 20

What principle did colonisers rely on to dispossess the local population of their property?

Answer 20

Terra nullius

This principle asserted that land not occupied by Europeans was considered unowned and could be claimed.

Question 21

What were the two forms of property that colonisers sought to legally possess?

Answer 21

• Land
• People (slave labour)

This reflects the economic motivations behind colonisation, focusing on resource acquisition.

Question 22

What legal strategy did colonisers initially insist upon in their governance?

Answer 22

Direct rule

This strategy required indigenous peoples to submit to the legal systems imposed by colonisers.

Question 23

Which country’s arrival in South Africa intensified tensions with the Dutch colonisers?

Answer 23

Britain

The British arrived in the early 1800s and sought to expand their influence, leading to conflicts with the Dutch settlers.

Question 24

What was the primary economic ideology that drove British colonial expansion?

Answer 24

Capitalism

Capitalism led to the pursuit of wealth in foreign lands and the inclusion of indigenous peoples as laborers.

Question 25

What was the primary purpose of recognising customary law under colonial rule?

Answer 25

To serve the state's objectives ## Footnote The recognition was not about empowering indigenous people but about utilizing their systems to maintain control.

Question 26

What was the first introduction of indirect rule in South Africa?

Answer 26

Theophilus Shepstone introduced it in Natal in 1846 ## Footnote Indirect rule allowed for a semblance of indigenous governance while maintaining colonial control.

Question 27

What was the Natives Land Act's impact on black people in South Africa?

Answer 27

Confined them to reservations on 7% of the country's territory ## Footnote This Act prevented black people from acquiring land outside designated areas.

Question 28

What power did the Black Administration Act grant to the Governor-General?

Answer 28

To define and alter tribal boundaries and appoint chiefs ## Footnote This Act centralized authority in the hands of the Governor-General, undermining traditional leadership.

Question 29

True or False: The Black Administration Act favored the rights of married women.

Answer 29

False ## Footnote The Act perpetuated the minority status of married women, privileging adult male members of tribes.

Question 30

Fill in the blank: The Black Administration Act set up a separate state court system for the application of _______.

Answer 30

[customary law] ## Footnote This court system was intended to administer customary law while being subject to colonial legal standards.

Question 31

What was the repugnancy clause in the context of customary law?

Answer 31

Customary law had to align with principles of justice and humanity ## Footnote This clause limited the application of customary law in ways that were considered acceptable by colonial authorities.

Question 32

What social issue did the colonial government attempt to address through reverse urbanisation?

Answer 32

Compelling people to return to rural areas ## Footnote This was part of a strategy to control the movement of indigenous people and maintain labor supply.

Question 33

What was the Union of South Africa established on?

Answer 33

31 May 1910 ## Footnote The Union marked the unification of four British colonies into one entity under the Union of South Africa Act.

Question 34

What was the colonial government's attitude towards customary law during the Union period?

Answer 34

Little interest in it as a mode of rule ## Footnote Customary law became easier to change legislatively as the government sought to control indigenous populations.

Question 35

What was one consequence of the Natives Land Act?

Answer 35

Deprivation of land ownership rights for black South Africans ## Footnote This Act legally restricted black people from owning land, significantly impacting their livelihoods.

Question 36

What is the proviso mentioned regarding customary law?

Answer 36

It should not be ‘repugnant to principles of public policy or natural justice’.

Question 37

Whose interests were typically observed in the application of customary law by common law courts?

Answer 37

The white population.

Question 38

Who were the witnesses and assessors that influenced the judges in customary law cases?

Answer 38

Old men who shared the government’s interest in controlling women and younger men.

Question 39

What was the euphemism used to describe the system of apartheid?

Answer 39

Separate development.

Question 40

What was the supposed intention behind separate development?

Answer 40

To lead ultimately to the self-government of black people in the homelands.

Question 41

What did the Black Authorities Act of 1951 establish?

Answer 41

It gave the State President authority to establish tribal authorities for African tribes.

Question 42

What did the Black Authorities Act mean by ‘native/black law and custom’?

Answer 42

Whatever served the state at any particular time.

Question 43

What role did tribal authorities have under the Black Authorities Act?

Answer 43

To govern tribes and administer their affairs.

Question 44

What was a significant concern of the NP government in the 1980s?

Answer 44

Maintaining so-called ‘law and order’.

Question 45

True or False: The interim Constitution allowed traditional leaders to function in their roles.

Answer 45

True.

Question 46

What was the primary concern of women’s rights activists during the transitional period?

Answer 46

That rural women would continue to be subject to patriarchy under customary law.

Question 47

What does the concept of ubuntu emphasize?

Answer 47

Communality and interdependence within a community.

Question 48

How did the Constitutional Court define ubuntu in the case S v Makwanyane?

Answer 48

As a key constitutional value emphasizing respect for human life and dignity.

Question 49

What does the interim Constitution’s Constitutional Principle XIII address?

Answer 49

The role of traditional leaders and the recognition of customary law.

Question 50

What does section 211(3) of the Constitution pertain to?

Answer 50

When customary law is applicable.

Question 51

What regulatory challenges does the government face concerning customary law?

Answer 51

Balancing the rights of individuals with the claims of traditional leaders.

Question 52

Fill in the blank: The Black Authorities Act aimed to assign African people to _______.

Answer 52

[ethnically-based homelands].

Question 53

What was a consequence of the ruling in Ex parte Minister of Native Affairs: In re Yako v Beyi?

Answer 53

It contributed to the degradation of customary law.

Question 54

What did the regulations passed in 1987 govern?

Answer 54

The intestate succession of the estates of black people.

Question 55

What was one of the outcomes of the Constitutional Court’s decisions regarding ubuntu?

Answer 55

It became a core constitutional value influencing interpretations of rights.

Question 56

What did the interim Constitution incorporate from traditional African jurisprudence?

Answer 56

The concept of ubuntu.

Question 57

True or False: Ubuntu is explicitly mentioned in the final Constitution.

Answer 57

False.

Question 58

What was the concern regarding the definition of customary law in the Constitution?

Answer 58

Whether it refers to official or living customary law.

Question 59

Evaluate the operation of ubuntu as a measure of the propriety of human conduct in South Africa before it was interrupted by colonial intervention.

Answer 59

The propriety of human conduct was redeemed by the evidence of ubuntu that lay at the root of one’s actions. In the ubuntu institutions listed above, the centrality of humanness lies at the heart of the social activities of each individual. Each institution was redeemed by its tendency to enhance the human condition of certain individuals or groups such as ukufakwa isondlo. Even an individual’s liability for wrongful conduct was measured by the level of “ubuntuness” with which it was performed. The heart of the perpetrator was examined to establish if ubuntu was the basis for his or her actions. For example, a person who killed a rapist to save a child was saved by the humanness of his actions. Likewise, the person who killed a dog that targeted lambing ewes and killed newborn lambs would not have been prosecuted. Both these actions would have been considered as praiseworthy because the community would be rid of the perpetrators. Colonialism put an end to this line of reasoning. The Western concept of law shifted the centre of attention from the heart to the mind. Under the Western system, it was no longer the humanness in the perpetrator’s heart that was examined to establish liability, but the perpetrator’s state of mind. Was he or she at fault? became the question. If he or she were indeed at fault, the next question would be: was the action intentional or negligent? Both these questions are directed at the perpetrator, not at the impact of the action on humanity.

Question 60

Trace the impact of the colonial intervention on the lives, land and the law of Africans from 1652 to the 1830’s in South Africa.

Answer 60

The fate of the Khoisan people with regard to the colonial dispossession of their land, the destruction of their sovereignty and the distortion of their laws soon became the fate of all other indigenous groups. These groups eventually found that African values were legally invalid because they ran counter to the Western morals of public policy and natural justice. To be valid, African customs had to be consistent with Dutch customs, not vice versa.

Question 61

According to your interpretation of the above extract from the judgment of Schreiner JA, what used to be the relationship between customary law and common law in the South African legal system?

Answer 61

Schreiner JA interpreted section 11(1) of the Black Administration Act (BAA), which reads: it shall be in the discretion of the Commissioners’ Courts in all suits or proceedings between Blacks involving questions of customs followed by Blacks, to decide such questions according to the Black law applying to such customs except in so far [as] it shall have been repealed or modifi ed: provided that such Black law shall not be opposed to the principles of public policy or natural justice … Hence, the judge insists that the president of the Appeal Court for Commissioners’ Courts was given the discretion to apply customary law in proper cases that called for such special treatment; otherwise he was mandated to apply the common law to cases involving Africans. This means that the BAA did not give customary law the status of a law to be applied in cases between Africans. Instead, it gave the Commissioners’ Courts the discretion to apply customary law only in special cases where the interests of justice called for it. Therefore, the president of the Appeal Court for Commissioners’ Courts erred in holding that such courts were mandated to apply primarily customary law instead of common law, which was the law of the land.

Question 62

Study the extract from Ngcobo J’s judgment in the Bhe case and write a reasoned opinion as to who caused black people’s poverty in South Africa and how they did it.

Answer 62

As the extract makes it clear, the union government promulgated the BAA as a tool to establish a separate administration for blacks and to create instruments to ensure the systematic impoverishment of black people. It established the offi ce of the GovernorGeneral as the “supreme chief of all Africans” in the country and gave him absolute power to drive them off their land without compensation and to resettle them on unproductive and barren land. This administration created false geographical divisions called “white areas” from which black people were forcibly removed. This colossal social experiment called segregation had the desired results: it caused untold suff ering for the back people and impoverished them.

Question 63

What is the importance of the transitional period in South African history?

Answer 63

For the fi rst time in more than 350 years, South Africans experienced the participation of all races in public aff airs when formerly imprisoned and exiled leaders met with former apartheid leaders to map out the path to a new South Africa. When the interim Constitution took eff ect on 27 April 1994, customary law ceased to be a sub-system of common law and once again was applied according to its value system. Like any other law, was subject to only the Constitution.

Question 64

What is the importance of the transitional period in South African history?

Answer 64

For the fi rst time in more than 350 years, South Africans experienced the participation of all races in public aff airs when formerly imprisoned and exiled leaders met with former apartheid leaders to map out the path to a new South Africa. When the interim Constitution took eff ect on 27 April 1994, customary law ceased to be a sub-system of common law and once again was applied according to its value system. Like any other law, was subject to only the Constitution.

Question 65

How does one distinguish between apartheid customary law and its democratic counterpart?

Answer 65

Apartheid customary law is described by Schreigner JA in in Ex parte: Minister of Native Aff airs – In re Yako v Beyi 1948 (1) 388 (A). See Feedback 1.3 above where the customary law of the democratic South Africa is described by the Constitutional Court in Alexkor v The Richtersveld Community & Others 2004(5) SA 460 (CC) paragraphs 50–53. See learning unit 2, lecture 2 below.

Question 66

direct rule

Answer 66

a policy initially applied by the colonial British government where they sought largely to assimilate the ‘natives’ under English common law

Question 67

indirect rule

Answer 67

a policy later applied by the colonial British government whereby ‘native’ administrations, courts and treasuries were established in the Cape and Natal colonies in accordance with their understanding of customary law to ensure the cooperation of traditional leaders and communities and to relieve the financial burden on the colonial governments

Question 68

terra nullius

Answer 68

the principle that where land has not been productively used by the people inhabiting it, it was not owned by those people who lived on and otherwise used the land

Question 69

lex nullius

Answer 69

the notion of colonists that the ‘natives’ were without law

Question 70

capitalism

Answer 70

the economic policy and system in terms of which European countries sought to enlarge their wealth by expanding their assets and domains to foreign lands and that was therefore one of the primary drivers of colonialism

Question 71

Enlightenment

Answer 71

a cultural and intellectual movement in the 1600s and 1700s that served to support broadly acceptable social knowledge and developments with the premises of materialism and humanism as opposed to tradition

Question 72

Enlightenment

Answer 72

a cultural and intellectual movement in the 1600s and 1700s that served to support broadly acceptable social knowledge and developments with the premises of materialism and humanism as opposed to tradition

Question 73

policy of assimilation

Answer 73

a policy compelling 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 74

Union period

Answer 74

the period during which the four British colonies of the Cape, Natal, Orange River and Transvaal were unified to form the Union of South Africa

Question 75

reverse urbanisation

Answer 75

a process by means of which the government sought to compel people who had moved from rural areas to urban areas to return to the rural areas

Question 76

rule of primogeniture

Answer 76

a rule of succession whereby the oldest male relative of the deceased inherited his intestate estate and women could not inherit from their spouses

Question 77

patriarchy

Answer 77

a social system in terms of which men hold the dominant position and positions of authority largely to the exclusion of women