Module 9

Question 1

How does customary law relate to people?

Answer 1

Customary/Indigenous law does not distinguish between people and natural resources and protects the environment as it is part of their identity. This was based on ubuntu.

Question 2

What is Ubuntu?

Answer 2

Ubuntu is based on the fact that we are one with our environment and our neighbours. Ubuntu talks about the fact that you need others to survive, and it doesn’t separate the human being from the environment

Question 3

How did colonisaton treat customary law?

Answer 3

Colonisation came and stated that due to the customary law, not distinguishing between people and animals they were therefore no better than animals. And removed people from their land they stated they were protecting the environment through fortress conservation

Question 4

What are the Acts that promagented segregation in the black community?

Answer 4

• The Native land Act of 1913 stated that black people couldn’t acquire land except in specific scheduled areas
• The Black Administration Act of 1927 created a separate system of administration of estates of deceased black people and a separate court system for black people
  The Black Administration Act of 1927 had a separate court system rulings could be appealed to the colonial court system which allowed common law to overrule customary law

Question 5

What does section 11(1) of the Black Administration Act state?

Answer 5

The Black Administration Act of 1927 Section 11(1) had a repugnancy clause that stated that the indigenous law was recognised as long as it was in line with the principles of natural justice and public policy. This was used to prune and remove customary laws that colonists did not agree with

Question 6

When should our courts use customary law as stated in law of Evidence Amendment Act?

Answer 6

The Law of Evidence Amendment Act of 1988 says that our courts should use customary law if it is:
- Easily ascertainable (easy to find)
- Reasonably certain, has established rules

Question 7

How should the courts which law to apply?

Answer 7

• The type of crime or dispute
• Where it took place
• The law used in that area

Question 8

What is customary law?

Answer 8

Customary law refers to the law that is practised by the Indigenous black communities of South Africa. It is different between different tribes. Customary law is a part of an oral tradition, passed down

Question 9

What is the nature of customary law as stated in the Bhe case and the Alexkor case?

Answer 9

• It is a system of law that was known to the community, practised and passed on from generation to generation.
• It is unwritten and Constitutionally recognised as an original, distinct and independent source of norms within the legal system.
• It is not a fixed body or formally classified. It naturally evolves as the people who live by its norms change their patterns of life

Question 10

What is the nature of customary law as found in Ex Parte Chairperson of the Constitutional Assembly?

Answer 10

• Places much value in consensus-seeking, it requires a group to agree with it
• Provides for family and clan meetings which offer excellent opportunities for the prevention and resolution of disputes and disagreements.
• It is communal in nature and values Ubuntu. It values obligation and duty and not the right

Question 11

When should you want to interpret and apply Indigenous law according to Alexkor case?

Answer 11

• When you want to interpret and apply Indigenous law according to Alexkor the courts should:
• Its nature and content must be determined by reference to itself and not the common law
• It may be established by reference to writers on Indigenous law and other authorities and sources and may include the evidence of witnesses if necessary
• But caution must be exercised when dealing with textbooks and old authorities because of the tendency to view Indigenous law through the prism of legal conceptions that are foreign to it
• In applying Indigenous law, it is important to bear in mind that Indigenous law is not written as once it is written down it is no more flexible and becomes outdated
• While in the past Indigenous law was seen through the common law lens, it must now be seen as an integral part of our law through section 39 of the Constitution which places Customary law on the same basis as Common law

Question 12

What are the types of customary law?

Answer 12

• Living customary law is practised in South Africa, it is unwritten, dynamic and responsive.
• Mixed customary law refers to customary law that has emerged in legislation as a way to align it with the Bill of Rights (tries to fix unconstitutionality customary)
• Academic law that is used for teaching purposes, taught in class
• State living customary law is a form of living customary law that has been transformed into official customary law through, case law

Question 13

Why is Codified (official) customary law often criticised for not being accurate?

Answer 13

• Confuses the real principles of unwritten customary law.
• Leaves out some of the principles and areas of unwritten customary law.
• Gives the impression that there is only one system of customary law.

Question 14

What are the requirements for customs and traditions to be law?

Answer 14

• Known to the community,
• Followed by the community, and
• Enforceable (able to be carried out)

Question 15

What are the requirements in Van Breda for customary law to be recognised as law?

Answer 15

• Be in existence for a long time
• Been generally observed by the community
  Reasonable
• Content and meaning must be clear and certain
• Existence without exception since its origin

Question 16

Which sections of the Constitution protect customary law?

Answer 16

• Section 15 - Indigenous law is a religious system as they believe in the ancestors with the chief being the spiritual leader
• Section 30, 31 - the right to culture
• Section 39(2) - recognises customary law as a source of law and places it at the same level as the common law
• Section 39(3) - states you can apply and get vested rights from customary law, common law or legislation as long as it is in line with the Constitution
• Section 211 - the recognition of traditional leaders and recognises the law, requires the application of customary law when applicable and in line with the Constitution and legislation that applies to it

Question 17

What are the three rules concerning customary law in Section 211(3) of the Constitution?

Answer 17

• The recognition rule s211(3) requires the court in imperative terms to apply customary law
• The application rule s211(3) ‘when that law is applicable’
• The alignment rule s211(3) requires alignment of customary law with the Constitution and legislation

Question 18

What are the steps to find customary law through the past practice rule found in the Shilubana case?

Answer 18

1. A court must consider both the traditions and the present practices of the community.
2. The community’s right to develop customary law must be respected to the extent consistent with adequately upholding the protection of rights.
3. It must be in line with Section 39(2) of the Constitution and the values of the Constitution
4. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for rights, and the protection of constitutional rights

Question 19

What are the sections of the Law of evidence amendment act and the customary law that deal with the applications of customary law?

Answer 19

• Section 1(1) of the Law of Evidence Amendment Act 45 of 1988 states that courts have to take judicial notice of the law of a foreign state and indigenous law 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.
• Section 1(3) of the Law of Evidence Amendment Act states that when two individuals live under different customary laws and can’t agree on which law to apply to them, then the court should apply any system if Indigenous law than those of where they live
• According to section 211 customary law can only apply if applicable and parties seeking to apply customary law in court should prove that there is a tribal connection between the litigants, that a particular system of Indigenous law applies and that applicable principles

Question 20

What does Section 1 of the Law of Evidence Amendment Act do?

Answer 20

Section 1 of the Law of Evidence Amendment Act does not recognise living customary law as it is unwritten, it further only recognises official customary law that is not therefore customary law.

Question 21

What was held in the Yako Beyi case?

Answer 21

It was held that there is no presumption to apply common law or customary law but use most applicable law to the parties looking at the circumstances of the case