Study Unit 2: Nature and Sphere of African Customary Law Flashcards
Hamnett
Definition of Customary Law
A set of norm which the actors in a social situation abstract from practice and which they invest with binding authority
Bennett
Definition of Customary Law
Derives from social practices that the community concearned accepts as obligatory
Law of Evidence Amendment Act
Definition of Customary Law
The law of customs as applied by the Black tribes in South Africa
Makes express reference to race which is questionable, should be scrapped or changed to reflect democratic values
South African Law Reform Commission
Definition of Customary Law
The customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people
Reform of Customary Law of Succession and Regulation of Related Matters Act
Definition of Customary Law
- Same as the definition given by the SALRC
- Description is devoid of meaning unless one knows:
1. What the relevant customs and usages are
2. Who the indigenous people asre
3. What their culture is
Legal Nature of Customary Law
- African community government and administration
- Moments in time
- Traditional authority cours and procedure
- Marriage and family
- Contracts
- Concrete as opposed to abstract facts
- Groups rather than individuals as legal persons
- Constant change and developement
- Values and principles
African Community Government and Administration
Key features of Customary Law
- Top of a traditional African community is a king / traditional leader
- They do not operate as democratically elected functionaries, but instead have community gathering that take place at the King / traditional leader’s kraal
Moments in time
Key features of Customary Law
Common law:
* Rules determine that an action must be instituted before a specific time
* Claims and crimes become prescribed after a certain period
Customary law:
* Time plays a minimal role whereas the actual occurence is a crutial factor
* Undue delay may however affect the credibility of evidence
Traditional authority, courts and procedure
Key features of Customary Law
- No professional judges or legal practitioners
- Process:
1. Adult members meet to discuss the dispute
2. If they fail - matter taken to offending party’s headman
3. If headman fails - resort to senior traditional leader’s court
4. Even though senior traditional leaders are granted civil and criminal jurisdiction, the court council performs the judicial function - Informal - more like mediation / reconciliation than a trial
Marriage and Family
Key features of Customary Law
Common law:
* Marriage is a contract between a man and woman
Customary law:
* A marriage is a union of 2 families
* Representatives of both families negotiate
* Wife integrates into husbands family
Contracts
Key features of Customary Law
Common Law:
* Contracting parties themselves acquire rights and incur liabilities
* Contracts only binds the contracting parties
Customary Law:
* Head of family concludes the contract on behalf of the family
* He will incur obligations under contracts
* Regards the interests of the family
Concrete as opposed to abstract legal facts
Key features of Customary Law
- Almost entirely based on the concrete performance of an act
- Marriage is concluded in a way that can be observerved and concearned by all concearned
- The bride is handed over to the bridegroom’s family
Groups rather than individuals as legal persons
Key features of Customary Law
- The group constitutes a legal entity
- The family head is the representative of the legal unit who can enter into contracts, acquire property, and incur liability for delicts committed by members of the family home
Constant change and development
Key features of Customary Law
- All legal systems are in constant change and development
- African individuals and communities must have changed because of current social circumstances
Values and Principles
Key features of Customary Law
There is a value principle behind every practice in customary law
Positive aspects of Customary Law
Key features of Customary Law
Values and Principles
Bhe:
1. Inherent flexibility
2. Consensus seeking
3. Prevention an resolution of disputes and agreements
4. Unity of Family
5. Obligation to care for family members
6. Perpetuation of the family
7. Nurturing of communitarian traditions such as ubuntu
Sources of Customary Law
- Customs and Usages
- Legislation
- Judicial Precedent
- Scholarly and other writings
Customs and Usages
Sources of Customary Law
- Primary source
-
Requirements for proving the existence of a custom or usage through the lens of comon law are:
1. Must have been in existence for an extended period of time
2. The relevant community must generally observe customs or usage
3. The custom or usage must be reasonable
4. The custom or usage must be consistent with or subject to the Constitution and other legislation
Legislation
Sources of Customary Law
How to find the official version of customary law
Judicial precedent
Sources of Customary Law
- The courts have been abolished but the precedent remains
- The courts have a responsibility to develop customary law when interpreting legislation and when developing customary law in line with the spirit, purpose and purport of the BoR
Scholarly and other writings
Sources of Customary Law
- S v Makwanyane:
- Court can take scholarly writings into account, as well as evidence of witnesses
