Tinita Revision Questions

Question 1

What is the consequence of S1 of the Evidence Law Amendment Act on ACL?

Answer 1

It changed how ACL is applied in ordinary courts:
 It stipulated judicial notice of ACL
 But indigenous law was still subject to the repugnancy clause
But in practice only recognises official customary law.

Question 2

Why is the history of ACL so important?

Answer 2

One cannot understand the status of ACL without appreciating the history of its recognition in SA and its development

ACL must be seen in its political context taking into account colonialism, human rights movement and development of the law.

Question 3

What is the difference between IAL and ACL

Answer 3

IAL: the precolonial norms that emerge in agrarian settings, which are observed in their ancient forms

ACL: adaption of these norms into socio-economic changes brought by colonial rule

 The difference between IAL and ACL is due to legal pluralism

Question 4

To what extend did the British recognise the customs of indigenous people

Answer 4

The British recognised the customs of the indigenous people provided they were not repugnant to public policy and natural justice ( used indirect rule)

Question 5

Why was ACL recognised during the British Colonial Period

Answer 5

ACL was recognised for control purposes in order to prevent a revolt.

Colonialism ultimately altered indigenous law.

Question 6

What did the colonial rule revolutionise? What is the consequence of this?

Answer 6

 Colonial rule revolutionized the Agrarian society

 Rights: from communal to the BoRs which emphasizes individual’s rights

Question 7

What is the male primogeniture rule

Answer 7

 A rule of succession whereby the eldest male child was in charge of social organization and economic and agrarian systems of the family group

 The oldest male child would inherit the property not for his own benefit, but
for the welfare of an entire family

 Women cannot inherit from their husbands under this rule

 This was radically altered by colonialism

Question 8

How did the Union promote reverse urbanisation?

Answer 8

 The rate of urbanization was curbed by means of forced relocation to tribal areas

 To ensure minority white dominance colonialists fragmented the African populations into tribes for easy control

 Reverse urbanization sought to compel people who had moved to urban areas
to return to the rural lands

Question 9

what was the effect of colonial rule on ACL

Answer 9

 marginalized women and children by creating dissonance between rules and social settings in which the rules applied

 separate specialized lower courts (commissioner and chief courts) that could apply ACL but subject to white administrative
control/appeal

 Mag and supreme courts treated ACL as a matter of law
 no real recognition of ACL

 Policies were aimed at controlling resources and maximizing revenue

Question 10

what was the repugnancy clause

Answer 10

ensured that customary law could not be applied if it were considered contrary
to public policy or natural justice

Question 11

what effect did the repugnancy clause and codification have on customary law

Answer 11

• > laid the foundation for judicial interpretation
• > subjected ACL to western values (principles of natural justice and public policy)
• > ossified and distorted the law
• > created living vs official customary law

Question 12

What is legal pluralism

Answer 12

It is the interruption of legal order in a community or a population but also in a
social field
i.e interaction between RDL and IAL

Question 13

What is official customary law

Answer 13

The version codified by legislation, captured in precedents and perceived by outsiders (state officials)

Question 14

What is living customary law

Answer 14

Laws observed by communities = indigenous norms that are actually followed by the communities that practice them

Question 15

What revolutionary changes made ACL emerge

Answer 15

 Wage labour
 Urbanization
 New religion
 Education
 Food
 Dressing
 Forms of property
 Individualistic worldview

Question 16

what is direct rule

Answer 16

Colonial policy under which the native population was directly bound to the British government through the English common law

Question 17

What is indirect rule

Answer 17

Colonial policy whereby the British Colonial government set up:

+ native administrations, courts, and
treasuries

+ through which customary law was used to
ensure native cooperation.

In essence the natives could control their own affairs through customary law so long as they did not undermine the colonial administration.

Question 18

what is terra nullius

Answer 18

Principle whereby land that was not being productively used was deemed to
not to be owned

Question 19

What is lex nullius?

Answer 19

The notion that the natives were without law

Question 20

What is capitalism?

Answer 20

The colonial economic policy which favoured private ownership and was rive
by profit incentive

Question 21

What is enlightenment?

Answer 21

A 16 th century cultural and intellectual movement which pitted the idea of tradition against broadly accept social norms. Materialism and humanism were central tenements of such.

Question 22

What is the policy of assimilation?

Answer 22

The policy which compelled culturally different people to embrace a particular
culture as if it were their own

Question 23

What is the union period?

Answer 23

The period during which the four British colonies were united to form the Union of South Africa (Cape, Natal, Orange river and Traansvaal)

Question 24

What is reverse urbanization?

Answer 24

The process in which the government sought to reverse urban-rural
urbanization

Question 25

What sections of the final constitution protect IAL/ACL

Answer 25

1. S30
2. s32
3. S211 (3)

Question 26

What is the recognition of ACL in the constitution expressly subject to (what section)

Answer 26

BoR S39 (2)

Question 27

What did Alexkor and Shilubana say about ACl

Answer 27

 Alexkor: courts are obliged to apply it where applicable (subject to the Con and legislation), it is seen as a distinct part of SA law
 Shilubana: customary law is an NB and independent system of law but it must
accor with the Con

Question 28

What are Lehnert’s two interpretations of courts’ power to develop ACL?

Answer 28

 Active: Create a new rule either by re-formulating existing indigenous law
or formulating altogether a new rule (But what about the foundational values
of indigenous law?)
 Passive: Look at current practices of people an recognize them as binding
rules (Can only recognize the rule to the extent that it conforms to the BoR)

Question 29

Why are the foundational values of indigenous law important

Answer 29

It illumines the social settings in which indigenous laws emerged and thereby
explains why the indigenous laws struggle to fit with modern conditions

Question 30

What are values?

Answer 30

Individual or collective beliefs which people hold about what is wrong and right in social behaviour, what is useful and useless and what is appropriate and condemnable

Question 31

For what two reasons are indigenous values marked by communality?

Answer 31

 Defence against wild animals, bandits and raiders

 Agriculture, in which wealth was produced communally, and an authority
figure organized agricultural activity, represented the family before the clan
(outside word), and interceded on it behalf with ancestral spirits

Question 32

What examples are there of indigenous African Law values

Answer 32

 Best interest of the family and duty of care 
    to dependents
 Preservation of the ancestral home
 Ubuntu
 Family involvement in marriage
 Fair trade

Question 33

Why can ACL be said to be part of a global cultural revolution?

Answer 33

Because previous situations of racism, patriarchy, discrimination, and inequality are now succumbing to the new globalist values of equality, human dignity and wealth distribution

Question 34

What is the relationship between ACL and the BoR

Answer 34

The Con and state law, permeates every aspect of life in Africa, although indigenous laws predate state laws, they do not escape the regulatory dominance of the Con

Question 35

what is the universalism of human rights

Answer 35

 The idea that human rights derive from an individual’s humanity i.e. by being human

 Universalism is deeply tainted by legal history which reveals how stronger societies have historically overpowered and dominated weather societies
(which has led to numerous conflicts)

Question 36

What is cultural relativism

Answer 36

 The idea that a person’s worldview (including religious beliefs, values, and
practices) should be exempt from legitimate criticism by outsiders because it can only be understood from the perspective of its holder’s own culture, rather than the perspective of outsiders

 It was introduced by Franz Boaz in the 20 th century

Question 37

what are the two categories of cultural relativism

Answer 37

strong vs weak

Question 38

what is strong cultural relativism

Answer 38

Culture is the principal source of the validity of a moral rule.

The presumption is that indigenous norms, values and moral rules are so culturally determined that the universality of human rights can only serve as a minor check on how these rights are enjoyed.

Question 39

what is weak cultural relativism

Answer 39

Recognise a comprehensive set of prima facie universal human rights, only allowing limited local variations and exceptions
to these rights

Question 40

How do SA judges approach the relationship between IAL and the BoR?

Answer 40

 They approach it from a conflict of law perspective: it involves striking down a norm or rule of indigenous law whenever it conflicts with the repugnancy clause or BoRs

 Judges often neglect the agrarian social settings in which indigenous laws emerged

Question 41

What approach do judges adopt when interpreting ACL, and what is the consequence of this?

Answer 41

Judges adopt a universalist human rights approach to their interpretation of ACL, thereby neglecting a cultural relativist approach