Topic 1 Flashcards
why is it important to understand the history of ACL
- social problems have roots in the past
- can’t understand ACL without history of its recognition in SA and development
what context must ACL be seen in
a political context
What does a political context encompass
globalist events like colonialism, human rights movement and the law and development movement
What is the socio economic and political context of colonialism
- control of other people. conquering of territory. subjugation of people and theft of their resources
- moral and cultural legitimacy with political power
why is Africa a product of Western Colonialism
- Eu imposed own law and belief of Eurocentric superiority and educational systems
- dispossessed people of land through terra/ lex nullius
What is the law and development movement
State laws are eu laws imposed by colonial authorities but adapted to local situations
IAL is subordinated to state laws even tho the predate them
What did the Dutch apply in the Cape in 1652
Roman Dutch Law and non -recognition of IAL
what legitimised british colonization in 1814
European superiority from the enlightenment , industrial revolution and a capitalist economic system
How did britain attempt to deal with native laws at first
tried to implement direct rule that was in place from the dutch colony
was direct rule successful
nope
What is indirect rule
policy where natives could control their own affairs separately as long as it did not undermine the colonial administration
how could native people control their customary law under indirect rule
British set up native administrations. courts and treasuries through which customary law was used to ensure native co-operation
what impression did the indirect rule create
group autonomy and independence of indigenous people
To what extent did the British recognize customary law
recognized the customs of indigenous people as long as they were not repugnant to the public policy and natural justice
What is the effect of the repugnancy clause
colonialists decided on the suitability of IAL based on their own imposed values and laws even though they were ignorant of indigenous laws
an example of customary law considered repugnant
customary marriages and lobolo were considered uncivilised and denied legal validity
how did Brit/ European judges interpret the IAL
they used assessors and then imposed their own law
what effect did the british eu judges have on IAL
they ended up changing it
What was the repugnancy clause replaced by in modern times
BoR
What laws were IAL subordinated to under British rule
RDL and ECL
What happened to the indigenous khoisan people under british rule
they were systematically destroyed
What was the policy of recognition towards ACL in the cape
- non -recognition
- only RDL
- no chief power
- mag administer justice
what was the policy towards ACL in Natal
- initially non -recognition but lacked personnel to enforce
- Shepstone introduced indirect rule
why was ACL recognised under british rule
for control purposes
what did colonialism ultimately do to IAL
altered it
In what two ways did colonial rule revolutionise agrarian society
- changed communal rights
- altered the rule of male primogeniture
How did colonialism revolutionise rights
- rights and obligations were communal
- rights dependent on duties
- colonialism emphasised individual rights
what is the rule of male primogeniture
Oldest male child in charge of social organisation and economic and agrarian systems of the family group.
Inherited everything but had duty of care to rest of the family.
What geographical changes occurred under british colonialism
- railways built destroyed shrines, markets etc.
- brought together disparate cultural communities
What was the result of british colonialism
new religion
new migrant labour system
decreasing close knit families
individualistic notions of ownership etc.
what did colonial rules do to women
marginalised women and children by creating dissonance between rules and social settings in which the rules applied
How did magistrates courts treat ACL under colonialism
ACL was a fact that had to be proved like foreign kaw
what was the result of the codification of customary law under colonialism
- EU claimed it provided certainty and uniformity
- but ossified the law and distorted it
- origin of OCL and LCL
what is legal pluralism
the disruption of a legal order in a community or population but also in a social field
- the interaction between IAL and RDL
what is IAL
precolonial norms that are still observed in their ancient forms
what is ACL
adaptation of these norms to socio-economic changes brought by colonial rule
What did the categorisation of OCL And LCL fail to recognise
the profound influence of legal pluralism on the normative behaviour of africans
what was the union of SA in 1910
The period during which the four British colonies were united to form the Union of SA
what approach did the Union take towards IAL
- needed a uniform policy
- people had lost interest in customary law and this made it easier to legislate
- drafted key pieces of legislation
What did the Union do to ensure white dominance
fragmented the African populations into tribe for easy control
what is reverse urbanization
compel people who had moved to urban areas to return to rural lands
what legislative measures provided for reverse urbanisation
- natives land act
- BAA
- Black Authorities Act
what did the Native land Act do
- precluded black people from buying land except in certain areas
what was a consequence of the Native Land Act
labour exploitation on white farms increased and facilitated cheap mine labour
what did the black administration act give colonialists power to do
gave them power to control population, redefine boundaries and shuffle tribes
what power did the governor general have under the black admin act
GG became the supreme chief with power to appoint and depose chiefs, legislate at will and change tribal boundaries
who did the black admin act apply to
black africans with the proviso that it should not contradict public policy or natural justice
what african concept did the black admin act accept
lobolo / bogadi (bridewealth)
what did S11 of the black admin act do
Set up a separate court system for the application of customary law
what was the native commissioners court and native appeal courts role under the black admin act
customary law was only applied in state courts when it was consistent with statute
what was a chief’s court under the black admin act
chief’s were given extensive powers ofver people in their own jurisdictions
what did black admin act mainly regulate
black estates
made all marriages OCOP
only men could inherit land
movable property disposed of according to ACL
what did the black authorities act do
- conferred a wide range of discretionary powers on the state to manipulate the running of tribes
- gave wide powers to traditional leaders who administered the tribes for colonialists, collect taxes and approved land seizures.
What did S1 of the LEAA do
changed how ACL is applied in ordinary courts
stipulated judicial notice of ACL
ACL still subject to repugnancy clause
What is possible for ACL under S1 of the LEAA
any court can take judicial notice of foreign law and indigenous law so far as it can be ascertained readily and with certainty and provided it is compatible with public policy and natural justice
what is the main reason for the difference between IAL and ACL
legal pluralism
What is OCL
customary law codified in legislation, precedents and perceived by outsiders (state officials)
What is LCL
laws observed by the communities
what is customary law not confined to in Diala’s opinion
individuals interactions in the community –> it extends to interactions with outside actors such as state agents, religious agents
what can the interplay between vertical and horizontal relationships of customary law interactions be defined as
legal pluralism
how does legal pluralism inform customary law
informs customary law’s flexibility and mocks its main stream conceptualisation
what are the main changes to normative behaviour of Africans from exploitation and distortion of ACL
- wage labour
- urbanisation
- new religion
- new food
- individualistic world views
This is why scholars use OCL and LCL.
