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Topic 1 Flashcards

1
Q

why is it important to understand the history of ACL

A
  • social problems have roots in the past

- can’t understand ACL without history of its recognition in SA and development

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2
Q

what context must ACL be seen in

A

a political context

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3
Q

What does a political context encompass

A

globalist events like colonialism, human rights movement and the law and development movement

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4
Q

What is the socio economic and political context of colonialism

A
  • control of other people. conquering of territory. subjugation of people and theft of their resources
  • moral and cultural legitimacy with political power
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5
Q

why is Africa a product of Western Colonialism

A
  • Eu imposed own law and belief of Eurocentric superiority and educational systems
  • dispossessed people of land through terra/ lex nullius
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6
Q

What is the law and development movement

A

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

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7
Q

What did the Dutch apply in the Cape in 1652

A

Roman Dutch Law and non -recognition of IAL

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8
Q

what legitimised british colonization in 1814

A

European superiority from the enlightenment , industrial revolution and a capitalist economic system

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9
Q

How did britain attempt to deal with native laws at first

A

tried to implement direct rule that was in place from the dutch colony

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10
Q

was direct rule successful

A

nope

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11
Q

What is indirect rule

A

policy where natives could control their own affairs separately as long as it did not undermine the colonial administration

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12
Q

how could native people control their customary law under indirect rule

A

British set up native administrations. courts and treasuries through which customary law was used to ensure native co-operation

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13
Q

what impression did the indirect rule create

A

group autonomy and independence of indigenous people

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14
Q

To what extent did the British recognize customary law

A

recognized the customs of indigenous people as long as they were not repugnant to the public policy and natural justice

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15
Q

What is the effect of the repugnancy clause

A

colonialists decided on the suitability of IAL based on their own imposed values and laws even though they were ignorant of indigenous laws

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16
Q

an example of customary law considered repugnant

A

customary marriages and lobolo were considered uncivilised and denied legal validity

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17
Q

how did Brit/ European judges interpret the IAL

A

they used assessors and then imposed their own law

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18
Q

what effect did the british eu judges have on IAL

A

they ended up changing it

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19
Q

What was the repugnancy clause replaced by in modern times

A

BoR

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20
Q

What laws were IAL subordinated to under British rule

A

RDL and ECL

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21
Q

What happened to the indigenous khoisan people under british rule

A

they were systematically destroyed

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22
Q

What was the policy of recognition towards ACL in the cape

A
  • non -recognition
  • only RDL
  • no chief power
  • mag administer justice
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23
Q

what was the policy towards ACL in Natal

A
  • initially non -recognition but lacked personnel to enforce
  • Shepstone introduced indirect rule
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24
Q

why was ACL recognised under british rule

A

for control purposes

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25
what did colonialism ultimately do to IAL
altered it
26
In what two ways did colonial rule revolutionise agrarian society
- changed communal rights | - altered the rule of male primogeniture
27
How did colonialism revolutionise rights
- rights and obligations were communal - rights dependent on duties - colonialism emphasised individual rights
28
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.
29
What geographical changes occurred under british colonialism
- railways built destroyed shrines, markets etc. | - brought together disparate cultural communities
30
What was the result of british colonialism
new religion new migrant labour system decreasing close knit families individualistic notions of ownership etc.
31
what did colonial rules do to women
marginalised women and children by creating dissonance between rules and social settings in which the rules applied
32
How did magistrates courts treat ACL under colonialism
ACL was a fact that had to be proved like foreign kaw
33
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
34
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
35
what is IAL
precolonial norms that are still observed in their ancient forms
36
what is ACL
adaptation of these norms to socio-economic changes brought by colonial rule
37
What did the categorisation of OCL And LCL fail to recognise
the profound influence of legal pluralism on the normative behaviour of africans
38
what was the union of SA in 1910
The period during which the four British colonies were united to form the Union of SA
39
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
40
What did the Union do to ensure white dominance
fragmented the African populations into tribe for easy control
41
what is reverse urbanization
compel people who had moved to urban areas to return to rural lands
42
what legislative measures provided for reverse urbanisation
- natives land act - BAA - Black Authorities Act
43
what did the Native land Act do
- precluded black people from buying land except in certain areas
44
what was a consequence of the Native Land Act
labour exploitation on white farms increased and facilitated cheap mine labour
45
what did the black administration act give colonialists power to do
gave them power to control population, redefine boundaries and shuffle tribes
46
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
47
who did the black admin act apply to
black africans with the proviso that it should not contradict public policy or natural justice
48
what african concept did the black admin act accept
lobolo / bogadi (bridewealth)
49
what did S11 of the black admin act do
Set up a separate court system for the application of customary law
50
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
51
what was a chief's court under the black admin act
chief's were given extensive powers ofver people in their own jurisdictions
52
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
53
what did the black authorities act do
1. conferred a wide range of discretionary powers on the state to manipulate the running of tribes 2. gave wide powers to traditional leaders who administered the tribes for colonialists, collect taxes and approved land seizures.
54
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
55
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
56
what is the main reason for the difference between IAL and ACL
legal pluralism
57
What is OCL
customary law codified in legislation, precedents and perceived by outsiders (state officials)
58
What is LCL
laws observed by the communities
59
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
60
what can the interplay between vertical and horizontal relationships of customary law interactions be defined as
legal pluralism
61
how does legal pluralism inform customary law
informs customary law's flexibility and mocks its main stream conceptualisation
62
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.

ACL (8 decks)

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