African Customary Law in South Africa [UK ed.] 0199057184, 9780199057184

Citation preview

1

African Customary Law IN SOUTH AFRICA Post-Apartheid and Living Law Perspectives PRIVATE LAW THANDABANTU NHLAPO (EDITOR) CHUMA HIMONGA (EDITOR) IP MAITHUFI | SINDISO MNISI WEEKS LESALA MOFOKENG | DIAL NDIMA

2

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries. Published in South Africa by Oxford University Press Southern Africa (Pty) Limited Vasco Boulevard, Goodwood, N1 City, Cape Town, South Africa, 7460 P O Box 12119, N1 City, Cape Town, South Africa, 7463 © Oxford University Press Southern Africa (Pty) Ltd 2014 The moral rights of the author have been asserted First published 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press Southern Africa (Pty) Ltd, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographic rights organisation, DALRO, The Dramatic, Artistic and Literary Rights Organisation at [email protected]. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press Southern Africa (Pty) Ltd, at the above address. You must not circulate this work in any other form and you must impose this same condition on any acquirer. African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives Print edition ISBN: 9780199057184 ePUB edition ISBN: 9780199054435 First impression 2014 Typeset in Utopia Std Regular 9.5pt on 12pt 3

Printed on [insert paper quality e.g. acid-free paper] Acknowledgements Publisher: Penny Lane Development editor: Jessica Huntley Project manager: Marguerite Lithgow Copy editor: Jeannie van den Heever Proofreader: Allison Lamb Indexer: Clifford Perusset Cover reproduction by: Cathy Watts Typesetter: Baseline Publishing Services Printed and bound by: XYZ Printing Company The authors and publisher gratefully acknowledge permission to reproduce copyright material in this book. Every effort has been made to trace copyright holders, but if any copyright infringements have been made, the publisher would be grateful for information that would enable any omissions or errors to be corrected in subsequent impressions. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

4

Contents in brief PART ITHEORETICAL AND STRUCTURAL OVERVIEW OF AFRICAN CUSTOMARY LAW CHAPTER 1 HISTORICAL OVERVIEW OF CUSTOMARY LAW CHAPTER 2 THE NATURE AND CONCEPT OF CUSTOMARY LAW CHAPTER 3 LEGAL PLURALISM CHAPTER 4 ASCERTAINMENT AND PROOF OF CUSTOMARY LAW CHAPTER 5 INTERNAL CONFLICT OF LAWS PART II PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY LAW CHAPTER 6 MARRIAGE CHAPTER 7 CONSEQUENCES OF MARRIAGE CHAPTER 8 DISSOLUTION OF MARRIAGE CHAPTER 9 THE CUSTOMARY LAW OF SUCCESSION CHAPTER 10 CONTRACTUAL OBLIGATIONS IN CUSTOMARY LAW CHAPTER 11 CUSTOMARY LAW OF DELICT CHAPTER 12 CRIMINAL LAW PART III POLITICAL AND CIVIC ASPECTS OF AFRICAN CUSTOMARY LAW CHAPTER 13 TRADITIONAL LEADERSHIP INSTITUTIONS CHAPTER 14 TRADITIONAL COURTS

5

Contents CONTENTS IN BRIEF CONTENTS PREFACE LIST OF AUTHORS SPECIALIST CONTRIBUTORS ABOUT THE BOOK ACKNOWLEDGEMENTS PART ITHEORETICAL AND STRUCTURAL OVERVIEW OF AFRICAN CUSTOMARY LAW CHAPTER 1HISTORICAL OVERVIEW OF CUSTOMARY LAW 1.1 Introduction 1.2 Colonialism (1652–1909) 1.2.1 Introduction 1.2.2 Socio-economic and political context of colonialism 1.2.3 Recognition of customary law 1.3 Union (1910–1947) 1.3.1 Introduction 1.3.2 Political background and wider legal context of the Union 1.3.3 Customary law, chiefs’ courts and state courts 1.4 Apartheid (1948–1990) 1.4.1 Political context of apartheid 1.4.2 Customary law and tribal authorities 1.5 Transitional period (1990–1996) CHAPTER 2THE NATURE AND CONCEPT OF CUSTOMARY LAW 2.1 Introduction 2.1.1 Customary law as opposed to customary laws 2.1.2 Customary law and colonial history 2.2 Definition and concept of customary law 2.2.1 Introduction 2.2.2 Living customary law 6

2.2.2.1 Definition of living customary law 2.2.2.2 Aspects of living customary law related to its definition 2.2.3 Official customary law 2.3 Mixed customary law 2.4 Reconciling customary law with fundamental human rights CHAPTER 3LEGAL PLURALISM 3.1 Introduction 3.2 Dominant jurisprudential theories of law in South Africa 3.2.1 Positivism and the rule of recognition 3.2.2 Positivism and the rule of law 3.2.3 Legal centralism 3.3 Socio-legal theories of law 3.3.1 Living law and law as a competitive social field 3.3.2 Legal pluralism 3.3.2.1 Weak legal pluralism 3.3.2.2 Deep legal pluralism CHAPTER 4 ASCERTAINMENT AND PROOF OF CUSTOMARY LAW 4.1 Introduction 4.2 The statutory framework for the ascertainment and proof of customary law in the courts 4.2.1 The position before the Law of Evidence Amendment Act 45 of 1988 4.2.2 The position under the LEAA 4.2.3 The position under the Constitution 4.2.3.1 The recognition role 4.2.3.2 The application role 4.2.3.3 The alignment role 4.2.3.4 The ascertainment role 4.3 The problems associated with official customary law 4.4 The ascertainment of living customary law 4.5 New developments in the ascertainment process CHAPTER 5INTERNAL CONFLICT OF LAWS 5.1 Introduction 7

5.2 Conflict of laws under customary law 5.2.1 Resolution of conflicts between the laws of different systems of customary law 5.2.1.1 Avoidance of conflicts 5.2.1.2 Resolution of conflicts under customary law 5.2.2 Legislative intervention 5.3 Conflict rules regulating conflicts between customary law and the common law 5.3.1 Conflict of laws rules during the colonial era 5.3.2 Conflict of laws rules during the Union era 5.3.3 Conflict of laws rules during the apartheid era 5.4 The regulation of conflict of laws under section 211(3) of the Constitution 5.4.1 Section 211(3) of the Constitution as a conflict of laws rule 5.4.2 Conflict of laws rules under the Constitution 5.4.2.1 Agreement and intention 5.4.2.2 Nature of the transaction 5.4.2.3 Subject matter and environment of the transaction 5.4.2.4 The lifestyle of the parties 5.4.2.5 Exemption from customary law 5.4.2.6 Marriage by civil or Christian rites 5.4.2.7 Testate succession 5.4.2.8 Intestate succession PART II PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY LAW CHAPTER 6MARRIAGE 6.1 Introduction 6.2 Recognition of customary marriages 6.3 The Recognition of Customary Marriages Act 120 of 1998 6.4 Legal requirements for a valid customary marriage concluded before 15 November 2000 6.5 Legal requirements for a valid customary marriage concluded after 15 November 2000

8

6.6 Registration of a customary marriage CHAPTER 7CONSEQUENCES OF MARRIAGE 7.1 Introduction 7.2 Sources in general 7.3 The relevant law 7.4 Personal consequences of marriage 7.4.1 Majority status and capacity of spouses 7.4.2 Majority status of a married minor 7.4.3 Polygamous marriages 7.4.3.1 Introduction 7.4.3.2 The status of wives inter se in polygamous marriages entered concluded before 15 November 2000 7.4.3.3 The status of wives inter se in polygamous marriages concluded after 15 November 2000 7.5 Consequences of marriage in respect of children of the marriage 7.5.1 Parental rights prior to the constitutional era 7.5.2 The effect of the Bill of Rights and the principle of the best interests of the child on the affiliation of children 7.5.3 The effect of the Children’s Act 38 of 2005 on the consequences of customary marriage regarding children 7.6 Proprietary consequences of marriage 7.6.1 Introduction 7.6.2 Uncodified customary law 7.6.3 The Natal Codes of Zulu Law 7.6.4 The Recognition of Customary Marriages Act 120 of 1998 and the Matrimonial Property Act 88 of 1984 7.6.4.1 Monogamous customary marriages in terms of the RCMA and the MPA 7.6.4.2 Polygamous marriages in terms of the RCMA 7.6.5 Alteration of the matrimonial property regime 7.6.5.1 Alteration of pre-RCMA polygamous marriage property regimes 7.6.5.2 Alteration of post-RCMA monogamous marriage property regimes

9

CHAPTER 8DISSOLUTION OF MARRIAGE 8.1 Introduction 8.2 Dissolution by divorce 8.2.1 Adultery 8.2.2 Witchcraft 8.2.3 Infertility 8.2.4 Desertion 8.2.5 Other circumstances as grounds for dissolution of a marriage 8.3 Dissolution by death 8.4 Consequences of divorce CHAPTER 9 THE CUSTOMARY LAW OF SUCCESSION 9.1 Introduction 9.2 Succession and inheritance in customary law 9.3 Legislative intervention 9.3.1 The Black Administration Act 38 of 1927 9.3.2 Regulations for the Administration and Distribution of the Estates of Deceased Blacks 9.3.3 Succession to land 9.4 Judicial reform 9.5 Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 9.5.1 Definition of ‘descendant’ and ‘spouse’ 9.5.2 Modification of the customary law of succession 9.5.3 Property allotted or accruing to a woman in a customary marriage 9.5.4 Freedom of testation 9.5.5 Property rights in relation to certain customary marriages 9.5.6 Disposal of property held by a traditional leader 9.5.7 Dispute or uncertainty in consequence of the nature of customary law CHAPTER 10 CONTRACTUAL OBLIGATIONS IN CUSTOMARY LAW 10.1 Introduction 10.2 Capacity to contract 10.3 Customary law contracts

10

10.3.1 Lobolo 10.3.2 Ukwethula 10.3.3 Ukufakwa 10.3.4 Ukwenzelela 10.3.5 Isondlo 10.3.6 Mafisa, sisa or nqoma CHAPTER 11 CUSTOMARY LAW OF DELICT 11.1 Introduction 11.2 Delictual liability 11.3 Specific customary law delicts and quantum of damages 11.3.1 Defamation of character and denial of chastity 11.3.2 The delict of adultery 11.3.2.1 Adultery within a customary marriage 11.3.2.2 Adultery with a widow 11.3.3 The delict of seduction 11.3.4 Ukuthwala as a delict 11.4 Rules of procedure 11.5 Prescription CHAPTER 12 CRIMINAL LAW 12.1 Introduction 12.2 The theory of customary criminal law 12.2.1 The distinction between customary criminal law and the customary law of delict 12.2.2 Punishment and co-liability 12.3 Specific customary law offences 12.3.1 Witchcraft 12.3.2 Contempt or defiance of the head of a group 12.3.3 Other crimes under the Natal Code of Zulu Law 12.4 Examples where the ordinary courts have applied customary criminal law PART III POLITICAL AND CIVIC ASPECTS OF AFRICAN CUSTOMARY LAW CHAPTER 13 TRADITIONAL LEADERSHIP INSTITUTIONS 11

13.1 Introduction 13.2 History of traditional leadership institutions 13.2.1 Pre-colonial political relations 13.2.2 Traditional leadership during colonialism, Union and apartheid 13.3 Recognition and jurisdiction of traditional leaders, communities and councils under the Traditional Leadership and Governance Framework Act 41 of 2003 13.3.1 Key definitions 13.3.2 Traditional community 13.3.3 Traditional council 13.3.4 Appointment and removal of traditional leaders 13.4 Powers and functions of a traditional council and leader 13.5 Funding CHAPTER 14 TRADITIONAL COURTS 14.1 Introduction 14.2 Arrangement and constitution of traditional courts 14.3 Personal, territorial and substantive jurisdiction 14.4 Powers and process of traditional courts 14.5 Divergence between the regulations and customary practices BIBLIOGRAPHY TABLE OF CASES TABLE OF LEGISLATION GLOSSARY INDEX

12

Preface This is an introductory textbook for undergraduate students who are studying customary law in their early years of study in the LLB programme. It aims to provide a lively, topical, and exciting text in a way which is clear, organised and accessible. The book presents an introductory, comprehensive overview of African customary law and its underlying philosophy. It seeks to present the material within a deeper, more enquiring and informed framework, and to integrate the principles with academic skills. Although developed for undergraduate studies, the book provides an approach to understanding the overarching system of customary law that will be of use to legal practitioners and judges as well. In this respect, it attempts to show how customary law’s epistemological approach is different from other areas of South African law, and how it can be applied to solve problems within the community. The book offers an innovative, developmental approach on perspectives of living customary law. While providing a general framework for understanding the system of customary law, the book endeavours to identify and develop the principles of living customary law. As a starting point, the book should reflect existing law (which may include official customary law), but should also illuminate and develop the dynamic living customary law (possibly juxtaposing this with the official customary law). The book is pedagogically developed – that is, it includes various learning features which enhance its educational value. The pedagogy deals with difficult and complex questions in a precise and clear manner, and ensures that students are intellectually stimulated. Students are required to engage actively with the subject and to apply academic skills such as critical thinking and analysis. The general approach of the book is highlighted in the text, and the discussion features reflect both the developmental aspects and the contentious issues apparent within the law. The starting point of each chapter is the existing law (which, in some cases, includes official customary law), and this also underlies the general text or ‘principles’ section. However, the book extends this explanation of the framework of existing law and the overarching system by highlighting living customary law. Essentially, the book endeavours to illuminate the relevance and importance of customary law by developing its inherent jurisprudence. In some chapters, the authors have sought to develop the field of customary law and demonstrate the application of living 13

customary law and its values to practical situations by incorporating recent empirical research in the field on which they are writing. The book further seeks to develop the underlying principles by highlighting topical and relevant constitutional issues and other problematic issues arising in legislation or the common law in the discussion features of the book referred to as ‘Pause for reflection’ and ‘Counterpoint’. These features also aim to develop academic skills (such as critical thinking, reflection, understanding of legal thinking and the ability to construct analytical propositions). In these features, issues, myths and assumptions are questioned and problematised so as to stimulate the interest of the student, as well as to provide a clearer understanding of contentious issues and the law as applied. Specifically, the ‘Counterpoint’ feature supports the ability to think critically and flexibly, and assists students to conceptualise legal issues from various perspectives, develop skills in formulating legal argument, and build an awareness of various opinions about a particular principle. It does this by highlighting specific criticisms of the law just described or pointing to possibilities for the development of the law, or identifying the areas of controversy, opposing viewpoints on a principle, problems with current law, and possible alternatives. For example, the discussion in this feature might critically consider the question whether the law pertaining to the recognition of customary marriages is adequate or requires further development, or whether the interests of women in a given area of customary law are adequately protected. The ‘Pause for reflection’ feature aims to develop students’ broader and firmer understanding of the subject matter or of the context or jurisprudence underlying the principle, as well as the ability to reflect and engage with the subject. It requires students to reflect deeply on issues, thereby stimulating discussion, supporting independent thinking, and developing the ability to engage meaningfully with relevant issues. Thus, the discussion in this feature assists students to understand and think through various aspects of the issue by providing further guidance on possible approaches to it. Presenting the discussions on various issues in these ways allows students to pause, reflect and consider the arguments and developmental aspects of customary law without disrupting their understanding and grasp of the basic legal framework. The final major pedagogical feature of the book is ‘This chapter in essence’ that provides a succinct list of essential points which draw together the key aspects of the 14

chapter. The aim of this feature is not to provide a cheat-sheet for study, but rather to guide students as to which areas of the chapter content should form the focus of their attention and study. The structure of the book sets out, first, the theoretical legal framework in which the historical overview of customary law, the nature and conceptualisation of customary law, and the concept of legal pluralism are discussed. Part I also explores the issues of ascertainment and proof of customary law, and internal conflict of laws. Part II discusses the key issues in customary law: standard topics in customary law covering marriage, consequences of marriage, dissolution of marriage and succession, as well as the topics of contract, delict and crime. Part III covers traditional leadership and traditional courts. With regard to the sources of customary law, we are guided in this book by the clear language of the Constitutional Court in several decisions which leaves no doubt that the customary law recognised by the Constitution is living customary law and not official customary law. However, this is not without its difficulties, and the book does attempt to bring these to the attention of students. Among these difficulties are finding a way to understand living customary law in the context of the other constitutional injunction to the courts to develop customary law in accordance with the Bill of Rights. For instance the High Court decision of Mabena v Letsoalois applauded as a good example of what a court needs to do to develop customary law. The reason that this was a happy outcome is that the case affirmed a move from a rigid rule of customary law to a more progressive one which recognises gender equality and equality of decision making within the family. The question arises, however, as to what the relationship is between the constitutional need to develop customary law, on the one hand, and ascertaining the rules of living customary law as practised by the communities on the ground. Do we accept a rule of customary law and apply it because we have evidence that it accurately represents the day-today practice of communities (and, therefore living law) or would we in pursuit of the injunction to develop customary law affirm a practice even if there is no evidence as yet that it is the living law of the people in this sense? The second challenge is the question whether we are envisioning a future customary law in South Africa as being in the formative stages in the sense that new approaches will have to be developed for the gathering of materials on the rules of living customary law to assist the courts in arriving at decisions. In other words, will 15

every contested rule have to be established by empirical research, or will testimony of witnesses as to the current practice suffice? The upshot of these questions is what options exist for the attorney or advocate faced with litigation on a customary law matter? This book suggest a guideline which, as a practical measure, acknowledges the continued use of official customary law in some cases while pointing to the need for a preference for living customary law where it can be ascertained. It will be in this respect that researchers, NGOs and other bodies can make a contribution to the development of the law by joining themselves in customary law litigation as friends of the court. Ultimately, the guiding premise of this book is that the future of customary law in South Africa depends crucially on basing law reform or judicial development on customary law emerging from communities as a starting point rather than defaulting too readily to Western law. It is for this constitutional reason that the book limits itself strictly to South African sources of customary law. With regard to the actual sources used in the text, it is important to make it clear that, although the ideal would be to discuss the living customary law, the reality is that the consolidation of living customary law as a source of law readily usable by the courts and others will take some time to emerge. This book is part of this process. The research for this book revealed that much of the writing in books on customary law to date relies either on old books or court decisions during the colonial, union and apartheid South Africa, especially decisions of the Native Appeal Court. Due to the paucity of works on customary law as a normative system based on recent empirical research in South Africa, this book relies on the existing literature documenting forms of official customary law. There is, therefore, a need for caution in so far as it should not be assumed that the law stated in all the chapters in this book represents living customary law. Of particular note are chapters 6 to 12 on marriage, consequences of marriage, dissolution of marriage, succession, contractual obligations, delict, and crime. In these circumstances, courts would do well to employ multiple methods of ascertaining living customary law when necessary. However, there are various ways in which this book attempts to mitigate knowledge gaps in existing literature and sources on living customary law. First, and, most importantly, there are specific chapters in the book that include living customary law sources. In this category are chapters 13 and 14, which refer to works 16

documented by ethnographers writing in the mid- to late twentieth century as well as the author in research conducted during the last six years. The book has also benefited from other recent empirical studies on local communities. Second, other chapters refer to recent court decisions incorporating aspects of living customary law. For instance, chapter 6discusses court judgments which show that the requirements of a valid customary marriage may be evolving rather than contested. It also uses decisions that move the ascertainment of the essentials of a customary marriage further away from the texts of official customary law. Some of these cases show the willingness of the courts to accept the inherent flexibility of customary law, as well as the involvement of the indigenous communities in the development of living customary law. In any case, we believe that this book has begun an important project for the engagement with living customary law, an engagement which is as open as the nature of customary law itself as an evolving system. It is an engagement that encourages and underscores the importance of empirical research as a basis for chronicles of customary law for study and judicial application, as well as problem solving at all levels of society in which this system of law is practised. It is hoped that students will find in the pages of this book a resource for thinking differently about customary law in a post-apartheid South Africa where this law is now an equal partner with the common law in the legal system. Thandabantu Nhlapo Chuma Himonga Cape Town February 2014

17

List of authors THANDABANTU NHLAPO (Editor) BA (Law) (UBLS), LLB (Hons) (Glasgow), DPhil (Oxon) Thandabantu Nhlapo is a Deputy Vice-Chancellor at the University of Cape Town. Previous to this, he was a full-time Commissioner on the South African Law Reform Commission where, as Chair of the Project Committee on Customary Law, he was instrumental in the development of the Recognition of Customary Marriages Act of 1998. From 2000 to 2004, he held the positions of Deputy Chief of Mission and Deputy Ambassador at the Embassy of South Africa in Washington DC. Prior to this, he was a Professor and Head of the Department of Private Law at the University of Cape Town where he taught African customary law and the law of persons and the family. His academic research interests include African customary law and gender, women’s human rights in family law, traditional values and modern constitutions, and cultural diversity under the South African Constitution. Professor Nhlapo was appointed convenor of the Technical Committee on Traditional Leadership, which advised the Constitutional Assembly on all matters relating to customary law and whose work contributed to Chapter 12 of the present Constitution. He has served as a member of the Executive Council of the International Society of Family Law (ISFL) and of the Governing Council of the International Institute for the Unification of Private Law (UNIDROIT). CHUMA HIMONGA (Editor) LLB (Zambia), LLM (London), PhD (London) Chuma Himonga is a Professor in the Department of Private Law at the University of Cape Town where she teaches customary law. She holds the National Research Foundation Chair in Customary Law, established by the South African Research Chairs Initiative (SARCHI) of the Department of Science & Technology. She is a former Deputy Dean of the Faculty of Law at the University of Cape Town as well as a former member of the Board of the International Association of Law Schools. She was a member of the South African Law Reform Commission Project Committee on African Customary Law. Chuma is a rated and established researcher within the National Research Foundation of South Africa rating system. She has published widely in the areas of her research interests: family law, especially in African legal

18

systems, African customary law, children’s rights, and women and the law. She has collaborated in three major international and regional academic research projects in Europe and Africa involving investigations into various facets of family law, African customary law and human rights, and the intersections between these normative systems. IP MAITHUFI B Iuris, LLB (UNIN), LLM (UNW), LLD (Pretoria) IP Maithufi is a Professor in the Department of Private Law at the University of Pretoria where he teaches customary law and education law and policy at undergraduate level. He is a former lecturer at the University of the North West and Vista University where he lectured in the fields of family law, delict, succession, and private international law. He is an admitted Advocate of the High Court of South Africa. He was appointed as a full-time member of the South African Law Reform Commission from 2001 to 2008, serving as project leader for the Harmonisation of Customary Law and Common Law project. Professor Maithufi’s main fields of interest are customary law, the drafting of legislation, and labour law. He has published widely in the fields of customary law, family law, the law of succession, and the law of delict. SINDISO MNISI WEEKS BA LLB (Cape Town), MSt DPhil (Oxford) Sindiso Mnisi Weeks is a Senior Researcher in the Centre for Law and Society at the University of Cape Town where she has worked on the Rural Women’s ActionResearch Programme, combining research and policy work on women, property and authority under customary law, since August 2009. She was formerly a Senior Lecturer in the University of Cape Town’s Department of Private Law where she taught African customary law. As a young researcher, Sindiso has been highly rated by the National Research Foundation of South Africa. Her main areas of interest, in which she has published widely and spoken in academic forums and popular media, encompass customary law, women’s rights, traditional governance, dispute management and the Constitution, as well as land and succession. Her current research focuses on traditional courts and vernacular dispute management forums in South Africa, on which subject she is currently completing a book. Sindiso is the

19

recipient of numerous academic awards, including a Rhodes Scholarship, a Skye Foundation Scholarship, a Mellon-Mays Fellowship, the Ismail Mahomed/South African Law Reform Commission Essay Competition, and the Women in Science Award for the Development of Rural Women through Science and Technology. LESALA MOFOKENG BA LLB (Natal), Certificate in Legal Practice (LSSA), LLM (Georgetown, USA) Lesala Mofokeng is a Senior Lecturer in the School of Law at the University of KwaZulu-Natal, Howard College Campus, and is a Senior Residence Life Officer responsible for undergraduate and postgraduate resident students. He is an Advocate of the High Court of South Africa. He has lectured at the South African Law Society’s School for Legal Practice since 2004, has presented lectures at the University of Pretoria’s Good Governance Academy, and has facilitated numerous succession planning workshops. Lesala’s main research interests include African customary law, religious law, legal pluralism, international law and international humanitarian law, and he has authored and co-authored academic books and articles on legal pluralism. DIAL DAYANA NDIMA BJuris (Fort Hare), LLB, LLM, LLD (South Africa) Dial Ndima is a Senior Lecturer in the Department of Public, Constitutional and International Law, College of Law, at the University of South Africa, where he teaches Advanced Indigenous Law. He is the Manager of the Centre for Indigenous Law and Chairperson of the University of South Africa Law Clinic Management Committee. Dial Ndima is a former tax collector, assessor, prosecutor, and magistrate. He has published research in the areas of African customary law, African jurisprudence and constitutional law.

20

Specialist contributors The Publisher and Editors express sincere appreciation to: Jacques Matthee LLB LLM, Faculty of Law, North-West University, for the research and other valuable support which he contributed during the development of the book, and for his authorship of the ancillary materials that augment this book. Aninka Claassens BA (Cape Town) BA Hons (Wits) PhD (Roskilde), and Monica de Souza LLB LLM (Human Rights Law) (Cape Town), Centre for Law and Society, Faculty of Law, University of Cape Town, for their valuable support in the authorship of the discussion boxes featured in chapter 9.

About the book African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives is a pedagogically rich learning resource, providing a clear and innovative introduction to African customary law in South Africa. The text clarifies and explains the subject matter in a style which encourages understanding, and its pedagogical framework stimulates critical and reflective engagement with the material. It supports the development of independent academic skills and applied reasoning, allowing engagement with moot and contentious issues whilst maintaining a clear understanding of the theoretical framework. The discussion features in the book seek to develop the underlying principles by highlighting topical and relevant constitutional, and other, problematic issues arising in legislation or the common law. Myths and assumptions are questioned and problematised to stimulate the students’ interest, as well as to provide a clearer understanding of contentious issues and the law as applied. Brief description of features Key terms and concepts: The key terms and concepts are identified in each chapter with reference to the chapter’s subject matter. They are the most important terms and concepts which a student should understand to achieve mastery of the chapter’s contents. They appear as grey bold text, and have been included in the glossary.

21

Pause for reflection: This feature aims to develop students’ broader and firmer understanding of the subject matter or of the context or jurisprudence underlying the principle, as well as the ability to reflect and engage with the subject. It requires students to reflect deeply on issues, thereby stimulating discussion, supporting independent thinking, and developing the ability to engage meaningfully with relevant issues. Thus, the discussion assists students to understand and think through various aspects of an issue by providing further guidance on possible approaches to it. Counterpoint: This feature supports the ability to think critically and flexibly, and assists students to conceptualise legal issues from various perspectives. It develops skills in formulating legal argument, and builds an awareness of various opinions about a particular principle. It does this by highlighting specific criticisms of the law just described or pointing to possibilities for the development of the law, or by identifying the areas of controversy, opposing viewpoints on a principle, problems with current law, and possible alternatives. A discussion here might critically consider the question whether the law pertaining to the recognition of customary marriages is adequate or requires further development, or whether the interests of women in a given area of customary law are adequately protected. Diagrams: The diagrams provide overviews and explain key concepts visually. This feature reinforces understanding, helps to clarify key concepts, and shows more clearly the interrelationship between distinct legal concepts. Chapter in essence: This feature at the end of each chapter summarises the key areas and core topics covered in the chapter in a succinct list of essential points. Glossary: This resource contains explanations for the words and phrases that constitute the jargon, or terms of art, particular to the area of study covered in the book. African language terminology and phrases, and many other legal phrases, including Latin, are explained and contextualised in the glossary. Bibliography: A list of reference works appears at the end of the book. The works cover the most important South African sources.

22

Acknowledgements The authors and publishers gratefully acknowledge permission to reproduce copyright material in this book. Every effort has been made to trace copyright holders, but if any copyright infringements have been made, the publisher would be grateful for information that would enable any omissions or errors to be corrected in subsequent impressions. Chapter 1 Quote on p 5 from Lugard, FD (1922) The Dual Mandate in British Tropical Africa Edinburgh: William Blackwood and Sons 211; Quote on p 6 from Mattei, U and Nader, L (2008) Plunder: When the Rule of Law Is Illegal Malden, MA: Blackwell 2 reprinted by kind permission of John Wiley and Sons; Quote on p 9 from McClendon, T (1995) Tradition and domestic struggle in the courtroom: Customary law and the control of women in segregation-era Natal The International Journal of African Historical Studies 28(3):527–61 at 538–9 reprinted by kind permission of the editor of The International Journal of African Historical Studies; Quote on p 13 from Luluaki, JY (1997) Customary marriage laws in the Commonwealth: A comparison between Papua New Guinea and Anglophonic Africa International Journal of Law, Policy and the Family 11(1):1–35 at 6 reprinted by kind permission of Rightslink on behalf of Oxford University Press; Quote on p 14 from Church, J (2005) The place of indigenous law in a mixed legal system and a society in transformation: A South African experience Australia and New Zealand Law and History E-Journal 94–106 at 95 reprinted by kind permission of the editor of Australia and New Zealand Law and History E-Journal; Quote on pp18–19 from Bennett, TW (1995) Human Rights and African Customary Law under the South African Constitution Cape Town: Juta 23 reprinted by kind permission of Juta & Company Ltd. Chapter 2 Quote on p 24 from Luluaki, JY (1997) Customary marriage laws in the Commonwealth: A comparison between Papua New Guinea and Anglophonic Africa International Journal of Law, Policy and the Family 11(1):1–35 at 5 reprinted by kind permission of Rightslink on behalf of Oxford University Press; Quote on pp 24–25 from Nhlapo, TR (1995) Cultural diversity, human rights and the family in contemporary

Africa:

Lessons

from

the

South

African

constitutional 23

debate International Journal of Law, Policy and the Family 9(2):208–25 at 217 reprinted by kind permission of Rightslink on behalf of Oxford University Press; Quotes on p 27 from Jobodwana, ZN (2000) Customary courts and human rights: Comparative African perspectives SA Public Law 15(1):26–49 at 30–31 reprinted by kind permission of the editor of SA Public Law; Quote on p 27 from Bekker, JC and Rautenbach, C ‘Nature and sphere of application of African customary law in South Africa’ in Rautenbach, C, Bekker, JC and Goolam, NMI (2010) Introduction to Legal Pluralism 3rd ed Durban: LexisNexis 29 reprinted by kind permission of LexisNexis; Quote

on p

27 from

Hamnett,

I

(1975) Chieftainship

and

Legitimacy:

An

Anthropological Study of Executive Law in Lesotho London: Routledge and Kegan Paul 14; Quotes on p 27 from Woodman, GR ‘Customary laws and customary legal rights: A comparative consideration of their nature and of the relationship between laws’ in Svensson, TG (ed) (1999) On Customary Law and the Saami Rights Process in Norway Skriftserie No. 8 Tromsø: University of Tromsø 5 reprinted by kind permission of the University of Tromsø; Quotes on p 28 from Hund, J (1998) ‘Customary law is what people say it is’: H.L.A. Hart’s contribution to legal anthropology Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 84:420–433 at 427 reprinted by kind permission of Archiv für Rechts- und Sozialphilosophie; Quote on pp 28–29 from Hund, J (1998) ‘Customary law is what people say it is’: H.L.A. Hart’s contribution to legal anthropology Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 84:420–433 at 427 reprinted by kind permission of Archiv für Rechts- und Sozialphilosophie; Quote on p 29 from Woodman, GR ‘Customary laws and customary legal rights: A comparative consideration of their nature and of the relationship between laws’ in Svensson, TG (ed) (1999) On Customary Law and the Saami Rights Process in Norway Skriftserie No. 8 Tromsø: University of Tromsø 2 reprinted by kind permission of the University of Tromsø; Quote on p 29 from Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of Executive Law in Lesotho London: Routledge and Kegan Paul 14; Quote on p 32 from Bennett, TW (2009) Re-introducing African customary law to the South African legal system American Journal of Comparative Law 57(1):1–32 at 18; Quote on p 33 from Woodman, GR ‘Customary law, state courts, and the notion of institutionalization of norms in Ghana and Nigeria’ in Allot, A and Woodman, GR (eds) (1985) People’s Law and State Law: The Bellagio Papers Dordrecht: Foris 24

Publications 156 reprinted by kind permission of Foris Publications; Quotes on pp 34–35 from South African Law Commission (1997) Project 90 The Harmonisation of the Common Law and the Indigenous Law Discussion Paper 74 Customary Marriages 15 reprinted by kind permission of the South African Law Reform Commission; Quotes on p 36 from Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law Pretoria: Van Schaik 57 reprinted by kind permission of Van Schaik Publishers; Quote on p 37 from Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the context of living customary law South African Journal on Human Rights 25(3):491– 516 at 497 reprinted by kind permission of Juta & Company Ltd. Chapter 3 Quote on p 40 from Roth, G and Wittich, C (eds) (1978) Economy and Society: An Outline of Interpretive Sociology Berkeley: University of California Press 311; Quote on p 41 from Galligan, DJ (2007) Law in Modern Society Oxford: Oxford University Press 85 reprinted by kind permission of Oxford University Press; Quote on p 43 from Griffiths, J (1986) What is legal pluralism? The Journal of Legal Pluralism and Unofficial Law 24:1–55 at 3 reprinted by permission of Taylor & Francis Ltd www.tandfonline.com on behalf of The Journal of Legal Pluralism and Unofficial Law; Quote on p 44 from Bourdieu, P (1987) The force of law: Toward a sociology of the juridical field Hastings Law Journal 38(5):805–53 at 817; Quote on p 45 from Griffiths, J (1986) What is legal pluralism? Journal of Legal Pluralism and Unofficial Law 24:1–55 at 4; Quotes on p 45 from Van Niekerk, GJ ‘Legal pluralism’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism 3rd ed Durban: LexisNexis 3 and 9 reprinted by kind permission of LexisNexis; Quote on p 45 from Woodman, GR ‘The idea of legal pluralism’ in Duepret, B, Berger, M and Al-Zwaini, L (1999) Legal Pluralism in the Arab World Leiden: Brill 3 Copyright © Brill. All rights reserved. Reprinted by kind permission of Koninklijke BRILL NV; Quotes on p 46 from Van Niekerk, GJ ‘Legal pluralism’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism 3rd ed Durban: LexisNexis 9 and 9–10 reprinted by kind permission of LexisNexis; Quote on p 47 from Falk Moore, S (1973) Law and social change: The semi-autonomous social field as an appropriate subject of study Law and Society Review 7(4):719–46 at 720 reprinted by permission of the Law and 25

Society Association; Quotes on p 47 from Malinowski, B (1927) Crime and Custom in Savage Society London: Kegan Paul & Co 12 and 23. Chapter 4 Quote on pp 52–53 from Allott, AN (1984) What is to be done with African customary law? The experience of problems and reforms in Anglophone Africa from 1950 Journal of African Law 28(1–2):56–71 at 59 reprinted by kind permission of Juta & Company Ltd; Quote on p 60 from Himonga, C and Bosch, C (2000) The application of African customary law under the Constitution of South Africa: Problems solved or just beginning? South African Law Journal 117(2):306–41 at 331 reprinted by permission of Juta & Company Ltd; Quotes on p 64 from Lehnert, W (2005) The role of the courts in the conflict between African customary law and human rights South African Journal of Human Rights 21(2):241–77 at 256–7 reprinted by kind permission of Juta & Company Ltd; Quote on p 65 from Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of Executive Law in Lesotho London: Routledge and Kegan Paul 10; Quote on p 67 from Peires, JB (1981) The House of Phalo: A History of the Xhosa People in the Days of Their Independence Johannesburg: Ravan Press 29 reprinted by kind permission of Pan Macmillan South Africa. Chapter 5 Quote on p 72 from Oppong, RF (2007) Private international law in Africa: The past, present, and future The American Journal of Comparative Law 55(4):677–720 at 677 reprinted by kind permission of the managing editor of The American Journal of Comparative Law; Quotes on p 74 from Bennett, TW (2004) Customary Law in South Africa Cape Town: Juta reprinted by permission of Juta & Company Ltd; Quote on p 76 from Lee, RW (1953) An Introduction to Roman-Dutch Law 5th ed Oxford: Clarendon Press reprinted by kind permission of Oxford University Press; Quote on p 79 from Bennett, TW (2004) Customary Law in South Africa Cape Town: Juta 53 reprinted by kind permission of Juta & Company Ltd; Quote on p 80 from Bennett, TW (2004) Customary Law in South AfricaCape Town: Juta 68 reprinted by kind permission of Juta & Company Ltd; Quote on p 81 from Kerr, AJ (1996) The choice

of

and

the

application

of

customary

law South

African

Law

Journal 113(3):408–10 at 409 reprinted by kind permission of Juta & Company Ltd;

26

Quote on p 82 from Rautenbach, C (2008) South African common and customary law of

intestate succession: A question of harmonisation, integration or

abolition Electronic Journal of Comparative Law 12(1):1–14 at 1 reprinted by kind permission of the publisher; Quote on p 82 from South African Law Commission (1999) Report on Conflicts of Law para 1.71 reprinted by kind permission of the South African Law Reform Commission. Chapter 6 Quote on p 92 from Ferraro, G (1980) Swazi Marital Patterns and Conjugal Roles: An Analysis and Policy Implications Mbabane: USAID; Quote on p 94 from South African Law Commission (1998) Report on Customary Marriages para 3.1.13 reprinted by kind permission of the South African Law Reform Commission; Quote on p 104 from South African Law Commission (1998) Report on Customary Marriages para 3.3.6 reprinted by kind permission of the South African Law Reform Commission; Quote on p 106 from South African Law Commission (1998) Report on Customary Marriages para 4.5.6 reprinted by kind permission of the South African Law Reform Commission. Chapter 7 Quote on p 117 from Himonga, C and Pope, A (2013) Mayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications Acta Juridica reprinted by kind permission of Juta & Company Ltd; Quote on p 118 from Himonga, C and Pope, A (2013) Mayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications Acta Juridica reprinted by kind permission of Juta & Company Ltd; Quotes on p 119 from Dlamini, CRM (1999) The ultimate recognition of the customary marriage in South Africa Obiter 20(1):14–40 at 25 and 26 reprinted by kind permission of the Editor of Obiter; Quote on p 120 from Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law 40–41 reprinted by kind permission of Van Schaik Publishers; Quote on p 123 from South African Law Commission (1998) Report on Customary Marriages61 reprinted by kind permission of the South African Law Reform Commission; Quote on p 123 from Kaime, T (2009) The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective Pretoria: Pretoria University Law Press (PULP) 114–5 reprinted by kind permission of the author;

27

Quotes on p 129 from Heaton, J (2010) South African Family Law 3rd ed Durban: LexisNexis 210–11 reprinted by kind permission of LexisNexis; Quote on p 138 from Heaton, J (2010) South African Family Lawseed Durban: LexisNexis 82 reprinted by kind permission of LexisNexis. Chapter 8 Quote on p 150 from Bennett, TW (2004) Customary Law in South Africa Cape Town: Juta 268 reprinted by kind permission of Juta & Company Ltd. Chapter 9 Quote on p 162 from Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed Cape Town: Juta 70 reprinted by kind permission of Juta & Company Ltd; Quote on p 163 from Comaroff, JL (1978) Rules and rulers: Political processes in a Tswana chiefdom Man 13:1–20 at 2 published by Wiley-Blackwell on behalf of the Royal Anthropological Institute of Great Britain and Ireland. Copyright © Royal Anthropological Institute. All Rights Reserved; Quotes on p 163 from Costa, A (1997) Custom and common sense: The Zulu royal succession dispute of the 1940’s African Studies 56(1):19–42 at 31–32 © Taylor and Francis Group Limited on behalf of the University of Witwatersrand, reprinted by kind permission of Taylor & Francis Ltd www.tandfonline.com on behalf of the Taylor and Francis Group Limited on behalf of the University of Witwatersrand; Quote on p 164 from Delius, P (2008)‘Contested terrain: Land rights and chiefly power in historical perspective’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act Cape Town: University of Cape Town Press 216 reprinted by kind permission of the University of Cape Town Press; Quote on p 165 from Schapera, I (1970) A Handbook of Tswana Law and Custom 2nd ed London: Frank Cass 230, first published by the International African Institute, London 1938; second ed. 1955; new impression 1959; second new impression 1970 reprinted by kind permission of Boydell & Brewer Ltd and the IAI; Quote on p 167 from Schapera, I (1970) A Handbook of Tswana Law and Custom 2nd ed London: Cass 230, first published by the International African Institute, London 1938; second ed. 1955; new impression 1959; second new impression 1970 reprinted by kind permission of Boydell & Brewer Ltd and the IAI; Quotes on p 172 from Elton Mills, ME and Wilson, M ‘Land tenure’ in Mountain, ED

28

(1952) Keiskammahoek Rural Survey Vol 4 Pietermaritzburg: Shuter and Shooter 133 reprinted by kind permission of Prof. Francis Wilson; Quotes on p 172 from Simons, HJ (1968) African Women: Their Legal Status in South Africa Evanston: Northwestern University Press 265–66 reprinted by kind permission of the heirs of Jack and Ray Simons; Quote on p 176 from Bennett, TW (2004) Customary Law in South Africa Cape Town: Juta 49 reprinted by kind permission of Juta & Company Ltd; Quote on p 177 from Oomen, B (2005) Chiefs in South Africa: Law, Power and Culture in the Post-Apartheid Era Oxford: James Currey reprinted by permission of Boydell & Brewer Ltd; Quote on p 179 from Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed Cape Town: Juta 281–82 reprinted by kind permission of Juta & Company Ltd. Chapter 10 Quote on p 186 from Elias, TO (1972) The Nature of African Customary Law Manchester: Manchester University Press 145 reprinted by kind permission of Olufemi Elias on behalf of the Estate of Judge TO Elias; Quote on pp 189–90 from Koyana, DS (1980) Customary Law in a Changing Society Cape Town: Juta 154 reprinted by kind permission of Juta & Company Ltd; Quote on p 190from Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed Cape Town: Juta 160 reprinted by kind permission of Juta & Company Ltd; Quote on p 191 from Olivier, NJJ, Bekker, JC, Olivier, NJJ (Jnr) and Olivier, WH (1995) ‘Indigenous law’ in Joubert, WA (ed) (2009) The Law of South Africa 2nd ed Vol 32 Durban: LexisNexis 179 reprinted by kind permission of LexisNexis; Quote on p 192 from Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed Cape Town: Juta 136 reprinted by kind permission of Juta & Company Ltd; Quote on p 192 from Koyana, DS (1980) Customary Law in a Changing Society Cape Town: Juta 71 reprinted by kind permission of Juta & Company Ltd; Quote on p 193 from Koyana, DS (1980) Customary Law in a Changing Society Cape Town: Juta 78 reprinted by kind permission of Juta & Company Ltd; Quote on pp 193–4 from Schapera, I (1970) A Handbook of Tswana Law and Custom 2nd ed London: Cass 230 first published by the International African Institute, London 1938; second ed. 1955; new impression 1959; second new impression 1970 reprinted by kind permission of Boydell & Brewer Ltd and the IAI; Quote on p 194 from Schapera, I (1970) A Handbook of Tswana Law and Custom 2nd ed London: Cass 230 first published by the International African 29

Institute, London 1938; second ed. 1955; new impression 1959; second new impression 1970 reprinted by kind permission of Boydell & Brewer Ltd and the IAI; Quote on p 195 from Olivier, NJJ, Bekker, JC, Olivier, NJJ (Jnr) and Olivier, WH (1995) ‘Indigenous law’ in Joubert, WA (ed) (2009) The Law of South Africa 2nd ed Vol 32 Durban: LexisNexis 184 reprinted by kind permission of LexisNexis. Chapter 11 Quote on p 201 from Whitfield, GMB (1948) South African Native Law Cape Town: Juta 443 reprinted by kind permission of Juta & Company Ltd; Quote on p 206 from Bohler-Muller, N (2001) Cultural practices and social justice in a constitutional dispensation:

Some

(more)

thoughts

on

gender

equality

in

South

Africa Obiter 22(1):142–52 at 152 reprinted by kind permission of the Editor of Obiter; Quote on p 208 from Whitfield, GMB (1948) South African Native Law Cape Town: Juta 404 reprinted by kind permission of Juta & Company Ltd. Chapter 12 Quotes on p 211 from South African Law Commission (1999) Project 90 The Harmonisation of the Common Law and The Indigenous Law Report on Conflicts of Law paras 3.18 and 3.19 reprinted by kind permission of the South African Law Reform Commission; Quote on p 214 from Hammond-Tooke, WD ‘World-view I: A system of beliefs’ in Hammond-Tooke, WD (ed) (1974) The Bantu-speaking Peoples of Southern Africa 2nd ed London: Routledge and Kegan Paul 318 at 336. Now Taylor & Francis. Reprinted by kind permission of Taylor & Francis; Quote on p 215 reprinted with the kind permission of Simon & Schuster Publishing Group from The Washing of the Spears: The Rise and Fall of the Zulu Nation by Donald R Morris. Reprinted for eBook usage by kind permission of Russell & Volkening as agents for the author. Copyright © 1965 by Donald R Morris. Copyright renewed © 1993 by Donald R Morris. All rights reserved; Quote on p 215 from Terblanche, SS (2007) Guide to Sentencing in South Africa Durban: LexisNexis 475 reprinted by kind permission of LexisNexis; Quote on p 216 from Whitfield, GMB (1929) South African Native Law Cape Town: Juta 415 reprinted by kind permission of Juta & Company Ltd; Quote on p 221 from Bennett, TW and Pillay, A (2003) The Natal and KwaZulu Codes: The case for repeal South African Journal on Human Rights 19(2):217–38 at 271 and 218 reprinted by kind permission of Juta & Company Ltd; Quote on p

30

223 from Bennett, TW (2010) The cultural defence and the custom of Thwala in South African law University of Botswana Law Journal 10:3–26 at 4. Chapter 13 Quote on p 230 from Delius, P ‘Contested terrain: Land rights and chiefly power in historical perspective’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act Cape Town: University of Cape Town Press 217–18; Quote on pp 233–3-4 from Mandela, N (1959) Verwoerd’s Grim Plot Liberation No. 36, May 1959 7–17; Quote on p 234 from Albert Luthuli, Let My People Go: An Autobiography, Collins, Johannesburg / London, 1962 p 200 reprinted by kind permission of HarperCollins Publishers Ltd © 1962 Albert Luthuli; Quote on p 234 from Mbeki, G (1964) South Africa: The Peasants Revolt Harmondsworth: Penguin Books 234 reprinted by kind permission of Moeletsi Mbeki. Chapter 14 Quote on pp 256–57 from Van der Waal, CS (2004) Formal and informal dispute resolution in the Limpopo Province, South Africa Anthropology Southern Africa 27(3– 4):111–21 at 113 reprinted by kind permission of the Editor of Anthropology Southern Africa; Quotes on p 257 from Hammond-Tooke, WD (1975) Command or Consensus: The Development of Transkeian Local GovernmentCape Town: David Philip 68 and 73–74 reprinted by kind permission of Richard and Graeme HammondTooke; Quote on p 261 from Van der Waal, CS (2004) Formal and informal dispute resolution in the Limpopo Province, South Africa Anthropology Southern Africa27(3– 4):111–21 at 113 reprinted by kind permission of the Editor of Anthropology Southern Africa.

31

Chapter 1 Historical overview of customary law 1.1 Introduction 1.2 Colonialism (1652–1909) 1.2.1Introduction 1.2.2Socio-economic and political context of colonialism 1.2.3Recognition of customary law 1.3 Union (1910–1947) 1.3.1Introduction 1.3.2Political background and wider legal context of the Union 1.3.3Customary law, chiefs’ courts and state courts 1.4 Apartheid (1948–1990) 1.4.1Political context of apartheid 1.4.2Customary law and tribal authorities 1.5 Transitional period (1990–1996) This chapter in essence 1.1 Introduction This chapter provides a broad overview of the history of the formal recognition of customary law in South Africa situated within the wider politics prevailing during the different time periods.1 We look at periods that are broadly defined as colonialism (1652–1909), Union (1910–1947), apartheid (1948–1990) and the transitional period (1990–1996). This history provides a crucial background for the laws we discuss in this book as it is against this background that these laws (and their predecessors) were produced. It also forms the challenging legacy which the current government is attempting to undo. The history we describe in this chapter could never be a complete telling – it is limited by the extent of detail, variety, dynamism and nuanced complexity in the actual history that we could not capture in so few words. The pre-colonial history has been completely omitted from this chapter because of how much more so this caveat

32

applies to it. This chapter’s emphasis on particular elements in the story of time is guided by what follows in subsequent chapters. Hence, the points we highlight in this chapter are intended to contextualise some of the continuities and transformations that later chapters discuss when dealing with present-day customary law. It is obviously impossible to tell an objective history on the subject of customary law. As with any other subject, history, even that pertaining to the law, is always contested and laden with interests and emotions. However, one of the benefits of state law is that it is mostly written in prescriptive texts that we can largely take at their word. This is not to say that the law is objective or even determinative. In fact, as you will learn through this book, in the case of customary law in particular, positive law (that is, the law articulated in statute and precedent) can never be said to be determinative. This means that the government did not have the ability to determine completely the ways in which rural people lived and evolved their systems of governance to adapt to their circumstances. However, statutes and precedents provide us with clearer hooks on which to hang the broader socioeconomic, political and personal elements of history that will feature in this discussion. We have elected to tell the history of customary law as enunciated by the most authoritative scholars in the field – among them lawyers and historians2 – who, although they often disagree, tend to agree on the key points. It is important to keep in mind that the changes in customary law that occurred in the formal legal sphere do not represent the full breadth of the developments that took place in customary law and the relations between traditional leaders and their people. In fact, some of the chapters in this book attempt to illustrate where points of divergence exist between formally recognised customary law and what actually occurs in rural communities’ everyday lives. The discussion in this chapter suggests that many of these tensions originate in the imposition of an untrue version of customary law that evolved in order to serve the state’s objectives. 1.2 Colonialism (1652–1909)

33

1.2.1 Introduction Terminology direct rule

a policy initially applied by the colonial British government where they sought largely to assimilate the ‘natives’ under English common law

indirect rule

a policy later applied by the colonial British government whereby ‘native’ administrations, courts and treasuries were established in the Cape and Natal colonies in accordance with their understanding of customary law to ensure the cooperation of traditional leaders and communities and to relieve the financial burden on the colonial governments

terra nullius

the principle that where land has not been productively used by the people inhabiting it, it was not owned by those people who lived on and otherwise used the land

lex nullius

the notion of colonists that the ‘natives’ were without law

capitalism

the economic policy and system in terms of which European countries sought to enlarge their wealth by expanding their assets and domains to foreign lands and that was therefore one of the primary drivers of colonialism

Enlightenment a cultural and intellectual movement in the 1600s and 1700s that served to support broadly acceptable social knowledge and developments with the premises of materialism and humanism as opposed to tradition policy of

a policy compelling people not originally subject to a culture or law to embrace

assimilation

that culture or law as their own and conform to it in their practice

It is important to understand certain key concepts and policies before proceeding further. Indirect rule was a colonial policy articulated by Frederick Lugard who served the British Crown in the early 1900s.3 In his words, indirect rule meant that: The history, the traditions, the idiosyncrasies, and the prejudices of each must be studied … in order that the form adopted shall accord with natural

34

evolution, and shall ensure the ready co-operation of the chiefs and people.4 In other words, the colonial British government tried to understand African customary law and to legislate in accordance with it so that the traditional leaders and the ordinary people who lived under customary law would cooperate with the colonial government. In practical terms, the British implemented indirect rule in three parts:5 

First, the British recognised traditional leaders by establishing ‘native’ administrations of which traditional leaders formed a part.



Second, they established local dispute resolution forums as ‘native’ courts.



Third, they established ‘native’ coffers into which the ‘natives’ paid taxes that were then used for ‘native’ administration as the colonial government did not want to squander its wealth.6

Indirect rule can be contrasted with direct rule. Direct rule was a colonial policy originally adopted by the British in their colonisation of the Cape at the start of the 1800s. Under the policy of direct rule, they sought largely to assimilate the ‘natives’ under English common law. This was easier to effect in the Cape where the settler population had a large presence and few ‘natives’ with whom they had to deal since a large proportion of the Khoisan had been eliminated by disease and conquest. However, the colony then expanded into the east where there were many ethnic groups (now broadly known as Xhosa people) and where colonial forces had been embroiled in almost a century of wars. The British needed a new policy that better fit the circumstances. They had applied indirect rule in the colony of Natal, under Theophilus Shepstone, since the mid to late 1800s. The British now also began to apply the policy of indirect rule, informally at first, in the Cape colony from the end of the nineteenth century.7 Terra nullius is the principle that where land has not been productively used by the people inhabiting it, it was not owned by those people who lived on and otherwise used the land. On this basis, colonial settler populations could own the land which they found being used and possessed by Khoisan and black people. Lex nullius is the notion that the ‘natives’ were without law. The term is used by Mattei and Nader when describing how the rule of law ‘has flowed throughout EuroAmerican expansions and with repetitive frequency to camouflage the taking of land, 35

water, minerals, and labor as happened in countless locales to native peoples under colonialism’.8 Capitalism is the economic policy and system in terms of which European countries sought to enlarge their wealth by expanding their assets and domains to foreign lands. This policy was therefore one of the primary drivers of colonialism. Under capitalism, European nations amassed assets and labour which they secured through domination in foreign lands that they alleged they had discovered even though there were other peoples inhabiting these lands already. The Enlightenment was a movement in the 1600s and 1700s when global society made a tremendous leap in its intellectual understanding and accomplishments. As a cultural and intellectual movement, it originated primarily in Europe and later in America. Through processes of imperialism, the Enlightenment served to support broadly acceptable social knowledge and developments with the premises of materialism and humanism as opposed to tradition. Materialism requires that all knowledge that is to be accepted as truth must be verifiable by science. Humanism requires all knowledge to be rational and thus verifiable through human reason. A policy of assimilation compels people not originally subject to a culture or law to embrace that culture or law as their own and conform to it in their practice. 1.2.2 Socio-economic and political context of colonialism Scholars generally agree that colonialism, as a global phenomenon, was largely a struggle over natural and human resources and authority, as well as cultural and moral legitimacy, often referred to as the ‘civilisation’ mission. In the process of colonisation, the colonisers, which were foreign states, asserted their power over indigenous peoples and redistributed this power locally. Furthermore, colonisers implemented their authority by means of physical and legal coercion. They did not recognise and typically undermined the legitimacy of traditional leaders and traditional institutions. Moreover, notions of difference prevailed as stereotypes that found their expression in culture and in law. In other words, colonisers believed in the superiority of their own culture and were disrespectful of local values. It is these cultural attitudes that were channelled into law. The reason for adopting these means of colonisation was that the colonisers wanted to legitimise their rule and hence their laws. The colonisers were especially interested in securing control of contractual relationships and financial dealings, 36

particularly over property. Property was the main asset that the colonisers wanted legally to possess and, in fact, own.9 Property came in two forms: land and people (slave labour). In the process, therefore, the colonisers dispossessed the local population of their property by relying on the principle of terra nullius. The principle of terra nullius was complemented by the principle of lex nullius. This was apparent in how, at first, colonisers insisted on direct rule as their legal strategy. This strategy compelled the ‘natives’ to succumb to the force and authority of the colonisers’ legal systems. This strategy offered the colonisers security in that any legal dispute was governed by a system of law which they understood and which typically favoured them.10 Of course, for the initial colonisers, the Dutch, their ability to realise this strategy of direct rule on a wide scale was restricted as they were physically confined to the Cape and did not have enough people to enforce such a policy beyond this area. However, when the British arrived in the early 1800s, tensions between the Dutch and the British led to the Dutch seeking refuge from the British by migrating further inland. The British also adopted a policy of direct rule but were much more intent on including the ‘natives’ in their economy and culture. This was because they believed that they had a superior culture, economy and legal system that would be good for the ‘natives’ and would ‘civilise’ them.11 The British came to South Africa as part of a ‘global’ (European) trend of imperialism.12 Initially, industrialisation and the Enlightenment had led to the abolition of slavery and hence the British view that they had a higher standard of living and morality which they should share.13 Industrialisation had also given the British

the

ability

to

impose

their

standards

by

force

using

machinery

and firearms.14 In addition, capitalism was on the rise and with it global economic expansion which meant pursuing greater wealth in foreign lands. Capitalism became a core element of the British colonial enterprise. It led to the seizure of territory and the inclusion of indigenous peoples in the settler economy as labourers.15 1.2.3 Recognition of customary law The recognition of customary law must be understood within the context of colonialism set out above. The recognition of customary law was not about recognising the indigenous people as people with the capacity to make choices, with creative abilities and with equal moral worth, including the right to govern 37

themselves. Rather, the recognition of customary law was driven by the state’s own objectives as these could best be secured by using indigenous systems and people.16 In this context, customary law and its adherents were mere instruments in the hands of the state. As mentioned above, the official policy of the British initially was to use direct rule. However, during the late 1800s and early 1900s, the British did not have a unified model of ‘native’ rule in South Africa. Although direct rule was the official policy of the British, the de facto situation varied according to region. The form of rule depended on the authorities and the material and human resources available in a particular area.17 In other words, the British initially used indirect rule informally during their colonial rule. They eventually realised that it was problematic for a settler minority to rule the majority indigenous population effectively.18 The settler population was always concerned about their security. The British recognised that direct rule was proving to be a failure and the solution that emerged was to move to indirect rule. The British hoped that the policy of indirect rule would accomplish two major purposes:19 

First, they hoped that indirect rule would fragment the majority population into ‘tribes’. This would result in the perception that they were small groups rather than one dominant race and would reduce the threat of revolt.



Second, indirect rule would create the impression of group autonomy and independence.20 This was because indirect rule would permit the indigenous communities to govern themselves except in so far as their selfgovernment conflicted with the rules imposed by the colonial government or the evolving property interests of the government.21

The British formally adopted the policy of indirect rule in South Africa in the late 1800s. Theophilus Shepstone first introduced the policy in Natal in 1846. A few years later, the Natal Native Affairs Commission of 1852–53 recommended that the native population be assembled in reservations and that their daily affairs be administered in a manner complying with their customary justice system only in as much as such were in harmony with the principles of the colonial state’s legal system.22

38

The Commission concluded that, under customary law, traditional leaders were despots and women were too liberated.23 What this meant in practical terms was that the application of customary law by chiefs and the courts was subject to the proviso that it not be contrary to justice and humanity. This is the so-called repugnancy clause.24 It also meant that the colonial governor, a European, was the ultimate authority on customary law as ‘supreme chief’.25 The elevation of the role of chiefs meant that they were given substantial power which some exploited for personal gain or even abused.26 Hence, it is important to note that not only the colonisers used and benefitted from the system. For example, some members of indigenous groups saw fit to benefit themselves by aiding the colonial government’s subordination of customary law and its people. At the same time, there was resistance to this development from yet other sections of the indigenous population, especially women and young men, who sought refuge in the colonial courts. In this process, their actions contributed to the creation of more official customary law. PAUSE FOR REFLECTION The contribution of indigenous sections of the population to the development of official customary law: women and young men Women and young men also contributed in other ways to the development in and authority of official customary law by appealing to the courts for protection against the male elders who abused the power and authority the government had assigned them. McClendon writes: In 1931 an African court messenger in Natal testified … that courts undermined the authority of husbands and fathers. Wives and daughters, for instance, no longer brought their concerns to the head of the family, but instead complained to the court that the husband or father did not give them food or clothing. In the court messenger’s words, ‘The court is the husband of the wife; the court is the father of the daughter. They run there for their clothing and food.’27 Faced with the strictures imposed by the customary courts which sought to maintain their authority by allying with the government in preventing African women from 39

going to the towns, women also took their search for freedom to the courts which they petitioned for divorce.28 After the introduction of indirect rule in Natal, there was some variation in the pace at which the provinces adopted the policy of indirect rule.29 In the Cape, black people, the Khoi and then amaXhosa, lived in a British colony and were subject to British government legislation and a system of administration of justice by white magistrates. The colony officially adopted a policy of assimilation from 1865. This meant that Roman-Dutch law was applicable in all matters where no legislation was applicable. Nonetheless, chiefs ruled their communities under ad hoc agreements with the government except where ‘incompatible with justice and humanity’. In British Bechuanaland, Basutoland and Transkei (annexed), customary law continued to apply to ‘natives’ subject to direction by the British High Commissioner. In the Free State Republic and Transvaal, there was no separate policy for the indigenous population until Law 4 of 1885 adopted the Natal policy. However, appointed commissioners administered customary law, in other words civil and minor criminal law, in special tribunals.30 1.3 Union (1910–1947) 1.3.1 Introduction Terminology Union period

the period during which the four British colonies of the Cape, Natal, Orange River and Transvaal were unified to form the Union of South Africa

reverse

a process by means of which the government sought to compel people who had

urbanisation

moved from rural areas to urban areas to return to the rural areas

During the Union period, the four British colonies of the Cape, Natal, Orange River and Transvaal, the latter having formerly been Boer republics, were unified to form the Union of South Africa. The beginning of this period was marked by the establishment of the Union on 31 May 1910. The Union was declared by means of the Union of South Africa Act, 1909 which was passed by the British Parliament on 20 September 1909. This Act thereafter served as the South African Constitution.

40

Reverse urbanisation was a process by means of which the government sought to compel people who had moved from rural areas to urban areas to return to the rural areas. This was achieved through law, forced removals and the creation and compulsory assignment of language-based ‘homelands’ for black people. 1.3.2 Political background and wider legal context of the Union During the period of the Union of South Africa, the government’s objectives were to regulate the behaviour and movement of the ‘natives’.31 The underlying purposes were to ensure that regulating the ‘natives’ took the least administrative and resource investment from the state possible while ensuring that the ‘natives’ remained at the disposal of the state for labour and production purposes.32There was little interest in customary law even as a mode of rule. It thus became easier and easier to change it legislatively.33 The state’s own resources were, in fact, also limited. Resistance was also mounting. With increasing power given to traditional leaders for them

to

use

for

their

own

benefit,

discontent

among

the

indigenous

people increased.34 Furthermore, major socio-economic and political shifts led to intra-community problems such as land shortages, the distortion of authority and power, and large-scale urbanisation and migration.35 The state and the male traditional leaders colluded in an attempt to reduce the high levels of migration, especially among women, to urban areas.36 The state attempted to reverse the trend of urbanisation by means of forced relocation to tribal areas, the physical boundaries of which were fixed and identified with specific ‘tribes’.37 There are a few key pieces of legislation that emerged during this period. We only discuss two here. First, the Natives Land Act38 prevented black people from acquiring land except within the ‘scheduled native areas’. The Act confined black people, the majority of the population, to reservations on 7% of the country’s territory.39 In the words of the Constitutional Court in Alexkor Ltd v Richtersveld Community, ‘[t]his Act deprived black South Africans of the right to own land and rights in land in the vast majority of the South African land mass’.40 It also precluded white people from acquiring land in those areas to ensure that the races were spatially segregated. The Natives Land Act therefore put an end to black people pooling their resources in order to buy back white-owned land.41 As part of its arguably intended consequences, the Act also

41

ensured that farm labourers were more readily available for exploitation on white farms and it facilitated the availability of cheap labour for the mines.42 Second, the Black Administration Act (BAA)43 gave the Governor-General the power to reshuffle ‘tribes’. He could ‘define’ and ‘alter’ boundaries; ‘divide’, ‘amalgamate’ and ‘constitute’ ‘tribes’; and ‘order the removal’ of ‘tribes’ ‘as necessity or the good government of Natives may in his opinion require’ or ‘whenever he deems it expedient in the general public interest’.44 Public interest, in this legislation, meant the interests of the white community. The BAA also made the Governor-General ‘supreme chief’ of all ‘natives’ in three provinces – Natal, Transvaal and the Orange Free State.45 It permitted the GovernorGeneral to ‘recognise or appoint any person as a chief or headman in charge of a tribe or of a location, and … to make regulations prescribing the duties, powers and privileges of such chiefs or headmen’ as well as to ‘depose any chief so recognized or appointed’.46 An equally important and invasive consequence of the BAA was its contribution to the perpetual minority of married women in its general policy of privileging the adult male members of the ‘tribe’. This subject is discussed further in chapter 7 (at 7.4.1) on the majority status and capacity of spouses. 1.3.3 Customary law, chiefs’ courts and state courts Terminology rule of

a rule of succession whereby the oldest male relative of the deceased

primogeniture

inherited his intestate estate and women could not inherit from their spouses

In addition, the BAA provided for chiefs’ courts. In fact, when the criminal jurisdiction clause was amended in 1955,47 it moved away from the concept of the chief’s imposed territorial jurisdiction as being over an area of which the traditional leader had been given charge.48 The amended section 20(1) now read: The Governor-General may confer upon any native chief or headman jurisdiction to try and punish according to native law and custom, any Native who has committed, in the area under the control of the chief or headman concerned, any

42

offence specified by the Governor-General, which is punishable under native law and custom. The chief was now firmly in control. As seen in chapter 14 on traditional courts, the chief was now given an extensive list of powers to effect his control over his assigned territory and the people within its bounds. The BAA also prescribed the way in which the estates of black people were to be administered.49 It set out that civil marriages between black people were out of community of property50 and prescribed how and what assets of black people, particularly those in customary unions, could be disposed of. For instance, black people could not dispose of land held under quitrent by testament, but had to dispose of it according to a schedule provided in the BAA. This schedule permitted only men to inherit the land.51 Movable property belonging to a man or his customary wife had to devolve under ‘black law and custom’ and could not be disposed of by means of a will. ‘Black law and custom’ was interpreted to refer to the rule of primogeniture whereby the oldest male relative of the deceased inherited his intestate estate and women could not inherit from their spouses.52

Section 11 of the BAA set up a separate state court system for the application of customary law.53 Aside from customary law’s application in chiefs’ and headmen’s courts, this section prescribed that customary law was also to be applied in the specially created state courts, named Native Commissioners’ Courts and the Native Appeal Courts. In addition, customary law could be applied in these courts only if it was consistent with ‘public policy or natural justice’.54 Therefore, customary law applied only when not repugnant or contrary to statutes.55

Most provinces had had legislation or ordinances that regulated this application of customary law. The vague wording of section 11 of the BAA was thus simply interpreted in the same way as its predecessors had been. In Natal, this meant that customary law applied to all ‘natives’ in all possible transactions, including some economic transactions, and common law in foreign transactions or those with nonAfricans. The Cape followed the Transkei and applied customary law only in matters of personal law where there was no Roman-Dutch law. In other words, overall, some

43

common law applied to ‘natives’ and some customary law, but in all provinces the determination was made on a case-by-case basis.56

There were numerous ways in which the infiltration of common law into customary law took place under the new order imposed by the BAA. Five examples will suffice. First, Union officials staffed the Native Commissioners’ Courts and Native Appeal Courts. These officials were sometimes called ‘customary chiefs’ although they obviously were not and they knew little about customary law.57 Moreover, appeals from the Native Courts went to the common law courts, which knew even less about customary law than the Native Courts. While these common law courts assumed that they knew much about customary law, they in fact interpreted customary law through the lens of the common law with its accompanying Western values.58

Second, common law courts placed a high value on certainty through rigid rules and relied on stare decisis (precedent) and codes such as the KwaZulu Act on the Code of Zulu Law59 and the Natal Code of Zulu Law.60 This legislation had an impact far beyond the borders of Natal.61 This search for certainty can be shown by the behaviour of the courts as noted by Luluaki below.

PAUSE FOR REFLECTION An example of how the common law courts distorted customary law Luluaki states that to give custom the character of certainty associated with law, courts insisted on the payment of a bride price as a requirement for a valid marriage. In this way, they were able to give ‘the quality of certainty to marriage whereby rights over women and their children were clearly established’.62 The third example of the infiltration of common law into customary law was the treatment of customary laws as a fact that had to be proved in every case. The fourth example is that the application of customary law was subject to the proviso that it should not be ‘repugnant to principles of public policy or natural justice’. In the common law courts’ application of customary law, the relevant public

44

whose policy was observed was the white population. The courts also interpreted natural justice in Eurocentric terms.63 Fifth, distortions of customary law occurred because the witnesses and assessors who helped the judges to determine the true content of customary law were typically old men who shared the government’s interest in controlling women and younger men.64They therefore often used the power given to them to secure and advance their own interests and to ensure that they retained control over these demographic groups in a changing economic and social environment. As a consequence, they would sometimes invent customary law rules that advanced this cause.65 Hence, these factors distorted customary law. 1.4 Apartheid (1948–1990) 1.4.1 Political context of apartheid Mamdani argues that there was a distinct continuity between the colonial period, the Union period and the apartheid era.66 In fact, the transition from colonialism to the apartheid era was slow and confused, and took place over the few decades constituting the Union period. After World War II, human rights discourse became prevalent in Europe. However, human rights were seldom discussed in African colonies, especially where white settlers sought to protect their interests.67 In South Africa, the policy of indirect rule initiated by the British in Natal simply became more formalised and entrenched in legislation under the National Party (NP) government to become separate development. This was the euphemism used to describe the system of apartheid.68 Separate development was supposedly intended to lead ultimately to the self-government of black people in the homelands that were established on a limited amount of land.69 The real reasons for the retention of indirect rule were arguably more to do with the NP government’s commitment to investing minimal cost and effort into the governance of traditional communities yet also wanting to ensure maximal control over labour and land resources.70 1.4.2 Customary law and tribal authorities During the apartheid era, the 1948 decision by the Appellate Division (now the Supreme Court of Appeal) in Ex parte Minister of Native Affairs: In re Yako 45

v Beyi71 provided a standard approach to customary law. The Court ruled that no presumption was to exist in favour of applying either common law or customary law, but courts should apply the law that was most applicable to the parties and the circumstances of the case.72 Arguably, this ruling contributed to the degradation of customary law in the legal system. COUNTER POINT Degradation of customary law in the legal system Some argue that the decision in Yako v Beyi continued the British colonial policy of indirect rule into the apartheid era. In other words, customary law was to apply only to the individual in exceptional cases. Roman-Dutch law was seen as the general law of the land resulting in the neglect of customary law. According to Church, the decision in Yako v Beyi resulted in the recognition of customary law ‘only as a special and personal law that operated outside of but only as determined by the general law’.73 Customary law was not recognised as being itself general law but was applied in exceptional circumstances where it was relevant to the individual before the court. The state law remained the law of general application and customary law therefore continued to be viewed through the common law lens and would only be applied if it was consistent with common law values. Bennett’s view is that the recognition of customary law was marked by lack of autonomy (that is, there was no individual choice) as culture formed the basis of legal segregation.74 Hence, the individual did not have the opportunity to decide whether customary law should apply to his or her case. If the court determined that the individual was of a particular culture, it applied the customary law believed to belong to that culture to that individual. In the case of Tongoane v National Minister for Agriculture and Land Affairs,75 Chief Justice Ngcobo, writing on behalf of a unanimous court, provided an abbreviated yet fairly comprehensive account of the intricate relationship between apartheid laws and the dispossession and oppression of black people. The Chief Justice gave extensive attention to the central piece of legislation that laid the foundation for the later establishment of homelands for black people and, thus, the exclusion of black 46

people from being South African citizens: the Black Authorities Act of 1951.76 In his words: The Black Authorities Act gave the State President the authority to establish ‘with due regard to native law and custom’ tribal authorities for African ‘tribes’ as the basic unit of administration … Under apartheid, these steps were a necessary prelude to the assignment of African people to ethnically-based homelands. … According to this plan, there would be no African people in South Africa, as all would assume citizenship of one or other of the newly created homelands …77 In the Black Authorities Act, ‘native/black law and custom’ meant whatever served the state at any particular time. What served it most was power centralised in a tribal ruler who controlled the land and the people on it subject to the state’s control of the tribal ruler. Sections 2 and 3 of the Act permitted the State President to establish ‘tribal authorities’ to govern ‘tribes’ which, in terms of the BAA, could have been falsely formed. Additionally, section 4(1)(d) of the Black Authorities Act reads: A tribal authority shall, subject to the provisions of this Act – generally exercise such powers and perform such functions and duties as in the opinion of the Governor-General fall within the sphere of tribal administration and as he may assign to that tribal authority. In terms of section 4(1)(a) of the Black Authorities Act, the tribal authority was responsible for ‘generally administer[ing] the affairs of the tribes and communities in respect of which it has been established’. Under section 4(1)(b), the tribal authority was to assist the tribal leader in his performance of ‘powers, functions or duties conferred or imposed upon’ him. This included a broad power of taxation in line with sections 8 and 9. These sections provided for treasuries to be established into which customary and statutory tribal levies, fees, fines, property gains and profits were to be paid. PAUSE FOR REFLECTION Forced removals and resource insecurity

47

Tribal authorities were to ‘advise and assist the Government and any territorial or regional authority … in connection with matters relating to … [among other things] the

development

of jurisdiction.

78

and

improvement

of

any

land

within’

their

areas

Later, this allowed the NP government to co-opt the tribal authorities

to assist it in the realisation of its policy of betterment under which the government forcibly removed millions of Africans and caused substantial resource insecurity.79 As the Constitutional Court observed in Tongoane: The forced removals of African people from the land which they occupied to the limited amount of land reserved for them by the apartheid state resulted in the majority of African people being dispossessed of their land. It also left a majority of them without legally secure tenure in land.80 By the 1980s, the NP government was concerned mostly with maintaining so-called ‘law and order’.81 There were uprisings against imposed and authoritarian traditional authorities in the homelands, especially in Bophuthatswana, now part of the North West. The government declared a series of states of emergency, culminating in a lengthy state of emergency from 1987 until 1990. During this time, in 1986, Parliament enacted legislation that discarded the Native Commissioners’ Courts and assigned their functions, extended to include criminal functions, to magistrates’ courts. Section 11 of the BAA was also repealed and re-enacted as section 54A(1) of the Magistrates’ Courts Act.82 Subsequently, in 1988, section 54A(1) of the Magistrates’ Courts Act was also repealed and was replaced by section 1 of the Law of Evidence Amendment Act.83 This section permitted courts to take judicial notice of customary law principles that were readily ascertainable and apply them where applicable. It also provided for the proof, as a fact, of customary law principles that were not readily ascertainable. In addition, it included a repugnancy clause. The Regulations for the Administration and Distribution of the Estates of Deceased Blacks were also passed in 1987.84 These regulations governed the intestate succession of the estates of black people not covered by the BAA and generally allowed for black people whose marriages would not ordinarily have been executed under the common law to be so executed. Significantly, also, the Marriage and Matrimonial

Property

discarded wives.

Law

Amendment Act85 ended

the

phenomenon

of

86

48

PAUSE FOR REFLECTION The colonial, union and apartheid eras give birth to different forms of customary law By the mid-twentieth century (ever since forced take-overs and Maclean’s Compendium of 1866), three forms of customary law had come into being: •The first form was official customary law. This was the customary law captured in statute and precedent, and was directly influenced by Roman-Dutch and English legal principles. •The second form was academic law. This was the body of treatises on customary law often referred to by courts when deciding disputes. •The third form was living customary law. This was the version of customary law developed and used by indigenous communities, and attested to orally in courts.87 We discuss these forms of customary law further in chapter 2. 1.5 Transitional period (1990–1996) Terminology patriarchy a social system in terms of which men hold the dominant position and positions of authority largely to the exclusion of women In the uncertainty of the transitional period, customary law, the role of traditional leaders and women’s rights were hotly contested issues.88 The primary question to be answered in relation to the protection of customary law in the Constitution was whether customary law should be subject to or independent of the Bill of Rights. This issue was debated at CODESA I and II during 1991 to 1992 and the Multiparty Negotiating Forum (MPNF) in 1993. The debate was mainly between traditional leaders, primarily organised as the Congress of Traditional Leaders of South Africa (CONTRALESA), and women’s rights activists organised as the Women’s National Coalition.89 On the one hand, traditional leaders expressed the fear that the equality clause would, among other things, likely result in the eradication of large parts of customary law. The women’s lobby, on the other hand, was concerned that if the traditional leaders’ appeal 49

succeeded, rural women would continue to be subject to patriarchy in the name of customary law. They would thus be denied the benefits of equality on the basis of sex and gender for which the Coalition was lobbying.90 In late 1993, the MPNF yielded the interim Constitution, tenuously breaking the effective deadlock between the contesting parties over what to do about customary law.91 Sections 181, 182, 183 and 184 of the interim Constitution provided for a role for traditional leaders. As summarised in section 181(1), in essence, this set of provisions permitted recognised traditional leaders to continue to function in their roles and to exercise power in terms of their customary law subject to amendment or repeal. Some perceived this as a loss by the women’s lobby because it permitted traditional leaders to continue to impose themselves and customary law as they saw it on their so-called subjects without their subjects having a choice in the matter.92 The interim Constitution also included Constitutional Principle XI that protected language and culture. Constitutional Principle XIII on the role of traditional leaders provided for the recognition and application of customary law which, like common law, was subject to the rights in the Constitution and legislation dealing therewith. This signalled that the women’s rights activists had succeeded in their appeal for gender equality rights to extend to women living under customary law.93 The interim Constitution also incorporated the concept of ubuntu from traditional African jurisprudence. Although this concept was undefined, it was referred to in the epilogue of the interim Constitution under the heading, ‘National Unity and Reconciliation’. In 1995, the Constitutional Court defined the concept in the landmark case abolishing the death penalty, S v Makwanyane.94 As did the other justices in their own words, Ackermann J observed that the history of severely undermining the dignity and violating the inherent right to life of so many South Africans had to be undone. Hence, ‘[a] culture of respect for human life and dignity, based on the values reflected in the Constitution, has to be engendered, and the State must take the lead’.95 Chaskalson P observed that ‘[r]espect for life and dignity … are values of the highest order under our Constitution’.96 Six of the 11 judges in this case identified ubuntu as a key constitutional value that: places some emphasis on communality and on the interdependence of the members of a community. It recognises a person’s status as a human 50

being entitled to unconditional respect, dignity, value and acceptance … The person has a corresponding duty to give the same …97 The Constitutional Court has made several allusions to ubuntu being one of the core constitutional

values

of

human

dignity,

equality

and freedom.98 If ubuntu is

considered to contain such values, it will play a role in both informing constitutional rights and in their interpretation.99 In brief, the justices saw ubuntu as encompassing, in its own way, these highest constitutional values of human dignity and respect for human life. Ubuntu is not specifically mentioned in the final Constitution but remains part of our jurisprudence. This is evident from its continued influence in court decisions in different fields of law.100

PAUSE FOR REFLECTION The certification of the final Constitution To be certified by the Constitutional Court, the final Constitution had to comply with Constitutional Principles XI and XIII mentioned above. Therefore, the final Constitution of 1996 included the following provisions: •Section 9(3) on the protection of equality includes among its listed grounds ethnic or social origin and culture. According to Bennett, culture includes ‘a people’s entire store of knowledge and artefacts, especially the languages, systems of belief, and laws, that give social groups their unique characters’.101 Therefore, this section gives people the right to be governed by the law applying to their particular cultural group. •Section 15 expands on section 14 of the interim Constitution, declaring that nothing in the section prevents legislative recognition of marriages concluded under any tradition or religious, personal or family law systems. •Section 30 entrenches the individual’s right to participate in a culture of his or her choice and section 31 protects a group’s right to participate in cultural activities of their choosing. Distinguishing these two provisions from all others in the Bill of Rights, the Constitution specifically qualifies these provisions by stating that

51

neither the rights in section 30 nor 31 can be exercised in a way contrary to the provisions of the Bill of Rights. •Section 39 treats customary law and its development as equal to the common law. Section 39(2) states that ‘[w]hen interpreting any legislation and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’.102 Section 39(3) provides that ‘[t]he Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill’. •Chapter 12 provides for a role for traditional leaders both locally and nationally, subject to the customs and usages of their communities, legislation and the Constitution. In Chapter 12, section 211(3) specifically states that ‘[t]he courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law’. •Section 235 articulates the right to self-determination of any community sharing a common cultural and linguistic heritage, and provides a foundation on which the state may legislate for cultural and linguistic communities to express this international law right. In Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996,103 the Constitutional Court approved the final Constitution as meeting its obligations in terms of the interim Constitution. However, the question remained as to an appropriate definition of customary law as used in the Constitution and whether it refers to official or living customary law. This was clearly articulated in subsequent decisions.104 Furthermore, the Constitutional Court alluded to the following question: if living customary law was the primary form of customary law intended in the Constitution, how was this to be accurately discerned for the purposes of dispute resolution in state courts?105 A related question is the meaning of ‘when that law is applicable’ as used in section 211(3). Further still was the question of whether the omission of customary law from section 8 of the Constitution (referring only to common law to be developed by the courts) meant that the courts could not develop customary law but only strike offending rules out.106 There are also questions with which the government continues to grapple in its numerous attempts at passing regulatory legislation concerning customary law. 52

These are how to give appropriate effect to Chapter 12 that articulates the potential for a role and functions to be given to traditional leaders in our democracy and section 235 that recognises the international human right of local peoples to selfdetermination.107 Of particular difficulty is how the government is to balance the rights of individual people who live under customary law and the claims of traditional leaders to certain powers and functions,108 as well as the balance between traditional leaders and local government.109 This balance is particularly challenging with regard to

subject

matter

such

community boundaries, bodies

110

and

as

the

Constitution

and

the

demarcation

of

the recognition or formation of appropriate governance the

distribution

of

their

and powers,111 land administration,112 administration mineral resources,113 administration

of justice114 and

roles of

the

protection

of

traditional knowledge.115 In the chapters that follow we discuss and attempt to unpack some of these regulatory challenges. THIS CHAPTER IN ESSENCE •This chapter looks at the historical backdrop to the impact of colonialism and apartheid on customary law. It also discusses the place of customary law in the new constitutional dispensation. In both cases the discussion is located in periods that are broadly defined as colonialism (1652–1909), Union (1910–1947), apartheid (1948–1990) and the transitional period (1990–1996). •The changes in customary law that occurred in the formal legal sphere do not represent the full breadth of the developments that took place in customary law and the relations between traditional leaders and their people. •Colonialism largely featured a struggle over resources (natural and human), authority, and cultural and moral legitimacy (what is often referred to as the ‘civilisation’ mission). The authority of the outside state was implemented by coercion (physical and legal), not recognising and typically undermining the legitimacy of the local authorities and methods.

53

•Under indirect rule, the government sought to understand African customary law and legislate in accordance with it so that the indigenous leaders and the ordinary people who lived under customary law would cooperate with the colonial government. The policy was formed of three parts: ‘native’ administrations, ‘native’ courts and ‘native’ treasuries. •During the Union period, the government’s objectives were to regulate the behaviour of the ‘natives’ so as to ensure that they were at maximal disposal to the state for labour and production purposes while costing the state as little as possible. There was very little interest in customary law, even as a mode of rule, as a result of which it became easier and easier to change it legislatively. •Key Union pieces of legislation include the 1913 Natives Land Act which disallowed black people from acquiring land except within the ‘scheduled native areas’ and the Black Administration Act of 1927, in terms of which the Governor-General (deemed ‘supreme chief’ of all natives) was given the power to reshuffle ‘tribes’. •The BAA also provided for chiefs’ courts and set up a separate state court system for customary law. •Under the BAA, some sections of society, such as women and young men, were disproportionately disadvantaged by an official customary law system that privileged the adult male members of the ‘tribe’ and made them the only participants in local decision making. •There was no clear distinction between colonialism and apartheid. The initial reasons for adopting indirect rule were still deemed compelling: the government’s commitment to investing minimal cost and effort into the governance of traditional communities yet also wanting to ensure maximal control of labour and land resources, as well as the notion of natives’ lack of civilisation and the desire to restrict racial mixing. This also justified the government’s continuing employment of contrivances of customary law.

54

•In the early phase of formally named apartheid, the 1948 decision by the Appellate Division in Yako v Beyi standardised court practice regarding the application of customary law throughout the Republic. The Court held that no presumption was to exist in favour of applying either common or customary law to ‘native’ cases, but courts should apply the law that was most applicable to the parties and the circumstances of the case. This was only one of the numerous ways in which the infiltration of common law into customary law took place under this order. •Under the Black Authorities Act of 1951, tribal authorities were formally established to ‘administer the affairs of the tribes and communities in respect of which it has been established’ and assist the tribal leader in his performance of ‘powers, functions or duties conferred or imposed upon’ him. The tribal authorities also had broad powers of taxation. •By the 1980s, the national government was concerned mostly with maintaining socalled ‘law and order’. •Section 1 of the Law of Evidence Amendment Act of 1988 permitted ordinary courts to take judicial notice of (unspecified) customary law principles that were readily ascertainable and apply them where applicable and provided for the proof, as a fact, of customary law principles that were not readily ascertainable. It included a repugnancy clause that controlled the application of customary law. •Three forms of customary law now existed: official customary law (in statute law and precedent, influenced by Roman-Dutch and English law), academic law (the scholarship referred to by courts) and living customary law (developed and lived out by indigenous communities). •In the transitional period, customary law, the role of traditional leaders and women’s rights were hotly contested. The primary question to be answered was whether customary law should be subject to or independent of the Bill of Rights. The debate was mainly between traditional leaders and women’s rights activists.

55

•In essence, the interim Constitution of 1993 permitted already recognised traditional leaders to continue to function in their roles and exercise power in terms of their customary law subject to amendment or repeal of such. •The interim Constitution also included Constitutional Principle XI protecting language and culture, and Constitutional Principle XIII providing for the recognition and application of customary law subject to the Constitution and legislation dealing specifically with customary law. •The interim Constitution also incorporated the concept of ubuntu from traditional African jurisprudence. •To be certified by the Constitutional Court, the final Constitution had to comply with the Constitutional Principles in the interim Constitution. In the Second Certification Judgment, 1996, the Constitutional Court determined that the final Constitution had met its obligations in terms of the interim Constitution.

1This chapter draws on material included in Mnisi, S (2010) The Interface Between Living Customary Law(s) of Succession and South African State Law DPhil thesis University of Oxford. 2Bennett, TW (1995) Human Rights and African Customary Law under the South African Constitution; Bennett, TW (2004) Customary Law in South Africa; Bennett, TW and Peart, NS (1991) A Sourcebook of African Customary Law for Southern Africa; Benton, LA (2002) Law and Colonial Cultures: Legal Regimes in World History, 1400–1900; Chanock, M (2001) The Making of South African Legal Culture, 1902–1936: Fear, Favour and Prejudice; Delius, P ‘Contested terrain: Land rights and chiefly power in historical perspective’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act 211–35; Mamdani, M (1996) Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism; Nhlapo, TR ‘African customary law in the interim Constitution’ in Liebenberg, S (ed) (1995) The Constitution of South Africa from a Gender Perspective 157–66; Ranger, TO ‘The invention of tradition in colonial Africa’ in 56

Hobsbawm, EJ and Ranger, TO (eds) (1992) The Invention of Tradition 211– 62; Claassens, A (2005) Women, customary law and discrimination: The impact of the Communal Land Rights Act Acta Juridica 42–81; Himonga, C and Bosch, C (2000) The application of African customary law under the Constitution of South Africa: Problems solved or just beginning? South African Law Journal117(2):306–41 at 306. 3Mann, K and Roberts, R (1991) Law in Colonial Africa 20; Mamdani (1996) 62. See Lugard, FD (1922) The Dual Mandate in British Tropical Africa 193–213 for an articulation of this policy. 4Lugard (1922) 211. 5Lugard (1922) 200–03; Mann and Roberts (1991) 20; Mamdani (1996) 53. 6Lugard (1922) 200–03; Mamdani (1996) 53. See also Mann and Roberts (1991) 20: ‘In the face of African resistance to direct intervention and in the interest of containing administrative costs, indirect rule retreated from aggressive legal and governmental reform … The task of the British colonial administrator was now to reform indigenous administration from within indigenous institutions.’ 7Mamdani (1996) 65–71. 8Mattei, U and Nader, L (2008) Plunder: When the Rule of Law Is Illegal 2. 9Mann and Roberts (1991) 23: ‘Law was used in struggles over resources and labor, and these struggles in turn proved central to the making of [esp. state] customary law itself.’ Also see Benton (2002). 10However, there were periodic instances in which their law led to logical conclusions that did not favour them. 11Chanock (2001) 32–3; Mamdani (1996) 6; Benton (2002) 182–3. 12Mattei and Nader (2008) 23 and 81. 13Mattei and Nader (2008) 23. 14Mann and Roberts (1991) 9–11. 15Benton (2002) 24, 262; Mann and Roberts (1991) 15; Mamdani (1996) 37–8; Mattei and Nader (2008) 21. 16Mann and Roberts (1991) 20. Also see Lugard (1922) 211. 17Mamdani (1996) 65–71; Church, J (2005) The place of indigenous law in a mixed legal

system

and

a

society

in

transformation:

A

South

African

experience Australia and New Zealand Law and History E-Journal 94–106 at 96–8. 57

18Mamdani (1996) 72–4, 294–5. 19Mamdani (1996) 72–4, 294–5. 20Mamdani (1996) 72–4, 294–5. See also Benton (2002) 22. 21Mamdani (1996) 50, 72–4, 91, 294–5. See also Benton (2002) 22. 22Mamdani (1996) 63, 115–6. See also Mattei and Nader (2008) 2, 11–13. 23Mamdani (1996) 81; Chanock (2001) 262, 267. Recall that patriarchy was still very strong under British law. 24Church (2005) 96, 98; Chanock (2001) 282; Mamdani (1996) 63. 25Church (2005) 96, 98; Chanock (2001) 282; Mamdani (1996) 63. 26Mann and Roberts (1991) 20–1; Mamdani (1996) 79, 88, 122–8. 27McClendon, T (1995) Tradition and domestic struggle in the courtroom: Customary law and the control of women in segregation-era Natal The International Journal of African Historical Studies 28(3):527–61 at 538–9. 28McClendon (1995) 539. 29Chanock (2001) 243–61, 282; Church (2005) 96, 98; Mamdani (1996) 66–71. 30Chanock (2001) 243–61, 282; Church (2005) 96, 98; Mamdani (1996) 66–71. 31Mamdani (1996) 65–6, 70, 89; Mann and Roberts (1991) 21. 32Mamdani (1996) 6–7, 89; Benton (2002) 181–3. 33Lugard (1922) 211. 34Mann and Roberts (1991) 21; Mamdani (1996) 88, 122–8. 35Chanock (2001) 34–5, 329. 36Chanock (2001) 262, 267, 329–30; Mamdani (1996) 92, 97, 99–100. 37Mamdani (1996) 96–102. 38Act 27 of 1913, also known as the Black Land Act. 39The land assigned was later increased to 13% of the country’s territory under the Native Trust and Land Act 18 of 1936. 40(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) para 37. 41See Tongoane v National Minister for Agriculture and Land Affairs (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 2010) para 12. Also see the Native Trust and Land Act. 42Chanock (2001); Delius (2008); Mamdani (1996). 43Act 38 of 1927. 44S 5 of the BAA. 58

45S 1 of the BAA. 46S 2(7) of the BAA. 47By the Native Administration Amendment Act 13 of 1955. 48S 20(1) of the BAA. 49See also ch 9 of this book dealing with the rules of succession under the BAA. These rules were found to be unconstitutional in Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004). Other legislation such as the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law Proc R151 of 1987 were later applied in the Natal region and the Transkei Marriage Act 21 of 1978 governed in the Transkei. 50S 22(6) of the BAA. 51S 23 of the BAA. The same could later be said of the Black Areas Land Regulations Proc R188 of 1969, the Regulations for the Administration and Control of Townships in Black Areas Proc R293 of 1962 and the Regulations Governing the Control and Supervision of an Urban Black Residential Area and Relevant Matters GG 976, 14 June 1968 GN R1036. 52S 23 of the BAA and reg 2 of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks (passed under s 23(10)). Also see the discussion in Bhe. 53Section 11(1) of the BAA stated: ‘notwithstanding the provisions of any other law, it shall be in the discretion of the Commissioners’ Courts in all suits or proceedings between Blacks involving questions of customs followed by Blacks, to decide such questions according to Black law applying to such customs except in so far as it shall have been repealed or modified: provided that such Black law shall not be opposed to the principles of public policy or natural justice: provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles.’ 54Chanock (2001) 34, 328. 55Mann and Roberts (1991) 21; Mamdani (1996) 112–3, 115–22; Bennett and Peart (1991) vi. 56Chanock (1991) 243–61. 57Chanock (1991) 34–5, 283, 292–3; Bennett (1995) 61. 59

58Chanock (1991) 34–5, 283, 292–3; Bennett (1995) 61. 59Act 16 of 1985. 60Published in Proc R151 of 1987, GG 10966. 61Mann and Roberts (1991) 36–7. See also Mnisi (2010) 36–8, 127–32. 62Luluaki, JY (1997) Customary marriage laws in the Commonwealth: A comparison between Papua New Guinea and Anglophonic Africa International Journal of Law, Policy and the Family 11(1):1–35 at 6 citing Chanock, M (1985) Law, Custom, and Social Order: The Colonial Experience of Malawi and Zambia 172–91. 63For example, much later, Ismail v Ismail 1983 (1) SA 1006 (A) rejected potentially polygamous marriages. 64Bronstein, V (1998) Reconceptualizing the customary law debate in South Africa South African Journal on Human Rights 14(3):388–410 at 395; Chanock (2001) 329. 65Bronstein (1998) 395; Chanock (2001) 329. See also Mnisi (2010) 36–8. 66Mamdani (1996) 6–7; Chanock (2001) 37. 67Mamdani (1996) 7–8, 27–8, 89–90. 68Mamdani (1996) 6–7, 89. 69The Self-Governing Territories Constitution Act 21 of 1971 formed the legislative framework for this. 70Oomen, B (2005) Chiefs in South Africa: Law, Power and Culture in the PostApartheid Era 41. 711948 (1) SA 388 (A). 72Yako v Beyi 397. 73Church (2005) 95. 74Bennett and Peart (1991) vii. 75(CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 201) paras 10–29. 76Act 68 of 1951. 77Tongoane paras 24–25. 78S 4(1)(c) of the Black Authorities Act. 79This was realised in terms of the Native Trust and Land Act read with Procs 264 of 1939 and 116 of 1949. 80Tongoane para 25. 60

81Chanock (2001) 28. See also Mamdani (1996) 29–32. 82Act 32 of 1944. 83Act 45 of 1988. 84GN R200 of 1987. See also ch 9 of this book where these regulations are discussed. 85Act 3 of 1988. 86The subject of discarded wives is dealt with in ch 9 of this book. 87These three forms of customary law are referred to in Bhe para 152. See also Gumede v President of the Republic of South Africa (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008) paras 11, 20 and 29 for the distinction between official and living customary law and how they are treated by courts under the current dispensation. 88See the discussions in Bennett, TW and Murray, C ‘Traditional leaders’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 26.1–26.67 and Oomen (2005) 37–86. 89Oomen (2005) 45–50. 90Oomen (2005) 45–50. 91Oomen (2005) 48–9. 92Oomen (2005) 48–9. 93Oomen (2005) 48–9. 94(CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995). 95Makwanyane para 222. 96Makwanyane para 111. 97Makwanyane para 224. 98See, for example, Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004) para 37. 99See Himonga, C (2013) The right to health in an African cultural context: The role of Ubuntu in the realisation of the right to health with special reference to South Africa Journal of African Law 57(2):165–95. 100Keep, H and Midgley, R ‘The emerging role of Ubuntu-Botho in developing a consensual South African legal culture’ in Bruinsma, F and Nelken, D (eds) (2007) Explorations in Legal Cultures. 61

101Bennett (1995) 23. 102For a discussion of the meaning of development in the context of this section, see Lehnert, W (2005) The role of the courts in the conflict between African customary

law

and

human

rights South

African

Journal

on

Human

Rights 21(2):241–77. 103(CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996). 104For example in Alexkor. 105Discussed in Bhe and, most clearly, in Shilubana v Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008). 106Settled in Alexkor para 51. 107See the Traditional Leadership and Governance Framework Act 41 of 2003, the Communal Land Rights Act 11 of 2004 (found unconstitutional in the case of Tongoane) and the presently debated Traditional Courts Bill [B1-2012], among other legislation. 108See the discussion in Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the context of living customary law South African Journal on Human Rights 25(3):491–516. 109See, for example, s 5(3) of the Traditional Leadership and Governance Framework Act and the Local Government: Municipal Systems Act 32 of 2000. See also see Oomen (2005) 43–4 and Mnisi Weeks, S (2011) Securing women’s property inheritance in the context of plurality: Negotiations of law and authority in Mbuzini customary courts and beyond Acta Juridica 140–173 at 146–9, 163. 110See ss 2, 7 and 28(3) of the Traditional Leadership and Governance Framework Act and subordinate provincial legislation. 111See ss 3, 28(4) and 28(5) of the Traditional Leadership and Governance Framework Act. 112See s 20(2)(b) of the Traditional Leadership and Governance Framework Act; the Interim Protection of Informal Land Rights Act 31 of 1996; and the Communal Land Rights Act (although no longer law). 113See s 20(2)(m) of the Traditional Leadership and Governance Framework Act and the Mineral and Petroleum Resources Development Act 28 of 2002.

62

114See s 20(2)(f) of the Traditional Leadership and Governance Framework Act and the Traditional Courts Bill. 115See the Intellectual Property Laws Amendment Bill [B8-2010].

63

Chapter 2 The nature and concept of customary law 2.1 Introduction 2.1.1Customary law as opposed to customary laws 2.1.2Customary law and colonial history 2.2 Definition and concept of customary law 2.2.1Introduction 2.2.2Living customary law 2.2.2.1Definition of living customary law (a)Custom (b)Acceptance 2.2.2.2 Aspects of living customary law related to its definition (a)Living customary law distinguished from custom under common law (b)Living customary law as an evolving system of law 2.2.3 Official customary law 2.3 Mixed customary law 2.4 Reconciling customary law with fundamental human rights This chapter in essence 2.1Introduction This

chapter

discusses

the

nature

of

customary

law,

focusing

on

the

conceptualisation of customary law as living customary law and official customary law. We also discuss two related issues: the phenomenon of mixed customary law and reconciling customary law with the protection of fundamental human rights. 2.1.1 Customary law as opposed to customary laws It is important to note that there is no single or uniform system of customary law that applies to all indigenous communities in South Africa. Instead, there are as many versions of customary law as there are indigenous communities. However, similarities exist in the principles of the customary laws of the various indigenous 64

communities at a general level. These similarities depend on whether the communities share matrilineal or patrilineal forms of social organisation. All indigenous

communities

in

South

Africa

share

major

features

of

1

patrilineal societies with the exception of the Balobedu community. They therefore share common principles, especially in the areas of marriage and succession. It is on this basis that we adopt the term ‘customary law’ in the singular in this chapter. 2.1.2 Customary law and colonial history An appreciation of colonial history is essential to understanding the concept of African customary law. We discuss this subject in chapter 1. Here, it is only necessary to state that an analysis of customary law from a historical perspective in South Africa links the concept of customary law to colonial, Union and apartheid legal cultures. Writing about customary law and colonial history in commonwealth Africa, Luluaki observes, for example, that: ‘customary law’ is a colonial invention aimed primarily at facilitating and entrenching the colonial agenda in the management and control of colonized peoples and to bring them closer within the larger colonial and latterly neo-colonial legal, economic and cultural whole.2 Thus, official customary law was nothing but an official code for the governance of Africans by the colonial state and capital. We discuss the major factors that contributed to the emergence of this official customary law in chapters 1 and 4. These factors may be summarised as: 

the treatment by the state courts of customary law as a fact that had to be proved in every case, as well as the inevitable use of oral methods of proving living customary law in the courts



the ignorance of the officials of state courts about the content and nature of customary law



the use of precedent and academic literature as sources of customary law



the codification of customary law



the quest for legal certainty in the norms of customary law as sources of law



the use of the repugnancy clause which had the effect of changing existing customary law to suit official requirements.3 65

As a result of a combination of all these factors, new rules of customary law were invented or constructed. The result was that much of what state courts presented and applied as customary law was different from the customary practices that governed African people’s relationships in their day-to-day lives. It should be stressed that while African societies and their legal systems were neither static nor ‘pure’, colonialism with its capitalist economy, urbanisation and the consequent social changes accelerated much of the process of the ‘invention’ of customary law.4 Luluaki also points out that the invention of customary law was neither a linear nor a unidirectional process in which colonial and state instruments affected passive African legal forms and social structures to produce ‘invented’ or new ‘customary laws’. On the contrary, as Nhlapo points out, the process of the creation of the customary law component of the colonial, Union and apartheid legal systems: usually took the form of an alliance between the colonial authorities and African male elders who, being the holders of ‘strategic’ resources in the form of land, cattle, women and children, defended their vested interests by promoting the growth of rigid legal rules in place of custom when the latter system could no longer protect them from the effects of change.5 This is the context in which official customary law, which we discuss in the next section, arose. Conceptually, we have retained the term ‘official customary law’ to describe the relevant form of customary law in the post-colonial and post-apartheid legal systems. The simple reason for this is that much of the customary law that is applied by the courts today not only has its roots in the colonial, Union and apartheid past, but continues to bear the same identifying marks as the official customary law of these periods.

PAUSE FOR REFLECTION Courts beware of the past The Constitutional Court in Alexkor Ltd v Richersveld Community reminded the courts to bear in mind this historical perspective when considering issues of customary law: 66

Although a number of textbooks exist and there is a considerable body of precedent, courts today have to bear in mind the extent to which indigenous law in the pre-democratic period was influenced by the

political,

administrative

and

judicial

context

in

which

it

was applied.6 Furthermore, the Court in this case made a pertinent point about the need for caution regarding the sources of customary law. It stated: caution must be exercised when dealing with textbooks and old authorities [as sources of customary law] because of the tendency to view indigenous law through the prism of legal conceptions that are foreign to it.7 2.2 Definition and concept of customary law 2.2.1 Introduction The concept of customary law in South Africa consists of two forms of customary law: living customary law and official customary law. There are also some variations of concepts between living customary law and official customary law which we will call state living customary law and mixed customary law. The courts have recognised the co-existence of the concepts of living customary law and official customary law.8 For instance, in Bhe v Khayelitsha Magistrate, the majority judgment acknowledged the difference between these forms of customary law in the following statement: The official rules of customary law are sometimes contrasted with what is referred to as ‘living customary law’, which is an acknowledgment of the rules that are adapted to fit in with changed circumstances. The problem with the adaptations is that they are ad hoc and not uniform. However, magistrates and the courts responsible for the administration of intestate estates continue to adhere to the rules of official customary law, with the consequent anomalies and hardships as a result of changes which have occurred in society.9

67

The High Court also differentiated between living and official customary law in Mabena v Letsoalo.10 The Court held that there were two forms of customary law: living customary law and official customary law. The Court noted that it had to recognise the principle of living, actually observed, law as this would constitute a development in accordance with the spirit, purport and objects of the Bill of Rights.11 The two major statutes dealing with customary law post-1994 also recognise the concept of living customary law by implication. In this respect, the Recognition of Customary Marriages Act (RCMA)12 and the Reform of Customary Law of Succession and Regulation of Related Matters Act (RCLSA)13 both define customary law as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’.14 In this context, culture implies the inherently evolving and changing nature of living customary law.

PAUSE FOR REFLECTION The Constitutional Court’s view of the concept of customary law In Bhe, the minority judgment of Ngcobo J identified three forms of customary law and stated that all three forms are different: •customary law that is practised in the community •customary law that is found in statutes, case law or textbooks on official customary law •academic law that is used for teaching purposes.15 The first seems to represent what we have called living customary law while the second represents official customary law. It is, however, not clear what the third form consists of. If the Court meant the customary law that is recorded in textbooks, then we can include it in official customary law. The reason for this is that the rules described in these textbooks are derived from statutes that have codified customary law or from court decisions on customary law. Thus, the view we take in this chapter is that there are two concepts of customary law – official customary law and living customary law with a possible variation of living customary law.

68

2.2.2 Living customary law Terminology patrilineage

a group of persons who are related to a person by blood through the male line

matrilineage

a group of persons who are related to a person by blood through the female line

hosi

the term for a senior traditional leader among the Valoyi In this section we consider the definition of living customary law and other aspects that are related to the meaning of this concept. 2.2.2.1 Definition of living customary law Customary law scholars are agreed that living customary law16 consists of the actual practices or customs of the indigenous community whose customary law is under consideration. Here is a sample of views: •According to Jobodwana, the ‘customary law of a community is a body of customs and traditions which regulates the various kinds of relationships between members of the community’.17 He states further that in a traditional society, customary law derived its authority from its acceptance by members of the community as a body of rules binding on themselves: ‘[C]ustomary law never rested on the will of the sovereign or supreme legislature for its validity but rather on its acceptance by the community whose affairs it regulated. Acceptance means or implies that customs must conform with actual patterns of behaviour.’18 •Bekker and Rautenbach define living customary law as ‘the original customs and usages that are in a constant phase of evolvement [in the sense that as] communities change … so do their rules’.19 •Hamnett defines living customary law as ‘a set of norms which the actors in a social situation abstract from practice and which they invest with binding authority’.20 Living customary law usually consists of the unwritten customary practices that regulate the day-to-day life of people. However, this does not mean that living customary law cannot be recorded in writing. ‘It is quite possible in principle to make written records of the norms of customary law. This is what textbooks about customary law do.’21 The recording of living customary law only becomes significant 69

when it carries consequences for the nature of this system. According to Woodman, an example of this is where: a written record [of customary law] becomes an irrebutable statement of customary law, irrespective of the norms observed by the affected population; or if, when a written record has been made, no further developments in customary law can be treated as legal.22 From these definitions of living customary law, we can see that the source of law is custom, in other words a practice which emerges from relatively widespread social practice and acceptance.23 There are two key concepts to consider here – ‘custom’ and ‘acceptance’. What do these concepts mean in the context of the definition of living customary law? (a) Custom What is the difference between a mere repetitive habit or custom, for example a social habit of a people such as the clapping of hands as a form of greeting among the Lozi people of the Western Province of Zambia, and a custom that constitutes the source of a customary rule? According to Hund, both lawyers and non-lawyers use the word ‘custom’ to describe the repetitive behaviour of a group of people or society.24 However, when lawyers speak of custom as a source of a customary rule, this repetitive behaviour constitutes a rule when deviation from the expected behaviour is openly criticised and meets with pressure for conformity. Criticism of deviation ‘is regarded as legitimate or justified’.25 The number of members of the group who ‘must treat the regular mode of behaviour as a standard of criticism, and how often and for how long they must do so to warrant the statement that the group has a rule are not definite matters’.26 The important point is that the majority considers the standard (or behaviour) imposed to be obligatory. There is also an ‘internal aspect’ to the custom. This simply means that most members of the group ‘look upon the behaviour in question as a general standard to be followed by the group as a whole’.27 However, in Alexkor, the Constitutional Court observed that by ‘its very nature [customary] law evolves as the people who live by its norms change their patterns of life’.28

70

PAUSE FOR REFLECTION Playing a game of chess The following excerpt from Hund explains the element of the concept of custom as a source of law through the rules of a game of chess: Chess players do not merely have similar habits of moving the Queen or the King in the same way that an external observer, who knew nothing about their attitudes to the moves they make, could record. In addition they have a critical reflective attitude to this pattern of behaviour; ‘they regard it as (sic) a standard for all who play the game’. Each not only moves the pieces in a certain way himself, but has views about the propriety of all moving them in that way. Such views are ‘manifested in criticism of others and demands for conformity made upon others when deviation is actual or threatened, and in acknowledgements of the legitimacy of such criticisms and demands when received from others’.29 In a nutshell, ‘customary law arises out of repetitive actions [custom] when and only when such actions are motivated by a sense of obligation [among most members of the group].30 (b) Acceptance With regard to acceptance as a concept in the definition of living customary law, we stated above that the acceptance of the social practice by the group is essential to the constitution of the practice or custom as a source of living customary law. In a sense, every law receives social acceptance to be effective. However, customary law is distinguishable by ‘the fact that it is this acceptance which makes it law by giving it authority, and which gives it its content’.31 For example, there is widespread social acceptance of the law that outlaws murder under the general law of South Africa. However, it is not this social acceptance that gives the law against murder the character of law. It is law because Parliament invested it with this character. The social acceptance of a customary rule in this context does not necessarily mean that it is voluntary. On the contrary, widespread observance of a customary 71

law rule may be due to coercion or force. The majority of the people may observe the rule as a result of force on the part of those who consider themselves to have the authority to enforce the customary law32 such as, for example, a traditional leader and his or her council. Hamnett stated the ultimate test of the definition of living customary law as follows: Customary law emerges from what people do, or – more accurately – from what people believe they ought to do, rather than from what a class of legal specialists consider they should do or believe … [T]he ultimate test is not, ‘what does this judge say?’ but rather ‘what do the participants in the law regard as the rights and duties that apply to them?’33 Thus, the group’s view of its own behaviour is central to the process of isolating customary law from practices or customs that are not normative.34 However, the centrality of the group’s own behaviour in respect of the definition of the rules of customary law has led to problems about who has the authority to define customary law. COUNTER POINT Who defines customary law? The definition of living customary law is a contested issue, especially in the context of local power and gender relations.35 The absence of a single, clearly identifiable person or group of persons who define customary law in a given community prompts the question of who has the authority and power to define norms of customary law. We return to the discussion of contestations concerning the content of customary law later in section 2.2.2.2. Hamnett’s view is instructive.36 He states that between the individual and the total community or society there are intermediate corporate and semi-independent social groups that constitute the social groups for purposes of defining or validating the custom as law. These groups may consist of individual families such as, for example, the patrilineage, matrilineage, the clan or the royal family. The customs to which

72

these groups attribute authority are considered to be socially and not merely individually legitimised norms. The exact nature of the intermediate groups that possess the ‘public’ character, so to speak, of giving authority to legal norms varies from society to society. These intermediate groups may also vary according to the kind of rule or subject matter involved. For example, the immediate family of the deceased may determine questions of inheritance. A more widely defined group may determine questions of succession to the office of a traditional leader. Questions of land tenure may be referred to some other authority, for example the traditional leader and his or her council.37 All these groups define or interpret the norms in the respective subject matters. PAUSE FOR REFLECTION Example of customary law making in a rural setting An indigenous community’s law-making process may be expressed through its traditional governance system. For instance, the Valoyi Royal Council in Shilubana v Nwamitwa38 passed a resolution on succession which was considered to have changed the customary law of succession to the traditional office of hosi of the Valoyi. The Constitutional Court accepted this resolution as representing a development by the Valoyi of their own customary law. 2.2.2.2 Aspects of living customary law related to its definition The definition of living customary law and the discussion of the nature of this system of law would not be complete without a consideration of two closely related elements to which we now turn. (a) Living customary law distinguished from custom under common law The Appellate Division defined the concept of custom as a source of law under common law in Van Breda v Jacobs39 where the Court stipulated four tests required for a custom to have the authority of law. These are: the custom must be long established, reasonable, uniformly observed and certain. In Shilubana, the Court distinguished this notion of custom from its counterpart under customary law. It ruled

73

that while customary law is an independent and original source of law, custom at common law is: an immemorial practice that could be regarded as filling in normative gaps in the common law. In that sense, custom no longer serves as an original source of law capable of independent development, but survives merely as a useful accessory. Its continued validity is rooted in and depends on its unbroken antiquity (own emphasis).40 (b) Living customary law as an evolving system of law We have already alluded to the evolving nature of living customary law in section 2.2.2.1. However, the importance of this feature of living customary law and its recognition by the courts deserve separate discussion. The evolving characteristic of living customary law has caught the attention of the courts in democratic South Africa in various ways since 1994. In particular, the courts have endorsed the evolving nature of this form of customary law as well as its ability to adapt to changing conditions in society. In Shilubana, the Constitutional Court held that living customary law ‘is adaptive by its very nature’ and that ‘by definition, change is intrinsic to and can be invigorating of customary law’ (own emphasis).41 This

was,

in

effect,

an

endorsement

of

the

Court’s

earlier

pronouncement on the evolving feature of living customary law in Certification of the Constitution of the Republic of South Africa, 1996.42 Similarly, the minority judgment in Bhe implicitly referred to living customary law as a ‘dynamic system of law which is continually evolving to meet the changing circumstances of the community in which it operates’.43 This chorus is taken up in Alexkorwhere the Constitutional Court identified unwritten (living) customary law as a system of law that ‘[t]hroughout its history … has evolved and developed to meet the changing needs of the community’.44 It also observed that this system of law would ‘continue to evolve within the context of its values and norms consistently with the Constitution’.45 The last part of this statement must, however, not be interpreted to mean that living customary law is by nature compatible with constitutional principles. While its nature gives it the flexibility to adapt more readily to these principles than official customary law, it would be wrong to consider living

74

customary law as inherently unproblematic. It must, therefore, be tested against the Constitution like any other law. The evolving characteristic of customary law means that its rules change in an unregulated manner with new rules emerging and old norms ceasing to be observed. The changes may be gradual, rapid or instant, depending on, for example, the pace of social, economic or political change in society. Shilubana provides an example of an instant change of a rule. As already alluded to, the Valoyi Royal Council changed the rule of male primogeniture in relation to succession to hosi by passing a resolution allowing a woman to succeed to the position of hosi to meet the constitutional principle of gender equality. The important point, therefore, seems to be that the practice must be shown to receive acceptance as a binding legal norm at the relevant point in time.46 However, the point in time at which a norm can be said to have emerged or lost its authority, as well as whether a norm has lost its authenticity in the process of its application, may be contested. COUNTER POINT Contestations over the content of living customary law The fact that living customary law is unwritten and has no single authority responsible for the definition of its content increases the potential for conflicts over its content. This problem is aggravated by the fact that customary law evolves in an unregulated manner. Although the Constitutional Court found it unnecessary to resolve the issue, it acknowledged in Alexkor the fact that courts may be confronted with conflicting views on what customary law on a subject provides. Indeed, there are cases in which this has happened.47 Another contestation over the content of customary law concerns the authenticity of the living customary law that the courts apply. There are two bases for this contestation. The first is the decision in Mabena v Letsoalo.48 One of the issues before the High Court was about the right of the mother of the bride to negotiate the lobolo and consent to the marriage of her daughter. The Court accepted the rule of customary law tendered by the respondent to the effect that the bride’s mother had the right in certain circumstances, such as in the absence of the father, to negotiate the lobolo and to consent to the marriage of her daughter. The Court held that there were two forms of customary law, official customary law and living 75

customary law. The Court had to recognise the principle of living, actually observed law as it would constitute a development in accordance with the spirit, purport and objects of the Bill of Rights.49 However, some commentators have argued that the customary law which this Court applied was not living customary law at all.50 Bennett argues that, if anything, the rule applied was the rule of the two self-interested women, in other words the respondent and her mother.51 He also argues that ‘it had virtually no evidence of a rule of living law’ and that the only reason the so-called living rule was accepted was because it ‘was consonant with the requirement of gender equality in s 9 of the Constitution’.52 Thus, the customary law the Court applied may be desirable from the point of view of constitutional rights. However, in terms of authenticity, it was not, according to the critics, a rule of living customary law in the sense in which we have defined this concept. The second basis of the contestation under consideration is that living customary law is transformed on entering the judicial process. Woodman argues that as soon as a rule of living customary law enters the judicial process, it is transformed into state law or official customary law.53 This is so because of the various factors at play when a court is determining a matter under customary law. An example is the quest for legal certainty in the outcome of the dispute and the training of judges in the common law tradition with its affinity for the doctrine of precedent. In this respect, Woodman concludes that: It is erroneous to regret or criticise the divergence between sociologists’ customary law [or in our terms living customary law] and lawyers’ customary law [in our terms official customary law], if this is to imply that it would be possible for lawyers’ customary law to have the same content as sociologists’ customary law … It is not possible for state courts to incorporate, adopt, apply, enforce, administer, observe, absorb, receive or have transferred to them sociologists’ customary law …. Perhaps state law may ‘cannibalize’ sociologists’ customary law …, but not if that means the consumption of like by like: accuracy would be increased, although the shock effect reduced, if we spoke instead of ‘devouring’.54

76

If the foregoing were applied to South Africa, it would be impossible for courts ‘to incorporate, adopt, apply, enforce, administer, … [or] absorb’ living customary law even if they had efficient ways of ascertaining this law. If anything, the law emerging from the courts would have ‘devoured’ living customary law. In other words, any attempt to admit living customary law in the superior courts would so completely transform it that it would be unrecognisable and non-existent as a body of living law. This, in turn, means that even if courts perceive themselves to be applying living customary law, they are, in fact, not doing this. They are instead transforming living customary law into something else, into what we may call state living customary law. Both the arguments that the Court in Mabena v Letsoalo did not apply living customary law and that living customary law is transformed on entering the judicial process have two important implications for the conceptualisation of customary law: •First, a living customary law norm retains its meaning as we have defined it in this chapter only for as long as it has not been applied by a court. The moment it becomes the subject of litigation and decision by the court, it loses its meaning either because the court does not correctly identify the living norm or because the court transforms the living norm in the process of applying it. Instead, it becomes state living customary law. •The second implication is that both state living customary law and official customary law are official forms of customary law, albeit different in terms of their perceived sources, and that they are both conceptually different from living customary law as we have defined it. We submit that these issues require further discussion beyond this chapter. 2.2.3 Official customary law From section 2.2.2 above, it is clear that living customary law has to be distinguished from official customary law. Official customary law is the law applied by the courts and other state institutions. Typically, sources of official customary law are codes of customary law55 and other legislation,56 court precedents and textbooks. This system of law rarely represents the customary law of the people whose customary law it purports to be. Through a combination of factors that contributed to the formation of official customary law discussed fully in chapters 1 and 4 of this book, the people’s oral and flexible body of customary law was transformed into a written, rule-oriented 77

and rigid version of customary law in the form of official customary law. This ossification of living customary law has continued to be a typical feature of official customary law in the legal system today.

COUNTER POINT Continued application of official customary law and issues of legal certainty Despite the differences between official customary law and living customary law and the fact that official customary law generally fails to represent the customary law of the people, it continues to exist side by side with living customary law. In its transitional arrangement provisions, the Constitution provides that ‘all law that was in force when the new Constitution took effect, continues in force, subject to (a) any amendment or repeal; and (b) consistency with the new Constitution’.57 If we take the view that what the Constitution has recognised is living customary law as opposed to official customary law,58 then all official customary law in whatever form is inconsistent with the Constitution and should not be applied. Nor should it be developed in accordance with section 39(2) for this would prolong the application of an illegitimate system of law beyond its life contrary to the transitional arrangements of the Constitution. Gumede v President of the Republic of South Africa59 is implicit authority for the legal proposition that the courts cannot develop official customary law in the form of legislation. The Constitutional Court held in relation to the Kwazulu and Natal Codes (the codified version of customary law) that while a competent court may develop customary law, ‘its power in relation to legislation is not to develop the legislation but to interpret it in a manner that promotes the objects of the Constitution or to hold, where appropriate, that it is inconsistent with the Constitution and for that reason invalid’.60 However, the courts continue to apply this system of official customary law. An explanation for this is the dearth of empirical evidence of living customary law. The courts are left with no option but to apply the only customary law readily available to them – official customary law. The Constitutional Court, for example, highlighted this problem in Bhe in the following statement:

78

The difficulty lies not so much in the acceptance of the notion of ‘living’ customary law, as distinct from official customary law, but in determining its content … and testing it, as the court should, against the provisions of the Bill of Rights.61 This problem has led to the suggestion that official customary law is applicable in appropriate cases. For example, the South African Law Commission (SALC) stated: [M]uch of the ‘official’ version will persist for the simple reason that we have no other, more reliable account of customary law. It is true that litigants are not bound by rules from this source. They are free to allege a better version by calling proof of a new or more authentic custom. But, if a party doing so does not meet the standards required for proving custom then the ‘official’ version will prevail for want of better evidence.62 Furthermore, alluding to the expense of necessary research, the SALC stated: It is unfortunately not possible as many people have requested to mount a nationwide survey in order to establish which customs are still observed and which serve the interests of the African community. The time and resources are not available to engage in such an immense research project. Even if it were possible, the legal status of the findings would be bound to be controversial, and, no matter how sensitively done, any such statement of law is soon overtaken by changes in social conditions.63 Apart from the issue of the transformation of living customary law noted in the previous section, we submit that if the constitutional argument above is taken seriously, there is no basis for the continued application of official customary law. Moreover, living customary law is certain in its own right in the sense that its principles do not change from one day to another or from one year to another to require frequent massive research to identify and document it. Scholars should therefore be encouraged to research this system of law and provide courts with empirical evidence of its norms. In the meantime, the courts should be required to ascertain living customary law through evidence where it cannot otherwise be 79

readily ascertained.64 The application of correct customary law is as much of a demand for justice as any other. The application of official customary law is also closely connected to the demands of legal certainty. Official customary law is written down. It therefore enables courts to apply it uniformly and with certainty. This issue of legal certainty arose in Bhe where the Court declined to develop customary law in terms of section 39(2) of the Constitution on a case-by-case basis. It reasoned that adopting this approach would result in the slow development of customary law. Regarding certainty the Court stated: ‘The problem with the development by the courts on a case-by-case basis is that ... uncertainties regarding the real rules of customary law will be prolonged and there may well be different solutions to similar problems.’65 We submit that if the Court’s rejection of this approach is meant to be of general application, it would be problematic. In our view, a case-by-case approach is conducive to the development of an inherently flexible or ‘negotiated’66 system of law. 2.3Mixed customary law Terminology ukungena ‘a union with a widow undertaken on behalf of her deceased husband by his full or half-brother or other paternal male relative for the purpose (i) in the event of her having no male issue by the deceased husband of raising an heir to inherit the property or property rights attaching to the house of such a widow or (ii) in the event of her having such male issue of increasing the nominal offspring of the deceased’67 A chapter on the nature of customary law would be incomplete without mentioning the new type of ‘customary law’ resulting from the reform of the customary law of marriage and succession in 1998 and 2009 respectively. These reforms are aimed at aligning customary law with the Bill of Rights. The reform of the customary law of marriage by the RCMA incorporated a considerable amount of family law from both the Marriage Act68 and the Matrimonial Property Act (MPA)69 regulating civil marriages. The same is true of the RCLSA which has incorporated, with modification, the Intestate Succession Act.70 At the same time, customary law concepts of marriage and succession such as, for example, polygamy, lobolo, 80

woman-to-woman marriages and ukungena unions, have been retained as part of the new laws. The result is that these new laws comprise a mix of customary law and common law of marriage and succession respectively. These mixed laws clearly constitute a new hybrid form of customary law.71 2.4 Reconciling customary law with fundamental human rights Terminology ukuthwala

traditionally, ‘a mock abduction of an unmarried woman [with or without her consent] by a man who intends to marry her … resorted to primarily where there is some obstacle to a marriage, for example when the girl’s father unreasonably withholds consent to the marriage of his daughter’.72

The application of the Bill of Rights to private relations, which section 8(2) of the Constitution fosters, immediately directs our mind to areas of potential conflict between customary law and the Bill of Rights as well as the importance of the distinction between living customary law and official customary law in this respect. The most affected area is that of family relationships due to the patriarchal norms that commonly govern these relationships. In addition, conflicts or potential conflicts between customary law and fundamental human rights in this area may easily extend to other areas such as land and traditional leadership. The fundamental human rights to equality, non-discrimination and dignity are particularly implicated in these conflicts. Subsequent chapters in this book deal with some of these conflicts in more detail. We mention just a few examples here. Section 9(1) of the Constitution guarantees equality of treatment before the law. It states that ‘[e]veryone is equal before the law and has the right to equal protection and benefit of the law’. Section 9(3) and (4) spells out instances where unfair discrimination is prohibited. Section 10 provides that ‘everyone has inherent dignity and the right to have their dignity respected and protected’. Examples of customary law that are often cited as practices that may be found to conflict with one or more of these

rights

include lobolo,

polygamy, ukuthwala, the

principle

of

male

primogeniture and succession to traditional status or office. The courts have dealt with some of these issues. For example, in Bhe, the Constitutional Court invalidated the principle of male primogeniture on the ground 81

that it discriminated against women with regard to inheritance. In Shilubana, the Court endorsed a rule of customary law in the form of a royal resolution which allowed a woman to succeed to the position of hosi as this rule promoted gender equality. The Court thereby implicitly prohibited any principle of succession that countenances discrimination. Furthermore, section 39(2) of the Constitution provides an important mechanism for dealing with customary law conflicts with the Bill of Rights. This section enjoins the courts to ‘promote the spirit, purport and objects of the Bill of Rights’. PAUSE FOR REFLECTION Views on how to reconcile customary law with the Constitution Scholars have debated the issue of how to deal with conflicts or potential conflicts between customary law and fundamental human rights in the Constitution. Four views are worthy of note: 1. Since customary law is recognised subject to the Bill of Rights, fundamental human

rights

should

trump

customary

law

which

conflicts

with

these rights.73 However, it is arguable that this is too simplistic a view given the fact, for example, that the same Bill of Rights provides that when interpreting customary law, the courts must develop it in accordance with the spirit, purport and objects of the Bill of Rights. This suggests that the courts are expected to do more than simply consider the Bill of Rights to trump customary rules that are incompatible with it. Therefore, any conflict between customary law and fundamental rights must be resolved by some nuanced balancing process. 2. When reconciling customary law and fundamental human rights, it is necessary to draw a distinction between the substance of customary values and the form of their expression.74 This view advocates for the retention of substantive good values concerned with the subject of customary law under discussion minus their undesirable aspects. 3. It is wrong to think of fundamental human rights and culture (or customary law), especially in the field of women’s rights, as oppositional. Instead, living customary law offers women space in which to access their rights and entitlements to resources within their traditional institutions.75 Thus, it has been argued that ‘[i]n the context of overlapping international instruments, state law, informal local law 82

and customary regimes, people tend to ‘mix and match’, drawing on whichever authority,

law

or

‘right’

best

advances

their

specific

interests

in

those instances’.76 This view enables women to contend for their rights in various enclaves of the legal system, including customary law which is more accessible to them. Furthermore, this view suggests that customary law is not always the villain of women’s rights that it is usually projected to be.77 4. The application or implementation of living customary law rather than official customary law may provide a better possibility of reconciling customary law and fundamental human rights. This is because of the flexible and adaptive nature of living customary law. Official customary law is considered to be oppressive, for example, of women.78 In other words, it is necessary when dealing with issues of conflict between customary law and human rights to distinguish between official customary law and living customary law. By its nature, living customary law, unlike official customary law, is flexible and adapts to changing conditions, including, it is argued, those pertaining to human rights. In fact, we should remember that the principle of male primogeniture that was invalidated in Bhe was a rule of official customary law and not living customary law.79 As already stated, this is not to say that all living customary law is compatible with the Constitution. Where this law is found to be incompatible, it must be developed in accordance with section 39(2) of the Constitution to bring it in line with the Bill of Rights. In our view, the nuanced, balancing approach to reconciling customary law and fundamental rights mentioned in point 1 and the views discussed under points 2–4 are preferable. This is because they are reconcilable with the constitutional recognition of customary law.80 From these and other cases, such as Mabena v Letsoalo, Hlophe v Mahalela, Gumede

v

v Nkombombini,

President 81

of

and Mayelane

the

Republic

v Ngwenyama,

of 82

it

South is

clear

Africa, that

Mahala while

the

Constitution recognises customary law, courts do not hesitate to invalidate rules of customary law that violate constitutional rights. At the same time, these cases, as well as the debates reflected in the Pause for Reflection discussion, show that the task of reconciling customary law with the Constitution is not easy.

83

THIS CHAPTER IN ESSENCE •The history of colonialism and apartheid in South Africa is essential to the understanding of the concept of customary law in post-colonial and post-apartheid South Africa. This chapter must, therefore, be read with chapter 1 of this book. •The concept of customary law consists of two basic forms of law: living customary law which is the unwritten, non-state law representing the customary practices of the people who are subject to customary law official customary law which is the law applied by the courts and other state institutions. •A third form of customary law, consisting of a variation of living customary law, seems to be emerging. This is what we have termed state living customary law, a form of living customary law that has been transformed into official customary law on entering the judicial process. In the definition of customary law, we have recognised the need for further debate beyond the scope of this chapter. •A fourth form of customary law, a hybrid of customary law and common law, is also the creature of the state in the context of law reform aimed at aligning customary law with the Bill of Rights in the Constitution. This form is represented by the RCMA and the RCLSA. •Living customary law is distinguished from the common law concept of custom. Living customary law consists of current practices that have binding authority and that adapt to changing conditions. The common law concept of custom is a source of law under common law that must satisfy the following criteria: the custom must be long established, reasonable, uniformly observed and certain. •South African courts recognise the dichotomy between living customary law and official customary law although they acknowledge the difficulty of ascertaining the living form. As a result, the courts usually apply official customary law which is more readily ascertainable. The courts have also recognised the flexible nature of living customary law and the ossified or rigid nature of official customary law. We have expressed the view that research is essential to support the process of the application of living customary law by the courts while they should be encouraged to ascertain living customary law and to apply it.

84

•The reconciliation of customary law with constitutional rights is an important undertaking that the courts have already begun to encounter, but debates among scholars show the difficult nature of this task. •In the determination of issues of conflicts between customary law and the Constitution, it is necessary to draw a distinction between living customary law and official customary law. As a flexible and adaptive system, living customary law is more likely to enhance the protection of human rights than official customary law. Where living customary law fails to offer protection to constitutional rights, it must be developed in terms of section 39(2) of the Bill of Rights.

1Bekker, JC and Rautenbach, C ‘Nature and sphere of application of African customary law in South Africa’ in Rautenbach, C, Bekker, JC and Goolam, NMI (2010) Introduction to Legal Pluralism 3rd ed 15–43 at 21. 2Luluaki, JY (1997) Customary marriage laws in the Commonwealth: A comparison between Papua New Guinea and Anglophonic Africa International Journal of Law, Policy and the Family 11(1):1–35 at 5 citing Ranger, TO ‘The invention of tradition in colonial Africa’ in Hobsbawn, EJ and Ranger, TO (eds) (1983) The Invention of Tradition 211–262. 3See also Luluaki (1997) 5–6. 4For a summary of relevant literature on this subject, see Luluaki (1997). 5Nhlapo, TR (1995) Cultural diversity, human rights and the family in contemporary Africa: Lessons from the South African constitutional debate International Journal of Law, Policy and the Family 9(2):208–25 at 217. 6(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) fn 51. 7Alexkor para 54. 8See Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 152. 9(CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 87. 101998 (2) SA 1068 (T). See further, Himonga, C ‘The future of living customary law in African legal systems in the twenty-first century and beyond with special

85

reference to South Africa’ in Fenrich, J, Galizzi, P and Higgins, TE (eds) (2011) The Future of African Customary Law31–57. 11Mabena v Letsoalo 1074. 12Act 120 of 1998 which came into operation on 15 November 2000. 13Act 11 of 2009 which came into operation on 20 September 2010. 14See s 1 of both Acts. 15Bhe para 152. 16Not all scholars use this term. 17Jobodwana, ZN (2000) Customary courts and human rights: Comparative African perspectives SA Public Law 15(1):26–49 at 30. 18Jobodwana (2000) 31. 19Bekker and Rautenbach (2010) 29. 20Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of Executive Law in Lesotho 14. 21Woodman, GR ‘Customary laws and customary legal rights: A comparative consideration of their nature and of the relationship between laws’ in Svensson, TG (ed) (1999) On Customary Law and the Saami Rights Process in Norway 3–29 at 5. 22Woodman (1999) 5. 23Woodman (1999) fn 21 at 2. 24Hund, J (1998) ‘Customary law is what people say it is’: H.L.A. Hart’s contribution to legal anthropology Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 84:420–433 at 426. 25Hund (1998) 427. 26Hund (1998) 427. 27Hund (1998) 427. 28Alexkor para 52. 29Hund (1998) 427, quoting Hart, HLA (1961) The Concept of Law 55–6. 30Hund (1998) 424, quoting Fuller, L (1969) Human interaction and the law American Journal of Jurisprudence 14(1):1–36 at 16. 31Woodman (1999) fn 21 at 2. 32Woodman (1999) fn 21 at 2. 33Hamnett (1975) 10. 34See generally Hund (1998) fn 24. 86

35See generally Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the context of living customary law South African Journal on Human Rights 25(3):491–516. 36Hamnett (1975) 13. 37Hamnett (1975) 13. 38(CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008). For a complete history of the case as presented in the various courts, see also Nwamitwa v Phillia 2005 (3) SA 536 (T) and Shilubana v Nwamitwa 2007 (2) SA 432 (SCA). 391921 AD 330. 40Shilubana para 54. For an insightful criticism of this aspect of the decision, see Mnisi, S (2010) The Interface Between Living Customary Law(s) of Succession and South African State Law PhD thesis University of Oxford 175–79. 41Shilubana para 54. 42(CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 197. 43Bhe para 153. 44Alexkor para 53. 45Alexkor para 53. 46See Jobodwana (2000) 31. 47See, for example, Hlophe v Mahlalela 1998 (1) SA 449 (T) in which conflicting evidence was tendered by witnesses on either side of the dispute. See Himonga, C and Bosch, C (2000) The application of African customary law under

the

Constitution

of

South

Africa:

Problems

solved

or

just

beginning? South African Law Journal 117(2):306–41 at 338–9. 481998 (2) SA 1068 (T). 49Mabena v Letsoalo 1074H–1075C. 50See, for example, Bennett, TW (2009) Re-introducing African customary law to the South African legal system American Journal of Comparative Law 57(1):1–32. 51Bennett (2009) 18. 52Bennett (2009) 18. 53See Woodman, GR ‘How state courts create customary law in Ghana and Nigeria’ in Morse, BW and Woodman, GR (eds) (1988) Indigenous Law and the State 181–220. 87

54Woodman, GR ‘Customary law, state courts, and the notion of institutionalization of norms in Ghana and Nigeria’ in Allot, A and Woodman, GR (eds) (1985) People’s Law and State Law: The Bellagio Papers 156. 55For example, the Natal Code of Zulu Law Proc R151 of 1987 and the KwaZulu Act on the Code of Zulu Law 16 of 1985. 56For example, the now repealed Black Administration Act 38 of 1927. 57S 241 of the Constitution read with Schedule 6 s 2(1)(a) and (b). 58See Himonga and Bosch (2000) 330–1. 59(CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008). 60Gumede para 29. 61Bhe para 109. 62South African Law Commission (1997) Project 90 The Harmonisation of the Common Law and the Indigenous Law Discussion Paper 74 Customary Marriages 15. 63SALC (1997) Discussion Paper 74 Customary Marriages 15. 64See s 1(2) of the Law of Evidence Amendment Act 45 of 1988. 65Bhe para 112. 66See Mnisi (2010) 380, 388, 393–94. 67S 1(1) of the KwaZulu Act on the Code of Zulu Law and of the Natal Code of Zulu Law. The custom is said to be prevalent among amaMpondo, amaHlangwini, amaBhaca, amaXesibe and amaZulu, but not among amaXhosa and abaThembu. See Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law 38. 68Act 25 of 1961. 69Act 88 of 1984. 70Act 81 of 1987. 71For a detailed discussion of these mixed laws, see chs 6–9 of this book. 72Mofokeng

(2009)

57:

If

the

woman

is

abducted

without

her

consent, ukuthwala ceases to be a delict and is punishable as a criminal offence against the man who abducted the woman. This topic is discussed further in ch 11 of this book.

88

73See, for example, Kaganas, F and Murray, C (1994) The contest between culture and gender equality under South Africa’s interim Constitution Journal of Law and Society 21(4):409–33. 74See, for example, Nhlapo, TR (1991) The African family and women’s rights: Friends or foes? Acta Juridica 135:135–46. 75See, for example, Claassens and Mnisi (2009) 491–516. 76Claassens and Mnisi (2009) 497 citing Nyamu Musembi, C ‘Are local norms and practices fences or pathways? The example of women’s property rights’ in AnNa‘im, AA (ed) (2002) Cultural Transformation and Human Rights in Africa 126–50. See also Himonga, C (2010) State and individual perspectives of a mixed legal system in southern African contexts with special reference to personal law Tulane European and Civil Law Forum 25:23–36. 77See also Himonga, C ‘Constitutional rights of women under customary law in southern Africa: Dominant interventions and “old pathways”’ in Baines, B, Barak-Erez, D and Kahana, T (eds) (2012) Feminist Constitutionalism: Global Perspectives 317–35. 78See, for example, Himonga, C (2005) The advancement of African women’s rights in the first decade of democracy in South Africa: The reform of the customary law of marriage and succession Acta Juridica 82–107. 79On the differences between living customary law and official customary law of succession, see Mnisi (2010) 133–46. 80See particularly ch 1 of this book. 812006 (5) SA 524 (SE), in which the Court refused to effect the principle of male primogeniture in the context of a burial claim in favour of the deceased’s alleged wife on the ground, inter alia, that the rule violated the constitutional rights to dignity and equality. 82(CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013).

89

Chapter 3 Legal pluralism 3.1 Introduction 3.2 Dominant jurisprudential theories of law in South Africa 3.2.1Positivism and the rule of recognition 3.2.2Positivism and the rule of law 3.2.3Legal centralism 3.3 Socio-legal theories of law 3.3.1 Living law and law as a competitive social field 3.3.2 Legal pluralism 3.3.2.1 Weak legal pluralism 3.3.2.2 Deep legal pluralism This chapter in essence 3.1 Introduction This brief chapter provides a basic introduction to the concept of legal pluralism as a socio-legal theory and compares its elements to those of some conventional jurisprudential theories of law. It explains the difference between weak and strong legal pluralism, particularly as they manifest in the South African context. These theories do not only situate customary law in legal theory but also open a window to theories of law that are necessary for the understanding and study of law in modern society generally. PAUSE FOR REFLECTION What are the differences between jurisprudential and socio-legal theories of law? Jurisprudential theories of law tend to focus on legal sources, institutions and officials – what can be summarised as the logical coherence of a system – as determinants of what ‘is’ law. They can also be philosophical in their concern with what ‘ought’ to be law. According to Roth and Wittich, jurisprudential theories of law are

marked

by

‘taking

for

granted

the

empirical

validity

of

the 90

legal propositions’.1 They are therefore sometimes critiqued as not being highly descriptive but rather more abstract or hypothetical. By contrast, socio-legal theories of law tend to be more sociological in their orientation and thus focus on what ordinary people do as both adherents and nonadherents of the law. In other words, they tend to view ‘legal order’ in relation to social forces. They often use the terminology of seeking to understand ‘law in practice’ as opposed to ‘law in the books’. Socio-legal theories are sometimes perceived to be overly relativist (lacking in universal standards) because they often do not recognise state law as sacred simply because of its form and because they allow that other norms may be of equal value. Legal pluralism is a socio-legal theory. We will also discuss legal positivism and state centralism as the main jurisprudential theories of law in terms of which the South African legal system operates. 3.2 Dominant jurisprudential theories of law in South Africa The main jurisprudential theories of law in South Africa are legal positivism and state centralism. We discuss the principles of these theories and how they apply in South Africa below. 3.2.1 Positivism and the rule of recognition Terminology legal

a jurisprudential theory of law that is based on the idea that law can be found in

positivism

tangible sources that we can verify scientifically or logically, and rejects morality or ethics as a source of law

Legal positivism is based on the idea that law can be found in tangible sources, such as legislation and court precedents, that we can verify scientifically or logically. Legal positivism therefore rejects morality or ethics, per se, as a source of law.2 According to Hart who wrote the seminal text on legal positivism, The Concept of Law,3 this theory says, first, that the pedigree of rules, that is, their source, determines their status as law.4 This is known as the sources thesis. Second, the validity of rules in terms of the officially accepted rule of recognition, rather than

91

social acceptance, is what makes them laws instead of mere rules or norms or mere convergence of behaviour. In South Africa, it is the fact that laws have been enacted by the legislature or articulated by the courts thus establishing precedent, in line with the Constitution, that makes them laws. This is so regardless of whether the public accepts the rules themselves or the rule of recognition. It is ‘enough that the people generally obey’.5 Simply understood, according to MacCormick, the rules do not require personal endorsement by members of society. Nor do the system’s officials need to obtain social consensus on the rules as long as the officials manage to adhere to and maintain the system. The rules of the legal system and the general moral standards of the community can therefore be clearly differentiated.6 PAUSE FOR REFLECTION Is there room in legal positivism for customary law? Hart’s conception of the law allows for the potential inclusivity of a rule of recognition and permits that a master rule may provide for the inclusion of custom.7 Yet, when Hart later refers to this possibility and contemplates the transition of primitive societies to societies with law, he envisions that this inclusion of custom will take place by means of their either developing a rule of recognition or their customs being subject to an already existing master rule. In either case, custom is brought into order by the logical framework of positive law represented by the sources thesis. This means that, save for such a founding positive law, customary law cannot be law. This is consistent with the situation in the South African legal system. Customary law is a legitimate form of law from a formal point of view because of its recognition in the Constitution which is the rule of recognition. In fact, the Constitution specifically states that customary law must conform to the Constitution and legislation dealing with it for it to be legally applicable. However, Hart’s concession does not address the situation where no rule of recognition formally exists to legitimise customary law’s place in the law and where customary law continues to regulate people’s lives authoritatively. This was, indeed, the case in South Africa before the Constitution gave customary law full recognition.

92

3.2.2 Positivism and the rule of law Terminology rule of

the principle that the law is supreme in a legal order and that no state action is legitimate

law

unless provided for by validly adopted law prior to the state taking the action A founding principle in the Constitution is the rule of law.8 This is the principle that the law is supreme in our legal order and no state action is legitimate unless provided for by validly adopted law prior to the state taking the action. In short, the rule of law requires: 

•the separation of powers between the three arms of state (executive, legislative and judicial) with the courts having the right of review9



•equality before the law



•the right to a fair hearing accompanied by the assumption of innocence until a person is proven guilty



•legality.

According to the Constitutional Court, legality is a key component of the rule of law.10 Legality refers to the lawfulness – that is, the non-arbitrariness – of state action. It points to legal formality that comports with the positivist notions of the rule of recognition and the sources thesis. It requires that laws be clear; certain, precise, specific; consistently applicable; prospectively determined, predictable, foreseeable; and publicly available, ascertainable, accessible.11 PAUSE FOR REFLECTION Applying legality to customary law If the requirements for legality set out above were applied to customary law, much of it would not comply. This is because much of customary law – particularly living customary law – is law (in other words has normative purchase) by virtue of its local acceptance rather than its being valid in terms of the Constitution, legislation or precedent. In fact, much of living customary law has not been tested against the Constitution. Moreover, because it is typically not written down, we often cannot establish living customary law by or determine it from a source that is independent of 93

the moral code or behavioural patterns of its adherents. Furthermore, we can rarely determine living customary law with certainty in advance of the dispute in which we want to apply it. This also relates to the flexibility and contextual malleability of this form of law. As a result of this flexibility, the rules may not seem clear or certain to the onlooker although they are often clear enough to the members of the relevant group to whom the laws apply. It is also worthy of note that despite the above definition of the rule of law, living customary law has been recognised as a source of law through Constitutional Court decisions in several cases.12 3.2.3 Legal centralism According to Griffiths, legal centralism claims that ‘law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions’.13 In this theory, the state is therefore the focus as the only source of legitimising authority in what is true law. This theory also sees the state as having a monopoly over the creation and administration of law because of the assumption that state institutions are logically coherent and mostly operate in a manner strictly conforming to equality and neutrality. COUNTER POINT Where does customary law fit in? According to legal centralism, customary law does not qualify as law except where the state has elected to make it such and integrate it into its own law. In this instance, until the recognition of living customary law by the Constitution, only official customary law was properly called law. It is, furthermore, necessary to take note of criticisms of jurisprudential theories of law. COUNTER POINT Critiques of jurisprudential theories

94

One of the critiques of jurisprudential theories is that they tend to universalise Western law and to assume its superiority over other normative systems. The theories therefore overlook the contextual nature of the law, as well as its development and need to fit in with the society that it is to serve at any one time. 3.3 Socio-legal theories of law 3.3.1 Living law and law as a competitive social field There are many socio-legal theories. Some are associated with influential theorists such as Max Weber, Emile Durkheim, Michel Foucault, Jurgen Habermas and Niklas Luhmann to name a few. Others are affiliated with schools of thought such as Feminism, Postmodernism, (neo-)Marxism and critical race theory. One theory worth mentioning briefly is the notion of ‘living law’ coined by Ehrlich. He writes about the common law in the eighteenth century in the same terms which we may use to describe living customary law in South Africa today. Ehrlich theorises that positive legal propositions cannot capture all of the common law. This is especially so because as soon as the living or common law is codified, people’s practice

of

it

continues

to

evolve

and

it

thus

again

varies

from

the

written law.14 Ehrlich argues that our view of the law must thus refer to sources beyond statutes and precedents. In fact, people engaged in ascertaining the law must look to what institutional law has ignored or censured, and which we can determine by ‘direct observation of life’.15 Another theory worth mentioning is that of law as a competitive social field. This theory, developed by Bourdieu, describes ‘the juridical field’ as ‘the site of a competition for monopoly of the right to determine the law’.16 In other words, it demonstrates the tension between those who engage in the formal processes of creating and enforcing law, particularly in the courts, and ordinary citizens to whom the law is meant to apply. Ordinary citizens must try to use the law to their benefit despite not knowing what those on the inside of its institutions know.17 Bourdieu observes the ways in which the law is shrouded in a mystique that makes it seem independent, impartial, ordered and just. This makes it difficult for people with mere ‘naïve intuitions of fairness’ to challenge it.18 He also observes how this mystique enables powerful insiders to define the law and hence to make authoritative

95

judgments of the social world – often even dictating social values and how people perceive themselves – based on the law.19 Viewing the law in terms of this theory demonstrates the tremendous significance of the question whether customary law is or is not‘law’ in an institutionalised sense. The reason for this is that if customary law is not law, it (and its often poor observers) is relegated to the realm of ‘naïve intuitions of fairness’. Customary law then holds little sway over a form of law (mostly dominated by the powerful) that defines much of how we perceive goodness and justice. 3.3.2 Legal pluralism Initially established in response to legal centralism, legal pluralism seeks to decentralise state law and draw attention to and understand the multiple legal systems that exist officially and unofficially within a single legal order. Griffiths explains the notion of legal pluralism as follows: ‘Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion.’20 Legal pluralism is associated with ‘a multicultural society in which various legal systems

are

observed

[….].

It

exists

as

a

result

of

the

prevailing

cultural pluralism.’21 Thus, in any one given country, customary legal systems may coexist with common and religious systems of law such as Hindu law, Islamic law and Jewish law. Other authors have described legal pluralism as ‘the condition in which a population observes more than one body of law.’22 Thus, descriptively, legal pluralism refers to two or more legal systems or normative orders that may or may not be recognised as strictly legal systems but that nevertheless coexist.23 The key is that they should have sufficient authority to direct people’s behaviour and make them feel that they ‘ought to do something’ in accordance with established norms whether explicit or not. The literature identifies two prominent concepts of legal pluralism. These are weak legal pluralism and strong legal pluralism. We discuss these concepts in turn below. 3.3.2.1 Weak legal pluralism State legal pluralism is the weak form of legal pluralism. It refers to the recognition and regulation by the state of a plurality of legal orders or systems. Hence, it sees the plurality as being internal to a unitary state system. Non-state systems are therefore not ‘law’ even if they are normative in terms of their practical effect. This 96

form of legal pluralism does little to disturb state centralism because it still centralises the role of the state in legitimising law. In South Africa, state legal pluralism is said to consist of a Western component comprising the common law, legislation and judicial precedent on the one hand, and an African component comprising customary law and religious forms of law on the other. According to van Niekerk, this ‘developed within the framework of the RomanDutch/English common law.’24 The African component is further broken down into official customary law in the form of legislation or pronounced in judicial decisions. It also includes ‘a body of substantive customary law which has not been explicitly included in legislation or confirmed by the courts.’25 Furthermore, according to van Niekerk, in terms of section 211(3) of the Constitution and section 1(1) of the Law of Evidence Amendment Act,26 this body of substantive law ‘would include all customary law which is readily ascertainable with sufficient certainty (in authoritative texts), not opposed to the Western perceptions of natural justice and public policy and not in conflict with the Constitution. Its application is subject to legislation which deals with customary law.’27 The interesting question is what is the status of living customary law in the context of legal pluralism? COUNTER POINT Is living customary law part of state legal pluralism or not? Interestingly, Van Niekerk does not seem to include living customary law in her conception of state legal pluralism. It is arguable that in one sense she is correct because although this system of law is a formal source of South African law, it does not originate from the state, but from the people whose customary law is under consideration.28 In another sense, she is wrong to omit living customary law from state legal pluralism because this system of law owes its recognition as part of South African official law to the state through the pronouncements of the Constitutional Court.29 A discussion of state legal pluralism in South Africa would be incomplete without mentioning two issues. The first issue concerns the management of state legal pluralism. This answers the question of how the determination is made concerning which of the various components of the state’s normative system is to be applied in 97

any single case. The relevant mechanism is the use of conflict of law rules. These rules determine whether customary or common law applies to specific circumstances or a specific case before the court.30 The second issue is the role of the repugnancy clause in the recognition of customary law. Van Niekerk seems to attach importance to the repugnancy clause in the recognition of customary law as part of state legal pluralism. However, it must be observed that assigning this role to the repugnancy clause is questionable31 in the light of the Constitution as the ultimate test for recognition of the validity of the laws comprising the South African legal system.32 3.3.2.2 Deep legal pluralism Deep legal pluralism is the strong form of legal pluralism as it recognises that multiple normative orders may coexist even without belonging to a single, unified state system or emanating from the same source of authority.33 Therefore, it grants that competing and/or contradictory norms may exist and exert some authority on people’s social lives. In fact, it often occurs that the state plays a subordinate role to the regulation exercised by an informal authority. This form of legal pluralism is critical of legal centralism as it challenges the idea that the state is at all involved in the making of normatively authoritative rules. Falk Moore, an anthropologist, coined the term ‘semi-autonomous social fields’ to describe a strong legal pluralism as she saw it in an empirical study.34 In her description, state and sectoral norms both have an influence on the way in which individuals regulate their conduct – there are other agencies and modes of inducing compliance. She emphasises law-in-society as opposed to law-and-society. Malinowski, the father of modern-day legal anthropology, argues that to understand law-in-society, we must not artificially isolate law as the element of study: An ethnographer who sets out to study only religion, or only technology, or only social organization cuts out an artificial field for inquiry, and he will be seriously handicapped in his work.35 Malinowski says that we should rather ‘analyse all the rules conceived and acted upon as binding obligations, to find out the nature of the binding forces, and to classify the rules according to the manner in which they are made valid’.36 Many legal pluralists have returned to this methodology in their scholarship. Falk Moore, 98

likewise, augments the approach by saying that ‘the small field observable [should be] studied in terms of its semi-autonomy – the fact that it can generate rules and customs and symbols internally, but that it is also vulnerable to rules and decisions and other forces emanating from the larger world by which it is surrounded’.37 In brief, in a legal order such as that in South Africa, there are multiple sources of normative authority apart from the state. The Constitution recognises many sources of

law:

common

law,

customary

law,

religion/belief,

legislation

and

international law.38 It also provides for the development of norms by the communities that seek to perpetuate themselves as identity-based groups.39 It provides legislative support to enable the creation and observance of constitutionally compliant ‘alternative’ laws.40 It would seem that the Constitution adopts a mostly positivist approach, setting itself up as the rule of recognition and the main sources of law as legislation and precedent.41 However, in keeping with weak legal pluralism, it clearly recognises alternative sources of law on condition that they conform to the state’s sources of law.42 Hence, even living customary law is a legitimately recognised form of law.43 Likewise, the Constitutional Court has repeatedly observed the dissonance, originally described by Ehrlich, between the living law and the law-in-the-books.44 Nevertheless, while weak legal pluralism is the formal rule, the empirical reality is more akin to strong legal pluralism. In other words, the state’s laws are just another source of law among a plethora of semi-autonomous socio-legal fields that exert some normative authority on each individual. Thus, sometimes people act in a manner according to the pressure exerted by state law while at other times the social and coercive pressure exerted by non-state authorities is greater. Some of the following chapters in this book will therefore juxtapose these different forms of law, namely state law and living customary law, and the tensions that exist between them in practice. THIS CHAPTER IN ESSENCE •There are both jurisprudential and socio-legal theories of law that provide a valuable theoretical basis for understanding customary law both as a concept of law and as a source of South African law. Jurisprudential theories of law tend to prioritise legal sources, institutions and officials as determinants of what ‘is’ law. By 99

contrast, socio-legal theories tend to view ‘legal order’ in relation to social forces and therefore focus on what ordinary people do as both adherents and nonadherents of law. •The main jurisprudential theories of law in South Africa are legal positivism and state centralism. Legal positivism is premised on the idea that law can be discerned from observable and quantifiable phenomena and can therefore be determined from tangible sources that can be verified scientifically or logically. Centralism requires that for laws to be regarded as legitimate, the state through its machinery makes, recognises or enforces laws uniformly. •In South Africa, it is the fact that laws have been enacted by the legislature or articulated by the courts thus establishing precedent, in line with the Constitution, that makes them laws. This is so regardless of whether the public accepts the rules themselves or the rule of recognition. Furthermore, customary law is a legitimate form of law from a formal point of view only due to its recognition in the Constitution (the rule of recognition). This is an expression of both positivism and centralism. •A clear expression of this positivism in South African law is seen in the fact that the rule of law, and legality as a key part thereof, is the founding principle in our law. The challenge this presents is that when these requirements are applied to customary law, much of customary law (particularly the living version) would not comply and would therefore not be considered to be law. •Among the critiques of jurisprudential theories is that they tend to universalise Western law and assume an evolutionary tone of Western substitution. •There are many socio-legal theories of law. One worth noting is the notion of ‘living law’ coined by Ehrlich. He writes about the common law in the eighteenth century in the same terms which we may use to describe living customary law in South Africa today. Ehrlich theorises that positive legal propositions cannot capture all of the common law. This is especially so because as soon as the living or common law is codified, people’s practice of it continues to evolve and it thus again varies from the written law. Another theory to note is that developed by Bourdieu of law as a competitive social field: it demonstrates the tension between those who engage in the formal processes of creating and enforcing law, particularly in the courts, and ordinary citizens to whom the law is meant to apply. This highlights the practical significance of recognising customary law as ‘law’ or not. 100

•The key socio-legal theory of law to note is legal pluralism which refers to two or more legal systems or normative orders that may or may not be recognised as legal systems and that coexist and compete for definitive power over the subjects’ lives and influence each other in the process. •State legal pluralism is the weak form of legal pluralism, referring to the recognition and regulation by the state of a plurality of legal systems. Deep legal pluralism is the strong form of legal pluralism as it recognises that multiple normative orders may coexist even without belonging to a single, unified state system or emanating from the same source of authority. •‘Semi-autonomous social fields’ is the term coined by Falk Moore to describe strong legal pluralism in terms of ‘the fact that [a semi-autonomous social field] can generate rules and customs and symbols internally, but that it is also vulnerable to rules and decisions and other forces emanating from the larger world by which it is surrounded’.

1Roth, G and Wittich, C (eds) (1978) Economy and Society: An Outline of Interpretive Sociology 311. 2Cowan, JK, Dembour, MB and Wilson, RA (2001) Culture and Rights: Anthropological Perspectives 22 fn 7: ‘Legal positivism sees law as a “given”, made up of data – or rules – which can be recognized and analyzed according to certain observational tests.’ 3Hart, HLA (2012) The Concept of Law. 4Galligan, DJ (2007) Law in Modern Society 84–5. 5Galligan (2007) 85. 6MacCormick, N ‘Law, morality and positivism’ in MacCormick, N and Weinberger, O (1986) An

Institutional

Theory

of

Law:

New

Approaches

to

Legal

Positivism 128–9. 7Galligan (2007) 86–8. 8Ss 1(c) and 2 of the Constitution. 9In simple terms, the right of review of the courts gives the courts the power to review or scrutinise the exercise of power by public officials. The aim is to ensure that such exercise of power is rational or justifiable according to the purpose for which the power was conferred on the office concerned. For 101

example, if an employee of the government is given the power to appoint ambassadors to represent South Africa in foreign countries, the courts have the right to review the exercise of this power by the official concerned to ensure that he or she does not misuse the power for his or her personal benefit. 10Affordable Medicines Trust v Minister of Health (CCT27/04) [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) paras 48–9. 11Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000) paras 17, 19–20 and 50; Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October 1998) para 58. 12See Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004); Gumede v President of the Republic of South Africa (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008); Shilubana v Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008). For further discussion, see ch 2 of this book. 13Griffiths, J (1986) What is legal pluralism? Journal of Legal Pluralism and Unofficial Law 24:1–55 at 3. 14Ehrlich, E, Pound, R and Ziegert, KA (2002) Fundamental Principles of the Sociology of Law 488. 15Ehrlich et al (2002) 493–5, 504. 16Bourdieu, P (1987) The force of law: Toward a sociology of the juridical field Hastings Law Journal 38(5):805–53 at 817. 17Bourdieu (1987) 817, 820–1, 828–9, 831–2, 841–50. 18Bourdieu (1987) 817–8, 852. 19Bourdieu (1987) 816–8, 837–53. 20Griffiths (1986) 4. 21Van Niekerk, GJ ‘Legal pluralism’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism 3rd ed 3. 22Woodman, GR ‘The idea of legal pluralism’ in Duepret, B, Berger, M and AlZwaini, L (1999) Legal Pluralism in the Arab World 3. 23Van Niekerk (2010) 3. 102

24Van Niekerk (2010) 9. 25Van Niekerk (2010) 9. 26Act 45 of 1988. 27Van Niekerk (2010) 9–10. 28See ch 2 of this book. 29See, for example, Bhe, Gumede and Shilubana. 30But see Himonga, C (2010) State and individual perspectives of a mixed legal system in southern African contexts with special reference to personal law Tulane European and Civil Law Forum 25:23–36, where she shows that the perspective of the actors in respect of the management of legal pluralism is different from that of the state. See also ch 5 of this book. 31See, for example, Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4 March 2003). 32See s 2 of the Constitution which declares the Constitution to be the supreme law of the land. 33Van Niekerk (2010) 4, 11. 34Falk Moore, S (1973) Law and social change: The semi-autonomous social field as an appropriate subject of study Law and Society Review7(4):719–46. 35Malinowski, B (1926) Crime and Custom in Savage Society 12. 36Malinowski (1926) 23. 37Falk Moore (1973) 720. For a discussion of examples of what comprises deep legal pluralism in South Africa, see Van Niekerk (2010) 11–13. 38Ss 8, 9, 31, 39 and 211 of the Constitution. 39Ss 18 and 31 of the Constitution. 40Ss 15, 211, 212(1) and 235 of the Constitution. 41S 211(3) of the Constitution. 42S 211(3) of the Constitution. 43See Bhe, Gumede and Shilubana. 44See Bhe, Gumede and Shilubana.

103

Chapter 4 Ascertainment and proof of customary law 4.1 Introduction 4.2 The statutory framework for the ascertainment and proof of customary law in the courts 4.2.1The position before the Law of Evidence Amendment Act 45 of 1988 4.2.2The position under the LEAA 4.2.3The position under the Constitution 4.2.3.1The recognition role 4.2.3.2The application role 4.2.3.3The alignment role 4.2.3.4The ascertainment role 4.3 The problems associated with official customary law 4.4 The ascertainment of living customary law 4.5 New developments in the ascertainment process This chapter in essence 4.1Introduction Terminology inkundla or lekgotla

the customary law forum for the trial of cases and resolution of disputes

Ascertainment and proof of a legal rule refer to the manner in which that rule is identified as applicable to an issue in a judicial proceeding. The manner in which rules are ascertained differs from one legal tradition to another depending on whether we are concerned with an oral or a written tradition. On the one hand, the common law of South Africa is a written tradition in which specialised legal professionals ascertain legal rules from written sources. These professionals know the law from their training and accumulate experience in the practice of finding legal rules from written records.

104

On the other hand, the living customary legal system of South Africa is an oral tradition that survives in unwritten narratives. In its pristine condition, people applied it in its environment as part of their cultural upbringing and ascertained legal rules with reference to their own oral sources. Indigenous communities themselves, using their own expertise, theorised about, practised and administered customary law.1 In this environment, the customary normative value system applied within its own frame of reference in conformity with the African social habitat. Customary law’s qualities of flexibility and capacity for change as well as local particularity2 arose from the community’s participation in social interactions. As a result of customary law’s association with evolving social practice, it developed its qualities of flexibility and adaptability. Its relationship with participating communities gave customary law its local uniqueness by bearing the features of those communities. African customary law is a product of social discourse generated by indigenous communities in South Africa. This makes it different from other legal systems, such as Roman-Dutch law and English law, which are produced by institutions of civil authority.3Hence, cultural outsiders who were brought up in a system of law that excluded social participation in law making struggled to understand customary law. Social practice within the circle of the system’s adherents facilitated the ascertainability of customary law. People thus obtained their expertise in ascertaining the rules of customary law as a result of their upbringing in its cultural and social habitat. This is significant for the purposes of legal ascertainment in view of the fact that community participation meant that a litigant’s trial was conducted by his or her peers. Consequently, there was no cultural gap between the parties to the dispute and the court. There was also nothing that required the participants to prove the law or custom relied on in each and every case.4 Customary law is found in sources such as the language, rituals, history, folktales and story-telling as well as current issues that are prevalent in oral communications and the ‘media’. In the normal course of events, participants in the culture have natural access to these sources and have no difficulty in interpreting them. This is exemplified in the pre-colonial twin’s case discussed below. PAUSE FOR REFLECTION

105

Ascertainment of customary law in a traditional context: the twin’s case Mqhayi reveals how a sage centenarian, Khulile Majeke, a member of the community, used his vast experience to help the inkundla or lekgotlaof King Hintsa of the amaXhosa nation to ascertain the intricacies of the primogeniture rule in a rare succession

dispute

between twins.5 Khulile

Majeke

was

more

than

110

years old,6 having matured in the practices of the lore and customs of the community before whom he testified. In his narrative he referred to a precedent in which a succession dispute that preceded the accession of one of their ancient kings to the throne was resolved. The disputants were twin brothers who later decided to settle the matter through negotiation involving a mock sale in which the first-born twin traded his status for an agreed material item. The centenarian noted that the peers of the present twins also once attempted to resolve the dispute at hand by negotiation during their boyhood days when they cajoled the twins into a similar mock sale in which the last-born traded his material wealth for seniority. In his recommendations, Khulile Majeke endorsed the peers’ efforts to ascertain the primogeniture rule in the context of the qualities of competence and performance which played a more vital role in the selection process of the heir than the mere fact of being born first.7 However,

colonisation

changed

the

situation dramatically8 by

placing

the

administration of customary law in the hands of officials who were trained in the Western concept of law only. As these officials were not versed in the African tradition, they struggled to conceptualise customary law and the nuances of African culture. Consequently, the extracultural pedigree of their training prevented them from catching up with the ever-changing dynamics of customary law. The outsider status of lawyers, magistrates and judges imposed language and cultural limitations on them that inhibited their access to the oral sources of customary law. Their alienation was aggravated by the policy of racial segregation which prevented cultural and social integration. Hence, the colonial, Union and apartheid authorities imposed the common law legal tradition of relying on written records as a norm for customary law as well. To enforce the reliance on written records, section 1(1) of the Law of Evidence Amendment Act (LEAA) 9 prescribes that ‘[a]ny court may take judicial notice of … indigenous law in so far as such law can be ascertained readily and with sufficient certainty’ (own emphasis). 106

Consequently, statutes, precedents and textbooks that were unknown to an oral tradition became authoritative and ascertainable sources.10 As Dlamini puts it, ‘customary law … ceased to be indigenously developed’.11 In addition, codification brought about unforeseen consequences. Because the written sources were not part of the social practices of the indigenous communities, these sources soon revealed uncustomary characteristics. They tended to become fossilised in the books on library bookshelves. The ensuing rigidity exposed the written sources as questionable reflectors of the current social practices of the communities. In their outdated and distorted form, the written records of customary law became constant reminders that Africans had lost the opportunity to determine their own legal culture. All

these

shortcomings

apartheid authorities12 from

did

not

entrusting

discourage

the

Western-trained

colonial,

Union

practitioners

with

and the

administration of customary law. Yet this exacerbated the dependence on written records and generated the need to call for evidence to ascertain the law during judicial proceedings. This led the state to develop legislative and other means of solving the ensuing challenges. COUNTER POINT Adjudication officer: appointment of local community members African people knew customary law as part of their cultural upbringing and it was prevalent in the language of their social discourse. A better option for the colonial, Union and apartheid authorities than the appointment of Western-trained practitioners would have been to appoint judicial officers from the community of the adherents of customary law to apply their law. However, the need to ascertain and prove customary law arose from the fact that the administration of the courts was part of the colonial, Union and apartheid governments whose policies were based on African disenfranchisement. Africans could therefore not be appointed to judicial positions superior to the position of presiding officers at the chiefs’ courts that were instituted pursuant to the policy of indirect rule. Even under South African democracy, ethnicity is not a criterion for judicial appointment. All judicial officers and lawyers practising in the South African courts, regardless of their cultural background, are enjoined by section 211(3) of the 107

Constitution to apply customary law when it is applicable. It is therefore imperative for all lawyers to study customary law and its traditions in the same way in which they must acquaint themselves with the common law. 4.2 The statutory framework for the ascertainment and proof of customary law in the courts 4.2.1 The position before the Law of Evidence Amendment Act 45 of 1988 Terminology lobolo or bogadi

the African socio-legal practice in terms of which marriages are negotiated and marriage goods are delivered

Legislation had to be enacted to facilitate the ascertainment of the applicable customary law when disputes arose before the courts. An example of the earliest provisions to help the courts to cope with this difficult task was Proclamation 140 of 1885 that was issued for one of the Transkeian territories.13 In keeping with the policy of non-recognition of customary law, section 22 of the Proclamation contained the repugnancy clause. This clause allowed the courts to restrict the application of customary law to those rules that they deemed were not opposed to the principles of public policy and natural justice. In terms of the repugnancy clause, the version of customary law put forward by a party to litigation had to be in line with the common law standards of justice and morality otherwise this party had failed to ascertain the applicable custom. In this regard, Allott has the following to say with reference to Anglophone Africa: Undoubtedly, the justice and morality to be applied in this task were British justice and morality; but the British judges and administrators showed themselves more sensitive to local ideas of justice than was the case with the South African administrations …14 The repugnancy clause soon became so resilient that it was retained when Proclamation 140 of 1885 was later superseded by section 104(10) of Proclamation (Cape) 145 of 1923.15 Meanwhile, various versions of the repugnancy clause had

108

also appeared in the different areas known as Natal, the Transvaal and the Orange Free State that had autonomous administrations prior to 1910.16 The formation of the Union of South Africa in 1910 paved the way for the enactment of the Black Administration Act (BAA)17 in 1927 which superseded all the laws regulating the ascertainment of customary law. Section 11(1) of the BAA served three main purposes:18 •First, it gave discretion to the Commissioners’ Courts to apply customary law in all proceedings between black people. •Second, it subjected such application to the repugnancy clause. •Finally, the ascertainment and application of customary law became uniform throughout the Union of South Africa. However, the courts’ interpretation of section 11(1) continued to reflect the position taken by the different territories before the Union.19 A completely new addition to the repugnancy clause was the exemption of the custom of lobolo or bogadi. The courts were consequently not allowed to return a verdict that this custom was repugnant to public policy and natural justice. In terms of the policy of non-recognition of customary law during this period, any customary law rule was regarded as a fact and litigants were required to prove such rules according to the criteria contained in section 11(1) of the BAA. In this way, this subsection made the application of customary law a cumbersome and expensive exercise. The BAA, however, endeavoured to resolve the matter of the ascertainment of customary law through the statutory framework provided in section 23(10)(a)–(e), read with regulation 2 of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks. This framework regulated the administration of estates of black people and was reinforced by section 1(4)(b) of the Intestate Succession Act20 which separated the administration of these estates from those of other races in South Africa. To ascertain customary law when administering the estates of black people, this framework constituted the authoritative written records to be used by the officials. Once they had established that the estate fell under section 23(10) of the BAA, section 1(4)(b) of the Intestate Succession Act disqualified it from being administered

109

under

the

Intestate

Succession

Act

which

catered

for

everyone

except

black people.21 4.2.2 The position under the LEAA The Hoexter Commission of Inquiry into the Structure and Functioning of the Courts to investigate the condition of customary law and its institutions in South Africa submitted its report in 1983.22 The Commission found that the blacks-only Commissioners’ Courts discriminated between litigants on the ground of race and dispensed inferior justice to blacks. It concluded on this basis that these blacks-only Commissioners’

Courts

were

repugnant

institutions

which

needed

to

be abolished.23 When the legislature implemented the recommendations of the Commission, it enacted the LEAA. Section 1(1) of this Act reads: 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: Provided that indigenous law shall not be opposed to the principles of public policy and natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles … This section superseded section 11(1) of the BAA by amending the method for ascertaining and proving customary law in an effort to improve the impact of the law on litigants. Section 1(1) of the LEAA introduced the following new features that had an impact on the ascertainment of customary law: •While all the courts of South Africa were to apply customary law because the special Commissioners’ Courts had been abolished, the application remained subject to the courts’ discretion.24 •All the courts applying customary law were given the discretion to take judicial notice thereof. It was therefore no longer necessary for the litigants to prove each and every rule or custom that they alleged on the assumption that official customary law was extensively recorded in legislation and other precedents. On this basis, judicial notice was restricted only to the extent that customary law could be ascertained readily and with sufficient certainty. This means that only the customary law that was recorded in written form such as statutes, cases and 110

textbooks was exempted from the necessity to be proved. On this basis, the overuse of section 1(1) of the LEAA impeded the growth of customary law and continued to have the effect of fossilising it. •Section 1(2) of the LEAA allowed the courts to continue proving unwritten customary law by oral evidence since it was not readily ascertainable with reasonable certainty. •For the purposes of ascertainment, section 1(1) of the LEAA equated customary law with foreign law in South Africa. This section reads, ‘any court may take judicial notice of the law of a foreign state and of indigenous law’, thus treating the two as systems that needed to be viewed at the same level of recognition. First, the courts needed to take judicial notice of both these systems. Second, both these systems needed to be equally ‘ascertained readily and with sufficient certainty’ before they could be accepted. In other words, as late as 1988 the legislature was still convinced that customary law was not equal to the common law, but was subordinate to it. •The repugnancy clause was retained. This meant that customary law still had to comply with the common law standards of public policy and natural justice to be valid. •The exemption from the application of the repugnancy clause granted to the custom of lobolo or bogadi was retained. No court was allowed to hold that this custom was contrary to the principles of public policy or natural justice. COUNTER POINT The application of customary law under the LEAA: mandatory versus discretionary debate In the case of Thibela v Minister van Wet en Orde,25 the Court interpreted the wording of the phrase ‘any court may take judicial notice of … indigenous law’ in section 1(1) of the LEAA as a mandatory provision that demanded the application of customary law by the courts. This question had arisen in the context of an enquiry into the validity of a customary marriage where the widow was claiming damages after her husband was allegedly unlawfully killed by the police. The widow averred that at the time of her marriage, her deceased husband had arranged with her and

111

her family in terms of customary law to be the father of her child by a previous relationship. In terms of this custom, the deceased undertook all the responsibilities of a father. The child then became entitled to maintenance by the deceased as its lawful father. The widow thus claimed that the child had suffered loss of maintenance and prayed that this fact had to be factored into whatever damages the Court would award to her. The Court upheld this application, declared the customary marriage valid and that the child was entitled to maintenance as the child of the deceased by African custom. The Court treated the matter of the validity of the customary marriage as an ascertainment issue as it delved into the constituent elements that constitute such a marriage. The proof of the validity of the customary marriage in turn led to a recognition issue as the Court recognised the husband’s customary law liability to maintain his step-child in terms of African custom. Kerr26 and Bennett27 have criticised this case and are of the view that the application of customary law in terms of section 1(1) of the LEAA is permissive rather than mandatory, and that it is the taking of judicial notice that seems to be mandatory.28 Similarly, the view we take in this chapter is that no part of this section is mandatory as it is clearly couched in permissive language in its entirety. It is difficult to see how section 1(1) of the LEAA or any part thereof can be seen as mandatory. The section reads ‘any court may take judicial notice of … indigenous law’ which is permissive language. Moreover, it is consistent with the historical position of customary law under the colonial, Union and apartheid administrations to regard its application as merely permissive. Section 11(1) of the BAA, which was the predecessor of this section, clearly provided: … it shall be in the discretion of the courts of native commissioners in all suits or proceedings between natives involving questions of customs followed by natives, to decide such questions according to native law applying to such customs (own emphasis). This discretion was authoritatively laid down in Ex parte Minister of Native Affairs: In re Yako v Beyi where Schreiner JA held:

112

… on a true construction [of section 11] the native commissioner is to apply Common Law unless he thinks that native law is more calculated to do justice.29 The use of ‘may’ in section 1(1) of the LEAA was clearly informed by this history of applying customary law as a matter of discretion and we cannot properly assume that it has mandatory implications. Section 1(1) of the LEAA served a number of transformative purposes. First, it endeavoured to facilitate the proof of customary law by relieving the courts of the burden of proving customary law in each and every case.30 Second, and more importantly, by allowing the courts to take judicial notice of customary law, the section sought to save the litigants from the expense of having to bring witnesses to give evidence to ascertain customary law that was already ascertainable from the records such as legislation, court judgments and textbooks. Indeed, taking judicial notice of recorded customary law was a way of equating its ascertainability with that of the common law which needed no further proof. However, the legislature was aware that most customary law was still unwritten and was not readily ascertainable with sufficient certainty. Hence, section 1(2) of the LEAA provides for the ascertainment and proof of the unwritten customary law by way of evidence.31 Section 1(2) reads: The provisions of subsection (1) shall not preclude any party from adducing evidence of the substance of a legal rule contemplated in that subsection which is in issue at the proceedings concerned. Thus, section 1(1) of the LEAA does not limit the courts to the application of written records of customary law, but also allows them to receive oral evidence to prove its unwritten version. Needless to say, this approach fosters the development of living customary law. Long before 1988 the courts had accepted the tradition that customary law was recorded in precedents and tended to take judicial notice of it in many cases. The statutory requirement that the courts may take judicial notice of customary law was simply recognition of this practice. However, there remained those cases where the

113

courts still had to hear evidence because the issues raised had not yet been captured in precedents as customary law had never at any time been fully recorded. Section 1(2) of the LEAA that regulated the calling of oral evidence for the ascertainment of living customary law was the statutory recognition of this fact. In practice, however, judges had often expressed frustration at having to apply living customary law that was not readily ascertainable. An example of this is a succession dispute where Davis J expressed his frustration as follows: This question now … involves native law and custom of which without evidence [the court] necessarily knows nothing, it seems manifest that it cannot [decide it]. Evidence must be led, for instance, as to exactly of what the Qaukeni Estate consists and what are the rights of the Chief in relation thereto, of how native law and custom binds it to the Chieftainship, whether there can be more than one Chief, what precisely is meant by the ‘Great House’, and so on (own emphasis).32 This extract represents the level of ascertainment of customary law in the Union courts where the judges made no secret of their ignorance of the system. Davis J illustrated this aptly when he confessed that when it came to matters of customary law, the court necessarily knew nothing. It could consequently not decide the matter without hearing evidence on such matters as the royal estate, the rights of the king pertaining thereto, the number of royal incumbents that can occupy a kingship position at a time and the very concept of the Great House. On appeal in the same matter, Watermeyer CJ amplified Davis J’s sentiments regarding the difficulties of the ascertainment of customary law in the Union courts in the following terms: … this Court is faced with a difficult problem. Pondo law and custom is a body of unwritten law save for certain decisions of the Native Appeal Court and statements as to Native Law and Custom made by native assessors which are recorded in the reports of the Native Appeal Court, and save for certain passages in books dealing with native custom. But even such records as there are are little more than records of traditions, records of what someone at some time said the custom was. In the reported cases the recorded opinions of assessors 114

naturally harden into law, and certain books are to some extent accepted as accurately stating what native custom is. But apart from making what use is possible of these scanty records, the only way in which the Court can determine a disputed point, which has to be decided according to native custom, is to hear evidence as to that custom from those best qualified to give it and to decide the dispute in accordance with such evidence as appears in the circumstances to be most probably correct.33 As the above extract demonstrates, the learned Chief Justice took great pains to emphasise the absence of records in customary law as the reason for the indispensability of the need to hear evidence to prove it. These two dictums put beyond doubt that written records were generally regarded as the most credible sources for ascertaining customary law and that the hearing of evidence was a last resort. This approach also gives credence to the view that the rule directing the courts to take judicial notice of recorded customary law originated from judicial practice.34 Thus, section 1(1) of the LEAA was a prominent aid in ascertainment proceedings because it permitted the courts to take judicial notice of customary law where it had been

captured

in

written

records

and

was

readily

ascertainable

with

sufficient certainty.35 Courts were therefore relieved of the burden of proving customary law in each case.36 However, not all customary law was captured in written records so as to be readily ascertainable. Hence, section 1(2) of the LEAA allowed the courts to receive evidence of the substance of oral rules adduced during legal proceedings. This subsection therefore played a vital role in ensuring the continued relevance of living customary law. The Hoexter Commission recommended the continued existence of the courts of traditional leaders after 1988 while recognising their imperfections in a number of respects.37 Such courts represented a measure of accommodation for African culture and were popular among the majority of the blacks.38 This recommendation played a reconciliatory role by seeking to preserve the existence of courts in which unwritten customary law was readily ascertainable. These courts did not require litigants to produce written records to ascertain customary law during proceedings in

115

contrast with the Western-style courts which depended on such written records for ascertainment. 4.2.3 The position under the Constitution The broad question of ascertainment versus internal conflict between the common law and customary law remains valid in the post-apartheid era. The ascertainment of a legal system relates to the determination of the conditions in which its rules can be identified and applied in legal proceedings. Ascertainment therefore relates to the resolution of the question whether the official or living version of a rule is applicable in a particular case.39 It may also relate to whether an old or new rule is applicable.40 The internal conflict between the common law and customary law also relates to which of the possible legal rules or systems linked to the history of non-recognition of customary law is applicable. This was the issue in Yako v Beyi where the Court decided that, in general, the common law as the law of the land is applicable to all matters, and that in special circumstances, customary law may be applied in the interests of justice.41 Section 211(3) of the Constitution plays multiple roles in judicial proceedings. The common understanding seems to be that the section plays three roles, namely recognition, application and the alignment of customary law with the Constitution and any legislation specifically dealing with customary law. As a whole, section 211(3) reads: The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. However, we submit that this section also plays a role in the ascertainment of customary law. As the subject of this chapter is ascertainment, we discuss the commonly understood roles of the section in brief before we discuss its ascertainment role in detail. 4.2.3.1 The recognition role With regard to the recognition role, section 211(3) enjoins the courts, in imperative terms, to apply customary law, thus making it a recognition clause. By so doing, the Constitution ended a long period of the non-recognition of customary law during 116

which the common law was the general law of the land.42 The recognition of customary law relates to the injunction directed at the courts that they ‘must’ apply customary law as a matter of law as opposed to the previous situation under section 1(1) of the LEAA which merely gave the courts the discretion to apply it in the interests of justice. Furthermore, section 211(3) is a recognition instrument which should recognise only the living version that is practised by the adherents of customary law, not the official version that has been used as an instrument of state oppression. This view is bolstered by sections 30 and 31 of the Constitution which simultaneously recognise culture. The imperative to apply living customary law is, in fact, a mandate to uphold living customary law’s own value system in its cultural context. 4.2.3.2 The application role Section 211(3) functions as an application clause. This is implied in the wording ‘when that law is applicable’. This may relate to a possible conflict situation where a choice has to be made between the common law (or other recognised system of law) and customary law as the applicable system. We discuss this function of the subsection more fully in chapter 5. 4.2.3.3 The alignment role Section 211(3) functions to align customary law with the Constitution and legislation that deals with it. With regard to alignment with the Constitution, customary law is subject to the Constitution as the supreme law of the land. Most importantly, it is not exempt from the application of the Bill of Rights.43 One of the most important issues regarding the application of the Bill of Rights is whether the Bill of Rights applies to customary law directly or indirectly. The Constitutional Court in Du Plessis v De Klerk explained the difference between these two concepts as they relate to customary law.44 Sachs J stated that direct application would entail: a wholesale striking down of customary law because of violation of the equality clause in Chapter 3 [the Bill of Rights]. The indirect approach would permit courts closer to the ground to develop customary law in an incremental, sophisticated and case-by-case way 117

so as progressively, rapidly and coherently to bring it into line with the principles of Chapter 3.45 The alignment function of section 211(3) is not free from difficulties as shown in the discussion below. PAUSE FOR REFLECTION What does ‘subject to the Constitution and any legislation that specifically deals with customary law’ mean? There is the continuing ambiguity about the extent to which the Bill of Rights applies to customary law.46 In addition, the phrase ‘subject to the Constitution’ poses difficulties of how to balance the rights in the Bill of Rights with the right to culture since there are no guidelines in the Constitution. The part of the section subjecting customary law to legislation is equally difficult. What kind of legislation is ‘legislation that specifically deals with customary law’? To what degree must a statute deal with customary law before it qualifies to override customary law? We submit that only legislation that is intended to deal with customary law comprehensively, such as legislation intended to reform this system of law, qualifies. Examples are the Recognition of Customary Marriages Act (RCMA), 47 the Reform of Customary

Law

of

Succession

and

Regulation

of

Related

Matters

Act

(RCLSA),48 and the Traditional Leadership and Governance Framework Act (TLGFA).49 In the event of a conflict between any rule of customary law and the provisions of this legislation, the latter should prevail. 4.2.3.4 The ascertainment role The view taken in this chapter is that the phrase ‘subject to the Constitution and any legislation that specifically deals with customary law’ relates to ascertaining the particular version of customary law to be applied. The issue of ascertainment is called into question, first and foremost, by the mandate that courts ‘must apply customary law’ and, second, by the proviso, ‘when that law is applicable’. The courts must first ascertain the relevant rule, principle, concept or doctrine of customary law before they can comply with the recognition imperative ‘must apply’.

118

Similarly, the courts can only comply with the application clause ‘when that law is applicable’ once they have ascertained what that law is, that is, after measuring it ‘subject to the Constitution and any legislation that specifically deals with customary law’. The ascertainment of customary law under the Constitution involves determining the version that is recognised by the Constitution. The injunction requiring the courts to apply customary law in section 211(3) refers to the living version of customary law rather than the official version.50 This is a sequel to the full constitutional recognition of customary law as a distinct legal system that now has its own independent values and norms for the first time since colonisation in 1652. 4.3 The problems associated with official customary law The emphasis on recorded customary law was meant to facilitate judicial proceedings from the point of view of the system’s Western-trained administrators who were concerned with matters of efficiency and who were driven by considerations of pragmatism. It was not an effort to develop customary law according to its own values. Indeed, the recording of customary law resulted in the development of a system of customary law which estranged the courts from the community. It also impeded the development of the law from the date of recording so that it could not keep pace with developments in social practice. Moreover, the recording of customary law exacerbated the impact of the repugnancy clause since it necessarily served to isolate and discard genuine customary law rules that were regarded as contrary to the common law principles of public policy and natural justice. Thus, the recorded official version of customary law that was favoured by the courts reflected common law moral standards as opposed to customary law normative values. This unwittingly discredited the version applied by the courts and labelled it as not organically developed by the community. This, in turn, negatively affected its customary credentials.51 The repugnancy clause was further debunked as generating the false consciousness that it was promoting public policy and natural justice. When deconstructed, the clause was exposed as a euphemism for eliminating African culture.52 Ultimately, the weight of academic criticism dismissed the official version of customary law as mere state culture that had nothing to do with the lived experiences of its adherents because it was uncustomary, distorted and fossilised.53

119

The legislature was aware of these shortcomings of the official version and sought to minimise the cultural deficiency on the bench by providing for the appointment of assessors to fill the gap between the court and the community from which a matter arose. It was hoped that black assessors would update the courts about the current social practice, thus helping them to retain a modicum of legitimacy by keeping legal practice abreast of community developments. This would, in turn, placate the adherents of customary law. However, the assessors did not have the desired impact. The white judicial officers valued reference to written records that were confirmed in precedents more than the propositions of current practice made by the assessors as they considered these propositions to be questionable and less reliable. The taking of judicial notice of recorded precedents proved more attractive and efficient to the judicial officers who often considered the written texts to be more readily ascertainable than the advice of the lay assessors. Although the appointment of assessors shifted the costs to the state, it did not entirely replace the need to call witnesses and was almost as cumbersome. The assessors had to be identified and served with subpoenas notifying them about the matter, the date and the venue, just as was the case with the witnesses. In addition, there was also the risk of exposing the law to elitist and gendered influence because of the tendency to focus on a pool of prominent members of the community, such as traditional leaders, priests, teachers and policemen as assessors, rather than ordinary people who were knowledgeable about customary law on the one hand, and males rather than females on the other hand. 4.4 The ascertainment of living customary law The constitutional changes from the old order to the current dispensation have influenced the post-apartheid courts to heed academic calls to give priority to living customary law. This was a sequel to the recognition of customary law in the interim Constitution, particularly Principle XI of the 34 Principles annexed to that Constitution. Principle XI committed the Constitutional Assembly ‘to protect South Africa’s

diverse

cultures

and

to

ensure

application of

customary

law

in

the courts’.54 For the purposes of the ascertainment of customary law, emphasis had shifted from the written sources to the law that was practised by the adherents of the system. This is reflected by the reference to culture and customary law which can 120

only relate to the living version since the interim Constitution itself represented a triumph for cultural self-determination over cultural imperialism. The courts have clearly taken advantage of the imperative language used in section 211(3) of the Constitution that enjoins the courts to apply customary law when it is applicable. The courts have added the combined effect of sections 30 and 31 of the Constitution, which respectively protect participation in and enjoyment of culture, to reveal the centrality of the living version of customary law in the ascertainment process. Consequently, the Constitutional Court has acknowledged the ‘survival of an evolving customary law’.55 The Court thus used the occasion of the certification proceedings in ascertaining the living version of customary law as the version recognised by the Constitution. This was simultaneously a case of recognition as well as ascertainment. The Court demonstrated this by choosing to recognise the ‘evolving’ version of customary law. The Court also ascertained the ‘living’ version of customary law as the version that the Constitution accepts for the new South Africa. This symbolises a shift from the past where the courts were referred to the version that was ‘readily ascertainable’. According to Bennett, this was a judicial declaration that constitutional protection was reserved for living customary law.56 This is not surprising as the South African Law Reform Commission’s Special Project on Customary Law used living customary law

as

the

basis

for

its

recommendations

on

the

laws

of

marriage

and succession.57 The Constitutional Court has ultimately resolved the issue of the version to be ascertained for application by the courts between the official version based on the common law standards and the living version based on African values and norms in favour of the latter. In Alexkor Ltd v Richtersveld Community, the Court made the following dictum: 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. Like all law it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to common law, but to the Constitution.58

121

The phrase ‘by reference not to common law’ depicts the Constitution as liberating customary law from the hegemony of the repugnancy clause and freeing its own cultural values to define its content. When the Court says that customary law ‘must now be seen as an integral part of our law’, the Court is pointing out that it is the living version that is constitutionally recognised as opposed to the official version which sought to make customary law an integral part of the common law. The Court proceeded to apply this principle by holding that customary law was the applicable system in ascertaining the content of the community’s notion of ownership of or interest in land. The experiences of the Richtersveld community and their dealings regarding the land constituted a sufficient title that was distinct but equivalent to the common law concept of ownership of land. The judgment is authority for focusing the ascertainment of the community’s legally binding habits regulating their affairs on their own customary law as opposed to the official customary law of the state. In its subsequent judgments, the Constitutional Court has since reaffirmed the above dictum as authority for making the living version the focal point of the ascertainment process. In Bhe v Khayelitsha Magistrate, the Court consolidated this position as follows: Throughout its history [customary law] has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution.59 The Court consciously chooses the words ‘its values and norms’60 to distinguish the values of living customary law from the moral standards of official customary law that are based on the common law principle of public policy and natural justice.61 This background shows that the post-apartheid period has seen concerted judicial and academic efforts to demonstrate customary law’s capacity to grow and develop in its authentic form that is drawn directly from current social practice without dependence on hegemonic legal texts.62 Mabena v Letsoalo63 is a case in point where the Court deviated from the standard textbook approach and applied living customary law that recognises what people do in practice. The prospective husband had negotiated the lobolo or bogadi of his

122

future wife with his prospective mother-in-law. The court accepted this genderneutral practice as consonant with the Bill of Rights.64 The Court can also be credited with affirming African values where the husband can be seen as representing his family while the mother-in-law represented her husband’s family. The two families arrived at an agreement that was binding on them in terms of customary law. 4.5 New developments in the ascertainment process There are inherent challenges in the process of ascertaining customary law. Some courts have assumed that the mandate to apply customary law entails no more than their duty to take judicial notice of the written materials and have proceeded with the official version as usual.65 For example, in the three Mthembu cases, the customary law of intestate succession was confined to the framework prescribed in section 23 of the BAA, read together with section 1(4)(b) of the Intestate Succession Act, and the jurisprudence generated thereunder. All three courts that handled the Mthembu matter neglected to ascertain whether a non-sexist and constitutionally compliant living rule regulating the customary law of intestate succession existed in social practice. Instead, Le Roux J, who presided in the first court,66 relied on written materials based on academic opinion endorsing male primogeniture as a hallowed rule that had unassailable redeeming features. These features forced the male heir to provide shelter, sustenance and maintenance for the widow and her children, and according to this view, could not be faulted.67 The second court’s attention was specifically drawn to the need to investigate the living experiences of the relevant community with a view to ascertaining the binding rules

used

v Makwanyane

in 69

social practice.68 Mynardt

J

referred

to

the

case

of S

where the Constitutional Court questioned the relevance of public

opinion as a factor in resolving constitutional questions.70 Mynardt J also refused to develop the official rule of male primogeniture in line with the Constitution, rather referring the issue to the legislature.71 The Supreme Court of Appeal (SCA) endorsed the referral of the matter to the legislature. Mpati AJA (as he then was) believed that: In any event, we would be ill-equipped to develop the rule for lack of relevant information. Any development of the rule would be better left to the Legislature after a process of full investigation and 123

consultation,

such

as

is

currently being

undertaken by

the

Law Commission.72 The learned Acting Judge of Appeal concluded that the practice of ascertaining customary law through the exclusion of black women and children from benefitting from the intestate estates of their husbands and fathers under the official version of customary law was not ‘so grossly unjust and abhorrent, in the light of the present constitutional order, that they could not be countenanced; nor was it an appropriate case to entertain an invitation to develop the rule’.73 Academics criticised this conservative approach and apparent judicial reluctance to

recognise

living

customary

official version.74 Lehnert

law

dismisses

due

to

the

the

judicial

culture

of

attitude

applying

the

revealed

in

the Mthembu cases as a symptom of a failure ‘to recognise the changing socioeconomic circumstances in the communities that are living according to customary law’.75 He also blames the failure to detect the condescending nature inherent in the rule that subjects women to the care of a male heir on judicial complacence.76 Lehnert rejects the ascertainment jurisprudence generated by the Mthembu cases in the following terms: The first major flaw of the judgments in the Mthembu cases was that they gave no consideration to the application of living customary law … [B]y contrast with the official customary law, in the living law the principle of male primogeniture is, in fact, not strictly applied. As field research into the customary law of succession in South Africa and other southern African countries has shown, women are indeed granted rights of inheritance. There have been many instances in which widows have been given the right to inherit their husband’s lands, and in which unmarried or divorced daughters of the deceased may obtain their [fathers’] houses.77 This academic view reflects the primacy of the living law as the version that the Constitution recognises. Hamnett endorses this view and agrees that the living law is the focus of the ascertainment process because:

124

customary law emerges from what people do, or – more accurately – from what people believe they ought to do, rather than from what a class of legal specialists consider they should do or believe … [T]he ultimate test is not ‘what does this judge say?’ but rather ‘what do the participants in the law regard as the rights and duties that apply to them?’.78 As Langa DCJ admitted, the greatest challenge does not lie in whether or not the living law is the applicable version, but in how to find it.79 The learned Deputy Chief Justice then held: The question whether the Court was in a position to develop that rule in a manner which would ‘promote the spirit, purport and objects of the Bill of Rights’ evoked considerable discussion during argument. In order to do so, the Court would first have to determine the true content of customary law as it is today and to give effect to it in its order. There is however insufficient evidence and material to enable the Court to do this. The difficulty lies not so much in the acceptance of the notion of ‘living’ customary law as distinct from ‘official’ customary law, but in determining its content and testing it, as the Court should, against the provisions of the Bill of Rights.80 In Bhe, the Constitutional Court declared the official rule of male primogeniture that preferred men over women for the purposes of succession and inheritance unconstitutional. The Court’s first task then was to ascertain what the living version of customary law was in order to replace the impugned official version. The injunction of the Constitution to apply customary law implies trying to find the living version.81 As illustrated in the above extract, Langa DCJ struggled to ascertain the living customary law that would replace the invalidated official version and conceded that this was a difficult task to undertake without further evidence to prove it. The learned judge ultimately decided against ascertaining the living customary law and simply replaced the unconstitutional official version with the Intestate Succession Act. Consequently, customary law had no further role in the matter as

125

the two Bhe daughters were appointed sole heirs to their deceased father’s estate and received child’s portions. In his dissenting opinion, Ngcobo J also refused to ascertain the current living customary law of succession. The learned judge concluded, on the available evidence, that it was possible to develop the official version of the primogeniture rule to include women so that both sons and daughters could inherit their fathers’ estates. The judge held that this could be done without having to ascertain the law actually lived by the people. All that needed to be done to ascertain the applicable primogeniture rule was to develop the existing rule which favoured only males so as to bring it in line with the right to equality, thus curing the defect in the system.82 Ngcobo J justified his decision as follows: We are concerned with the development of the rule of male primogeniture so as to bring it in line with the right to equality. We are not concerned with the law actually lived by the people. The problem of identifying living indigenous law therefore does not arise. At issue here is the rule of male primogeniture which was applied in the Bhe and Shibi matters. It is that rule which must be tested against the right to equality, and if found deficient, as I have found, it must be developed so as to remove such deficiency (own emphasis).83 In the Constitutional Court judgment of Shilubana v Nwamitwa, Van der Westhuizen J endorsed Langa DCJ’s view that the true content of living customary law must be ascertained.84 Van der Westhuizen J said that the first step is to determine the community’s past practice. Once that has been ascertained, past practice is the applicable customary law, subject to being constitutionally compliant and compliant with applicable legislation. The only alternative to the community’s past practice is the ascertainment and proof that a new legally binding social practice has emerged. Once the court has ascertained the new practice as the applicable customary law, it must accept it, subject, of course, to its compliance with the Constitution. The emphasis on the practice of the community rather than the records of written customary law is an indication of the shift in the judicial conceptualisation of the ascertainment process. Van der Westhuizen J put the matter beyond doubt in the following conclusion:

126

Where a norm appears from a tradition, and there is no indication that a contemporary development had occurred or is occurring, past practice will be sufficient to establish a rule. But where the contemporary practice of the community suggests that change has occurred, past practice alone is not enough and does not on its own establish a right with certainty … Past practice will also not be decisive where the Constitution requires the development of the customary law in line with constitutional values.85 According to this statement,86 Shilubana has settled the ascertainment debate between the living and the official versions of customary law in favour of the former. Van der Westhuisen J emphasised that customary law is the practice of the community, past and present. If past practice is proved, it must be accepted as the community’s customary law. There are only two ways of deviating from the community’s past practice, namely: •proof that a new community practice has superseded the past practice, in which case the new practice is the applicable customary law •when past practice is developed to align customary law with constitutional values. In the light of the Shilubana case it is now clear that the post-apartheid judicial ascertainment of customary law has shifted from the official practice based on written precedents and is now firmly rooted in the practices of the community. The starting point is therefore no longer the taking of judicial notice of the written records, which often distorted community practice,87 but social practice itself.88 The Constitutional Court has, in fact, warned against the uncritical use of codified customary law that is found in records and precedents.89 It has embraced the flexible and constantly adaptable living version that can never be outdated as past practices are constantly replaced by new practices. Also, the living version comes from social practice and is more likely to be consistent with the Constitution. For this reason, the approach adopted in Van Breda v Jacobs90 for ascertaining the legal validity of common law customs is not appropriate to customary law because the common law customs must derive their existence from an unchanging antiquity. However, customary law is inherently flexible and constantly adapts to the changing conditions of the community.

127

The requirement of past consistent application of the rule is the test that ‘any new development [of the ‘living’ law] must necessarily fail’ because ‘development implies … departure from past practice’.91 Adherence to this requirement would result in the Court applying rules which the communities no longer observe, thus stifling the recognition of new social practices in response to the changing face of the society under the Constitution.92 The Constitutional Court deviated from the equation made in section 1(1) of the LEAA between customary law and foreign law. The learned judge stressed that ‘it is also not to say that customary law must in the ordinary course be proven before a court before it can be relied upon. The time when customary law had to be proved as foreign law in its own land is behind us’.93 In fact, this dictum echoed Hlophe JP’s disapproval of the treatment of customary law as foreign law in Africa.94 While the Shilubana judgment is to be hailed with respect to the tests for the ascertainment of customary law, it created unprecedented levels of uncertainty in the customary law of succession to traditional leadership as argued below. COUNTER POINT Shilubana: uncertainty and unresolved issues While the judgment in Shilubana provides good guidance on the ascertainment of customary law, its impact has been to destroy certainty in the customary law of intestate succession to traditional leadership. Prior to this judgment, the rule of living customary law of succession, as established by both the High Court and the SCA, clearly stated that the next traditional leader was the most senior son or male relative of the previous leader. This was a general rule among the Africans in South Africa. For instance, Peires has this to say in this regard: … the heir to the chieftainship, known as the Great Son, was the son of the Great Wife.95 In Sigcau v Sigcau,96 Prince Mandlonke Sigcau, the great son of the late King Marelane

Sigcau,

succeeded

his

father

in

that

position.

Yet

after

the Shilubana judgment this was no longer necessarily so. Van der Westhuisen J brought an end to this certainty by recognising a traditional council’s amendment of

128

this rule and ordered the appointment of a woman as a traditional leader. In the process, the following questions were left unanswered: •whether the amendment was necessary since the son of the previous traditional leader was available, ready and able to succeed his father •what the implications of appointing a woman to such a position would be where the woman was married to a commoner, with whom she had children, and therefore could not produce a successor to the traditional leadership position •the validity of the Court’s reliance on the flexibility of living customary law to provide a future solution when the time for succeeding the woman came after such conditions of uncertainty had been created. Thus, the effect of the Shilubana judgment was to abolish a stable customary law tradition that was readily ascertainable and that ensured the provision of a natural successor to every traditional leadership position without replacing it with a credible custom. Consequently, who the heir is in any given case is no longer readily ascertainable from the custom itself, but is a matter to be deliberated and negotiated at the time of the succession.97 THIS CHAPTER IN ESSENCE 

•As certainment and proof of customary law refer to the manner in which a rule of customary law is identified as applicable to an issue in a judicial proceeding. The manner in which rules are ascertained differs from one legal tradition to another.



•As an oral tradition that survives in unwritten narratives, living customary law is different from other legal systems, such as the common law, in that it is ideally ascertained and proved with reference to the oral sources of each indigenous community. In other words, members of the community obtain their expertise in ascertaining the rules of customary law as a result of their upbringing in that community. In times of litigation, there is thus no cultural gap between the parties to the dispute and the dispute forum. In essence, everybody knows the applicable rules and, in cases of doubt, deference is given to the elder members of the community.



•This

situation

changed

dramatically

when

colonisation

placed

the

administration of customary law in the hands of officials who were trained in 129

the Western concept of law only. These officials were prevented by their different language and culture from accessing the oral sources of customary law. 

•The main instrument devised to cure this defect was the Law of Evidence Amendment Act 45 of 1988 although there had been earlier enactments such as Proclamation 140 of 1885 which was later superseded by Proclamation (Cape) 145 of 1923. All these enactments had one thing in common – the repugnancy clause according to which customary law could not be applied unless it was shown not to be opposed to the principles of public policy or natural justice.



•Section 211(3) of the Constitution plays a role in the ascertainment of customary law in that it forms the basis for arguing that the version of customary law recognised by the Constitution is living customary law as opposed to official customary law. This understanding has now been confirmed in a series of judgments of the Constitutional Court.



•While it is now clear that official customary law has been discredited, it remains a fact that living customary law is difficult to ascertain, in part because of its continually evolving nature. The Shilubana case has brought some much-needed clarity to the ascertainment of living customary law by laying down some criteria to be observed in establishing a rule of customary law as the one to apply in a case before the court. However, it has also introduced uncertainty in the rules regarding succession to status of traditional leaders.

1See Abiodun, BO (2007) Towards an African concept of law African Journal of Legal Theory 1:71–83 at 74. 2Bennett, TW (2004) Customary Law in South Africa 44. 3See Abiodun (2007) 74. 4Dlamini, CRM (2002) The clash between customary law and universal human rights Speculum Juris (1)1:26–46 at 40. 5See Mqhayi, SEK (1914) Ityala Lamawele 1–85. 6Mqhayi (1914) 17. 7Mqhayi (1914) 20. 130

8Dlamini (2002) 33. 9Act 45 of 1988. 10See Alexkor Ltd v Richtersveld Community (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) para 54; Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005

(1)

BCLR

1

(CC)

(15

October

2004)

para

86; Shilubana

v

Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008) para 44. 11Dlamini (2002) 32. 12Dlamini (2002) 34 writes: ‘[One] cannot ignore the effect of colonialism and apartheid on how customary law was viewed and treated.’ 13Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed. 14Allott, AN (1984) What is to be done with African customary law? The experience of problems and reforms in Anglophone Africa from 1950 Journal of African Law 28(1–2):56–71 at 59. 15Allott (1984) 59. 16Van Niekerk, GJ ‘Legal pluralism’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism in South Africa 3 at 5 writes: ‘The administrators of the various territories, to a greater or lesser extent, all aspired to “civilise” the indigenous population and to oust their “barbarous” laws and customs. Where customary law was recognised, it was subject to the strict application of a repugnancy clause.’ 17Act 38 of 1927. 18S 11(1) of the BAA reads: ‘Notwithstanding the provisions of any other law, it shall be in the discretion of the courts of native commissioners in all suits or proceedings between Natives involving questions of customs followed by Natives, to decide such questions according to the native law applying to such customs except in so far as it shall have been repealed or modified: provided that such native law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobolo or bogadi or other similar custom is repugnant to such principles.’ 19See ch 1 of this book. 20Act 81 of 1987. 131

21See Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA) and Bhe. 22See Bennett (2004) 42, 141. 23See the Fifth Report of the Hoexter Commission of Inquiry into the Structure and Functioning of the Courts, 1983. Also discussed by Bennett (2004) 141. 24See s 1(1) of the LEAA which says the courts ‘may’. Nowhere in the Act does it state that the courts ‘must’ apply customary law. 251995 (3) SA 147 (T). 26Kerr, AJ (1996) The choice of and the application of customary law South African Law Journal 113(3):408–10 at 409. 27Bennett, TW ‘The conflict of laws’ in Rautenbach et al (2010) 17. 28This issue is discussed further in ch 5 of this book. 291948 (1) SA 388 (A) 389. 30Himonga, C and Bosch, C (2000) The application of African customary law under the Constitution of South Africa: Problems solved or just beginning? South African Law Journal 117(2):306–41 at 336. 31See Bennett (2006) 17. 32Sigcau v Sigcau 1941 CPD 334 at 342. 33Sigcau v Sigcau 1944 AD 67 at 76. 34See Bennett (2004) 48. 35Bennett (2004) 48. 36Bennett (2004) 44. 37The Hoexter Commission Report Part 1 para 3.4.3.8 reads: ‘Although … the chiefs’ courts function imperfectly their retention is widely supported both by Blacks and by experts in Black customary law. These courts represent at once an indigenous cultural institution and an important instrument for reconciliation. For these reasons a rural Black will often prefer to have his case heard by the chiefs’ court.’ 38Bennett (2004) 141. 39See Mabena v Letsoalo 1998 (2) SA 1068 (T). 40See Shilubana. 41Yako v Beyi 397. 42Bennett (2004) 43.

132

43See ch 1 of this book. See also Rautenbach, C (1999) A commentary on the application of the Bill of Rights to customary law Obiter20(1):113–32. 44(CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15 May 1996). 45Du Plessis para 189. 46See also Rautenbach (1999) 126. 47Act 120 of 1998. See also Rautenbach (1999) 122. 48Act 11 of 2009. 49Act 41 of 2003. 50Himonga and Bosch (2000) 331 write: ‘… it is the law generated by the cultural communities that is recognised by the Constitution. It is not the law created by the state and its institutions, or stated by academics whose writings are based on official records …’ 51Dlamini (2002) 32 says: ‘… customary law ceased to be indigenously developed’. 52Dlamini (2002) 32. 53Bhe para 86. 54Bennett, TW (2009) Re-introducing African customary law to the South African legal system American Journal of Comparative Law 57(1):1–32 at 7. 55Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 197. 56Bennett (2009) 7. 57Bennett (2009) 7. 58(CCT 19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) para 51. See also Gumede v President of the Republic of South Africa (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008) para 43. 59(CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 151. 60That is, customary law’s values and norms. 61See Bennett (2009) 9. 62Bennett (2009) 9. 631998 (2) SA 1068 (T). 64Bennett (2009) 13.

133

65Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA). 66Mthembu v Letsela 1997 (2) SA 936 (T). 67Mthembu v Letsela 1997 (2) SA 936 (T) 938–939. 68Mthembu v Letsela 1998 (2) SA 675 (T). 69(CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995). 70Mthembu v Letsela 1998 (2) SA 675 (T) 685. 71Mthembu v Letsela 1998 (2) SA 675 (T) 685. 72Mthembu v Letsela (71/98) [2000] ZASCA 181; [2000] 3 All SA 219 (A) (30 May 2000) para 40. 73Mthembu v Letsela (SCA) para 40. 74See Bennett (2009) and Lehnert, W (2005) The role of the courts in the conflict between African customary law and human rights South African Journal of Human Rights 21(2):241–77. 75Lehnert (2005) 257. 76Lehnert (2005) 257. 77Lehnert (2005) 256. 78Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of Executive Law in Lesotho 10. 79Bhe para 109. 80Bhe para 109. 81S 211(3) of the Constitution. 82Bhe para 115. 83Bhe para 220. 84(CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008) para 56. 85Shilubana para 56. 86See also Shilubana para 55. 87Alexkor para 52. 88See Mayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013) where the majority judgment seems to have connected the proof of living customary law to its source, that is, the community whose customary law is before the court. See also Himonga, 134

C and Pope, A (2013) Mayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications Acta Juridica 318–38. 89Bhe para 154. 901921 AD 330. 91Shilubana para 55. 92Shilubana para 55. 93Shilubana para 56. 94Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4 March 2003) para 32. 95Peires, JB (1981) The House of Phalo: A History of the Xhosa People in the Days of Their Independence 29. 961944 AD 67 at 74. 97For further criticism of this case, see Mnisi (2010) 174–79.

135

Chapter 5 Internal conflict of laws 5.1 Introduction 5.2 Conflict of laws under customary law 5.2.1 Resolution of conflicts between the laws of different systems of customary law 5.2.1.1Avoidance of conflicts 5.2.1.2Resolution of conflicts under customary law 5.2.2 Legislative intervention 5.3 Conflict rules regulating conflicts between customary law and the common law 5.3.1 Conflict of laws rules during the colonial era 5.3.2 Conflict of laws rules during the Union era 5.3.3 Conflict of laws rules during the apartheid era 5.4 The regulation of conflict of laws under section 211(3) of the Constitution 5.4.1 Section 211(3) of the Constitution as a conflict of laws rule 5.4.2 Conflict of laws rules under the Constitution 5.4.2.1 Agreement and intention 5.4.2.2 Nature of the transaction 5.4.2.3 Subject matter and environment of the transaction 5.4.2.4 The lifestyle of the parties 5.4.2.5 Exemption from customary law 5.4.2.6 Marriage by civil or Christian rites 5.4.2.7 Testate succession

Terminology lex fori

Latin – the law of the forum; the law of the court hearing and disposing of an action

lex causae

Latin – the law of the cause; where there is a conflict of laws, the law which has 136

precedence to dispose of the action Latin – the law of the place where the marriage is celebrated

lex loci celebrationis

5.4.2.8Intestate succession This chapter in essence 5.1 Introduction The term ‘conflict of laws’ refers not to a conflict between legal systems but rather to the

method

of

choosing an

appropriate

rule

to

apply in

the

interests

of justice.1 Conflict of laws therefore refers to the rules for choosing the appropriate law. These rules are also known as conflict rules. Such rules indicate when it is appropriate to use a specific legal system where the dominant legal system in a court (lex fori) is not the only legal system the court can use to resolve the dispute at hand. Conflict of laws applies to two kinds of conflicts that courts are called on to determine when settling disputes between litigants: 

•In the first place, conflicts may arise between rules belonging to the legal systems of two or more different countries. We refer to the rules used to choose the appropriate law or legal system in this instance as private international law.2



•In the second place, conflicts may occur between different legal systems operating within a single national legal system. This is often the case in pluralistic legal systems such as those of African countries where customary law exists alongside the common law and legal systems such as Muslim law or Hindu law. In this instance, we refer to the rules used to choose the appropriate law or legal system as personal or internal conflict of laws.3

This chapter deals with internal conflict of laws with the focus on: 

•the concept of conflict of laws under customary law



•rules used to choose the appropriate law when a conflict occurs between customary law and the common law 137



•the provisions of the Constitution relating to the conflict of laws.

PAUSE FOR REFLECTION Private international law Courts apply the national legal system when settling disputes between litigants. However, the national legal system is not always appropriate in all cases to bring justice to a matter before the court, especially where there is a foreign element in the dispute.4 This leads to the need to explore whether the use of the rules of South African law would best serve the interests of justice or whether such interests would best be served by the use of the law of England, for instance. In this situation, the court must select the applicable legal system by applying conflict rules which connect the dispute before the court in some way with English law. Note that conflict of laws ordinarily applies to the rules that regulate the way in which a court may choose a foreign legal system (the lex causae) over the national legal system (the lex fori) when resolving a matter before the court.5 A South African court may select such a foreign legal rule because it is more appropriate than the law of South Africa in resolving a particular issue in the interests of justice.6 The selection of the appropriate rule (lex causae), in our example the law of England, rather than the one that is ordinarily used by the court (lex fori), that is, South African law, involves the use of various connecting factors which play a vital role in linking the law of England with the matter before the court. For instance, a South African court uses South African law as the lex fori. Where this court has to resolve a matter concerning the validity of a marriage concluded in a foreign country (England), South African law’s connecting factor is the law of the place where the marriage was concluded (lex loci celebrationis).7 In other words, English law is connected to the matter before the South African court due to its role in defining the marriage whose validity is at issue. The South African court will accept the marriage as valid or dismiss it as invalid depending on what English law says about it. Other connecting factors used by South African conflict of laws are the law of domicile, the law of the place where movable or immovable property is situated and so on. The provisions of these connecting factors determine the applicable legal system and enable the court to choose its rules.

138

5.2 Conflict of laws under customary law The conditions necessary for the existence of problems relating to conflict of laws are the presence of social and commercial intercourse between people subject to different legal systems.8 In this sense, precolonial customary law also had its own concept of conflict of laws.9 Unfortunately, most writers on conflict of laws start narrating the history of the subject from the time of colonisation.10 This creates the false impression that the management of conflict of laws is a foreign concept that was introduced by people from outside Africa. Furthermore, the paucity of research on conflict of laws in Africa seems to lend credence to the idea that the continent’s legal systems lack the concept of conflict of laws. Oppong attempts to correct the record as follows: Conflict of laws problems existed in pre-colonial Africa and were consistent with current theories on pre-modern societies, addressed by a mixture of practices and mechanisms that tended towards conflicts avoidance and lex forism.11 In addition to the conditions for the application of conflict of laws mentioned above, precolonial

Africa

had

kingdoms

which

applied

different

legal

systems.

Consequently, conflict of laws problems often ensued from social, economic and political

interactions

among

individuals

and

groups

belonging

to

different jurisdictions.12 Conflict of laws relates to the methods used to resolve disputes arising from such interactions. 5.2.1 Resolution of conflicts between the laws of different systems of customary law The nature of customary law itself contributes to the avoidance of conflicts between different systems of customary law. Where these conflicts occur, there are conflict of laws rules which are used to resolve them. 5.2.1.1 Avoidance of conflicts

139

Terminology imfecane (isiXhosa)or difaqane(Sesotho)

‘… social upheavals caused by wars among the African communities of Southern Africa by the end of the second decade of the nineteenth century. These led to the emergence and consolidation of new nations’13

The nature of African culture influences the avoidance of situations of conflict of laws. African culture does this in the following ways: •First, there is a tendency to integrate different communities into the legal system of the dominant group so that in due course no further conflicts arise. Integration as a conflict-resolving

factor

became

more

apparent

after

the imfecane/difaqane upheavals which afflicted southern Africa following the rise of King Shaka in the first quarter of the nineteenth century. Almost the entire Lesotho nation was born out of the convergence of different groups and individuals whom King Moshoeshoe integrated into one group under one legal system. Today, Lesotho is a homogeneous nation, but the clan names of individuals still reveal their amaZulu, amaXhosa, amaHlubi and other origins. A similar integration that took place as a result of the same social upheaval made the amaMfengu group part of the amaXhosa cultural tradition. After just a few decades, the conflict of cultures was resolved through social integration.14 •Second, communities tended to keep to themselves when contracting marriages and conducting business transactions. In this way, they avoided conflict of laws situations.15 Hence, people erroneously think that Africa had no conflict of laws problems. •Third, African communities continued to respect each other’s cultures after integration. For example, King Moshoeshoe of the baSotho nation allowed different communities to govern themselves according to their laws and customs while they remained part of the same kingdom.16 Other groups also displayed comparable degrees of social integration. In the Eastern Cape, for instance, different family groups in the same community at village level perform certain customary rituals connected to the initiation of boys and the celebration of marriages differently but harmoniously. Some clans perform their circumcision custom in the morning on the mountain because they come from an amaHlubi 140

background. Other clans perform theirs in the afternoon at the river because they are from an abaThembu background. By allowing diversity in the context of unity, communities after integration often manage to minimise conflicts in their different approaches to the conduct of marriages, birth rituals and funerals. 5.2.1.2 Resolution of conflicts under customary law Where conflicts between different systems of customary law occur, there are rules that are applied to determine the applicable system. Because there are different systems of customary law, the conflict of laws is likely to vary between these different systems. Hence, any generalisation regarding conflict of laws in this section is made merely to illustrate the point under discussion. It is not intended to be used by the courts to apply to all cases. In this next section, we will use an example from the field of family law to illustrate how the concept of conflict of laws is used to resolve conflicts between the laws of different communities or between different versions of customary law within the same community. Conflict of laws problems arise when the spouses come from different communities. This is particularly so if one spouse comes from a matrilineal culture where children belong to the wife’s family and the other spouse comes from a patrilineal background. In a conflict of this nature, there is evidently no single rule applicable across different systems of customary law. Arguably, the court would have to determine the conflicts rule on a case-by-case basis.17 Conflicts may also arise within the same community, for example between different versions of customary law within a patrilineal community. During marriage negotiations, for instance, issues surrounding the custom of lobolo and the delivery of the goods arising therefrom are decided according to the version of customary law applicable to the bride’s family group which invariably hosts the negotiations.18 The connecting factor here is the law of the wife’s family.19 The husband’s delegation comprises visitors who come to ask for the hand of the woman in marriage. This request is tabled, deliberated on and then either accepted or rejected according to the law of the wife’s family. The resulting contract is framed according to the wife’s version of customary law. However, it would appear that the version of customary law of the husband’s family determines the consequences of the marriage, for instance the status of the 141

bride and her children, and their relationship with the rest of her husband’s clan.20 In terms of these relationships, she relinquishes her membership of her maiden family and joins that of her husband. Her husband’s version of customary law governs the family unit, known as the house, which the marriage establishes within the broader household of the husband’s family.21 Membership of the husband’s family means that both the wife and her husband fall under this family’s version of customary law, including its system of succession.22 5.2.2 Legislative intervention The discussion of conflict rules in this section is limited to the legislation of 1988 which is still in force.23 In 1988, Parliament enacted legislation to regulate the determination of the appropriate legal system in conflicts between systems of customary law. In this respect, section 1(3) of the Law of Evidence Amendment Act (LEAA)24 states: In any suit or proceedings between Blacks who do not belong to the same tribe, the court shall not in the absence of any agreement between them with regard to the particular system of indigenous law to be applied in such suit or proceedings, apply any system of indigenous law other than that which is in operation at the place where the defendant or respondent resides or carries on business or is employed, or if two or more different systems are in operation at that place (not being within a tribal area), the court shall not apply any such system unless it is the law of the tribe (if any) to which the defendant or respondent belongs. Interestingly, this section refers to ‘proceedings between Blacks’ despite efforts made in section 1(1) to portray this Act as non-racial legislation. However, section 1(3) is no doubt a conflict of laws provision as it seeks to regulate the version of customary law to be chosen in specified complex situations. Before arriving at the decision as to which version of customary law to apply in those circumstances, the court must follow the steps below: 

•It must first make a finding as to whether the parties agreed expressly or tacitly as to the version to be applied at judicial proceedings.

142



•If the parties made an express agreement, the court’s task is simply to implement the agreement. This is because the freedom to choose a legal system is protected by the constitutional right to participate in the culture of one’s choice which the courts must respect.25



•In the event of a tacit or implied agreement, the court will impute the terms of the agreement to the parties, taking into account their prior conduct, their cultural orientation or the nature of the transaction.26



•In the absence of any agreement between the parties, the court will seek to resolve the conflict by selecting the version of customary law that applies to the place where the defendant resides or works if such is the only prevailing version at that place.27



•Where the defendant’s version of customary law is one of several versions prevalent at either his or her residence or workplace neither of which is in a traditional area, the court must apply the first-mentioned version. Apart from the unnecessary complexities of application, this requirement refers to confusing and obsolete concepts, such as ‘tribes’, which have derogatory connotations and may no longer mean anything to many people.28

COUNTER POINT Is there a need to amend section 1(3) of the LEAA? Section 1(3) of the LEAA is controversial and unsatisfactory in several respects and it appears to create more problems than it solves. For instance, there is no basis on which section 1(3) chooses connecting factors such as residence or workplace. These factors are borrowed from the common law, thus arbitrarily preferring the defendant’s version of customary law to the plaintiff’s.29 The choice of the version of customary law prevalent in the defendant’s traditional community would be a better connecting factor than residence.30 The choice of the defendant’s traditional community would amount to the parties’ personal law, which would be better still than the choice of their traditional authority which Bennett suggests.31 The problem with the suggestion of a traditional authority is that it would tie a party’s version of customary law to a particular geographical area, thereby prejudicing those customary law adherents and litigants who do not have ties with traditional authorities. 143

A better approach to resolving these issues is to amend section 1(3) to provide for a single rule that empowers the courts to apply the system of law that best serves the interests of justice and that complies with the Constitution. At the same time, the courts should be required to ascertain such a rule by reference to the living customary laws of the litigants. In other words, since courts must always strive for justice, they should apply the system of customary law that best serves this goal and that reflects the binding practices of the adherents of the system of customary law chosen, provided that it complies with the Constitution. It follows from this proviso that if the chosen system does not comply with the Constitution, it would have to be developed in accordance with section 39(2) of the Constitution. This proposed approach affirms the application of living customary law in the field of conflict of laws while adhering to constitutional principles. 5.3 Conflict rules regulating conflicts between customary law and the common law Conflicts between laws do not only happen when South African law is involved with a foreign legal system. Such conflicts also occur in our national legal system where our law consists of components with different sources of origin and conceptual backgrounds. This means that in South African law, disputes often occur where the rules of customary law and the common law compete for selection.32 5.3.1 Conflict of laws rules during the colonial era The history of the recognition of customary law in South Africa is dealt with in chapter 1 of this book. This chapter will therefore deal only with the historical aspects of conflict rules where this is necessary for the understanding of these rules. Prior to 1652, customary law enjoyed unchallenged sovereignty as it was the only legal system with jurisdiction in South Africa. The only choice of law that needed to be made was which system of customary law to apply to litigants from different cultural backgrounds. In 1652, the first group of Hollanders led by Jan van Riebeeck arrived at the Cape of Good Hope to establish a refreshment station for use by their company’s trading empire.33 Roman-Dutch law, as it obtained in the province of Holland34 in the Netherlands, regulated the legal affairs of these Hollanders who were employees of the Dutch East India Company.35 144

In due course, the company transformed itself into a permanent governing authority and became involved in business with Africans. An internal conflict question arose as to which of the two legal systems should apply to those transactions involving Africans and Europeans.36 The conflict rule that developed from this relationship was that in the event of a conflict between Roman-Dutch law and customary law, Roman-Dutch law prevailed. This indicates the existence of an unequal relationship37 arising from the fact that Roman-Dutch law was imposed over customary law as the primary legal system. The selection was not informed by any connecting factor recognised in the discipline of conflict of laws other than the Dutch colonisers’ view that European law was superior to African law.38 This act of imposing Roman-Dutch law on transactions involving Africans and Europeans had nothing to do with a just resolution of a conflict between the two legal systems. This is evidenced by the application of Roman-Dutch and English law even to purely customary law disputes involving only Africans after the British had taken over the Cape. The British colonisers initially applied Roman-Dutch law and later English law as the lex fori regardless of the applicability of customary law as the lex causae. The reason for this was ostensibly to rescue Africans from the application of their supposedly inferior justice system.39 Furthermore, the British arbitrarily chose Roman-Dutch and English law through the politics of non-recognition of customary law so that these two legal systems were recognised as the only legal systems. They therefore enjoyed the status of the law of the land which in turn meant that they enjoyed preference as the law of the place in which the dispute is heard.40 To entrench Roman-Dutch and English law, the British dispensed with the application of conflict rules. Hence, courts were ordered to apply English or Roman-Dutch law, depending on whether they were situated in Natal or the Cape Colony, as the primary system in all cases. The courts were merely to use their discretion as to when to apply customary law as the lex causae in the interests of justice.41 The subjugation of the Koi-San customary law to Roman-Dutch law rendered it obsolete.42 This attitude towards customary law persisted under the British policy of non-recognition following the Second British Occupation of the Cape. Unlike the Dutch settlers who had neither abolished nor specifically recognised customary law, the British initially specifically excluded its application ostensibly on the principle of equality based on the norm that nobody should be subjected to an inferior system.43 145

When white rule expanded into the eastern interior to include areas with a dense black population, the government’s policy of vigorous non-recognition of the customary legal system started to show cracks. The personnel required to administer the common law in the Cape Colony was not available.44 It was this realisation that forced the British to rethink the rigid conflict of laws rule that preferred the application of Roman-Dutch and English law to Africans. Instead, they considered the conflict of laws rule that allowed the choice of customary law, albeit subject to the repugnancy clause.45 With the expansion of white rule into the northern interior of South Africa through the Great Trek which started in 1835, the rigid application of Roman-Dutch and English law reveals a refusal to practise conflict of laws principles. The application of some customary law was allowed in the territories now known as KwaZuluNatal46 and the then Boer Republics of the Transvaal (comprising Gauteng, Limpopo, Mpumalanga and North West) and Orange Free State (now the Free State). However, the version of the repugnancy clause applied left minimal scope for the application of customary law.47 5.3.2 Conflict of laws rules during the Union era When the Union of South Africa was formed in 1910, all the territories mentioned above were consolidated under one rule which excluded Africans from social, legal and political participation. To provide a legal framework for the establishment of a uniform ‘native’ policy for the entire Union, the Native Administration Act, later known as the Black Administration Act (BAA), was enacted in 1927.48 Section 11(1) of the BAA made the choice of customary law a matter of judicial discretion and read as follows: Notwithstanding the provisions of any other law, it shall be in the discretion of the courts of the native commissioners in all suits or proceedings between Natives involving questions of customs followed by Natives, to decide such questions according to the native law applying to such customs except in so far as it shall have been repealed or modified: provided that such native law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the 146

custom of lobolo or bogadi or other similar custom is repugnant to such principles. COUNTER POINT Conflict rules versus imperial interests The use of judicial discretion to choose customary law in resolving disputes between Africans was not so much a conflict rule that was meant to resolve the conflict between the two legal systems as an instrument for furthering the interests of the colonial, Union and apartheid governments.49 This resulted in a conflict of interpretation between judicial officers in the Native Appeal Court (later known as the Appeal Court for Commissioners’ Courts). One interpretation was influenced by the previous Transvaal policy of segregation and held that customary law was primarily applicable in resolving disputes between Africans.50 The other interpretation was influenced by the Cape policy of assimilation which held that the common law was primarily applicable in these disputes.51 The matter was eventually settled in Ex parte Minister of Native Affairs: In re Yako v Beyi where Schreiner JA expounded on the application of judicial discretion as follows: I find no support in the language of Act 38 of 1927 [referring to section 11(1) of the BAA] for the president’s view that native law should be treated as prima facie applicable in cases between natives. On the contrary, the indications are rather that common law was intended to be applied unless the native commissioner in his discretion saw fit in a proper case to apply native law.52 The dictum in Yako v Beyi reveals the purpose of the BAA to be the subordination of customary law to the common law through the courts. This much is confirmed by the inclusion of the repugnancy clause in section 11(1) of the BAA. This clause enforced the sovereignty of the common law by demanding that the adherents of customary law observe the moral standards of the common law. The application of a uniform ‘native’ policy through the BAA with its repugnancy clause sought to confirm the status of customary law as a subsystem of the common 147

law rather than to select the system which best served the interests of justice. It served to direct the courts to choose the official version of customary law that complied with common law standards in preference to the living version founded on African cultural norms.53 Moreover, the choice of a customary law rule on the basis that it complied with common law standards of morality regardless of its distorting impact on African cultural norms does not seem to accord with the purposes and principles of conflict of laws. Thus, section 11(1) of the BAA was designed to serve the purposes of colonial, Union and apartheid legalism rather than to choose a just solution for the dispute. 5.3.3 Conflict of laws rules during the apartheid era Under the BAA, customary law applied only to black people and all transactions involving other races were dealt with according to the common law.54 In due course, the BAA was repealed and replaced by the LEAA. However, there is controversy about the extent to which section 1(1) of the LEAA is a conflict rule. COUNTER POINT Is section 1(1) of the LEAA a conflict of laws rule? Authors and case law seem to hold different views on certain aspects of this section which make the answer to this question less obvious. The following are some of the positions held. Bennett holds the view that the LEAA is not a conflict of laws enactment. He states: In summary, the Law of Evidence Amendment Act does very little to assist courts in deciding when to apply customary law. In fact, with the exception of s 23 of the Black Administration Act [now repealed] … the South African legislature has provided no explicit choice of law rules.55 However, he regards the part of section 1(1) of the LEAA that contains the repugnancy clause to be a conflict of laws rule. He states:

148

The proviso [i.e. the repugnancy clause] can be invoked either as a choice of law rule or only after customary law has been selected as the applicable system (own emphasis).56 The following are examples of a situation when the repugnancy clause is applied as a conflict of laws rule and when it is not applied as such a rule. Example

1

In case C, customary law rule X conflicts with common law rule Y. The court finds X to be repugnant to public policy or natural justice and strikes it down. The court then applies rule Y to the case. In other words, if section 1(1) is used as a conflict of laws rule, then once the court declares a rule of customary law to be repugnant to public policy or natural justice, it should apply the common law to the case in place of the invalidated customary law rule. The following is the scenario when the repugnancy clause is not used as a conflict of laws rule: Example

2

In case C, customary law rule X conflicts with common law rule Y. After the court has consulted the conflict of laws rules, for example the parties’ agreement,57 it decides that rule X is applicable. If the court then decides that rule X is repugnant to public policy or natural justice, it strikes it down but does not apply rule Y to the case. The result of not using the repugnancy clause in this example is that there is a vacuum in terms of the applicable law and section 1(1) does not indicate how this vacuum should be filled.58 There is therefore an advantage in treating the repugnancy clause as a conflict of laws rule. This is so because no vacuum is created as to what law the court should apply after it has invalidated the customary rule as it applies the common law. The disadvantage is that this approach undermines the Constitution as a test of the validity of the rules of customary law. By replacing the customary rule which is repugnant to public policy with the common law, the conflict of laws process removes the possibility of the court developing the invalidated rule according to section 39(2) 149

of the Constitution.59 Hlophe JP supported this argument in his dictum in Mabuza v Mbatha in which he expressed the view that the Constitution rather than the repugnancy clause is the appropriate test for the validity of customary law: The approach whereby African law is recognised only when it does not conflict with the principles of public policy or natural justice leads to an absurd situation whereby it is continuously being undermined and not properly developed by the courts, which rely largely on ‘experts’. This is untenable. The courts have a constitutional obligation to develop African customary law, particularly given the historical background referred to above. Furthermore, and in any event, s 39(2) of the Constitution enjoins the judiciary when interpreting any legislation, and when developing the common law or customary law, to promote the spirit, purport and objects of the Bill of Rights.60 In Thibela v Minister van Wet en Orde,61 the High Court held that section 1(1) of the LEAA is a conflict of laws rule. However, Kerr has criticised this decision and argues that: what s 1(1) does is to impose a duty in appropriate cases to take judicial notice of customary law, not to apply it.62 Bennett agrees with the position held by Kerr.63 Thus, except for the repugnancy clause, section 1(1) of the LEAA is not a conflict of laws rule for resolving conflicts between customary law and the common law. However, even the use of the repugnancy clause as a conflict of laws rule is problematic in the context of the constitutional recognition of customary law. 5.4 The regulation of conflict of laws under section 211(3) of the Constitution Section 211(3) of the Constitution reads: The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

150

5.4.1 Section 211(3) of the Constitution as a conflict of laws rule For the reasons that follow, section 211(3) of the Constitution is a conflict of laws rule. It enjoins the courts to select customary law when customary law is applicable subject to the Constitution and any legislation that specifically deals with customary law. As stated in chapter 4 of this book, section 211(3) plays multiple roles, including that of being a conflict of laws rule. In line with its role as a conflict rule, section 211(3) determines that matters governed by customary law must be resolved according to this legal system. Rautenbach illustrates the various historical stages in the development of the choice of customary law as the applicable system in the following terms: Customary law was initially ignored by the colonials, then tolerated and eventually recognised, albeit with certain reservations and conditions. The situation did not change much over the years until the Constitution of the Republic of South Africa, 1996, finally brought customary law on a par with the common law of South Africa by affording it constitutional recognition, but subject to the Constitution and other legislation.64 COUNTER POINT A controversial suggestion for the reform of conflict of laws In its report on the reform of the conflicts of laws rules in 1999,65 the South African Law Commission (SALC) suggested that in the event of a conflict between customary law and the common law, the conflict of law process to determine the selection of the applicable law should be governed directly by constitutional norms. It stated: [A] court’s decision to apply customary or common law must be in harmony with the supervening value system of the country, the Bill of Rights. Indeed, it can be argued that constitutional norms should now directly enter the choice of law process to determine the selection of an applicable law. For instance, where a plaintiff and defendant’s interests diverge on account of an underlying conflict of laws, the 151

court’s choice of one or other legal system should be determined by selecting the law that gives best expression to the Bill of Rights. This would be a novel approach in South Africa, where choice of law rules have generally been mechanically applied, without regard to the ultimate result. Because a bill of rights is a transcendent code of norms, however, the conflict of laws should no longer remain valueneutral. Until rules of customary or common law have been amended by court or Parliament to bring them into line with the Bill of Rights, if application of customary law results in unfair discrimination the common law may (as a temporary measure) be applied in its place provided, of course, that the common law would secure a result more in accord with the Bill of Rights.66 We submit that this proposal is untenable because the approach it suggests is likely to hamper the development of customary law by the courts. A court should deal exhaustively with the incompatibility of the customary law in question with the Constitution and consider the possibility of the development of the customary law in terms of section 39(2) of the Constitution during the conflict of rules process. Should this not take place and the court replaces the customary law with the common law during the conflicts of law process, other courts will then be precluded from considering and developing the customary law if necessary. 5.4.2 Conflict of laws rules under the Constitution Section 211(3) of the Constitution does not provide any guidelines as to how the courts should determine the applicable legal system when customary law conflicts with the common law or with another system of customary law. However, we submit that conflicts between systems of customary law are determined by the legislation dealing with conflicts of this nature, namely section 1(3) of the LEAA discussed above. As already argued above, the LEAA does not generally deal with conflict of laws for determining conflicts between customary law and the common law. We submit that the factors that the courts developed for this purpose before the new constitutional dispensation should continue to determine these conflicts with appropriate modification. We discuss the relevant factors below. 152

5.4.2.1 Agreement and intention Parties to a contract can agree expressly or tacitly on the legal system that should regulate their rights and duties. The courts generally appreciate parties who choose the system of law which they intend should govern their transaction. This arrangement promotes the objective of the conflict of laws to bring justice to the matter because the parties normally select a legal system that is connected in some way with them or with the transaction. Yet there are problems resulting from allowing the parties too much autonomy as this may be open to abuse. For instance, they cannot be allowed to exclude the legal system’s mandatory rules nor can they select a system that is prejudicial to the interests of third parties. 5.4.2.2 Nature of the transaction Section 211(3) of the Constitution demands the application of customary law when this is the applicable legal system. The requirement of applicability implies that the Constitution makes the nature of the transaction an indicator that the parties chose customary law if the dispute arises from a transaction peculiar to customary law such as the agreement for the payment of lobolo/bogadi. Some people contract civil or Christian marriages after the lobolo/bogadi transaction. This situation calls for the making of a choice between customary law and the common law in the event of a dispute about the consequences of the marriage. In the past, the courts ignored the primary role of the lobolo/bogadi transaction which always preceded the civil ceremony. They accepted that the Western nature of the marriage ceremony was enough of an indicator that the parties had chosen the common law. This was based solely on the dominant position of the common law. Today, the matter is more complicated because of the equality of these two components of South African law. The Constitution protects the right to practise the culture of one’s choice, thus enabling the parties to practise the custom of lobolo/bogadi.67 A court would probably hold that customary law is applicable since the parties who practise this custom do so because it is part of their tradition regardless of the fact that they subsequently also undertook the civil or Christian marriage ceremony. Selecting the nature of the transaction as a conflict of laws rule is therefore a dramatic shift away from the previous situation where race was at the centre of the

153

conflict of laws process. The nature of the transaction focuses on the cultural environment in which it takes place regardless of irrelevant factors such as race and wealth. Regardless of their race, the parties can in the ordinary course of business make a customary law transaction which would attract the application of customary law. Furthermore, the same parties can make a customary law transaction and then a common law transaction on the same day. There is nothing preventing people who were negotiating lobolo/bogadi in the morning from registering a business on their way home in the afternoon. In this scenario, customary law would apply to the negotiation of lobolo while the common law might apply to the business the parties registered if the transaction is of Western orientation. We submit that the form of a transaction and the nature of a prior transaction deal with the same subject matter and should not be discussed under separate headings as some scholars do.68 5.4.2.3 Subject matter and environment of the transaction Under the old order, the courts used the fact that the transaction involved homegrown mealies and the parties stayed in a homeland to determine that customary law was applicable to their dispute.69 This is a derogatory way of choosing the applicable legal system because it was based on the supposed inferiority of Africans and their law, judged by the parameters demarcated for them during the colonial, Union and apartheid eras. However, under the Constitution, people have a right to live anywhere in the Republic as there are no longer homelands. Hence, such a conflict of laws rule can no longer be countenanced. Where the transaction is common in both customary law and the common law, the court should look rather at the form of the transaction and the orientation of the parties before deciding on the applicable system wherever the parties are living in the country. The court should not be swayed by irrelevant factors such as as wealth or poverty in deciding on the applicable legal system. The adherents of customary law should not be judged to be de-Africanised and treated under the common law simply because they stay in a Gauteng suburb and drive German cars. Similarly, customary law should not be applied to people living according to Western culture simply because they live in a township and eat mealie pap without condiments. People’s cultural orientation exists independently of their 154

material conditions and places of residence. Their own conceptual outlook of who they are should be apparent from the nature of their transaction which should direct the court towards the applicable legal system. 5.4.2.4The lifestyle of the parties This is another inappropriate category of conflict of laws rules because it focuses on people rather than transactions. It labels people as adherents of customary law or the common law instead of labelling the transactions as falling under customary or the common law depending on the transaction. The reason given for categorising people in this way for the purposes of conflict of laws is that there are no prior transactions when dealing with delictual claims and family obligations. This is not a valid argument because delictual claims are already treated as either common law or customary law wrongs without regard for how the parties live. Delictual claims arising from motor car collisions are always dealt with as common law wrongs because of their nature regardless of the parties involved. A legal wrong such as the seduction of a virgin can be handled either under customary law or the common law depending on the culture chosen by the parties. If the father or guardian of the woman, as plaintiff, brings the claim against the defendant by means of traditional African methods, a customary law seduction procedure must be followed. However, the woman herself can also institute a common law claim if she is an adult. If not, her parent or guardian could institute such a claim on her behalf. In the past, a conflict of laws rule was formulated on the basis that the plaintiff farmed on a large scale, owned property in an urban area, was married by civil or Christian

rites,

Christian church.

had 70

a

high

school

education

or

was

an

elder

at

a

The defendant had comparable credentials, all of which had

nothing to do with the culture chosen by the parties in formulating the delictual claim. The court decided that the common law was applicable to the case based on the supposedly Western nature of the lifestyle of the parties rather than on the basis of the system the parties considered binding on them. The subtext of this conflict of laws rule is that customary law applies to people who lack these credentials and it is therefore not acceptable in the post-apartheid era.

155

5.4.2.5 Exemption from customary law This conflict of laws rule was a direct attack on African culture and was based on a succession of statutes dating as far back as Natal Law 11 of 1864. This statute allowed Africans to apply for exemption from the application of customary law provided that they were sufficiently civilised to be allowed to enjoy the benefits of the common law. All that the applicant needed to prove before the exemption was granted

was

that

he

or

she

was

literate

and

was

a

partner

in

a

monogamous marriage.71 This provision later acquired countrywide application through section 31 of the BAA. This conflict of laws rule has no place in the present dispensation as it suggests that African culture is an obstacle to the achievement of civilisation. 5.4.2.6 Marriage by civil or Christian rites In the past, the courts took marriage by civil or Christian rites as an exemption from customary law. The requirement of monogamy on which the statutory exemption was founded was also central to the Western concept of marriage and was deemed to be an indication that the spouses intended their marital consequences to be governed by the common law. Yet most Africans would have undertaken the lobolo/bogadi transaction,72 the traditional wedding ceremony in which both family groups participated73 and completed the formalities for a customary marriage prior to undertaking a Western marriage ceremony. In such a case, there would have been no conflict of laws reason for selecting the common law as the system regulating the consequences of the marriage other than mere cultural domination74 based on non-recognition of customary marriages. In the past, black people celebrated civil or Christian marriages to escape the disadvantages of non-recognition associated with the so-called customary union of the apartheid era. As the name indicates, such marriages were accorded scant recognition which amounted to non-recognition of the spouses’ marital status. The reason for marrying according to civil or Christian rites was not that black people embraced the Western tradition, but rather that they wanted to avoid having a marriage classified as a ‘customary union’ which did not provide the spouses the same official protection as a civil or Christian marriage.75

156

As a result, after the civil marriage ceremony, the spouses continued to live according to their normal traditions. For instance, the husband married more wives where necessary and his family continued maintaining his civil marriage wife after his death. Both these behaviours indicate that the African concept of marriage remained in the minds of the spouses as they never intended to be governed by the common law.76 Following the judgment of the Constitutional Court in Gumede v President of the Republic of South Africa,77the Recognition of Customary Marriages Act (RCMA)78 abolished the difference in the legal consequences between some customary and civil or Christian marriages. In the past, there was a difference between customary marriage and the civil or Christian marriage with regard to capacity to marry. In such cases, it was a conflict of laws matter whether customary law or the common law would apply. This is no longer the case as section 3 of the RCMA prescribes the same requirements for customary marriages as those for civil or Christian marriages. There are, however, inherent differences between the cultural foundations underlying customary marriages and civil or Christian marriages. First, customary marriages are potentially polygamous in the sense that a man may have more than one wife. Second, the lobolo/bogadi transaction plays a big role in bringing together two groups of families in an affinity relationship. Civil or Christian marriages, however, are monogamous in nature and recognise only the two spouses as actors in the marital relationship. These differences are irreconcilable and bring issues of conflict of laws into focus. This explains why customary law and the common law use different methods for resolving disputes arising from adultery, separation and divorce. 5.4.2.7 Testate succession A will is an institution of the common law in terms of which a testator expresses his or her wishes regarding the distribution of his or her assets after his or her death. A valid will must comply with the Wills Act79 which applies to all the people of South Africa. The Wills Act also regulates the capacity of the testator to make a valid will.80 Once the requirements of the Wills Act pertaining to the validity of the will are satisfied, the lawful contents of the will should be given effect to even if the testator’s instructions for the distribution of the inheritance are couched in customary law form. In other words, the Wills Act determines the validity of the will, the capacity of the 157

testator to make it and the testator’s intention regarding the distribution of his or her assets. However, the Wills Act does not prescribe that the testator must make his or her dispositions in a common law manner. Where a validly executed will reveals that the intention of the testator is that his or her assets should be distributed according to customary law, the Wills Act requires that effect should be given to that intention. According to customary law, the family council administering the estate of the deceased gives effect to the property dispositions the deceased makes on his or her deathbed. This is the African equivalent of a will.81 The family council feel obliged to implement such dispositions in the spirit of respect for and in deference to the wishes of the deceased.82 Similarly, a person may make donations during his or her lifetime with an instruction that these donations be implemented after his or her death. Such customary dispositions were normally interpreted consistently with the customary order of succession.83Dispositions like this are consistent with customary law and are encouraged by the South African Law Commission.84 When recorded on paper, such dispositions strongly resemble the privileged common law will which was used in South Africa until repealed by section 3(1) of the Wills Act. Customary law dispositions are not common law wills and need not comply with the latter’s rigorous requirements. Family councils always look at the context in which the deceased made his or her dispositions and implement them in terms of customary law. 5.4.2.8 Intestate succession In the past, section 23 of the BAA read with regulation 2(e) of the BAA’s regulations regulated the intestate succession of deceased Africans. No conflict of laws problems could arise as these provisions made it clear that they were the only laws under which intestate black estates could be distributed. Regulation 2 excluded those estates that were distributed in terms of a valid will and placed them under testate succession. The Constitutional Court eventually invalidated section 23 of the BAA and regulation 2(e) in Bhe v Khayelitsha Magistrate for being unfairly discriminatory on the

basis

of

race

and gender.85 This

judgment

substituted

the

Intestate

Succession Act86 for the impugned provisions and added that this was a temporary

158

arrangement pending the development of a permanent customary law of succession by the legislature. In due course, the legislature promulgated the Reform of Customary Law of Succession

and

Regulation

of

Related

Matters

Act

(RCLSA),87 endorsing

the Bhe judgment. Section 2(1) of the RCLSA provides that the property belonging to a deceased person living according to customary law who died intestate must be distributed according to the Intestate Succession Act. Section 2 of the RCLSA modifies the Intestate Succession Act which was initially designed for monogamous marriages under the common law system of succession so that it now accommodates spouses of a polygamous marriage and their children. THIS CHAPTER IN ESSENCE 

•The term ‘conflict of laws’ refers not to a conflict between legal systems but rather to the method of choosing an appropriate rule to apply in a given case in the interests of justice.

 

•Conflict of laws applies to two kinds of conflicts: Conflicts that arise between rules belonging to legal systems of different countries are called private international law.



Conflicts that occur between different legal systems operating within a single national legal system are called personal or internal conflict of laws.



•Precolonial customary law had its own concept of conflict of laws arising from social and commercial interactions between people subject to different legal systems or belonging to different jurisdictions. Customary law had mechanisms for avoiding conflict but where conflicts could not be avoided, there were rules that were used to determine the applicable system.



•The legislature intervened in 1988 with the passage of the LEAA. Section 1(3) regulates the version of customary law to be applied in specified complex situations.



•Conflicts also occur between customary law and the common law. In South Africa, the attempts to address these conflicts have a long history dating back to the arrival of the Dutch at the Cape of Good Hope in 1652 when Roman-

159

Dutch law was imposed on the colony, and later the British who in their turn introduced English law into the mix. 

•Conflict of laws also became subject to regulation by the Constitution. Section 211(3) provides that ‘the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law’.

1See Forsyth, CF (2003) Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts 4th ed 5. 2See Bennett, TW (2004) Customary Law in South Africa 49. 3See Bennett (2004) 50. In this chapter, we use the term ‘internal conflict of laws’. 4See Forsyth (2003) 4. 5Forsyth (2003) 2. 6Forsyth (2003) 1–6. 7Forsyth (2003) 2. 8Oppong, RF (2007) Private international law in Africa: The past, present, and future The American Journal of Comparative Law 55(4):677–720 at 687. 9Oppong (2007) 677. 10Oppong (2007) 687. 11Oppong (2007) 677. 12Oppong (2007) 679. 13Mahao, NL (2010) O se re ho morwa ‘morwa towe! African jurisprudence exhumed Comparative

and

International

Law

Journal

of

Southern

Africa 43(3):317–36 at 319. 14See Soga, TB (1937) Intlalo kaXhosa 6–13. 15According to Bennett (2004) 207–8, the baSotho–baTswana group of South Africans positively encourages the choice of spouses from among certain degrees of relationship by marriage. 16Mahao (2010) 333–4. 17See ch 4 of this book on the ascertainment of the content of a customary rule. 18See Fanti v Boto (16451/2007) [2007] ZAWCHC 78; [2008] 2 All SA 533; 2008 (5) SA 405 (C) (13 December 2007) where Dlodlo J held that the customary marriage did not come into being because the bride’s family was not involved 160

in the negotiations and could not state their terms. Bennett (2004) 210 and 232–3 sets out that all the lobolo/bogadi negotiations take place at the bride’s home where the terms, demands and gifts are formulated. See also Soga (1937) 72 and Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed 97. 19Bennett (2004) 199 fn 92 says: ‘Presumably, husbands must comply with the law of their wives’ families, which is the law governing payment of lobolo.’ 20Bennett (2004) 213 writes: ‘According to all the systems of customary law in South Africa, marriage is patri- or virilocal. In other words, a bride is expected to live with her husband, either at his own or his father’s homestead.’ 21Bekker (1989) 273–306. 22Bekker (1989) 273–306. 23Due to the limited scope of this chapter, we will not discuss in this section the historical position of conflict of laws rules, including the legislative provisions of 1927 and 1986, as well those of the former homelands dating back to 1965. 24Act 45 of 1988. 25Bennett (2004) 54. 26See Bennett, TW ‘The conflict of laws’ in Bekker, JC, Rautenbach, C and Goolam, NMI (eds) (2006) Introduction to Legal Pluralism in South Africa 2nd ed 15 at 25. 27Bennett (2006) 25. 28Bennett (2006) 25. 29Bennett (2006) 25. 30Bennett (2006) 25. 31Bennett (2006) 25. 32Indeed, Forsyth (2003) 5 stresses that this is not a contest between legal systems. It is rather a matter of selecting the most appropriate rather than the strongest legal system. 33See Rautenbach, C (2008) South African common and customary law of intestate succession: A question of harmonisation, integration or abolition Electronic Journal of Comparative Law 12(1):1–14 at 2. See also Hosten, WJ, Edwards, AB, Church, J and Bosman, F (1997) Introduction to South African Law and Legal Theory 337.

161

34Lee, RW (1953) An Introduction to Roman-Dutch Law 5th ed 5 writes: ‘When we speak of Roman-Dutch Law we mean not a law common to the whole of the United Netherlands, but specifically the law peculiar to the Province of Holland.’ 35Hosten et al (1997) 352–3. 36See Van Niekerk, GJ ‘Legal pluralism’ in Bekker et al (2006) 3 at 6. 37Van Niekerk (2010) 6. 38Grant, E (2006) Human rights, cultural diversity and customary law in South Africa Journal of African Law 50(1):2–23 at 13. 39Rautenbach (2008) 1. 40Bekker (1989) 44. 41Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A). 42Grant (2006) 13. 43Grant (2006) 13. 44Grant (2006) 13. 45Grant (2006) 13–14. 46In Natal, legislation established separate courts for black people. S 80 of the Courts Act 49 of 1898 provided: ‘All civil Native cases shall be tried according to Native laws, customs and usages, save so far as may be otherwise specially provided by law, or as may be of a nature to work some manifest injustice, or be repugnant to the settled principles and policy of natural equity; except that all cases arising out of trade transactions of a nature unknown to Native law shall be adjudicated upon according to the principles laid down by the ordinary colonial law in such cases; provided that nothing in this section shall be deemed to extend the operation of any law of limitation or prescription of action to any case to which but for this Act such law would not have applied.’ 47In the Transvaal, s 2 of Law 4 of 1885 read: ‘The laws, customs or usages hitherto existing among the natives shall continue to remain in force in this Republic as long as they have not appeared to be in conflict with the general principles of civilization recognized in the civilized world.’ 48Act 38 of 1927 which later became known as the Bantu Administration Act of 1927, and finally, the Black Administration Act 38 of 1927 (BAA). See Olivier, NJJ, Olivier, WH and Olivier, NJJ (Jr) (1989) Die Privaatreg van die SuidAfrikaanse Bantoetaalsprekendes 3de uitg 610–11. These changes were made

162

to coincide with the changing labels given to Africans who were initially called ‘natives’, then ‘Bantu’ and, finally, ‘Blacks’. 49Hosten et al (1997) 33. 50Matsheng v Dhlamini 1937 NAC (N & T) 89. 51Nqanoyi v Njombeni 1930 NAC (C & O) 13. 521948 (1) SA 388 (A) 397. 53See Van Niekerk (2010) 6–7. 54See Bennett (2006) 19. 55Bennett (2004) 53. 56Bennett (2004) 68 fn 244. 57One of the conflict of law rules considered below is that the parties to a dispute may agree on the applicable system of law. 58By contrast, the equivalent provisions in Zambian legislation, for example, provide that the principles of justice, equity and good conscience would apply in such a case. S 16 of the Subordinate Courts Act Cap 28 empowers the courts to apply African customary law ‘such African customary law not being to repugnant to justice, equity or good conscience [….] (ii) in cases where no express rule is applicable to any matter in issue, a […] shall be guided by the principles of justice, equity and good conscience’. 59Section 39(2) of the Constitution provides for the opportunity for rules of customary law that conflict with the Constitution to be developed rather than struck down in accordance with the spirit, purport, and objects of the Bill of Rights. 60(1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4 March 2003) para 31. 611995 (3) SA 147 (T). 62Kerr, AJ (1996) The choice of and the application of customary law South African Law Journal 113(3):408–10 at 409. 63Bennett (2004) 53. 64Rautenbach (2008) 1. 65See South African Law Commission (1999) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Conflicts of Law. 66SALC (1999) Report on Conflicts of Law para 1.71.

163

67See Fanti v Boto (16451/2007) [2007] ZAWCHC 78; [2008] 2 All SA 533; 2008 (5) SA 405 (C); (13 December 2007) and Motsoatsoa v Roro(46316/09) [2010] ZAGPJHC 122; [2011] 2 All SA 324 (GSJ) (1 November 2010). 68Bennett (2004) 54–5 discusses these topics separately. 69See Sawintshi v Magidela 1944 NAC (C & O) 47. 70Ramothata v Makhote 1934 NAC (N & T) 74 at 76–7. 71Bennett (2004) 56–7. 72See Koyana, DS (1980) Customary Law in a Changing Society 27. 73See South African Law Commission (1998) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Customary Marriages paras 4.1.13 and 4.4.10 for a proposal that such actions indicate the spouses’ intention to be governed by customary law. 74See Bennett (2004) 57. 75See Santam v Fondo 1960 (2) SA 467 (A). 76See Mrubata v Dondolo 1949 NAC 174 (S) at 176. 77(CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008). 78Act 120 of 1998. 79Act 7 of 1953. 80Bennett (2004) 60. 81Bennett (2004) 351. 82Schapera, I (1955) A Handbook of Tswana Law and Custom 2nd ed 230. 83See Nomatshaka v Mhlokonywa 1933 NAC (C & O) 18 at 23. 84South African Law Commission (2000) Project 90 The Harmonisation of the Common Law and the Indigenous Law Discussion Paper 93 Customary Law of Succession para 1.3. 85(CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 100. 86Act 81 of 1987. 87Act 11 of 2009.

164

PART II

Personal law and personal rights in African customary law CHAPTER 6 Marriage CHAPTER 7 Consequences of marriage CHAPTER 8 Dissolution of marriage CHAPTER 9 The customary law of succession CHAPTER10 Contractual obligations in customary law CHAPTER11 Customary law of delict CHAPTER12 Criminal law

165

Chapter 6 Marriage 6.1 Introduction 6.2 Recognition of customary marriages 6.3 The Recognition of Customary Marriages Act 120 of 1998 6.4 Legal requirements for a valid customary marriage concluded before 15 November 2000 6.5 Legal requirements for a valid customary marriage concluded after 15 November 2000 6.6 Registration of a customary marriage This chapter in essence 6.1 Introduction This chapter discusses the customary law of marriage, especially in the context of the Recognition of Customary Marriages Act (RCMA)1 which came into operation on 15 November 2000. This legislation made significant changes in customary law while simultaneously attempting to preserve some aspects of this law. Many of these changes were direct attacks on patriarchy and the lowly status of women and children in customary marriages. Provisions of the RCMA effected these changes by recognising the equal status of the spouses, reconfiguring the matrimonial property system and introducing court-granted divorces. The RCMA also affirms the best interests of the child as a guiding principle in matters relating to the welfare of children during the marriage and at its dissolution. Other provisions, such as the requirement of registration, attempt to improve the administrative governance of customary marriages. Notwithstanding the passage of the RCMA, this chapter is also concerned with the customary law of marriage as it stood before the promulgation of the legislation for two sound reasons. In the first place, debate continues about the effect of the RCMA’s provisions, especially those that appear to strike at the heart of customary law. These include the attempts to manage polygamy, the refusal to make lobolo a 166

compulsory essential of marriage and the introduction of judicial divorces. Second, the RCMA itself opens the door to a consideration of traditional practices and rituals by making the validity of a customary marriage concluded after the date of its commencement dependent on the marriage being ‘negotiated and entered into or celebrated in accordance with customary law’.2 The chapter notes, as other chapters have done, the challenges posed by the search for living customary law on many of the issues raised. It also raises some questions about the contemporary relevance of many of the rules and principles inherited from official customary law in the area of marriage. Customary marriage is a fundamental building block in traditional African family law and is as much a social process as it is a legal one. It is characterised by the involvement of two kinship groups at every stage of the marriage process from formation to dissolution, including during the married life of the spouses. It is also characterised by a value system that emphasises the non-individual nature of the relationship which traditionally involved family purposes beyond the immediate interests of the couple.3 Ferraro usefully describes customary marriage in these general terms: … traditional marriages are more group oriented, tend to emphasize the patrilineal descent of children, involve the payment of lobolo, encourage polygamy as an ideal, place primary emphasis on childbearing, and are very difficult to terminate.4 Customary marriage was also a private matter in which the state played no role nor indeed did any other outside authority. The validity of the union depended not on the intervention of any third party, but on the agreement reached by the families involved. This, in part, explains the description of customary marriage as processual (relating to or involving the study of processes). In the absence of marriage officers and marriage registers, forms, declarations and signatures, the journey towards married status allowed for many detours and accommodated multiple entry points. For this reason, it is sometimes difficult to ascertain the existence of a marriage at any given point in time5 since even death does not necessarily dissolve the union.6

167

6.2 Recognition of customary marriages Although the RCMA governs customary marriages today,7 the traditional laws and rituals pertaining to marriage continue to be relevant. This is because in setting out the requirements for a valid customary marriage, the RCMA requires that the marriage needs to be negotiated and entered into or celebrated according to customary law.8 Due to the recognition language it uses, the RCMA also renders it necessary to discuss customary marriages under two separate headings: marriages concluded before the Act came into operation on 15 November 2000 and marriages concluded after that date.9 Before the coming into operation of the RCMA, customary marriages were subject to

limited

recognition

polygamous nature.

in

South

Africa

as

a

result

of

their

potentially

10

PAUSE FOR REFLECTION Ad hoc marriages: a history of non-recognition In 1893 in the case of Ngqobela v Sihele, Lord de Villiers CJ said in respect of a customary marriage: A union, therefore, founded only upon Native customs and usages within the Colony proper is not a marriage, whatever rights may by special legislation have been given to the offspring of such a union in respect of the distribution of the property left by their parents upon their death. In the absence of special legislation recognizing such a union as a valid marriage, the courts of law are bound – however much they may regret it – to treat the intercourse, I will not say as immoral, but as illicit.11 The English definition of marriage as a ‘voluntary union for life of one man and one woman’ set out in the case of Hyde v Hyde andWoodmansee12 was imported into South African law in the case of Seedat’s Executors v The Master (Natal).13 The Court felt that it could not recognise customary marriages because, being potentially polygamous, they offended against public policy.14

168

The

situation

was

different

in

Natal

where

the

Natal

Code

of

Zulu Law15 recognised customary marriages for all purposes. Supporting such recognition were special courts for blacks which could apply customary law as long as it was not repugnant to public policy and natural justice.16 Failure to recognise customary marriages in the common law courts had serious consequences for African family life. Dlamini lists the kinds of hardship that were visited on African families by this exclusion:17 

•Spouses married in terms of customary law were not considered to be husband and wife. They therefore did not owe each other a duty of support.



•Their children were considered to be illegitimate.



•If the man married another woman by civil rites, the civil marriage extinguished the customary marriage, leading to the discarding of the first wife and her children.18

Limited recognition was introduced in the form of statutory enactments aimed at remedying these glaring anomalies that resulted from non-recognition. Statutes were passed to afford limited recognition of customary marriages to alleviate the plight of customary spouses in the areas of tax,19 maintenance20 and the dependants’ action in the case of the unlawful killing of a breadwinner.21 It was largely to correct this situation that the South African Law Commission (SALC) embarked on its investigation into customary marriages.22 PAUSE FOR REFLECTION Recognition of customary marriages long overdue In its Report on Customary Marriages the SALC recommended the following: In order to remove the anomalies created by many years of discrimination, customary marriages, both existing and future unions, must now be fully recognized. To do so will comply with ss 9, 15, 30 and 31 of the Constitution, provisions which suggest that the same effect should be given to African cultural institutions as to those of the western tradition.23

169

The Commission reached this conclusion after surveying the position of customary marriages under colonialism, Union and apartheid, especially the careful distinction drawn in the Black Administration Act (BAA)24 between marriages and the so-called customary unions where the BAA did not recognise customary unions as real marriages.25 The problems that flowed from this lack of recognition included the wholesale withholding of the status of a real family from Africans married by customary rites and their children. This led to a host of other anomalies. Nonrecognition also led to the effective superiority and overriding effect of a civil marriage

whenever

customary marriage.

it

was

contracted

during

the

existence

of

a

26

6.3 The Recognition of Customary Marriages Act 120 of 1998 Terminology polygamy

a practice according to which a married person has more than one wife or husband at the same time

polygyny

a version of polygamy where the husband has more than one wife; used interchangeably with polygamy in South Africa

polyandry a version of polygamy where the wife has more than one husband According to its preamble, some of the main objectives of the RCMA are: 

to make provision for the recognition of customary marriages



to specify the requirements for validity



to regulate registration, proprietary consequences and dissolution



to provide for the equal status and capacity of spouses in these marriages.

Section 1 of the RCMA defines customary marriage as ‘a marriage concluded in accordance with customary law’. The RCMA defines customary law as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’.27 In addition, the RCMA defines lobolo as ‘the property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which

170

a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage’.28 The RCMA grants recognition equally to customary marriages concluded before the commencement of the Act on 15 November 2000 and those concluded after that date, whether monogamous or polygamous.29 PAUSE FOR REFLECTION The regulation of polygamy The issue of polygamy is important as a factor in the assessment of the constitutionality of customary marriage as well as an important question in the proof of the existence of such a marriage. In attempting to regulate the patrimonial consequences of polygamy, the legislature opened up an area of controversy by enacting section 7(6) of the RCMA. Originally intended to protect the property rights of the first wife or wives in the event of the husband intending to conclude a further marriage, the section became embroiled in issues of proof of the existence of a customary marriage. In Mayelane v Ngwenyama,30 heard in the North Gauteng High Court in 2010, Bertelsmann J considered section 7(6) which provides: A husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages. The learned judge came to the conclusion that failure to comply with this provision, which he considered mandatory, invalidated any attempted subsequent customary marriage.

The

Supreme

Court

of

Appeal

(SCA)

overruled

this

decision

in Ngwenyama v Mayelane31 and held that failure to follow the instructions in section 7(6) does not invalidate a subsequent marriage. Like the High Court, the Constitutional Court in Mayelane vNgwenyama32 invalidated the marriage but on a different ground, namely the absence of the consent of the wife to the subsequent marriage.

171

Thus, compliance with section 7(6) is not a requirement for a valid marriage as the High Court had held, but the consent of the first wife to the husband entering into a polygamous marriage is a requirement in some cases.33 The issue of polygamy as a consequence of marriage is discussed in more depth in chapter 7 of this book. Other

aspects

of

the

recognition

formula

have

attracted

scrutiny

on

constitutional grounds.34 These include the issue of whether non-Africans can enter into a customary marriage. It is submitted that the answer hinges on a true understanding of the philosophy underlying customary marriage. This philosophy places the woman’s family at the centre of the negotiations and therefore firmly places in their hands the power of allocating ‘approved suitor’ status to potential husbands.35 PAUSE FOR REFLECTION Who can marry in terms of customary law? In customary law, the initial relationship between the wife-seekers and the family of the potential bride is not an equal one. The woman’s family holds immense power as the people who can either accept or reject offers of lobolo in cases both of regular proposals and the various forms of irregular initiation of negotiations. In other words, they can decide with whom to negotiate. An appreciation of this position assists in answering the oft-asked question whether a non-indigenous African can contract a customary marriage in terms of the RCMA. The answer lies in section 3(1)(b) of the RCMA which provides that the marriage must be negotiated and entered into or celebrated in accordance with customary law. If this requirement is properly honoured, a non-African may be accepted by the woman’s family as a suitor with whom lobolo negotiations may be commenced. It appears to follow that the woman’s family would need to be themselves adherents of customary law, observing known and accepted ways of conducting the negotiations and celebrations required by the RCMA. According to the definition of customary law in section 1, these ways need to be ‘customs and usages traditionally observed among indigenous African peoples of South Africa and which form part of the culture of those peoples’.

172

In our view, ‘indigenous African peoples of South Africa’ are those people who are born into those groups or communities that are native to the continent and who, as members of such groups or communities, observe or practise a system of customary law.36 If this definition does not preclude white Africans, then clearly a black or white suitor can marry into a black or white family that observes a system of customary law. If white Africans are precluded, the inescapable conclusion is that a white man can marry into a black family while neither a black man nor a white man would be able to marry into a white family in terms of the RCMA. Before analysing the legal rules relating to marriage itself, it is necessary to clear the issue of marriage preliminaries, which are not only popular in cultural folklore, but are also often misunderstood or confused with marriage itself. Sometimes these preliminaries are about the rich ritual that surrounds the negotiation process;37 at other times they amount to betrothal in its ordinary sense.38 PAUSE FOR REFLECTION Marriage negotiations as a ‘mating dance’ Among the Nguni, for instance, many practices have developed around the feigned reluctance of the woman’s guardian to meet the delegation of negotiators from the groom’s family. In some cases, this has led to various kinds of additional payments as ‘incentives’. For instance, in some communities, a small gift called the imvulamlomo (the mouth opener) is routinely followed by another dubbed the ingqaqamazinyo (the teeth untangler). Outsiders are often amused by the practice where a gift is proffered to persuade the woman’s guardian to open his mouth to commence the negotiations, which is then followed by yet another incentive to untangle his teeth so that he can speak. The point about these preliminaries is that they are part of the ‘mating dance’ between the future in-laws: the gifts are small tokens in the drama, carrying symbolic, not commercial, value. Needless to say, such practices have no legal significance and play no role as essentials for a valid customary marriage. Criticisms of cases where these token exchanges have been abused to inflate lobolo are justified, but they sometimes miss the point of the practices. 173

The lobolo negotiations themselves are something of a carefully choreographed dance dramatising the unequal power relations between the wife-seekers and the woman’s people who are, as it were, the holders of the prize.39 The mock hostility and pretended resistance to the suitors’ approaches, the gradual thawing as the negotiations get properly underway, and the spontaneous joy and camaraderie between the two groups once agreement has been reached are the mainstays of the process. They are also in large part responsible for the enduring popularity of the practice.40 The importance of lobolo in an African customary marriage and discussion of its advantages and disadvantages are well documented, from the discredited colonial and missionary view that the transfer of cattle amounted to wife-purchase to contemporary debates about the value of lobolo in modern society.41 The prevalence of the practice is often at the heart of the perception of customary marriage as a process rather than an event. There are very few indigenous communities in which lobolo is paid all at once. Indeed, in some Nguni societies, for example the emaSwati, settling the obligation in one payment is actively discouraged. This is seen as an arrogant flaunting of one’s wealth and depriving the two families of an ongoing talking point. While all this is culturally interesting, it does bedevil the question of ascertaining the existence of a customary marriage especially in the face of denials of its existence, usually on the death of the husband.42 Viewing the lobolo negotiations as the gateway to a relationship in this way also explains the many ‘irregular’43 ways of initiating marriage and why some of these irregular ways become ‘regularised’ by the woman’s people’s willingness to accept lobolo while others do not. 6.4 Legal requirements for a valid customary marriage concluded before 15 November 2000 Terminology ukumekeza

the formal integration of the bride into the bridegroom’s family according to emaSwati customary law usually involving her dancing in the cattle byre while mockweeping symbolically44

174

a form of integration of the bride into the bridegroom’s family (amaZulu/amaXhosa)

imvume

usually involving the slaughter of a small beast by the latter45 The RCMA recognises as valid all existing marriages, monogamous or polygamous, which were valid under customary law at the time of the commencement of the Act.46 This means that the customary law applicable to marriages concluded before

the

RCMA

remains

relevant

with

its

attendant

problems

of ascertainment.47 These problems are partially alleviated by the existence of the Codes of Zulu Law48 which codify in part the law on the subject for KwaZulu-Natal. Needless to say, this is official customary law. This leaves the applicable customary law to be ascertained for the rest of the country. Essentials of a customary marriage in KwaZulu-Natal are found in section 38(1) of both Codes and are set out as follows: (a) The consent of the father or the guardian of the intended wife (if she is a minor), which may not be withheld without good reason; (b) The consent of the father or guardian of the prospective husband (if he is a minor); and (c) A declaration in public by the prospective wife to the official witness49 at the wedding ceremony that she voluntarily submits to the marriage and gives her consent. In

its

preoccupation

with

consent,

the

section

does

not

mention lobolo at all50 although the practice does appear in other provisions of the Codes which are concerned with the delivery of lobolo, its source and its quantum.51 Outside KwaZulu-Natal, the customary law applicable in the rest of the country is uncodified and problems of ascertainment abound.52 This is the one area that exhibits the highest levels of traditional activity and also reveals the greatest variation of practices. Part of the reason lies in the ability of living customary law to adapt to changing needs and expectations, and part in the existence of clan-based variations on broad-based cultural themes. The texts that do exist53 set out the requirements for a marriage by customary rites followed in most systems of customary law in the country as the following:54

175



the consent of the father or guardian of the prospective husband under certain circumstances



the consent of the guardian of the prospective wife



the consent of the prospective husband



the consent of the prospective wife



the handing over of the prospective wife to the family group of the prospective husband or the prospective husband himself as the case may be



an agreement that lobolo will be delivered



that there should be no existing civil marriage.

It is very difficult to assert first, that these requirements represent living customary law and, second, that they are always complied with as being essential in all circumstances.55 The non-existence of a civil marriage, for example, is clearly a legitimate inclusion in the list of requirements for the conclusion of a valid customary marriage in South Africa but it is equally clear that this is not a rule of customary law. Fortunately,

the

courts

have

been

active

in

developing

contemporary

understandings of the essentials of a customary marriage. What is emerging from the judicial decisions is the richness of variations in this area across traditional communities. It is important to note that these variations, far from presenting a conflict in customary law, may be the very fabric of living customary law. COUNTER POINT Essentials of customary marriage: contestation or living customary law? The case of Mabuza v Mbatha56 involved emaSwati customary law. The alleged marriage took place before the RCMA came into operation. Among the issues in dispute was the custom of ukumekeza. Ukumekeza is signified by ritual wailing by the bride as she dances and performs other rituals in the cattle byre to introduce herself to the ancestors. It was contested whether this was an essential requirement in the formation of a valid customary marriage according to emaSwati law and custom. The Court held that there are two requirements for a marriage – lobolo and the formal handing over of the bride to the bridegroom’s family (ukumekeza). It found

176

that this custom had evolved and that it could be dispensed with by agreement between the parties and/or their families in appropriate cases.57 Some scholars, for example, Professor Bekker, have disputed the correctness of this assessment by the Court. Accordingly, when he was called as an expert witness in Maluleke v Minister of Home Affairs to testify on the meaning and significance of an analogous custom, imvume, he testified that there is no customary marriage until there is a form of integration of the bride into the bridegroom’s family. The Court stated: He [Professor Bekker] conceded that as a result of urbanization and social and economic factors, tradition and custom have evolved to the extent that some families dispense with the formal and elaborate festivities that used to be held in the past to signify integration of a bride into the groom’s family. Despite this development, in his opinion, an act of integration is still crucial for the existence of a customary union. He stated that this may even take the form of a mere agreement by both families that the bride be integrated into, or regarded as part of, the bridegroom’s family, without the holding of any celebration or feast or ritual.58 Although the Court did not expressly pronounce on the requirement of imvume, a close reading of the judgment suggests that it accepted imvume as a requirement for a valid marriage. It seems to have accepted the expert evidence that in modern times, this custom may be fulfilled by a mere agreement. The Court apparently considered the uncontested fact that the families had agreed to the imvume being held to mean that its requirement was met even though the ceremony was not conducted due to the death of the man. We submit that the arguments and judgments in these cases demonstrate possible evolution of the requirements of ukumekeza and imvumerather than contestations about them. Other recent cases have made it clear that there is a gap between the understanding of official customary law with regard to the essential requirements for concluding a valid customary marriage and the lived reality in traditional communities. As far back as the case of Mabena v Letsoalo59 in 1998, doubt was cast not only on the requirement of the consent of the bridegroom’s father

177

or

guardian

but

also

on

the

assumption

that

only

men

could

head

the lobolo negotiations. Ndlovu v Mokoena60 confirmed the position that the payment of lobolo does not on its own bring a valid customary marriage into existence. The Court in Fanti v Boto61 went further than Mabenaand declared that the mother of the bride-to-be could not only negotiate and receive lobolo, but that in certain circumstances she could be a guardian in the ordinary sense. The judgment provides an important example of the interplay between assertions of customary law rules based on traditional understanding and evidence brought before the court in direct challenge to such assertions. The line of cases discussed above received impetus in 2013 with a series of court decisions moving the ascertainment of the essentials of a customary marriage even further away from the texts of official customary law. In the case of Raisiba Maria Mathaba v Minister of Home Affairs,62 Khumalo J (after considering the judgment of Matlapeng J in Motsoatsoa v Roro63) was at pains to emphasise the importance of ascertaining the actual terms of the agreement between the two families. He expressed himself in these words: It should not escape our minds that African rites are made up of varied indigenous, cultural and heritage practices that are evolving as people’s

lifestyles,

socio-economic

conditions

and

aspirations

change. It is therefore of utmost importance for the factual finding to be based on what was agreed upon by the two families in their negotiations, preceded by the consent of the couple.64 In the event, he found that whatever other understandings might exist with regard to the transfer of lobolo, in the present case the parties had agreed that the marriage process would remain incomplete until the groom’s family had paid in full and that the marriage had not been concluded because this had not been done. Two

other

cases

in

2013, Radebe

v

Road

Accident Fund65 and PSC

v LPM,66 confirm the trend of ascertaining the factual underpinnings of each individual case in order to determine whether the essentials had been satisfied. In the latter case, the court viewed a DVD of a ceremony alleged to have represented the welcoming of the bride into her new family67 and, in the face of claims to the contrary, came to the conclusion that she had been properly handed over. 178

PAUSE FOR REFLECTION An example of integration across indigenous communities in 2011 Observe a wedding ceremony between a young amaZulu woman and a young moSotho man, both graduates of X University in South Africa. Following the conclusion of a church ceremony in one town, the wedding guests drive to the home of the husband’s parents in a small town in the Free State. Here, the wedding ceremony is to be concluded with a customary marriage where the ceremony of integration of the wife into the family of her husband is to be performed. On arrival at the husband’s mother’s home, the wife is led to her mother-in-law’s bedroom where she is made to sit on a straw mat provided for the occasion. Her mother-in-law welcomes her to her house and tells her that she is her son’s wife and now

her

daughter.

She

is

then

dressed

in

a

brand

new

married

woman’s seShoeshoe, which is a dress bought by her mother-in-law, while the husband is dressed in a baSotho blanket outfit. She is led outside to her husband where they are both presented with a sheep by the husband’s uncle (mother’s brother) and other elderly male relatives. A water pot is then placed on her head and she carries it into her mother-in-law’s house where she puts it down. The ceremony ends with ululation by the women. The sheep is cooked for the wedding guests and community members attending the celebrations.68 Although the distinction between the position as it obtained before the RCMA and after is important for ascertaining the requirements for marriage, it has lost much of its significance in respect of proprietary consequences of marriage, as shown in chapter 7 of this book. 6.5 Legal requirements for a valid customary marriage concluded after 15 November 2000 To be valid, a customary marriage concluded after the date of commencement of the RCMA69 must comply with the provisions of the RCMA. These provisions are set out in section 3, the most important of which is section 3(1) which provides as follows:

179

For a customary marriage entered into after the commencement of this Act to be valid – (a) The prospective spouses – (i) must be above the ages of 18 years; and (ii) must both consent to be married to each other under customary law; and (b) the marriage must be negotiated and entered into or celebrated in accordance with customary law. Taken

together,

these

customary marriage.

70

are

the

key

markers

of

validity

in

the

‘new’

The SALC was explicit in its reasons for adopting the

language that found its way into the current section 3(1)(b) requiring the marriage to be ‘negotiated and entered into or celebrated in accordance with customary law’ in order to qualify as a customary marriage.71 This was a conscious decision to desist from identifying a set of practices and rituals and then prescribing them as essentials for all traditional communities in the country. This approach is compatible with, and indeed anticipates, the evolving nature of customary law. Framing the provision in these terms leaves room for the admission of new norms of customary law as they evolve from the practices of the people in changing conditions. While this is to be applauded, it clearly raises the difficulties alluded to elsewhere in this book about the need to ascertain living customary law by means of evidence all the time in the quest to help the courts to apply the living customary law as contemplated by the Constitution. The Court considered the meaning of the words ‘the marriage must be negotiated and entered into or celebrated in accordance with customary law’ in section 3(1)(b) in Maluleke v Minister of Home Affairs.72 As already stated, the case involved the custom of imvume. The validity of the marriage was challenged on the ground that imvume did not take place. Both counsel accepted that the word ‘negotiated’ refers to negotiations in respect of the marriage, including lobolo, and that these negotiations had been completed. In dispute, however, was whether a valid customary marriage had been ‘entered into or celebrated’. The Court accepted the Oxford English Dictionary meaning of ‘celebrated’: ‘festivities or performance of a rite or ceremony’.73

180

The Court furthermore held that since the RCMA requires the validity of a customary marriage to ‘be negotiated and entered into or celebrated’, the negotiations which culminate in the payment of lobolo ‘seem to be the fundamental stage in the conclusions of customary marriages.’74 The next stage of enquiry, according to the Court, is to determine whether there are any factors that show that the marriage was ‘entered into or celebrated’. The Court defined ‘entered into’ as it is normally used to denote a contract, and the question is whether the parties to the marriage had agreed that they were married. Such an agreement may either be explicit or implicit.75 In section 3(2), read with section 10(1), the RCMA attempts to prohibit once and for all the phenomenon sometimes referred to as a dual marriage or the infamous ‘discarded’ customary wife marriage – a ‘mixing’ of the civil and the customary marriages

systems

– unless

the

two

marriages

are

between

the

same

two parties.76 To make absolutely clear its disapproval of dual marriages, section 3(4) forbids any marriage, whether civil or customary, following on a marriage under the Marriage Act.77 Should a couple convert their marriage from a customary marriage to a civil marriage, the civil marriage becomes a marriage in community of property ‘unless such consequences are specifically excluded’.78 There follows a set of provisions on the marriages of minors,79 setting out the requirements of the consent of both parents or, in the absence of parents, the legal guardian of the minor spouse.80 When such consent cannot be obtained, then section 25 of the Marriage Act applies. This section called for the permission of the Commissioner of Child Welfare, but as Heaton points out, the relevant authority since the passage of the Children’s Act81 is now the Children’s Court.82 Section 24A of the Marriage Act applies where a minor has contracted a customary marriage without obtaining the requisite consent. It provides that the marriage ‘may be dissolved by a competent court on the ground of want of consent’83 at the instance of the parent, the guardian or the minor himself or herself. The application for dissolution is available to the parent or guardian at any stage before the minor attains majority or in any case within six weeks of the parent or guardian becoming aware of the marriage. At the minor’s instance, the application is available before he or she attains majority or within three months from that date.84 The court has to be satisfied that dissolution is in the best interests of the minor.85

181

Customary law determines the prohibited degrees of relationship in respect of a customary marriage.86 For example, among amaZulu, a person is not permitted to marry

another

blood relation.

87

person

with

whom

he

or

she

has

any

kind

of

Similarly, among baSotho and baTswana, a man is not allowed to

marry any ascendant or descendant.88 While many of South Africa’s cultural communities generally observe the principle of clan exogamy, in other words marrying outside the clan, and the attendant taboos against incest, Jansen is correct to warn against over-generalisation as the rules differ quite considerably from community to community.89 6.6 Registration of a customary marriage The RCMA places a duty on the spouses of a customary marriage to ensure registration of their marriage at the instance of either spouse,90 but nevertheless states

clearly

that

failure

to

register

a

marriage

does

not

affect

its validity.91 Marriages concluded before 15 November 2000 had to be registered within a year of that date92 or within any further period determined by the Minister by notice in the Gazette.93 Those marriages concluded after the date of commencement had to be registered within three months of the wedding or within any further period gazetted by the Minister.94 Once a registering officer is convinced of the existence of the marriage, he or she must register the marriage by entering the spouses’ identity, the marriage date, any lobolo agreement including any other prescribed particulars95 and must issue a certificate to the spouses.96 Section 4(5)(a) allows ‘any person who satisfies a registering officer that he or she has a sufficient interest in the matter’ to enquire into the existence of the marriage by applying in the prescribed manner to the registering officer. If the registering officer is satisfied that a valid customary marriage exists, he or she must register the marriage and issue a certificate.97 After investigation by the court itself on the basis of an application to it, a court may order the registration of a customary marriage or the cancellation or rectification of any registration.98 A registration certificate is prima facie proof that the marriage exists.99 Section 11 empowers the Minister of Justice in consultation with the Minister of Home Affairs to make regulations relating to various matters of an administrative nature, including requirements to be met in applying for registration, the documentation to be completed or furnished, and fees.100 182

COUNTER POINT Should registration of customary marriages be a compulsory requirement for validity? In its Report on Customary Marriages, the SALC was at pains to explain the dilemma it faced with the question of registration. Referring to its Issue Paper that was circulated at the start of the investigation, the Commission expressed itself in the following words: … the Commission noted a persistently low level of compliance with the registration requirement and a considerable body of evidence showing that the imposition of any formal requirement on customary marriages has had the effect of depriving existing unions of whatever limited validity they might otherwise have enjoyed. Accordingly, the Commission argued that registration of a marriage should not be compulsory. To allow registration at the instance of one of the parties would sensibly acknowledge the fact that this formality has no intrinsic merit: it is a pragmatic means of proving a marriage if and when the spouses find it necessary to do so.101 The Commission also noted a flood of contrary opinion ranging from women’s groups who believed that certainty in these matters was in the best interests of women and children to public servants and human rights advocates who asserted that compulsory registration was an international law obligation. In the end, the Commission concluded that in the absence of a sensible penalty for failure to register, it could not recommend that invalidity of the marriage itself should be the sanction as this would exclude many perfectly sound marriages, putting women and children further at risk. Recent cases such as Kambule v The Master102 and MG v BM103 have confirmed that customary marriages which are otherwise valid according to the RCMA are not invalidated by non-registration.104 THIS CHAPTER IN ESSENCE 

Before the passage of the RCMA and its promulgation on 15 November 2000, South African common law did not recognise customary marriages as valid 183

marriages. Many anomalies flowed from non-recognition, famously illustrated by court decisions striking down applications for relief in dependants’ actions based on the unlawful killing of a breadwinner. These anomalies had to be corrected by legislation in many cases. 

Since the date of commencement of the RCMA, customary marriages have been governed by the Act.



The RCMA recognises as valid those marriages, whether monogamous or polygamous, contracted before the date of commencement and those entered into after that date if they conform to the provisions of the Act.



The RCMA prescribes the minimum age for marriage for both spouses as 18 years and makes it a requirement that they must both consent to be married to each other under customary law. In addition to the two requirements, the statute prescribes that in order to be valid, the marriage must be negotiated and entered into or celebrated in accordance with customary law. This raises important legal questions about the accessibility of the statute to would-be spouses from outside the country or from ethnic groups other than indigenous African peoples of South Africa.



The RCMA regulates the marriages of minors and the steps to be followed to conclude a valid marriage, or where the relevant steps have not been followed, the consequences of non-compliance in respect of the status of the marriage. The RCMA achieves this largely by extending certain provisions of the Marriage Act to customary marriages.



The RCMA discourages dual marriages by making it impossible for a customary marriage and a civil marriage to coexist in respect of the same couple. The RCMA does, however, allow a couple to convert their customary marriage into a civil marriage.

184



Because pre-RCMA marriages are recognised, and because ‘new’ marriages under the RCMA must be negotiated and celebrated according to customary law, it continues to be relevant to discuss the traditional rules and practices relating to the formation of marriage according to customary law.



The RCMA introduces registration of customary marriages but does not make validity of the marriage dependent on registration. This provision has been criticised as a failure on the part of the RCMA to remove once and for all the uncertainty around proof of a customary marriage. A counter-argument to this criticism is to point out the difficulty of changing cultural behaviour by legislation and the reluctance to expose women in particular to nonrecognition again when, but for the registration, the marriage is valid and sound in all other respects.



Lobolo is defined in the RCMA but is not made a compulsory requirement for the validity of a customary marriage. It is clear from other evidence, though, that the lobolo negotiations and agreement are abiding features of customary marriage in South Africa.



There are challenges in ascertaining the living customary law of marriage before and after the RCMA as many of the rules are contained in official versions of customary law.

1Act 120 of 1998. 2S 3(1)(b) of the RCMA. 3See generally Nhlapo, TR (1992) Marriage and Divorce in Swazi Law and Custom 44; Armstrong, A et al (1993) Uncovering reality: Excavating women’s rights in African family law International Journal of Law, Policy and the Family 7(3):314–369; Nhlapo, TR (1991) The African family and women’s rights: Friends or foes? Acta Juridica 135:135–46 at 137–8; South African Law Commission (1998) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Customary Marriages.

185

4Ferraro, G (1980) Swazi Marital Patterns and Conjugal Roles: An Analysis and Policy Implications. 5See SALC (1998) Report on Customary Marriages 40; Van Schalkwyk, LN (2003) Law reform and the recognition of human rights within the South African family law with specific reference to the Recognition of Customary Marriages Act 120 of 1998 and Islamic marriages De Jure36(2):289–327 at 299. See also Jansen, R-M ‘Customary family law’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism in South Africa 3rd ed 54 who refers to the RCMA’s failure to introduce state intervention into customary marriages as a ‘grave omission’. 6It may continue through the invocation of the customs of the sororate or the levirate. See generally SALC (1998) Report on Customary Marriages; Phillips, A (ed) (1953) Survey of African Marriage and Family Life xi–xvii. 7The RCMA was promulgated on 15 November 2000. 8S 3(1)(b) of the RCMA. 9See s 2(1)–(4) of the RCMA. 10See Seedat’s Executors v The Master (Natal) 1917 AD 302. 11(1892–1893) 10 SC 346 at 352. 12(1866) LR 1 P&D at 130. 131917 AD 302. 141917 AD 302 at 309. See also Santam v Fondo 1960 (2) SA 467 (A) and Ismail v Ismail 1983 (1) SA 1006 (A). 15S 57(2) of the Natal Code of Zulu Law Proc R151 of 1987. 16According to s 11(1) of the Black Administration Act 38 of 1927 (BAA), now repealed. 17Dlamini, CRM (1999) The ultimate recognition of the customary marriage in South Africa Obiter 20(1):14–40 at 16. 18See, for example, Nkambula v Linda 1951 (1) SA 377 (A). 19S 1 of the Income Tax Act 58 of 1962. 20S 5(6) of the Maintenance Act 23 of 1963. 21S 31 of the Black Laws Amendment Act 76 of 1963. 22SALC (1998) Report on Customary Marriages. The Commission reported its findings to the Minister in August 1998. This was the second SALC report on African customary marriages. In 1986, the Report on the Marriages and 186

Customary Unions of Black Persons had recommended full recognition for customary marriages. 23SALC (1998) Report on Customary Marriages para 3.1.13. 24Act 38 0f 1927. 25S 35 of the BAA as amended by s 9 of the Black Administration Amendment Act 9 of 1929 described a customary union as ‘the association of a man and a woman in a conjugal relationship according to Black law and custom, where neither the man nor the woman is party to a subsisting marriage’. 26Nkambula v Linda 1951 (1) SA 377 (A); Peart, NS (1983) Civil or Christian marriage and customary unions: The legal position of the ‘discarded’ spouse and children Comparative and International Law Journal of Southern Africa 16(1):39–64 at 40–1. 27S 1 of the RCMA. Maithufi, IP (2000) The Recognition of Customary Marriages Act of 1998: A commentary Tydskrif vir Hedendaagse Romeins-Hollandse Reg 63(3):509–16 at 513. 28S 1 of the RCMA. Maithufi (2000) 513 notes that the definition studiously avoids the notion of payment. 29S 2(1)–(4) of the RCMA. See Heaton, J (2010) South African Family Law 3rd ed 209 fn 3 for a helpful list of articles and commentaries on the early debates about the constitutionality of the recognition of customary marriages which she declares, correctly in our view, to be ‘no longer contentious’. 302010 (4) SA 286 (GNP). 31(474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June 2012). 32(CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013). 33For a discussion of the extent of the application of the Constitutional Court decision, see Himonga, C and Pope, A (2013) Mayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications Acta Juridica 318– 38. 34See, for instance, Gumede v President of the Republic of South Africa (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008) where the Constitutional Court declared s 7(1) and s 7(2) of the RCMA to be unfairly discriminatory against women and therefore 187

unconstitutional. S 7(1) was impugned in respect of those aspects that applied to monogamous marriages; s 7(2) in respect of the words ‘entered into after the commencement of this Act’. These provisions are discussed in more depth in ch 7 of this book. 35See Nhlapo (1992) 63–71. See also Dlamini (1999) 15; Jansen (2010) 50; Maithufi, IP and Bekker, JC (2002) The Recognition of Customary Marriages Act of 1998 and its impact on family law in South Africa The Comparative and International Law Journal of Southern Africa35(2):182–97. 36We believe that this is the only construction that makes sense of the presumed intention of the SALC and the legislature in defining customary law in the way they did in s 1 of the RCMA. That intention must surely have been to distinguish between local normative systems originating in values other than those of European origin without resorting to the politically sensitive labels of ‘black’ and ‘white’. In this way, the African tradition can be honoured without excluding non-members (who may voluntarily adopt this lifestyle) in ways that offend against the non-discrimination provisions of the Constitution. We use the terms ‘black’ and ‘white’ in this illustration in acknowledgement of the fact that the question is invariably posed in these terms. 37Nhlapo (1992) 3. See also Nhlapo, TR (1989) International protection of human rights and the family: African variations on a common theme International Journal of Law, Policy and the Family 3(1):1–20. 38This is the case, for instance, in various versions of arranged marriages or other forms of irregular marriage. See generally Jansen (2010) 47–9. See also Nhlapo (1992) 59–63 on devised (arranged) marriages. 39Nhlapo, TR ‘The African customary law of marriage and the rights conundrum’ in Mamdani, M (ed) (2000) Beyond Rights-Talk and Culture-Talk: Comparative Essays in the Politics and Rights of Culture 136–48. 40In the understanding of many traditional communities, this lies at the heart of the difference between African courtship rituals and Western rituals. To these communities, it is not so much asking for the woman’s ‘hand in marriage’ as it is an offer of ‘lighting a fire of friendship’ to use a popular opening line in the negotiations. 41See generally Chigwedere, AS (1982) Lobolo: The Pros and Cons; Dlamini, CRM (1984) The modern legal significance of ilobolo in Zulu society De Jure 1:148– 188

66; Dlamini, CRM (1985) Should ilobolo be abolished? A reply to Hlophe The Comparative and International Law Journal of Southern Africa 18(3):361–76; Hlophe, JM (1984) The KwaZulu Act on the Code of Zulu Law 6 of 1981: A guide to intending spouses and some comments on the custom of ilobolo Comparative and International Law Journal of Southern Africa 17(2):163–71; Chinyenze, M (1983–4) A critique of Chigwedere’s book Lobolo: The Pros and Cons in Relation to the Emancipation of Women in Zimbabwe Zimbabwe Law Review 1 and 2. For a particularly negative missionary view, see the 1872 Report of the Commission on the Laws and Customs of the Basotho cited in Poulter, SM (1976) Family Law and Litigation in Basotho Society 65. 42See generally De Koker, JY (2001) Proving the existence of an African customary marriage Journal of South African Law 2:257–93. 43Nhlapo (1992) 59 ff; Holleman, JF (1975) Shona Customary Law: With Reference to

Kinship,

Marriage,

the

Family

and

the

Estate.

The

custom

of ukuthwala originally fell into this category. 44Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4 March 2003) para 22. 45Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April 2008). 46S 2(1) and s 2(3) of the RCMA. 47See SALC (1998) Report on Customary Marriages 18–22. See also Heaton (2010) 40 fn 35 who points out the dilemmas inherent in ascertaining the content of living customary law. 48The judgment of the Constitutional Court in Gumede indicates that the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law Proc R151 of 1987 have been partially invalidated. Refer also to ch 7 of this book on the consequences of marriage where these invalidations are discussed. 49The notion of an official witness makes its first appearance in the Codes although it appears to be compatible with and based loosely on the traditional understanding of the role of the Chief’s runner (umgijimi) in some Nguni communities. The Chief’s runner was the eyes and ears of the traditional leader at local events and functions although there is no suggestion that the role traditionally included the verification of the bride’s consent.

189

50According to Bekker and Rautenbach (2010) 34, despite the silence, ‘it is in fact inconceivable that a customary marriage can be concluded without an agreement for the delivery of lobolo’. See also Heaton (2010) 206 who asserts that lobolo is ‘customarily delivered’ in respect of a customary marriage. 51Ss 43, 47, 51 and 52 and Ch 8 of both Codes. 52See, for example, Heaton (2010) 206. 53Jansen (2010) 50–8; Olivier, NJJ et al ‘Indigenous law’ in Joubert, WA (ed) (2009) The Law of South Africa 2nd ed Vol 32 para 95; Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed 105–25; Sinclair, JD (1996) The Law of Marriage Vol 1 242–5; SALC (1998) Report on Customary Marriages. 54Olivier (1998) 17–21 as cited by Jansen (2010) 51. See also s 31 of the Transkei Marriage Act 21 of 1978. 55See, for example, Nhlapo (1992) 66–9 whose work among emaSwati of Swaziland casts doubt in particular on the numerous requirements for consent that are specified. 56(1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4 March 2003). 57Mabuza v Mbatha para 25. 58Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April 2008) para 10. 591998 (2) SA 1068 (T). 60(2973/09) [2009] ZAGPPHC 29; 2009 (5) SA 400 (GNP) (20 April 2009). 612008 (5) SA 405 (C). 62[2013] JOL 30820 (GNP). 63(46316/09) [2010] ZAGPJHC 122; [2011] 2 All SA 324 (GSJ) (1 November 2010). 64Raisiba Maria Mathaba v Minister of Home Affairs para17. 65(2012/10855) [2013] ZAGPJHC 135 (9 May 2013). 66[2013] JOL 29847 (GNP). 67In both this case and Radebe v Road Accident Fund there is a sense generated that the verb ‘celebrated’ in s 3(1)(b) of the RCMA is increasingly being construed to mean festivities such as a party rather than ‘solemnised’, which is presumably the meaning intended by the legislature. Indeed in PSC v LPM, the challenge to the applicant’s claim that she was ceremonially received into the 190

husband’s family was based on the allegation that the event she was referring to was a child’s tenth birthday party, which was the wrong kind of ‘party’ from the one required by the RCMA. This may not cause any problem where, as in this case, the function in question incorporated some identifiable and necessary customary ritual. The courts will have to be vigilant to prevent a requirement for solemnisation according to customary law turning into a requirement for a party. 68This case is used in this book with the permission of the couple to the marriage. 69S 2(2) and s 2(4) of the RCMA. 70For critiques of the ‘new’ customary marriage, see generally Mqeke, RB (1999) The ‘rainbow jurisprudence’ and the institution of marriage with emphasis on the Recognition of Customary Marriages Act 120 of 1998 Obiter 20(1):52–68; Maithufi and Bekker (2002) on the choice of 18 years as the age of consent for both spouses. See also the illuminating discussion in SALC (1998) Report on Customary Marriages 70–7. 71SALC (1998) Report on Customary Marriages para 4.1.13. 72(02/24921) [2008] ZAGPHC 129 (9 April 2008) para 8. 73But see our remarks in fn 67. 74Maluleke v Minister of Home Affairs para 12. 75Maluleke v Minister of Home Affairs para 13. 76See Netshituka v Netshituka 2011 (5) SA 453 (SCA). 77Act 25 of 1961. The SALC (1998) Report on Customary Marriages makes it clear that the mischief sought to be cured by these provisions was the ‘dual marriage’ which bedevils all systems in which both civil and customary marriages are fully recognised. Para 3.3.6 explains the thinking behind the provisions: Conversion from a customary marriage to a civil marriage, but not vice versa, should be allowed. This right should be based not on the alleged superiority of any one marriage form, but rather on the practical consideration that movement from a more open-ended and facilitative arrangement to a stricter and more highly regulated regime makes better sense than the reverse would do. It can be reasonably assumed that the parties consciously intended, for reasons of their own, to submit themselves to the stricter rules. 191

78S 10(2) of the RCMA. 79S 3(3)–(5) of the RCMA. 80S 3(3)(a) of the RCMA. 81Act 38 of 2005. 82S 18(3) of the Children’s Act. Heaton (2010) 207, 215–17. 83S 24(A)(1) of the Marriage Act. 84S 24A(1)(a) and (b) of the Marriage Act. 85S 24A(2) of the Marriage Act. 86S 3(6) of the RCMA; Jansen (2010) 3.3.3.2. 87Jansen (2010) 3.3.3.2. 88Jansen (2010) 3.3.3.2. 89See Jansen (2010) for examples. See also Nhlapo (1992) 58 on emaSwati. 90S 4(2) of the RCMA, but see clause 4(2) of the draft Recognition of Customary Marriages Amendment Bill, 2009 which will require an application by both spouses in future. 91S 4(9) of the RCMA. After much consultation and debate, the SALC consciously opted for a provision that would not further expose perfectly sound customary marriages to the risk of invalidity by making registration compulsory (65–70). 92S 4(3)(a) of the RCMA. 93Extensions so far gazetted by the Minister have been through GN 1228 GG 22839 of 23 November 2001, GN R1391 GG 31735 of 24 December 2008 and GN R51 GG 32916 of 5 February 2010, bringing the date on which registration needed to occur up to 31 December 2010. 94S 4(3)(b) of the RCMA. The Minister has extended the original period by GN R1390 GG 31735 of 24 December 2008 and GN R54 GG 32916 of 5 February 2010, again bringing the date to 31 December 2010. 95S 4(4)(a) of the RCMA. It is interesting to note that, apart from the definition section, this provision is the only other place in the RCMA where lobolo is mentioned by name. 96S 4(4)(b) of the RCMA. 97S 4(5)(b) of the RCMA, but see clause 4(c) of the draft Recognition of Customary Marriages Amendment Bill which does away with s 4(5). 98S 4(7) of the RCMA.

192

99S 4(8) of the RCMA. See Ndlovu v Mokoena (2973/09) [2009] ZAGPPHC 29; 2009 (5) SA 400 (GNP) (20 April 2009) where the Court ordered cancellation of registration. In Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April 2008), an application for cancellation was refused. 100The Regulations were published in GN 1101 GG 21700 of 1 November 2000. 101SALC (1998) Report on Customary Marriages para 4.5.6. 102(85) [2007] ZAECHC 2; [2007] 4 All SA 898 (E) (8 February 2007). 103(10/37362) [2011] ZAGPJHC 173; 2012 (2) SA 253 (GSJ) (22 November 2011). 104See also Thembisile v Thembisile 2002 (2) SA 209 (T) in which the Court confirmed, obiter dictum, that non-compliance with s 4(9) of the RCMA does not affect the validity of the marriage.

193

Chapter 7 Consequences of marriage 7.1 Introduction 7.2 Sources in general 7.3 The relevant law 7.4 Personal consequences of marriage 7.4.1 Majority status and capacity of spouses 7.4.2 Majority status of a married minor 7.4.3 Polygamous marriages 7.4.3.1 Introduction 7.4.3.2 The status of wives inter se in polygamous marriages concluded before 15 November 2000 7.4.3.3 The status of wives inter se in polygamous marriages concluded after 15 November 2000 7.5 Consequences of marriage in respect of children of the marriage 7.5.1 Parental rights prior to the constitutional era 7.5.2 The effect of the Bill of Rights and the principle of the best interests of the child on the affiliation of children 7.5.3 The effect of the Children’s Act 38 of 2005 on the consequences of customary marriage regarding children 7.6 Proprietary consequences of marriage 7.6.1 Introduction 7.6.2 Uncodified customary law 7.6.3 The Natal Codes of Zulu Law 7.6.4 The Recognition of Customary Marriages Act 120 of 1998 and the Matrimonial Property Act 88 of 1984 7.6.4.1 Monogamous customary marriages in terms of the RCMA and the MPA 7.6.4.1.1 Marriage in community of property (a) Management of the joint estate 194

(i) Juristic acts requiring joint consent (ii) Dispensing with the other spouse’s consent (iii) Juristic acts in respect of which no consent is required (b) Protection of third parties and spouses inter se in relation to the management of the joint estate (i) Suspension of administration powers and division of the estate (ii) Interdict (iii) Right of recourse (iv) Actio Pauliana utilis (v) Declaration of prodigality 7.6.4.1.2 Marriage out of community of property 7.6.4.2Polygamous marriages in terms of the RCMA 7.6.5Alteration of the matrimonial property regime 7.6.5.1Alteration of pre-RCMA polygamous marriage property regimes 7.6.5.2Alteration of post-RCMA monogamous marriage property regimes This chapter in essence 7.1 Introduction This chapter covers the following consequences of marriage: the legal status of the spouses, the parent and child relationship and the proprietary consequences, as well as how they can be altered. 7.2 Sources in general In this chapter, we have made considerable use of the findings of the South African Law Commission (SALC), now the South Africa Law Reform Commission (SARLC), on customary marriages as a starting point in respect of the content of customary law. These findings led to the reform of customary law with the enactment of the Recognition of Customary Marriages Act (RCMA).1 The SALC’s findings were reported in its Report on Customary Marriages in 1998.2

195

7.3 The relevant law The RCMA has imported a considerable amount of the law governing civil marriages to regulate important aspects of the consequences of a customary marriage. A discussion of this body of law would help to give a complete picture of the consequences of a customary marriage. However, the scope of this chapter discourages an in-depth examination. Accordingly, we provide only a summary of the relevant law while referencing standard textbooks on the consequences of a civil marriage for a detailed discussion of the law concerned. COUNTER POINT The state of the law governing consequences of marriage The current state of the law regulating the consequences of customary marriage raises two important points for consideration. The first point is the need for the consolidation of the law that is scattered in different sources. The law governing customary marriages since the RCMA came into operation is fragmented in the sense that it is located in different pieces of legislation and the common law regulating civil marriages. The RCMA has extended these laws and,

presumably,

the

precedents

decided

on

them

to

customary marriages.3 Furthermore, there is no single book devoted to the comprehensive discussion of the ‘imported’ laws as they relate to customary marriages. This fragmentation of the law is unsatisfactory. It makes the law regulating customary marriages, including the consequences of these marriages, difficult to find without traversing different sources on the law governing civil marriages. There is, therefore, an urgent need to consolidate the law regulating civil marriages that has been extended to customary marriages into one source. The second point is the wisdom of superimposing the law governing civil marriages onto customary law. As pointed out, the RCMA has imported a large body of this law. The problem is that some of this law and customary law regulating the consequences of marriage are premised on different social and economic realities. A clear example is the type of matrimonial property system envisaged by the law regulating civil marriages in community of property discussed under paragraph 7.6.4.1. below. This kind of property regime is not common in the poverty-stricken 196

rural areas to which the superimposed law is also intended to apply.4 Other examples of impositions of common law on customary law will be discussed in relevant sections of this chapter. Different legal regimes, namely the pre-RCMA and the post-RCMA regimes, govern the law regulating the proprietary consequences of customary marriages. In the belief that pre-RCMA regimes will sooner or later cease to exist, a major focus of this chapter is on the consequences of a marriage entered into after the coming into force of the RCMA. Again, we refer in appropriate sections to standard textbooks that deal with the consequences of pre-RCMA marriages. 7.4 Personal consequences of marriage Customary law does not have a fixed age at which a person attains full adulthood. Instead, a variety of factors, such as initiation and marriage, makes up the process leading to adulthood.5 The RCMA changed the effect of marriage regarding the status and capacity of the spouses under customary law. In the following sections, we discuss the status and capacity of a married woman and a married minor. 7.4.1 Majority status and capacity of spouses The attainment of full status in traditional society cannot be described solely in terms of the concept of majority as this may be seen as too narrow a concept. Individuals attain the status of elderhood progressively through milestones in their individual lives, such as the kinds of rituals they undergo,6 marriage and parenthood. For example, traditionally, a man only attained full capacity and adulthood when he established a separate homestead after marriage.7 Similarly, a woman’s movement up the social ladder to the status of an elder was indicated by marriage, the birth of her children and their own respective attainment of the status of an elder and in the case of polygamous marriages, her seniority in the marriage.8 Under official customary law, in other words section 11(3)(b) of the Black Administration Act (BAA)9 before its repeal, the marriage of a black woman had the consequence of making her a minor under the tutelage of her husband. However, the RCMA changed the official customary law on the age of majority by applying the Age of Majority Act10 to persons subject to customary law as well. Section 9 of the RCMA provides that ‘[d]espite the rules of customary law, the age of majority of any 197

person is determined in accordance with the Age of Majority Act, 1972 (Act 57 of 1972)’. According to the Age of Majority Act, a person attained majority at the age of 21 years. However, the Children’s Act11 repealed the Age of Majority Act. Section 17 of the Children’s Act now fixes the age of majority at 18 years. In brief, all persons attain majority at the age of 18 years. Married women, including those women married under customary law, are no longer minors under the tutelage of their husbands. However, there is a need to reflect further on the questions arising from the repeal of the Age of Majority Act by the Children’s Act against the background of constitutional provisions. PAUSE FOR REFLECTION Age of majority under customary law: implications of the Children’s Act and the Constitution As stated above, the Children’s Act implicitly repealed section 9 of the RCMA on majority status with the result that despite customary law, all persons are majors at the age of 18 years. A number of questions may be asked about this: •How is this way of changing customary law to be understood in the light of section 211(3) of the Constitution which subjects the application of customary law to ‘legislation that specifically deals with customary law’? •While the RCMA that overruled the customary law on majority status by applying the Age of Majority Act can be considered to be ‘legislation that specifically deals with customary law,’ can this be said of the Children’s Act to justify its change of the age of majority for people who are subject to customary law from 21 to 18 years? Does this approach deny customary law its independent existence that is implicitly guaranteed by the Constitution? •Finally, does this application of legislation, which does not on the face of it deal specifically with customary law, lead to the eradication or replacement of customary law by other systems of law without appropriate legislative consultation processes having taken place? The answer to these questions seems to be that given that 18 years of age is also enshrined in the Bill of Rights as marking the end of childhood, the Children’s Act 198

simply legislated on a constitutional norm. This norm should then apply to everyone and to all systems of law, including customary law. Furthermore, the Children’s Act includes customary marriages in its definition of marriage.12 This suggests that the customary law regulating marriage may not depart from the provisions of the Children’s Act involving marriage. Thus, the age of majority can no longer be defined in terms of the customary concept of adulthood. The extension of the Age of Majority Act to customary law sought to enhance the legal capacity of black women whose legal capacity was usually inferior to that of men as husbands or siblings.13 As already stated, under official customary law, the marriage of a black woman resulted in her becoming a minor and, therefore, of unequal status with her husband. To ensure that all married women are adequately protected in terms of equal status, section 6 of the RCMA effects a more general reform of customary law. This section provides that: [a] wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law. Although the RCMA does not provide for retrospective application, it seems that rules introduced by the Act on the equal status of the spouses apply both to marriages entered into before and after the Act came into force on 15 November 2000.14 This would be consistent with the approach taken by the Constitutional Court in Gumede v President of the Republic of South Africa.15 This decision applied the invalidation of legislation to some marriages retrospectively to prevent discrimination against women who had been married under customary law before the RCMA came into operation. Furthermore, the RCMA abolished marital power for all marriages entered into after the RCMA by repealing the relevant sections of the BAA, the Transkei Marriage Act,16 the KwaZulu Act on the Code of Zulu Law17 and the Natal Code of Zulu Law.18 Marital power severely limited the legal status of married women under customary law. In this respect, the Constitutional Court in Gumedeaptly remarked: 199

The legislation [the RCMA] entrenches the equal status and capacity of spouses and sets itself the task of regulating the proprietary consequences of these marriages. In doing so, the Recognition Act abolishes the marital power of the husband over the wife and pronounces them to have equal dignity and capacity in the marriage enterprise.19 The subjection of the wife’s legal status to the matrimonial property systems in section 6 of the RCMA means that matrimonial property systems must be closely examined on a case-by-case basis to determine the exact legal status of a married woman. For example, antenuptial contracts may contain provisions that in some way affect the status of wives in relation to their husbands in marriages out of community of property. The abolition of married women’s minority status and the elevation of their general legal status have also encroached on the concept of the husband as head of the family. This means that wives have the right to participate in decision making on marital matters such as the rearing of children, birth control and the purchase and alienation of family property, subject, with regard to the latter, to the spouses’ matrimonial property system.20 However, the equality of wives with their husbands raises difficult questions in the context of some rights in the Constitution. These are discussed below. COUNTER POINT Balancing the right to culture with other rights In relation to the equal status of husbands and wives under the RCMA, how are we to view the position held by the House of Traditional Leaders (Eastern Cape) that ‘the husband, as a link to the ancestors, should be the formal spokesperson and head of the family’?21 The answer to this question may require a critical discussion of the balance to be drawn between the right of husbands and wives to equality, on the one hand, and the right of a people to practise their culture on the other. In the context of the right to culture, the spouses are entitled to structure their marriage relationship in accordance with their traditions, which may require men and women to play different roles in the family. One of the husband’s roles might be that 200

of being a link to the ancestors. However, the structure of the relationship adopted must not impair the dignity of the wife or infringe on any of her other constitutional rights. Generally, the reform of customary law relating to the legal status of married women must be understood against the backdrop of centuries of state-engineered violation of women’s and children’s rights in the colonial, Union and apartheid legal systems. A brief discussion of this historical context follows below. PAUSE FOR REFLECTION The backdrop to the reform of customary law Traditionally, the principle of patriarchy generally subordinated women to men’s power and wives enjoyed fewer entitlements in their marital relations with their husbands than husbands did. For example, the husband was considered to be the head of his family or household. Accordingly, he made the major decisions concerning his family. Furthermore, once he had paid lobolo, the husband and his family were entitled to have the children of the marriage affiliated to their family to the exclusion of the mother and her family.22 Later, after the establishment of the Commissioners’ Courts in 1927, these Courts introduced the common law split between the concepts of custody and guardianship into customary law, along with the principle of the best interests of the child. However, while these Courts applied the best interests principle to custody and were able to grant custody to mothers in appropriate circumstances, they continued to apply customary law to disputes over guardianship which they awarded to fathers.23 The legal status of the wife worsened with the emergence of official customary law following the introduction of the colonial, Union and apartheid legal systems that entrenched the inferior position of women’s standing in law. In particular, legislation changed the legal status of married women to that of minors under the guardianship of their husbands.24 As minors, they lacked the capacity to contract, to sue and be sued

in

their

own

names

in

court,

and

to

hold

and

to

dispose

of property.25 Unfortunately, this minority status did not grant married women the same benefits of special protection granted to a minor under the common law.26

201

Two amendments aimed at improving the legal status of women generally were made to the BAA. Section 11(3), which was introduced in 1943, gave women subject to customary law the capacity to enter into contracts under the common law and the capacity to sue or be sued in actions concerned with these contracts. Section 11A inserted in 1985 gave women limited capacity to acquire statutory rights to land in African townships under newly enacted laws, especially 99-year leaseholds created under the Laws on Co-operation and Development Second Amendment Act.27 While unmarried women benefitted from these provisions, section 11(3)(b) of the BAA continued to restrict the legal status of married women living outside Natal. It provided that: A Black woman (excluding a Black woman who permanently resides in the province of Natal) who is a partner in a customary union and who is living with her husband, shall be deemed to be a minor and her husband shall be deemed to be her guardian. This section represented a typical distortion of living customary law through the application of the common law concepts of minority and guardianship. The SALC rightly observed that the common law concepts of minority and guardianship ‘could not capture the actual nuances of female status’ and that this section ‘did not reflect the social reality that married women were living independent lives’.28 However, the SACL found that even living customary law was not always womenrights-friendly. To the contrary, it was nebulous and contradictory and it was far from clear what the rules of contemporary customary law on the legal status of spouses in marriage were.29 In its assessment, the uncertainty surrounding contemporary customary law regulating the status of the spouses required legislative intervention to provide for the equal status of spouses.30 The RCMA followed the SALC’s recommendation and included section 6 in the Act. Against this background, section 6 of the RCMA sought, as already stated, to remove the vestiges of married women’s incapacities, most of which had become rooted in state law. Most importantly, this provision gave effect to the principles of gender

equality

in

marriage

guaranteed

by

sections

9(2)

and

(3)

of

the Constitution.31 Similarly, the provisions of the RCMA regulating the child-parent relationship were intended to cure defects in customary law rules that, according to

202

Bennett, focused on the affiliation of children rather than the rights of children, including their best interests.32 All the changes to the status of spouses noted in the paragraphs above also have significance in international human rights law. They ensure that South Africa is compliant with its obligations under the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 to which it is a signatory. Section 15(2) of this Convention obliges states to: accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. The discussion of the rules regulating the personal status of spouses in the preceding paragraphs assumes that the marriage is monogamous. The relevant statutory provisions considered make no specific reference to polygamous marriages. However, there is no reason why these rules should not apply to the personal relationship between the husband and each individual wife in a polygamous marriage.33 What is less certain is how the personal status between one wife and another is regulated. To answer this question, it is necessary to distinguish between polygamous marriages contracted before and after the RCMA came into operation.34 7.4.2 Majority status of a married minor While the civil marriage of a minor under the Marriage Act confers majority status on him or her, marriage does not seem to have a similar consequence under customary law. As already stated, the attainment of adulthood (‘majority’) under customary law is a progressive process rather than a single event such as marriage. However, it has been argued that on the basis of equal treatment, the marriage of a minor according to customary law has the same effect as that of a minor married under the Marriage Act.35 Nevertheless, we submit that, in the context of the relationship between the common law in a broad sense and customary law

203

established by the Constitution, this argument is controversial and deserves discussion. COUNTER POINT Attaining majority through marriage: the relationship of customary law to the common law under the new constitutional dispensation The Bill of Rights accords customary law and the common law equal status.36 It is arguable that the proposition for achieving equality of the married minor under customary law by applying the common law undermines this status of customary law in relation to the common law. Furthermore, section 211(3) of the Constitution imposes a duty on the courts to apply customary law subject only to the Constitution and any legislation that specifically deals with customary law, and not to the common law as well. Thus, in the absence of legislation that supersedes customary law, a marriage under customary law does not have the consequence of conferring majority status on a minor. This issue should therefore be determined according to customary law until the law has been appropriately changed. At the very least, it is still an open question whether the marriage of a minor in terms of the RCMA confers majority status on the minor. This argument is far from saying that the position of a married minor under customary law passes constitutional muster. Rather, it simply asserts that the constitutionality of customary rules on this and other subjects must be evaluated independently of the common law rules and within the constitutional framework for the recognition of customary law. It should also be emphasised that this framework includes the development of customary law according to the spirit, objects and purport of the Bill of Rights.37 These aspects of the framework do not countenance the idea that customary law should merely be set aside in preference for common law positions in the name of equality or some other constitutional principle.

204

7.4.3 Polygamous marriages 7.4.3.1Introduction Unlike a civil marriage, a customary marriage is potentially polygamous in nature.38 In this regard, section 2(3) of the RCMA provides that ‘[i]f a person is a spouse in more than one customary marriage, all valid customary marriages entered into before the commencement of this Act are for all purposes recognised as marriage’. Similarly, section 2(4) provides for the recognition of polygamous marriages entered into after the commencement of the RCMA. Although these provisions are couched in gender-neutral language, they do not permit wives to have more than one husband at the same time. The RCMA does not, therefore, permit polyandry. Thus, for the wife (but not for the husband), the consequence of entering into a customary marriage is that the husband may at any time marry another woman during the subsistence of their marriage. However, in Mayelane v Ngwenyama,39 the Constitutional Court qualified the right of the husband to enter into polygamous marriages by requiring him to obtain the consent of the first wife in order to conclude a valid subsequent marriage or marriages. Briefly, the facts were that the applicant, Ms Mayelane, and the respondent, Ms Ngwenyama, both alleged that each one of them had concluded a marriage with the deceased.40 The marriage of the applicant took place in 1984 while the respondent alleged that she had married the deceased in 2008. Each of them disputed the validity of the marriage of the other. Consequently, the applicant, Mayelane, sought a High Court order declaring her marriage valid and that of Ngwenyama to be null and void for lack of the first wife’s consent to the subsequent marriage. The High Court granted her petition, whereupon the respondent, Ngwenyama, appealed to the Supreme Court of Appeal (SCA). The SCA held both marriages to be valid. Mayelane then approached the Constitutional Court which held her marriage to be valid, but nullified the marriage of Ngwenyama for lack of consent of the first wife. The Constitutional Court ruled that Tsonga customary law requires a first wife to consent to her husband taking an additional wife to validate the second marriage. It also developed Tsonga customary law to include a requirement that the consent of the first wife is necessary for the validity of a subsequent customary marriage to the extent that it does not yet do so.41 In reaching these decisions, the Court relied, inter 205

alia, on the application of the constitutional rights to equality and dignity.42 The extent of the application of this decision deserves further discussion. COUNTER POINT Does the Constitutional Court decision in Mayelane apply to all indigenous communities in South Africa? In answer to the question posed above, some may argue that Mayelane applies to all customary laws, not only to Tsonga customary law, because of its status as a Constitutional Court decision. Consequently, men from any indigenous community are required to obtain the consent of their existing wife or wives to enter into a subsequent marriage, failing which the subsequent marriage is void. Himonga and Pope agree that the judgment applies uniformly to all customary laws in one sense: As a result of this decision, it is incumbent upon the adherents of each customary law system to ensure that their principles of consent either meet, or are developed to meet, the constitutional principles of equality and dignity in respect of first wife, husband and prospective or existing subsequent wives in a polygamous marriage.43 However, they otherwise argue against an indiscriminate application of this decision to all customary laws which does not take account of several important factors that they discuss. Three of these may be mentioned:44 •First, living customary law is not based on precedent but on the practices of the community concerned. Consequently, ‘a finding about the customary law of one group is generally not applicable to other groups in the same way that the doctrine of precedent applies in common law circumstances’.45 •Second, the Constitutional Court acknowledged in its judgment that it was ‘not able to determine what the position in customary law systems other than the Xitsonga system is’.46 •Third, while the constitutional principles of equality and dignity apply to all customary law, it is still necessary to consider the nuances of different systems of customary law because they may satisfy the constitutional principles in question differently but adequately. 206

The fact that the husband but not the wife can have more than one spouse simultaneously raises the question whether the constitutionality of polygamy could be challenged. COUNTER POINT Constitutionality of polygamy The courts have not yet addressed the constitutionality of polygamy. In Mayelane, the majority did not entertain the question about the constitutionality of this practice because the issue was not before the Court.47 Similarly, the Constitutional Court glossed over the issue in Bhe v Khayelitsha Magistrate.48 The Court, arguably, implicitly approved of the practice by amending the Intestate Succession Act,49 which it applied to customary estates, to include heirs in polygamous marriages.50 Thus, the constitutionality of the practice of polygamy remains untested judicially. The constitutionality of polygamy could be challenged on the ground that it unfairly discriminates against women in terms of section 9 of the Constitution. Alternatively, it could be argued that polygamy violates women’s right to dignity because only men can have more than one wife while women cannot have more than one husband. The following points may form the basis of arguments on one or the other side:51 •Polygamy performs valuable social functions by enabling a woman who may otherwise remain unmarried to have a family. Thus, allegations of the unconstitutionality of polygamy must be balanced against its perceived benefits. •The consent of the woman to be in a polygamous marriage vitiates any wrongfulness in polygamy from the point of view of fairness. In other words, why should women not be free to choose a marriage of this kind? In this respect, Dlamini observes: It is hard to believe that a woman who decided freely to be involved in a customary marriage after taking all factors into account could be regarded as being discriminated against unfairly. If she entered into the marriage from her own free will and volition the state has no business in not recognising that marriage on the ground that it makes her unequal to whomever … For some women it may sound hollow that their marriage is not recognised in order to make them equal with 207

other women or men and to protect their dignity when in fact to attack their marriage is to affront their dignity.52 •In answer to Sinclair’s criticism that his views ‘are cold comfort to women who are in favour of gender equality,’53 Dlamini argues that this may be an oversimplification of the situation by Sinclair because the protection of cultural rights is closely connected with the dignity of the people whose culture is in question. He states: Demeaning one’s culture often leads to one’s dignity and feelings of self-worth being affected because culture is intimately intertwined with the emotions of the people. No woman should be compelled to be part of a customary marriage against her will. If she insists on monogamy as guarantee of equality, she must marry in terms of civil marriage because that type of marriage does not allow polygyny.54 •In these contexts, Dlamini also sees a situation where the constitutional requirement of freedom of choice of the woman may check the pursuit of her rights to equality and dignity.55 •Polygamy per se is not the cause of the subordination of women to men or of prejudice or abuse suffered by women in marriage. Rather, ‘it is one factor contributing to the patriarchal nature of society’.56 •The constitutionality of polygamy must be weighed against the suffering this practice inflicts on women.57 •Abolishing polygamy is too controversial. The institution must be left to die a natural death as changing economic conditions are leading to the inability of men to afford to marry and support more than one wife. •It would be impossible to enforce a prohibition against polygamy.58 7.4.3.2The status of wives inter se in polygamous marriages concluded before 15 November 2000 Terminology simple marriage

a polygamous marriage which consists of only two wives

complex marriage

a polygamous marriage which consists of three or more wives

208

In the context of polygamy, a separate house is established for each wife on marriage and the husband allots property to that house. A polygamous marriage which consists of only two wives is called a simple marriage. Where the marriage consists of three or more wives, it is known as a complex marriage.59 In this kind of marriage, the wives are ranked according to the customary law concerned. For example, among amaZulu of KwaZulu-Natal, there are three principal wives in the kraal of a chief: ‘inkosikazi, or the indlunkulu; … the iqadi, or left-hand wife; … the ikhohlo, or right-hand wife. All other wives a chief may take are affiliated to one or other of these principal wives’.60 It would appear that customary law continues to regulate the status of the wives inter se in marriages entered into before the RCMA came into operation on 15 November 2000. This proposition is based on the fact that the RCMA applies customary law to other important consequences of polygamous marriages entered into before the Act came into operation such as the proprietary consequences of marriage. In this respect, the Constitutional Court in Gumede preserved the status quo regarding the application of customary law to the proprietary consequences of polygamous marriages entered into before the RCMA came into force while it changed the status quo in respect of monogamous marriages concluded in the same period.61 Customary law accords unequal status to wives in polygamous marriages according to their houses. Houses are ranked in terms of seniority according to the date of the woman’s marriage. Although the husband treats all women equally, he gives deference to the senior wife62 in both simple and complex marriages.63 As for the relationship among the wives, they should give the respect due to each other according to their rank.64 7.4.3.3 The status of wives inter se in polygamous marriages concluded after 15 November 2000 With regard to polygamous marriages entered into after the RCMA came into operation, the Act is silent on the regulation of the status of wives’ houses and their ranking. It is therefore not clear whether customary law continues to apply to this aspect of the personal status of the parties. This doubt is reinforced by section 6 which elevates the status of the wife to that of the husband ‘in addition to any rights that she may have at customary law’. The wording of this section may imply that the 209

RCMA did not intend to take away the status or rank a wife may have under customary law, including her rank arising in polygamous marriages.65 There is, therefore, a need to clarify the legal position on several issues concerning the personal consequences of polygamous marriages. Moreover, the issue of the ranking of wives may raise a constitutional question for determination. COUNTER POINT Is the differentiation of status based on the ranking of houses in polygamous marriages unconstitutional? Do customary practices that differentiate between wives with respect to the ranking of their status according to their houses in polygamous marriages unfairly discriminate against wives on the ground of the date of their marriage? Should the principle of equality embedded in section 6 of the RCMA also apply to the relationship between the wives inter se? Should the rules or practices in question be invalidated for infringing the constitutional right to equality or developed in accordance with the spirit, purport and objects of the Bill of Rights? It may be argued that to the extent that the organisation of women’s houses affects the material rights of the members of the various households, for example in succession,66 the ranking system is unconstitutional on the ground of unfair discrimination. However, in our view, the differential treatment of wives in the context of polygamous marriages does not amount to unfair discrimination. The ranking system represents a cultural right which the women concerned choose to live by. Presumably, the ranking system is known to the women when they decide to enter into the marriage. They, therefore, consent to live within the rank of their marriage when they decide to enter into a polygamous marriage, as argued in the discussion under section 7.4.3.1 above. 7.5 Consequences of marriage in respect of children of the marriage 7.5.1 Parental rights prior to the constitutional era The concept of illegitimacy is foreign to customary law. In general terms, in matrilineal societies, children of unmarried women are born into the family of their

210

mother while those in patrilineal societies are born into the family of their father. In some cases, a man who is not the biological father of the child may, on marrying the child’s mother, pay lobolo for the child as well. The child then belongs to him and not to the biological father.67 Thus, a child is always attached to a family, whether to that of its mother, biological father or social father. This is in contrast to the common law meaning of illegitimacy68 (or more correctly extramarital birth). Before the interim Constitution came into operation in 1994, lobolo was an important factor for the affiliation of children to the mother or father and their respective families.69 Parental rights passed from the mother’s father and his family to the father of the child and his family on payment of lobolo. Conversely, nonpayment of lobolo deprived the father and his family of parental rights. 7.5.2 The effect of the Bill of Rights and the principle of the best interests of the child on the affiliation of children As already stated, the colonial, Union and apartheid courts introduced the common law concepts of guardianship and custody into customary law. These courts applied the common law principle of the best interests of the child to custody disputes involving children of customary marriages.70 However, the application of this principle to customary law took on a new dimension when section 30(3) of the interim Constitution introduced the principle in the Bill of Rights. This section provided that in all matters concerning the child the best interests of the child were of paramount consideration. The High Court considered this principle in relation to the role of lobolo in Hlophe v Mahlalela.71 The applicant, the father of the child, claimed possession of his minor child who had been living with her grandparents, the respondents, after the death of her mother, the applicant’s wife. The applicant made the claim under emaSwati customary law. The parents had subsequently entered into a civil marriage with each other. One of the main issues was what effect the fact that the applicant had not paid lobolo in full at the time of his wife’s death had on the issue of the child’s custody. The Court did not expressly invalidate the practice of lobolo. However, it nullified its effect on issues of custody. It held that rights of custody of children were no longer to be determined by the payment or non-payment of lobolo, but by the principle of the best interests of the child enshrined in section 30 of the Constitution. Van den Heever AJ stated: 211

It is, in my view, clear that issues relating to the custody of a minor child cannot be determined in this fashion, i.e. by the mere delivery or non-delivery of a certain number of cattle. Any doubt as to the applicable legal principles that might have existed in this regard was, in my view, effectively removed by the promulgation of the Interim Constitution of South Africa Act 200 of 1993 inasmuch as s 30(3) thereof provides as follows: …This matter should and will therefore be decided only on the basis of what would be in the best interests of [the child].72 The Court, furthermore, impliedly considered lobolo to smack of the sale of and trafficking in children, practices which could not be countenanced by the Bill of Rights.73 The non-requirement of lobolo for a valid marriage in terms of the RCMA74 serves to reinforce the irrelevance of this practice to the status of children. In its motivation for this exclusion, the SALC stated: If parties wish to give lobolo, they should be free to do so, but payment or non-payment will have no effect on the spouses’ relationship or on their rights to any children born of the marriage.75 Thus, children of parents who married after the RCMA came into operation are affiliated to both parents’ families whether or not lobolo was paid or promised at the time of the marriage. The best interests of the child principle is now the subject of section 28(2) of the Constitution. This section may, therefore, be used as a basis for denying the effect of lobolo on the status of children in customary law and in customary marriages in particular. An interesting question, however, is whether the courts should not consider the best interests of the child principle from a customary perspective, a question which is considered below. COUNTER POINT Is customary law devoid of the best interests of the child principle?

212

The Court in Hlophe v Mahlalela did not consider what the best interests of the child principle means from the perspective of customary law. Invariably, the best interests of a child in customary law are tied up with the interests of the child’s family or community. Kaime’s description of this concept in a Malawian indigenous community probably applies to most, if not all, cultural worldviews of indigenous communities. This worldview: focuses on family or community interests rather than on the individual … Individuals are generally not in a position to claim rights which are separate from and against the family or kinship group of which they are members. Consequently, children do not have special entitlements outside the welfare of the family as a whole.76 The principal rationale of this philosophy is that the family is regarded as a protective place for all its members. Under this ethic of inclusiveness, decisions that promote its welfare as a whole also automatically protect the welfare of its individual members. However, where there is conflict, the interests of the individual, in this case the child, have to be suspended.77 This group-oriented approach to children’s rights is likely to be opposed by children’s rights advocates and champions of individual rights. However, based on his empirical study, Kaime asserts that in the majority of cases, the choices made for the welfare of the group also serve the interests of children. In other words, group interests do in some cases mediate the interests of the child. Furthermore, because of its flexible nature,78 the best interests of the child principle is inherently applied on a case-by-case basis. There is therefore no reason why it should not be compatible with the group orientation of a community’s care of children in specific cases. No wonder then that the Children’s Act includes aspects of group rights and responsibilities in the best interests of the child in the factors for the determination of the best interests of the child. It provides for the needs of the child: to remain in the care of his or her parent, family and extended family, and to maintain a connection with his or her family, extended family, culture or tradition …79

213

The core of this argument is that courts should endeavour to apply the customary law philosophy of group rights to determinations of the best interests of children of customary marriages in individual cases. 7.5.3 The effect of the Children’s Act 38 of 2005 on the consequences of customary marriage regarding children The Children’s Act made important changes to the law governing consequences of customary marriages regarding children. Among other things, this Act seeks to align the law of children to the Constitution, especially to section 28, which guarantees the rights of the child. It introduces the notions of parental responsibilities and rights,80 in addition to other concepts, such as that of ‘care’.81 However, since the Children’s Act and the Constitution do not apply retrospectively, the question may arise as to which children these pieces of legislation apply. PAUSE FOR REFLECTION The effect of the non-retrospective application of the Constitution and the Children’s Act The Constitution82 and the Children’s Act do not have retrospective effect. Consequently, it may be argued that a distinction must be made generally between marriages entered into before and after each one of these laws came into operation with regard to the parent and child relationship. The effect of this argument would be as follows: •With regard to the children of parents who married each other before the Constitution and the Children’s Act came into force, children of the marriage are affiliated to the husband’s family if the lobolo has been paid or agreed on.83 The wife continues to bear children for her husband’s family until the marriage is formally terminated.84 Since lobolo was essential for the validity of the marriage before the RCMA, its non-payment would signify the absence of a marriage. The children would then be affiliated to their mother’s family.85 •After the Constitution and the Children’s Act came into operation, the best interests of the child are the paramount consideration in accordance with section 28(2) of the Constitution. According to Hlophe v Mahlalela, lobolo is no longer the determining factor. 214

However, although there is a need to clarify by legislation or court decision the effect of non-retrospective application of these three sets of legislation, it is highly unlikely that any court would entertain the discriminatory treatment of children on the basis of the children’s date of birth or the date of marriage of their parents. The Children’s Act makes it clear that the responsibilities and rights it introduces apply to customary marriages as well because it defines a marriage to include a marriage which is recognised in terms of customary law.86 Thus, a customary marriage gives the husband and wife equal parental responsibilities and rights.87 Sections 18(2) and (3) of the Children’s Act define parental responsibilities and rights as follows: (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right to – (a) care for the child; (b) maintain contact with the child; (c) act as guardian of the child; and (d) contribute to the maintenance of the child.

(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must – (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including – (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. Because both the husband and wife have guardianship of the child,88 they may exercise all the above responsibilities and rights independently of each other and 215

without the consent of the other, except for those matters stated in subsection (3)(c) in respect of which both of them must give consent. However, joint consent in respect

of

these

two circumstances.

89

responsibilities

and

rights

may

The first is where ‘any other law’,

not 90

be

required

in

presumably excluding

customary law,91 dispenses with such joint consent. The second is where a competent court has dispensed with the consent of one of the parents.92 The Children’s Act also states that when making a decision regarding the matters stated in subsection (3)(c), the guardian must give due consideration to the views and wishes expressed by the child, bearing in mind the child’s age, maturity and level of development.93 This requirement also applies to the decisions of the guardian concerning the following: … any decision – … (ii) affecting contact between the child and a co-holder of parental responsibilities and rights; (iii) regarding the assignment of guardianship or care in respect of the child to another person in terms of section 27; or (iv) which is likely to significantly change, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being.94 Section 9 of the Children’s Act stipulates that in matters concerning the care, protection and well-being of a child, the standard that the child’s best interests are of paramount importance must be applied. Section 7, in turn, provides a closed list of factors that must be taken into account when applying the best interests of the child standard. These are: (a) the nature of the personal relationship between – (i) the child and the parents, or any specific parent; [95] and (ii) the child and any other care-giver or person relevant in those circumstances; (b) the attitude of the parents, or any specific parent, towards –

216

(i) the child; and (ii) the exercise of parental responsibilities and rights in respect of the child; (c) the capacity of the parents, or any specific parent, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs; (d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from – (i) both or either of the parents; or (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living; (e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis; (f) the need for the child – (i) to remain in the care of his or her parent, family and extended family, and (ii) to maintain a connection with his or her family, extended family, culture or tradition; (g) the child’s – (i) age, maturity and stage of development; (ii) gender; (iii) background; and (iv) any other relevant characteristics of the child; (h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; (i) any disability that a child may have; (j) any chronic illness from which a child may suffer; (k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment; (l) the need to protect the child from any physical or psychological harm that may be caused by– 217

(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; (m) any family violence involving the child or a family member of the child; and (n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child. Section 6 of the Children’s Act in turn provides for general principles that must guide the implementation of the provisions of the Act, including those on parental responsibilities and rights, as well as proceedings of courts and other organs of the state in these and other matters concerning children.96 In other words, all actions, decisions and proceedings in a matter concerning a child must be guided by these principles:

(2) All proceedings, actions and decisions in a matter concerning a child must – (a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights[97], the best interests of the child standard set out in section 7 and the rights and principles set out in this Act subject to any lawful limitation; (b) respect the child’s inherent dignity; (c) treat the child fairly and equitably; (d) protect the child from unfair discrimination on any ground, including on the grounds of the health status or disability of the child or a family member of the child; (e) recognise a child’s need for development and to engage in play and other recreational activities appropriate to the child’s age; and (f) recognise a child’s disability and create an enabling environment to respond to the special needs that the child has.

218

Section 6 also gives the child’s family, including the extended family, the opportunity to express their views in any matter concerning the child provided this is in the best interests of the child.98 It furthermore gives a child and a person who has parental responsibilities and rights in respect of that child, where appropriate, the right to be informed of any action or decision taken in a matter concerning the child that significantly affects the child.99 7.6 Proprietary consequences of marriage Terminology accrual

as an element of a marriage property regime, accrual means the growth or increase in

system

the matrimonial property. It applies to marriages out of community of property and entitles the spouses who own property separately during the marriage to share the assets represented by the growth of their property in the course of their marriage on the dissolution of the marriage. The spouse whose estate grows the most shares the gains (accrual) of his or her separate property with the other spouse whose estate did not grow or did not grow as much100 7.6.1 Introduction Two possible ways of organising a section of a chapter on the proprietary consequences of a customary marriage present themselves. The first would be to organise the chapter according to the different types of marriages, for example polygamous or monogamous marriages. The second is to divide the section according to the applicable legal regime, for example customary law or common law. The second approach is preferred in this chapter because of its simplicity although the type-of-marriage approach cannot be completely excluded. 7.6.2 Uncodified customary law For the purposes of this section, the term ‘customary law’ excludes the provisions of the RCMA. This is because the provisions of the RCMA merely import the law applicable to civil marriages entered into in accordance with the Marriage Act. In addition, the RCMA creates a statutory regime of proprietary consequences that have modified or reformed the customary law of indigenous communities to produce a hybrid of proprietary consequences of the so-called customary marriage. 219

Before the RCMA came into operation, customary marriages were entered into and their consequences defined in terms of uncodified customary law, the Codes of Zulu Law and other ‘homeland’ legislation such as the Transkei Marriage Act. Because of the limited scope of this chapter, there is no specific discussion of the legislation of the former ‘homelands’ other than the Codes of Zulu Law. The reason the Codes are included is because they have been the subject of a judicial decision in Gumede. This section of the chapter deals with uncodified customary law. The point of departure for the discussion of the customary law regulating the proprietary consequences of marriage is section 7(1) of the RCMA which was invalidated by Gumede. Before its invalidation, this section provided that customary law governed the proprietary consequences of customary marriages entered into before the RCMA came into operation. Gumede invalidated the section because it was, inter alia, unfairly discriminatory on the ground of gender and therefore contrary to the Constitution. However, the invalidation applies only to monogamous marriages as opposed to polygamous marriages. The Court held that the proprietary consequences of polygamous relationships concluded before the coming into operation of the RCMA will continue to be regulated by customary law until Parliament intervenes.101 The proprietary consequences of polygamous marriages under uncodified customary law are best understood by reference to the system of the ranking of wives and their houses. Heaton sets out the following description of the ranking system.102 Each customary marriage constitutes a house in which both the house and the wife belonging to it are ranked according to the customary law of the indigenous community concerned. The complex ranking is the predominant system and it manifests in two forms: One form determines each house’s relative rank according to the date of the marriage, with the first wife (also known as the great, main or chief wife) and her house occupying the highest rank. All other wives and their houses are ranked according to the date of each marriage.103 The second form of complex ranking divides the houses into two sections. The first section comprises the first wife, the main wife, whose house forms the senior house

220

of the section. The second wife, the right-hand wife, forms the senior house of the second section. ‘All further wives are added, in turn, to the two sections, and their ranking within each section is determined according to the date of each marriage.’104 The simple ranking system, which is said to be rare105 and does not receive any further treatment in this work, consists of all wives who together make one estate in which the husband is the head. However, each wife occupies a ‘different rank, which is determined by the date of her marriage.’106 In both complex and simple ranking systems, the husband is the head of each house.107 With regard to the proprietary consequences of a marriage in a complex ranking system, property acquired by a spouse falls into two categories: •General property consists of property acquired by members of a house. Property acquired by individual members of the house, that is, wives and children, together with assets received as lobolo for its members, belong to the house to which the member belongs. Also included in the property of each house is any property allotted to the particular house by the head of the family. •Family property is the property acquired by the family head that has not been allotted to houses. The family head draws from this property to support his dependants. He may also use the property in this category as he pleases.108 The discretion of the husband as head of the family to deal with family property as he pleases should be considered against the backdrop of section 6 of the RCMA. This section states: A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage … (own emphasis). The words in bold mean that in the case of a customary marriage entered into before the RCMA, the equal status of the wife to that of the husband is limited by the proprietary regime described in this section. In other words, the husband as head of the family is in control of the family property to the exclusion of the wife. Furthermore, given the fact that women generally have less opportunities to earn income and acquire property that should fall to their houses, wives have no property of their own during the marriage and may be destitute if the husband deserts them. Equally, they will have to leave the matrimonial home empty-handed on divorce.109 221

The customary law discussed above governs all marriages other than those in KwaZulu-Natal in which the consequences are governed by the Codes, which we discuss in the next section. However, for reasons mentioned in the discussion below, it is necessary to ask how or whether these rules are still applied in modern society in the same way as described here. PAUSE FOR REFLECTION To what extent does uncodified customary law apply today? The description of uncodified customary law regulating proprietary consequences of simple and complex family households is among those rules of customary law that have been carried from one generation of textbook to another. Arguably, they represent official customary law. This raises a number of questions: •First, does it mean that the rules under consideration are basically the same, regardless of the indigenous community and its unique experience under colonial, Union and apartheid legal systems? •Second, how have these rules accommodated modern non-agrarian property such as motor cars, television sets, fridges, stoves and so on? •Third, are the ‘old’ divisions between general and family property still maintained? •Fourth, who pays the utility bills such as the bills of the local authority? In our view, based both on the evolving nature of customary law and on research elsewhere on the African continent,110 which has shown how customary law has adapted to new forms of matrimonial property, the rules discussed under this section have probably been modified in practice. There is, therefore, the need for empirical research to test this proposition. 7.6.3 The Natal Codes of Zulu Law The Natal Codes of Zulu Law generally apply only to the province of KwaZuluNatal.111 Section 20 of the KwaZulu Act and section 20 of the Natal Code regulate the proprietary consequences of marriages falling under the Codes.112 The two sections provide for the same basic principles of the complex ranking systems discussed above by stating that a family head is the owner and has control of all family property in the family home. Section 20 of the KwaZulu Act stated:

222

The family head is the owner of all family property in his family home. He has charge, custody and control of the property attaching to the houses of his several wives and may in his discretion use the same for his personal wants and necessities, or for general family purposes or for the entertainment of visitors. He may use, exchange, loan or otherwise alienate or deal with such property for the benefit of or in the interests of the house to which it attaches, but should he use property attaching to one house for the benefit or on behalf of any other house in the family home an obligation rests upon such other house to return the same or its equivalent in value. Section 20 of the Natal Code has a similar provision. Section 22 of the Codes provided that all ‘[t]he inmates of a family home irrespective of sex or age shall in respect of all family matters be under the control of and owe obedience to the family head’. As explained by the Constitutional Court in Gumede, these provisions meant that the husband was the exclusive owner of all the property that was acquired during the subsistence of the marriage.113 The Constitutional Court in Gumede invalidated the rules regulating proprietary consequences under the Codes, namely sections 20 and 22 of the Codes on the ground that these sections infringed the constitutional principle of gender equality. The Court made the decision with retrospective effect with regard to monogamous marriages. In invalidating these sections the Court stated: These impugned provisions are self-evidently discriminatory on at least one listed ground: gender. The provisions are discriminatory as between wife and husband. Only women in a customary marriage are subject

to

these

unequal

proprietary

consequences.

This

discrimination is on a listed ground and is therefore unfair unless it is established that it is fair. And within the class of women married under customary law, the legislation differentiates between a woman who is a party to an ‘old’ or pre-recognition customary marriage as against a woman who is a party to a ‘new’ or post-recognition customary marriage. This differentiation is unfairly discriminatory.114

223

The Court stated further: The matrimonial proprietary system of customary law during the subsistence of a marriage, as codified in the Natal Code and the KwaZulu Act, patently limits the equality dictates of our Constitution and of the Recognition Act. The former statutes provide that the family head is owner of all the family property over which he has ‘charge, custody and control’ and may ‘in his discretion use the same for his personal wants and necessities, or for general family purposes or for the entertainment of visitors.’ This patriarchal domination over, and the complete exclusion of, the wife in the owning or dealing with family property unashamedly demeans and makes vulnerable the wife concerned and is thus discriminatory and unfair. It has not been shown to be otherwise, nor is there any justification for it.115 The invalidation of sections 20 and 22116 of the Codes means that uncodified customary law now regulates proprietary consequences in KwaZulu-Natal as in the rest of the country.117 However, we should mention that the rules that regulated the proprietary consequences of marriage under these Codes are still relevant for two reasons: •First, the order of invalidity does not affect the legal consequences of any act done or omission or fact existing in relation to a customary marriage before this order was made.118 •Second, any interested person may approach the Constitutional Court for a variation of its order in the event of serious administrative or practical problems they experience as a result of the order.119 For these reasons, there may still be cases in which disputes involving the proprietary consequences of marriage under the Codes arise for determination by the courts. Before we leave this section, it is necessary to discuss the application of the Codes to which we now turn.

224

PAUSE FOR REFLECTION Uncertainty regarding the application of the Natal Codes of Zulu Law With regard to the application of the Codes, there is uncertainty in the literature on the persons to whom they apply.120 There are two positions relevant to this chapter. The first is that pursuant to section 105(1) of the Codes, which preserves the application of the Law of Evidence Amendment Act (LEAA). 121 The conflict of laws rules anticipated by the LEAA would determine the persons to whom the Codes are applicable.122 Section 1(3) of the LEAA provides for a hierarchy of rules for determining conflicts between rules of customary law emanating from different indigenous communities.123 Thus, if a Zulu is married to a person from another indigenous community and a decision has to be made as to what customary law system to apply, the rules in section 1(3) of the LEAA will be applied to determine the applicable system of customary law. The second position supports the application of the Codes on the basis of the principle of territoriality. This means that the Codes apply to black people who live in the province of KwaZulu-Natal regardless of their tribal affiliations. The position on the application of the Codes, like that of the conflict rules involving customary law generally, is unsatisfactory and in need of reform. Unfortunately, the legislature has not acted on the report of the SALC on these issues.124 7.6.4 The Recognition of Customary Marriages Act 120 of 1998 and the Matrimonial Property Act 88 of 1984 This section outlines the law regulating proprietary consequences contained in the RCMA, as well as statutory law extended to customary marriages by this Act. Regarding the latter, the RCMA applies some provisions of the Matrimonial Property Act (MPA) that regulate civil marriages to monogamous customary marriages that are entered into in terms of its provisions. The regulation of the proprietary consequences of marriage under the RCMA encompasses the following types of marriages: •all monogamous customary marriages regardless of whether they were entered into before or after the RCMA came into operation •polygamous marriages entered into after the RCMA came into operation 225

•customary marriages that have been converted to civil marriage125 •minors’ marriages entered into before and after the RCMA came into operation.126 However, due to the limited scope of this chapter, we deal with only the first two types of marriages.127 7.6.4.1 Monogamous customary marriages in terms of the RCMA and the MPA Although the RCMA recognises polygamous marriage,128 a couple may choose to enter into and remain in a monogamous customary marriage for as long as their marriage lasts. Section 7(2) of the RCMA, as amended by the Constitutional Court in Gumede, regulates the proprietary consequences of such a marriage. Prior to this decision, section 7(1) regulated the proprietary consequences of both monogamous and polygamous marriages entered into before the RCMA came into operation. Customary law governed these marriages. This would have been the uncodified and codified customary law discussed above. Section 7(2) provided for the monogamous marriages entered into after the RCMA. It stated that the parties were married in community of property and of profit and loss unless community had been excluded by an antenuptial contract. Section 7(3) extends Chapter 3 and sections 18, 19, 20 and 24 of Chapter 4 of the MPA to marriages in community contemplated by section 7(2) of the RCMA. As already indicated, the Court in Gumede declared section 7(1) of the RCMA to be unconstitutional and invalid to the extent that it related to monogamous customary marriages. It also declared the words ‘entered into after the commencement of this Act’ in section 7(2) to be unconstitutional and invalid and, accordingly, severed them from the section. The effect of the Gumede decision is that all monogamous customary marriages, whether entered into before or after the RCMA came into operation, are now in community of property unless this regime has been appropriately excluded by the spouses. In the following sections, we discuss the legal consequences of in community and out of community matrimonial property regimes applicable to customary marriages entered into in terms of the RCMA.

226

7.6.4.1.1 Marriage in community of property Terminology asset

property that has monetary value, such as a car, house, motorcycle, jewellery, furniture, insurance policy and pension benefits that a spouse is entitled to claim

liability obligations for which a person is legally responsible, especially financial obligations The discussion of the nature of a marriage in community of property in this section takes as a point of departure the concept of community of property in the manner in which it is understood under the common law. However, only a summary is provided here.129 Community of

property represents

an

indivisible

joint

estate,

including

all assets acquired before and during the marriage. The spouses have equal shares in the estate. Similarly, liabilities incurred before and during the marriage are recoverable from the joint estate. However, certain assets and liabilities are excluded from the joint estate so that they belong, or are charged, to individual spouses. These include: 

assets excluded by antenuptual contract130



assets excluded from the joint estates by a will or a legal instrument (deed) containing a donation131



delictual damages paid to one spouse by the other as compensation for bodily injury inflicted by the latter



assets excluded from the joint estate in pursuance, for example, of the Prevention of Organised Crime Act.132

On dissolution of the marriage by divorce or death the parties are automatically entitled to a share of the residue of the estate in equal shares after settlement of the liabilities from the joint estate. The circumstances in which the joint estate may be divided during the subsistence of the marriage are defined by law.133 The division therefore cannot take place at the whim of the parties. Various aspects of the joint estate are discussed in the following sections.

227

(a) Management of the joint estate The MPA gives spouses equal powers to dispose of assets of the joint estate, to contract for debts against the estate and to manage the joint estate.134 In these respects, the MPA gives each spouse the power to perform any juristic act without the consent of the other with the exception of several categories of juristic acts in respect of which the consent of both spouses is required. The MPA also gives each spouse the right to apply to the court to have the consent of the other spouse dispensed with in those cases where joint consent is required. The various spousal powers in respect of the administration of the joint estate are discussed below. (i) Juristic acts requiring joint consent In this section, juristic acts requiring the joint consent of the spouses are grouped according to the manner in which the required consent is to be given or the specific conditions attached to them. Juristic acts requiring prior written consent only135 A spouse may not perform the following juristic acts without the prior written consent of the other spouse: 

alienating, ceding or pledging any shares, stock, debentures, debenture bonds, insurance policies, mortgage bonds, fixed deposits or any similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate



alienating or pledging any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments



withdrawing money held in the name of the other spouse in any account in a banking institution, a building society or the Post Office Savings Bank of the Republic of South Africa



instituting or defending legal proceedings against another person with the exception of the following:136

in respect of the litigating spouses separate property for the recovery of damages, other than damages for patrimonial loss, by reason of the commission of a delict against him in respect of a matter relating to his or her profession, trade or business.137

228

Consent in respect of juristic acts under the first three bullet points may also be given by way of ratification within a reasonable time after the act concerned.138 Juristic acts requiring separate prior written consent and attestation139 A spouse must obtain the consent of the other spouse for the following transactions before the act since ratification is not permitted:140 

alienating, mortgaging, burdening with a servitude or conferring any other real right in any immovable property forming part of the joint estate



entering into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate



binding oneself as surety.

Juristic acts requiring separate written consent and attestation141 Unlike the transactions listed in the previous paragraph, consent to these acts may be by way of ratification: 

entering as a consumer into a credit agreement to which the provisions of the National Credit Act142 apply but the written consent of a spouse is not required before incurring each successive charge under a credit facility



as a purchaser entering into a contract as defined in the Alienation of Land Act143 and to which the provisions of that Act apply



binding oneself as surety.

Consent given in any manner The consent required for the following transactions may be given in any manner – written, orally, tacitly or by way of ratification within a reasonable time after the act concerned except where it is required for the registration of a deed in a deeds registry:144 

alienating, pledging or otherwise burdening any furniture or other effects of the common household forming part of the joint estate

 receiving any money due or accruing to that other spouse or the joint estate by way of: remuneration, earnings, bonus, allowance, royalty, pension or gratuity by virtue of his or her profession, trade, business, or services rendered by him or her

229

damages for loss of income mentioned in the point above inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse income derived from the separate property of the other spouse dividends or interest on or the proceeds of shares or investments in the name of the other spouse proceeds of any insurance policy or annuity in favour of the other spouse donating any asset of the joint estate to a third party if the donation unreasonably prejudices the interest of the other spouse in the joint estate.145 Whether a donation prejudices the interest of the other spouse is determined by reference to any factor the court considers relevant, including the value of the property donated, the reason for the donation, the social standing of the spouses and their standard of living.146 (ii) Dispensing with the other spouse’s consent In two instances a spouse may apply to the court147 for permission to enter into a transaction which otherwise requires the consent of the other spouse under the rules discussed above. These are: 

where the other party withholds the required consent and the court is satisfied that the withholding is unreasonable



the consent can for any other reason not be obtained and there is good reason to dispense with the consent.148

(iii) Juristic acts in respect of which no consent is required The MPA provides for juristic acts that do not require the consent of the other spouse because they are performed in the course of the profession, trade or business of the spouse who performs them. The following acts fall into this category:149 

entering into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate 230



alienating, ceding or pledging any shares, stock, debentures, debenture bonds, insurance policies, mortgage bonds, fixed deposits or any similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate



entering as a consumer into a credit agreement to which the provisions of the National Credit Act apply but the written consent of a spouse is not required before incurring each successive charge under a credit facility



as a purchaser entering into a contract as defined in the Alienation of Land Act and to which the provisions of that Act apply



binding oneself as surety.

In addition, the following acts require no consent:150 

selling listed securities on the stock exchange and ceding or pledging listed securities in order to buy listed securities



alienating, ceding or pledging: a deposit held in his or her name at a building society or banking institution building society shares registered in his or her name.

(b) Protection of third parties and spouses inter se in relation to the management of the joint estate The MPA provides for measures to protect the rights of third parties151 and those of spouses inter se in relation to the management of the joint estate. If a spouse enters into a transaction with a third party without the consent of the other spouse contrary to the consent rules discussed above and the third party does not know or cannot reasonably know that the transaction is being entered into in breach of the rules, the transaction is deemed to have been entered into with the joint consent of the spouses.152 This rule also applies when the spouse acts in breach of an order of the court suspending his or her powers in relation to the administration of the joint estate in terms of section 16(2) of the MPA discussed below.153 If the joint estate suffers a loss as a result of the action of the spouse who acts without the consent of the other spouse, that spouse is liable to have his or her share of the joint estate adjusted in favour of the other spouse on the dissolution of the 231

joint estates.154However, his or her liability in this respect only arises if he or she knew or ought reasonably to have known that he or she would probably not obtain consent for the transaction concerned.155 The MPA does not provide for the effect of a transaction without consent in which the third party was aware that spousal consent was required and was not obtained, but it seems that the transaction would result in a nullity.156 In addition to protecting third parties, the rules discussed in the preceding paragraph extend protection to the spouses between themselves by ensuring that the innocent spouse is compensated, through adjustment, for any loss that the estate suffers as a result of the transaction he or she did not consent to. Sections 16 and 20 of the MPA and the common law give further protection to spouses between themselves. The protection mechanisms in sections 16 and 20 of the MPA consist of the suspension of administration powers and the immediate division of the joint estate, while the common law mechanisms are an interdict, the right of recourse, the actio Pauliana utilis and a declaration of prodigality.157 (i) Suspension of administration powers and division of the estate Section 16(2) of the MPA provides that where the interest of a spouse in the joint estate is under threat, the affected spouse may apply to the court to protect the threatened interest. The court will suspend any power which the other spouse may exercise with respect to the administration of the joint estate if it is satisfied that such a step is essential to the protection of the interest in question. The suspension of the other spouse’s power may be for a definite or an indefinite period. Section 20(1) of the MPA regulates the division of the joint estate. This section states that the court may, on application by one spouse, order the immediate division of the joint estate in equal shares or on such other basis as it deems just if it is satisfied that: 

the interests of that spouse (the applicant) in the joint estate are being or will probably be seriously prejudiced by the conduct or proposed conduct of the other spouse



third parties will not be prejudiced by the order.

In making the order under section 20, the court takes into account factors such as: 232

the duration of the marriage, the assets each spouse brought into the marriage, each spouse’s debts at the commencement of the marriage, each spouse’s contribution to the joint estate during the marriage, the prejudice one spouse suffered in respect of assets of the joint estate as a result of the other spouse’s conduct, and antenuptial debts that were settled from the joint estate during the subsistence of the marriage.158 (ii) Interdict A spouse may apply to court for an interdict to prevent the other spouse from alienating an asset of the joint estate with the intention of prejudicing the applicant’s interest in the joint estate. There are three conditions on which the interdict may be granted:159 

The first condition is proof of the intention that the property is being alienated to prejudice the interests of the spouse in the estate.160



The second is that the prejudiced spouse did not consent to the alienation even where it can be shown that the intention of the other spouse was to defraud him or her by way of the transaction.



The third condition is that the wronged party has no suitable alternative remedy. For example, where the alienation concerned requires the consent of both spouses, the spouse approaching the court for an interdict must prove that the remedy of recourse under section 15(9)(b) of the MPA does not provide a suitable alternative remedy due to the fact that the threatened transaction would result in the complete depletion of the joint estate.

(iii) Right of recourse Where one spouse has already fraudulently alienated the assets of the joint estate, the spouse who is prejudiced by this act has a right of recourse against the fraudulent spouse or against his or her share of the joint estate on the dissolution of the marriage.161 (iv) Actio Pauliana utilis The actio Pauliana utilis remedy entitles the prejudiced spouse to recover the asset from a third party where the other spouse has already fraudulently alienated an asset of the joint estate.162 233

(v) Declaration of prodigality Protection by means of declaring a spouse a prodigal by the court results in the termination of his or her power with respect to the administration of the joint estate and any separate property he or she may have.163 The protection offered to spouses by various laws noted in this section are commendable. However, some of them are problematic as noted below. COUNTER POINT Protection of the wife in the context of patriarchy and the suitability of the law regulating the proprietary consequences of marriage The law regulating the management of the joint estate discussed above raises one important issue for discussion. Both the statutory and common law protective measures relating to the joint estate are essential for the protection of spouses, especially the wife. The wife’s protection is particularly important in the light of the principle of patriarchy which is prevalent in South Africa. Where this principle is applied, men are more likely to take decisions pertaining to the administration of the joint estate without the consent of their wives even where their consent is legally required. This problem is likely to be aggravated by the fact that the majority of marriages under customary law are contracted by people living in rural areas. These people are often not aware of how the protective laws under consideration work and they are, therefore, unlikely to use them. Furthermore, the High Court observed, rightly or wrongly,164 in Mayelane v Ngwenyama that ‘most customary marriages are concluded by persons whose access to worldly goods is limited’.165 In these circumstances, it may be argued that the application of complicated rules regulating some aspects of a marriage in community, such as the administration of the joint estates, is unrealistic and inappropriate.166 There is, therefore, a need to revise these rules and simplify their application to customary marriages. 7.6.4.1.2 Marriage out of community of property Section 7(2) of the RCMA makes it clear that the default position of a marriage in community of property can be avoided by parties opting for a marriage out of community of property by concluding an antenuptial contract (ANC). The scope of 234

this chapter does not allow for a full discussion of the nature of an ANC and the type of marriage it regulates.167 Suffice it to say that the main purpose of the ANC is to regulate the proprietary consequences of the marriage and its primary feature is the separation of the property of the parties.168 PAUSE FOR REFLECTION A legal vacuum? The RCMA does not expressly extend the law governing civil marriages out of community of property to customary marriages. Presumably this body of law is extended by implication. One indication of this is the reference in section 7(7), albeit in passing, to the accrual system. The accrual system is an essential feature of a marriage out of community of property. There is, however, a need to clarify the legal position on this matter by an appropriate amendment to the RCMA. Furthermore, mention of the accrual system in section 7(7) seems to suggest that the RCMA anticipates application of the accrual system as a default system to customary marriages of spouses married out of community after the RCMA came into force. In this case, since there is no concept of accrual in customary law, the interpretation of the antenuptial contract would have to follow the common law. It should be mentioned that the application of the accrual system as a default system would mean that parties who do not want it to apply to their marriage out of community of property should exclude it in their antenuptial contract. The question, however, is whether mere choice of a marriage out of community of property invites automatic accrual in the same way that it does in respect of civil marriages. If this were the case, section 7(7) would contribute to the protection of the interests of vulnerable spouses, especially wives, in the matrimonial property regime. However, such an approach would require an amendment to the RCMA to provide clearly for the accrual system as a default position. A further issue requiring clarification is whether this section applies to monogamous marriages entered into before and after the RCMA came into operation. Arguably, the effect of Gumede is that all aspects of proprietary consequences of all monogamous marriages, regardless of when they were entered into, are governed by the RCMA and the relevant common law.

235

7.6.4.2 Polygamous marriages in terms of the RCMA While customary law regulates the proprietary consequences of polygamous marriages entered into before the RCMA came into operation, section 7(6) of the RCMA regulates the consequences of polygamous marriages entered into after the Act came into operation. This section requires the husband who enters into a polygamous marriage to make a contract approved by the court to regulate the future proprietary consequences of the marriage. Both the contract and the procedure under which it is approved by the court are intended to protect the matrimonial property rights of the spouses, especially wives, through the intervention of the court. When considering whether to approve the application, the court must terminate the existing property system and distribute the property between the spouses equitably. The court must also take into account all the relevant circumstances of the family groups which would be affected if the contract were approved.169 Section 7(8) of the RCMA requires all persons having a sufficient interest in the matter, and in particular the applicant’s existing spouse or spouses and his prospective spouse, to be joined in the proceedings to approve the written contract. While the protective feature of the procedure for the approval of the contract is laudable, a discussion of its challenges and possible changes is necessary. PAUSE FOR REFLECTION Change of procedure The procedure for the approval of the contract creates challenges for certain sections of the population, such as people in rural areas, in terms both of knowledge of the law and accessibility to courts for the approval of the contract.170 It is, therefore, necessary to change the procedure for the approval of these contracts. Suggestions may include decentralisation of the process with a view to locating it within reach of the people most likely to be affected by it. An example is institutionalising the process in bodies other than, or in addition to, courts, such as banks or post offices, with officers appropriately trained for this purpose operating these centres on specified days of the week or month. The RCMA is silent on the effect of non-compliance with section 7(6), but the High Court and Supreme Court of Appeal (SCA) considered the issue in Mayelane 236

v Ngwenyama171 and Ngwenyama v Mayelane172 respectively. The High Court held that the second marriage, which was entered into without the contract, was void. In its judgment, the High Court correctly stated, in our view, that section 7(6) aimed to protect both the existing spouse and the new intended spouse by ensuring that the husband obtained the court’s consent to a further customary marriage, albeit that such consent was expressed in proprietary terms. It also correctly observed that both the existing spouse and the intended further spouse had a vital interest in having their relative proprietary positions safeguarded by the procedure laid down in section 7(6). The High Court went on to say: Most customary marriages are concluded by persons whose access to worldly goods is limited and whose financial security may be severely prejudiced by an earlier or the conclusion of another marriage if such fact is not disclosed to the spouses and dealt with by the contract and the court’s approval. The failure to comply with the mandatory provisions of this subsection cannot but lead to the invalidation of a subsequent customary marriage.173 The Court cited, with approval, the view held by Cronjé and Heaton that an interpretation of the subsection which did not make the husband’s capacity to enter a further customary marriage depend on the court’s approval of the proposed contract would imply that the court’s approval was unnecessary. This ‘would leave the interests of the customary wives and their family groups unprotected’.174 The effect of the High Court decision was that all marriages of women in the position of the respondent, the second woman, were void. Furthermore, the decision had dramatic consequences for married women in the position of the respondent in terms both of the women’s property rights and the legal status of their children born of the union, bearing in mind that a void marriage is a complete nullity and considered never to have taken place.175 Thus, the decision did not, in our view, adequately protect the competing interests of women in polygamous marriages. For this and other reasons, it was not surprising that the SCA overturned the decision on appeal in Ngwenyama v Mayelane.176 The Court held that section 7(6) of the RCMA was not intended to invalidate the

237

subsequent marriage. Using a purposive interpretation as a basis for her decision, Ndita AJA, who delivered the judgment for the SCA stated: The purpose of the section must be determined in the light of the legislative scheme which guided its promulgation. At the heart of the Act is the intention to advance the rights of women married according to customary law in order that they acquire rights to matrimonial property they did not have before the enactment of the Act. Effectively, the Act seeks to realise the right to equality envisaged in the Bill of Rights. With this in mind, it becomes difficult to reason that s 7(6) could be intended solely for the protection of the wife in an existing

marriage.

The

court a

quo correctly

considered

and

acknowledged the equal status and capacity afforded to spouses in a customary marriage and came to the conclusion that s 7(6) is aimed at protecting the proprietary interests of both the existing and prospective spouse, but failed to afford a purposive interpretation to the section so that the second wife is equally protected. Properly construed s 7(6) is for the benefit of women in both monogamous and polygamous customary marriages … It follows that whatever protection is afforded to women married according to customary law equally applies to women in polygamous marriages.177 Furthermore, Ndita AJA held that concerns about the proprietary interests of the first wife are sufficiently addressed in the RCMA through the provisions that give the courts a wide discretion to determine what is just and equitable in a given case.178 In his separate judgment, Ponnan JA went further than Ndita AJA and held that the second customary marriage was not void but valid, and that the marriage was out of community of property.179 With regard to the estate, he reasoned that it ‘plainly cannot be a marriage in community of property as that would imply the existence of two joint estates, which it is clear cannot co-exist’.180According to Ponnan JA, his decision would afford sufficient protection to the wife of the first customary marriage. At the same time, it would ‘accord with the injunction of the Constitutional Court that all legislation be interpreted in accordance with the spirit and purport of the Constitution’.181

238

PAUSE FOR REFLECTION What

kind

of

marriage

system

did

the

SCA

in Ngwenyama

v

Mayelane envisage? While the decision of the SCA in Ngwenyama v Mayelane is laudable in many respects, it left important questions unanswered. This is because it did not elaborate on the kind of a marriage out of community it had pronounced on since the parties had not concluded an antenuptial contract at the time of the purported subsequent marriage. The questions are as follows: •What kind of marriage out of community of property did Ponnan JA envisage? •Are the parties to the ensuing polygamous marriage expected to conclude a postnuptial contract to regulate the property of the marriage since they would not have entered into an antenuptial contract at the time of the marriage? •Since the RCMA does not indicate whether the accrual system mentioned in section 7(7) is a default system, can the Court’s decision be stretched to attribute the property regime it envisioned to include the accrual system as the default system? •If this were the case, what rules would govern this system – the rules governing the civil marriage entered into in terms of the Marriage Act or new rules to be developed by the courts or legislature? Furthermore, we have observed elsewhere that the SCA did not consider the implications of its decision on the proprietary consequences of the first marriage. This

marriage

would

have

been

in

community

of

property

by

virtue

of Gumede having extended the application of section 7(2) to all monogamous marriages regardless of the date they were entered into. As already stated, this section provides that all monogamous marriages in respect of which no antenuptial contract is concluded are automatically in community of property.182 Once the SCA validated the subsequent marriage in Ngwenyama v Mayelane, two matrimonial property regimes were in operation simultaneously – the marriage in community of property of the first wife, which the SCA did not terminate, and the marriage out of community of property, which it declared to govern the subsequent marriage. This raises uncertainty about how the first wife’s property would be dealt with. The issues

239

discussed here indicate a need for further development of the law on the consequences of non-compliance with section 7(6) of the RCMA. Mayelane appealed to the Constitutional Court against the decision of the SCA. The Constitutional Court found in her favour and held her marriage to be valid and held that the second marriage was void. However, it reached this decision on a different basis to the basis on which the case was decided in the High Court and the SCA. This raises the issue of the precedent value of the SCA decision. COUNTER POINT The precedent value of the SCA judgment in Ngwenyama v Mayelane To understand the context in which the issue of the precedent value of the SCA decision arises, it is necessary to state briefly the history of the case in the three courts in which it was heard. Mayelane’s application in the High Court was based on the ground that Tsonga customary law required her consent to the subsequent marriage for it to be valid and that she had not consented to the marriage. However, this ground was not considered by either the High Court or the SCA. Instead, both courts based their decisions on the interpretation of section 7(6) of the RCMA. The High Court interpreted this section as requiring the approval of the contract regulating the matrimonial property regime of the polygamous marriage, failing which the subsequent marriage was void. The SCA disagreed with the High Court’s decision on the ground that the requirements for a valid marriage were regulated by section 3 and not section 7(6). Accordingly,

non-compliance

with

section

7(6)

could

not

invalidate

a marriage.183 Equally important for the present purposes, Ponnan JA (in his separate judgment) ruled that the consequences of non-compliance with section 7(6) were that the subsequent marriage was out of community of property.184 Finally, the matter that was heard by the Constitutional Court was founded on Mayelane’s original claim in the High Court, namely that she did not consent to her husband’s marriage in accordance with Tsonga customary law and that the marriage was therefore void.185 However, the Constitutional Court did not deal with the SCA’s decision regarding the consequences of non-compliance with section 7(6). 240

We submit, therefore, that the SCA decision remains the authority for the principle that non-compliance with section 7(6) does not invalidate the subsequent marriage entered into without the consent of the first wife and that the resulting polygamous marriage is a marriage out of community of property. This is notwithstanding the difficulties this stance raises as mentioned in the preceding discussion. 7.6.5 Alteration of the matrimonial property regime The RCMA provides for two instances where parties to a customary marriage may alter their matrimonial property regime: •a polygamous customary marriage entered into before the RCMA came into operation •a monogamous marriage entered into after the RCMA came into operation.186 Different rules apply to these instances and we discuss them separately in the following sections. 7.6.5.1 Alteration of pre-RCMA polygamous marriage property regimes Parties to a polygamous marriage entered into before the RCMA came into operation may jointly apply to a court for leave to change the proprietary consequences governing their marriage.187 All existing spouses and any other interested parties must be joined to the proceedings.188 In determining this application, the court is required to ensure that: •there are sound reasons for the proposed change •sufficient written notice of the proposed change has been given to all creditors of the spouses for the amounts exceeding R500 or such amount as may be determined by the Minister of Justice by notice in the Gazette •no other person will be prejudiced by the proposed change.189 PAUSE FOR REFLECTION Making the alteration of pre-RCMA polygamous marriage property regimes simpler and less costly The courts have considered the meaning of the words ‘sound reasons’ in the first point above in respect of civil marriages on a case-by-case basis.190 Presumably the courts will take the same approach when interpreting section 7(4) of the RCMA as 241

they may also do with regard to the actual reasons that have been accepted as sound. These actual reasons have included cases in which the parties pleaded ignorance of the law, for example that they did not know the consequences of a marriage in community of property.191 Ignorance of the law is likely to be common for most spouses in customary marriages, especially among the rural population. They are unfamiliar with the common law governing proprietary consequences which have been extended to customary marriages. Moreover, there is a pronounced divergence between the common law and customary law in the area of proprietary consequences of marriage because of the absence in customary law of the concept of community of property. The potentially widespread ignorance of the law by spouses raises the question whether it may not be more expedient and less costly to the spouses to change the law and to make consensual alteration a default position subject only to the protection of third-party interests. This protection could take the form of a requirement worded in the language of section 7(4)(b) of the RCMA above. This argument would also justify the rejection of the position that extrajudicial alteration of the matrimonial property should be prohibited and unenforceable.192 The proposed change would relieve the spouses of extraneous proof or full substantiation of the proposed change by the spouses,193especially where there are no creditors. The procedure would then consist merely of rules aimed at the protection of third-party interests. These rules could include that the spouses lodge a notice of application with the registrar of deeds and the inclusion of a provision preserving the rights of existing creditors in the notarial contract containing the proposed change to the property system.194 If the court is satisfied with these conditions, it may terminate the matrimonial property system which is applicable to the marriage and order the parties to enter into a written contract which will regulate the future matrimonial system of the marriages on conditions determined by the court. 7.6.5.2 Alteration of post-RCMA monogamous marriage property regimes The rules applicable to the alteration of the property regime of post-RCMA monogamous customary marriages are contained in section 21 of the MPA. However, these rules are similar to those discussed in the preceding section.195 The only difference is that the rules in section 21 of the MPA provide for the court to 242

make an order that the parties enter into a notarial contract to regulate their future matrimonial property while the rule in section 7(4) of the RCMA simply refers to a written contract. It is, however, not clear whether any substantive difference was intended. THIS CHAPTER IN ESSENCE 

The major consequences of a customary marriage fall into three categories: the personal status of the spouses, the relationship of parents to their children and proprietary consequences and their alteration.



The law regulating the consequences of a marriage is the RCMA, but this Act has incorporated a considerable body of the law governing civil marriages. In this chapter, no attempt was made to discuss the law governing civil marriages that has been extended to customary marriages exhaustively. Instead, reference is made to relevant textbooks for detailed discussion of the law in question as it applies to civil marriages.



The RCMA has changed the personal status of wives dramatically by giving them equal legal standing with their husbands, as well as full legal capacity which they lacked in the past.



The RCMA, together with the Constitution and the Children’s Act, has also contributed to the equal legal treatment of husbands and wives with respect to parental responsibilities and rights regarding their children. Moreover, some courts have applied the best interests of the child principle enshrined in the Constitution to disputes concerning parental responsibilities and rights in the place of customary law, thereby changing the essence of customary child law.



Before the Constitutional Court gave its decision in Gumede, it was necessary to distinguish between marriages entered into before and after the RCMA to determine the proprietary consequences of marriage. Since Gumede, the more

relevant

distinction

is

that

between

polygamous

and

monogamous marriages. The changes that were made to the law by this decision are to the effect that, regardless of whether they were entered into before or after the RCMA came into operation, all monogamous customary marriages are in community of property by default. Polygamous marriages

243

entered into before the RCMA came into operation continue to be regulated by customary law. 

By virtue of section 7(6) of the RCMA, the proprietary consequences of polygamous marriages that are entered into after the RCMA came into operation are regulated by a court-approved contract. The effect of noncompliance with this provision was the subject of the SCA decision in Ngwenyama v Mayelane.

1Act 120 of 1998. 2See South African Law Commission (1998) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Customary Marriages. 3For example, the RCMA applies certain sections and chapters of the Marriage Act 25 of 1961 and the Matrimonial Property Act 88 of 1984 (MPA) to customary marriages as well. 4See Mamashela, M (2004) New families, new property, new laws: The practical effects of the Recognition of Customary Marriages Act South African Journal on Human Rights 20(4):616–41 at 631. 5See Bennett, TW (2004) Customary Law in South Africa 298–305. 6Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law 8–9. 7Bennett (2004) 302. 8Some authors suggest that women never attained majority status. See, for example,

Maithufi,

IP

(1999)

Children,

customary

law

and

the

Constitution Obiter 20(1):198–208 at 203. We hope, however, that this is not a confusion of customary law in traditional society with official customary law, which denied married women majority status. 9Act 38 of 1927. 10Act 57 of 1972. 11Act 38 of 2005. 12S 1 of the Children’s Act. 13SALC (1998) Report on Customary Marriages 99. 14See also Bennett (2004) 254.

244

15(CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008). 16Act 21 of 1978. 17Act 16 of 1985. 18Proc R151 of 1987. See s 12 of the RCMA and the schedule. The BAA has now been repealed except for a few provisions relating to courts. 19Gumede para 32. 20SALC (1998) Report on Customary Marriages 101. 21SALC (1998) Report on Customary Marriages 100. 22See Bennett, TW (1999) The best interests of the child in an African context Obiter 20(1):145–57. 23Bennett (1999) 145–57. 24S 11 of the BAA (now repealed). 25See generally SALC (1998) Report on Customary Marriages 96; Bennett (2004) 252. 26SALC (1998) Report on Customary Marriages 96. 27Act 90 of 1985. See also SALC (1998) Report on Customary Marriages 97. 28SALC (1998) Report on Customary Marriages 98. See also Bronstein, V (2000) Confronting custom in the new South African state: An analysis of the Recognition of Customary Marriages Act 120 of 1998 South African Journal on Human Rights 16(3):558–75 at 568–70, where she argues that in traditional society and under colonial rule, African women owned and controlled the proceeds of their enterprises until official customary law distorted the status quo. Consequently, she suggests that in the absence of large-scale surveys of living customary law and definitive statements of authentic living customary law, the courts should ensure that ‘standards for establishing living customary law are not placed beyond the reach of litigants’ (570). 29SALC (1998) Report on Customary Marriages 93. 30SALC (1998) Report on Customary Marriages 102. 31S 9(2) states: ‘Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.’ S 9(3) provides: ‘the state may not unfairly discriminate directly or indirectly against anyone on one 245

or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.’ 32Bennett (1999) 149. 33See also Heaton, J (2010) South African Family Law 3rd ed 217–18. 34See the discussion in sections 7.4.3.2 and 7.4.3.3. 35See Bennett (2004) 305–6. 36See, for example, s 39(3) of the Constitution which states: ‘The Bill of Rights does not deny the existence of any other rights or freedoms that are recognized or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.’ 37See s 39(2) of the Constitution. 38Although polygyny is technically the correct term, we use the term ‘polygamy’ to accommodate the more common and popular usage. 39(CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013). 40The husband died in 2009. 41Mayelane para 75. 42For a detailed commentary on the issues raised by this decision, see Himonga, C and Pope, A (2013) Mayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications Acta Juridica. 43Himonga and Pope (2013). 44Himonga and Pope (2013). 45Himonga and Pope (2013). 46Mayelane para 86. 47Mayelane para 34. 48(CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004). 49Act 81 of 1987. 50See, further, Himonga, C ‘Constitutional rights of women under customary law in southern Africa: Dominant interventions and “old pathways”’in Baines, B, Barak-Erez, D and Kahana, T (eds) (2012) Feminist Constitutionalism: Global Perspectives 317–35 at 326–8. 51See generally SALC (1998) Report on Customary Marriages 85–92. 246

52Dlamini, CRM (1999) The ultimate recognition of the customary marriage in South Africa Obiter 20(1):14–40 at 25. 53Dlamini (1999) 26, citing Sinclair, J ‘Family rights’ in Van Wyk, D, Dugard, J, De Villiers, B and Davis, D (eds) (1994) Rights and Constitutionalism: The New South African Legal Order 563ff. 54Dlamini (1999) 26. 55For a more comprehensive discussion, see Dlamini (1999) 20–8. 56SALC (1998) Report on Customary Marriages 87. 57See Shepard, LD (2013) The impact of polygamy on women’s mental health: A systematic review Epidemiology and Psychiatric Sciences22(1):47–62. This author concludes that the ‘current state of the research reveals with moderate confidence, a more significant prevalence of mental-health issues in polygamous women as compared to monogamous women’. 58For further discussion of this issue of polygamy, see Van Schalkwyk, LN (2003) Law reform and the recognition of human rights within the South African family law with specific reference to the Recognition of Customary Marriages Act 120 of 1998 and Islamic marriages De Jure36(2):289–327 at 292–3. 59Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law 40. 60Mofokeng (2009) 40–1. 61See Heaton (2010) 218 who suggests that the principle of equality between the husband and each wife nullifies any distinction according to rank among the wives inter se. 62Bennett (2004) 244. 63For a detailed discussion of simple and complex polygamous marriages and their respective houses, see Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed 126–34. 64Bennett (2004) 244. 65See also Heaton (2010) 218. 66See Bennett (2004) 244. 67See, for example, Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T). 68Bennett (2004) 307. 69Mofokeng (2009) 54; Bennett (2004) 309. 70Bennett (1999). 247

711998 (1) SA 449 (T). 72Hlophe v Mahlalela 459. It should be mentioned, however, that in reaching its decision, the Court was also influenced by the conflict of laws rule that if the parties conclude a civil marriage subsequent to a customary marriage, which is what happened in this case, the status of the parties, as well as that of the children of the marriage, is determined in accordance with the common law on custody (459A–B). The relevant common law on custody included the best interests of the child principle. 73Hlophe v Mahlalela at 459. 74However, lobolo is still implicated with respect to the requirements of a valid marriage by s 3(1)(b) of the RCMA (see ch 6 of this book). 75SALC (1998) Report on Customary Marriages 61. 76Kaime, T (2009) The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective 114–5. See also Nhlapo, TR ‘Biological and social parenthood an African perspective: The movement of children in Swazi family law’ in Eekelaar, J and Sarcevic, P (eds) (1993) Parenthood in Modern Society: Legal and Social Issues for the Twenty-first Century 35–50 at 47. 77Kaime (2009) 118. 78S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) (26 September 2007) para 24. 79S 7(f)(i) and (ii) of the Children’s Act. 80See s 18 of the Children’s Act read with s 1(1) (i.e. the definition section). 81See ss 1(1)–(2) of the Children’s Act. 82A court deciding a constitutional matter may, of course, make any order that is just and equitable (see s 172(1) of the Constitution). This could include a retrospective order or an order limiting the retrospective effect of its order. See, for example, Bhe para 128. 83Bennett (2004) 308–9. 84Bennett (2004) 309. 85Bennett (2004) 220, 224 and 308 and s 16(2) of the Codes on the affiliation of children in relation to lobolo. 86S 1(1) of the Children’s Act. 87Ss 19 and 20 of the Children’s Act. 88Ss 19 and 20 of the Children’s Act. 248

89S 18(4) of the Children’s Act refers to ‘any other law or any order of a competent court to the contrary’. 90S 18(4) of the Children’s Act. 91This is in view of the fact that customary law is excluded by virtue of the application of legislation (i.e. the Children’s Act) to customary marriages as well. See also s 211(3) of the Constitution. The Children’s Act defines a marriage to include a customary marriage and may therefore be considered to be legislation that specifically deals with customary law. 92S 18(4) of the Children’s Act. 93S 31(1)(a) of the Children’s Act. 94S 31(1)(b) of the Children’s Act. 95For the purposes of this Act, a parent includes any person who has parental responsibilities and rights in respect of a child. 96S 6(1)(a)–(b) of the Children’s Act. 97For a detailed discussion of these rights, see Heaton (2010) 271–8. 98S 6(3) of the Children’s Act. 99This is subject to the child’s age, maturity and stage of development. 100Barratt, A (2012) Law of Persons and the Family 307. 101Gumede para 56. 102Heaton (2010) 210–11. For a detailed description of these systems, see Bekker (1989) 126ff. 103Heaton (2010) 210–11. 104Heaton (2010) 210–11. 105Heaton (2010) 210. 106Heaton (2010) 211. 107Heaton (2010) 210–11. 108Heaton (2010) 211. 109See Heaton (2010) 217. 110See, for example, Himonga, C ‘Property disputes in law and practice: Dissolution of marriage in Zambia’ in Armstrong, A and Ncube, W (eds) (1987) Women and Law in Southern Africa 56–84. 111Gumede para 29. 112The wording of each of the sections of the Codes is the same. 113Gumede para 27. 249

114Gumede para 34. 115Gumede para 46. 116S 22 had already been repealed by s 13 of the RCMA. 117See also Heaton (2010) 210. 118Gumede para 59. 119Gumede para 59. 120For a discussion, see Bennett (2004) 70–4. 121Act 45 of 1988. 122Bennett (2004) 71. 123For a discussion of these rules, see ch 5 of this book. 124See South African Law Commission (1999) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Conflicts of Law. 125See Heaton (2010). 126For a discussion of this topic, see Heaton (2010) 215–17. 127The bias in the selection of the marriages dealt with is justified by the need to cover complex provisions of the common law that have been extended to customary marriages. Nevertheless, we give references to discussions of the types of marriages omitted. 128See s 2 of the RCMA. 129For a discussion of this concept, see Heaton (2010) 65–74. 130See Grotius 2.11.8. Although Radebe v Sosibo NO 2011 (5) SA 51 (GSJ) involved the exclusion of the accrual system, it nevertheless illustrates how an antenuptial contract effectively excludes an asset from the matrimonial property regime. 131Voet 23.2.77. 132Act 121 of 1998. See De Wet NO v Jurgens 1970 (3) SA 38 (A) and Mazibuko v National Director of Public Prosecutions (113/08) [2009] ZASCA 52; 2009 (6) SA 479 (SCA); [2009] 3 All SA 548 (SCA) (26 May 2009). There are other exceptional circumstances in which a spouse may receive more or less of their share of the joint estate. See, for example, ss 15(9) (b) and 19 of the MPA which provide for adjustment in the share of the joint estate and liabilities for delicts that are recoverable from a spouse’s separate property rather than the joint estate respectively. For an exhaustive discussion of these exceptional circumstances, see Barratt (2012) 282–8. 250

133S 20 of the MPA. 134Ss 14 and 15(1) of the MPA. For a comprehensive discussion of this subject, see Heaton (2010) 74–84; Barratt (2012) 289–304. 135S 15(2)(c), (d) and (e) and, by implication, s 15(5) of the MPA. 136S 17(1) of the MPA. For a discussion of the capacity of the spouses to litigate, see Heaton (2010) 83–4. 137Further exceptions have been suggested, such as litigating in respect of children from a previous marriage (see Heaton (2010) 84 fn 152). 138S 15(4) of the MPA. 139Ss 15(2)(a), (b), (f), (g) and (h) and 15(5) of the MPA. See Visser v Hull (4375/2008) [2009] ZAWCHC 77; 2010 (1) SA 521 (WCC) (21 May 2009) para 5 in which the Court held that s 15(2)(b) of the MPA forbade the sale of immovable property falling into the joint estate by a spouse, married in community of property, without the written consent of the other spouse. The Court nullified the purported sale. 140S 15(4) of the MPA. 141S 15(2)(f), (g) and (h) of the MPA. 142Act 34 of 2005. 143Act 68 of 1981. 144This is because the MPA gives no specific indication concerning the manner of consent, except that relating to ratification (see s 15(4)). 145In Visser v Hull paras 6, 12 and 13, the difference between the selling price and the value of an asset that was sold well below its value was held to constitute a donation. 146S 15(8) of the MPA. Some authors have argued that ‘it should be assumed that a donation will unreasonably prejudice the other spouse’s interest in the joint estate, and that the respondent therefore bears the onus of proving that the donation does not and will probably not unreasonably prejudice the other spouse’s interest.’ See Van Niekerk, PA (1999) A Practical Guide to Patrimonial Litigation in Divorce Actions4.2.1 quoted by Heaton (2010) 77 fn 104. 147In other words, the High Court, a judge in chambers or a magistrates’ court (see s 1 of the MPA). 148For a detailed discussion of this subject, see Heaton (2010) 80–1. 251

149S 15(6) of the MPA. Consent may, however, still be required in some cases. For example, where a spouse concludes a contract for the alienation of immovable property, consent will still be required to effect transfer (Heaton (2010) 78). 150S 15(7) of the MPA. 151For a detailed discussion of the protection of third parties, see Heaton (2010) 78– 9. 152S 15(9)(a) of the MPA. 153S 15(9)(a) of the MPA. 154S 15(9)(b) of the MPA. 155S 15(9)(b) of the MPA. 156See Heaton (2010) 79. 157According to Heaton (2010) 82, all the common law protective mechanisms are based on fraud, in other words ‘the intention to prejudice the other spouse’. 158Heaton (2010) 82. 159See Heaton (2010) 82. 160See, for example, Visser v Hull and Pickles v Pickles 1947 (3) SA 175 (W). 161Heaton (2010) 82. 162The question whether this action is available to the spouses during the subsistance of the marriage is not settled in case law. See Nel v Cockroft1972 (3) SA 592 (T) and Reyneke v Reyneke 1990 (3) SA 927 (E). 163Yared v Yared 1952 (4) SA 182 (T). Heaton (2010) 83 submits that the constitutionality of the order of prodigality may be challenged on the ground that it infringes the rights to dignity and privacy. 164The statement of the Court about the scarcity of worldly goods among Africans who marry under customary law is inaccurate if not demeaning; it is a judgment made without empirical evidence. 1652010 (4) SA 286 (GNP); [2010] JOL 25422 (GNP) para 23. 166See also Mamashela (2004) 621. 167For a detailed discussion, see Heaton (2010) 85–101. 168For a detailed discussion of the antenuptial contract, see Heaton (2010) 85–91. 169S 7(7) of the RCMA. 170For a discussion of this, see Himonga, C and Stewart, J ‘Teaching women, social realities, family and the law: African legal systems’ in Tsanga, AS and Stewart,

252

JE (2011) Women and Law: Innovative Approaches to Teaching, Research and Analysis 223–57. 1712010 (4) SA 286 (GNP); [2010] JOL 25422 (GNP). 172(474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June 2012). 173Mayelane v Ngwenyama 2010 (4) SA 286 (GNP); [2010] JOL 25422 (GNP) para 23. 174Cronjé, DSP and Heaton, J (2004) South African Family Law 2 ed 204. 175Such marriages do not produce the consequences of a valid marriage. They therefore deny spouses rights to property that they would otherwise have as a married couple and their children would have the status of extramarital children. 176(474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June 2012). 177Ngwenyama v Mayelane para 19. 178This seems to be a reference to the requirements of s 7(7)(a)(i)–(iii) of the RCMA. 179Ngwenyama v Mayelane para 38. 180Ngwenyama v Mayelane para 38. This is substantially in line with the views held by Heaton (2010) 212–14. 181Ngwenyama v Mayelane para 38. 182Himonga and Pope (2013). 183See Ngwenyama v Mayelane para 38. 184Ngwenyama v Mayelane para 38. 185Mayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013). 186For a detailed discussion, see Heaton (2010) 103–7. 187S 7(4)(a) of the RCMA. 188S 7(4)(b) of the RCMA. 189S 7(4) of the RCMA. 190Heaton (2010) 105. 191See Ex parte Kros 1986 (1) SA 642 (NC). 192See Honey v Honey 1992 (3) SA 609 (W); Heaton (2010) 107. 193For this requirement, see Heaton (2010) 106. 194Heaton (2010) 106. 253

195S 21 of the MPA

Chapter 8 Dissolution of marriage 8.1 Introduction 8.2 Dissolution by divorce 8.2.1 Adultery 8.2.2 Witchcraft 8.2.3 Infertility 8.2.4 Desertion 8.2.5 Other circumstances as grounds for dissolution of a marriage 8.3 Dissolution by death 8.4 Consequences of divorce This chapter in essence 8.1 Introduction The ending of a customary marriage is attended by several debates as to whether this kind of union can ever be permanently terminated during the lifetime of the spouses and, indeed, even in the case of the death of one or both spouses.1 As a result of these debates, even the terminology is contested. Do we talk about ‘termination’ or ‘dissolution’, and is ‘divorce’ ever appropriate? In this chapter we take the view that much of the debate can be avoided if we are careful to define our terms and not dwell too much on the perceived differences between the common law and customary law approaches to ending a marriage. Giving the terms their ordinary meaning, we shall discuss the termination of a customary marriage by divorce2 and by death. Nullity is not discussed as it connotes a failed attempt at concluding a marriage rather than the termination of an existing marriage.3

254

8.2 Dissolution by divorce Terminology sororate, inhlanti or seantlo

a custom that enables a marriage to continue when the wife is infertile by allowing a younger sister or half-sister of the wife to marry the husband

theleka

a practice observed among sections of the Nguni communities where a wife will go home to her guardian either to end her marriage or to initiate family discussions aimed at improving her lot, usually involving the husband’s transfer of further instalments of the lobolo

phuthuma

the duty of a husband to fetch his wife when she has returned home to her guardian whereupon the reason for her departure from the matrimonial home is discussed and either amicably settled or a divorce may ensue

The question of dissolution of marriage by divorce in customary law is complicated both by the link between divorce and the courts in common law systems and by the widely held belief in many traditional communities that a customary marriage is indissoluble.4Divorce was a private matter between the two families who had concluded the marriage in the first place. Although a difficult matter may need resolution by a customary court, the standard business of a modern common law court was not at issue in customary law. As to the claim of indissolubility, this was based on an enduring belief in traditional society that a customary marriage bound the two families together for life.5 It is easy enough to see where this belief comes from. Customary marriage is widely acknowledged to have been a union of high stability in the past.6 The lingering assertion that it still is may be ignoring evidence of contemporary trends but is understandable in the circumstances. Since the date of commencement of the Recognition of Customary Marriages Act (RCMA)7 there has been only one ground for divorce in customary law for marriages concluded before and after 15 November 2000: the irretrievable breakdown of the marriage.8The ground is defined in section 8(2) of the RCMA as being when ‘the 255

marriage relationship between the two parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them’. In granting a divorce, a court can take into account the grounds that were traditionally available to the spouses.9 However, a caveathere is again about language. In the common law, a ground means a circumstance which, once proven, must give rise to the granting of the divorce. In customary law, it is perhaps better to speak of reasons or justifications rather than grounds.10 This is especially so in view of the importance of the return of lobolo to signify divorce, a calculation that frequently involves the establishing of fault.11 Generally speaking, adultery, witchcraft, infertility, desertion and other kinds of neglect of marital duties may lead to the dissolution of a marriage. But such is the nature of customary law that few hard-and-fast rules can be drawn. 8.2.1 Adultery Adultery, for instance, may or may not be a ground for a divorce, depending on whether it is committed by the husband or wife and whether the spouse persists with the adultery.12 PAUSE FOR REFLECTION Adultery as a ground for divorce in customary law Customary law exhibits relatively high levels of tolerance for human failings including sexual misconduct. In the case of a wife’s adultery, a single incident probably will not suffice to found a claim for dissolution. The preferred sanction would be a fine for the paramour, a report to the woman’s guardian and, at times, ‘sending her home’ for a while. Among emaSwati, for instance, even persistent adultery may result only in the wife being ‘put aside’ by the husband. This is usually signified by shunning conjugal visits to her house or physically relocating her living accommodation to a remote part of the homestead.13 Generally speaking, however, a spouse may seek a divorce if the adultery is persistent14 or incestuous,15 or when it is a factor in desertion.16 In a potentially polygamous relationship such as a customary marriage, a husband’s adultery will hardly ever be sufficient to found a divorce claim.

256

8.2.2 Witchcraft Accusations of witchcraft were serious matters in traditional society.17 As a ground for divorce, witchcraft is most commonly raised by wives against their husbands on the basis of accusations by the husbands. If such an accusation leads to an actual divination or ‘smelling out’ by an isangoma or some other medium, the wife’s action may succeed. It may also succeed if these accusations are persistent18 or if it is shown that the husband intended to drive the wife away with this behaviour.19 8.2.3 Infertility Even a wife’s infertility which, in a society so concerned with offspring, may be expected to be a fatal defect in the marriage does not necessarily terminate the union. In an effort to preserve the marriage bond, traditional society deployed many sophisticated mechanisms discussed below. PAUSE FOR REFLECTION Infertility and divorce: social protection of the marriage relationship One particular custom of widespread application is clearly designed to cushion the blow to the marriage of infertility on the part of a wife for whom lobolo has been transferred. The custom of the sororate (also called inhlanti or seantlo) enables the marriage to continue by allowing a younger sister or half-sister of the wife to marry the husband and bear children on her sister’s behalf. As a general rule, no further lobolochanges hands. It is only when complications set in during this process that the infertility of the wife may lead to divorce and the return of the lobolo. Divorce on the basis of the husband’s infertility is rare. The traditional solution is the surreptitious introduction of a male relative into the wife’s bed. However, impotence suffices as a ground for dissolution of the marriage.20 8.2.4 Desertion Desertion, in particular, presents a useful study of the dynamics of customary marriage. There are clear cases where it will be sufficient as a ground for the dissolution of a marriage and many other instances where it will not suffice.21

257

PAUSE FOR REFLECTION Desertion as a ground for divorce or as a cry for help Desertion in customary law can be taken to have a weak and a strong version. The strong version of desertion is accompanied by the intention not to return to the marriage and is sufficient to provide a ground for dissolution of the marriage. The importance of the weak version of desertion is that it offers one of the few avenues by which a woman may initiate an end to her marriage or initiate family discussions aimed at improving her lot. In both versions, the woman goes back home to her guardian. Whether compromise is reached or the conflict hardens to the point of divorce will depend in large part on the support of her guardian for her cause.22 This explains customs such as theleka and phuthuma. According to the practice of theleka as observed among sections of the Nguni communities, a wife will go home for either of the reasons described above or to extract further lobolo transfers from her husband. The husband has a duty to fetch her (phuthuma) whereupon the reason for her departure from the matrimonial home is discussed. Payment of a beast for misbehaviour by the husband or an agreement for further lobolo instalments may resolve the matter amicably. If the issues prove more intractable, a divorce may follow. 8.2.5 Other circumstances as grounds for dissolution of a marriage A basket of other common circumstances that may in certain cases lead to dissolution include gross ill treatment, failure to maintain a spouse, refusal of sexual privileges, disobedience and disrespect. Each case must be decided on its own merits. There is little point in speculating about when each circumstance or combination of circumstances might suffice or not for the dissolution of the marriage.23The study of divorce, more than anything in customary family law, brings out vividly what Marwick meant by an ‘almost illimitable capacity for compromise’24 displayed by traditional society in matters of marriage. If any proof were needed that the ground of irretrievable breakdown is central to customary law, this provides important evidence. Traditional society will do all in its power to keep a marriage alive but, being pragmatic people, they will let the marriage go when it becomes clear that it is beyond repair. 258

During the colonial, Union and apartheid eras, the courts churned out a huge volume of official customary law, usually in the form of a plethora of procedural rules. These laws were partly meant to accommodate the return of lobolo in divorce proceedings and therefore the need to involve the wife’s guardian, and partly to deal with the ambiguity of the various factors signifying divorce described above.25 The return of lobolo in divorce, in particular, generated a great number of rules, both as to its incidence and the size of lobolo involved. As Bennett points out, this area of the law is now relevant only when there is a need to establish whether spouses were validly divorced before 15 November 2000. This enquiry is rendered more difficult by the prevalence of informal separations and by the paucity of information on the living customary law in this area.26 On the issue of the return of lobolo, many traditional communities observe at least three criteria on the basis of which the guardian may retain some of the lobolo even as he hands over the rest to mark the termination of the marriage tie. These criteria are: 

whether the wife has borne children



whether any fault can be attributed to either of the spouses



whether her performance of services in her married home should be acknowledged.27

Procreation is the main objective of a customary marriage. If the wife has fulfilled her obligations to her married family in this respect, her guardian is entitled to retain some of the lobolo in recognition of this but the amount varies.28 There is some authority in official customary law that deductions are also allowed in the case of adulterine children29 and miscarriages.30 Where it is established that the break-up is due primarily to the fault of one of the parties, deductions from the lobolo returned are permissible. The guardian forfeits the lobolo in its entirety if the wife is at fault31 but may keep some of the lobolo if the break-up was the husband’s fault.32 More contested is the question whether a wife’s services

during

the

marriage

can

be

the

basis

for

deductions

from

the lobolo returnable on divorce.33 There is some authority in official customary law that in some communities lobolo could be retained if a husband assaulted his wife,34 abandoned her35 or was impotent.36

259

A divorce order can only be given by a High Court, a family court or a divorce court.37 Jansen characterises this development as a ‘radical amendment of customary law’.38 She is correct in the sense that traditionally the state had no involvement in divorce as it was seen as a private matter between the families concerned. The critical indicator that dissolution had been agreed in this process was the return of lobolo.39 The only difference was in KwaZulu-Natal where the Codes implied the involvement of a court in any divorce arrangements.40 8.3 Dissolution by death Terminology levirate, ukungena, kungena or kenela the practice where a man’s widow may be required to cohabit with one of his brothers or some other nominated male relative, mainly for the purposes of raising an heir Because a customary marriage is an agreement between the families of the spouses, the death of one spouse does not necessarily dissolve the marriage. It simply ‘ushers in a new phase in the relationship’ because the contract is between the families, not the spouses individually.41 On the death of the husband, the family council, among its various duties,42 will decide whether there is a need to invoke the custom of the levirate. Also known as ukungena, kungena and kenela, the levirate denotes the practice among certain indigenous communities where a man’s widow may be required to cohabit with one of his brothers or some other nominated male relative, mainly for the purposes of raising an heir. Whether this is done or not depends on a number of factors, including the age of the widow at the time and whether she has offspring. Again, depending on the general tone of the relationship between the deceased’s family and the widow, which is strongly influenced by the warmth or otherwise of the relationship between the couple while the husband was alive, she may refuse the levirate and still remain part of the family. In many traditional communities that practise the custom of the levirate it is generally acknowledged that a widow’s consent should be sought before the levirate is invoked both as to her participation and as to the identity of the consort,43 and that 260

she is never compelled. It is equally clear, however, that a young widow without children, or who has borne only girls, will come under immense pressure to accept the levirate on pain of eviction from the household. The death of a wife similarly does not end the marriage. The house established by the marriage continues to exist and the husband may invoke the custom of the sororate, discussed above, to raise the children for the house especially if she died without issue. 8.4 Consequences of divorce Terminology isondlo or dikotlo(Setswana) the payment in the form of one or two beasts that a person who has raised a child has a right to claim from the parent who seeks to acquire custody of the child Sections 8(4)(a) and 8(4)(b) of the RCMA govern the consequences of a dissolution of customary marriage by divorce. As a result, these consequences are now broadly the same as those of a civil marriage. This is because section 8(4)(a) provides that a court dissolving a customary marriage has the same powers as those found in sections 7, 8, 9 and 10 of the Divorce Act44 and section 24(1) of the Matrimonial Property Act (MPA).45 These are the same powers at the disposal of a court when dissolving a civil marriage. The importance of these provisions is that a court may order a division of the assets or a maintenance plan in accordance with the terms of a settlement agreement, or it may order post-divorce maintenance or the division or redistribution of the assets of the marriage, or the forfeiture of benefits. The court may also deal with the property of minors married without consent. The court may rescind, suspend or vary any of these orders.46 Divorce in the context of a polygamous marriage is provided for in section 8(4)(b) of the RCMA. This section enjoins the court, in the exercise of its powers as described above, to take into consideration ‘all relevant factors including any contract, agreement or order’ made in terms of sections 7(4) to 7(7) of the RCMA and to ‘make any equitable order that it deems just’. These sections deal with a change

of

the

matrimonial

property

system

for

spouses 261

married before47 and after48 the date of commencement of the RCMA and husbands wishing to contract further polygamous marriages.49 The question of the court’s power to order a redistribution of the assets of the marriage has been the subject of fierce debate.50Writers disagreed on the effect of the importation of the language of section 7(3) of the Divorce Act into divorce proceedings under the RCMA. At issue was whether section 7(3) and therefore the court’s power to redistribute the assets of the marriage would apply to customary marriages concluded before 15 November 2000. Section 7(3) reads as follows: 7(3) A court granting a decree of divorce in respect of a marriage out of community of property – (a) entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; or (b) entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22(6) of the Black Administration Act, 1927 (Act No. 38 of 1927) as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988, may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party. One school of thought was that section 7(3) of the Divorce Act had no application to customary marriages as these marriages were subject to a complete separation of assets. A contrary view was that the section applied precisely because these customary marriages amounted in effect to marriages with a complete separation of assets.51 The decision in Gumede v President of the Republic of South Africa52 has ended the debate. The Constitutional Court in this case held that it did not matter when the

262

marriage was concluded nor what the matrimonial property regime was – section 8(4)(a) of the RCMA applies to all these marriages as does the power of the court to order a redistribution. As Moseneke DCJ put it: In my view, there is no cogent reason for limiting the scope of the equitable jurisdiction conferred on a divorce court by s 8(4)(a) of the Recognition Act in relation to matrimonial property of a customary marriage which is out of community of property. It is clear that at both a textual and purposive level, s 8(4)(a) does not restrict the equitable jurisdiction of a court to a marriage out of community of property. This means that every divorce court granting a divorce decree relating to a customary marriage has the power to order how the assets of the customary marriage should be divided between the parties, regard being had to what is just and equitable in relation to the facts of each particular case.53 A court dissolving a customary marriage is empowered to order that one spouse pay post-divorce maintenance to the other.54 This is a departure from traditional customary law where the kinship system took care of the maintenance of women and children on the dissolution of the marriage. The woman returned to her home where her guardian as the lobolo holder had an obligation to support her and any children she brought with her who would be under his guardianship as their maternal grandfather. Any children left behind with the husband were his wards in the ordinary way.55 When ordering maintenance the court is further empowered to take into account ‘provision or arrangements made in accordance with the customary law’.56 Thus, where isondlo57 has been paid to any person for maintaining the child, the maintenance order will take this into account. Similar considerations will probably apply to any lobolo payments made.58 According to the RCMA, a court dissolving a customary marriage may make orders regarding the custody or guardianship of children of the marriage.59 In terms of section 8(3) of the RCMA, the court may apply the provisions of the Mediation in Certain Divorce Matters Act60 and section 6 of the Divorce Act61 in doing so. This places the children of a customary marriage in the same position on divorce as the

263

children in a civil marriage.62 This marks a significant shift from customary law where the father had strong rights to custody and guardianship especially if he had paid lobolo.63 Section 8(4)(c) of the RCMA empowers the court to order that any person who in the court’s opinion has a sufficient interest in the matter be joined in the proceedings. This clearly includes the wife’s guardian as the lobolo holder and any of the husband’s other wives in the case of a polygamous marriage.64 Rule 43 of the Uniform Rules of Court applies to customary marriages65 and allows spouses to apply for maintenance pending litigation, interim custody or guardianship of any child and/or a contribution towards costs. THIS CHAPTER IN ESSENCE 

Many writers hold the view that, once tied, the customary marriage knot cannot be undone since even death does not necessarily end the marriage. However, section 8 of the RCMA now prescribes that a customary marriage may be dissolved only by a court by a decree of divorce and that the only ground for divorce is irretrievable breakdown of the marriage.



The definition of irretrievable breakdown is a situation where the marital relationship between the parties has reached such a ‘state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them’.



Adultery, witchcraft, infertility (or impotence), desertion and various kinds of neglect and ill-treatment are identified as some of the most common reasons for terminating a customary marriage. This is qualified by the warning that many of them are grounds for divorce only if they are persistent or gross. Adultery and desertion in particular are highlighted. Adultery may be a justification available to husbands against their wives but seldom vice versa. Desertion may be the one clear avenue available to a woman to precipitate a termination of her marriage.



In customary law, the outward and visible sign evidencing the termination of a marriage is the return of lobolo by the wife’s guardian to the husband or the husband’s family. The guardian is entitled to keep a portion of the lobolo if his daughter has borne children in her married family, if the breakdown was due 264

to the fault of the husband, and, among certain communities, in acknowledgement of the services rendered by the wife during her time in the marriage. 

A customary marriage is not necessarily dissolved by the death of one of the spouses. In the event of the death of the husband, the marriage may continue through the device of the levirate. Where it is the wife who dies, the invocation of the sororate may keep the marriage tie alive.



The consequences of divorce in a customary marriage are now broadly similar to those of a civil marriage. This alignment was achieved by the incorporation by section 8(4)(a) of the RCMA of sections 7, 8, 9 and 10 of the Divorce Act and section 24(1) of the Matrimonial Property Act into divorce proceedings under the RCMA. These provisions read together give a court dissolving a customary marriage the same powers as those enjoyed by a court dissolving a civil marriage. These powers include the power to divide the assets of the marriage, to order that one spouse maintain the other (whether based on a maintenance agreement or not), to redistribute the assets, to order a party to forfeit benefits and to deal with the property of minors married without consent.



Divorce in the case of a polygamous marriage is governed by section 8(4)(b) of the RCMA which empowers the court to consider a wide range of factors in order to make a just and equitable order.



In the case of Gumede, the Constitutional Court ruled that a court has the same powers to redistribute the assets in all customary marriages whether contracted before or after the date of commencement of the RCMA.



A court ordering maintenance in a divorce may take into consideration any provision that may have been made in customary law, such as isondlo, or any arrangement made in terms of the lobolo agreement in favour of one party.



The court may also make orders in respect of the custody and guardianship of children, applying the provisions of the Mediation in Certain Divorce Matters Act and section 6 of the Divorce Act, thus again aligning customary law and common law in these matters.

265

1Jansen, R-M ‘Customary family law’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism in South Africa 3rd ed 45 at 49; Nhlapo, TR (1992) Marriage and Divorce in Swazi Law and Custom. 2A further complication with the term ‘divorce’ is its association with the decree of a court of law, which in the past had no role in the termination of a customary marriage. A definition of the term that suffices for the purposes of this chapter is taken from the Collins English Dictionary 2nd ed which refers to divorce as ‘the dissolution of a marriage by judgment of a court or by accepted custom’ (own emphasis). 3See Bennett, TW (2004) Customary Law in South Africa 291 for a brief discussion of nullity in customary law and under the Recognition of Customary Marriages Act 120 of 1998 (RCMA). 4See Bennett (2004) 266; Nhlapo (1992) 77. 5Nhlapo (1992) 77 ff; Marwick, BA (1940) The Swazi 33. 6Gluckman, M (1953) Bridewealth and the stability of marriage Man 53:141–43; Nhlapo (1992); Maithufi, IP and Bekker, JC (2001) The dissolution of customary marriages in South Africa Obiter 22(2):259–72. 7Act 120 of 1998. 8S 8(1) of the RCMA. It is sometimes mistakenly assumed that this ground is imported from the Divorce Act 70 of 1979 and was introduced into customary law by the RCMA. In fact, the irretrievable breakdown of a marriage is more consonant with customary law where, as a rule, spouses resort to divorce only when all else has failed. See Jansen (2010) 45; Bekker, JC (1976) Grounds of divorce in African customary marriages in Natal Comparative and International Law Journal of Southern Africa 9(3):346–55; Maithufi and Bekker (2001) 264. 9See Jansen (2010) 3.3.7.1. 10Nhlapo (1992) 77 discusses seven traditional reasons for a marital breakdown among emaSwati: adultery, witchcraft, infertility, cruelty and neglect or gross illtreatment, refusal to render conjugal rights, gross disobedience and disrespect, and desertion. He analyses whether these were considered to be grounds in the common law sense and whether they were available to the spouses equally. He concludes in the negative on both counts. 11Bennett (2004) 268. 266

12Bekker (1976). 13Nhlapo (1992) 79 ff. 14Mshweshwe v Mshweshwe 1946 NAC (C & O) 9. 15Mangaliso v Fekade 5 NAC 5 (1926). 16N’guaje v Nkosa 1937 (NAC) 98. 17See Bennett (2004) 268 who says, ‘Witchcraft for example is always a serious matter, and the actual practice of witchcraft is clearly a good reason to end a marriage’. See also Evans-Pritchard, EE (1937) Witchcraft, Oracles and Magic Amongst the Azande 63–81. 18Mathupa v Mahupye 1933 NAC (N & T) 6. 19Mqitsane v Panya 1951 NAC 354 (S). See also Nhlapo (1992) 17. 20Ndatambi v Ntozake 1 NAC 3 (1985). 21We submit that desertion by a wife offers the one clear instance where she can initiate the termination of her own marriage, whether regularly or irregularly entered into. 22Bennett (2004) 271 ff; Nhlapo (1992) 87 ff. 23See generally Nhlapo (1992) 83–7. 24Marwick (1940). 25These procedures are captured comprehensively by Bennett (2004) 270 ff. 26Bennett (2004) 274 ff. 27Bennett (2004) 277–8. 28Gaga v Dyaba 1931 NAC (C & O) 4; Tusi v Cekwaan 1939 NAC (N & T) 63; Nkuna v Kazamula 1941 NAC (N & T) 128; Manjezi v Sirunu1950 NAC 252 (S). Among emaSwati, deductions for children born are two beasts for a girl up to a total of four beasts, and one each for a boy up to a total of two (Nhlapo (1992) 80). Needless to say, these negotiations may involve cash rather than beasts on the hoof. 29Gqozi v Mtengwane 1960 NAC 26 (S); Ngcobo v Zulu 1964 BAC 116 (N-E). 30Mayeki v Kwababa 4 NAC 193 (1918). 31Mogidi v Ngomo 1948 NAC (N & T) 18. But see also for evidence of differences in the rules in this area Mkanzi v Masoka 1949 NAC 145 (S); Mzizi v Pamla 1953 NAC 71 (S); Mfazwe v Tetana 2 NAC 40 (1910). 32Gunqashi v Cunu 2 NAC 93 (1910).

267

33Tusi v Cekwaan 1939 NAC (N & T) 63; Novungwana v Zabo 1957 NAC 114 (S); Sihoyo v Mandobe 1941 NAC (C & O) 5. 34Xakata v Kupuka 2 NAC 62 (1910). 35Shabangu v Masilela 1939 NAC (N & T) 86. 36Ndatambi v Ntozake 1 NAC 3 (1895). 37As a result of the combined effect of s 8(1) read with the definition of ‘court’ in s 1 of the RCMA. Heaton, J (2010) South African Family Law3rd ed 222 points out that the divorce courts will cease to exist as they will merge with the regional divisions of the magistrates’ courts. 38Jansen (2010) 65. The SALC debated the matter and opted for the provisions primarily for the protection of women and children. See South African Law Commission (1998) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Customary Marriagespara 7.1.21. Interestingly, the SALC rejected suggestions that traditional courts could be granted jurisdiction over divorces (para 7.1.18) although it supported the role of the traditional leaders in mediation prior to divorce, now reflected in s 8(5) of the RCMA. 39See Bennett (2004) 278 who suggests that this is no longer a requirement under the RCMA although the courts will consider it as an important indicator. In the case of Thembisile v Thembisile 2002 (2) SA 209 (T), decided after the coming into effect of the RCMA, the Court referred to this indicator as a useful pointer in deciding whether a divorce had occurred or not. 40See s 50(1) of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law Proc R151 of 1987. 41Nhlapo (1992) 75. See also Jansen (2010) 49 and Maithufi and Bekker (2001) 264. 42Such as dealing with matters of succession and inheritance. 43See, for instance, Nhlapo (1992) 76 on emaSwati. 44Act 70 of 1979. 45Act 88 of 1984. 46S 8 of the Divorce Act. 47S 7(4) of the RCMA. 48S 7(5) of the RCMA importing s 21 of the MPA. 49Ss 7(6) and 7(7) of the RCMA. 50Heaton (2010) 132–48; See also Bennett (2004) 281 ff. 268

51Heaton (2010) 132; Jansen (2010) 66–9. 52(CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008). 53Gumede para 43. 54S 8(4)(a) of the RCMA read with s 7(1) and (2) and s 8 of the Divorce Act. The court may make a maintenance order, or may rescind, vary or suspend one. It may also endorse private agreements between the parties in this regard. 55See generally Jansen (2010) 68. 56S 8(4)(e) of the RCMA. 57See Bennett (2004) 282 for a discussion of the differences between isondlo and maintenance as understood in the common law. 58Bennett (2004) 221 and 227. 59S 8(4)(d) of the RCMA. 60Act 24 of 1987. This Act introduces the role of family advocates and family counsellors in divorce proceeding where the welfare of the children is an issue. 61This Act is likewise concerned with the welfare of children during divorce. 62See Maithufi, IP and Moloi, CMB (2002) The current legal status of customary marriage in South Africa Tydskrif vir die Suid-Afrikaanse Reg4:599–611; Maithufi and Bekker (2001) 195. 63These provisions must now be read in the context of the Children’s Act 38 of 2005 and are fully dealt with in ch 7 of this book. 64Jansen (2010) 68. See also Heaton (2010) 221–3. 65Baadjies v Matubela 2002 (3) SA 427 (W).

269

Chapter 9 The customary law of succession 9.1 Introduction 9.2 Succession and inheritance in customary law 9.3 Legislative intervention 9.3.1 The Black Administration Act 38 of 1927 9.3.2 Regulations for the Administration and Distribution of the Estates of Deceased Blacks 9.3.3 Succession to land 9.4 Judicial reform 9.5 Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 9.5.1 Definition of ‘descendant’ and ‘spouse’ 9.5.2 Modification of the customary law of succession 9.5.3 Property allotted or accruing to a woman in a customary marriage 9.5.4 Freedom of testation 9.5.5 Property rights in relation to certain customary marriages 9.5.6 Disposal of property held by a traditional leader 9.5.7 Dispute or uncertainty in consequence of the nature of customary law This chapter in essence 9.1 Introduction Terminology law of

deals with testate and intestate succession, and the manner in which a person’s

succession

estate or eligible assets are to be inherited by his or her beneficiaries after his or her death

testate

takes place where the deceased, the testator had, during his or her lifetime,

succession

executed a valid will which indicates how his or her estate has to be shared or divided after his or her death 270

intestate

deals with the rules of law which determine who a person’s heirs or beneficiaries

succession

are and their respective shares if the person dies without executing a valid will or executing a will which disposes of only a portion of his or her estate

successor

in customary law, the person who acquires status by taking the place of the deceased, who becomes responsible for the deceased’s duties and obligations and who succeeds to both the liabilities and assets of the deceased

deathbed wish

the allotment of property to individuals on the deceased’s deathbed

The law of succession is a branch of private law which governs what is to happen to a person’s estate or eligible assets after his or her death. It lays down how a deceased person’s estate is shared by his or her heirs or beneficiaries and who such heirs or beneficiaries are. It therefore identifies the heirs or beneficiaries as well as their shares. The law of succession is divided into two branches: testate and intestate succession. Testate succession takes place where the deceased, the testator had, during his or her lifetime, executed a valid will which indicates how his or her estate has to be shared or divided after his or her death. The deceased himself or herself states in a will or testament the names of persons who are to benefit from the estate and their respective shares. The will or testament must comply with the requirements prescribed by the Wills Act.1Intestate succession, however, deals with the rules of law which determine who a person’s heirs or beneficiaries are and their respective shares if the person dies without executing a valid will or executing a will which disposes of only a portion of his or her estate. The customary law of succession deals in particular with the preservation and continuation of the family name and unity after the death of a person. It is not merely concerned with the identification of the beneficiaries to the deceased’s estate, but also with identifying persons who will succeed to certain status positions in the family. The person who acquires status, that is, the successor, takes the place of the deceased and becomes responsible for the deceased’s duties and obligations. The successor succeeds to both the liabilities and assets of the deceased. As a result of this, the successor becomes responsible for maintaining all the people for

271

whom the deceased was liable for maintaining during his or her lifetime and for settling his or her debts irrespective of the value of the estate. In 2009, the Reform of the Customary Law of Succession and Regulation of Related Matters Act (RCLSA)2 changed the customary law of succession. The RCLSA reformed the customary law, mainly to bring it in line with constitutional principles. The first two parts of this chapter following this section discuss the principles of customary law of succession (including official customary law) before the RCLSA came into operation. This largely serves as a background to the reasons for the reform of the customary law. The rest of the chapter deals with the judicial and legislative reform of the customary law in the new constitutional dispensation. PAUSE FOR REFLECTION Customary law and change: estate grabbing In Bhe v Khayelitsha Magistrate, the Constitutional Court stated that the past ‘fossilisation and codification of customary law’ by colonial, Union and apartheid authorities ultimately led to its marginalisation: This consequently denied it of its opportunity to grow in its own right and to adapt itself to changing circumstances. This no doubt contributed to a situation where, in the words of Mokgoro J, ‘[c]ustomary law was lamentably marginalised and allowed to degenerate into a vitrified set of norms alienated from its roots in the community’.3 The problem of codified rules being transposed from previous socio-economic contexts to the present has particularly serious implications for women. In the precolonial agrarian context women played a pivotal role in the household economy. They were the primary crop farmers and also produced the children on whom the continuation of rural families depended. However, as the agricultural economy in the former homelands came under increasing pressure from apartheid-created land shortages, so women’s bargaining position within the family declined.4This made women vulnerable to property-grabbing and eviction by family members who no longer relied on their labour. This was exacerbated as the cash economy took hold and the land to which African people were restricted became increasingly scarce. 272

This vulnerability was also exacerbated by codified versions of customary law that vested African land rights and inheritance exclusively in men.5 In practice, there are various examples of customary rules being adapted to changing circumstances.6 These developments were thwarted and restricted by the rigid and timeless version of custom imposed by the Black Administration Act (BAA). 7 The Constitutional Court case of Bhe involved a magistrate applying the same BAA to the effect that Ms Bhe and her two children were almost rendered homeless after the death of her partner. Her partner’s father, who had been declared the sole heir by the magistrate, wanted to sell the house that Ms Bhe and her partner had lived in with their children to pay for his son’s funeral costs.8 In these circumstances, the Court highlighted that potential remedies must take into account the material circumstances and power relations that, in practice, restrict the options available to women and children. The Court said that to rely on the making of wills as a means of extricating people from the discriminatory impact of the BAA would benefit ‘[o]nly those with sufficient resources, knowledge, education or opportunity to make an informed choice’.9 The power relations which frame the limits of what is possible in practice are in some measure the outcome of the rigid versions of custom entrenched by laws such as the BAA. This means that in some contexts current practice is deeply discriminatory. In such situations, the recognition of living customary law is not enough

to

remedy

existing

inequality.

Thus

the

Court

found

in

both Bhe and Shilubana vNwamitwa10 that the development of customary law in line with the Constitution is necessary to give effect to the right to equality. The customary law of succession also recognises the method of allotting property by the deceased during his or her lifetime which has the same effect as the common law testamentary succession. A deceased person may, during his or her lifetime, allot property to his or her child or an individual of choice. These allocations are given effect to in the same manner as if they were contained in a valid will. Moreover, a deceased person may make a deathbed wish which is also given effect to in the same manner. We discuss this further below.

273

9.2 Succession and inheritance in customary law Terminology male primogeniture

the rule in customary law as codified by legislation in South Africa that the eldest surviving male relative of the deceased succeeds to both status and the whole estate of the deceased

inheritance

the acquisition of property of the deceased unless the context indicates otherwise

succession

the acquisition of the status of the deceased unless the context indicates otherwise

house heir

a person who is entitled to inherit property in a particular house in a polygamous family, usually that of his mother

general heir

the person who acquires or succeeds to the status of the deceased

lesika

a family court in the Sesotho languages

tshwaiso, go

among baTswana, the allocation or allotment of property before death

tshwaisa or tshwaelo The South African legal system is pluralistic in nature. This means that more than one legal system is applicable in South Africa. Before the adoption of the current constitutional dispensation on 27 April 1994, the common law was the primary applicable legal system. Other systems of law, in particular customary law, were applied only when they were not found to be in conflict with public policy or natural justice.11 It was only after the coming into operation of the interim Constitution that customary law was recognised on the same basis as the common law.12 Before the Constitutional Court decision in Bhe, the law of succession in South Africa consisted of the common law of succession as regulated by the Intestate Succession Act13 and the Wills Act, as well as the customary law of succession whose application was characterised by the application of the principle or rule of male primogeniture. The rules of the customary law of succession were contained in various pieces of legislation and proclamations issued in terms of 274

the BAA,14 the Regulations for the Administration and Distribution of Estates of Deceased Blacks,15 the KwaZulu Act on the Code of Zulu Law,16 and the Natal Code of Zulu Law.17Besides these measures, certain areas in South Africa, which had been granted nominal independence by the previous regime, had enacted legislation dealing with succession. Among them were the then Transkei with its Marriage Act,18 which

contained

provisions

relating

to succession,19 and

Bophuthatswana with its Intestate Succession Law Restatement Act.20 In the common law, succession relates to the acquisition of the property or eligible assets or part thereof of a deceased person. The word ‘inheritance’ has the same meaning. The law of succession therefore deals with the acquisition of the rights to the property of another person who is deceased. This is the primary function of the law of succession in the common law. The customary law of succession, however, distinguishes between succession and inheritance. Succession in customary law entails the acquisition of the status a deceased person occupied during his or her lifetime. The successor acquires the rights, duties and obligations of the person he or she succeeds. Such succession may also be accompanied by the acquisition or inheritance of the property or some of the property of the deceased. Such a successor is said to ‘step into the shoes’ of the deceased as he or she takes over the status of the deceased.21 An example is where the deceased was a traditional leader and another person acquires his or her status as a traditional leader on his or her death. A distinction is further made between a house heir and a general heir in customary law. A house heir is a person who is entitled to inherit property in a particular house in a polygamous family, usually that of his mother. A general or principal heir or successor

is

the deceased.

22

a

person

who

acquires

or

succeeds

to

the

status

of

This is the successor who steps into the shoes of the deceased as

he or she takes over all his or her rights, duties and responsibilities. If the deceased was the head of a family, the successor takes over such rights, duties and responsibilities. This position has been described as follows: The family headship does not die with the death of the father of the family, but the authority which he alone exercised over his houses is divided but remains undiminished, the eldest son of each house becomes the family head of that house. Family headship is a 275

continuous exercise of well-defined rights and liabilities passing from father to son without change or interruption.23 Succession, in other words the acquisition of status, in customary law is governed by the rule of male primogeniture.24 Male primogeniture implies succession by males through males only in respect of the acquisition of positions of status. In the case of a deceased who was married to more than one wife, the eldest son in each house succeeds to that specific house.25 In his absence, his eldest son or his son succeeds until all the sons of the deceased and their sons have been exhausted before resort is had to the second son and all his sons and their sons and other sons of the deceased. The same rules are applicable to the succession to a monogamous family head.26

Figure 8.1 An example of the application of the rule of male primogeniture in determining succession to status Succession to the status of A would start with AB1 until all his male descendants have been exhausted, that is, AB11 and all his male descendants and AB12 and all his male descendants and all their descendants, if any, before resort is had to AB2 and all his male descendants. They would be followed by AB3 and all his male descendants in the order of their seniority by birth. The same rules would be followed if the deceased was married to more than one wife. COUNTER POINT Debates concerning whether male primogeniture is, in practice, a predictive ‘rule’ in succession to status There is much scepticism in anthropological and historical literature as to whether the ‘rule’ described above ever accurately reflected the actual dynamics of succession to political office in pre-colonial South African society. Comaroff, for example, having traced the actual history of chiefly succession among various baTswana communities in South Africa found that deviations from the ‘rule’ of male

276

primogeniture are so common that they cannot be described as ‘unusual’ or ‘anomalous’: The rules, however, cannot be assumed to determine the outcome of indigenous political processes. If they are read literally, and examined in the context of the history of the office, 80 per cent of all cases of accession to the chiefship represent ‘anomalies’.27 Costa, writing of amaZulu kingship disputes, similarly asserts that while the ‘rule of succession’ has been described by anthropologists and, in particular, apartheid institutions, ‘[t]he history of the kings themselves […] points more to individual ability than predestination’.28 Similar findings are made and explained by anthropologists and historians such as Hammond-Tooke (in relation to amaMpondomise),29Delius (Bapedi),30 Beinart (amaMpondo)31 and Peires (amaXhosa).32 Delius observes that: … the idea that rules determined succession in these societies is a considerable oversimplification. Reality was more complex and allowed for competitive political processes shaped by the interplay of popularity and power to determine who acceded to high office.33 In Alexkor Ltd v Richtersveld Community, the Constitutional Court warned of the dangers of looking at indigenous law through a common law prism and directed us instead

to

its usages’.

34

‘the

study

of

the

history

of

a

particular

community

and

Elevating ‘rules’ out of the context in which they operate and are

reshaped can have a similar distorting impact. The modus operandi adopted by first the colonial and later the Union and apartheid governments was to justify their decisions using genealogies drawn up by state ethnologists. The ethnography division of the Department of Native Affairs was established in 1925 and played an important role in determining the outcome of succession disputes. To rely exclusively or primarily on genealogies in the present is to entrench fundamental misconceptions and distortions that were pivotal to the ‘divide and rule’ agenda of the colonial, Union and apartheid governments.

277

Even the leading government ethnologist, Van Warmelo, understood the limited role of formal succession ‘rules’ in practice and attempted to convince his superiors to take this into account. In his notes from 1945 we find the following passage: My contention is therefore that this picking of chiefs out of the hat of chance will have to stop unless the whole institution of chieftainship is to come to grief. The natives always thought otherwise than to accept chiefs only on birth. In the olden days chiefs were men of birth plus a certain amount of ability … we cannot dispense with ability and I am certain that the Government must sooner or later return to the old principle of birth plus ability …35 The Constitutional Court has yet to decide on the validity of the rule of male primogeniture in cases involving succession to status. Whether that judgment will be restricted to issues pertaining to equality depends on the facts and arguments put before it by opposing litigants. The actual dynamics of past and current succession practices, and the colonial origins of the ‘genealogical approach’, would not necessarily arise unless put forward by a party to the litigation or an amicus curiae. This illustrates the evidentiary burden entailed in developing the jurisprudence of living customary law as opposed to official customary law. As Bennett has said, issues pertaining to availability of information tend to create a de facto presumption in favour of official versions of customary law, whatever their failings.36 In the Shilubana case, the Court found that the customary community had the right to develop their customary law in line with the Constitution, so enabling a woman to accede to the throne. This case was therefore about the development rather than the actual content of the customary law governing succession to status, which awaits future litigation to be decided. This discussion has focused on succession to status in relation to political leadership. Succession to status is also crucial at the level of the family and family home. The chapter as a whole has highlighted that succession and inheritance are not separate constructs but are inextricably interconnected. In the next Counterpoint discussion we refer to the increasing incidence of parents choosing a daughter, who has taken on the responsibility for family care, as the person who will take over responsibility for the family home on their death in preference to a less responsible

278

brother. In such cases, the daughter inherits the status of caretaker for the family home on the assumption that she will maintain it for the benefit of the family as a whole rather than as her own private property.37 According to customary law, the assets or property of a deceased person may be inherited by various persons after his or her death.38The homestead or house of a deceased person is normally inherited by his or her youngest son.39 This is because customary law burdens this son with the responsibility of taking care of the deceased when he or she is no longer capable of doing so. Customary law further provides for rules to be applied in the division of the estates of male and female deceased persons, whether married or unmarried. This position has been described as follows: The manner in which property is inherited after the death of the owner depends upon his marital condition and sex, and upon the nature of the property. The general rule regarding the latter is that sons inherit all cattle and other property specifically used by males; while daughters inherit the domestic utensils and other goods specifically used by females.40 After observing the traditional mourning period, usually a year after the death of the deceased, a family group meeting is called to determine the distribution of the estate among the deceased’s heirs or beneficiaries.41 The family group, especially the deceased’s principal heir and his paternal uncles, therefore supervises the distribution of the deceased’s estate. The children of the deceased, irrespective of their age and gender, are allotted various portions of the estate.42 In the event of a dispute regarding the distribution or division of the estate, an aggrieved party may appeal to the family court, sometimes known as a lesika court or to the chief.43 COUNTER POINT Males, ‘real property’, females, pots and pans: how unfair? Schapera’s classic Handbook of Tswana Law and Custom was first published in 1938. In the Preface, Schapera states that he resisted the temptation to deal with the ‘spirit’ as opposed to the ‘letter’ of the law. He warns us that he does not discuss the 279

extent to which the laws he describes were ‘actually enforced or obeyed in practice’. Instead he refers to his intention to write a future work describing ‘Tswana law and custom as actually seen in practice’.44 This is an important caveat in relation to relying on the Handbook, and indeed other publications of the time, as evidence of living customary law. Moreover, society has been shaped by many changes since Schapera wrote in the 1930s. The agricultural economy that underpinned specific gender roles in society has declined significantly and, for the most part, family income is derived from sources other than agriculture. Education and the cash economy mean that today women often invest significant amounts in the family home. Standards developed in previous eras, therefore, cannot be applied to determine the kinds of property that women should inherit today. It is therefore vital for lawyers to place evidence of practice before courts when litigating on customary law issues. If only historically-specific texts are available to judges, the result will be the application of misleading ‘rules’ of customary law without understanding how these ‘rules’ actually operated in practice. Lawyers should instead rely on a range of sources when presenting evidence of living customary law. This evidence need not only be sourced from expert witnesses, but can be drawn from a vast body of historical and anthropological literature in the public domain and also from ordinary people making affidavits about their current experiences of customary law’s application in practice.45 Far from women inheriting only pots and pans, it has become increasingly common for parents to direct that a particular daughter (as opposed to a son) should take over responsibility for the family home on their death.46 This is generally in recognition of the daughter’s prior investment in the home or on the basis of the responsibility she has exercised in practice in caring for aged parents and other family members.47This change highlights the crucial nexus between inheritance and responsibility as the underlying value informing succession. Laws such as the BAA elevated the ‘principle’ of male primogeniture over the animating logic and purpose of previous succession practices. The allocation of property by the deceased during his or her lifetime resembles what is known as testamentary or testate succession in terms of the common law. Testate or testamentary succession occurs where a deceased person, the testator, has 280

executed a valid will disposing of his or her property. The deceased person therefore gives direction as to what should happen to his or her property after death. Any person may benefit any of his or her potential heirs by allotting or allocating property to him or her in terms of customary law.48 On the death of the person who allotted this property, its ownership passes to the person to whom it has been allotted.49 This type

of

allocation

is

known

as tshwaiso,

go

tshwaisa or tshwaelo among baTswana.50 Besides the allocation or allotment of property before death, a person may also express what is to happen to his or her estate after death. This arrangement is recognised by customary law and has been described as follows: Voluntary testamentation is not altogether unknown, in the sense that a man may inform his eldest son and some other men of his ward that after his death he wishes certain cattle or other property to be given to certain children or relatives. His wishes are generally respected, for as the proverb says, Lentswe la moswi ga le tlolwe ‘The word of a dead person is not transgressed’.51 The above is an exposition of the living customary law which applied to the succession and inheritance of the deceased person’s estate. The official customary law was, however, that the rule of male primogeniture applied. This rule, as we pointed out earlier, recognised only males as heirs to the exclusion of females.52 No distinction was made between the acquisition of the status of the deceased (succession) and the inheritance of property.53 Therefore, the eldest surviving male relative of the deceased was allowed to succeed to the status of the deceased as well as to property to the exclusion of the wife, daughters and other children of the deceased. 9.3 Legislative intervention Various pieces of legislation were enacted to regulate the customary law of succession. All this legislation adopted the application of the rule of male primogeniture in determining who the heir to the intestate estate was. This is what became known as the official customary law of succession as it was applied by South African courts.54

281

The most important legislation that governed the official customary law of succession was the repealed BAA.55 The regulations issued in terms of the BAA, the Regulations for the Administration and Distribution of Estates of Deceased Blacks, determined the legal system to be applied to the devolution and administration of intestate estates of black persons. As mentioned above, the position in the then KwaZulu and Natal was regulated by the KwaZulu Act on the Code of Zulu Law and the Natal Code of Zulu Law respectively. The Transkei Marriage Act regulated the position in the then Transkei and the Intestate Succession Law Restatement Act applied in the then Bophuthatswana.56 It is necessary to describe what the repealed BAA and the provisions of the regulations issued in terms of this Act provided in order to understand the current position of the customary law of succession as regulated by the RCLSA. 9.3.1 The Black Administration Act 38 of 1927 Besides regulating succession, the BAA also determined the consequences of civil marriages contracted by black people.57 The effect was that civil marriages contracted by black people were always out of community of property and of profit and loss unless the parties thereto had declared a month before the celebration that it was their intention to contract a marriage in community of property and of profit and loss.58 It was also possible for such parties to conclude an antenuptial contract if they wished to marry in community of property and of profit and loss. Where the husband was a partner in a customary marriage with one woman before he married another by civil rites, the civil marriage could not be in community of property and it was regarded as a customary marriage.59 The general principle was that the law that regulated the proprietary consequences of the marriage also determined the legal system to be applied to the devolution and administration of the intestate estate of the parties. When the parties were married by civil rites, the common law applied to the devolution and administration of their intestate estate. Conversely, where the parties had contracted a customary marriage, the customary law of succession applied to the devolution and administration of their intestate estate.60 Section 23 of the BAA also provided for certain categories of property or assets that could not be distributed by means of a will. These were as follows:

282

(1) All movable property belonging to a Black and allotted by him or accruing under customary law or custom to any woman with whom he lived in a customary marriage, or to any house, will upon his death devolve and be administered under Black Law and custom. (2) All land in a location held in individual tenure upon quitrent conditions by a Black will devolve upon his death upon one male person, to be determined in accordance with tables of succession prescribed under s 23(10) of the Act. (3) All other property of whatsoever kind belonging to a Black may be devised by will.61 The abovementioned provisions meant that a black person married according to customary rites was not legally entitled to dispose of property mentioned in section 23(1) and (2) of the BAA by means of a will. These kinds of property devolved on the death of a black person on the eldest son in accordance with the rule of male primogeniture. No distinction was made whatsoever between succession and inheritance of property in terms of customary law. Thus, the eldest son or the deceased’s nearest male relative was held to be the only person entitled to inherit the entire intestate estate of the deceased.62 The BAA also excluded the jurisdiction of the Master from the administration of intestate estates of black people irrespective of the type of their marriage.63 A magistrate of the district in which the deceased was resident administered these intestate estates.64 The Master administered the intestate estates of whites, Indians and coloureds. The Constitutional Court declared this arrangement unconstitutional in Moseneke v Master of the High Court65 as it constituted unfair discrimination on the grounds of race, ethnic origin and colour.66 As already stated, when the deceased was, during his lifetime, a partner in both a customary and a civil marriage to two women, the civil marriage was regarded as a customary marriage for the purposes of succession.67 The civil marriage was therefore presumed to have created a house in the same manner as a customary marriage and the rule of male primogeniture applied to determine how its property had to devolve.68 Contracting a civil marriage with another woman during the subsistence of a customary

marriage

had

the

effect

of

dissolving

the

existing 283

customary marriage.69 The partner of the dissolved customary marriage became what was known as a ‘discarded spouse’. She and her children did not have any rights whatsoever to the estate of her erstwhile husband until his death whereon the widow of the civil marriage and her children were regarded or deemed to have had ‘… no greater rights in respect of the estate of the deceased spouse than she or they would have had if the said marriage had been a customary marriage’.70 For the purpose of succession, the customary marriage was deemed to have been in existence at the time of the death of the husband. This used to be the position from 1 January 1929 to 2 December 1988 when the Marriage and Matrimonial Property Law Amendment Act71 came into operation and prohibited a person already married by customary rites from contracting another marriage by civil rites. 9.3.2 Regulations for the Administration and Distribution of the Estates of Deceased Blacks The Regulations for the Administration and Distribution of the Estates of Deceased Blacks72 were enacted to determine which system of law, customary or common law, regulated the administration and distribution of intestate estates of deceased black people. As already stated, the type of marriage contracted by the deceased was employed as a criterion or connecting factor to indicate the legal system applicable to the devolution and administration of such intestate estates. The regulations provided for three types of intestate estates, namely: 

intestate estates that were to devolve and be administered in terms of customary law73



intestate estates that were to devolve and be administered in terms of the common law74



intestate estates whose devolution and administration could specifically be made subject to the common law but which normally were to devolve and be administered in terms of customary law.75

Intestate estates that normally devolved and were administered in terms of customary law, besides those listed in section 23(1) and (2) of the BAA, were: 

those of spouses of customary marriages



those of spouses of a civil marriage which did not produce the legal consequences of a marriage in community of property76 284



those of parties who, at the time of death, lived with each other as putative spouses



those of unmarried black people.

Intestate estates that devolved and were administered in terms of the common law were: 

those of black people who were exempted from the operation of customary law77



those of spouses to a civil marriage in community of property or under antenuptial contract



those of widows, widowers or divorcees (as the case may be) of a civil marriage in community of property or under antenuptial contact and who were not survived by spouses to a customary marriage contracted subsequent to the dissolution of such marriage.

Intestate estates whose devolution and administration could be made subject to the common law were those of deceased persons who were survived by any spouse or partner or any issue or child of: 

a customary marriage



a civil marriage that did not produce the consequences of a marriage in community of property



a putative marriage.78

In these cases of intestate estates, an application could be made to the Minister of Justice that they should devolve and be administered in terms of the common law. The Minister could then direct that the common law be applicable to these estates if, in his or her opinion, the application of customary law to the devolution of the whole or

some

part

of

these

estates

could

lead

to

inequitable

or

inappropriate results.79 Regulation 2(d) was declared unconstitutional on the ground that it distinguished between intestate estates of a deceased who was a spouse to a civil marriage out of community of property in terms of the repealed section 22(6) of the BAA and those of spouses in a civil marriage in community of property or a marriage under antenuptial contract for the purposes of succession.80

285

In the then KwaZulu and Natal there also existed rules relating to succession and inheritance. These rules were provided for by the KwaZulu Act on the Code of Zulu Law and the Natal Code of Zulu Law of 1987 respectively. The provisions dealing with these issues were identical and provided as follows: (1) Family property and personal property may be devised by will. (2) House property may not be devised by will and upon the death of the family head any such property shall, subject to the provisions of section 81(5), devolve and be administered under Zulu Law.81 In these territories, therefore, just like in the rest of South Africa, house property was excluded from the provisions of the Wills Act and had to devolve in terms of the rules of intestate succession under customary law. Family property and personal property could, however, be devolved by will whereon the wishes of the testator became applicable.82 An important distinction at that time between the position in the rest of South Africa and the then KwaZulu and Natal was that in the latter territories customary law was never applied to the devolution and administration of intestate estates of persons married by civil rites.83 These intestate estates were always governed by the common law irrespective of the proprietary consequences of such marriages. The

position

in

the

then

Bophuthatswana

was

regulated

by

the

Succession Act84 which was later repealed and replaced by the Intestate Succession Law Restatement Act of 1990. The effect of these measures was the abolition of the customary law rule of male primogeniture for the purposes of intestate succession in favour of the application of rules similar to those provided for by the current RCLSA.85 PAUSE FOR REFLECTION Legislative intervention long before Bhe The application of the rule of male primogeniture in the customary law of succession was abolished in the then Bophuthatswana by the Succession Act as it was found to discriminate unfairly on the basis of age and gender as envisaged by the Constitution Act of 1977. This Act had provisions similar to the Bill of Rights contained in Chapter 2 of the current South African Constitution of 1996. It also 286

prohibited unfair discrimination based on, among others, age and gender. The process of attempting to adapt the customary law with the Bill of Rights therefore commenced long before the Constitutional Court judgment in Bhe. 9.3.3 Succession to land We mentioned above the provisions of the BAA regarding the devolution of land held in individual tenure on quitrent conditions in a tribal area.86 Such land was to devolve ‘… upon one male person to be determined in accordance with tables of succession to be prescribed under sub-section (10)’.87 The prescribed tables of succession were based on the rule of male primogeniture in that such land could only be acquired by male persons on the death of the person holding tenure of the land. It is not necessary to deal with the content of these tables except to mention that they adopted the rule of male primogeniture to determine who was to succeed to the right to land held by deceased black people. PAUSE FOR REFLECTION The impact of the BAA on preexisting practices that provided protection for women The BAA is the pivotal law that codified customary law across South Africa. It is instructive to look at the impact it had on prior practice in various areas. This illustrates how diverse customary and emerging practices were remoulded and ‘unified’ according to rigid principles that elevated and entrenched gender discrimination. Elton Mills and Wilson describe how in Keiskammahoek prior to 1927 so-called civil marriages were deemed to be in community of property unless an antenuptial contract had been entered into and children regardless of sex were entitled to equal shares in the property at inheritance.88They describe that in practice ‘a considerable amount of freehold land [was] inherited by, or through, women’.89 After 1927, common law marriages entered into by black people no longer defaulted to community of property and strict tables of succession were applied to the overall exclusion of women.90 What is more, government administrators of the time were generally opposed to granting fields to women.91

287

Elton Mills and Wilson state that ‘[u]nder the traditional law … a field for cultivation was allotted to every married woman or widow’ and a woman’s rights over that field constituted her property.92 In addition, it was not unusual for men in ‘communal’ areas to give their daughters fields, regardless of their marital status.93 However, as Simons has pointed out, government administrators objected ‘strenuously and with growing emphasis to the allocation of land to unmarried women’ and would cancel such allocations where they were made by headmen.94 Simons traces the prohibition on women’s land rights not to ‘tribal custom’ but to government administrators and laws that privileged men over women within the overarching context of increasing restrictions on African landholding in general.95 In his view, there was agitation within rural society to ‘restore to women the rights they had to land in the old society’.96 This is borne out by Weinberg’s examination of the historical records of the Bunga council. Time and again male councillors challenged the interpretation that customary law restricted women’s land rights and pleaded for improved land rights for women.97 9.4 Judicial reform The current constitutional dispensation, which was adopted in South Africa on 27 April 1994,98 recognises customary law as a legal system on the same basis as the common law. In this respect, the Constitution of 1996 provides that: The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.99 The Constitution further provides that in the interpretation of ‘any legislation, and when developing the common law and customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’.100 South African courts are therefore obliged to interpret and develop any provision of customary law, including the law of succession, in line with the Bill of Rights.101 These provisions have attracted disputes in which the customary law of succession conflicts with the Bill of Rights. As was to be expected, one of the major issues to find its way into the courts in the new constitutional dispensation was the principle of male primogeniture. We mentioned above that the rule of male primogeniture was used in the customary law of succession to determine who an heir (successor) was to the 288

intestate estate of deceased black people. The result was that the heir was the eldest surviving male relative of the deceased to the exclusion of other children, wife or wives and other relatives or dependants of the deceased. The heir acquired both the property and assumed the status of the deceased and had an obligation to maintain the other dependants of the deceased, namely his children and wife or wives.102 The rule of male primogeniture was challenged in Mthembu v Letsela103 where the Supreme Court of Appeal (SCA) held that this rule did not unfairly discriminate on the grounds of age and gender as the heir was under a duty to maintain all the dependants of the deceased. The SCA, however, indicated that if the rule of male primogeniture was applied in an urban setting, there was a possibility that its application may be discriminatory on the basis of age and gender. The SCA also pointed out that this rule of customary law could not be developed by the SCA as it was ill-equipped to do so but that such development should be left to the legislature after a process of full investigation and consultation. The SCA noted the investigation which was already underway by the South African Law Reform Commission (SALRC) relating to the reform of the customary law of marriage.104 COUNTER POINT Mthembu v Letsela: creating more problems than it solved The decision of the SCA in Mthembu v Letsela created more problems than it solved. The first problem is that it upheld the official rule of male primogeniture which was clearly discriminatory. The second problem is the Court’s suggestion that if the rule of male primogeniture was applied in an urban setting, there was a possibility that its application may be discriminatory on the basis of age and gender. The third problem is the Court’s ruling that the principle of male primogeniture could not be developed by the Court as it was ill-equipped to do so but that such development should be left to the legislature after a process of full investigation. This was also the position taken in Bhe.105 These last two issues are controversial and continue to be points of debate.

289

The most important case in respect of the challenge to the principle of male primogeniture was Bhe. At the time when the case was heard, the SALRC had already made certain proposals relating to the customary law of succession.106 A customary marriage at that time was recognised for all legal purposes as a valid marriage107 and the Commission had proposed that wives of these marriages be regarded as intestate heirs on the same basis as wives of civil marriages. The children of such marriages, irrespective of sex and age, also had to be recognised on the same footing as children of civil marriages for purposes of intestate succession. According to these proposals, the Intestate Succession Act had to be amended to include a spouse or spouses of a customary marriage and all children as intestate heirs. The Maintenance of Surviving Spouses Act108 also had to be amended to extend the meaning of the term ‘spouse’ to include a spouse or spouses of a customary marriage. Bhe followed a decision by the Magistrate of Khayelitsha and, on appeal, that of the Cape High Court.109 The Cape High Court declared the provisions of the BAA110 which dealt with male primogeniture unconstitutional and invalid. The Court also declared unconstitutional provisions of the Intestate Succession Act in so far as they excluded from their operation people whose estates devolved in terms of the BAA.111 Another case which declared male primogeniture unconstitutional was Shibi v Sithole.112 Here also section 23 of the BAA and regulation 2(c) of the Regulations for the Administration and Distribution of Intestate Estates of Blacks were declared unconstitutional. In both cases, the Courts ordered that the distribution of intestate estates of black people had to be governed by the Intestate Succession Act. The judgments in Bhe and Shibi were placed before the Constitutional Court for confirmation. The Constitutional Court heard these cases at the same time because they concerned the application of the rule of male primogeniture in the customary law of succession. The case of Bhe therefore concerned an application for the confirmation of an order of the constitutional invalidity relating to the application of the rule of male primogeniture and the relevant provisions of the BAA113 as well as those of the Intestate Succession Act. The Constitutional Court held that section 23 of the BAA and its regulations were manifestly discriminatory in that they violated the right to equality,114 the right to dignity115 and children’s rights.116 The Court held that the customary law rule of 290

male primogeniture was unfairly discriminatory against women, children of the deceased as well as extramarital children and declared the rule unconstitutional. The Court thus found that the discrimination brought about by the application of this rule could not be justified in terms of section 36 of the Constitution. Consequently, the Court ordered that intestate estates that had previously devolved in accordance with customary law had now to devolve in terms of the rules provided for in the Intestate Succession Act (as amended by the Court). In this regard, the wife or wives in a customary marriage as well as all their children, irrespective of age and sex, would all be intestate heirs. The Court thus declared section 23 of the BAA, regulation 2 of the Regulations for the Administration and Distribution of Estates of Deceased Blacks as well as section 1(4)(b) of the Intestate Succession Act, in as so far as it excluded from its application any estate or part thereof which is governed by customary law, unconstitutional. The order was in force until the matter was corrected by appropriate legislation. The order of the Constitutional Court was made retrospective to 27 April 1994, that is, the date of the coming into operation of the interim Constitution with two exceptions. First, the declaration of invalidity did not apply to any completed transfer of ownership to an heir who had had no notice of the challenge to the validity of section 23 of the BAA and the rule of male primogeniture. Second, the order did not apply to ‘anything done pursuant to the winding-up of an estate in terms of the [BAA], other than the identification of heirs in a manner inconsistent with this judgment.’117 PAUSE FOR REFLECTION Bhe: opens the space for the development of living customary law In addition to invalidating the principle of male primogeniture, the Constitutional Court in Bhe ruled that its order to apply the Intestate Succession Act to estates previously governed by customary law did not mean that the relevant provisions of the Intestate Succession Act were fixed rules that must be applied regardless of any agreement by all interested parties that the estate should devolve in a different way. In other words, the Intestate Succession Act did not preclude the possibility of interested parties reaching an agreement requiring the estate to devolve in a different way provided that the agreement was consistent with the provisions of the Act. Presumably, the Court envisaged the agreements complying with the provisions 291

of the Intestate Succession Act in broad terms only as opposed to strictly within the letter of the provisions. The Court adopted this approach to ensure that, through the agreements, customary law would continue to develop spontaneously. We submit that one of the ways this development could happen would be through agreements of members of local communities, especially members of the deceased person’s family. This would undoubtedly promote the development of the living customary law of succession, albeit within the broad framework of the Intestate Succession Act. As a result of the judgment in Bhe and the recommendations of the SALRC,118 the legislature enacted the RCLSA. We discuss its provisions below. 9.5 Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 The RCLSA was assented to on 19 April 2009 and came into operation on 20 September 2010. Before it came into operation, the devolution and administration of intestate estates of black people was regulated by the position as outlined in the Bhe judgment. This judgment was to the effect that these estates were to devolve in terms of the rules laid down in the Intestate Succession Act. The RCLSA provides that the Intestate Succession Act applies to the devolution of the intestate estate or part thereof of any person who dies after its date of commencement and whose estate does not devolve in terms of a will. One of the aims of the RCLSA was therefore to ensure that the Intestate Succession Act regulates the devolution of intestate estates of all persons. COUNTER POINT Substitution of customary law by common law: is this an appropriate method of changing customary law in the new constitutional era? The method chosen by the Constitutional Court to address the discriminatory ‘rule’ of male primogeniture in Bhe is indicative of the dearth of living customary law evidence placed before the Court in the case.119 The result was that the Court substituted the Intestate Succession Act, which applied to all South Africans other than those previously subject to the BAA, pending a longer-term legislative solution

292

to the hiatus created by striking down the relevant provision of the BAA.120 This recourse to common law precedents was criticised both in the minority judgment by Judge Ncgobo and subsequently in academic articles.121 The concern is that defaulting to common law precedents further undermines the integrity of customary law in a context in which it is already vulnerable to the dominance of received law.122 The majority judgment pointed to the lack of evidence put before it concerning living customary law in justifying its recourse to the Intestate Succession Act. Had anthropological and historical evidence about the logic underlying customary inheritance and the changes made to ‘rules’ of inheritance in practice been presented to it by the parties, the judgment may have followed a different course. In addition to these academic sources, customary expertise from both ‘expert’ witnesses and ordinary people could have been used to show on-the-ground changes in customary inheritance practices which may be consistent with the Bill of Rights. However, as Bennett notes, ‘in the heat of litigation, time and money militate against undertaking a possibly inconclusive search for the living law’.123 It is important to note that the Constitutional Court’s recognition of customary law on an equal footing with the common law in Alexkor does not assume strict segregation between these two systems of law in perpetuity. Indeed, the Court envisions a significantly less insulated place for customary law in the broader legal system, stating that ‘indigenous law feeds into, nourishes, fuses with and becomes part of the amalgam of South African law’.124 The reality is that living customary law, like the common law, is informed by a range of normative frameworks when used by ordinary people in their day-to-day lives. In grappling with the place of living customary law in relation to more dominant forms of common and statutory law, it is necessary to interrogate exactly what is meant by living customary law. Is it a species of customary law or the amalgam of local law that people work out in practice in their daily lives? This raises the related question concerning whether the recognition of living customary law in South Africa is restricted to its operation as a strand of indigenous law or implies a broader recognition of ordinary people’s law-making and law-integrating activities at the local level. Oomen describes dispute resolution processes in South African customary settings as follows:

293

The local process of dispute resolution is about mixing and matching rules that refer to culture, common sense, state regulations, the Constitution, precedent and a variety of other sources hardly considered contradictory.125 While all this is clearly true, it does not conclude the debate. An unanswered question remains which is the one posed earlier about the essence of the living customary law described in Alexkor. If that essence consists of the conversion of the common law (and indeed any other influences) by the ‘mixing and matching’ referred to by Oomen into a regime of practice visibly discernible as what people actually do, then it can be accepted that the resulting norms are indeed living customary law. What needs to be guarded against is the temptation to truncate the process of conversion as soon as a position is reached that is comfortable or convenient in terms of the common law. In our view, the Constitutional Court’s proposition supports a real contribution by customary law to the ‘amalgam’, not merely a wholesale imposition of the common law on customary law. The RCLSA applies to the estate or part of the estate of any person who is subject to customary law who dies after the date of its commencement on 20 September 2010 and whose estate does not devolve in terms of a will. The RCLSA also applies to the estate or part of the estate of any person who is subject to customary law and who died intestate at any time after 27 April 1994. The purpose of the RCLSA is set out in its long title: … to modify the customary law of succession so as to provide for the devolution of certain property in terms of the law of intestate succession; to clarify certain matters relating to the law of succession and the law of property in relation to persons subject to customary law; and to amend certain laws in this regard; and to provide for matters connected therewith. The preamble to the RCLSA is instructive with regard to what the legislature intended to achieve. It notes the inadequate protection granted by the customary law of succession to a widow and certain children of a customary marriage whose husband or father died intestate against the background of equality and equal 294

protection in terms of section 9 of the Constitution. It also notes the changed social circumstances which make it difficult for the customary law of succession to provide adequately for the welfare of family members and the declaration by the Constitutional Court that the principle of male primogeniture is not reconcilable with the notions of equality and human dignity as contained in the Bill of Rights.126 The discussions in the preceding sections of this chapter attest to these inadequacies in the rules governing intestate succession under customary law. The long title and preamble to the RCLSA are therefore an indication of what the legislature intended to achieve. 9.5.1 Definition of ‘descendant’ and ‘spouse’ The definition section of the RCLSA contains a number of definitions of the terms used in it. For the purposes of intestate succession, the definition of the terms ‘descendant’ and ‘spouse’ are important. According to section 1 of the RCLSA, a ‘descendant’ is: … a person who is a descendant in terms of the Intestate Succession Act, and includes– (a) a person who is not a descendant in terms of the Intestate Succession Act of 1987 (Act 81 of 1987), but who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his or her own child; and (b) a woman referred to in section 2(2)(b) or (c). The meaning of ‘descendant’ has therefore been extended to include persons who are regarded as dependants in accordance with customary law. An example is a child who has been adopted in terms of customary law.127 Another example is a child whose mother married another man after his or her birth. In other words, her husband is not the child’s biological father.128 Also regarded as a descendant is ‘a woman referred to in section 2(2)(b) or (c)’ of the RCLSA. This refers to ‘a woman, other than the spouse of the deceased, with whom he had entered into a union in accordance with customary law for the purpose of providing children for his spouse’s house. Such a woman must, if she survives him, be regarded as a descendant of the deceased’.129 Where she dies before the deceased, she is not to be regarded as the deceased’s descendant. The woman 295

referred to in this section is generally known as a substitute wife130 or seed raiser.131 This is a woman whom a man has married for the purpose of bearing or raising children for the house of a deceased, divorced or barren wife of a customary marriage. This arrangement has been described as follows: To any of, but particularly to, the more important of his houses, including

his

great

house,

the

family

head

may

attach

a seyantlo or ngwetsi or lefielo wife; if he is rich enough he may attach as many of the latter as he pleases. A seyantlo is married for the express purpose of raising seed in a case where the major wife has died or been divorced without having borne male issue, or leaving young children in need of care, or is barren; the ngwetsi, also called lefielo, is attached as a helper to the major wife. The status of each is the same, namely, neither creates a separate house, and the children of each are legitimate children of the house … If possible a seyantlo or ngwetsi will be a sister of the wife of the house, or a girl related to the family head.132 Section 2(2)(c) of the RCLSA provides that ‘a woman who was married to another woman under customary law for the purpose of providing children for the deceased’s house, that other woman must, if she survives the deceased, be regarded as a descendant of the deceased’. This kind of a relationship has been referred to as a woman-to-woman marriage.133 For the purpose of intestate succession, women mentioned in section 2(2)(b) and (c) of the RCLSA are regarded as descendants in the same manner as children of a customary marriage. The RCLSA defines a ‘spouse’ as including ‘a partner in a customary marriage that is recognised in terms of section 2 of the Recognition of Customary Marriages Act, 1998’. Before the coming into operation of the Recognition of Customary Marriages Act (RCMA),134 a spouse to a customary marriage was not regarded as an intestate heir of his or her spouse. The RCMA ensured that a customary marriage was given recognition for all purposes of South African law.135 As a customary marriage is currently recognised on the same basis as a civil marriage, the widow or widower is recognised as a spouse for purposes of intestate succession. Widows or widowers of customary marriages contracted before 15 November 2000 are also

296

regarded as intestate heirs if their marriages were in existence at that time and were valid.136 9.5.2Modification of the customary law of succession Terminology child’s

calculated by dividing the monetary value of the estate by a number equal to the number

portion

of children of the deceased who have either survived the deceased or died before him or her but who are survived by descendants plus the number of spouses and women with whom the deceased entered into a union in accordance with customary law As the application of the principle of male primogeniture was found to be unconstitutional, it was necessary to modify certain principles of customary law of succession to comply with the Constitution.137 The customary law principles that required modification related to the unequal treatment of children for the purposes of succession as well as the unfavourable position of spouses of customary marriages. This implied that all children of the deceased, irrespective of age, status and gender, as well as all spouses of customary marriages had to be recognised as intestate heirs. Other persons who were accepted by the deceased according to customary law as his or her children also had to be recognised as descendants.138 The most important modification is that the estate or part of the estate of any person who is subject to customary law and who dies intestate is to devolve in accordance with the Intestate Succession Act.139 Where the deceased is survived by a spouse140 as well as a descendant, such spouse is entitled to a child’s portion of the intestate estate or so much ‘as does not exceed in value the amount fixed from time to time by the Cabinet member responsible for the administration of justice in the Gazette, whichever is the greater’.141 A child’s portion is defined in the section 3(3) of the RCLSA as: … in relation to the intestate estate of the deceased, shall be calculated by dividing the monetary value of the estate by a number equal to the number of children of the deceased who have either survived the deceased or have died before the deceased but are survived by their descendants, plus the number of spouses and women referred to in paragraphs (a), (b) and (c) of section 2(2) of the 297

Reform of Customary Law of Succession and Regulation of Related Matters Act, 2008. Besides the definition of the term ‘descendant’ as discussed in 9.5.1, that is, that a descendant includes a person ‘who was accepted by the deceased person in accordance with customary law as his or her own child’ and ‘a woman referred to in section 2(2)(b) or (c)’ of the RCLSA, the word ‘child’ or ‘children’ is given an extensive meaning to include children of certain unions known only in customary law. These unions relate to seed raising and women-to-women marriages.142 Children born as a result of these unions are regarded as intestate heirs and they also have to be considered in the determination of a child’s portion in terms of section 3(3) of the RCLSA. Section 4(2)(a) and (b) of the RCLSA defines the word ‘child’ or ‘children’ for the purpose of succession, either testate or intestate, to the estate of a woman in relation to property allotted or accruing to her house under customary law by virtue of her customary marriage to include any child: (a) born of a union between the husband of such woman and another woman entered into in accordance with customary law for the purpose of providing children for the first-mentioned woman; or (b) born to a woman to whom the first-mentioned woman was married under customary law for the purpose of providing children for the firstmentioned woman. The definition in section 4(2)(a) above covers children of a union between a husband and a woman which was entered into for the specific purpose of providing children to a married woman who may have been unable to bear children of her own or for the purpose of increasing the number of children of the house of the woman. These are the children of a woman referred to in section 2(2)(b) of the RCLSA. These children are, for the purposes of succession, regarded as the children of the wife in whose house their mother was placed. Their mother is also regarded as a descendant if she survives the male spouse of the customary marriage with whom she had entered into a union to provide children for his house. The children mentioned in section 4(2)(b) above refer to the children born of the relationship envisaged by section 2(2)(c) of the RCLSA. These are children of ‘a 298

woman who was married to another woman under customary law for the purpose of providing children for the deceased’s house’.143 Their mother is similarly regarded as a descendant for the purposes of succession if she survives her spouse, that is, the woman to whom she was married under customary law.144 In the determination of a child’s portion, therefore, the number of all the children of the deceased, irrespective of their age, status and gender, as well as the spouse or spouses of the deceased must be considered. In the application of the Intestate Succession Act, where the deceased is survived by a spouse as well as a descendant or descendants, such a spouse inherits a child’s portion or so much as does not exceed in value the amount fixed from time to time by the Cabinet member responsible for the administration of justice in the Gazette, whichever is the greater.145 Currently, the amount fixed for this purpose is R125 000,00. A woman who enters into a union in accordance with customary law for the purpose of providing children for the house of another woman (wife) is also regarded as a spouse if she survives the deceased husband. A woman who is married to another woman under customary law for the purpose of providing children for the deceased’s house is also regarded as a descendant if she survives that deceased woman.146 PAUSE FOR REFLECTION Inclusion of customary law concepts: meaning of ‘spouse’ One of the aims of section 2 of the RCLSA was to ensure that all persons who may be classified as spouses in terms of customary law were declared intestate heirs. These are: •a wife of a customary marriage •a woman who was brought into the house for the purpose of providing children for that house if she survives the deceased husband •a woman who was a partner in a woman-to-woman marriage contracted under customary law if she survives her woman partner. She is regarded as a spouse in respect of the intestate estate of the woman who married her.

299

However, it is not clear whether the women mentioned in the last two points are both ‘spouses’ and ‘descendants’ for purposes of succession because section 1(b) defines them as ‘descendants’ while section 3(1) refers to them as ‘spouses’. Presumably, this was an oversight on the part of the legislature. However, there is a need for clarification of the position as the rules of succession applicable to them will differ depending on whether they are regarded as ‘descendants’ or ‘spouses’. If the women in the last two points are considered to be spouses, then all of them are entitled to a child’s portion or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Cabinet member responsible for the administration of justice, whichever is the greater.147 When the intestate estate is not sufficient to provide each surviving spouse and women referred to in section 2(2)(a)–(c) of the RCLSA with the amount fixed from time to time, the estate is divided equally among them.148 PAUSE FOR REFLECTION Implementation challenges From the definition of the terms ‘spouse’, ‘child’ and ‘child’s portion’, it is evident that the distribution of the intestate estate of a husband married to more than one wife may prove to be a daunting task which deals with the identification of various intestate heirs who are recognised in terms of customary law. This may entail the following: •the identification of all wives of the deceased •the determination of whether all wives (women) were legally married in terms of customary law, that is, whether the requirements of the RCMA were complied with, a task that may be made more arduous due to the possibility that many marriages are not registered in terms of the RCMA •the determination of the status of the children of the deceased, in particular the children who were accepted by the deceased as his or her own during his or her lifetime in terms of customary law •the determination of whether the acceptance of the children mentioned in the point above complied with the applicable customary law rules.

300

•the identification of all women involved in unions mentioned in section 2(2)(b) and (c) of the RCLSA and whether such unions comply with the RCMA •the determination of what constitutes ‘house property’ and ‘family property’ and many other related issues. It is envisaged that in such identification or determination, the provisions of section 5 of the RCLSA will become useful. This section is discussed under paragraph 9.5.7 below. 9.5.3 Property allotted or accruing to a woman in a customary marriage Section 4 of the RCLSA regulates the legal position of the property belonging to a deceased woman married by customary rites. The RCLSA provides that the property allotted or accruing to such a woman or her house by virtue of her marriage may be disposed of in terms of the will of such a woman.149 Any reference in the will of the woman to a child or children and any reference in the Intestate Succession Act to a descendant in relation to the woman have to be construed as including any child: (a) born of a union between the husband of such a woman and another woman entered into in accordance with customary law for the purpose of providing children for the first-mentioned woman; or (b) born to a woman to whom the first-mentioned woman was married under customary law for the purpose of providing children for the firstmentioned woman’s house.150 9.5.4 Freedom of testation The RCLSA ensures freedom of testation by providing that women married in terms of customary law and all persons subject to customary law are free to dispose of their assets or estates in terms of a will.151 9.5.5 Property rights in relation to certain customary marriages Terminology discarded

a woman whose subsisting customary marriage was dissolved by a civil marriage of

spouse

her husband and another woman contracted on or after 1 January 1929 but before 2 301

December 1988 We mentioned above that before the date of commencement of the Marriage and Matrimonial Property Law Amendment Act, that is, 2 December 1988, it was possible for a husband of a customary marriage to contract a valid civil marriage with another woman during the subsistence of his customary marriage. This had the effect of dissolving the existing customary marriage whose wife was regarded as a ‘discarded spouse’. This position was changed on 2 December 1988 by the Marriage and Matrimonial Property Law Amendment Act which prohibited a husband of a customary marriage from contracting a civil marriage with another woman during the subsistence of his customary marriage. The RCLSA protects the proprietary rights of the spouse of such a dissolved customary marriage and her children in providing that ‘the widow of the marriage under the Marriage Act, 1961 … and the issue thereof have no greater rights in respect of the estate of the deceased spouse than she or they would have had if the marriage under the Marriage Act, 1961 had been a customary marriage’.152The ‘discarded spouse’ and her children will therefore have the right to inherit whatever property was allotted to the house that was created by the customary marriage between her and the deceased husband. This will also include property that was acquired by the spouse and her husband before their marriage was dissolved. The proprietary rights of the ‘discarded spouse’ and her children are only protected if the civil marriage, that is, the marriage contracted in terms of the Marriage Act153 was entered into: (a) on or after 1 January 1929 (the date of commencement of sections 22 and 23 of the Black Administration Act, 1927 (Act 38 of 1927), but before 2 December 1988 (the date of commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988 (Act 3 of 1988); and (b) during the subsistence of any customary marriage between the husband and any woman other than the spouse of the marriage under the Marriage Act, 1961 (Act 25 of 1961).154 All civil marriages contracted after 2 December 1988 during the existence of a customary marriage with another woman are regarded as null and void and do not

302

have any effect on the validity of the existing marriage by customary rites. This is also provided for by section 10 of the RCMA.155 9.5.6Disposal of property held by a traditional leader The devolution of property held by a traditional leader in his or her official capacity on behalf of a traditional community as envisaged by the Traditional Leadership and Governance Framework Act (TLGFA)156 is not regulated in terms of the RCLSA. The RCLSA specifically excludes this property from its sphere of operation.157 9.5.7Dispute or uncertainty in consequence of the nature of customary law Section 5(1) of the RCLSA authorises the Master of the High Court having jurisdiction under the Administration of Estates Act158 to make a just and equitable determination in order to resolve a dispute or uncertainty which may have arisen in connection with:

(a) the status of or any claim by any person in relation to a person whose estate or part thereof must, in terms of this Act, devolve in terms of the Intestate Succession Act; (b) the nature or content of any asset in such estate; or (c) the devolution of family property involved in such estate.159 Section 5(2) of the RCLSA provides that before such a determination is made, the Master may direct that an enquiry be held by a magistrate or traditional leader in the area in which the Master has jurisdiction. Where an enquiry is held, the magistrate or traditional leader has to make a recommendation to the Master who directed that the enquiry be held.160 Due regard must be had to the best interests of the deceased’s family members and the equality of the spouses in customary and civil marriages by the Master in making a determination or the magistrate or traditional leader in making a recommendation to the Master.161 The Act further authorises the Cabinet member responsible for the administration of justice to make regulations regarding any aspect of an enquiry envisaged by section 5 of the RCLSA.162 PAUSE FOR REFLECTION Securing livelihoods: the need to amend the RCLSA 303

The approach taken by the RCLSA to change the customary law of succession is substantially similar to that adopted by the Constitutional Court majority judgment in Bhe in that it also applies the Intestate Succession Act to estates previously governed by customary law. While the RCLSA is an improvement as it makes provision for family property, it only does so in the context of ‘any dispute or uncertainty in consequence of nature of customary law’.163 This half-hearted approach overlooks or ignores the institution of family property and its continued importance to the livelihoods of millions of South Africa’s poor rural families. Recent empirical research has confirmed the institution of family property as part of living customary law.164 These studies confirm Ngcobo J’s concerns about the solution adopted to reform customary law in Bhe by applying the Intestate Succession Act. He considered this approach to be inappropriate because it would result in the unbundling of family property to meet the demands of distribution to heirs under the Intestate Succession Act. In this respect he stated: The application [of the Intestate Succession Act] may lead to an injustice in certain circumstances. Take the case where both parents die simultaneously leaving a number of children, including minor children and other persons who were dependent upon the deceased for maintenance and support. Let us assume that the major asset in the estate is an immovable property which is a family home. Each child will be entitled to a share in the estate. Let us assume that one or two children insist on getting their share and they cannot be bought out. This will require the family property to be sold and the proceeds to be divided equally amongst the children. Once the house is sold, there will be no shelter for the minor children and other dependants of the deceased. There is no duty on any of the other heirs to provide such shelter ...165 In a nutshell, the position under living customary law is that the person the common law refers to as heir is, in fact, only a steward responsible for the administration of communal property to which a much larger group than the nuclear family of the deceased, the extended family, has a claim.166 What all this suggests is that there is a need to consider an amendment to the RCLSA to make provision for family

304

property in the scheme of devolution of estates set out by the Intestate Succession Act, not only when they are disputes. The underpinning tenet of this provision should be the incorporation of living customary law’s flexibility in dealing with ‘legal’ matters. As Mnisi has observed, ‘a way of depicting community succession that is both specific and flexible, and most importantly, is not alien to the community and thus lends itself to community ownership and control and autonomy is needed.’167 The chapter has also highlighted the need to change the RCLSA to include the full regulation of family property. THIS CHAPTER IN ESSENCE •Fundamental changes to the customary law of succession were brought about by the Constitutional Court in the case of Bhe which held that the rule of male primogeniture was unconstitutional as it infringed on the rights to equality and dignity and children’s rights. •The judgment in Bhe was followed by the enactment of the RCLSA which came into operation on 20 September 2010. •The rule of male primogeniture, which over many years had been a feature of official customary law of succession, was dealt a deathblow and replaced with rules adopted from the Intestate Succession Act. •The RCLSA amends the Intestate Succession Act, the Administration of Estates Act and the Maintenance of Surviving Spouses Act to ensure that the rights of persons who were rendered vulnerable by the application of the rule of male primogeniture in the customary law of succession are protected. This means that all descendants of a deceased person as defined in the RCLSA, irrespective of their age and gender, as well as the wife or wives of a valid customary marriage or marriages as defined in the RCMA are recognised as intestate heirs. •The result is that the present law of succession in South Africa is a hybrid system which depicts features of both the common law and customary law.

1Act 7 of 1953. 2Act 11 of 2009 which came into force on 20 September 2010.

305

3(CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 43. 4Claassens, A (2013) Recent changes in women’s land rights and contested customary law in South Africa Journal of Agrarian Change13(1):71–92 at 71. 5See, for example, s 23 of the Native Administration Act 38 of 1927, as originally promulgated. 6See, for example, Kingwill, R ‘Custom-building freehold title: The impact of family values on historical ownership in the Eastern Cape’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act184–207 at 194. 7Act 38 of 1927. 8Bhe paras 14–17. 9Bhe para 66. 10(CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008). 11Bekker, JC and Rautenbach, C ‘Nature and sphere of application of African customary law in South Africa’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism in South Africa 3rd ed 15–43 at 17. 12Constitutional Principle XIII of Schedule 4 of the interim Constitution. See also ss 39 and 211(3) of the Constitution. 13Act 81 of 1987. 14S 23 of the BAA. 15Reg 2 of GN R200 of 1987. 16S 79(1) and (2) of the KwaZulu Act on the Code of Zulu Law 16 of 1985. 17S 79(1) and (2) of the Natal Code of Zulu Law Proc R151 of 1987. 18Act 21 of 1978. 19S 38 of the Transkei Marriage Act. 20Act 13 of 1990 which provided for rules similar to the current Intestate Succession Act. 21Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed 263–74. 22Coertze, RD (1987) Bafokeng Family Law and Law of Succession 240–41. 23Bekker (1989) 70. 24Rautenbach, C and Du Plessis, W ‘Customary law of succession and inheritance’ in Rautenbach et al (2010) 121; Bekker (1989) 273. 306

25Bekker (1989) 273; Rautenbach and Du Plessis (2010) 121. 26Schapera, I (1977) A Handbook of Tswana Law and Custom 2nd ed 230–31; Coertze (1987) 254. 27Comaroff, JL (1978) Rules and rulers: Political processes in a Tswana chiefdom Man 13:1–20 at 2. 28Costa, A (1997) Custom and common sense: The Zulu royal succession dispute of the 1940’s African Studies 56(1):19–42 at 31. At 32, Costa concludes that his ‘survey of royal succession, marked as it is by regicide, gives surprisingly little weight to the camouflage of rules; only with the last two monarchs did the will of their predecessor, however manufactured, emerge as the legitimating factor. Political support was the acid test.’ 29Hammond-Tooke, WD (1975) Command or Consensus: The Development of Transkeian Local Government 104. 30Delius, P ‘Contested terrain: Land rights and chiefly power in historical perspective’ in Claassens and Cousins (2008) University of Cape Town Press 216; Delius, P (1983) The Land Belongs to Us: The Pedi Polity, the Boers and the British in the Nineteenth-Century Transvaal. 31Beinart, W (1982) The Political Economy of Pondoland 1860 to 1930 13. 32Peires, JB (1981) The House of Phalo: A History of the Xhosa People in the Days of Their Independence 29–30. 33Delius (2008) 216. 34(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) paras 56–7. 35DTA, File 13-918, ‘Succession to Solomon: Remarks by Ethnologist’, 28 May 1945, cited in Costa (1997) 33. Emphasis added. 36Bennett, TW (2004) Customary Law in South Africa 49. 37See Kingwill (2008) 184 for the subtle range of customary values that are taken into account and balanced in determining the respective rights of different family members. 38See Schapera (1977) 230–38; Coertze (1987) 247–54. 39Watney, MM (1993) Beginsels van die Opvolgingsreg van die Bapedi van Sekwati en Noord-Sothosprekendes in Vosloorus LLD thesis RAU 60. 40Schapera (1977) 230. 41Schapera (1977) 237. 307

42Schapera (1977) 237. 43Coertze (1987) 268; Schapera (1977) 237. 44Schapera (1977) xi. 45In this way legal practitioners and judges would be giving effect to the Constitutional Court’s declaration in Alexkor para 51 that ‘indigenous law feeds into, nourishes, fuses with and becomes part of the amalgam of South African law’. 46Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the context

of

living

customary

law South

African

Journal

on

Human

Rights 25(3):491–516 at 499–502. 47Claassens and Mnisi (2009) 501. 48Bekker (1989) 216 and 231. 49Bekker (1989) 77. 50Schapera (1977) 216 and 231. Tshwaiso, go tshwaisa or tshwaelo means to mark livestock or any kind of property with a specific mark indicating that it will be acquired by a particular person when the giver or marker dies. 51Schapera (1977) 230. 52See Bekker (1989) 273–79; Rautenbach and du Plessis (2010) 120–24. 53See Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA); Maithufi, IP (1998) The constitutionality of the rule of primogeniture in customary law of intestate succession: Mthembu v Letsela 1997 (2) SA 936 (T) Tydskrif vir Hedendaagse Romeins-Hollandse Reg 61(1):142–7 at 142. 54See Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA). 55Repealed by the Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005. 56See Maithufi, IP (1994) Marriage and succession in South Africa, Bophuthatswana and Transkei: A legal potpourri Journal of South African Law 10(2):262–77 at 263. 57S 22(6) of the BAA. 58S 22(6) of the BAA. 59S 22(6) of the BAA. See also 9.3.2 below. 60See the Regulations for the Administration and Distribution of the Estates of Deceased Blacks GN R200 of 1987. 308

61See also Chapter 10 of the KwaZulu-Natal Codes. 62See Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA). 63S 23(7) of the BAA. 64Reg 3(1). 65(CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000). 66S 9 of the Constitution. 67S 22(7) of the BAA. 68Mayekiso v Mayekiso 1944 NAC (C & O) 81; Tonjeni v Tonjeni 1947 4 NAC (C & O) 8. 69Nkambula v Linda 1951(1) SA 377 (A); Malaza v Mndaweni 1975 AC (C) 45. 70S 22(7) of the BAA. See also Bennett, TW and Peart, NS (1983) The dualism of marriage laws in Africa Acta Juridica 145–70. 71Act 3 of 1988. See also s 7(2) of the RCLSA. 72GN R200 of 1987 promulgated in terms of s 23(10) of the BAA. 73Regs 2(d) and (e). 74Regs 2(b) and (c). 75Reg 2(d). 76See s 22(6) of the BAA. 77S 31 of the BAA. 78Reg 2(d). 79Proviso to reg 2(d). 80Zondi v President of the Republic of South Africa 2000 (2) SA 49 (N). 81S 79 of both Codes. 82S 79 of both Codes. See also s 1 of both Codes for the definition of ‘house’ and ‘family property’. 83S 79(3) of both Codes. 84Act 23 of 1982. 85See also Maithufi, IP (1992) The Bophuthatswana Intestate Succession Law Restatement Act, 1990 De Jure 25(2): 457–62 at 457. 86See 9.3.1 above. 87S 23(2) of the BAA.

309

88Elton

Mills,

ME

and

Wilson,

M

‘Land

tenure’

in

Mountain,

ED

(1952) Keiskammahoek Rural Survey Vol 4. 89Elton Mills and Wilson (1952) 133. 90Elton Mills and Wilson (1952) 133. 91Elton Mills and Wilson (1952) 133. 92Elton Mills and Wilson (1952) 133. Schapera (1977) 202 and 205–06 also describes fields as belonging to women. At 206 Schapera states that ‘[w]omen are given preference in the inheritance of arable lands, and they sometimes also receive land as a marriage settlement’. 93Elton Mills and Wilson (1952) 133. 94Simons, HJ (1968) African Women: Their Legal Status in South Africa 265. 95Simons (1968) 264–66. 96Simons (1968) 266. 97Weinberg, T (2013) Contesting customary law in the Eastern Cape: Gender, place and land tenure Acta Juridica 100. 98See the interim Constitution of 1993 and the final Constitution of 1996. 99S 211(3) of the Constitution. 100S 39(2) of the Constitution. 101Ch 2 of the Constitution. 102See, inter alia, Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA); South African Law Reform Commission (2004) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on the Customary Law of Succession4–7. 1031997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA). 104SALRC (1988) Report on Customary Marriages. 105Bhe para 100. 106SALRC (2004) Report on the Customary Law of Succession 1. 107See s 2 the RCMA; SALRC (2004) Report on the Customary Law of Succession 70–71. 108Act 27 of 1990. 109Bhe v Magistrate, Khayelitsha 2004 (2) SA 544 (C); 2004 (1) BCLR 27 (C). 110S 23 and regulations framed under s 23(10) of the BAA. 111S 1(4) of the Intestate Succession Act. 112Unreported Case No 7292/01 of 19 November 2003 North Gauteng High Court. 310

113S 23 of the BAA and reg 2. 114S 9 of the Constitution. 115S 10 of the Constitution. 116S 28 of the Constitution. 117Bhe para 129. 118SALRC (2004) Report on the Customary Law of Succession. 119This seems to be acknowledged by the Court at para 109 of Bhe. 120Bennett (2004) 49 fn 120 states that this approach ‘implies that the common law is always available, as one of the foundations of the South African legal system, to fill gaps in customary law’. 121Himonga, C (2005) The advancement of African women’s rights in the first decade of democracy in South Africa: The reform of the customary law of marriage and succession Acta Juridica 82–107. 122Himonga (2005) 98–105. 123Bennett (2004) 49. 124Alexkor para 51. 125Oomen, B (2005) Chiefs in South Africa: Law, Power and Culture in the PostApartheid Era 210. 126Ch 2 of the Constitution. 127Metiso v Padongelukfonds 2001 (3) SA 1142 (T); Kewana v Santam Insurance Co Ltd 1993 (4) SA 771 (TkA); Maneli v Maneli (14/3/2-234/05) [2010] ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19 April 2010). See also Maithufi, IP (2001) Metiso v Road Accident Fund case no 4588/2000 (T) Adoption according to customary law: Kewana v Santam Insurance Co Ltd 1993 (4) SA 771 (Tk) followed De Jure 34(2):390–7 at 391. 128Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T). 129S 2(2)(b) of the RCLSA. 130Rautenbach and du Plessis (2010) 136. 131Bekker (1989) 279–83. 132Bekker (1989) 281–82. 133See Oomen, B (2000) Traditional woman-to-woman marriages and the Recognition of Customary Marriages Act Tydskrif vir Hedendaagse RomeinsHollandse Reg 63(2):274–82 at 247. This form of marriage must be

311

distinguished from a same-sex marriage as provided for by the Civil Union Act 17 of 2006. 134Act 120 of 1998 which came into operation on 15 November 2000. 135See Maithufi, IP (2000) The Recognition of Customary Marriages Act of 1998: A commentary Tydskrif vir Hedendaagse Romeins-Hollandse Reg 63(3):509– 16 at 509. 136S 2 of the RCMA. 137Ch 2 of the Constitution. 138See the definition of ‘descendant’ and ‘spouse’ and s 2(2)(b) and (c) of the RCLSA. 139S 2(1) of the RCLSA. 140Spouse includes a spouse in a customary marriage. 141S 2(2)(a) of the RCLSA. 142See 9.5.1 above. 143S 2(2)(c) of the RCLSA. 144See 9.5.1 above. Note that this is not a same-sex marriage as intended by s 1 of the Civil Union Act. 145S 2(2)(a) of the RCLSA. See also 9.5.2 above. 146S 2(2)(b) of the RCLSA. See also 9.5.2 above. 147S 2(2)(c) of the RCLSA. See also 9.5.2 above. 148S 3(2) of the RCLSA. 149S 4(1) of the RCLSA. 150S 4(2) of the RCLSA. 151S 4(3) of the RCLSA. 152S 7(2) of the RCLSA. 153Act 25 of 1961. 154S 7(1) of the RCLSA. Note that this is a reenactment of the repealed s 27(7) of the BAA. 155See, however, Netshituka v Netshituka 2011 (5) SA 453 (SCA). 156Act 41 of 2003. 157S 6 of the RCLSA. 158Act 66 of 1965. 159S 5(1) of the RCLSA. 160S 5(3) of the RCLSA. 312

161S 5(4) of the RCLSA. 162S 5(5) of the RCLSA. 163See the heading of s 5 of the RCLSA. 164See Mnisi, S (2010) The Interface Between Living Customary Law(s) of Succession and South African State Law DPhil thesis University of Oxford, especially conclusion at 404–406. 165Bhe para 231. 166For a detailed discussion, see Ngcobo’s judgment in Bhe. 167Mnisi (2010) 405.

Chapter 10 Contractual obligations in customary law 10.1Introduction 10.2Capacity to contract 10.3Customary law contracts 10.3.1Lobolo 10.3.2Ukwethula 10.3.3Ukufakwa 10.3.4Ukwenzelela 313

10.3.5Isondlo 10.3.6Mafisa, sisa or nqoma This chapter in essence 10.1 Introduction Elias, in his book, The Nature of African Customary Law,1 concerns himself with the question whether or not the notion of civil liability under contracts exists in customary law. He confronts the views of early writers, especially Sir Henry Maine,2 who argued that relations between individuals in ‘primitive society’ were based on status and not on contract. According to Maine, the concept of binding obligations outside status or preexisting relationships did not exist in ‘primitive law’. Elias, using examples drawn largely from marriage, communal labour practices and trading relationships, refutes this approach, which he refers to as an ‘imposing farce’.3According to Elias, Maine: spoke of the absence of contracts between individuals as due to the regulation of personal relations by the status of the individuals, as well as by the administration and inheritance of property within the family according to customary law. He believed that these adequately account

for

the

lack

‘primitive’ communities.

of

detailed

rules

in

so-called

4

We will show from specific examples discussed in this chapter that contractual relationships indeed exist under customary law.5Currently, however, customary law contracts have to be recognised subject to what the Constitution provides and, in particular, the Bill of Rights.6 This is because the application of customary law is subject to the Constitution.7 PAUSE FOR REFLECTION The nature of an obligation in customary law of contract In customary law of contract, an obligation is identified in the context of a group or family. One of the most important examples of a contract in customary law is lobolo, which relates to a marriage in terms of customary law, and provides an illustration that customary law contracts are concerned with a family or group. Other forms of 314

contracts which are closely related to lobolo are the ukwethula, ukwenzelela and ukufakwa. The contracts of isondlo (dikotlo) and mafisa, sisa or nqoma also clearly illustrate the role played by the family or group in assuming contractual obligations in customary law.8 10.2Capacity to contract Customary law recognised that the only persons with full legal capacity were family heads.9 Thus, only family heads were competent to enter into contracts in customary law. They were authorised to conclude contracts on behalf of their families as well as on behalf of individual members of their families. An individual was regarded as a family head once he had entered into a marriage and had established his own household.10 However, only males could become family heads. PAUSE FOR REFLECTION Women as family heads: the constitutional imperative We submit that as a result of the principle of equality enshrined in the Constitution, all persons, irrespective of gender, may now become family heads.11 It is therefore possible that any person, including a woman, whether married or unmarried, may be regarded as a family head for the purposes of entering into customary law contracts.12 The age of a person may, however, still affect his or her contractual capacity in contracts originating in customary law. All persons acquire majority at the age of 18 years.13 Therefore, all persons who are 18 years and older are entitled to enter into any contract in terms of customary law.14 Furthermore, section 6 of the Recognition of Customary Marriages Act (RCMA)15 provides that: A wife in a customary marriage has, on the basis of equality with her husband, … full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.

315

Considering what section 6 of the RCMA says, we may conclude that a married woman may enter into any customary law contract provided that she is 18 years or older.16 The reason for holding that only family heads had the capacity to enter into customary law contracts was that they were liable for contracts entered into with their consent by their family members and for the delicts they committed.17 This was due to the fact that family heads were expected to exercise control not only over members of their families, but also over whatever was acquired by the family members in the form of family or house property.18 A family member could therefore not be sued alone in customary law, but his or her family head was also sued as a co-defendant.19 Typical customary law contracts that we discuss in this chapter are the lobolo contract, contracts that arise as a result of the provision by another person of goods in the case of ceremonies held for women, such as ukufakwa, and contracts

that

arise

as

a

result

of

the

provision

of lobolo,

namely ukwethula and ukwenzelela. Isondlo is also a typical customary law contract which may arise from an express agreement between the parties or from the circumstances of the case. Another form of contract, which is known only in customary law, is mafisa, sisa or nqoma. PAUSE FOR REFLECTION The impact or effect of the Constitution on the customary law of contract The Constitution as the supreme law of the country applies to all law or conduct and any law (including customary law) or conduct which is inconsistent with it is invalid. Unfair discrimination based, among others, on race, gender, sex, culture, language and birth is prohibited. Although customary law is recognised as a legal system, its application is subject to the Constitution and any legislation that specifically deals with customary law. Furthermore, customary law has to be developed in accordance with the spirit, purport and objects of the Bill of Rights. The rules applicable to the customary law of contract and to the specific contracts dealt with in this chapter may therefore be changed or adapted by courts at any time in their interpretation and development of any rule of customary law relating to contract.20 316

10.3 Customary law contracts 10.3.1 Lobolo Terminology ‘… property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo,

lobolo

thaka, ikhazi, magadi, emabheka or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage’21 ukutheleka

a procedure that entails the wife’s father or his heir taking her and her children away from her husband to enforce payment of outstanding lobolo or until the lobolo is fully paid

phuthuma

a procedure that entails the husband fetching his wife and children from her father or heir where the father or his heir has resorted to ukutheleka

The contract of lobolo is entered into at the time when a marriage is negotiated in accordance with customary law. It is one of the most important features that distinguishes a valid marriage from other forms of relationships in customary law. The lobolo contract is concluded in respect of both customary and, in practice, civil marriages in South Africa.22 Although this is the position, the RCMA does not expressly provide that this contract is a requirement for a valid customary marriage.23 From the definition of lobolo, it is evident that this contract is an agreement between the prospective husband or his family head and the family head of the prospective wife to give property, in cash or kind, to the head of the prospective wife’s family in consideration of a customary marriage with his daughter or the prospective wife. The parties to the lobolo contract are therefore the prospective husband or his family head and the family head of the prospective wife.24 The obligation to give lobolo rests with the prospective husband or his family head. In the case of a man’s first marriage, it is customary that his family head takes part in the lobolo negotiations, that is, the negotiations preceding the marriage and the provision of lobolo.25 Where the prospective husband is a major, that is, he is already a family head and self-sufficient, he is normally involved in the lobolo and marriage negotiations. The right to receive lobolo rests with the prospective wife’s family head. 317

By receiving the lobolo, the prospective wife’s family head signifies that he agrees that his daughter may enter into the marriage with her prospective husband. Although this contract is between the prospective husband or his family head and the family head of the prospective wife, they are not themselves involved in the actual negotiations but are represented in such negotiations. The rule among baTswana is that the prospective husband’s family is represented by his paternal uncle and his wife, maternal uncle and his wife and other trusted family members. The paternal and maternal uncles and their wives are always as a rule involved in the lobolo and marriage negotiations. The family of the prospective wife is represented in the same manner as that of the prospective husband.26 Before the enactment of the Black Administration Act (BAA), 27 the lobolo contract was equated with a contract of sale or exchange. It is, however, clear that this was an erroneous assumption. This contract is aimed at distinguishing a valid marriage from an informal relationship as black South Africans do not regard a marriage, whether by civil or customary rites, as valid without the provision of lobolo.28 The effect of the lobolo contract is therefore to legalise the marriage. This has been described as follows: Ikhazi has been correctly described as the rock on which the Africans’ marriage is founded, and thus an essential feature of the customary marriage. Without transfer thereof the existence of a marriage is under a big question mark even if the parties are living together and beget children. It goes without saying, therefore, that in our law, as in other legal systems, marriage is a matter of family law. But marriage is also a matter of the law of obligations. There must be agreement between the woman’s guardian and her intending husband. The woman’s guardian renders performance by transferring the bride to the man. The husband makes a counter-performance by delivering ikhazi.29 In the past lobolo was given in cattle. It is currently provided in the form of money. The amount of lobolo to be given varies from community to community. This is described by Bekker as follows:

318

The amount of lobolo payable varies with different tribes. In some it is fixed by custom, in others by agreement; in still others, no definite amount is normally fixed, for in theory lobolo is without limit.30 Where the lobolo is not fully furnished, the outstanding amount may be claimed through court action in the same manner as in the case of breach of any contract.31 In

certain

communities,

however,

a

procedure

known

as ukutheleka may be used. This procedure entails the wife’s father or his heir taking her and her children away from her husband to enforce payment of the outstanding lobolo or until the lobolo is fully paid.32 Once the father or his heir has resorted to ukutheleka, it is expected of the husband to fetch (phuthuma) his wife and children from her father or heir.33 It would appear that ukutheleka cannot be used to enforce the settlement of lobolo in respect of a civil marriage34 and where any right of or to a child is in dispute. The principle of the best interests of the child as envisaged by the Constitution is applicable, irrespective of the type of marriage.35 On divorce, the husband may sue for the return of the lobolo or part thereof. The person who is sued for this return is the loboloholder, that is, the wife’s father or his heir.36 A return of at least part of the lobolo was previously regarded as an indication of the extrajudicial dissolution of a marriage in customary law.37 Note also that section 1 the Law of Evidence Amendment Act (LEAA) 38 provides that ‘… it shall not be lawful for any court to declare the custom of lobolo or bogadi or other similar custom is repugnant to …’ the principles of public policy or natural justice. PAUSE FOR REFLECTION The nature of the lobolo contract The lobolo contract, an important feature of customary family law, was initially regarded as being contrary to public policy or natural justice as it was equated with an agreement of sale. Although not expressly provided as a requirement for a valid customary marriage, the RCMA provides that a customary marriage must be negotiated and entered into or celebrated in accordance with customary law.39

319

10.3.2 Ukwethula Terminology ukwethulaor ethula

‘… the custom whereby an obligation is imposed upon a junior house to refund lobolo which may have been taken from a senior house to establish such junior house. The lobolo of the eldest daughter of such junior house is usually indicated as the source from which the liability is to be met but the custom is not recognised as extending to the handing over of the ‘ethula’ girl herself as a pledge of payment’40

Ukwethula or ethula is a contract that is associated with the provision of lobolo. It relates to an interhouse debt where property is taken from one house to establish another house in the same household or to benefit such a house. When a customary marriage is contracted, a unit known as a house is created. The husband may allot property to this house in accordance with customary law. Property acquired by the wife and children of the house constitutes house property that automatically accrues to the house to which they belong.41 This property must be used exclusively for the benefit of the house to which it belongs. If it is used for the benefit of another house, the latter is obliged to refund it. Therefore, where the husband uses house property to provide lobolo for himself to obtain another wife, the house established by the latter marriage becomes indebted to the former. According to Olivier, ukwethula may also arise under the following circumstances: (ii) If a family head lends cattle of one house to another in order to provide lobolo for the marriage of a son from the last-mentioned house. (iii) When the lobolo that would be acquired for a girl in a certain house is allocated to another house in order to enable a son in that house to lobolo a wife for himself. In this case, the debt exists only when the lobolo is acquired for the girl and is used as lobolo for the wife of the son concerned. (iv) When the family head takes cattle from one house in order to pay a debt of another house, in circumstances where the last-mentioned house does not have cattle at its disposal for that purpose. This debt is

320

paid with the lobolo obtained for a sister (from that house) of the son in whose favour the loan was arranged.42 The reason for the creation of an interhouse debt indicated in the circumstances mentioned in (ii)–(iv) above is to enable the family head to assist his sons by providing lobolo when they marry. When the family head takes property from one house to assist a son in another house with his lobolo obligations, the house to which the son belongs becomes indebted to the house that provided the lobolo.43 The ukwethula debt is normally settled from the lobolo to be received in due course for the daughters of the debtor house. ‘The ‘theory is that the debt should be settled from the lobolo of the eldest daughter of the house, but in practice, since she may never marry, or die before marriage, settlement of the debt is claimable from the lobolo of any daughter, usually that of the first married’.44 10.3.3 Ukufakwa Terminology ukufakwa literally meaning to be ‘put into the lobolo’,45 ukufakwa is a custom among the Eastern Cape Nguni in terms of which a young woman’s father requests a relative to contribute towards expenses to be incurred in respect of various traditional ceremonies normally held for women. The debt is repaid from the lobolo to be received for the marriage of the young woman concerned intonjane

a ceremony or feast celebrating a rite of passage observed by some of the Eastern Cape Nguni to mark a young girl reaching marriageable age

Koyana describes the ukufakwa contract as follows: Thandwefika becomes indebted to Mzimazi for a goat or a sum of R40 lent to him to cater at the intonjane ceremony of his daughter Ngqongqo. Thandwefika says: ‘I shall refund you with a beast out of ikhazi of my daughter Ngqongqo.’ This is the ukufakwa custom. Mzimazi has now been ‘put into’ the ikhazi of Ngqongqo. He has been made a participant, an entitled party therein. When the girl gets married a beast out of her ikhazi must go to Mzimazi.46

321

Besides the lobolo to be received for the young woman, the ukufakwa debt may be refunded from the damages received for her seduction.47 10.3.4 Ukwenzelela Terminology ukwenzelela

among the Eastern Cape Nguni, an agreement in terms of which a man or his family head or father requests his relatives or friends to contribute towards his or his son’s lobolo requirements or other expenses relating to his or his son’s marriage ceremony.48 The contributor is to be refunded from the lobolo received for the first daughter of the recipient

Contributions in terms of ukwenzelela are regarded as a donation unless an agreement was reached that they are a loan. At the time when these contributions are made ‘a specific agreement can be concluded stipulating how and when repayment will be made’.49 The person who has contributed is to be refunded from the lobolo to be received for the first daughter of the recipient. If the recipient dies without a daughter, the liability is not thereby extinguished as his heir becomes liable for the refund.50 If the recipient cannot pay the debt out of the lobolo for his daughter, the debt may be refunded out of his other assets. 10.3.5 Isondlo Terminology isondlo /

a form of payment or remuneration by a natural guardian of a child to a person who

dikotlo

takes care of that child Isondlo is derived from ukondla in the Nguni languages, to maintain,51 and is known as dikotlo among baTswana.52 It is a form of remuneration for maintaining or taking care of a child of another person. Isondlo is therefore a debt that arises when a person other than a child’s natural guardian raises the child. When its natural guardian wishes to claim his or her parental responsibilities or any right that may accrue as a result of the child, he or she first has to settle this debt. Koyana describes this as follows: 322

It happens quite frequently that a woman goes away from her married home with her children … These children are all brought up without complaining but sooner or later the girls will get married and the maintainer is assured of his beast out of the ikhazi of each girl, as isondlo, while the lawful guardian inevitably lays claims to the ikhazi of the girls. The same applies in the case of a girl seduced and rendered pregnant. The father is the guardian of the child born if he pays damages, and gets custody when he pays a sondlo beast.53 COUNTER POINT Should the custom of isondlo be developed in the best interests of the child? Should the custom of isondlo be developed in terms of section 39(2) of the Constitution so that the custom focuses on the best interests of the child, including the boy child, as opposed to serving the rights of the adults involved as is currently the case? Among baTswana, a married man whose wife is unable to bear children may acquire his extramarital child by paying dikotlo (isondlo) if no action for damages is taken against him. Schapera explains this as follows: This [payment of dikotlo] carries with it the implication that he is, to all intents and purposes, to be regarded as the father of the child; but he is nevertheless bound to consult its mother in all matters affecting its welfare. He may leave the child with its mother’s people, giving them one or more cows as dikotlô (maintenance fees), or go êpa bana (‘to dig out the child’); and then later, when it is grown up, he takes it to his own home. Or he may take it, while still young, and bring him up himself. The practice of adopting an illegitimate child is said to be fairly common among the Tswana, but is found in other tribes as well …54

323

10.3.6 Mafisa, sisa or nqoma Terminology mafisa /

‘a custom whereby the owner of cattle or other livestock deposits them with some

nqoma /

other person on the understanding that such person shall enjoy the use of them, but

sisa

that the ownership will remain with and any increase will accrue to the depositor’55 The contract of mafisa is known among all African population groups of South Africa.56 For example, it is known as mafisa among baTswana, baPedi and baSotho.57 AmaXhosa call it nqoma (ukunqoma)58 and amaZulu and emaSwati call it sisa.59 The mafisa contract is an agreement between the owner of cattle or other livestock and another person who does not own cattle or other livestock to the effect that the latter shall enjoy the use of the cattle or livestock while the ownership of the cattle or livestock and its progeny (increase) remains with the owner. The borrower undertakes to take care of the cattle as if they were his or her own and is entitled to the

benefit

of

their

use

and

their

products

with

the

exception

of

the offspring.60 Schapera has described the duty of the borrower to take care of the mafisa stock as follows: The herdsman is responsible for the welfare of the cattle while they are in his keeping. Mogama-kgomo ya mafisa e re a e gama a be a lebile kgoro go gopolêla mong wa yôna a tle a e tsaya, goes the saying: ‘The milker of a mafisa cow should, while he is milking it look at the gateway (of the kraal), expecting the owner to come and take it’, i.e. he must use it carefully, lest he forfeits the benefit he derives from it.61 The contract is normally entered into for an indefinite period, that is, long enough to enable the borrower to enjoy the use of the livestock.62 Although the contract is not of a fixed duration, the owner of the livestock may terminate it on demand. The mafisa contract is aimed at, among others, assisting needy relatives and other members of the community who have no livestock of their own to acquire their use and for the owner of the livestock to acquire access to pasturage as well as to facilitate the task of caring for the livestock.63 The borrower is not, unless otherwise 324

agreed between the parties, entitled to remuneration as the contract is to his or her benefit as he or she is entitled to the use of the livestock.64 Besides taking care of the livestock as if he or she were the owner thereof, other duties of the borrower are the following: •to use the livestock only for the purpose for which they were given •to allow the owner to inspect and earmark the livestock •to report any losses to the owner immediately •to replace the loss if he or she failed or neglected to report the loss unless it can be proven that the livestock died naturally or was stolen •to send the hide to the owner to enable him or her to identify the dead animal in the case of death •to account to the owner for the increase •to return the livestock and increase to the owner within a reasonable time after the owner has demanded its return or on the termination of the contract.65 The borrower, just like the owner, is entitled to terminate the contract at any time on reasonable notice. Where the borrower neglects to care for the livestock, the owner has the right to terminate the contract before it expires.66 The rights and duties of the owner of mafisa livestock have been summarised as follows: (a) The owner retains his ownership of the stock and its offspring, and may vindicate it against even bona fide third parties. The stock may not be attached in the payment of the debt of the sisa holder. (b) The owner has the right to inspect the stock at any reasonable time and to earmark it. (c) The owner is entitled to terminate the agreement at any time. (d) Subject to what is said above, the owner runs the risk of loss not caused through the sisa holder’s negligence. (e) If the sisa holder unlawfully alienates the stock for his own benefit, the owner has a claim for damages.67 PAUSE FOR REFLECTION

325

Ukwethula, ukufakwa, ukwenzelela, isondlo (dikotlo) and mafisa (sisa or nqoma) as quasi-contracts Authors

in

customary

law

view

these

contracts

discussed

above,

is ukwethula, ukufakwa, ukwenzelela, isondlo and mafisa as

that quasi-

contracts.68 According to Mqeke, these contracts are examples of what has been described as official customary law and are gradually in the process of dying out.69 They are quasi-contracts because they do not satisfy all the requirements of a contract as ‘liability arises from performance without agreement based on enrichment or negotiorum gestio’.70 THIS CHAPTER IN ESSENCE •Contractual relationships exist under customary law. •Customary law recognised that the only persons with full legal capacity were family heads and only males could become family heads. However, as a result of the principle of equality enshrined in the Constitution, all persons, irrespective of gender, may now become family heads. •Lobolo is an agreement between the prospective husband or his family head and the family head of the prospective wife to give property, in cash or kind, to the head of the prospective wife’s family in consideration of a customary marriage with his daughter or the prospective wife. •Ukwethula or ethula is a contract that is associated with the provision of lobolo. It relates to an inter-house debt where property is taken from one house to establish another house in the same household or to benefit such a house. •Ukufakwa is a custom in terms of which a young woman’s father requests a relative to contribute towards expenses to be incurred in respect of various traditional ceremonies normally held for women. The debt is repaid from the lobolo to be received for the marriage of the young woman concerned. •Ukwenzelela is an agreement in terms of which a man or his family head or father requests

his

relatives

or

friends

to

contribute

towards

his

or

his

son’s lobolo requirements or other expenses relating to his or his son’s marriage ceremony. The contributor is to be refunded from the lobolo received for the first daughter of the recipient.

326

•Isondlo is a debt that arises when a person other than a child’s natural guardian raises the child. When its natural guardian wishes to claim his or her parental responsibilities or any right that may accrue as a result of the child, he or she first has to settle this debt. •The mafisa contract is an agreement between the owner of cattle or other livestock and another person who does not own cattle or other livestock to the effect that the latter shall enjoy the use of the cattle or livestock while the ownership of the cattle or livestock and its progeny (increase) remains with the owner.

1Elias, TO (1972) The Nature of African Customary Law 144–5. 2Maine, H (1861) Ancient Law. 3Elias (1972) 145. 4Elias (1972) 145. 5See further Elias (1972) 144–5; Mqeke, RB (2003) Customary Law and the New Millennium 117–19. 6Ch 2 of the Constitution. 7S 211(3) of the Constitution. 8Mqeke (2003) 114–19. 9Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed 69–71. 10Bekker (1989) 85. On the majority status and capacity of spouses, see further ch 7 of this book. 11For a discussion of the right of spouses to structure their marriage roles, including aspects of family headship, see ch 7 of this book. 12See Mabena v Letsoalo 1998 (2) SA 1068 (T). 13S 17 of the Children’s Act 38 of 2008. 14S 17 of the Children’s Act and s 3 of the RCMA. Because the age of 18 as the age of majority in the Children’s Act is implicitly supported by the Constitution, it is applicable to customary law as well even though there is no explicit provision in the Children’s Act which applies it to children who are subject to customary law. For a detailed discussion of the status of majority of married persons, see ch 7 of this book. 15Act 120 of 1998.

327

16Not only persons married by customary rites, but also those married by civil rites may contract in terms of customary law. See Olivier, NJJ, Bekker, JC, Olivier, NJJ (Jnr) and Olivier, WH (1995) Indigenous Law 145. 17Bekker (1989) 81–4. 18Pienaar, JM ‘Customary law of property’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism in South Africa 3rd ed 77. 19Olivier (1995) 145–6. 20Maisela v Kgoloane NO 2000 (2) SA 370 (T). See also s 39(2) of the Constitution. 21S 1 of the RCMA. 22Vorster, LP, Prinsloo, MW and Van Niekerk, G (2000) Urbanites’ Perceptions of Lobolo: Mamelodi and Atteridgeville. 23See, however, ch 6 in this book and Mofokeng, LL (2005) The lobolo agreement as the ‘silent’ prerequisite for the validity of a customary marriage in terms of the Recognition of Customary Marriages Act Tydskrif vir Hedendaagse Romeins-Hollandse Reg 68(2):277–88. 24Jansen, R-M ‘Customary family law’ in Rautenbach et al (2010) 56. 25See Mabena v Letsoalo 1998 (2) SA 1068 (T). 26Nathan, C (1987) The Malome: Then and now Comparative and International Law Journal of Southern Africa 20(3):421–6; Coertze, RD (1987) Bafokeng Family Law and Law of Succession 152–4 and 156. 27Act 38 of 1927 which came into operation on 1 September 1927. See Bekker (1989) 159. 28Jansen 58. 29Koyana, DS (1980) Customary Law in a Changing Society 5. See also Dlamini, CRM (1985) Should ilobolo be abolished? A reply to Hlophe Comparative and International Law Journal of Southern Africa 18(3): 361–76 at 365. 30Bekker (1989) 154. 31Bekker (1989) 160. 32Bekker (1989) 163–5; Bekker, JC (1985) Phuthuma / ngala en siviele huwelike De Jure 18(1):176–9. 33See Maithufi, IP (1986) A civil marriage and the custom of phuthuma De Rebus 224:387–8; Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law 59. 328

34Ngake v Mahahle 1984 (2) SA 216 (O). See also Mqeke (2003) 76–86. 35S 28(2) of the Constitution. For a detailed discussion of the best interests of the child with respect to the consequences of a marriage within the constitutional framework, see ch 7 of this book. See also Bennett, TW (1999) The best interests of the child in an African context Obiter20(1):145–57. 36Olivier (1995) 82. 37Thembisile v Thembisile 2002 (2) SA 209 (T). See also Maithufi, IP (2003) Thembisile v Thembisile 2002 (2) SA 209 (T) De Jure 36(1):195–200. 38Act 45 of 1988. 39S 3(1)(b) of the RCMA. See also Mayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013). 40S 1 of the KwaZulu Act on the Code of Zulu Law Act 16 of 1985 and the Natal Code of Zulu Law Proc R151 of 1987. 41See s 4 of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (RCLSA). 42Olivier (1995) 179. 43Bekker (1989) 334–5. 44Bekker (1989) 136. 45Koyana (1980) 71. See also Nobumba v Mfecane 2 NAC 104 (1911). 46Koyana (1980) 71. 47Bekker (1989) 335–6. 48Olivier (1995) 180. 49Ntshekentsheke v Gobo 1959 NAC (S) 57. See also Mqeke (2003) 117–19. 50Olivier (1995) 180; Koyana (1980) 72. 51Koyana (1980) 78. 52Schapera, I (1977) A Handbook of Tswana Law and Custom 2nd ed 166. 53Koyana (1980) at 78. 54Schapera (1977) 172–3. 55S 1 of the KwaZulu Act on the Code of Zulu Law and the Natal Code of Zulu Law. 56Olivier (1995) 182. 57Schapera (1977) 246–8. 58Koyana (1980) 72–4. 59Koyana (1980) 72–4; Bekker (1989) 338–41. 60Olivier (1995) 182; Schapera (1977) 246–7. 329

61Schapera (1977) 247. 62Bekker (1989) 338. 63Bekker (2010) 98. 64Bekker (1989) 340. 65See Schapera (1977) 246–8; Olivier (1995) 183–4. 66Bekker (2010) 99. 67Olivier (1995) 184. 68See, among others, Rautenbach et al (2010) 101; Mqeke (2003) 117–19; Whelpton, F (1991) Die Inheemse Kontraktrereg van die Bakwena Ba Mogopa van Hebron in die Odi Distrik van Bophuthatswana 76–7; Myburgh, AC (1985) Papers on Indigenous Law in Southern Africa 92; Bekker (1989). 69Mqeke (2003) 118. 70Rautenbach et al (2010) 101.

330

Chapter 11 Customary law of delict 11.1 Introduction 11.2 Delictual liability 11.3 Specific customary law delicts and quantum of damages 11.3.1 Defamation of character and denial of chastity 11.3.2 The delict of adultery 11.3.2.1 Adultery within a customary marriage 11.3.2.2 Adultery with a widow 11.3.3 The delict of seduction 11.3.4 Ukuthwala as a delict 11.4 Rules of procedure 11.5 Prescription This chapter in essence 11.1 Introduction This chapter deals with the customary law of delict with special reference to customary law encoded in the KwaZulu Act on the Code of Zulu Law1 and the Natal Code of Zulu Law.2 It covers the nature of delictual liability in relation to the responsibility of the family head, examples of customary law delicts, and the procedures, prescription and assessment of damages. The sources of law we use in this chapter are typically those of official customary law – the KwaZulu and Natal Codes of Zulu Law, the decisions of the Native Appeal Court (NAC) and textbooks based on these two official sources. 11.2 Delictual liability As stated elsewhere in this book,3 customary law places more emphasis on group rights, duties and obligations than on individuals. Within this context, traditionally, the family head is an important figure with regard to delictual liability. As a general rule, the head of the family is liable for delicts committed by the members of the family. He

331

or she also institutes claims for delicts committed in respect of members of the family unit. In KwaZulu-Natal, the delictual liability of African people is regulated by Chapter 12 of the KwaZulu and Natal Codes of Zulu Law which entirely supersedes traditional principles. Section 102 provides that a father, guardian or family head is liable in respect of delicts committed by a minor in the following circumstances: (1) A guardian shall be liable in respect of delicts committed by his minor ward while in residence at the same family home as himself. (2) A father shall be liable in respect of delicts committed by his minor ward while in residence at the same family home as himself. (3) A family head shall be liable in respect of delicts such as is committed by any minor inmate of his family home while in residence at the same family home as himself. However, legal proceedings arising out of any of the specified delicts above are instituted against the minor committing the delict, jointly with his or her father, guardian or the family head as the case may be.4 11.3 Specific customary law delicts and quantum of damages Terminology ‘blood’

are based on the principle that ‘a man may not eat his own blood’ and in these cases,

cases

customary law does not fix the amount of damages payable for a delictual claim In this section, we discuss the main examples of delicts under customary law. The delicts discussed here are not exhaustive, but include the following: defamation of character, adultery, seduction and ukuthwala. Further, we discuss the scale of damages as fixed by custom for each of these delicts. Note that customary law provides for a predetermined amount of damages for most delictual claims. This means that, in most cases, the plaintiff need not prove the calculable pecuniary loss suffered as a result of the defendant’s conduct. It will suffice for the plaintiff to satisfy only the essential elements of the delict in question. There are, however, some situations, known as ‘blood’ cases that are based on the principle that ‘a man may not eat his own blood’.5 In these cases, customary law 332

does not fix the amount of damages payable for a delictual claim. Most of the cases where the scale of damages is not fixed involve delicts committed against the traditional leader although the actual victim would have been a private individual. These cases include assault and theft. In assault cases, for instance, the Court in Mkunyana v Dumke said the following: In pure Native law no action lies at suit of an individual who has been injured in his person, for the action is one which can be instituted only by the chief of the tribe of the injured person, it being a case of ‘blood’.6 In those cases where the damages are not fixed by custom, the wrongdoer could be ‘eaten up’, that is, the traditional leader would confiscate his entire property.7 11.3.1 Defamation of character and denial of chastity Defamation is specifically mentioned in section 93 of the KwaZulu and Natal Codes of Zulu Law as being an actionable wrong. Every malicious statement alleging evil conduct, such as witchcraft, on the part of a person constitutes defamation of character. Where someone apparently utters defamatory words during a heated quarrel, no action lies if shortly thereafter the wrongdoer gives a public apology. No action lies also if someone addresses defamatory words in good faith and without malice to a person in authority.8 In Mogale v Seima, Harms JA said: It is not, however, without interest to note that since or due to the influence of the Code of Napoleon, civil law countries such as Germany do not recognise a damages claim for defamation unless the defamation is a criminal defamation. Our own indigenous law also does not in general allow damages claims for defamation unless allegations of witchcraft are involved.9 According to this case, defamation under customary law is a restricted delict as it applies only to witchcraft. However, section 94 of the KwaZulu and Natal Codes of Zulu Law provides for another example of conduct actionable as defamatory relating to unmarried women. Where a person brings into question the chastity of an 333

unmarried woman, the woman or her legal guardian can institute an action for defamation against that person. Note, too, that there have been constitutional developments in the common law of delict that may be relevant to the customary law of delict. An example is the application of the value of the traditional principle of ubuntu to the law of delict by the Constitutional Court in Dikoko v Mokhatla.10 PAUSE FOR REFLECTION Emerging values in the remedy for defamation: the role of restorative justice Presumably, the value of ubuntu applied to the common law by the Constitutional Court in Dikoko applies to the customary law of defamation as well. This was a case of defamation between two municipality officers. The reasoning of the Court was, among other things, that the remedy for defamation should aim at restorative rather than retributive justice and at mending broken relationships between the parties. In this regard, the Court stated in its judgment: In our constitutional democracy the basic constitutional value of human dignity relates closely to ubuntu or botho, an idea based on deep respect for the humanity of another. Traditional law and culture have long considered one of the principal objectives of the law to be the restoration of harmonious human and social relationships where they have been ruptured by an infraction of community norms. It should be a goal of our law to emphasise, in cases of compensation for defamation, the re-establishment of harmony in the relationship between the parties, rather than to enlarge the hole in the defendant’s pocket, something more likely to increase acrimony, push the parties apart and even cause the defendant financial ruin. The primary purpose of a compensatory measure, after all, is to restore the dignity of a plaintiff who has suffered the damage and not to punish a defendant. A remedy based on the idea of ubuntu or botho could go much further in restoring human dignity than an imposed monetary award in which the size of the victory is measured by the quantum ordered and the parties are further estranged rather than brought 334

together by the legal process. It could indeed give better appreciation and sensitise a defendant as to the hurtful impact of his or her unlawful actions, similar to the emerging idea of restorative justice in our sentencing laws. The focus on monetary compensation diverts attention from two considerations that should be basic to defamation law. The first is that the reparation sought is essentially for injury to one’s honour, dignity and reputation, and not to one’s pocket. The second is that courts should attempt, wherever feasible, to re-establish a dignified and respectful relationship between the parties. Because an apology serves to recognise the human dignity of the plaintiff, thus acknowledging, in the true sense of ubuntu, his or her inner humanity, the resultant harmony would serve the good of both the plaintiff and the defendant. Whether the amende honorable is part of our law or not, our law in this area should be developed in the light of the values of ubuntu emphasising restorative rather than retributive justice. The goal should be to knit together shattered relationships in the community and encourage across-the-board respect for the basic norms of human and social interdependence. It is an area where courts should be proactive, encouraging apology and mutual understanding wherever possible.11 11.3.2 The delict of adultery Terminology ukungena / kungena / kenelo a custom practised by both Nguni-speaking and Sesotho-speaking groups according to which a widow enters into a union with a brother or half-brother of the deceased in order to raise seed for the deceased Traditionally, adultery in customary law was committed with a wife married in terms of customary law either during her husband’s lifetime or after his death if she is cohabiting with her lawfully appointed ukungena consort.12 Further, adultery is

335

committed with a ‘widow of a man whose final obsequies have not been observed and whose estate has not been settled’.13 In terms of section 99 of the KwaZulu and Natal Codes of Zulu Law, only the husband can claim damages in respect of the wife’s adultery. The wife can obtain a divorce, but she cannot claim damages in respect of her husband’s adultery.14 COUNTER POINT The right of a wife to sue for adultery Section 6 of the Recognition of Customary Marriages Act (RCMA) 15 guarantees the equal rights of husband and wife in a customary marriage. It is submitted that section 6, read with the rights to equality and dignity in the Constitution, implies that both spouses have the right to take legal action against any third party for acts of adultery. Thus, despite the legalisation of polygamy, it is submitted that a husband in a customary marriage may also commit adultery if he is not married to the woman with whom he commits the act. 11.3.2.1 Adultery within a customary marriage A spouse is entitled to claim a full fine or penalty for each separate act of adultery committed with his wife. One act of adultery consists of one or more acts of intercourse with a married person from the time of its commencement to the date when the husband takes action against the adulterer.16 By custom, indefinite claims for adultery are considered immoral and are therefore not permitted. The best remedy for the aggrieved party is a divorce,17 and in the case of a husband, a claim for the return of lobolo.18 The amount of the fine varies from community to community. In some communities, the fine is increased if pregnancy follows while in others, the fine is the same whether or not pregnancy ensues.19 In some communities, damages are claimable only if pregnancy ensues.20 Where the custom permits a penalty for adultery, the claim may be successful even where the pregnancy was caused by another man prior to the wife’s marriage, but was discovered after marriage to a different man. In Sibalala v Temba,21 the Court noted:

336

In Tshetsha v Mavolontiya 1 N.A.C. 111, which was followed by Dayismani v Rebe 3 N.A.C. 248, it was laid down that when a girl is taken by a wedding party in marriage to a man and it is discovered after the lobolo has been paid and the wedding party has left that she was pregnant when given in marriage, the husband has a right of action against the seducer precisely as if the pregnancy had been caused after the marriage, but when a man concludes a marriage at the time knowing the girl is pregnant, he has no such right of action. Ignorance on the part of the adulterer that the woman is married does not exonerate him from liability. However, the adulterer can raise the following valid defences: 

First, the adulterer may be able to show that the circumstances, such as neglect and ill-treatment,22 in which the married woman lived were such as would lead a reasonable person to believe that her husband had abandoned her.23



Second, the defences of collusion and connivance are also known under customary law.24 Thus, in Mswala v Fleni,25 a husband allowed his wife and another man sufficient time to have intercourse in circumstances where he could have easily stopped them. He admitted in court that his purpose in following them was to catch them so as to claim damages for adultery. The Court rejected his claim on the basis that his motives were immoral and that consequently he had connived in the adulterous action of his wife.



Third, the spouse cannot be awarded damages for each of his or her spouse’s acts of adultery with the same person if, in the circumstances, the spouse has clearly deserted the other spouse and has no intention of returning to the marriage.26 It is submitted that the dissolution of the customary marriage also extinguishes the claim, but preserves the husband’s right of action if he has taken action against the adulterer before the dissolution of the customary marriage.27

337

The husband should immediately take action against the adulterer by making a report of the matter at the adulterer’s kraal and should simultaneously make a demand for the customary damages. Traditionally, proof of adultery was simple. Personal belongings, such as a blanket found at the scene, could be produced as a ‘catch’, that is, evidence of the adultery. Further, any conduct on the part of a man or wife showing undue intimacy with another person, for instance where two married women (or men) are quarrelling over one of their husbands (or wives), the other husband (or wife) may use such quarrel as evidence of adultery.28 11.3.2.2 Adultery with a widow Where adultery is committed with a widow who is staying with her lawfully appointed ukungena consort, the consort brings the action but the fine belongs to the widow’s house since the consort acts on behalf of the late husband’s estate.29 Thus, in the case of intercourse with a widow, she must be staying with her late husband’s family as a recognised ukungena wife for the act to constitute actionable adultery. This rule seems to be the same for most communities. Thus, in Mdoda v Skeyi, the Court accepted the submission of the assessors in the following terms: According to Native custom amongst the tribes that recognise the practice of ‘ukungena’, the ngena has a right of action against the adulterer. He is, however, not personally entitled to any damages recovered which must go to the estate of the deceased husband.30 With amaXhosa communities, intercourse between the deceased’s relatives and a widow is not only adulterous, but also incestuous.31 As for damages, the husband can sue for the return of lobolo subject to certain exceptions. For instance, where he does not wish to terminate his marriage with his wife, the husband can claim damages from the defendant only for illicit sexual intercourse

with

his

wife

and

the

claim

may

not

exceed

three

head

of cattle.32 However, where he wishes to terminate the marriage, he can sue the man with

whom

has paid.

33

his

wife

committed

adultery

for

the

amount

of lobolo he

Alternatively, he can sue the recipient of his wife’s lobolo for the return of

the lobolo if the adulterer has paid lobolo for the same woman.34

338

11.3.3 The delict of seduction Terminology in the Nguni languages, meaning literally ‘the cleansing’, the penalty imposed for the

umgezo

cleansing of the family and all the virgins in that community resulting from the delict of seduction ukusoma

in the Nguni languages, a form of sexual intercourse without penetration by the man for which no fine is claimable

ngquthubeast

in the Nguni languages, the beast claimable where the defloration of a virgin is not followed by pregnancy

mvimbabeast

in the Nguni languages, the beast claimable for each pregnancy where seduction of an unmarried woman is followed by pregnancy

Generally, customary law provides for the payment of a penalty or fine to a woman’s guardian35 for the defloration of the woman, but also for a further act of extramarital intercourse if pregnancy ensues.36 Thus, apart from the customary fine payable for the defloration of a virgin, customary law also imposes an additional penalty for each pregnancy of an unmarried woman, whether never married or divorced.37 PAUSE FOR REFLECTION Problem of double jeopardy In customary law, seduction means sexual intercourse with a virgin. According to case law, there is nothing that prevents the father of an African woman from claiming damages for seduction under customary law for the seduction of his daughter despite the fact that she can simultaneously take the same legal action herself under common law.38 This may lead to a problem of double jeopardy because the defendant may be liable for ‘double’ damages payable for the same delict. Where the defloration of a virgin is not followed by pregnancy, anything from one to six

head

of

the community.

cattle,

the ngquthu beast, may

be

claimed

depending

on

39

339

Furthermore, seduction is viewed as sinful and as an insult to the ancestral spirits, and may be punished supernaturally by the ancestors. Consequently, additional penalties may be imposed for the cleansing of the family and all the virgins in that community. This penalty is known as umgezo (literally ‘the cleansing’).40 In some indigenous communities, young couples practise ukusoma which may be described as a form of sexual intercourse without penetration by the man. Among these

communities,

which

include

amaZulu,

no

fine

is

claimable

for

such intercourse.41 In Zulu law, where seduction of an unmarried woman is followed by pregnancy, one beast is claimable for each pregnancy. This fine may be claimed in addition to the ngquthu beast and the umgezo if the woman were a virgin. This beast is called the mvimba beast.42It is claimable whether the pregnancy is followed by miscarriage or the birth of the child. However, where the woman has become pregnant during an existing engagement between herself and the man who caused her pregnancy, the mvimba beast is not claimable unless the girl’s guardian was not a party to the alleged engagement or cohabitation. If the cohabitation during an engagement has taken place with the guardian’s consent and after payment of lobolo, he can only claim the mvimba beast if the engagement is broken off in due course and the marriage does not take place. It is submitted that where the plaintiff is of royal blood, he is entitled to higher damages for the seduction of his wards.43 In addition, under customary law, a woman has no right of action for her pregnancy or defloration.44 An unmarried girl is under the guardianship of her father or his heir who has a reasonable expectation of receiving lobolo for her in due course. The first stage in the procedure for the recovery of damages for seduction is the making of a report at the seducer’s kraal. Again, the parents must take action immediately because a delay may be fatal to their case.45 Thus, it is the duty of the girl who has been seduced to report this fact to her parents at the first opportunity, after which her parents must immediately take action. If the seducer admits liability, it is established that the seducer and his family head are liable for the customary fine for seduction without pregnancy, the ngquthu beast. The parties wait to see if she is pregnant and then establish the full fine for the pregnancy.46 A claim for seduction is difficult to prove if the woman dies prior to the institution of the action for seduction. In KwaZulu-Natal, the claim is extinguished by the death of the woman unless she dies while giving birth as a result of the seduction.47 However, 340

if the woman’s father takes action before she dies, the claim is not extinguished and he may prosecute his claim to finality after the death of the girl. Also, where the alleged seducer dies before the woman’s guardian has taken action, the guardian loses his right of action. However, the death of the plaintiff does not bar his heir from instituting or pursuing an action for damages for seduction because the heir will inherit his right of action against the seducer.48 Traditionally, a child born as a result of seduction becomes a ward of the girl’s guardian and the child will have ultimate rights of succession to the estate of the mother’s guardian. This rule was codified in KwaZulu-Natal under section 27(2) of the KwaZulu and Natal Codes of Zulu Law, which provides that an unmarried woman will be the guardian of her minor illegitimate child. Section 82 regulates the right of illegitimate children to inherit where the mother remains unmarried or is divorced or widowed. The natural father of a child born as a result of seduction may in addition to the fines payable, pay a fine called isondlo which entitles him to the custody of or access to that child.49 The child then becomes the ward of his or her natural father and will also have ultimate rights of succession to the estate of his or her natural father.50 PAUSE FOR REFLECTION The development of customary law in the best interests of the child Section 21(1) of the Children’s Act51 provides that the natural father of a child born out of wedlock acquires full parental rights and responsibilities in respect of his child if he ‘pays damages in terms of customary law’. The amount or scale of damages differs from community to community. The parents of the woman determine and receive the damages. This section may be appraised as a measure of integration of customary law in important child legislation. However, it may be asked whether the section is, in principle, compatible with the stance taken by the High Court in Hlophe v Mahlalela,52 which is discussed in more detail in chapter 7 of this book. In that case, the Court disapproved of the role of lobolo in the determination of parental responsibilities and rights in respect of a child in preference for the application of the best interests of the child principle enshrined in the Constitution. Presumably, the parental responsibilities and rights of the extramarital father should be determined 341

with reference to the same principle as opposed to the payment of damages under customary law.53 The scale of damages for seduction is determined by custom. The Nguni group, particularly amaZulu, prescribes one head of cattle (ingquthu) for the defloration of a virgin, one head of cattle (imvimba) for each pregnancy plus one additional head for cleansing (umgezo) the family.54 In isiZulu, the beasts are known as ngquthu cattle. The ngquthu beast is a beast which is payable to the mother of the girl as an acknowledgment of her care of her daughter during her maidenhood.55 Thus, whenever a girl has lost her virginity by seduction or is about to lose it by marriage, the ngquthu beast is payable to her mother by the seducer or the bridegroom as the case may be.56 With baSotho, according to the decision in Motaung v Motsoeneng,57 the following scale of damages applies in the Free State Province: two head of cattle for the defloration of a virgin and four head of cattle are payable for up to two extramarital pregnancies. Two head of cattle are payable for extramarital sexual intercourse with an unmarried woman who is not a virgin. This scale of damages is the same for baTswana.58 The baPedi fix the maximum amount at three head of cattle.59 COUNTER POINT The constitutionality of the delict of seduction In customary law, the delict of seduction is often associated with virginity. According to section 98(1) of the KwaZulu and Natal Codes of Zulu Law, the delict attracts the payment of the ingquthu beast to the woman’s guardian. Once seduction is proved, the burden shifts to the offender to prove that the woman was not a virgin. This delict has led some scholars to argue that seduction must be abolished because it contravenes the woman’s right to equality by placing masculine value on her virginity and future marriage prospects. Furthermore it commodifies the woman as an object to be bartered with.60 Expanding this argument, Bohler-Muller states: The presence or absence of virginity would define a woman and her value to a man and this would be a stereotype which oppresses women because the continuation of this stereotype would amount to cultural imperialism where the value of women is determined by man 342

and thus women would be more likely to be exploited, and even abused if they are not virgins. Therefore, the answer would be to uphold the right to gender equality at the expense of such delicts.61 Others

have

countered

this

argument

as

a

representation

of

Western

cultural imperialism.62 In our view, the continued existence of the delict of seduction strengthens the arguments of those who see it as an added infringement of the rights to dignity and privacy of women, placing them in a position similar to those who are subjected to virginity testing. Both have led to passionate appeals for abolition, especially of the latter practice. 11.3.4Ukuthwala as a delict Terminology ukuthwala

literally meaning ‘to carry away’, the custom to which a man and a woman resort where they have agreed to marry each other, but there is an obstacle to their marriage and that becomes a delict when it does not result in a negotiated marriage because of the refusal of the bride’s family to consent to the marriage

Ukuthwala is a Zulu and Xhosa word which literally means ‘to carry away’. This practice can be resorted to by a man in a range of circumstances. These range from socially accepted, orthodox avenues for initiating marriage negotiations with the family of the intended bride to irregular and sometimes radical departures from the mainstream. In many instances, the family of a woman will in turn regularise these overtures by commencing marriage negotiations. It is those cases where the woman’s

family

refuses

to

negotiate

the

marriage

that

the

practice

of ukuthwala becomes a delict. The woman’s family would, for example, refuse to negotiate if they believed that the ‘abduction’ was an insult to their family. Among the slights the woman’s family might perceive would be the circumventing of the father’s consent. Thus, it is the decision of the wife’s family that characterises the behaviour of the man and his family as actionable. It should be emphasised that to be a customary law delict, ukuthwala must take place without the consent of the girl’s guardian. It may take place prior to the payment of lobolo or after the partial or full payment of lobolo whenever there is an

343

obstacle to the actual marriage of the parties, in other words, their living together as husband and wife. According to case law, the marriage resulting from a factually forcible ukuthwala is not a valid marriage.63 Furthermore, this kind of ukuthwala would probably qualify as an offence in terms of the KwaZulu and Natal Codes of Zulu Law.64 COUNTER POINT Ukuthwala as a contemporary social problem In the last few years, there has been growing concern over certain practices, especially in rural areas, that have developed under the pretext of ukuthwala. One of the most persistent of these is forced marriage – sometimes the outright ‘sale’ – of young girls to elderly men often with the collusion of the girls’ parents. So concerning are these alleged practices that the South African Law Reform Commission in December 2010 initiated an investigation into the practice of ukuthwala to seek an understanding of the social, economic and other reasons for these contemporary abuses of the custom and to consider an appropriate legal response.65 In the public debate on these matters, the custom is often defended by some as a cultural practice that is a well-known preliminary to marriage, while others attack the practice and see it as nothing short of kidnapping and even rape. The issue thus straddles both criminal law and constitutional rights. There is also a perception that poverty plays a role in the persistence of the abuse of the practice. Because the main purpose of ukuthwala is to initiate the marriage negotiations, it is customary that the damages for ukuthwala are merged into the lobolo property. With the isiXhosa-speaking communities, one head of cattle is payable, excluding penalties for seduction if applicable.66 Among baSotho, the man is forced to marry the abducted woman under traditional law or, alternatively, pay a fine equal to her lobolo.67 11.4 Rules of procedure In matters of delictual liability, customary law insists that the plaintiff shall, as soon as he discovers wrongdoing, lose no time in establishing his claim against the person or persons responsible. For example, in Mgangabode v Ntshentshe,68 an heir was not

344

held liable for the damages arising out of his father’s adultery. The plaintiff should therefore immediately take action in accordance with custom against the wrongdoer and his family head jointly otherwise his action is liable to be fatally prejudiced especially where the wrongdoer dies prior to action being taken. According to Whitfield: ... the true rule of Native law is that where action is taken before the death of the [so called] tort-feasor his heir is liable for his wrongdoing, but that in cases where no such action has been taken the claims lapses.69 The claim against the heir does not lapse where the legal action is taken against the wrongdoer before he dies.70 Customary law actions are preceded by a demand for compensation. The demand is compulsory but need not be in writing. The family representative or agent must approach the wrongdoer with prima facie evidence of wrongdoing and then demand compensation in terms of customary law. If the wrongdoer denies liability, the family head may institute legal action in the court of the traditional leader or any other court that has jurisdiction to hear the matter.71 11.5 Prescription Terminology prescription a debt or a claim which applies to the type of debt in question is extinguished after the lapse of time as contemplated in the Prescription Act Prescription means that a debt or a claim which applies to the type of debt in question is extinguished after the lapse of time as contemplated in the Prescription Act.72 Although the claim or debt is valid, the plaintiff is prevented by law from recovering it after the time that applies to that debt or claim has passed. In Moima v Matladi, the Court said the following about prescription: … we must avoid the pitfall of applying principles of ethics of one community to another and especially avoid fallacious reasoning from one system of jurisprudence to another. The law of nature, i.e. natural

345

justice, is ignorant of statutes of limitation of action. It knows only that a debt has been incurred and must be repaid. In this respect then, Native law is nearer nature and must be held to be in accord with natural justice.73 Thus prescription of actions has never been part of customary law in spite of the fact that a delay in taking action may prejudice and even be fatal to a claimant’s case.74 The plaintiff’s case is not prejudiced by prescription – it is prejudiced by the passing of time which leads to the ‘fading out of evidence’.75 In Lequoa v Sipamla,76 McLouglin P noted that action must be taken immediately by making a demand (informing the defendant’s family head) or issuing summons in the following cases: •where there is a claim, debt or liability which is open to denial or dispute •where time is of the essence in fixing an event which resulted in liability (such as seduction). The above circumstances are not necessarily exceptions to the rule against prescription, but rather, factors which may affect the probabilities of truth concerning the plaintiff’s case. By custom, the heir of the family head may inherit legal rights, obligations and liabilities such as debts and locus standi. This means that the heir may institute legal actions long after the death of the person from whom he had inherited these rights or obligations. Because the heir steps into the shoes of the deceased, he is liable for the debts of the deceased. PAUSE FOR REFLECTION Customary law in the context of prescription in common law The non-recognition of prescription of actions under customary law implies that the plaintiff whose right of action has prescribed under common law may still take the same action under customary law, provided that such action is recognised by custom. THIS CHAPTER IN ESSENCE

346



As a general rule, in customary law the head of the family is liable for delicts committed by the members of his family.



In KwaZulu-Natal delictual liability of African people is regulated by Chapter 12 of the KwaZulu and Natal Codes of Zulu Law, which entirely supersedes non-codified customary law principles.



According to the Codes, the father, guardian or family head (as the case may be) is liable for the delicts of a minor under his ward in varied circumstances, but the minor who commits the delict is jointly liable with the father, guardian or family head, as the case may be.



The most common delicts discussed are defamation of character, adultery, seduction and ukuthwala.



Defamation under customary law is a highly restricted delict in that it applies only to witchcraft. The KwaZulu and Natal Codes of Zulu Law provide for a further conduct actionable as defamatory relating to unmarried women – this is where the chastity of an unmarried woman is impeached.



Traditionally, adultery in customary law is committed with a wife married in terms of customary law either during her husband’s lifetime or with a widow whose marital relationship with her deceased husband is not terminated.



Defloration of a virgin is actionable and the damages go to the mother of the seduced woman. Additional penalties may be incurred by the wrongdoer where pregnancy results from seduction.



Normally, the custom of ukuthwala is resorted to where a man and a woman agree to marry each other, but there is an obstacle to their marriage. However, this practice becomes a delict when it does not result in a negotiated marriage because of the refusal of the bride’s family to consent to the marriage.



Customary law insists that the plaintiff shall as soon as he discovers wrongdoing lose no time in establishing his claim against the person or persons responsible, failing which, any evidence presented by the plaintiff may be rejected.



Prescription of actions has never been part of customary law.



Generally, the amount of damages for each delict is fixed by custom unless such a delict is committed against a traditional leader. 347

1Act 16 of 1985. 2Proc R151 of 1987. 3See ch 12. 4S 102(4) of the KwaZulu and Natal Codes of Zulu Law. 5Whitfield, GMB (1948) South African Native Law 395. 6(1939) NAC (C & O) 68. 7Whitfield (1948) 395. 8Ngcobo v Mdhlalose 1949 NAC (N-E) 68. 92008 (5) SA 637 (SCA) 641. Note that in support of this opinion, the Court relied on Olivier, NJJ, Bekker, JC, Olivier, NJJ (Jnr) and Olivier, WH (1995) ‘Indigenous law’ in Joubert, WA (ed) (2009) The Law of South Africa 2nd ed Vol 32 paras 183–6. A more detailed discussion of the practice of witchcraft may be found in ch 12 of this book. 10(CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (3 August 2006). 11Dikoko paras 68–69. See also Sachs J’s separate judgment. 12S 99 of the KwaZulu and Natal Codes of Zulu Law. See also Whitfield (1948) 469. 13Whitfield (1948) 462. 14S 99 of the KwaZulu and Natal Codes of Zulu Law. See also Ngawana v Makuzeni 1 NAC 220 (1908); Gomfi v Mdenduluka 3 NAC 21 (1912). 15Act 120 of 1998. 16Mokhantso v Chochane 1947 NAC (C & O) 15. 17See Kulashe v Nkosi 1944 NAC (T & N) 22. 18Ngawana v Makuzeni 1 NAC 220; Gomfi v Mdenduluka 3 NAC 21 (1912); Mbono v Sifuba 1 NAC 137 (1907); Fuzile v Ntloko 1944 NAC (C & O) 6. See Whitfield (1948) 133. 19In amaMpondo communities, the husband cannot sue for ‘stomach’ (pregnancy) if the wife’s adulterous act caused the marriage to be dissolved and his lobolo was refunded. See Whitfield (1948) 94 and 469. In baPedi communities, no additional penalties may be claimed if the adulterous pregnancy was warranted by the husband’s negligence. See generally Whitfield (1948) 456–68. In terms of s 99 of the Kwazulu and Natal Codes of

348

Zulu Law, no action for damages for adultery lies if the spouses were not living together as man and wife when the act of adultery was committed. 20For example, emaSwati communities consider adultery with a married woman as the most serious form of theft and civil action is only permitted if pregnancy is caused by the man with whom she committed the act. See Whitfield (1948) 458. See also Garane v Nkomokazi 2 NAC 68. 21Quoted from Whitfield (1948) 443. 22Whitfield (1948) 469. 23This is implied in the decisions of Nakabinde v Mhlangeni 1942 NAC (N & T) 89 and Kosane v Molotya 1945 NAC (N & T) 70. See also Whitfield (1948) 456. 24Madolo v Mnukwa 11 SC 181 and Ngqo v Twalana 5 NAC 9. 251948 NAC 5. 26Gomfi v Mdenduluka 3 NAC 21. 27See Xulu v Nene 1939 NAC (T & N). 28See Whitfield (1948) 467. See also Capuko v Ngazulwane 2 NAC 12. 29See generally Bennett, TW (1991) A Sourcebook of African Customary Law for Southern Africa. 303 NAC 287. 31Bennett (1991) 413. 32See Mngantsiyana v Kyibi (1936) NAC (C & O) 64; Myoli v Skemjana (1939) NAC (C & 0) 105. 33Mtsenene v Mlahlwa 4 NAC 20; Xanase v Tunce (1939) NAC (C & O) 36. 34Sicefe v Nyavozake 5 NAC 17; Mangaliso v Fekade 5 NAC 5; Mngqantsiyana v Kyibi (1936) NAC (C & O) 64. 35Booi v Xozwa 4 NAC 310; Cebisa v Gwebu 4 NAC 330. 36See Daniel v Socinsi 4 NAC 320. 37Mrubata v Dondolo 1949 NAH 174(S). 38Yako v Beyi (1944) NAC (C & O) 72; Booi v Xozwa 4 NAC 310; Qobo v Poswayo (1945) NAC (C & 0) 45. 39See Nkohla v Rakana 4 NAC 321; Mzwakali v Mahlati 2 NAC 31; Kelatile v Mxoxelwa and Mtuti 4 NAC 322. 40Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu family Law 103. 41Sindane v Mbhokazi (1930) NAC (T & N). 349

42See Mhlupheki v Bhoyi 1912 (1) NHC 38. 43See s 61 of the KwaZulu and Natal Codes of Zulu Law. 44See s 67(2) of the KwaZulu and Natal Codes of Zulu Law which provides that the damages for the defloration of a woman belong to her mother. 45Tsoali v Lebenya (1940) NAC (C & O) 22. 46Mcunu

v

Gumede (1938)

NAC

(T

&

N)

6; Daniel

v

Socinsi 4

NAC

320; Sonyabashe v Maqungo (1938) NAC (C & O) 1. 47S 98(3) of the KwaZulu and Natal Codes of Zulu Law. 48Mdoda v Skeyi 3 NAC 287; Ntinjane v Dinizulu 4 NAC 22. 49Bennett (1991) 278. 50Regard should, however, be had for s 34 of the KwaZulu and Natal Codes of Zulu Law which requires a person seeking custody and guardianship in KwaZulu or Natal to apply to court. 51Act 38 of 2005. 521998 (1) SA 449 (T). 53On the discussion of the best interests of the child principle from a customary law perspective, see ch 7 of this book. 54See s 98 of the KwaZulu and Natal Codes of Zulu Law. 55S 98 of the KwaZulu and Natal Codes of Zulu Law. 56S 98 of the KwaZulu and Natal Codes of Zulu Law. When the seducer pays ngquthu on account of his seduction of the girl, the girl’s mother usually slaughters the beast and the women of her kraal eat it. When ngquthu is paid as part of lobolo, she will usually keep the beast and allow it to increase. In addition

to

the ngquthu beast,

in

the

case

of

seduction, a

penalty

called umgezo, usually being a goat or a small sum of money, may be claimed in those areas where custom allows it. 57(1939) NAC (C & O). 58Kodisang v Seakgela (1945) NAC (C & O) 51. 59Whitfield (1948) 455. 60See Bohler-Muller, N (2001) Cultural practices and social justice in a constitutional dispensation:

Some

(more)

thoughts

on

gender

equality

in

South

Africa Obiter 22(1):142–52. 61Bohler-Muller (2001) 152. 62See authors cited by Bohler-Muller (2001) 151. 350

63Mfeketho v Satimani 1947 NAC (C & O) 108. 64See of s 116(1) of the KwaZulu and Natal Codes of Zulu Law. 65See South African Law Reform Commission (2010) Project 138 The practice of Ukuthwala. 66Whitfield (1948) 116. 67Whitfield (1948) 130. 684 NAC 13 (1920). 69Whitfield (1929) 404. 70Whitfield (1929) 404 referring to Zakaza v Dennis Pennington 4 NAC 192 where the magistrate was advised by the counsellors that ‘once an action is instituted it does not die’. 71Presumably, the Chiefs’ and Headmen’s Civil Court Rules (GN R2082 of 29 December 1967 (repealed in KwaZulu in 1989)) would apply to the court of a traditional leader. 72Act 68 of 1969. 73(1937) NAC (T & N) 40 at 45. 74Lequoa v Sipamla (1944) NAC (C & O) 85. 75Whitfield (1948) 520. 76(1944) NAC (C & O) 85.

351

Chapter 12 Criminal law 12.1 Introduction 12.2 The theory of customary criminal law 12.2.1 The distinction between customary criminal law and the customary law of delict 12.2.2 Punishment and co-liability 12.3 Specific customary law offences 12.3.1Witchcraft 12.3.2Contempt or defiance of the head of a group 12.3.3Other crimes under the Natal Code of Zulu Law 12.4 Examples where the ordinary courts have applied customary criminal law This chapter in essence 12.1 Introduction In its Report on Conflict of Laws, the South African Law Commission (SALC) warned about the dangers of allowing all courts to apply the customary law of crime. The SALC noted the following: It is a different matter to require other courts to apply the customary law of crime. Although it has always been assumed, since colonial times, that the common law should provide an overall framework for government and control of the population, this assumption has never been seriously considered in South Africa. To broaden the scope of customary criminal law now would pose a major question of policy … In the circumstances, there seems to be good reason for not changing the existing position.1 The SALC further highlighted the turmoil that may result from the application of customary law of crime parallel to the criminal law under the common law and legislation in the following terms:

352

Criminal law, like other branches of public law, tends to be identified with state sovereignty. Hence, it will be readily accepted that everyone in the country should be subject to the same system of public law. Moreover, because the commission of crimes affects the public weal, a strong argument can be made for not allowing offenders to plead innocence on the ground that their acts were condoned by a particular cultural tradition. When laws involve not individual or narrow community interests, but wider interests of the society as a whole, the right to equal treatment will outweigh any freedom to pursue a culture of choice.2 This chapter deals with the distinctive aspects of customary criminal law. In particular, it considers the theory of customary criminal law, specific customary law offences and examples where the ordinary courts have applied customary criminal law. 12.2 The theory of customary criminal law Considering all the difficulties associated with the question of whether ordinary courts should apply customary criminal law alongside criminal law under the common law and legislation, it is necessary to discuss the African customary concept of criminal law with regard to the structure or nature of African dispute resolution, the distinction between customary criminal law and the customary law of delict, and punishment and co-liability. 12.2.1 The distinction between customary criminal law and the customary law of delict Customary law is not homogeneous and it is not, generally, a penal system. It is a system based on principles of restorative and healing justice. By comparison, with criminal law under the common law and legislation, all crimes are committed against the state rather than the victim. Therefore, it is only the state that may punish the offender. Under customary law, some crimes are committed against private individuals (or a group of individuals) or the state or both. As a result, many lawyers have been unable to distinguish customary criminal law from the customary law of delict. 353

The most obvious distinctions between customary criminal law and delict relate mainly to legal procedures.3 According to Labuschagne and Van den Heever, the two main procedural differences are as follows: 

First, the parties in a civil matter must personally present their case while in criminal matters the responsible member of the tribal court must present the factual details of the offence and lead the evidence.



Second, customary law requires that the parties in civil matters attempt to negotiate and settle their dispute extrajudicially through a group leader before approaching the court. With criminal matters, however, the traditional leader has the discretion to allow negotiations and extrajudicial settlement.4

Other differences relate to the penalties imposed for violations of law. For civil matters, damages paid to the plaintiff are not necessarily assessed according to the actual loss suffered by the plaintiff.5 In most situations, damages are fixed for delictual wrongs.6In criminal matters, the penalties imposed by the traditional court in the form of fines are paid primarily to the traditional leader or, at the traditional leader’s discretion, to both the traditional leader and the victim of the crime. Traditionally, damages and criminal penalties were paid in livestock. In modern times, however, customs have evolved and damages and penalties are now paid in money or a combination of livestock and money. PAUSE FOR REFLECTION Distinguishing crime from delict in customary law Is the perception that customary law did not distinguish between crimes and delicts incorrect? The perception may have been created by a combination of factors, but it seems that the main contributing factor is that the system allows for punishment and reparation or compensation in the same action,7 and that customary law does not recognise detention or imprisonment. The fact that criminal penalties and delictual compensation are meted out in the same action is not unique to customary law. Similar rules have been codified in South Africa under sections 297, 300 and 301 of the Criminal Procedure Act.8 These provisions of the Criminal Procedure Act allow the courts, having convicted the offender, to order him or her: 354

•to pay compensation to the complainant for pecuniary loss resulting from the offence •to suspend or postpone the sentence and release the offender on condition that he or she pays compensation to the complainant •to render specific benefit or service in lieu of such compensation for damage or pecuniary loss.9 These provisions of the Criminal Procedure Act also reflect the customary law theory of criminal punishment. That is, the purpose of punishment is not only to punish the offender, but also to ensure that the victim is properly compensated through summary procedures. 12.2.2 Punishment and co-liability African customary law principles of punishment are based on restorative justice, reconciliation and ubuntu. In S v Maluleke, the Court said that restorative justice: emphasises the need for reparation, healing and rehabilitation rather than harsher sentences, longer terms of imprisonment, adding to overcrowding in jails and creating greater risks of recidivism ... In addition, restorative justice, seen in the context of an innovative approach to sentencing, may become an important tool in reconciling the victim and the offender, and the community and the offender.10 Consequently, African customary law did not provide for punishment in the form of detention, imprisonment, torture, brutal punishment and hard labour. The most common forms of punishment were confiscation of property, fines and loss of status,11 and in particular, loss of social status.12 Traditionally, if the offender was too poor to afford a fine, ‘his father or nearest relative was held responsible for its payment’.13Thus, elements of co-liability in criminal punishment were common and, generally, criminal penalties were not fixed by custom. It may be argued that customary law did not provide for minimum and mandatory penalties, and that the traditional leader had the discretion to impose any punishment for any offence. Consequently, the assessment of the appropriate sentence was usually not an issue for dispute.

355

In modern times, appropriate penalties imposed by courts are determined in accordance with clearly defined rules of punishment and sentencing. Further, the powers of courts of traditional leaders are also legally restricted in so far as punishments for both customary and statutory law offences are concerned. Section 20(2) of the Black Administration Act (BAA)14 provides as follows: … a chief, headman or chief’s deputy may not inflict any punishment involving death, mutilation, grievous bodily harm or imprisonment or impose a fine in excess of R100 or two head of large stock or ten head of small stock or impose corporal punishment. Note that although customary law may not be strictly classified as a divine system of law as punishment for certain serious offences was carried out by humans, it was and still is considered to be supernatural. People therefore voluntarily observe the rules of customary law out of fear of supernatural punishment. According to Hammond-Tooke: None of the South African Bantu have the concept of chance in their world-view. Apart from death from extreme age and minor illnesses such as chills and stomach upsets, all deaths and occasions of misfortune are believed to be caused (‘sent’) by some external agent. This agent may be a supernatural being in its own right, or a human being using supernatural means. In the first case it is the ancestors who are sending the misfortune, in punishment for some breach of custom: in the latter the agent is human, a witch or sorcerer.15 Traditionally, the punishments for more serious crimes were banishment or exile,16 and execution.17 Only the paramount chief or king could impose these punishments. In S v Makwanyane, Sachs J noted that in the 1850s, the absence of the death penalty in Zulu customary law angered Shepstone, Lieutenant Governor of Natal.18 He quoted Donald Morris who wrote: Hearken to Shepstone on November 25, 1850, substituting capital punishment for the native system of cattle fines in the case of murder ... Know ye all ... a man’s life has no price: no cattle can pay for it. He

356

who intentionally kills another, whether for Witchcraft or otherwise, shall die himself.19 The British colonial government of the Cape seemed to hold the same view in the early 1800s after taking over the Cape Colony from the Dutch. As Terblanche observes: The British found the existing criminal procedure to be of little substance and started the process of replacing it with the British system from 1828 onwards.20 In modern times, fines21 and loss of status22 are the most common punishments, while corporal punishment,23 banishment24 and execution25 have been outlawed in South African law. 12.3 Specific customary law offences 12.3.1 Witchcraft Terminology buloyi

witchcraft in the Sesotho and Setswana languages

muthi

commonly used to refer to umuthi, which means medicine (good or bad) in the Nguni languages

ukubhula

an isiZulu word meaning either to consult a diviner or what a diviner does when he or she ‘diagnoses’ or identifies a problem

ukuphengula

another word for ukubhula, used mostly among emaSwati

ukunuka

an isiZulu word, literally ‘to smell’, meaning to divine or smell out

ukuthakatha

to practise witchcraft

Being a wizard is not a crime, but casting a spell on another person is a criminal offence, particularly if this leads to the death of another person. In addition, making any statement claiming that another person is a wizard is defamatory and actionable

357

in the customary law of delict, but may not be punished criminally. In Simanga Mankayi v Nosawusi Mbi-Maselana,26 the Court said: In Native law and custom the most serious charge that can be made against anyone, and the gravest crime that anyone could be accused of, was that of causing the death of any person by means of witchcraft, and in Native law the only action that could be entertained for defamation was if a person was said to have practised witchcraft. According to traditional customary law, wizards were not criminally punished by the ruling authority, but were frowned upon and sometimes attacked by members of the public and traditional doctors. Such incidents are still reported in South Africa today.27Customary law did, however, punish any conduct associated with witchcraft where such conduct resulted in death, injury or damage to the property of another person. Essentially, this meant that by comparison, killings caused by acts of witchcraft were considered to be more serious than other cases of murder.28 Whitfield recorded the seriousness of the crime of witchcraft among the Tsonga as follows: … witchcraft (buloyi) is one of the greatest crimes which a man can commit. It is equivalent to assassination, even worse than murder, as a dim idea of anthropology is added to the simple charge of killing. A wizard kills human beings to eat their flesh.29 South African legislation also criminalises ‘the practice of witchcraft and similar practices’.30 The Witchcraft Suppression Act31 does not define witchcraft, but lists offences relating to the practice of witchcraft. Section 1 outlines the following criminally punishable witchcraft practices: Any person who imputes to any other person the causing, by supernatural means, of any disease in or injury or damage to any person or thing, or who names or indicates any other person as a wizard … is guilty of an offence.

358

In S v Latha, the Court held that: Section 1(a) of the Witchcraft Suppression Act 3 of 1957 was promulgated in order to provide for the situation where persons accused another person of being a witch or a wizard in circumstances where they would not have been criminally liable at common law, but whose imputations led to the death or injury of the person imputed to be a witch. The primary purpose of the section is to punish people whose

utterances

injuring another.

have

resulted

in

other

people

killing

or

32

In assessing sentence for contravening section 1(a) of the Witchcraft Suppression Act, the interest of society requires that the sentence must not only deter the offender and others from naming a person as a witch or wizard, but must also reflect some sympathy for the subjective beliefs and motive of the accused.33 Further, the following practices constitute offences under section 1 of the Witchcraft Suppression Act: Any person who – (b) in circumstances indicating that he professes or pretends to use any supernatural power, witchcraft, sorcery, enchantment or conjuration, imputes the cause of death of, injury or grief to, disease in, damage to or disappearance of any person or thing to any other person is guilty of an offence. (c) employs or solicits any witchdoctor, witch-finder or any other person to name or indicate any person as a wizard; (d) professes a knowledge of witchcraft, or the use of charms, and advises any person how to bewitch, injure or damage any person or thing, or supplies any person with any pretended means of witchcraft; (e) on the advice of any witchdoctor, witch-finder or other person or on the ground of any pretended knowledge of witchcraft, uses or causes to be put into operation any means or process which, in accordance with such advice or his own belief, is calculated to injure or damage any person or thing;

359

(f) for gain pretends to exercise or use any supernatural power, witchcraft, sorcery, enchantment or conjuration, or undertakes to tell fortunes, or pretends from his skill in or knowledge of any occult science to discover where and in what manner anything supposed to have been stolen or lost may be found, shall be guilty of an offence ...34 Considering the practices associated with witchcraft as outlined above, it may be concluded that the practice of witchcraft is evident in South Africa. Whether or not such practices lead to the alleged consequences is questionable. For instance, it has been reported that striking miners used witchcraft muthi (traditional medicines) during the 2012 Marikana strike that resulted in the shooting of some strikers by police. It was further reported that some of the 34 miners killed during that strike may have believed that the traditional healer’s muthi had made them invincible and that they could survive the shooting.35 The most recent legal matters involving the practice of witchcraft are indicative of the extent to which such practices and people’s belief in witchcraft has affected them. In Metal and Electrical Workers Union of SA obo Sibuyi and Wireforce Steelbar (Pty) Ltd,36 the workers refused to come near or to work near a machine which was operated by one of their colleagues (the applicant in the matter). They had apparently observed the applicant sprinkling muthi near and around the machine. As a result, the employer dismissed the applicant on the grounds of ‘sabotage’ because his colleagues believed that they would die if they came near the machine. At the CCMA hearing, it was found that the applicant had merely sprinkled sand over spilled oil. Despite this finding, the CCMA ruled that the workers’ unreasonable beliefs in witchcraft would make it inappropriate and difficult for the applicant to be reinstated. The employer was required to compensate the applicant for an amount equal to one year’s salary. In S v Alam,37 a traditional healer told the accused to obtain human blood, which the healer wanted in order to perform a ritual, in return for financial compensation. The accused then raped a woman and obtained her blood after fatally stabbing her. Where the practice of witchcraft as contemplated in section 1(a) to (e) of the Witchcraft Suppression Act results in the death of a human being, the court must 360

impose a compulsory sentence of life imprisonment unless the court is persuaded that compelling circumstances justify a lesser sentence.38 Compelling circumstances were found to exist in S v Latha39 where two young accused were convicted of the murder of a person whom they believed was bewitching their family. The Court found that the accused were labouring under a serious delusion which, ‘though impotent in any way to alter their guilt legally, does in some measure palliate the horror of the crime and thus provide an extenuating circumstance’.40 The Court imposed a sentence of 20 years’ imprisonment for the first accused and 15 years’ imprisonment for the second accused. Five years’ imprisonment was conditionally suspended for both accused. PAUSE FOR REFLECTION Does the Witchcraft Suppression Act address the real issues of witchcraft in South Africa? The Witchcraft Suppression Act may not be regarded as a source of customary law concerning the prohibition against witchcraft. The Act applies to and prohibits conduct specified in the Act as witchcraft and makes no mention of customary law. Thus, there may be conduct that is not covered by the Act but that would constitute a crime of witchcraft under customary law. 12.3.2 Contempt or defiance of the head of a group Terminology inhlonipho or hlompho

respect in the Nguni and Sesotho languages

ex curiae

outside of court proceedings

in facie curiae

during court proceedings

Customary law is a system of law that is premised on and seeks to protect group interests. The group functions properly if it has a leader. It is for this reason that customary law devised rules that prohibit the defiance of the group leader, whether that person is a king, chief or simply a family head. The offence is based on the

361

African values of inhlonipho or hlompho (respect). This implies that any conduct that a leader considers to be disrespectful is punishable as an offence. With most African communities, a variety of factors, including conduct, speech and physical appearance, determines inhlonipho. Further, where the leader has made a particular order, defiance of such order amounts to an offence. Again, this is based on the custom of inhlonipho. Thus, the problem with this offence is that it is not clearly defined by customary law and, in its original form, the offence depends almost entirely on what the leader considers to be defiance or contempt. The problem was highlighted in R v Dumezweni where the Court referred to R v Sibiya41 and said: In a less developed system of law the outlines of legal concepts tend to be less rigid and are often not clearly defined. Such concepts are attended by disadvantages which it is difficult to eliminate with immediate effect without disturbing the natural development of such a system of law, but their elimination in criminal law is a matter of more pressing concern. It is eminently desirable that there should be a precise definition of an offence, and that its elements should not be uncertain … That is more particularly the case where it is an offence against the person called upon to pronounce upon the guilt of the accused in the first instance, who may be naturally inclined to extend the confines of the offence, if they are flexible.42 The prohibition against any conduct in defiance of traditional leaders’ orders was first codified in the repealed provisions of the BAA.43 The offences still form part of customary law despite the repeal of the relevant provisions of the BAA. This is because the Chiefs’ Courts still exist and they can punish offenders for contempt of court, that is, the orders of the chief while presiding over a case. Further, in KwaZulu-Natal, section 7(1) of the Natal Code of Zulu Law still provides that: Chiefs have the authority to require compliance by the people under their jurisdiction with their duties under Zulu law and may give orders for the purpose.

362

Defiance of a chief’s order occurs where a person refuses to carry out the chief’s orders or does something in violation of the order or rule made by a chief. For instance, in S v Moshesh,44 the appellant appealed against his conviction for disobeying the chief’s order on the basis that the chief’s order was unlawful. He had refused to assist in the removal of school furniture from one site to another. The Court ruled that the chief had the authority to give the order he did and dismissed the appeal. To punish the offender for this offence, the chief must be a legally recognised chief.45 Contempt of a chief’s court occurs where a person fails to obey the order of a chief ex curiae (outside of court proceedings)46 or in facie curiae (during court proceedings).47 In Makapan v Khope,48 the Court held that a chief has the power summarily to convict and punish for contempt of his court committed in facie curiae while exercising civil jurisdiction. Depending on the circumstances, contempt of a chief was considered in the same way as high treason. As stated, customary law rules for contempt are deeply rooted in the custom of inhlonipho (respect) and the higher the status and authority of a leader are, the harsher the sentence is. Consequently, acts of insubordination towards a chief are considered to be criminal and punishable.49 If the same offence is directed at a king or a supreme chief, the sentence could, in the olden days, be the death penalty.50 In Mokhatle v Union Government,51 Solomon Plaatje said the following when giving evidence: In the olden days, if the chief found men undermining his position, he would get the people before him and fine or flog them. They would be killed. Defiance of the family head seems to be no longer enforced criminally in South Africa. There are no recent reported cases dealing with this offence. However, in KwaZulu-Natal, the offence remains in the law books as provided for in section 115 of the Natal Code of Zulu Law which reads as follows: any person who defies the authority of a family head, or enters a family home when permission to do so has been refused, remains in or about any family home after being requested to withdraw ... shall be guilty of an offence. 363

12.3.3 Other crimes under the Natal Code of Zulu Law In KwaZulu-Natal, the Natal Code of Zulu Law (the ‘Natal Code’) prescribes several offences. Some of these offences were known under traditional customary law and were

codified

with

some

amendments

during

the

colonial,

Union

and

apartheid eras.52 In this section, we discuss only those offences which we have not discussed elsewhere in this chapter. At least two chapters of the Natal Code have general provisions entitled ‘offence and penalties’ which are intended to punish ‘any Black who contravenes or fails to comply with any provision of [the said] Chapter’ or any ‘Black who disregards or fails to comply with any duty, obligation, direction or prohibition imposed upon him by this Code’.53 In addition to these provisions, the Natal Code specifically criminalises the following types of conduct: 

•First, it is an offence for any member of the tribal community to disregard customs or ‘regulations’ regulating the duly defined tribal boundaries54 or, without authority, to move his family from their own area to that of another presumably for permanent residential purposes.



•Second, section 61 contains a scale of the maximum amounts or size of lobolo property that may be delivered in respect of marriages to women in certain categories.55 In the case of doubt, ‘the lobolo shall not exceed ten head of cattle or their equivalent’.56 Under section 62, it is an offence for any person to receive ‘lobolo in excess of the scale prescribed in section 61’.



•Third, any person who coerces or attempts to coerce a woman to enter into a marriage commits an offence. The Natal Code also prohibits the guardian of a woman from permitting the celebration of a customary marriage after the official witness has stopped or directed the suspension of such celebration.57



•Fourth, there are miscellaneous offences listed under section 117. The following persons shall be guilty of an offence:

 failure by those who have a natural duty to provide the necessities of life for any other person to do so  knowingly omitting to give proper warning to neighbours and other interested parties concerning the presence of a contagious or infectious disease among livestock

364

 carrying traditional weapons without the written authorisation of the district officer58  failure by the family head to report to the chief any serious crime committed or the death of any person at or near his family home. PAUSE FOR REFLECTION Criminal offences under the KwaZulu and Natal Codes Bennett and Pillay have criticised the Natal Code as ‘a product of early colonialism and its counterpart, the KwaZulu Act on the Code of Zulu, is a product of the apartheid era. In South Africa’s new constitutional order, they stand out as incongruous elements’.59 Despite the criticism, Bennett and Pillay concede that: The origins of the Natal Code lie in a decision – which was advanced for the time – to recognise customary law. When Britain annexed Natal in 1843 ... [a] conflicting strand of thinking in colonial policy, however, demanded respect for local institutions. Hence, in 1848, a Royal instruction announced that: ‘Her Majesty had not interfered with or abrogated any law, custom or usage previously prevailing among the native inhabitants, except so far as the same might be repugnant to the general principles of humanity recognised throughout the whole civilised world’.60 It is submitted that the traditional laws prohibiting or punishing certain conduct are still necessary and must be used effectively in criminal courts to punish offences associated with, for example, umuthi killings. 12.4 Examples where the ordinary courts have applied customary criminal law The SALC’s Report on Conflicts of Law has recommended that ‘no attempt should be made to extend application of customary criminal law to other courts. Criminal justice is an area where the country needs a unified system of law …’ 61 and that ‘to broaden the scope of customary criminal law now would pose a major question of policy …’62 Nevertheless, in recent times, the courts have given effect to customary law defences even when the offender was charged and tried in terms of criminal law under the common law and legislation. 365

Note that the SALC defended its recommendation by citing early cases of R v Swartbooi,63 R v Mane64 and R v Sita,65 where the Courts held that violations of the criminal law could not be successfully defended on the basis that the offence in question was a recognised customary law practice.66 This seems not to be the general position. There are other cases where the courts have accepted defences based on customary law even where the accused were not prosecuted in terms of customary law, but under the common law and legislation. In S v Makhalemele,67 the accused was charged and convicted in the magistrates’ court of the theft of pigs. On appeal, he argued that he was the owner of the pigs and he had entered into a customary law contract of mafisa/ukusisa68 with the complainant. He argued that, being the owner of the pigs, customary law allowed him to remove the livestock deposited with the complainant without his consent. In accordance with customary law, this did not constitute animus furandi and consequently could not constitute the crime of theft. The appeal court accepted the defence and acquitted the appellant. If the appellant in Makhalemele69 had not raised this unique customary law defence, he would have not succeeded on appeal as such a defence is unknown in criminal law under the common law. South African criminal law, which is based on the Roman concept of furtum possessionis, punishes the owner who deprives the lawful possessor of his or her possessory interest or right without his or her consent.70 In R v Sita,71 a man was charged with the abduction of a 14-year-old girl. During the trial in the magistrates’ court, he raised the customary defence of ukuthwala. The magistrate accepted the defence and acquitted the accused on the basis that it was not a crime if a man abducted a woman under the ukuthwala custom for the purpose of marriage. The State then appealed to the High Court. The High Court reversed the decision of the magistrate, arguing that the consent of the father of the woman for the marriage of his daughter was always required. In the circumstances, the accused did not obtain such consent at the time of ukuthwala. The decision of the court implies that, under the current law, where the consent of the father of a woman is no longer required for marriage purposes,72 there is no crime of abduction if a woman is carried away in accordance with the custom of ukuthwala with her consent73 but not the consent of her father. This view is also supported by the decision of the Court in S v Katelane.74 The accused was charged with the abduction of an unmarried woman in contravention of section 162(1)(b) of 366

the Natal Code. The Court was of the opinion that the word ‘abduction’ in the Natal Code had the same meaning as abduction under the common law. The Court ruled that where an unmarried woman ‘leaves her home of her own accord, a subsequent harbouring of her will not constitute abduction ...’75Further, referring to the case of R v Pearston,76 the Court said that ‘if a person plays a passive role, providing neither the physical means of leaving control nor inducement to do so, he does not commit abduction, by taking a minor in or living with her after she has removed herself from control’.77 The custom of ukuthwala may be raised as a valid defence in cases of abduction where a woman was aware of the intentions of the man and consented to the abduction for purposes of marriage. According to the reasoning of the Court in S v Mxhamli,78 it would also seem that where a person is convicted of abduction and at the time of the offence he had followed the custom of ukuthwala, the Court may consider this to be a highly mitigating factor during sentencing. In Makwanyane,79 the

Court

recognised

the

African

customary

principle

of ubuntu as one of the values underpinning the Constitution, particularly concerning the question of criminal punishment. From the cases surveyed, it is submitted that the courts should continue to apply defences that are rooted in customary criminal law as long as they do not violate the Constitution. As Bennett argues: … one might be forgiven for thinking that the relationship between customary and common law was finally settled, but an area still to be explored is criminal law. In this regard, an issue that invites serious consideration is what Anglo-American jurisdictions term a ‘cultural defence’. This defence allows members of a minority culture to argue that they should be completely acquitted of criminal charges, or their culpability be at least mitigated, on the ground that their cultural norms were the reason for the commission of the crimes.80 Generally, customary law places most emphasis on group rights, interests and duties. Similarly, a crime is committed if the perpetrator’s conduct violates the interests of the group, for example the family, clan or tribal community, as represented by an individual, for example the family head, chief or king. Similarly,

367

based on the principle of co-liability, if any member of the group commits a crime, he or she is punished together with the head of the group, for example the family head, because the head of the group is generally liable for crimes committed by individual members of the group.81 THIS CHAPTER IN ESSENCE 

Customary law is not homogeneous and it is not, generally, a penal system. It is a system based on principles of restorative and healing justice.



Under customary law, some crimes are committed against private individuals (or a group of individuals) or the state or both. Because of this, many lawyers have been unable to distinguish customary criminal law from the customary law of delict.



In modern times, fines and loss of status are the most common punishments, while corporal punishment, banishment and execution have been outlawed in South African law.



Being a wizard is not a crime, but casting a spell on another person is a criminal offence, particularly if this leads to the death of another person. In addition, making any statement claiming that another person is a wizard is defamatory and actionable in the customary law of delict, but may not be punished criminally.



The Witchcraft Suppression Act tries to discourage witchcraft by criminalising five distinct practices associated with it.



Customary law prohibits the defiance of the group leader, whether that person is a king, chief or simply a family head. The offence is based on the African values of inhlonipho or hlompho (respect). This implies that any conduct that a leader considers to be disrespectful is punishable as an offence.



The Natal and KwaZulu Codes and the BAA prescribe offences, some of which were known in customary law.



There are cases where the courts have accepted defences based on customary law even though the offender was charged and tried in terms of criminal law under the common law and legislation.

368

1South African Law Commission (1999) Project 90 The Harmonisation of the Common Law and The Indigenous Law Report on Conflicts of Law para 3.18. 2SALC (1999) Report on Conflicts of Law para 3.19. 3Hoctor, SV (2006) Comparing criminal law rules: A role for customary law concepts Fundamina 12(1):168–83. 4Labuschagne, JMT and Van den Heever, JA (1991) Die oorsprong van die onderskeid

tussen

die

fenomene

misdaad

en

delik

in

primigene

regstelsels Obiter 94(2):80–95 at 84. 5See ch 11 of this book for examples. 6Examples are discussed by Whitfield, GMB (1929) South African Native Law 444– 47. See also Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law 102–3. 7For a detailed discussion of this issue, see Hoctor (2006) 168–83. 8Act 51 of 1977. 9S 297 of the Criminal Procedures Act. Note further that s 300 provides as follows: ‘Where a person is convicted by a … court of an offence which has caused damage to or loss of property (including money) belonging to some other person, the court … may, upon the application of the injured person or of the prosecutor acting on the instructions of the injured person, forthwith award the injured person compensation for such damage or loss …’ S 301 provides that any person who innocently bought stolen property from a thief may be compensated for pecuniary loss from money recovered from the thief where the court orders the return of such property to the true owner. 102008 (1) SACR 49 (T) paras 26, 34. 11See, for example, s 12(1)(a), (b) and (d) of the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA). See also s 30 of the Natal Code of Zulu Law Proc R151 of 1987 and the KwaZulu Act on the Code of Zulu Law 16 of 1985: ‘A family head or guardian … against whom a complaint is made of having acted foolishly or prodigally in respect of such person or property and who upon inquiry by the district officer is found to be unfit for his position, may be suspended therefrom … and may be placed under … the administration of some other person by the district officer, or such family head is a chief … by the Director-General.’ 369

12See s 30 of the Natal Codes of Zulu Law concerning the suspension of chiefs. See also s 116(2) concerning the dismissal of official witnesses in KwaZulu-Natal. 13Whitfield (1929) 395. 14Act 38 of 1927. Ss 12, 20 and Schedule 3 of this Act that list the crimes excluded from traditional courts’ jurisdiction remain in force while the major portion of the Act has been repealed. 15Hammond-Tooke, WD ‘World-view I: A system of beliefs’ in Hammond-Tooke, WD (ed) (1974) The Bantu-speaking Peoples of Southern Africa 2nd ed 318 at 336. 16See Mokhatle v Union Government 1926 AD 71 at 75–6. 17Most serious crimes included acts of witchcraft. See the opinion of Sachs J in S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 377. 18Makwanyane paras 379–80. 19Morris, DR (1965/1993) The Washing of the Spears: The Rise and Fall of the Zulu Nation 174–75. Reprinted with the kind permission of Simon & Schuster Publishing Group from THE WASHING OF THE SPEARS: The Rise and Fall of the Zulu Nation by Donald R Morris. Reprinted for eBook usage by kind permission of Russell & Volkening as agents for the author. Copyright © 1965 by Donald R Morris. Copyright renewed © 1993 by Donald R Morris. All rights reserved. 20Terblanche, SS (2007) Guide to Sentencing in South Africa 475. 21See s 20(2) of the BAA. 22See s 12(1)(a), (b) and (d) of the TLGFA. 23See the Abolition of Corporal Punishment Act 33 of 1997. See also S v Williams (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995). See also Morell, R (2001) Corporal punishment in South African schools: A neglected explanation for its existence South African Journal of Education 21(4):292–99. 24S v Benn; S v Jordaan; S v Gabriels 2004 (2) SACR 156 (C). 25Makwanyane. 264 NAC 337 (1918). 27See the cases discussed below: S v Latha 2012 (2) SACR 30 (ECG); Metal and Electrical Workers Union of SA obo Sibuyi v Wireforce Steelbar (Pty) Ltd (2011) 32 ILJ 1481 (BCA); S v Alam 2006 (2) SACR 613 (Ck). 370

28Simanga Mankayi v Nosawusi Mbi-Maselana 4 NAC 337. 29Whitfield (1929) 415. 30Long title of the Witchcraft Suppression Act 3 of 1957. 31Act 3 of 1957. 322012 (2) SACR 30 (ECG) 36 and 38. 33S v Maluleke 2006 (1) SACR 402 (T). 34The statute clearly targets the criminalisation of many of the actions involved in the

identification

of

alleged

witchcraft,

such

as ukuphengula, ukunuka, ukuthakatha and ukubhula, all of which are known in Zulu customary law. Between them, these concepts cover the whole process from employing a witch finder or other diviner to the actual alleged witchcraft. 35Mphumzi Zuzile ‘Miners took “invisible” muti’ Dispatch, 21 August 2012. Available from http://www.globalpost.com/dispatch/news/regions/africa/southafrica/120821/south-africa-striking-miners-thought-they-were-invincible-muti 36(2011) 32 ILJ 1481 (BCA). For further discussion, see Grogan, J (2011) ‘Labour’ Juta’s Quarterly Review of South African Law (2). 372006 (2) SACR 613 (Ck) paras (a) to (d) of part 1. 38Paras (a) to (f) of Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997 read with s 51(1). 392012 (2) SACR 30 (ECG). 40S v Latha 34. 411955 (4) SA 247 (A) 256. 421961 (2) SA 751 (A) 757. 43S 2(9) of the BAA provided that ‘any person obstructing any officer, chief or headman in the lawful execution of his duty or disobeying any lawful order of or wilfully insulting such officer, chief or headman while acting in the course of his duty or wilfully obstructing the proceedings of any meeting lawfully convened by such officer, chief or headman in connection with his duty shall be guilty of an offence; and in addition, any person, who wilfully insults any such officer, chief or headman while presiding over a meeting convened by him in connection with his duty or wilfully obstructs the proceedings of such meeting may be removed therefrom and, if necessary, detained in custody by order of such officer, chief or headman, until the conclusion of such meeting’. For a 371

discussion of the powers of traditional leaders generally, see ch 13 of this book. 441962 (2) SA 264 (E). 45S v Matlapeng 1970 (1) SA 333 (T). 46S v Mngadi 1971 (2) SA 220 (N). 47R v Kumalo 1952 (1) SA 381 (A). 481923 AD 551. 49See

generally S

v

Mngadi 1971

(2)

SA

220

(N); Mokhatle

v

Union

Government 1926 AD 71; R v Phakane 1956 (3) SA 638 (E); R v Mpanza1946 AD 763. 50The Constitutional Court abolished the death penalty in Makwanyane. 511926 AD 71 at 76. 52See generally Bennett, TW and Pillay, A (2003) The Natal and KwaZulu Codes: The case for repeal South African Journal on Human Rights19(2):217–38. 53See s 90(1) and (2) in Ch 11 and ss 115 and 117 in Ch 14 of the Natal Code of Zulu Law. 54For further discussion of the issue of boundaries under contemporary legislation, see ch 13 of this book. 55There is no limit to the amount that a chief may demand as lobolo for his daughter’s marriage. However, there is a limit of 15 head of cattle or the equivalent value in money for the marriage of the daughter, son, brother or uncle of a chief and the chief’s deputy, induna headman and the chief’s official witnesses. For any other woman, the maximum amount of lobolo is 10 head of cattle. 56S 61(2) of the Natal Code of Zulu Law. 57See s 116(1) of the Natal Code of Zulu Law. 58It is not clear who the relevant officer would be today. 59Bennett and Pillay (2003) 217. 60Bennett and Pillay (2003) 218. 61SALC (1999) Report on Conflicts of Law para 3.22. 62SALC (1999) Report on Conflicts of Law para 3.18. 631916 EDL 170. 641948 (1) SA 196 (E). 651954 (4) SA 20 (E) at 22. 372

66SALC (1999) Report on Conflicts of Law para 3.19 fn 33. 671986 (2) SA 20 (O). 68S 1 of the Natal Code of Zulu Law defines ukusisa as ‘a custom whereby cattle or other livestock are deposited by their owner with some other person on the understanding that such person shall enjoy the use of them, but that the ownership shall remain with and increase accrue to the depositor’. 691986 (2) SA 260 (C). 70R v Janoo 1959 (3) SA 107 (A). 711954 (4) SA 20 (E). 72See s 3 of the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Note that the consent of the guardians is required for the marriage of a woman only if she is below the age of 18 years. 73For more readings on this aspect, see Curran, E and Bonthuys, E (2005) Customary

law

and

domestic

violence

in

rural

South

African

communities South African Journal on Human Rights 21(4):607–35. 741973 (2) SA 230 (N). 75S v Kalelane 231. 761940 OPD 153. 77S v Kalelane 231G. 781992 (2) SACR 704 (Tk). See the opinion of Davies AJ at 706D. 79See paras 263 and 308. For more discussion on the African jurisprudence of ubuntu and the criticisms of applying it in criminal law, see English, R (1996) Ubuntu: The quest for an indigenous jurisprudence South African Journal on Human Rights 12(4):641–48. 80Bennett, TW (2010) The cultural defence and the custom of Thwala in South African law University of Botswana Law Journal 10:3–26 at 4. 81Whitfield (1929) 395.

373

PART III Political and civic aspects of African customary law CHAPTER 13 Traditional leadership institutions CHAPTER 14 Traditional courts

Chapter 13 Traditional leadership institutions 13.1 Introduction 13.2 History of traditional leadership institutions 13.2.1Pre-colonial political relations 13.2.2Traditional leadership during colonialism, Union and apartheid 13.3 Recognition and jurisdiction of traditional leaders, communities and councils under the Traditional Leadership and Governance Framework Act 41 of 2003 13.3.1Key definitions 13.3.2Traditional community 13.3.3Traditional council 13.3.4Appointment and removal of traditional leaders 13.4 Powers and functions of a traditional council and leader 13.5 Funding This chapter in essence 13.1 Introduction This chapter discusses the nature, recognition, jurisdiction and resourcing of traditional institutions. This is primarily governed by the Traditional Leadership and Governance Framework Act (TLGFA)1 as well as its provincial subordinates.2 The TLGFA has been in operation since 24 September 2004 and was amended in 2009.3 374

Living customary law is another source of law in this area.4 However, the legislation mentioned above has curtailed the application of living customary law because it was promulgated with the intention of regulating traditional leadership institutions. To the extent that this chapter refers to living customary law pertaining to governance, it draws on historical, sociological and anthropological scholarship documenting such. It is important to keep in mind that what we present here are only broad, general principles. There are variations in practice from community to community as a result of differences in culture and the variable impact of South Africa’s socio-political history. In addition, the primary emphasis in this chapter is on senior traditional leaders (formerly known as chiefs) and headmen/women because these are the traditional authorities that exist most widely, rather than kings/queens and principal traditional leaders. Traditional leadership has been in existence in South Africa since pre-colonial times. The colonial, Union and apartheid governments varied in their recognition of traditional leadership on a regional basis and perceived it to be the central element of customary law and governance of customary communities. However, according to customary communities, traditional leadership was and is not necessarily the central element of customary law and governance, as discussed below. COUNTER POINT Is traditional leadership the defining element of customary law and governance? Traditional leadership has not always taken the same form or been defined by the same source or form of law. The nature of traditional leadership has changed over time through the attempts of colonial, Union and apartheid governments to influence and use it for their own objectives. Therefore, the nature of traditional leadership varies depending on whether we view it from the official or living customary law perspective. There is also variation in the detail of practice of living customary law between different communities and cultural groups. Hence, some rural people contest the prevailing paradigm that traditional leadership – as most centrally represented by chiefs – is the defining element of customary law and governance. This chapter 375

discusses the official perspective in terms of the TLGFA and pre-democratic legislation in light of the living customary law perspective. We first discuss briefly this institution’s pre-colonial form followed by contemporary reality. The TLGFA gives recognition to traditional leadership pursuant to section 211(1) of the Constitution which recognises ‘the institution, status and role of traditional leadership, according to customary law’ and subject to the Constitution. Section 212(1) also foresees that national legislation might give ‘traditional leadership as an institution’ a role at local level with regard to issues concerning their local communities. PAUSE FOR REFLECTION Legal distinction between a ‘role’ and ‘function’ The TLGFA often uses the terms ‘role’ and ‘function’ interchangeably. However, there is a legal distinction between the two. Also, the Constitution envisages that traditional leaders may be granted a role but does not require that they be given functions.5 A role is a part that someone may play albeit that this role may be relatively devoid of power and/or may be simply ceremonial. A function, however, has a specific, practical purpose that typically comes with some responsibility together with whatever powers are necessary to carry out that purpose. This chapter deals with the questions that the TLGFA tries to answer. Mainly, how can we ameliorate the legacy of tribes that were mixed and matched under Union and apartheid legislation and tribal authorities who were illegitimately appointed over tribes so established, most notably by the Black Administration Act (BAA)6 and the Black Authorities Act?7 The possible solutions were most obviously twofold. The first solution was to dismantle entirely the tribes and constitute them anew either by a method prescribed by government or by freely allowing the community members to decide on whether and how to constitute themselves and then to request formal recognition of their community and leaders. The second solution was to retain the tribal authorities and existing jurisdictional boundaries and initially attempt to reform them in some key ways. Then, a special commission could oversee the process of making profound

376

changes over a lengthy period of time.8 With the TLGFA, the government has chosen the second solution. 13.2 History of traditional leadership institutions Shilubana v Nwamitwa9 tells us that we must identify living customary law by looking at the traditions and present practice of communities.10 It is for this reason that the pre-colonial reality of traditional authority is relevant here. However, the colonial, Union and apartheid governments had a significant effect on the nature of governance of customary communities and established the legislative precedents and legacy that the present-day government has had to overturn. 13.2.1 Pre-colonial political relations Terminology ukukhonza

means in the Nguni languages to give allegiance – people indicated that they were joining a particular chief by giving a gift as a show of allegiance which was part of the reciprocal arrangement between the traditional leader and his followers described below

We often hear the phrase, ‘A chief is a chief by the people’ (in vernacular, ‘inkosi yinkosi ngabantu’ or ‘morena ke morena ka batho’). What this described in precolonial times was the fact that the personal relationship between a chief and his people, without whom he had no chiefdom, was paramount.11 Put differently, the phrase symbolised the mutual dependency between them. Through this relationship, the people received: •land on which to live and establish their livelihood •protection of the territory in which they had their homestead through war if necessary and against other individuals through the resolution of disputes •assistance with rain-making •propitiation of the ancestors •punishment of witches. In return, the chief received: •followers – people to follow him •labour and services where his people worked in his fields and fought in his army 377

•tributes such as a small portion of their produce and hunt. Power and significance were therefore not only the chief’s but were distributed relatively equally between him and his people.12 Chiefs could not be unbridled dictators as they were under much pressure to rule fairly. Most chiefs faced the ongoing threat of competition from within and could therefore be displaced by a competitor if they were not accountable to and willing to listen to their followers, even the dissident voices among them.13 Moreover, because land was abundant and people could easily secede if a chief did not rule in a way of which the people approved, chiefs had an incentive to rule well.14 This is why, despite common myths, there was actually heterogeneity in pre-colonial society: there was much contestation and fragmentation in pre-colonial society due to resistance to unjust, corrupt, incompetent or merely unsupported leaders.15 As

a

preventative

accountability

measure,

chiefs

were

not

independent actors.16 They typically depended on and ruled with their councils. These councils were made up of men who were chosen because they had popular support, or based on their achievements, or because they represented a substantial subgroup.17 A chief’s council communicated the will of the people and the chief

was

required

to

consult

with

the

council

prior

to

making

significant decisions.18 While politically diverse: vital to the social and political fabric of South African society were forms

of

chieftainship

that

contained

key elements of

both

consultation and political competition, which ensured that the interests and opinions of commoners could not be easily ignored.19 In pre-colonial times, traditional leadership obviously took on a different meaning from what it would later do and has come to be assumed to mean. Rather than governance to stewardship.

in 20

the

sense

of

top-down

authority,

it

referred

Therefore, an important dimension of traditional leadership was

that there were not only two levels of community, the individual subject and the chief dictator, as illustrated in Figure 13.1. Rather, social organisation was layered with much responsibility and authority resting at the lowest group level: that of the family.21 Household heads therefore had political authority and administrative oversight over the residence, its resources and its members, the clan or village had 378

this over the ward or village, while the chief had it over the community at large.22Decisions were

therefore typically made inclusively,

with council

involvement in each sphere, at the most local level, and escalated to the next level only if unresolvable at the lowest level as illustrated in Figure 13.2.23 This means that the bulk of decisions were made locally. The idea of a chief who has authority over every aspect of life of the customary community is therefore a fallacy.24

Chief

Community (Individual)

Figure 13.1 Typical conception of traditional leadership Nation/ Tribe’

Clan/ Village

Family

379

Figure 13.2 The reality on the ground of traditional leadership

Figure 13.1 illustrates how the relationship between a chief and the rest of the community is typically conceived, particularly in light of the colonial, Union and apartheid perceptions. Authority is often thought to be concentrated at the top of the triangle with or in the chief.25 By contrast to Figure 13.1, in pre-colonial times, recent history and present reality in most researched communities in South Africa,26 the highest concentration of authority rests with the lowest level of social organisation: the family. Matters that cannot be resolved at the lowest level – by virtue of difficulty, complexity or their being of broader concern – will be transferred up through the system until they reach the chief if ever they do reach him. Indeed, ultimate responsibility in terms of oversight rests with the chief and the community’s council but his or her role is by no means central to or definitive of customary law and governance. It is also important to recognise the multilayered nature of authority and the fact that multiple actors are involved in governance and decision making at each level. For instance, there are councils forming the forums at each level and headmen and sometimes headwomen as well as subheadmen are often involved between the levels of the chief and the family in the wards and subwards that are the units of administration.27 13.2.2 Traditional leadership during colonialism, Union and apartheid

Terminology tribal

the administrative councils that were established over tribes under the Black

authorities

Authorities Act, comprising chiefs and a number of male councillors (usually six to nine) specified in proclamations

The version of traditional leadership conceived in legislation from the previous century stands at odds with that described above. Colonial, Union and apartheid governments secured the political interests of some of the chiefs but not those of the ordinary people. The idea that a chief’s legitimacy depends on the people was done

380

away with as the government made it clear that chiefs were recognised and legitimised by the government.28 In terms of section 2(7) of the BAA, chiefs were to be recognised by the Governor-General. The Governor-General had the power to relocate and unite or subdivide tribes according to the public interests defined by the state.29 He also had the power to demote and elevate chiefs. This was true also of tribal authorities under the Black Authorities Act. Section 4(1)(d) states that a tribal authority must ‘generally exercise such powers and perform such functions and duties as within the opinion of the Governor-General fall within the sphere of tribal administration and as he may assign to that tribal authority’. This sentiment is reinforced by a number of cases from around the time when the Black Authorities Act was enacted and came into operation. The Court in R v Kumalo30 found that because the chief had received a written appointment under section 2(7) of the BAA, he had a responsibility to recognise and follow the rights and responsibilities that came with the position. The Court in that case cited the testimony received from the chief headman of the Clau Clau Native Reserve that they ‘must obey law of White man’.31 The Court in Mosii v Motseoakhumo concluded that ‘the Chief owes allegiance to the Crown only’.32 In Monakgotla v Minister of Native Affairs, the Court held that ‘[the chief] is responsible for maintaining law and

order

and

for

carrying

out

the

instructions

and

requirements

of

the Government’.33 The councils were slowly squeezed out of the process as their role became less central, particularly in the first half of the twentieth century.34 In the early stages, chiefs’ powers – especially over land – had not been thought to be autocratic but with time, this view changed, particularly in the courts, as is apparent in the discussion below. PAUSE FOR REFLECTION Autocratisation of chiefly power The case of Hermansberg Mission Society v The Commissioner for Native Affairs and Darius Mogalie35 dealt with the capacity of the chief to enter into agreements specifically relating to the transfer of land title on behalf of the tribe. The Court held that the consent of all tribal people was not necessary but the unanimous consent of the headmen was sufficient to justify alienation. Also, in Mogale v Engelbrecht,36 the 381

Court found that a chief must obtain the consent of a majority of his councilmen before he can sue on an issue related to the transfer of land. About two decades later, however, in Mokhatle v Union Government,37 the Court suggested that democracy is ill-suited to natives and ruled in favour of chiefly hegemony and thus that of the state. The Court noted that ‘[t]he Government today has the power the old chiefs exercised’.38 The case concerned the expulsion of nine members of the Bafokeng tribe in the Transvaal province for maintaining an unauthorised council and undermining the recognised tribal authorities. In the mid-twentieth century, legislation reinstated traditional councils in their formal role. Under sections 2 and 3 of the Black Authorities Act, the State President was permitted to establish ‘tribal authorities’ to govern ‘tribes’. This entrenched the false territorially-based jurisdictional borders that had been established under the BAA or newly established under section 3(5) of the Black Authorities Act. The tribal authorities were clearly subordinate to the chief and, most importantly, the ‘Supreme Chief’ who was the State President. Their role was to assist the chief of the tribe in carrying out the ‘powers, functions or duties conferred or imposed upon’ the traditional leader ‘under any law’ of the government.39 However, these new conceptions of African governance did not go unchallenged by the resistance politics of the time. COUNTER POINT Objections made to prevailing notions of African governance Leaders of the anti-apartheid movement raised objections to the apartheid conceptions of African chiefs’ powers as articulated in the Black Authorities Act. Nelson Mandela said: [I]n South Africa, we all know full well that no Chief can retain his post unless he submits to Verwoerd, and many Chiefs who sought the interest of their people before position and self-advancement have, like President Lutuli, been deposed ... Thus, the proposed Bantu Authorities will not be, in any sense of the term, representative or democratic.40

382

Albert Luthuli noted: The modes of government proposed are a caricature. They are neither democratic

nor

African.

The

Act

makes

our

chiefs,

quite

straightforwardly and simply, into minor puppets and agents of the Big Dictator. They are answerable to him and to him only, never to their people. The whites have made a mockery of the type of rule we knew. Their attempts to substitute dictatorship for what they have efficiently destroyed do not deceive us.41 Govan Mbeki observed: Many Chiefs and headmen found that once they had committed themselves to supporting Bantu Authorities, an immense chasm developed between them and the people. Gone was the old give-andtake of tribal consultation, and in its place there was now the autocratic power bestowed on the more ambitious Chiefs, who became arrogant in the knowledge that government might was behind them.42 In addition, because land was in short and ever-decreasing supply, ordinary people lost their main source of livelihood. They also simultaneously lost both the possibility of political contestation between candidates for chieftaincy that was decided by the support of the people and the possibility of secession. Secession was the ultimate way for people to protest against unpopular chiefs and to force corrupt chiefs to be accountable.43 Personal allegiance no longer defined chiefs’ jurisdictions. Rather, their jurisdictions were defined by territorial boundaries set by the government as it divided and amalgamated tribes at will. Thus, ordinary people no longer had a say in who should lead them. As regards secession and relocation, it is notable also that, for example, section 3(2) of the KwaZulu Act on the Code of Zulu Law44 and the Natal Code of Zulu Law45 made relocating to another chiefdom without prior permission an offence. Section 31(1)(m) of the Administrative Authorities Act (Ciskei)46 criminalised a traditional leader’s incitement or assistance in secession. Further, labour migration meant that homesteads had too few hands for their subsistence farming and yet chiefs were granted taxation powers unlike any 383

reciprocal entitlements they had previously had to tributes. Sections 8 and 9 of the Black Authorities Act provided for treasuries to be established into which customary and statutory tribal levies, fees, fines, property gains and profits from all these had to be collected. Traditional leaders were established as core instruments of influx control. This was the management of black people’s access to the urban areas. Traditional leaders held the power to grant or deny work permits to their subjects, subject to the payment of levies, under the ‘call-in card levy’ system.47 The government’s basic assumption was that every black community was a language-based tribe and therefore had to be assigned to a language-based homeland and placed under the control of a chief.48 However, there were places where that assumption clearly would not work without leading to excessive revolt. Thus, the government amended the Black Authorities Act in 1964 to accommodate what were called ‘community authorities’.49 These were authorities present in black communities that had either too much diversity (especially where the people had come together to buy land) or elected leadership in the form of a headman or committee of community members. In other words, there were not traditional authorities over every black community and some communities were based on quasi-voluntary association and/or had elected leadership. Needless to say, this inducement was created to encourage the chiefs’ cooperation in colonial and apartheid governance. Unfortunately, this led to the autocratisation of traditional leadership. PAUSE FOR REFLECTION Inducements for chiefs to participate in and allow the autocratisation process to take place The apartheid government made it difficult for traditional leaders to resist the pressure to cooperate with it in the oppression of their people.50As observed by Nelson Mandela above, those traditional leaders who would not cooperate lost their positions, while those who cooperated were given higher positions. Some were promoted to paramount chiefs or the figureheads of the bantustans that were subsequently formed. They were also given bigger pieces of land over which to govern, independence, unaccountable power and wealth.51

384

13.3 Recognition and jurisdiction of traditional leaders, communities and councils under the Traditional Leadership and Governance Framework Act 41 of 2003 The TLGFA provides the terms for the recognition of traditional leaders, communities and councils. With this recognition comes the issue of the form of customary law (in other words, living or official) that constitutes the framework for the functioning of these structures. PAUSE FOR REFLECTION Does the flexibility of living customary law apply to traditional leadership? As discussed in the introduction, presented with the choice between undoing all the structures of the immediate past to establish an opt-in system or retaining these structures to establish an opt-out system that would unfold over a lengthy period of time, the government has chosen the latter. Also presented with the options of creating a fluid and primarily elective system or a rigid and hierarchical system, the government has chosen the latter. Although customary law is not defined in the TLGFA, the choices the government has made raise questions about the degree of flexibility inherent in the government’s working definition of customary law which would seem to be rather inelastic. By contrast, the definition given to customary law by the Constitutional Court suggests that communities have the freedom – bridled only by the Constitution – to develop customary law as they please. In Gumede v President of the Republic of South Africa, Moseneke J said: During colonial times, the great difficulty resided in the fact that customary law was entirely prevented from evolving and adapting as the changing circumstances of the communities required.52 The Court in Alexkor Ltd v Richtersveld Community observed: It is important to note that indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life.53 385

In the case of Shilubana, which dealt with changes by a community of its method of succession to the position of senior traditional leader, the Constitutional Court found: As has been repeatedly emphasised by this and other courts, customary law is by its nature a constantly evolving system. Under pre-democratic colonial and apartheid regimes, this development was frustrated and customary law stagnated. This stagnation should not continue, and the free development by communities of their own laws to meet the needs of a rapidly changing society must be respected and facilitated.54 These sentiments are in keeping with section 39(3) of the Constitution which allows for the existence of rights and freedoms that are not contained in the Bill of Rights but in legislation, common law and customary law as long as they comply with the Constitution. Equally important to the recognition of traditional leadership institutions was the establishment of the Commission on Traditional Leadership Disputes and Claims (Commission). The Commission is important to the understanding of the legislation and jurisprudence concerning traditional leadership institutions. The Commission was established in terms of section 22 of the TLGFA and its functions are defined by section 25. In terms of section 25:

(2) (a) The

Commission

has

authority

to

investigate

and

make

recommendations on – (i) a case where there is doubt as to whether a kingship, or principal traditional

leadership,

senior

traditional

leadership

or

headmanship was established in accordance with customary law and customs; (ii) a case where there is doubt as to whether a principal traditional leadership, senior traditional leadership or headmanship was established in accordance with customary law and customs; (iii) a traditional leadership position where the title or right of the incumbent is contested;

386

(iv) claims by communities to be recognised as kingships, queenships,

principal

traditional

communities,

traditional

communities, or headmanships; (v) the legitimacy of the establishment or disestablishment of ‘tribes’ or headmanships; (vi) disputes resulting from the determination of traditional authority boundaries as a result of merging or division of ‘tribes’; (viii) all traditional leadership claims and disputes dating from 1 September 1927 to the coming into operation of provincial legislation dealing with traditional leadership and governance matters; and (ix) gender-related disputes relating to traditional leadership positions arising after 27 April 1994. The term of office of the original Commission created by the legislation passed in 2003 came to an end in 201055 but it was succeeded by the current Commission whose members were appointed for five years, starting on 1 January 2011, in terms of the Traditional Leadership and Governance Framework Amendment Act.56 The current Commission is required to finalise the claims lodged with its predecessor which number over 1 300.57 13.3.1 Key definitions Terminology chiefs

under apartheid are now called traditional leaders in the current dispensation

tribal

have been renamed traditional councils and are supposed to be reconstituted as

authorities

described below

Section 8 of the TLGFA establishes a hierarchy of traditional leadership positions for recognition: 

kingship or queenship



principal traditional leadership (added by the amendment in 2009)



senior traditional leadership (in common parlance, chieftainship)



headmanship. 387

These terms are defined in section 1. The hierarchy of status frames and is maintained throughout the legislation as it defines the jurisdiction, appointments, roles and functions of each leadership position. In terms of definitions, a ‘senior traditional leader’ is said to be a ‘traditional leader’ of a precise ‘traditional community’ who either exercises authority over some headmen or headwomen in terms of customary law,58 or simply has some headmen or headwomen exercising authority in his or her area of jurisdiction. ‘Traditional leader’ is a wider term that refers to any individual who holds a position of ‘traditional leadership’ according to his or her traditional community’s customary law and who is also recognised by law. ‘Traditional leadership’, according to the TLGFA, refers to the institutional and governance structures, systems and processes that exist under customary law and that are recognised and observed by traditional communities. The definitions therefore suggest that customary law is the condition on which recognition is to be given. However, the TLGFA also makes clear that it is recognition and assignment of particular ‘status, role and functions’ by government in terms of the Act rather than the traditional leader’s own community that is definitive of the traditional leader’s position as such.59 The transitional arrangements outlined in section 28(1) of the TLGFA deem a traditional leader who was appointed as such under relevant prior legislation and whose status had not been revoked at the time the Act came into operation to be recognised as such in terms of the appointment sections we discuss in the following section. The condition set for such recognition is the finding by the Commission that the traditional leader was legitimate. A headman or headwoman is defined as the converse of a traditional leader – that is, a person who, in terms of customary law and as recognised by the TLGFA, is either subject to the authority of a senior traditional leader or who simply exercises authority in the senior traditional leader’s jurisdiction. However, the TLGFA is silent on some situations and this creates a gap in the law as it applies to a number of communities. COUNTER POINT A gap in the law 388

The TLGFA does not say what is to happen in the event that, in terms of the customary law of a single community, a particular element of the hierarchy it establishes does not exist. The Act makes the assumption that all traditional communities are subject to the ‘political overlordship’60 of a senior traditional leader. With only two possible scenarios provided for in terms of the relationship between headman and chief, for example, the TLGFA does not provide for instances where the headman is, in fact, the highest authority in a traditional community and therefore has no senior traditional leader over him. The TLGFA also assumes that traditional leadership is the distinguishing feature that makes a community traditional. It therefore does not provide for a situation where a traditional community may have developed alternative leadership in terms of its living customary law. 13.3.2 Traditional community In terms of section 2 of the TLGFA, a traditional community is recognised as such on two conditions: first, that it is ‘subject to a system of traditional leadership’ in accordance with its customary law, and second, that it functions under a system of customary law. The TLGFA provides for some consultation with the community to be recognised as a traditional community although this is to be detailed in provincial legislation. The TLGFA also encourages transformation, such as greater equality in royal succession. Under the transitional arrangements, section 28(3) of the TLGFA provides that a ‘tribe’ that existed as such in terms of the law at the time the Act came into operation is deemed a traditional community under section 2 of the TLGFA. This means that the territorial boundaries of the traditional community are those boundaries that were established in the latter half of the twentieth century. In light of the fact that a senior traditional leader61 is to be recognised relative to a specific traditional community, the community’s territorial boundaries serve as the senior traditional leader’s jurisdictional boundaries. These are the tribal boundaries that section 28(3) deems to persist. The continuation of the recognition of a ‘tribe’ as a traditional community is subject to the condition that it does not have its recognition subsequently withdrawn either on the basis of section 7, which allows for limited terms on which a traditional

389

community’s status can be formally withdrawn, or a finding by the Commission under section 26 that requires this. PAUSE FOR REFLECTION Terms for withdrawal of recognition The terms are limited for the withdrawal of recognition of traditional communities as the tribes established under the BAA in terms of section 7 and as mentioned in section 28(3) of the TLGFA. Withdrawal of recognition can only be considered when: •the traditional community requests the Premier to withdraw its recognition as a whole •the province is asked to review the circumstances of communities subdivided and amalgamated under colonial, Union and apartheid legislation •two or more communities request the Premier to recognise them as a single traditional community. In terms of the second category of withdrawal that may be contemplated under the legislation, the Premier is required to consider the recognition of separate communities or a merged community if the review shows that this is necessary. The Premier is under no obligation to grant such recognition. What appears to be absent as a stand-alone category is the possibility that a minority group of members of a community wants to withdraw from the traditional community and form an independent community. This applies particularly when they seek this recognition on grounds independent of apartheid, for example on the basis of wanting to reform their governance or in reaction to unfavourable consequences of contemporary legislation. A simple example will illustrate the point. In terms of section 28(5) of the TLGFA, community authorities are to be disestablished. The TLGFA does not explicitly say what is to take their place. However, it is clear from the breadth of the terms of the TLGFA that tribal authorities, now named traditional councils, are the default position. In situations where community authority boundaries were located within tribal boundaries, this would make some communities that have not previously been part of the still-recognised traditional communities new parts of these recognised communities. The people who form a subgroup of the traditional community may 390

wish to apply to withdraw formally from the traditional communities of which they find themselves a part. Several pieces of legislation define a community as a group of people, or portion thereof, who share rules governing common resources and who choose to exist as a single entity.62 Such a definition, had it been adopted in the TLGFA, would allow subsections of formally recognised tribes to withdraw, if they so wished, without needing the rest of the traditional community’s support. This seems most in keeping with the principle of living customary law that communities are formed by personal affiliation and the choice to associate with one another. Moreover, section 235 of the Constitution states: The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of selfdetermination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation. COUNTER POINT A denial of the right to self-determination of minority groups in traditional communities The foregoing provision suggests a definition of community that rests on a shared cultural and linguistic heritage rather than the politico-legal construct of ‘tribe’. It suggests that the national government may give effect to the right to selfdetermination of such a community through legislation. As the legislation regulating this arena, the TLGFA does not give effect to this right. 13.3.3 Traditional council Once a Premier has granted recognition to a traditional community, they must establish a traditional council according to the guidance provided in provincial legislation pursuant to section 3 of the TLGFA. This guidance pertains to elections of some members of the council, for instance. The number of councillors was originally 391

set at 30 but this provision was amended in 2009 to allow for variation between differently sized communities and their respective needs. Therefore, the Premier can gazette a formula for determining the appropriate number for a community. The Premier must consult the provincial house of traditional leaders on this formula. In addition, the Premier takes his or her guidance from a notice that is to be gazetted by the Minister. The most significant change that section 3 of the TLGFA introduces is the requirement that at least one third of councillors be women. This requirement is, however, qualified and provides that an exemption may be granted where it can be proven that the women available for participation do not satisfy that minimum numerical threshold. Section 3 of the TLGFA also arrives at the compromise of allowing senior traditional leaders to appoint 60% of the councillors who may be traditional leaders or ordinary members of the community. The remaining 40% are to be ‘democratically elected’. With regard to gender representativity, it should be noted that the courts have given effect to gender equality in decisions concerning women vying to be recognised as traditional leaders. In the case of No-Italy Phindiwe Mtirara v MEC for Housing, Local Government and Traditional Affairs,63 the Eastern Cape High Court found that the deceased chief’s widow could be appointed a chieftainess and regent on behalf of her son who was not yet of age. She could no longer be disqualified on the basis of her gender because of the elimination of gender discrimination in customary law decided in Bhe v Khayelitsha Magistrate.64 In the case of Shilubana, the Constitutional Court also found that the community’s development of its law to appoint a woman as a traditional leader was acceptable under our Constitution. This was so even if this was not consistent with the traditions of the community pre-dating the Constitution. COUNTER POINT Rendering traditional councils democratic The TLGFA attempts to strike a balance between the claim that traditional leaders customarily appointed councillors and the argument that people customarily had a say in the appointment of councillors and even elected them in some places. In 392

support of the latter argument, people cite democracy under the Constitution as creating an imperative for people’s participation by means of electing their leaders. Given the 60:40 split on which the TLGFA settles, some people have raised concerns about 40% being insufficient to render the councils democratic. Moreover, the argument is sometimes raised that a one-third minimum of women on the council is also not sufficient as it could become a ceiling. The transitional arrangement provided for under section 28(4) of the TLGFA is that a ‘tribal authority’ already recognised when the Act came into effect is deemed a traditional council under section 3 and is therefore required to perform the functions given to traditional councils. This is on condition that a traditional authority complies with section 3(2) within a given period. Initially, the period given was one year, then provincial legislation extended the period to two years, and in 2009, it was extended to 24 September 2011. It would seem that any traditional authorities that have not held elections and transformed the composition of their councils to include women are doing so illegally if they continue to perform the functions of traditional councils. 13.3.4 Appointment and removal of traditional leaders Terminology royal family

‘the core customary institution or structure consisting of immediate relatives of the ruling family within a traditional community, who have been identified in terms of custom, and includes, where applicable, other family members who are close relatives of the ruling family’65

hereditary

the system by which one traditional leader replaces another traditional leader by

succession

virtue of inheritance of the position. Under this form of succession, the new traditional leader is a blood relation of the old traditional leader and must be related to a degree determined by the customary law of the community. Usually, this means male primogeniture: the oldest son will therefore be first in line to inherit the position. However, this principle is variably applied between communities, for example the heir may be the oldest son of the first wife, the oldest son of the wife whose lobolo was paid for by the community or the oldest son of the wife from the most esteemed family66

393

When a senior traditional leader or headman or headwoman is to be appointed, section 11(1) of the TLGFA requires the royal familyto act within a reasonable time and ‘with due regard to applicable customary law’ in identifying a person whom customary law would permit to serve in the relevant traditional leadership position. Conviction of an offence subject to a year’s imprisonment, severe physical or mental disability, or violation of a customary law or norm of sufficient significance disqualifies a person from appointment.67 The Premier is to be informed of the person whom the royal family has identified for the position and why. The Premier must then recognise the person in keeping with provincial legislation. This legislation may provide for headmen or headwomen to be elected or appointed according to customary law and for the Premier’s consultation with the relevant traditional council.68 The Premier’s obligation in this regard holds only so long as there is no suggestion or proof that the person was identified other than in terms of ‘customary law, customs or processes’.69 If there is such a problem with the person’s appointment, the Premier may hand the matter over to the provincial house of traditional leaders for it to recommend a solution. Alternatively, the Premier may refuse the person a certificate of recognition. In this case, the Premier must also have the royal family revisit and resolve the matter. COUNTER POINT Substantial and procedural difficulties with the appointment provision The appointment provision raises a number of issues. On the one hand, the appointment provision assumes the existence of a royal family. This further suggests a presumption in favour of hereditary succession. On the other hand, in the case of headmen and headwomen, the TLGFA provides for the possibility of election or appointment. This provision is phrased as an option that the provincial legislature can recognise at its discretion. It is unclear what remedy, other than challenging the legislation on constitutional grounds, is available for a community that customarily elects its headmen or headwomen where the provincial legislation – such as that of the Eastern Cape70 – does not provide for this avenue. Moreover, there is no provision in the TLGFA for the possibility of election or appointment with regard to senior traditional leaders. This, therefore, seems to exclude categories such as iziphakanyiswa. These are recognised chiefs who have been elected in KwaZulu394

Natal. It also suggests that the KwaZulu-Natal Traditional Leadership and Governance Act, which does provide for iziphakanyiswa, is in violation of the TLGFA. There is no provision for the Premier to consult with the traditional community prior to appointing the relevant traditional leader. It is optional for the provincial legislature to provide for consultation with the traditional council. Hence, the only way in which a Premier may find out that the identification of a traditional leader has taken place in a manner contrary to customary law would be when the matter is brought to his or her attention by people seeking to lay a grievance. It is unclear why the option to consult the provincial house of traditional leaders is an alternative to the Premier’s refusal to issue a certificate and, thus, sending the matter back to the royal family. It is further unclear whether a concern such as that of an unduly appointed person identified as a public office bearer71 should be resolved by referring it back to the royal family as the TLGFA provides. It appears that there is no sanction provided in the TLGFA for cases where it may be found that the royal family had unduly appointed an office bearer wilfully. The person would therefore have no choice but to litigate. In any case, as the case of Dudumayo v Dalasile72 demonstrates, the TLGFA process can always be circumvented by going directly to the courts. In this case, Mkhanyiseli Dudumayo petitioned the court to order the Premier of the Eastern Cape to consider allowing him to be sworn in as headman of Maphuzi in Mqanduli. His 77-year-old uncle, Mhlabunzima Dalasile, held the title but, as the son of the late headman of this area, Daliwonga Dudumayo, Mkhanyiseli Dudumayo, aged 33, argued that he had been wrongfully overlooked as he should have inherited the position. The judge concluded that Dalasile was not the customary heir of this position. The Court also held that the process followed in Dalasile’s appointment had not complied with the TLGFA and the Traditional Leadership and Governance Act (Eastern Cape) of 2005.73Dudumayo received the order for which he had petitioned the court. The case of Thulare v Thulare74 shows that the court will not tolerate persons simply exercising the functions of a traditional leader without first formally obtaining the title of traditional leader through the review, removal and appointment process spelt out in the TLGFA. However, it also illustrates that the TLGFA has turned disputes about authority, which would historically have taken place as political conflicts in the relevant political unit, into legal disputes to be settled by the courts. 395

In Thulare v Thulare,75 although the court says that the facts are somewhat unclear and contested, it seems that the traditional leader of Marota Marulaneng Village in Lebowa (now part of Limpopo) had died by assassination. On the traditional leader’s death, his brother, Seraki Thulare, was appointed as acting traditional leader. He was also meant to father a son on behalf of his brother who had died while traditional leader. This son would succeed Seraki Thulare’s brother as the traditional leader of their community. This was according to their culture. However, Sekwati Thulare, who was his father’s stepbrother, applied to the court to prevent Seraki Thulare’s inauguration as acting traditional leader from proceeding. His application failed. Sekwati Thulare was supposedly the same uncle who had attempted a coup during the reign of Seraki Thulare’s brother. Seraki Thulare had a certificate dated 1992 that formally recognised him as the acting traditional leader of the community. Yet, his uncle, Sekwati Thulare, continued to perform certain functions as though he were the legitimate traditional leader. This was why Seraki Thulare applied to the court for an interdict against his uncle. However, Sekwati Thulare disputed the legitimacy of Seraki Thulare’s appointment and recognition (and that of Seraki Thulare’s brother before him) on the basis of a technicality pertaining to the succession rules of the community. Sekwati Thulare lost the case and was, hence, interdicted from continuing to perform the functions that he was doing. He was instructed to employ a formal review process in terms of the TLGFA to challenge Seraki Thulare’s appointment. The proposition that issues of traditional authority have become more than political conflicts is evident from the judgment of the Constitutional Court in Sigcau v President of the Republic of South Africa.76 The Court ruled that ‘the institution of traditional leadership and the determination of who should hold positions of traditional

leadership

have

important

constitutional dimensions’.77Referring

specifically to the matter before the Court, it stated: Resolution of this festering dispute troubling the amaMpondo [the dispute had been going on for about seventy-five years78] needs to be constitutionally clarified. It is in the interests of justice to do so.79

396

In Sigcau, the decision of the Constitutional Court turned on the differences between the old and the new amended TLGFA.80 Briefly, the circumstances were that the Commission had decided that one of the respondents, Zanoku Sigcau, was the rightful king of the amaMpondo aseQaukeni in the place of the incumbent, the applicant, Justice Sigcau. The latter applied to the High Court to set aside the decision of the Commission, but he was unsuccessful. His attempt to apply for leave to appeal to the Supreme Court of Appeal (SCA) also failed. He then sought leave to appeal against the High Court judgment in the Constitutional Court which granted him leave to appeal. In the Constitutional Court he claimed, inter alia, that the High Court had erred in not finding that the Commission had arrived at a wrong decision by finding that one of the respondents and not the applicant was the rightful king. The matter was decided on a technicality that the decision of the Commission was announced by the President of the Republic on the basis of the new amended TLGFA instead of the old unamended TLGFA. The Court ruled in favour of the applicant and set aside the decision of the High Court. Having come to this decision, the Court found it unnecessary to deal with any of the other issues on which the applicant had based his appeal. One of these issues – the approach of the Commission and the President to the appointment of a king under customary law – is of interest because it concerns the concept of living customary law. PAUSE FOR REFLECTION The approach to the appointment of a king under customary law The Centre for Law and Society (Centre) had been admitted as a friend of the Court (amicus curiae) in Sigcau. In its submission, it argued, in our view correctly, that the process of appointing a king under customary law entailed a recognition of the Constitutional Court’s jurisprudence on living customary law.81 In other words, the Court should pay attention to the current practices of communities regarding the appointment of traditional leaders rather than relying purely on statutory provisions. The Centre argued further that:

397

historical ‘rules’ or ‘principles’ of customary law were often after-thefact rationalisations of what was in its ‘living’ aspect, pragmatic decisions based on what best served the community; and that this approach

was

not

apparent

in

the

President’s

and

the

Commission’s approach.82 The removal provisions are similar to the appointment provisions. A traditional leader may be removed on the grounds on which he or she cannot be appointed, as well as on the basis that he or she was wrongfully appointed. A peculiarity exists in that the TLGFA uses the permissive ‘may’. This implies that the royal family may also choose not to remove a person on these grounds. This may be consistent with an apparent presumption in the appointment and removal provisions of hereditary succession. However, when the royal family becomes aware of such grounds and elects to remove the traditional leader, it must timeously notify the Premier of the decision and its reasons. Another peculiarity of the removal provision concerns the participation of the community and other relevant traditional institutions. PAUSE FOR REFLECTION A place for community participation in electing and removing leaders As with the appointments provision, the removal provision assumes that there is a royal family. The removal provision, however, makes no provision even for discretionary provision, by provincial legislation, for the Premier to consult with the community or traditional council. At first glance, Shilubana provides a basis on which to say that the royal family rather than the community determines the traditional leaders. This is so particularly as it describes the royal family (‘traditional authorities’) as being ‘the high water mark’ of authority on succession in customary communities.83 However, among the facts that contributed to the Court’s finding that Tiniko Shilubana was legitimately appointed and that the community had developed the living customary law of royal succession was that the community at large had endorsed the royal council’s decision in a meeting.84 In addition, as mentioned above, the Court held that communities must be allowed to and be assisted in adapting their own laws to their changing circumstances and needs.85 398

The basis for this is that customary systems, at their core, are based on the consensus of members of the community. The community members must be consulted on and participate in the making of a wide variety of decisions concerning their governance.86 Part of the mutual accountability on which the system is premised is the idea that all are connected and bear responsibility towards one another. The maxim, ‘Inkosi yinkosi ngabantu’ or ‘morena ke morena ka batho’ (a chief is a chief by the people), captures the fact that the chief depends on his or her people’s allegiance and support, and his or her legitimacy in their eyes.87 It is on this basis that the voices of ordinary members of a community are, in fact, an important element in the appointment of a traditional leader and are entitled to hold their leader accountable. Kuper, and later Hammond-Tooke, refer to the ‘community-in-council’ at various levels of the community holding this right of participation in the governance of their community.88 In Bhe, the Constitutional Court observed: The positive aspects of customary law have long been neglected. The inherent flexibility of the system is but one of its constructive facets. Customary law places much store in consensus-seeking and naturally provides for family and clan meetings which offer excellent opportunities

for

the

prevention

and

resolution

of

disputes

and disagreements.89 In the Court’s view, these were some of the elements that rightly justified the protection of customary law under the Constitution. The TLGFA provides a tiered way of resolving disputes and claims concerning traditional leadership. It is only with regard to this, together with an annual accounting by the traditional council under section 4, discussed below, that the role of the community is explicitly mentioned. If the dispute arises ‘between or within traditional communities or other customary institutions on a matter arising from the implementation’ of the TLGFA, members of the traditional community concerned and its traditional leaders or those forming part of its customary institutions, which may, by definition, include the royal family, are required to try to resolve it themselves first in terms of customary law before referring the matter to the Commission.90 If they fail, then the matter can be referred to the provincial house of traditional leaders 399

which must attempt to resolve it according to its internal norms and processes. If they cannot resolve it, then the Premier must receive the matter and consult with the parties to the matter as well as the provincial house of traditional leaders before settling the dispute. Only if the dispute has been unsuccessfully resolved at these three stages can it be referred to the Commission in terms of sections 21(2)(c) and (3) of the TLGFA. 13.4Powers and functions of a traditional council and leader Section 4(1) of the TLGFA sets out a list of supportive functions to be performed by a traditional council. In general, a traditional council must administer the traditional community’s affairs according to ‘custom and tradition’ and aid the traditional leader in carrying out his or her duties.91 In addition, traditional councils are to participate in and advance cooperative governance and thus assist local, provincial and national government in developing and delivering its planned service delivery and development programmes. Section 5 of the TLGFA sets out the duty of national and provincial government to encourage partnering between municipalities and traditional councils. It provides that traditional councils may enter into service delivery agreements with municipalities in terms of the Local Government: Municipal Systems Act92 and other relevant legislation. Ultimately, traditional councils are to carry out whatever functions are assigned to them by customary law and statutes that are in keeping with the Constitution. Unlike the traditional council, which has a long list of general functions, the traditional leader is to perform the functions that the traditional community’s ‘customary law and customs’ dictate as well as those given by legislation.93 A critical question concerns the functions of the traditional leader in relation to the making of customary law. PAUSE FOR REFLECTION Can traditional leaders make customary law? A common point of contention is whether or not traditional leaders can make customary law in a manner akin to legislation. According to Comaroff and Roberts,

400

whose study looked at baTswana ‘rules and processes’, traditional leaders have a limited legislative function. Their law making is subject to a combination of: •their legitimacy in the community •consultation with their council •introducing rules that give expression to the changes of practice that are already occurring in the community.94 The traditional leader typically seeks to ensure that his or her legislation is restricted to mere pronouncements on the ways in which the community has already developed the law. In other words, the legislation reflects what the community is already doing. Legislation that is inconsistent with the general will of the people can happen. However, its effectiveness depends on the traditional leader’s legitimacy in the eyes of his or her people. If a traditional leader has significant legitimacy in the eyes of his or her people, they will assimilate and adopt the law that he or she has issued. If the traditional leader has minimal legitimacy, they will simply exclude his or her ruling from the ‘repertoire of norms’ from which they draw in their everyday lives and in their arguing of cases.95 There is an additional long list in section 20 of the TLGFA that sets out the areas where traditional leaders and councils may be given a role. These include land administration, health, welfare, administration of justice, safety and security, registration of births, deaths and customary marriages, economic development, the management of natural resources and education, among others. If national or provincial government organs assign roles to traditional councils or leaders, they are under an obligation to do the following: •Consult relevant traditional leadership structures and the South African Local Government Association. •Ensure that the role conforms to the Constitution. •Consider the customary law of the relevant traditional community. Some of the goals of giving traditional leadership institutions a role in the listed spheres are to ensure uniformity in the implementation of policies in areas under the jurisdiction of traditional councils, as well as cooperation and integration in planning and service delivery.96 The organ of state that allocated the role is to oversee the 401

realisation of these goals. The reason for this is that conflicts sometimes arise between traditional leadership institutions and the various spheres of government when these institutions exercise functions falling into these administrative areas. The conflicts arise mostly between wall-to-wall local government and traditional institutions which effectively claim the powers of local government. The concepts of formal and substantive uniformity are important to the understanding of the goal of uniformity in the implementation of policies in areas under the jurisdiction of traditional leadership institutions. PAUSE FOR REFLECTION Formal and substantive uniformity in relation to the roles of traditional leadership institutions A question to ask with regard to the goal of uniformity is whether formal or substantive uniformity is envisaged. In the present instance, formal uniformity, which is to a large extent adopted by the TLGFA, refers to identical recognition and rules in all traditional council areas. This form of uniformity may result in different outcomes in different places by virtue of the diversity of histories and existing conditions on the ground. Furthermore, formal uniformity has the potential to hamper the inherent flexibility (variability and adaptability) of living customary law forms of governance. By contrast, substantive uniformity refers to the realisation of effectively equal outcomes. Therefore, varying rules and processes may be adapted to different places to accommodate the degrees of legitimacy and existing strengths and weaknesses between traditional leadership institutions in different parts of the country. The goal in this instance would be that of defining a set of socio-legal conditions that would result in just and positive outcomes universally. Legislation is, in some ways, a rigid and thus limited tool by means of which to achieve substantive uniformity. Yet, legislation is also a good way of providing traditional leaders and councils with roles in so far as it offers publicity to the exercise and allows for the possibility of ordinary rural people participating in the lawmaking process. However, in practice, rural people are seldom able to participate effectively as they live in remote areas. Detailed, accessible information on the laws seldom makes the mainstream media or reaches community media outlets.

402

In brief, the TLGFA largely adopts the idea of formal uniformity in the implementation of policies in areas under the jurisdiction of traditional leadership institutions. In this way, it limits the extent to which each community can determine how to evolve its customary law of governance in ways that go beyond the hierarchy of narrow categories of traditional leadership and hereditary succession envisioned by the legislation. While the TLGFA tries to balance rigidity (uniformity and certainty) with the flexibility of living customary law forms of governance, it largely errs too far on the side of rigidity by preferring formal instead of substantive uniformity. In doing so, it endorses a specious vision of traditional leadership.

13.5 Funding Terminology tribal

annual or sometimes ad hoc sums of money that leaders require of people who live in

levies

traditional communities The issue pertaining to the funding of the institution of traditional leadership raises a number of questions. Who can collect funds, when, from whom and how? What can we do with the funds and how do we make sure that funds are used correctly? Since the Constitution gives only national and provincial government taxation power and this power can be delegated only to local government97 subject to stringent procedures, government is the only source of funds for traditional councils and leaders. Thus, the form of funding specifically defined by the TLGFA is state funding. Section 20(2) prescribes that national or provincial government must attempt to make sure that it gives the traditional council or leader resources when it allocates a role or function to them and that these are appropriately monitored and accounted for. It must also ensure that the function is, in fact, carried out in accordance with the Constitution.98 If a traditional council does not perform, the

403

assigned resources may be reversed.99 Additionally, the Remuneration of Public Office Bearers Act100 permits the payment of traditional leaders. Section 4(2) of the TLGFA requires provincial legislation to prescribe the manner in which traditional councils carry out their functions. The minimum that the provincial legislation must provide for is that traditional councils maintain proper records, have their accounts and statements audited, disclose gifts received and comply with the code of conduct. Section 4(3)(b) then requires that a traditional council meet annually or more with its traditional community in order to account to the community regarding the council’s undertakings and funds, as well as ‘levies received by the traditional council’.101 Tribal levies are annual or sometimes ad hoc sums of money that leaders require of people who live in traditional communities. If people do not pay these levies, they are subject to sanctions. Examples of sanctions include: •the denial of access to the traditional court to have disputes resolved •the denial of a letter proving that a person resides in a particular traditional community without which the person cannot get an identity document, social grants or open a bank account •the denial of permission to be buried in the area of jurisdiction. Levies are to be distinguished from voluntary contributions that community members may elect to make for the purposes of a social or economic development project that will be of common benefit.102 Some controversy exists over the power of traditional leaders to levy their communities. COUNTER POINT Controversy over tribal levies In light of the history concerning tribal levies under apartheid, briefly noted above, the appearance of the word, ‘levies’, in the TLGFA has led to some concern. Another cause for concern is that taxation power is confined to government. In addition, granting power to traditional leaders to impose levies would lead to double taxation. This concern is well articulated in the White Paper on Traditional Leadership and Governance, July 2003, which said that: 404

[t]he authority to impose statutory taxes and levies lies with municipalities. Duplication of this responsibility and double taxation of people must be avoided. Traditional leadership structures should no longer impose statutory taxes and levies on communities. However, while double taxation of the poorest South Africans103 is surely to be avoided, so too is government’s requiring traditional councils and leaders to carry out functions assigned by it without providing them with sufficient funding for the task. THIS CHAPTER IN ESSENCE 

•Traditional leadership institutions are primarily governed by the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA).



•Living customary law also exists to govern this in practice and there are variations in such practice from community to community as a result of differences in culture and the variable impact of South Africa’s socio-political history.



•The TLGFA gives recognition to traditional leadership pursuant to sections 211(1) and 212(1) of the Constitution which recognise ‘the institution, status and role of traditional leadership, according to customary law’ subject to the Constitution and which allows government to legislate a role for traditional leaders in their local communities.



•The key challenge the TLGFA tries to address is how to undo the legacy of tribes that were mixed and matched under colonial, Union and apartheid legislation and tribal authorities who were illegitimately appointed over tribes so established, most notably in terms of the BAA of 1927 and the Black Authorities Act of 1951.



•In pre-colonial times, the saying that ‘a chief is a chief by the people’ captured the fact that the personal relationship between a chief and his people, without whom he had no chiefdom, was paramount; hence, the chief and the people were mutually dependent.



•To ensure accountability, chiefs were not independent actors but typically depended on and ruled with their councils (made up of respected local men).



•Social organisation was layered from the family, which had political authority and administrative oversight over the residence, its resources and its 405

members, to the clan or village to the community at large. Different people were tasked with the responsibility of each of these domains and most decision making took place at the most local level. 

•The version of traditional leadership conceived in colonial, Union and apartheid legislation mostly contradicted the pre-colonial reality, securing some of a chief’s political interests but not the ordinary people’s.



•As a result of colonial, Union and apartheid interventions, land was also in short and ever-decreasing supply so ordinary people who lost their main source of livelihood could no longer secede as a way of protesting against unpopular chiefs and compelling corrupt chiefs to be accountable.



•The TLGFA provides the terms of recognition of traditional leaders, communities and councils.



•Under the transitional arrangements in the TLGFA, in terms of section 28(1), the recognition of traditional leaders continues from before the legislation came into existence to the present.



•In terms of section 28(3), a ‘tribe’ that existed as such in terms of law at the time of the coming into operation of the TLGFA is deemed a traditional community under section 2 of the Act. This means that the territorial boundaries of the traditional community are those established in the latter half of the twentieth century. These same boundaries serve as the senior traditional leader’s jurisdictional boundaries.



•Tribal authorities established under the Black Authorities Act become traditional councils in terms of section 28(4), subject to the democratic election of 40% of their members and the inclusion of women to make up a third of their membership.



•When a senior traditional leader or headman/headwoman is to be appointed, the royal family is required to act within a reasonable time and ‘with due regard to applicable customary law’ in identifying a person whom customary law would permit to serve in the relevant traditional leadership position. They must then alert the Premier who officially recognises the person. A similar process applies to the

removal of

a

senior traditional leader or

headman/headwoman.

406



•Comaroff and Roberts say that traditional leaders’ law making in terms of living customary law is subject to a combination of the traditional leaders’ legitimacy in the community, consultation with his or her council and his or her introducing rules that give expression to the changes of practice that are occurring in the community already.



•Section 20(2) of the TLGFA prescribes that national or provincial government must attempt to make sure that it gives the traditional council or leader resources when it allocates a role or function to them and that these are appropriately monitored and accounted for, as well as that the function is, in fact, carried out in accordance with the Constitution. A contentious source of funding used in rural communities is tribal levies which are acquired from the rural community.

1Act 41 of 2003. 2North West Traditional Leadership and Governance Act 2 of 2005; Traditional Leadership and Governance Act 4 of 2005 (Eastern Cape); KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005; Limpopo Traditional Leadership and Institutions Act 6 of 2005; Free State Traditional Leadership and Governance Act 8 of 2005; Mpumalanga Traditional Leadership and Governance Act 3 of 2006; Northern Cape Traditional Leadership Governance and Houses of Traditional Leaders Act 2 of 2007. Other relevant legislation includes the National House of Traditional Leaders Act 22 of 2009; Remuneration of Public Office Bearers Act 20 of 1998; Local Government: Municipal Systems Act 32 of 2000; Intergovernmental Relations Framework Act 13 of 2005. 3By the Traditional Leadership and Governance Framework Amendment Act 23 of 2009. 4See Tongoane v National Minister for Agriculture and Land Affairs (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 2010) paras 75 and 79. 5See Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) para 190. While the Court does not define the meaning of 407

‘institution, status and role’ with regard to the constitutional provision for traditional leadership, it states that ‘powers and functions’ as well as ‘authority’ for traditional leaders are not guaranteed by the Constitution. It notes: Had the framers intended to guarantee and require express institutionalisation of governmental powers and functions for traditional leaders, they could easily have included the words ‘powers and functions’ in the first sentence of CP XIII. … It is to be noted further that [CPXIII.2 implies that] authority is not included in those features of traditional leadership which have to be recognised and protected. 6Act 38 of 1927. 7Act 68 of 1951. Of the Black Authorities Act, the Black Authorities Act Repeal Bill’s (B9-2010) Memorandum states at clause 1.2: ‘The Act was a legislative cornerstone of apartheid by means of which Black people were controlled and dehumanized, and is reminiscent of past division and discrimination. The provisions of the Bill are both obsolete and repugnant to the values and human rights enshrined in the Constitution.’ Also see Tongoane paras 10–29. 8S 22 of the TLGFA established the Commission on Traditional Leadership Disputes and Claims. 9(CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008). 10Shilubana para 44. 11Delius, P ‘Contested terrain: Land rights and chiefly power in historical perspective’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act University of Cape Town Press 214–18. 12Delius (2008) 214–21. 13Delius (2008) 214–21. 14Delius (2008) 214–21. 15Delius (2008) 215. 16Delius (2008) 215. 17Delius (2008) 215. 18Comaroff, JL and Roberts, S (1981) Rules and Processes: The Cultural Logic of Dispute in an African Context 80–3,180; Cook, P and Wilson, A (1931) Social 408

Organisation and Ceremonial Institutions of the Bomvana 146; Dutton, EAT (1923) The

Basuto

of

Basutoland 59–60;

Hammond-Tooke,

WD

(1975) Command or Consensus: The Development of Transkeian Local Government 67–8, 74 fn 13; Kuper, H (1947) An African Aristocracy: Rank among the Swazi; Mönnig, HO (1967) The Pedi 309; Reader, DH (1966) Zulu Tribe in Transition: The Makhanya of Southern Natal 259–60; Schapera, I (1970) Tribal Innovators: Tswana Chiefs and Social Change, 1795–1940 92; Wilson, M, Kaplan, S, Maki, T and Walton, EM (1952) Keiskammahoek Rural Survey Vol 3: 29–34. 19Delius (2008) 217–18. 20Delius (2008) 221–33. 21Okoth-Ogendo, HWO ‘The nature of land rights under indigenous law in Africa’ in Claassens and Cousins (2008) 101. 22Okoth-Ogendo (2008) 101. 23Wilson et al (1952) 30–2. 24Wilson et al (1952) 30–2; Okoth-Ogendo (2008) 101; Bennett, TW ‘‘Official’ vs ‘living’ customary law: Dilemmas of description and recognition’ in Claassens and Cousins (2008) 138–53. 25See Chanock, M (2001) The Making of South African Legal Culture, 1902-1936: Fear, Favour and Prejudice; Delius (2008). 26See fn 21 above. This can also be said with regard to communities researched within the last five years by the author in Mpumalanga and KwaZulu-Natal. 27Ibid. 28Delius (2008) 221–33. 29S 5(1) of the BAA. 30[1952] 2 All SA 9 (A). 31R v Kumalo 22. 321954 (3) SA 919 (A) 926G. 331959 (1) SA 686 (T) 688A. 34Delius (2008) 221–33. 351906 TS 135. 361907 TS 836. 371926 AD 71. 38Mokhatle v Union Government 76. 409

39S 4(1)(b) of the Black Authorities Act. 40Mandela, N (1959) Verwoerd’s Grim Plot Liberation No. 36, May 1959 7–17. 41Luthuli, A (1962) Let My People Go: An Autobiography Johannesburg/London: Collins 200. Reprinted by kind permission of HarperCollins Publishers Ltd © 1962 Albert Luthuli. 42Mbeki, G (1964) South Africa: The Peasants Revolt 234. 43Delius (2008) 221–33. 44Act 16 of 1985. 45Proc R151 of 1987. 46Act 37 of 1984. 47Claassens, A (2011) Resurgence of tribal levies: Double taxation for the rural poor South African Crime Quarterly 35:11–16 at 15. 48Oomen, B (2005) Chiefs in South Africa: Law, Power and Culture in the PostApartheid Era 40–2. 49Ss 78 and 79 of the Black Laws Amendment Act 42 of 1964. 50Delius (2008) 231–2. 51Delius (2008) 231–2; Mamdani, M (1996) Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism 79, 88, 122–8. 52(CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008) para 19. 53(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) para 52. 54Shilubana para 45. 55See Justice Mpondombini Sigcau v President of the Republic of South Africa Case CCT 84/12 [2013] ZACC 18. 56Act 23 of 2009. 57See http://www.dta.gov.za/index.php/entities/52-commission-on-traditionalleadership-disputes-and-claims.xhtml. 58It is worth noting here that the TLGFA does not at any point define customary law. It also commonly refers to customary law, custom and tradition either together or apart with the suggestion that they are of similar, if not the same, meaning. We make this assumption in this chapter. 59S 1(2): ‘Nothing contained in this Act may be construed as precluding members of a traditional community from addressing a traditional leader by the traditional 410

title accorded to him or her by custom, but such traditional title does not derogate from, or add anything to, the status, role and functions of a traditional leader as provided for in this Act.’ 60Hunter, M (1936) Reaction to Conquest: Effects of the Contact with Europeans on the Pondo of South Africa as cited in Delius (2008) 220. 61As defined in s 1 of the TLGFA. 62For example, the Restitution of Land Rights Act 22 of 1994 says that ‘“community” means any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group, and includes part of any such group’. The Interim Protection of Informal Land Rights Act 31 of 1996 says, ‘“community” means any group or portion of a group of persons whose rights to land are derived from shared rules determining access to land held in common by such group’. The Communal Property Associations Act 28 of 1996 says ‘“community” means a group of persons, which wishes to have its rights to or in particular property determined by shared rules under a written constitution and which wishes or is required to form an association as contemplated in section 2’. The Upgrading of Land Tenure Rights Act 112 of 1991 says ‘“community” means a group of persons of which its members have or wish to have their rights to or in a particular piece of land determined by shared rules’. This definition was inserted by s 1(a) of the Upgrading of Land Tenure Rights Amendment Act 34 of 1996. The latter legislation also says that ‘“tribe” includes – (a) any community living and existing like a tribe; or (b) any part of a tribe living and existing as a separate entity’. 63Unreported judgment Case No 1402/2004 (High Court, Transkei Division); judgment delivered 15 Sept 2005. 64(CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004). 65S 1(1) of the TLGFA. 66The author has encountered each of these examples in communities researched by her in Mpumalanga and KwaZulu-Natal. 67S 12(1)(a), (b) and (d) of the TLGFA. 68S 11(2)(b) of the TLGFA. 69S 11(3) of the TLGFA. 70Traditional Leadership and Governance Act (Eastern Cape). 411

71S 1 of the Remuneration of Public Office Bearers Act; also see s 29 of the TLGFA. 72[2011] ZAECMHC 8 (26 May 2011). 73[2011] ZAECMHC 8 (26 May 2011). 74Unreported Case No 50275/09, Gauteng, 10 June 2011. 75Unreported Case No 50275/09, Gauteng, 10 June 2011. 76(CCT 93/12) [2013] ZACC 18; 2013 (9) BCLR 1091 (CC) (13 June 2013). 77Sigcau para 15. 78Sigcau para 3. 79Sigcau para 15. 80Sigcau para 15. 81Sigcau para 18. 82Sigcau para 18. 83Shilubana para 72. 84Shilubana para 5: ‘On 5 August 1997 the Royal Council accepted and confirmed that Hosi Richard would transfer his powers to Ms Shilubana. On the same day, a ‘duly constituted meeting of the Valoyi tribe’ under Hosi Richard resolved that ‘in accordance with the usages and customs of the tribe’ Ms Shilubana would be appointed Hosi.’ 85Shilubana para 45. 86See fn 21 above. 87Delius (2008) 214–18. 88Hammond-Tooke (1975) 67–8, 74 fn 13. Based on recent research, the author can confirm that this remains the case in contemporary circumstances in at least the ethnic groups of which Kuper and Hammond-Tooke were writing and in some communities in KwaZulu-Natal. 89Bhe para 45. 90S 21(1)(a) of the TLGFA. 91Compare s 4(1)(a) in terms of which the tribal authority was to ‘administer the affairs of the traditional community in accordance with customs and tradition’; and s 4(1)(b) in terms of which it was to assist the traditional leader to carry out his or her obligations. 92Act 32 of 2000. 93See s 19 of the TLGFA. 94Comaroff and Roberts (1981) 80–3. 412

95Comaroff and Roberts (1981) 80–3. 96S 20(2)(f) and (g) of the TLGFA. 97See ss 43 and 104, ss 226 to 230A and s 228(2)(b) of the Constitution. 98S 20(3)(a) and (b) of the TLGFA. 99S 20(4) of the TLGFA. 100As amended by Act 9 of 2000 and the TLGFA in 2009. 101The Limpopo Traditional Leadership and Institutions Act is the only one that specifically permits levying by traditional councils. Eastern Cape, North West and Northern Cape legislation provides for voluntary contributions. 102Claassens (2011) 15: ‘There is a long-standing practice of groups of African people agreeing to finance specific development projects by clubbing together to raise funds. Historically this was the primary mechanism that black people used to purchase land’. 103The highest concentration of people who live on less than R400 per month is in the former homelands (more than 72% of the population) and 59% of people living in these areas are women.

413

Chapter 14 Traditional courts 14.1 Introduction 14.2 Arrangement and constitution of traditional courts 14.3 Personal, territorial and substantive jurisdiction 14.4 Powers and process of traditional courts 14.5 Divergence between the regulations and customary practices This chapter in essence 14.1 Introduction This chapter seeks to provide answers to the following questions: 

•Who has power to make or define laws in the context of disputes in customary communities?



•Similarly, who can resolve people’s problems and apply those laws in a ‘judicial’ context?



•Whose problems can they resolve and apply those laws to?



•What problems can they resolve and by what means?



•What punishments and sanctions can they impose?



•What differences exist between the official customary law regulatory framework and current customary practices with regard to various aspects of the courts’ work?

Put differently, the chapter deals with the constitution and distribution of traditional courts, their jurisdiction (personal, territorial and substantive), the extent of their powers for the purposes of administering justice and the divergences between the theory and practice with respect to their operations. These questions are presently covered by the Black Administration Act (BAA). 1 In other words, they are largely governed by official customary law. Only three provisions

of

the

BAA,

those

dealing

with

traditional

courts,

are

still

in operation.2 The questions concerned are also covered by a host of legislation passed by the former homelands. This legislation continues to apply in terms of the 414

transitional arrangement declared by the Constitution to that effect.3 Section 16(1) of Schedule 6 of the Constitution states: ‘Every court, including courts of traditional leaders existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable …’ The Traditional Courts Bill (B1-2012) is meant to repeal all this outdated legislation but has not yet been passed into law. The reason for this is that it met with resistance from organisations and a cross section of people who raised the concern that

ordinary

people

had

not

been

consulted

during

4

the 5

drafting process. Substantive concerns have also been raised against the Bill. The BAA has therefore been extended until such date as replacement national legislation to regulate further the matters dealt with in sections 12(1), (2), (3), (4) and (6) and 20(1), (2), (3), (4), (5), (6) and (9) and the Third Schedule of the Act is implemented.6 This chapter focuses on the regime in terms of the BAA and cross-references the way in which traditional courts operate in practice. This has been documented by ethnographers writing in the mid- to late twentieth century, a recent ethnographer whose research was conducted in the Limpopo region as well as the author in research conducted during the last six years.7 PAUSE FOR REFLECTION Is there a need for a uniform system of customary courts? Is there any good reason why there should be a uniform regulatory framework for all traditional courts in South Africa? Put differently, why should each traditional court not be left to function as a court of law on its own in accordance with the customary law of the indigenous community with which it is associated. This question may sound rhetorical, but it is actually not. This is a serious dilemma for anyone seeking to answer such a question, especially in the South African context. On the one hand, the Constitution and the Constitutional Court have recognised a form of customary law (living customary law) representing the customary practices of the country’s diverse indigenous communities. In addition, this system of law and its institutions are by nature flexible and dynamic. Both these factors defy any idea of a uniform regulation of traditional courts that, although envisaged to be state courts, are premised or are to be premised on the nature of ‘living’ traditional courts.

415

On the other hand, once established as courts of law as opposed to, for example, arbitration or mediation tribunals, these courts are state institutions and they, like any other state institution, would be accountable for upholding the rule of law. As we saw in chapter 3 of this book, the rule of law is a founding principle in the South African Constitution. Thus, the answer to the question under consideration requires more than a rhetorical answer; it requires a balancing of two competing values underpinning the institution of traditional courts within the context of the South African constitutional framework. In this context, what is the answer to the question posed? We submit that the maintenance of the rule of law is the reason for requiring a uniform regulatory framework for all traditional courts. Once recognised as courts of law, these institutions will wield state power for which they need to be held accountable by a regulatory framework that is aligned with the Constitution and its values. However, it will be necessary for the regulatory framework to include principles for the constitution and operation of these courts that help to retain the essential elements (that is, virtues and values) of traditional justice derived from robust research and rural people’s experiences that are compatible with the Constitution. In this, it is important also to keep in mind that some of these elements of traditional justice cannot be fixed in law as they are, by nature, flexible or negotiable. Two other reasons may be mentioned. First, uniform regulation provides for greater supervision, curbing of indiscretions, corruption and arbitrariness. Second, uniform regulation enhances the functioning and organisation of the courts and the provision of their operational resources. Although customary courts have come under much criticism in the context of the legislative process around the Traditional Courts Bill, there are strong grounds on which

to

protect

them

and

to

strengthen

their

consistency

with

8

the Constitution. In Certification of the Constitution of the Republic of South Africa, 1996,9 the Constitutional Court held that customary courts fall under section 166(e) of the Constitution. They are, thus, one category of ‘any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrates’ Courts’. Besides their constitutional legitimacy, there is no question that, on a practical level, customary

416

courts are much needed in remote parts of South Africa where there would otherwise be no readily and economically accessible forums by which to obtain justice. 14.2 Arrangement and constitution of traditional courts It is an established notion that the power to resolve disputes is central to the ability to govern at all, and certainly effectively.10 The recognition and, in the process, the establishment of ‘native’ courts was therefore vital to the changes in governance of customary communities introduced by the colonial, Union and then apartheid governments. The BAA gave explicit recognition to and regulated what are now called traditional courts. In its original guise, the BAA saw the role of the traditional leader as central, if not exclusive, in tribal dispute resolution. The titles of the sections that recognised these forums illustrate the point: section 12 was titled, ‘Settlement of civil disputes by native chiefs’, and section 20 was named, ‘Powers of chiefs to try certain offences’. By providing for traditional courts as principally constituted by chiefs who were taken largely to know or to dictate customary law in their individual persons, the BAA effectively made the chiefs both legislators and adjudicators.11 The provisions were later amended to accommodate the existence of headmen structures as subordinate to chiefly structures.12 However, the BAA did not give full expression to the multilayered nature of customary communities and their dispute resolution forums by ignoring family courts, for instance. This point deserves further interrogation. COUNTER POINT Layers of dispute resolution forums Customary courts do not exist at only one level (the chief’s court) or even two (the headman’s court). Rather, as Wilson observed in Keiskammahoek in the former Ciskei, a ‘lineage remnant’ council constituted the dispute resolution forum where family matters were at issue.13 If the matter at issue were of inter-family concern, the combined councils of both families involved in a dispute would form the ‘court’. If they failed in their attempt to resolve the dispute, the matter might continue to the local village section council, also known as the subheadman’s court, and then to the village council, which was the headman’s court. There, the headman’s court was the highest.14 However, the account illustrates the point well: there are four to five 417

different court formations available in this community. The BAA’s recognition and regulation of only the headman’s court in this community was simply scratching the surface of the traditional justice system applicable in the community described. Figure 14.1 illustrates the extent of overlap with the layered nature of governance depicted in the previous chapter. This involves the family at the lowest level of social organisation,15 then the neighbours, followed by subwards and wards and, lastly, the community at large. The kinship system may operate because people may live in close proximity to their relatives. Thus, family forums right through to ward councils may be largely kinship-based. However, the kinship system may also be challenged by the levels of migrancy and mixing that have occurred in the past and continue to occur in the present. Thus, the forums at each level may also be somewhat diversely constituted. What is most evident, however, is that a case is not bound to a linear process. As Van der Waal also describes it, ‘people [are] aware of the possibilities of “shopping around” for the most favourable adjudication mechanism’, both within and outside the traditional court system, and among forums exhibiting varying degrees of formality.16

Please refer to the attached diagram

Figure 14.1 The diversity of customary dispute resolution forums in a single community

418

In expanding its remit to include the possibility of authorising headmen to hold their own court, the BAA also failed to appreciate the fact that customary courts cannot be likened to state courts as elaborated below. PAUSE FOR REFLECTION Customary courts as spaces for community participation Typically, customary courts are organically constituted. In other words, ordinary, local members of the community form the ‘community-in-council’ whether family council, neighbourhood council, ward council or chief’s council.17 Van der Waal writes of traditional courts in Limpopo that ‘customary courts are more open (“like democracy”) because all adults can participate in them, they are public …’ 18 There is an overseer of the process who may be the family head, neighbourhood foreman or tribal policeman,19 headman, or chief headman or chief,20depending on which court is concerned. Their role is simply to chair the meeting rather than to act as a judge. Many ethnographers documenting practice in different customary communities in South Africa note this principle.21 Hammond-Tooke writes about the Transkei in his book about ‘command or consensus’ that ‘chiefship is sacred and, as such, must be above criticism or reproach. This is achieved by effectively withdrawing the chief from the decision-making process’.22 He adds that a chief who contradicted the will of his people was in danger of losing their allegiance and, therefore, possibly his very position.23 He emphasises that it was important that consensus be reached. He defines consensus as the ‘legitimation of commands by the majority decision of a broad-based body’.24 Similarly, writing about baSotho, Dutton25 observes that anyone could participate in asking questions and that, although the headman would announce the decision, he generally only summarised the majority view.26 Dutton observes the distinction between the theory that the headman can make any decision he chooses and the practice that the decision he gives is generally the sentiments of those present with the exception of women. The exclusion of women from traditional justice mechanisms is a serious and highly contentious issue for good reasons. First, the exclusion is a human rights issue pertaining to gender equality in decision making and participation at local-level governance. Second, participation in customary dispute resolution equals participation in the making of living customary law. 419

COUNTER POINT Women’s exclusion While customary dispute resolution forums typically allow ordinary members of the community to participate, they tend to exclude women in two ways: •First, they often exclude women from involvement as members of the courts who can participate in the hearing, questioning and deliberations around a case. •Second, they often exclude women from presenting their own cases if they come before the court as litigants. Women therefore most often play the role only of witnesses. Yet, even then, in some communities the testimonies of women are treated with suspicion because women are believed to be gossips and to lack the clarity of mind and strength of character that men possess.27 Section 3(1) of the BAA entrenched the rule excluding women from customary decision-making forums where it said that only ‘the adult male members of the tribe’ could participate in community decision making. This rule was complemented by another

rule

that

declared

women

in

customary

communities

to

be

perpetual minors.28 It later became a part of living customary law.29 This trend is slowly changing, however. In places where the traditional councils under the TLGFA also hear disputes, the third of the traditional councils who are women are invited to participate in dispute resolution.30 In some places where women were not permitted to attend traditional courts or were required to sit outside the court and relay information to the court through a male representative, women are now permitted to enter the court space. However, in some of the latter places, women are still not allowed to speak for themselves.31 Yet, even where women are no longer denied entrance into customary courts or to speak in the courts, a problem still persists around widows. When women have lost a spouse or other loved one, are in mourning and hence are wearing black, they are almost always denied access to public spaces, including customary courts. Therefore, if they are involved in a dispute with in-laws or older male relatives over the property of the deceased, which the women are supposed to inherit, they are not

420

able to represent themselves in the dispute.32 They are consequently rendered even more vulnerable to property grabbing than they already are.33 14.3 Personal, territorial and substantive jurisdiction The BAA granted chiefs and headmen power to hear both civil and criminal cases in their areas of jurisdiction – in other words, within the territorial boundaries of the areas under their ‘control’. However, recognised or appointed traditional leaders (chiefs and headmen) had to be authorised specifically to be able to consider or settle civil cases and they had to be authorised in writing to decide criminal matters.34 While the jurisdiction of traditional leaders was largely territorially defined, it was also personally defined. If these traditional leaders were so authorised, they could hear only those civil cases brought to them by black people against other black people living in their area of jurisdiction. They also had to have the power conferred on them to ‘try and punish’ black people who committed an offence in their jurisdiction. This is technically still the case. As far as their substantive jurisdiction is concerned, the customary courts were permitted to hear any civil cases except for questions of ‘nullity, divorce or separation arising out of a marriage’.35 Schedule 3 of the BAA excluded a long list of criminal matters: treason; crimen laesae majestatis; public violence; sedition; murder; culpable homicide; rape; robbery; assault with intent to do grievous bodily harm; assault with intent to commit murder, rape or robbery; indecent assault; arson; bigamy; crimen injuria; abortion; abduction; offences under any law relating to stock theft; sodomy; bestiality; and any offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act[36]; breaking or entering any premises with intent to commit an offence either at common law or in contravention of any statute; receiving any stolen property knowing that it has been stolen; fraud; forgery or uttering a forged document knowing it to be forged; any offence under any law relating to illicit possession of or dealing in any precious metals or 421

precious stones; any offence under any law relating to conveyance, possession or supply of habit-forming drugs or intoxicating liquor; any offence relating to the coinage; perjury; pretended witchcraft; faction fighting; man stealing; incest; extortion; defeating or obstructing the course of justice; any conspiracy, incitement or attempt to commit any of the above-mentioned offences. With regard to the long list of crimes that were excluded, two things are particularly striking: •First, many of the crimes listed would not be crimes under customary law as they would not be issues that would typically arise in a customary setting. •Second, a number of the crimes are, in fact, tried regardless in customary courts. The case of S v Dalindyebo,37 in which the king of abaThembu was convicted of egregious punishments against his people whom he had tried for offences, including murder, rape and robbery, provides detailed proof of this.38 However, many customary courts resist trying anything but petty crimes. If they hear cases concerning severe crimes, it is usually not in the sense of exercising an imagined criminal jurisdiction, but rather in the sense in which criminal cases present the possibility of civil claims for compensation. Section 12(4) of the BAA provides for appeals from the customary court to the magistrates’ court.39 It alludes to the fact that the civil jurisdiction of customary courts is not exclusive, and thus people subject to the court’s jurisdiction could rather choose to initiate their case at the magistrates’ court. The suggestion is also that, once a matter has been initiated at a customary court as the court of first instance, it can only go to the magistrates’ court on appeal. PAUSE FOR REFLECTION Choice of court Customary dispute resolution forums are not just layered but allow people to contest decisions and/or choose their forum either within the customary system or outside it in many instances. Even under apartheid, while appeals took place internally, appeals also took place in the Native Commissioners’ Courts and magistrates’ courts.40 Kuper notes that 422

among emaSwati, there was even sufficient flexibility so that people could create new forums when the need arose. Thus, neighbours would gather informally to resolve an issue arising in their area.41 Even today, at any stage of the process documented in Figure 14.1, the parties may decide to exit the system and go directly to the police and/or magistrates’ court. This includes the final stage if the chief’s court does not yield a satisfactory resolution. Sometimes, the traditional leaders, such as the tribal policeman and headmen, either encourage their people to take their matters to the police or bring the matters to the police’s attention themselves.42 14.4 Powers and process of traditional courts Section 20(2) of the BAA established that the trial procedure as well as ‘the punishment, the manner of execution of any sentence imposed and … the appropriation of fines’ would take place in accordance with customary law except to the extent that this was modified by the Minister. The only regulations that the Minister passed in this regard, using his power under subsection (9), were to do with notice of appeal.43 PAUSE FOR REFLECTION Values of customary dispute resolution The rules set out in the BAA and its regulations are highly formalistic. They are therefore more consistent with the state courts and are quite contrary to the nature of customary dispute resolution as it actually operates as well as to its values.44 We highlighted the first broad value earlier: namely, the value of community participation in the determination of truth. This manifests in the process being relatively open, simple and informal, in other words, non-professionalised. The decisions are therefore not based on precedent. The second important value is that of reconciliation, that is, wanting to restore peace and harmony between the parties. Part of the objective here is the facilitation of the reintegration of the offender into the community without reprisal by the wounded party. This is easy to understand in the context of customary community members living mutually dependent lives, often in close quarters, and, historically, not having had any system of imprisonment. It is important that harmony be restored so as to ensure that the parties and wider community can continue to share their 423

lives: witnessing each other’s marriages and marking other ceremonies together, often sharing the use of the land and other natural resources, and helping to protect one another from outside threats. The term, ‘ubuntu’, captures this sentiment well in that it speaks of the fact that the relationships among the people who form the community are part of what imparts humanity to each person. Mutual respect, which might be shown through an apology at the end of a dispute, and forgiveness are therefore expressions of this shared worldview.45 The third set of values is closely connected to the others – these are the values of community responsibility and communal responsibility. Community responsibility refers to the duty an individual owes to the community. Contrast this with the rights owed to an individual, which is often emphasised in Western-style justice systems. Again, the idea, commonly referred to as ubuntu, that ‘a person is a person through and because of other people’ seeks to capture the essential value that an individual depends on, and is depended on by, those around him or her. Although attention is rarely drawn to this element of ubuntu, partly encapsulated in this idiom is the reality of individuality: after all, it is the individual who is being constituted through his or her relationships with other individuals. Hence, there is certainly a notion of individual rights in customary law and dispute resolution. However, this notion is not as emphasised as it is in Western systems. Indeed, as Van der Waal observes in Limpopo courts, ‘[t]he emphasis is on social outcomes rather than on individualising outcomes.’46 Thus, because the individual’s right is so embedded in the community, it can be overlooked and sometimes completely ignored. Communal responsibility refers to the possibility of more than a single individual bearing responsibility for a wrong. Hence, whichever is appropriate in the particular case, restoration of what is lost or compensation for the loss or damages (both being themselves high values) are often required to be paid not just by the perpetrator, but by the entire community. Contributions might be sought from their family and sometimes the wider community also contributes. This section is not intended to idealise the traditional justice system but to note the values underlying the system. Unfortunately, these values are not always expressed in ways that are appropriate in a constitutional democracy. Examples include instances where communal interests are placed above those of individuals to the detriment of individuals and their rights. They also include the common failure of customary courts to recognise fully and protect the rights of women, children and 424

other vulnerable persons. Therefore, the express manifestation of these values sometimes requires redefinition. Indeed, the Constitution provides appropriate frameworks for such redefinition. This includes its equality provisions and section 39(2) that requires the courts to develop customary law in accordance with the spirit, purport and objects of the Bill of Rights when necessary. Since the coming into operation of the Constitution, limitations on traditional leaders’ powers have been included in the BAA itself.47These limitations are that traditional leaders cannot punish people by ‘death, mutilation, grievous bodily harm or imprisonment’. Nor can they impose a fine greater than R100 or ‘two head of large stock or ten head of small stock’. They also can no longer legally punish people corporally.48 However, official customary law under the rules made in terms of the BAA continues to regulate the process of the courts. PAUSE FOR REFLECTION Traditional courts’ powers to change customary law There is plenty of evidence that traditional courts develop customary law in the process of their dispute resolution. For instance, Comaroff and Roberts describe the developments to the Tswana law of succession evolved by the traditional courts as adapting customary law under two conditions: first, in light of changes in practice meeting the particular concerns raised by the case with which the court is confronted, and, second, the social legitimacy of the chief whose court is handing down the law-changing decision being significant enough to persuade the community to embrace the change as law.49 In the present day, the Constitution has had some effect on community attitudes and, in turn, those of some traditional leaders. Mbatha describes the changes made by traditional courts in the context of succession cases as a response to the social problems resulting from a restrictive official customary law. These changes, while not explicitly responding to the need for rights protection expressed by the Constitution, respond to it nonetheless.50 Similarly, Van der Waal describes the example of a headman’s court holding that a man should consult his first wife before undertaking the customarily permissible act of marrying a second. This decision was in response to the activist behaviour of 425

women attending the court in Limpopo. The same court held that a woman denied the right to marry by her father could circumvent his disapproval if it continued by approaching the magistrates’ court, even though customary law would previously have required that the daughter bend to her father’s wishes. The court also held that a widow should not be compelled to enter into marriage with her brother-in-law although the customary practice required that she do so.51 In terms of rule 1 of the Chiefs’ and Headmen’s Civil Court Rules,52 enacted under section 12 of the BAA, the procedure applying to civil claims is that of ‘the recognised customs and laws of the tribe’. The Rules seek to regulate a wide variety of matters: •rule 2: granting permission for chiefs to hear matters in the absence of the defendant under certain conditions •rule 3: adjournments and delays •rule 4: avoiding bias by traditional leaders •rule 5: banning legal representatives from customary courts •rule 6: requiring quadruplicate records of proceedings •rule 7: registration of judgments recorded under rule 6 with the commissioner •rule 8: how judgments are to be executed, although they are to be executed according to custom, and that obstruction of execution of a judgment is an offence liable to a fine or, if not paid, imprisonment •rules 9 and 10: the appeal of decisions to the area commissioner, now magistrate •rule 11: in the case of an appeal, the furnishing of the chief’s reasons for the judgment. An important issue relating to the powers and process of traditional courts concerns the doctrine of separation of powers. COUNTER POINT Separation of powers According to the doctrine of separation of powers, which is tacitly included in the Constitution, the executive, legislature and judiciary have separate functions that are performed by different people staffing these organs. This is so that they can ‘check and balance’ one another. Under customary law, especially as enacted during 426

apartheid, traditional leaders, namely the chiefs and to a lesser degree the headmen, perform functions falling under all of these spheres. In the case of Bangindawo v Head of the Nyanda Regional Authority,53 a challenge was brought against the regional courts in Transkei. These courts are statutory tribunals staffed by traditional leaders.54 The grounds of the challenge were a lack of observation of the separation of powers and the violation of independence and impartiality. The Court held that customary law does not observe a clear separation of powers akin to that in common law and thus the tests for independence and impartiality were not applicable. Yet, in the Court’s judgment, adherents would not view traditional leaders as biased on grounds of lack of separation and their exercise of executive powers as well as judicial powers. Mhlekwa and Feni v Head of the Western Tembuland Regional Authority55 did not overrule Bangindawo which had been concerned with only civil jurisdiction. The Court in this case held differently. While the Constitution does not explicitly mention the separation of powers doctrine and section 165(2) does not preclude traditional leaders from being judges simply because they exercise other governance functions, ‘some of the functions performed by a chief are such that it may potentially involve him or her in controversial public issues and may create the perception of an unduly close relationship with the executive branch of government’.56 The Court continued that ‘the Regional Authority Courts Act does not presently include any measures or other guarantees to ensure judicial independence’.57 The Court also had in mind the severity of prison sentences that the Transkeian regional courts could impose in criminal cases. We can, indeed, see how independence and impartiality may be more important in the context of criminal matters than in civil cases. However, it is worth noting that if customary courts were more accurately reflected in legislation to capture their broad community participation in the process, the issue of impartiality and independence would take on a different form. The Chiefs’ and Headmen’s Civil Court Rules, in particular rule 13, set out an intricate fee scale whereby charges are to be paid to the chief. This applies if the customary law of the traditional community does not prescribe fees. Specific charges are for the chief’s:

427

•hearing of the case on the first day and giving judgment – R2,00 to be paid in advance •hearing the case on the second and subsequent days – R1,00 •providing a written record – R0,25 •attending the Commissioners’ court and providing reasons – R0,25 •travel as necessary – R0,25 per mile of the shortest route. Fees are also paid to the messenger of the court for his travel as necessary, except that travel for the delivery of the written record (R0,02½ per mile of the shortest route) and for serving, delivery and executing a message (R0,20). It is hard to know to what extent this formula was ever adhered to but it can generally be said that it is not being adhered to today. This is evident from the South African Law Commission (SALC) report on traditional courts and the judicial function of traditional leaders.58 This is also apparent from empirical research discussed below. The practices regarding both the fees and fines for criminal offences are different from those prescribed by the regulations. COUNTER POINT Fees keeping up with the times With regard to the scale of fees for civil cases, empirical research shows that this is not followed except in broad strokes.59 Thus, fees typically charged by customary courts for bringing a case are as little as R30 or as much as R100. In some courts, only the applicant pays the fee. If their case is successful, they can recover it from the defendant when judgment is given. In other places, both parties pay the fee. In some areas, a fee of perhaps R3060 or R50 is required for ‘raising the court’ when the case is concluded. This fee may then go towards buying food and drinks for the council after it has heard the case. In other places, the fee is higher or is simply deemed an entitlement of the chief to have a cow over and above the cow that the wrongdoer is fined.61 It is worth noting that in the present-day economy, R100 is not equivalent to either two head of small or large stock.62 The maximum fines given for criminal cases in the BAA are therefore extremely out of date.63 In many customary courts, fines equivalent to one head of large stock run up to about R1 500.64 Indeed, such fines 428

are not simply applied to criminal cases, but often to civil cases too. However, in civil cases, what losers of the case pay varies greatly by virtue of not only the local practice, but also what they themselves may ask for in light of how they value their loss and hence what they demand as compensation for it. Of course, compensation is also often granted in the case of criminal matters and this may vary too.65 14.5 Divergence between the regulations and customary practices It is unsurprising that the official legal framework for customary courts is completely out of touch with reality on the ground – after all, it is 85 years old. On the one hand, the reasons for its dissonance with living customary law primarily include: 

•its failure to recognise that multiple forums exist at different levels of social organisation



•that multiple actors participate in and contribute to dispute resolution in each of these forums



•hence, traditional leaders do not singly exercise the role of administering justice.

In fact, each of the steps in the customary dispute resolution system is designed to provide an opportunity for the dispute to be settled as soon as possible and in the most immediate relational circle of the individual. On the other hand, the divergences in respect of court process are largely attributed to prevailing modern economic conditions. As mentioned in the introduction, the constitutionally recognised need for customary courts to give access to justice to poor people in remote rural areas across South Africa is undeniable. However, the kind of regulatory framework that is needed to replace the present law is one that is nuanced enough to cope with the stark differences between customary and state courts. This means that it should recognise customary courts on their own terms, which requires permitting their more multilayered and multivocal basis. Yet, coupled with that must be articulation with section 34 of the Constitution in its provision that ‘[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’. The regulatory framework must therefore provide sufficient constitutional safeguards to ensure that otherwise marginal voices are able to 429

surface just as much as patriarchal voices, and that people can still choose whether they seek to subscribe to customary law and its form of justice or not. It must also be responsive to changing economic conditions in the country. THIS CHAPTER IN ESSENCE 

•Item 16(1) of Schedule 6 of the Constitution states: ‘Every court, including courts of traditional leaders existing when the new Constitution took effect, continues to function and to exercise jurisdiction in terms of the legislation applicable …’



•The BAA gave explicit recognition to and regulated what are now called traditional courts. Section 12 (on ‘Settlement of civil disputes by native chiefs’) and section 20 (on ‘Powers of chiefs to try certain offences’) effectively made the chiefs, and later also headmen, both legislators and adjudicators.



•Mention was also made of different regulatory frameworks in the former homelands.



•The Traditional Courts Bill (B1-2012) is supposed to repeal all of this outdated legislation but has not been passed into law yet on the grounds that it met with resistance from a cross section of people and organisations who raised the concern against it that ordinary people had not been consulted in its drafting process. Substantive concerns have also been raised against the Bill.



•Customary courts do not exist at only one level (the chief’s court) or even two (the headman’s court as well). The BAA’s recognition and regulation of these courts excludes much of the traditional justice system.



•Ordinary local members of the community form the ‘community-in-council’ (whether family council, neighbourhood council, ward council or chief’s council) that hears cases at that level of social organisation. Therefore, the role of the chief or headman is not akin to that of a judge in a Western court.



•While customary dispute resolution forums typically allow ordinary members of the community to participate, they tend to exclude women as members of the court councils and as litigants.



•The BAA grants chiefs and headmen power to hear both civil and criminal cases in their territorial areas of jurisdiction. 430



•Substantively, they can hear civil cases except for questions of ‘nullity, divorce or separation arising out of a marriage’ and criminal matters not excluded in Schedule 3 of the BAA.



•Customary dispute resolution forums are not just layered but often allow people to contest decisions and/or choose their forum either within the customary system or outside it.



•Three main values underlie customary dispute resolution: community participation

in

the

determination

of

truth,

reconciliation

and

community/communal responsibility. 

•Under customary law, especially as enacted during apartheid, traditional leaders – namely chiefs and to a lesser degree headmen – perform executive, legislative and judicial functions without observing a separation of powers. However, the Court in Mhlekwa and Feni v Head of the Western Tembuland Regional Authority66 held that in criminal matters there is a great need for judicial independence.



•The administration of justice by traditional courts shows divergences between official customary law provisions and current customary practices.

1Act 38 of 1927. 2Ss 12 and 20 and Schedule 3 that list the crimes excluded from traditional courts’ jurisdiction. 3The Regional Authorities Courts Act 13 of 1982 (Transkei); KwaNdebele Traditional Hearings of Civil and Criminal Cases by the Lingwenyama, Amakhosi, Amakhosana and Linduna Act 8 of 1984; KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990; Venda Traditional Leaders Administration Proclamation 29 of 1991; Bophuthatswana Traditional Courts Act 29 of 1979; Transkei Authorities Act 4 of 1965; Chiefs Courts Act 6 of 1983; Ciskei Administrative Authorities Act 37 of 1984; QwaQwa Administration Authorities Act 6 of 1983. S 14 of Schedule 6 of the Constitution assigns these laws to the provinces. In terms of s 2 of Schedule 6 of the Constitution, they continue to apply: ‘(1) All law that was in force when the new Constitution took effect, continues in force, subject to: (a) any amendment or repeal; and (b) consistency with the new Constitution’. 431

4See item 3 of the Memorandum on the Objects of the Traditional Courts Bill, 2012, for details of who was consulted. 5Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the context of living customary law South African Journal on Human Rights 25(3):491–516; Himonga, C and Manjoo, R (2009) Challenges of formalisation, regulation, and reform of traditional courts in South Africa Malawi Law Journal 3(2):157–81; Mnisi Weeks, S (2012) Regulating vernacular dispute resolution forums: Controversy concerning the process, substance and implications of South Africa’s

traditional

courts

bill Oxford

University

Commonwealth

Law

Journal 12(1):133–55. 6This is after three other amendments of the Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005 have taken place to extend the application of these provisions between its passing in 2005 and the most recent amendment in 2012 in anticipation of the passing of the Traditional Courts Bill. The prior deadlines were set for 30 June 2008, 30 December 2009, 30 December 2010 and 30 December 2012. 7Comaroff, JL and Roberts, S (1981) Rules and Processes: The Cultural Logic of Dispute in an African Context 80–3,180; Dutton, EAT (1923) The Basuto of Basutoland 59–60; Hammond-Tooke, WD (1975) Command or Consensus: The Development of Transkeian Local Government67–8, 74 fn 13; Kuper, H (1947) An African Aristocracy: Rank among the Swazi; Reader, DH (1966) Zulu Tribe in Transition: The Makhanya of Southern Natal 259–60; Mountain, ED (ed) (1952) Keiskammahoek Rural Survey Vol 3; Mnisi Weeks, S (2011a) Beyond the Traditional Courts Bill: Regulating customary courts in line with living customary law and the Constitution South African Crime Quarterly 31–40 at 35; Van der Waal, CS (2004) Formal and informal dispute resolution in the Limpopo Province, South Africa Anthropology Southern Africa 27(3–4):111–21. The author also draws on empirical research conducted using participant observation in Mpumalanga (2007–2008) and trained fieldworkers to gather daily evidence over an 11-month period in KwaZulu-Natal (2011–2012). The former research is documented in Mnisi, S (2010) The Interface Between Living Customary Law(s) of Succession and South African State Law DPhil thesis University of Oxford. The latter will appear in Mnisi Weeks, S

432

(forthcoming 2014) Access to Justice? Dispute Management in Vernacular Forums in Rural KwaZulu-Natal. 8Claassens and Mnisi (2009); Himonga and Manjoo (2009); Mnisi Weeks (2012). 9(CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996). 10Lund, C ‘Negotiating property institutions: On the symbiosis of property and authority in Africa’ in Juul, K and Lund, C (eds) (2002) Negotiating Property in Africa 11–44; Roberts, S ‘Law and dispute processes’ in Ingold, T (ed) (1994) Companion Encyclopaedia of Anthropology: Humanity, Culture and Social Life 972; Turner, VW (1957) Schism and Continuity in an African Society: A Study of Ndembu Village Life. 11No provision was initially made for the role of councils although, to this day, most traditional courts are primarily constituted by councils. (This is discussed further below.) This was later altered by the Black Authorities Act 68 of 1951 in which provision was made, in s 4(1)(b), for ‘tribal authorities’ to assist the chief in his functions as conferred or imposed by ‘any law’. 12S 6(1) of the BAA; Amendment Act 9 of 1929. 13Wilson (1952) 31–2. 14Wilson (1952) 32–3. 15Van der Waal (2004) 115, 119. 16Van der Waal (2004) 119. 17Hammond-Tooke (1975) 74, especially fn 13. 18Van der Waal (2004) 113. 19The position of ‘tribal policeman’ may have been conceived of by Proclamation 110 of 1957 (regulations under ss 2(7) and 25 of the BAA read with s 21 of the Native Land and Trust Act 18 of 1936), which constituted ‘regulations prescribing the duties, powers, privileges and conditions of service of chiefs and headmen’. Included in these was the requirement that the traditional leader maintain law and order, and enforce laws enacted by government or orders of the Commissioner; the traditional leader’s entitlement to loyalty, respect and obedience of ‘all Blacks resident within his area’; permission for him to collaborate with the tribal council if custom permitted and the requirement that he not abdicate his primary responsibility under law in doing so; conferral of the power of search and seizure without warrant and criminal jurisdiction (to ‘try 433

and punish’), although only where explicitly given by the state – this was where the proclamation allowed for the traditional leader to appoint a tribal policeman or any person to arrest a suspected black person in his area, and detain or impound stock. 20Van der Waal (2004) 113–15 21Kuper (1947); Wilson (1952); Reader (1966) 259–60; Mönnig, HO (1967) The Pedi 309. Also see Comaroff and Roberts (1981) 80–83,180. 22Hammond-Tooke (1975) 68. 23Hammond-Tooke (1975) 68–74. In a rather fraught context, this is confirmed by Comaroff, J and Comaroff, J (2003) Reflections on liberalism, policulturalism, and ID-ology: Citizenship and difference in South Africa Social Identities: Journal for the Study of Race, Nation and Culture9(4):445–73 at 461. 24Hammond-Tooke (1975) 73–4. 25Dutton (1923). 26Dutton (1923) 59–60. 27In two of the author’s field sites, focus group participants have expressed this view rather strongly. Describing Limpopo courts, Van der Waal (2004) at 113 says that ‘the voices of women and the youth are not yet taken seriously’. 28S 11(3)(b) of the BAA. 29See Mnisi Weeks, S (2011b). Securing women’s property inheritance in the context of plurality: Negotiations of law and authority in Mbuzini customary courts and beyond Acta Juridica 140–73. 30Mnisi Weeks, S (2011b) 157. Some erroneously interpret the TLGFA as mandating that all traditional courts are required to reflect the compositional changes brought to traditional councils by the Act. However, from s 3(2)(c) of the TLGFA, it is clear that it is prescribing the gender composition of traditional councils only and, from s 20(1)(f), that it envisions that subsequent legislation will be passed in order to regulate traditional courts specifically. Indeed, s 2(3)(c) of the TLGFA requires progressive realisation of the transformation of customary law relevant to the application of the TLGFA, specifically with regard to gender representation in ‘the succession to traditional leadership positions’. Yet, it is highly debatable whether participation in traditional courts, as relatively informal community forums, constitutes ‘succession to traditional leadership positions’. Hence, the distinction is made here with regard to 434

traditional councils that hear cases having been affected by the gender composition requirements of the TLGFA while others were not unless they voluntarily embraced the developments encouraged by the TLGFA’s prescription for traditional leadership. 31Claassens, A and Ngubane, S ‘Women, land and power: The impact of the Communal Land Rights Act’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act 173–75; Curren, E and Bonthuys, E (2005) Customary

law

and

domestic

violence

in

rural

South

African

communities South African Journal on Human Rights 21(4):607–35 at 633; Higgins, E, Fenrich, J and Tanzer, Z (2007) Gender equality and customary marriage: Bargaining in the shadow of post-apartheid legal pluralism Fordham International Law Journal 30(6):1653–1708 at 1700–01. 32Mnisi Weeks (2011b) 140–73, especially at 149; Claassens and Ngubane (2008) 173–77; Claassens and Mnisi (2009) 491. Also see Comaroff and Comaroff (2003) 459. 33Comaroff and Comaroff (2003) 459; Burman, S, Carmody, L and HoffmanWanderer, Y (2008) Protecting the vulnerable from ‘property grabbing’: The reality of administering small estates South African Law Journal 125(1):134– 56. 34Ss 12(1) and 20(1) of the BAA. 35S 12(1) of the BAA. 36Act 12 of 2004. 37Unreported Case No 267/04 Eastern Cape High Court, Mthatha. 38See the discussion of this case in Mnisi Weeks, S (2012) 133–55. 39A person can appeal a matter where the value is more than R10. 40Hammond-Tooke (1975); Mönnig (1967); Reader (1966); Wilson (1952). 41Kuper (1947). 42As with the diagram, these statements are based on the author’s current research and findings in Mpumalanga and KwaZulu-Natal. 43Proclamation R45 of 1961. 44See Taylor, D (2007) ‘The truth the whole truth nothing but the truth’: Truth, community and

narrative

in

African

procedural law Comparative

and

International Law Journal of Southern Africa 40(2):215–36 and Skelton, A 435

(2007)

Tapping

indigenous

knowledge:

Traditional

conflict

resolution,

restorative justice and the denunciation of crime in South Africa: Part III – Retribution and restoration in critical perspective Acta Juridica 228–46. While these sources are themselves based on dated research, they are largely consistent with the author’s own findings in research conducted recently. See, for example, Mnisi (2010) 136, 145. 45However, there is a need for caution against the romanticisation of ubuntu. As part of a system of unwritten law, this concept can be distorted to the disadvantage of some sections of the population. See further, Himonga, C (2013) The right to health in an African cultural context: The role of Ubuntu in the realisation of the right to health with special reference to South Africa Journal of African Law 57(2):165–95. 46Van der Waal (2004) 113. 47S 20(2) of the BAA, amended by s 2 of the Abolition of Corporal Punishment Act 33 of 1997. 48S 20(2) of the BAA, amended by s 2 of the Abolition of Corporal Punishment Act 33 of 1997. 49Comaroff and Roberts (1981) 79–81. 50Mbatha, L (2002) Reforming the customary law of succession South African Journal on Human Rights 18(2):259–86 at 271–3. 51Van der Waal (2004) 114–15. 52GN R2082 of 29 December 1967 (repealed in KwaZulu in 1989). 531998 (3) SA 262 (Tk). 54S 7 of the Regional Authorities Courts Act 13 of 1982 (Transkei). 552001 (1) SA 574 (Tk). 56Mhlekwa and Feni v Head of the Western Tembuland Regional Authority para 616. 57Mhlekwa and Feni v Head of the Western Tembuland Regional Authority para 616. 58See South African Law Commission (2003) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Traditional Courts and the Judicial Function of Traditional Leaders 25. 59SALC (2003) Report on Traditional Courts 25. Also see Mnisi (2010) 266, 281.

436

60Van der Waal (2004) 114 reports such an instance for what she said is called ‘closing the court’ in the area she researched. 61Van der Waal (2004) 114. The author has encountered all of the cited examples in different field sites in Mpumalanga and KwaZulu-Natal. Vast divergences in practice can be found even within a small area where there may be two different traditional communities living adjacent to one another. The same is reported by Van der Waal (2004) 113–14. 62SALC (2003) Report on Traditional Courts 25; Mnisi (2010) 281. 63The SALC recommended raising the maximum for fines to R500.00, as in the Small Claims Courts, or small stock. See SALC (2003) Report on Traditional Courts 25. 64Mnisi (2010) 266, 281. Also see Mnisi Weeks, S (2013) Access to Justice? The Uncertainties of Seeking Justice at the Intersections between Vernacular and State Courts and Laws. 65Mnisi (2010); Mnisi Weeks (2013). 662001 (1) SA 574 (Tk).

Bibliography Books An-Na‘im, AA (ed) (2002) Cultural Transformation and Human Rights in Africa London: Zed Books Armstrong, A and Ncube, W (eds) (1987) Women and Law in Southern Africa Harare: Zimbabwe Publishing House Baines, B, Barak-Erez, D and Kahana, T (eds) Feminist Constitutionalism: Global Perspectives Cambridge: Cambridge University Press Barratt, A (2012) Law of Persons and the Family Cape Town: Pearson Education South Africa Beinart, W (1982) The Political Economy of Pondoland 1860 to 1930 Johannesburg: Ravan Press Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed Cape Town: Juta

437

Bekker, JC and Rautenbach, C ‘Nature and sphere of application of African customary law in South Africa’ in Rautenbach, C, Bekker, JC and Goolam, NMI (2010) Introduction to Legal Pluralism 3rd ed Durban: LexisNexis Bekker, JC, Rautenbach, C and Goolam, NMI (2006) Introduction to Legal Pluralism 2nd ed Durban: LexisNexis Bennett, TW (1991) A Sourcebook of African Customary Law for Southern Africa Cape Town: Juta Bennett, TW (1995) Human Rights and African Customary Law under the South African Constitution Cape Town: Juta Bennett, TW (2004) Customary Law in South Africa Cape Town: Juta Bennett, TW ‘‘Official’ vs ‘living’ customary law: Dilemmas of description and recognition’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act Cape Town: University of Cape Town Press Bennett, TW ‘The conflict of laws’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism in South Africa 3rd ed Durban: LexisNexis Bennett, TW and Murray, C ‘Traditional leaders’ in Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 Cape Town: Juta Bennett, TW and Peart, NS (1991) A Sourcebook of African Customary Law for Southern Africa Cape Town: Juta Benton, LA (2002) Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 Cambridge: Cambridge University Press Bruinsma, F and Nelken, D (eds) (2007) Explorations in Legal Cultures Amsterdam: Bruinsma Publishers Chanock, M (2001) The Making of South African Legal Culture, 1902–1936: Fear, Favour and Prejudice Cambridge: Cambridge University Press Chigwedere, AS (1982) Lobolo: The Pros and Cons Harare: Books for Africa Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act Cape Town: University of Cape Town Press Claassens, A and Ngubane, S ‘Women, land and power: The impact of the Communal Land Rights Act’ in Claassens, A and Cousins, B (eds) (2008) Land,

438

Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act Cape Town: University of Cape Town Press Coertze, RD (1987) Bafokeng Family Law and Law of Succession Pretoria: SuidAfrikaanse Buro vir Rasse-aangeleenthede (SABRA) Comaroff, JL and Roberts, S (1981) Rules and Processes: The Cultural Logic of Dispute in an African Context Chicago, London: University of Chicago Cook, P and Wilson, A (1931) Social Organisation and Ceremonial Institutions of the Bomvana Cape Town: Juta Cowan, JK, Dembour, MB and Wilson, RA (2001) Culture and Rights: Anthropological Perspectives Cambridge: Cambridge University Press Cronjé, DSP and Heaton, J (2004) South African Family Law 2nd ed Durban: LexisNexis Butterworths Delius, P (1983) The Land Belongs to Us: The Pedi Polity, the Boers and the British in the Nineteenth-Century Transvaal Johannesburg: Ravan Press Delius, P ‘Contested terrain: Land rights and chiefly power in historical perspective’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act Cape Town: University of Cape Town Press Duepret, B, Berger, M and Al-Zwaini, L (1999) Legal Pluralism in the Arab World Leiden: Kluwer Law International Dutton, EAT (1923) The Basuto of Basutoland London: Jonathan Cape Eekelaar, J and Sarcevic, P (eds) (1993) Parenthood in Modern Society: Legal and Social Issues for the Twenty-first Century Dordrecht: Martinus Nijhoff Publishers Ehrlich, E, Pound, R and Ziegert, KA (2002) Fundamental Principles of the Sociology of Law New Brunswick, NJ, London: Transaction Publishers Elias, TO (1972) The Nature of African Customary Law Manchester: Manchester University Press Elton Mills, ME and Wilson, M ‘Land tenure’ in Mountain, ED (ed) (1952) Keiskammahoek Rural Survey Pietermaritzburg: Shuter and Shooter Evans-Pritchard, EE (1937) Witchcraft, Oracles and Magic Amongst the Azande London: Oxford University Press Fenrich, J, Galizzi, P and Higgins, TE (eds) (2011) The Future of African Customary Law Cambridge: Cambridge University Press

439

Ferraro, G (1980) Swazi Marital Patterns and Conjugal Roles: An Analysis and Policy Implications Mbabane: USAID Forsyth, CF (2003) Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts 4th ed Cape Town: Juta Galligan, DJ (2007) Law in Modern Society Oxford: Oxford University Press Grogan, J (2011) ‘Labour’ in Juta’s Quarterly Review of South African Law Cape Town: Juta Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of Executive Law in Lesotho London: Routledge and Kegan Paul Hart, HLA (1961) The Concept of Law Oxford: Oxford University Press Hart, HLA (2012) The Concept of Law Oxford: Oxford University Press Heaton, J (2010) South African Family Law 3rd ed Durban: LexisNexis Hammond-Tooke, WD (ed) (1974) The Bantu-speaking Peoples of Southern Africa 2nd ed London: Routledge and Kegan Paul Hammond-Tooke, WD ‘World-view I: A system of beliefs’ in Hammond-Tooke, WD (ed) (1974) The Bantu-speaking Peoples of Southern Africa 2nd ed London: Routledge and Kegan Paul Hammond-Tooke, WD (1975) Command or Consensus: The Development of Transkeian Local Government Cape Town: David Philip Himonga, C ‘Property disputes in law and practice: Dissolution of marriage in Zambia’ in Armstrong, A and Ncube, W (eds) (1987) Women and Law in Southern Africa Harare: Zimbabwe Publishing House Himonga, C ‘The future of living customary law in African legal systems in the twenty-first century and beyond with special reference to South Africa’ in Fenrich, J, Galizzi, P and Higgins, TE (eds) (2011) The Future of African Customary Law Cambridge: Cambridge University Press Himonga, C ‘Constitutional rights of women under customary law in southern Africa: Dominant interventions and “old pathways”’ in Baines, B, Barak-Erez, D and Kahana, T (eds) (2012) Feminist Constitutionalism: Global Perspectives Cambridge: Cambridge University Press Hobsbawm, EJ and Ranger, TO (eds) (1992) The Invention of Tradition Cambridge New York: Cambridge University Press Holleman, JF (1975) Shona Customary Law: With Reference to Kinship, Marriage, the Family and the Estate Manchester: Manchester University Press 440

Hosten, WJ, Edwards, AB, Church, J and Bosman, F (1997) Introduction to South African Law and Legal Theory Durban: Butterworths Hunter, M (1936) Reaction to Conquest: Effects of the Contact with Europeans on the Pondo of South Africa London: Oxford University Press Jansen, R-M ‘Customary family law’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism in South Africa3rd ed Durban: LexisNexis Juul, K and Lund, C (eds) (2002) Negotiating Property in Africa Portsmouth, NH: Heinemann Kaime, T (2009) The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective Pretoria: Pretoria University Law Press (PULP) Keep, H and Midgley, R ‘The emerging role of Ubuntu-Botho in developing a consensual South African legal culture’ in Bruinsma, F and Nelken, D (eds) (2007) Explorations in Legal Cultures Amsterdam: Bruinsma Publishers Kingwill, R ‘Custom-building freehold title: The impact of family values on historical ownership in the Eastern Cape’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act Cape Town: University of Cape Town Press Koyana, DS (1980) Customary Law in a Changing Society Cape Town: Juta Kuper, H (1947) An African Aristocracy: Rank among the Swazi London, New York: International African Institute, Oxford University Press; London: Oxford University Press Lee, RW (1953) An Introduction to Roman-Dutch Law 5th ed Oxford, Clarendon Press Liebenberg, S (ed) (1995) The Constitution of South Africa from a Gender Perspective Cape Town : Community Law Centre at the University of the Western Cape in association with David Philip; Johannesburg: Thorold’s Africana Books Lugard, FD (1922) The Dual Mandate in British Tropical Africa Edinburgh: William Blackwood and Sons Lund, C ‘Negotiating property institutions: On the symbiosis of property and authority in Africa’ in Juul, K and Lund, C (eds) (2002) Negotiating Property in Africa Portsmouth, NH: Heinemann Luthuli, A (1962) Let My People Go: An Autobiography Johannesburg/London: Collins 441

MacCormick, N ‘Law, morality and positivism’ in MacCormick, N and Weinberger, O (1986) An Institutional Theory of Law: New Approaches to Legal Positivism Dordrecht: D Reidel MacCormick, N and Weinberger, O (1986) An Institutional Theory of Law: New Approaches to Legal Positivism Dordrecht: D Reidel Maine, H (1861) Ancient Law London: John Murray Malinowski, B (1926) Crime and Custom in Savage Society London: Kegan Paul, Trench, Trubner Mamdani, M (1996) Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism Princeton: Princeton University Press Mamdani, M (ed) (2000) Beyond Rights-Talk and Culture-Talk: Comparative Essays in the Politics and Rights of Culture Cape Town: David Philip Mann, K and Roberts, R (1991) Law in Colonial Africa Portsmouth, NH: Heinemann; London: James Currey Marwick, BA (1940) The Swazi London: Frank Cass Mattei, U and Nader, L (2008) Plunder: When the Rule of Law Is Illegal Malden, MA: Blackwell Mbeki, G (1964) South Africa: The Peasants Revolt Harmondsworth: Penguin Books Mnisi Weeks, S (forthcoming 2013) Access to Justice? The Uncertainties of Seeking Justice at the Intersections between Vernacular and State Courts and Laws Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and Hindu Family Law Pretoria: Van Schaik Mönnig, HO (1967) The Pedi Pretoria: Van Schaik Morris, DR (1965/1993) The Washing of the Spears: The Rise and Fall of the Zulu Nation London: Jonathan Cape 1965, Simon & Schuster 1993 Morse, BW and Woodman, GR (eds) (1988) Indigenous Law and the State Dordrecht: Foris Publications Mountain, ED (1952) Keiskammahoek Rural Survey Vol 3 and Vol 4 Pietermaritzburg: Shuter and Shooter Mqeke, RB (2003) Customary Law and the New Millennium Alice: Lovedale Press Mqhayi, SEK (1914) Ityala lamawele Alice: Lovedale Press Myburgh, AC (1985) Papers on Indigenous Law in Southern Africa Pretoria: Van Schaik; Johannesburg: Thorold’s Africana Books

442

Nhlapo, TR (1992) Marriage and Divorce in Swazi Law and Custom Mbabane: Websters Nhlapo, TR ‘Biological and social parenthood an African perspective: The movement of children in Swazi family law’ in Eekelaar, J and Sarcevic, P (eds) (1993) Parenthood in Modern Society: Legal and Social Issues for the Twenty-first Century Dordrecht: Martinus Nijhoff Publishers Nhlapo, TR ‘African customary law in the interim Constitution’ in Liebenberg, S (ed) (1995) The Constitution of South Africa from a Gender Perspective Cape Town: Community Law Centre, University of the Western Cape in association with David Philip Nhlapo, TR ‘The African customary law of marriage and the rights conundrum’ in Mamdani, M (ed) (2000) Beyond Rights-Talk and Culture-Talk: Comparative Essays in the Politics and Rights of Culture Cape Town: David Philip Nyamu Musembi, C ‘Are local norms and practices fences or pathways? The example of women’s property rights’ in An-Na‘im, AA (ed) (2002) Cultural Transformation and Human Rights in Africa London: Zed Books Okoth-Ogendo, HWO ‘The nature of land rights under indigenous law in Africa’ in Claassens and Cousins (eds) (2008) Land, Power and Custom: Controversies Generated by South Africa’s Communal Land Rights Act Cape Town: University of Cape Town Press Olivier, NJJ, Olivier, WH and Olivier, NJJ (Jr) (1989) Die Privaatreg van die SuidAfrikaanse Bantoetaalsprekendes 3de uitg Durban: Butterworths Oomen, B (2005) Chiefs in South Africa: Law, Power and Culture in the PostApartheid Era Oxford: James Currey; Pietermaritzburg: University of KwaZuluNatal Press; New York: Palgrave Peires, JB (1981) The House of Phalo: A History of the Xhosa People in the Days of Their Independence Johannesburg: Ravan Press Phillips, A (ed) (1953) Survey of African Marriage and Family Life London: Oxford University Press Pienaar, JM ‘Customary law of property’ in Rautenbach C, Bekker JC and Goolam NMI (eds) (2010) Introduction to Legal Pluralism in South Africa3rd ed Durban: LexisNexis Poulter, SM (1976) Family Law and Litigation in Basotho Society Oxford: Clarendon Press 443

Ranger, TO ‘The invention of tradition in colonial Africa’ in Hobsbawn, EJ and Ranger, TO (eds) (1983) The Invention of Tradition Oxford: Clarendon Press Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism 3rd ed Durban: LexisNexis Rautenbach, C and Du Plessis, W ‘Customary law of succession and inheritance’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism 3rd ed Durban: LexisNexis Reader, DH (1966) Zulu Tribe in Transition: The Makhanya of Southern Natal Manchester: Manchester University Press Roth, G and Wittich, C (eds) (1978) Economy and Society: An Outline of Interpretive Sociology Berkeley: University of California Press Schapera, I (1955) A Handbook of Tswana Law and Custom 2nd ed London: Cass Schapera, I (1970) Tribal Innovators: Tswana Chiefs and Social Change, 1795– 1940 London: Athlone Press Schapera, I (1977) A Handbook of Tswana Law and Custom 2nd ed Oxford: James Currey Simons, HJ (1968) African Women: Their Legal Status in South Africa Evanston: Northwestern University Press Sinclair, JD ‘Family rights’ in Van Wyk, D, Dugard, J, De Villiers, B and Davis, D (eds) (1994) Rights and Constitutionalism: The New South African Legal Order Cape Town: Juta Sinclair, JD (1996) The Law of Marriage Vol 1 Cape Town: Juta Soga, TB (1937) Intlalo kaXhosa Alice: Lovedale Press Stewart, J ‘Teaching women, social realities, family and the law: African legal systems’ in Tsanga, AS and Stewart, JE (2011) Women and Law: Innovative Approaches to Teaching, Research and Analysis Svensson, TG (ed) (1999) On Customary Law and the Saami Rights Process in Norway The University of Tromsø: - Centre for Sámi Studies Terblanche, SS (2007) Guide to Sentencing in South Africa Durban: LexisNexis Tsanga, AS and Stewart, JE (2011) Women and Law: Innovative Approaches to Teaching, Research and Analysis Harare: Weaver Press in association with Southern and Eastern African Regional Centre for Women’s Law (SEARCWL) Turner, VW (1957) Schism and Continuity in an African Society: A Study of Ndembu Village Life Manchester: Manchester University Press 444

Van Niekerk, GJ ‘Legal pluralism’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal Pluralism 3rd ed Durban: LexisNexis Van Niekerk, PA (1999) A Practical Guide to Patrimonial Litigation in Divorce Actions Durban: Butterworths Van Wyk, D, Dugard, J, De Villiers, B and Davis, D (eds) (1994) Rights and Constitutionalism: The New South African Legal Order Cape Town: Juta Vorster, LP, Prinsloo, MW and Van Niekerk, G (2000) Urbanites’ Perceptions of Lobolo: Mamelodi and Atteridgeville Pretoria: Unisa Whelpton, F (1991) Die Inheemse Kontraktrereg van die Bakwena Ba Mogopa van Hebron in die Odi Distrik van Bophuthatswana Pretoria: Unisa Whitfield, GMB (1929) South African Native Law Cape Town: Juta Whitfield, GMB (1948) South African Native Law Cape Town: Juta Wilson, M, Kaplan, S, Maki, T and Walton, EM (1952) Keiskammahoek Rural Survey Pietermaritzburg: Shuter and Shooter Woodman, GR ‘Customary law, state courts, and the notion of institutionalization of norms in Ghana and Nigeria’ in Allot, A and Woodman, GR (eds) (1985) People’s Law and State Law: The Bellagio Papers Dordrecht: Foris Publications Woodman, GR ‘The idea of legal pluralism’ in Duepret, B, Berger, M and Al-Zwaini, L (1999) Legal Pluralism in the Arab World Leiden: Kluwer Law International Woodman, GR ‘How state courts create customary law in Ghana and Nigeria’ in Morse, BW and Woodman, GR (eds) (1988) Indigenous Law and the State Dordrecht: Foris Woodman, GR ‘Customary laws and customary legal rights: A comparative consideration of their nature and of the relationship between laws’ in Svensson, TG (ed) (1999) On Customary Law and the Saami Rights Process in Norway Skriftserie No. 8 Tromsø: University of Tromsø Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd ed rev service 5 Cape Town: Juta Dictionaries Collins English Dictionary 2nd ed London: Collins Encyclopaedias

445

Ingold, T (ed) (1994) Companion Encyclopaedia of Anthropology: Humanity, Culture and Social Life New York: Routledge Joubert, WA (ed) (2009) The Law of South Africa 2nd ed Vol 32 Durban: LexisNexis Olivier, NJJ, Bekker, JC, Olivier, NJJ (Jnr) and Olivier, WH (1995) ‘Indigenous law’ in Joubert, WA (ed) (2009) The Law of South Africa 2nd ed Vol 32 Durban: LexisNexis Roberts, S ‘Law and dispute processes’ in Ingold, T (ed) (1994) Companion Encyclopaedia of Anthropology: Humanity, Culture and Social Life New York: Routledge Journals Abiodun, BO (2007) Towards an African concept of law African Journal of Legal Theory 1:71–83 Allott, AN (1984) What is to be done with African customary law? The experience of problems and reforms in Anglophone Africa from 1950 Journal of African Law 28(1–2):56–71 Armstrong, A et al (1993) Uncovering reality: Excavating women’s rights in African family law International Journal of Law, Policy and the Family7(3):314–369 Bekker, JC (1976) Grounds of divorce in African customary marriages in Natal Comparative and International Law Journal of Southern Africa9(3):346–55 Bekker, JC (1985) Phuthuma / ngala en siviele huwelike De Jure 18(1):176–9 Bennett, TW (1999) The best interests of the child in an African context Obiter 20(1):145–57 Bennett, TW (2009) Re-introducing African customary law to the South African legal system American Journal of Comparative Law 57(1):1–32 Bennett, TW (2010) The cultural defence and the custom of Thwala in South African law University of Botswana Law Journal 10:3–26 Bennett, TW and Peart, NS (1983) The dualism of marriage laws in Africa Acta Juridica 145–70 Bennett, TW and Pillay, A (2003) The Natal and KwaZulu Codes: The case for repeal South African Journal on Human Rights 19(2):217–38 Bohler-Muller, N (2001) Cultural practices and social justice in a constitutional dispensation: Some (more) thoughts on gender equality in South Africa Obiter 22(1): 142–52 446

Bourdieu, P (1987) The force of law: Toward a sociology of the juridical field Hastings Law Journal 38(5):805–53 Bronstein, V (1998) Reconceptualizing the customary law debate in South Africa South African Journal on Human Rights 14(3):388–410 Bronstein, V (2000) Confronting custom in the new South African state: An analysis of the Recognition of Customary Marriages Act 120 of 1998 South African Journal on Human Rights 16(3):558–75 Burman, S, Carmody, L and Hoffman-Wanderer, Y (2008) Protecting the vulnerable from ‘property grabbing’: The reality of administering small estates South African Law Journal 125(1):134–56 Chinyenze, M (1983–4) A critique of Chigwedere’s book Lobolo: The Pros and Cons in Relation to the Emancipation of Women in Zimbabwe Zimbabwe Law Review 1 and 2 Church, J (2005) The place of indigenous law in a mixed legal system and a society in transformation: A South African experience Australia and New Zealand Law and History E-Journal 94–106 Claassens, A (2005) Women, customary law and discrimination: The impact of the Communal Land Rights Act Acta Juridica 42–81 Claassens, A (2011) Resurgence of tribal levies: Double taxation for the rural poor South African Crime Quarterly 35:11–16 Claassens, A (2013) Recent changes in women’s land rights and contested customary law in South Africa Journal of Agrarian Change 13(1):71–92 Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the context of living customary law South African Journal on Human Rights25(3):491–516 Comaroff, JL (1978) Rules and rulers: Political processes in a Tswana chiefdom Man 13:1–20 Comaroff, JL and Comaroff, J (2003) Reflections on liberalism, policulturalism, and ID-ology: Citizenship and difference in South Africa Social Identities: Journal for the Study of Race, Nation and Culture 9(4):445–73 Costa, A (1997) Custom and common sense: The Zulu royal succession dispute of the 1940’s African Studies 56(1):19–42 Curran, E and Bonthuys, E (2005) Customary law and domestic violence in rural South African communities South African Journal on Human Rights21(4):607–35

447

De Koker, JY (2001) Proving the existence of an African customary marriage Journal of South African Law 2:257–93 Dlamini, CRM (1984) The modern legal significance of ilobolo in Zulu society De Jure 1:148–66 Dlamini, CRM (1985) Should ilobolo be abolished? A reply to Hlophe The Comparative and International Law Journal of Southern Africa18(3):361–76 Dlamini, CRM (1999) The ultimate recognition of the customary marriage in South Africa Obiter 20(1):14–40 Dlamini, CRM (2002) The clash between customary law and universal human rights Speculum Juris (1)1:26–46 English, R (1996) Ubuntu: The quest for an indigenous jurisprudence South African Journal on Human Rights 12(4):641–48 Falk Moore, S (1973) Law and social change: The semi-autonomous social field as an appropriate subject of study Law and Society Review 7(4):719–46 Fuller, L (1969) Human interaction and the law American Journal of Jurisprudence 14(1):1–36 Gluckman, M (1953) Bridewealth and the stability of marriage Man 53:141–43 Grant, E (2006) Human rights, cultural diversity and customary law in South Africa Journal of African Law 50(1):2–23 Griffiths, J (1986) What is legal pluralism? Journal of Legal Pluralism and Unofficial Law 24:1–55 Higgins, E, Fenrich, J and Tanzer, Z (2007) Gender equality and customary marriage: Bargaining in the shadow of post-apartheid legal pluralism Fordham International Law Journal 30(6):1653–1708 Himonga, C (2005) The advancement of African women’s rights in the first decade of democracy in South Africa: The reform of the customary law of marriage and succession Acta Juridica 82–107 Himonga, C (2010) State and individual perspectives of a mixed legal system in southern African contexts with special reference to personal law Tulane European and Civil Law Forum 25(1):23–36 Himonga, C (2013) The right to health in an African cultural context: The role of Ubuntu in the realisation of the right to health with special reference to South Africa Journal of African Law 57(2):165–95

448

Himonga, C and Bosch, C (2000) The application of African customary law under the Constitution of South Africa: Problems solved or just beginning? South African Law Journal 117(2):306–41 Himonga, C and Manjoo, R (2009) Challenges of formalisation, regulation, and reform of traditional courts in South Africa Malawi Law Journal3(2):157–81 Himonga, C and Pope, A (2013) Mayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications Acta Juridica 318–38 Hlophe, JM (1984) The KwaZulu Act on the Code of Zulu Law 6 of 1981: A guide to intending spouses and some comments on the custom of ilobolo Comparative and International Law Journal of Southern Africa 17(2):163–71 Hoctor, SV (2006) Comparing criminal law rules: A role for customary law concepts Fundamina 12(1):168–83 Hund, J (1998) ‘Customary law is what people say it is’: H.L.A. Hart’s contribution to legal anthropology Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 84:420–33 Jobodwana, ZN (2000) Customary courts and human rights: Comparative African perspectives SA Public Law 15(1):26–49 Kaganas, F and Murray, C (1994) The contest between culture and gender equality under South Africa’s interim Constitution Journal of Law and Society 21(4):409433 Kerr, AJ (1996) The choice of and the application of customary law South African Law Journal 113(3):408–410 Labuschagne, JMT and Van den Heever, JA (1991) Die oorsprong van die onderskeid tussen die fenomene misdaad en delik in primigene regstelsels Obiter 94(2):80–95 Lehnert, W (2005) The role of the courts in the conflict between African customary law and human rights South African Journal on Human Rights21(2):241–77 Luluaki, JY (1997) Customary marriage laws in the Commonwealth: A comparison between Papua New Guinea and Anglophonic Africa International Journal of Law, Policy and the Family 11(1):1–35 Mahao, NL (2010) O se re ho morwa ‘morwa towe! African jurisprudence exhumed Comparative and International Law Journal of Southern Africa43(3):317– 36

449

Maithufi, IP (1986) A civil marriage and the custom of phuthuma De Rebus 224:387– 8 Maithufi, IP (1992) The Bophuthatswana Intestate Succession Law Restatement Act, 1990 De Jure 25(2):457–62 Maithufi, IP (1994) Marriage and succession in South Africa, Bophuthatswana and Transkei: A legal potpourri Journal of South African Law10(2):262–77 Maithufi, IP (1998) The constitutionality of the rule of primogeniture in customary law of intestate succession: Mthembu v Letsela 1997 (2) SA 936 (T) Tydskrif vir Hedendaagse Romeins-Hollandse Reg 61(1):142–7 Maithufi, IP (1999) Children, customary law and the Constitution Obiter 20(1):198– 208 Maithufi, IP (2000) The Recognition of Customary Marriages Act of 1998: A commentary Tydskrif vir Hedendaagse Romeins-Hollandse Reg63(3):509–16 Maithufi, IP (2001) Metiso v Road Accident Fund case no 4588/2000 (T) Adoption according to customary law: Kewana v Santam Insurance Co Ltd1993 (4) SA 771 (Tk) followed De Jure 34(2):390–7 Maithufi, IP (2003) Thembisile v Thembisile 2002 (2) SA 209 (T) De Jure 36(1):195– 200 Maithufi, IP and Bekker, JC (2001) The dissolution of customary marriages in South Africa Obiter 22(2):259–72 Maithufi, IP and Bekker, JC (2002) The Recognition of the Customary Marriages Act of 1998 and its impact on family law in South Africa The Comparative and International Law Journal of Southern Africa 35(2):182–97 Maithufi, IP and Moloi, CMB (2002) The current legal status of customary marriage in South Africa Tydskrif vir die Suid-Afrikaanse Reg 4: 599–611 Mamashela, M (2004) New families, new property, new laws: The practical effects of the Recognition of Customary Marriages Act South African Journal on Human Rights 20(4):616–41 Mbatha, L (2002) Reforming the customary law of succession South African Journal on Human Rights 18(2):259–86 McClendon, T (1995) Tradition and domestic struggle in the courtroom: Customary law and the control of women in segregation-era Natal The International Journal of African Historical Studies 28(3):527–61

450

Mnisi Weeks, S (2011) Beyond the Traditional Courts Bill: Regulating customary courts in line with living customary law and the Constitution South African Crime Quarterly 31–40 Mnisi Weeks, S (2011) Securing women’s property inheritance in the context of plurality: Negotiations of law and authority in Mbuzini customary courts and beyond Acta Juridica 140–173 Mnisi Weeks, S (2012) Regulating vernacular dispute resolution forums: Controversy concerning the process, substance and implications of South Africa’s traditional courts bill Oxford University Commonwealth Law Journal 12(1):133–55 Mofokeng, LL (2005) The lobolo agreement as the ‘silent’ prerequisite for the validity of a customary marriage in terms of the Recognition of Customary Marriages Act Tydskrif vir Hedendaagse Romeins-Hollandse Reg 68(2):277–88 Morell, R (2001) Corporal punishment in South African schools: A neglected explanation for its existence South African Journal of Education21(4):292–99 Mqeke, RB (1999) The ‘rainbow jurisprudence’ and the institution of marriage with emphasis on the Recognition of Customary Marriages Act 120 of 1998 Obiter 20(1):52–68 Nathan, C (1987) The Malome: Then and now Comparative and International Law Journal of Southern Africa 20(3):421–26 Nhlapo TR (1989) International protection of human rights and the family: African variations on a common theme International Journal of Law, Policy and the Family 3(1):1–20 Nhlapo, TR (1991) The African family and women’s rights: Friends or foes? Acta Juridica 135:135–46 Nhlapo, TR (1995) Cultural diversity, human rights and the family in contemporary Africa: Lessons from the South African constitutional debate International Journal of Law, Policy and the Family 9(2):208–25 Oomen, B (2000) Traditional woman-to-woman marriages and the Recognition of Customary Marriages Act Tydskrif vir Hedendaagse Romeins-Hollandse Reg 63(2):274–82 Oppong, RF (2007) Private international law in Africa: The past, present, and future The American Journal of Comparative Law 55(4):677–720

451

Peart, NS (1983) Civil or Christian marriage and customary unions: The legal position of the ‘discarded’ spouse and children Comparative and International Law Journal of Southern Africa 16(1):39–64 Rautenbach, C (1999) A commentary on the application of the Bill of Rights to customary law Obiter 20(1):113–32 Rautenbach, C (2008) South African common and customary law of intestate succession: A question of harmonisation, integration or abolition Electronic Journal of Comparative Law 12(1):1–14 Shepard, LD (2013) The impact of polygamy on women’s mental health: A systematic review Epidemiology and Psychiatric Sciences 22(1):47–62 Skelton, A (2007) Tapping indigenous knowledge: Traditional conflict resolution, restorative justice and the denunciation of crime in South Africa: Part III – Retribution and restoration in critical perspective Acta Juridica 228–46 Taylor, D (2007) ‘The truth the whole truth nothing but the truth’: Truth, community and narrative in African procedural law Comparative and International Law Journal of Southern Africa 40(2):215–36 Van der Waal, CS (2004) Formal and informal dispute resolution in the Limpopo Province, South Africa Anthropology Southern Africa 27(3–4):111–21 Van Schalkwyk, LN (2003) Law reform and the recognition of human rights within the South African family law with specific reference to the Recognition of Customary Marriages Act 120 of 1998 and Islamic marriages De Jure 36(2):289–327 Weinberg, T (2013) Contesting customary law in the Eastern Cape: Gender, place and land tenure Acta Juridica 100 Reports Fifth Report of the Hoexter Commission of Inquiry into the Structure and Functioning of the Courts (1983) Pretoria: Government Printer (1872) Report of the Commission on the Laws and Customs of the Basotho South African Law Commission (1986) Report on the Marriages and Customary Unions of Black Persons Pretoria: South African Law Commission South African Law Commission (1997) Project 90 The Harmonisation of the Common Law and the Indigenous Law Discussion Paper 74 Customary Marriage Pretoria: South African Law Commission

452

South African Law Commission (1998) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Customary MarriagesPretoria: South African Law Commission South African Law Commission (1999) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Conflicts of LawPretoria: South African Law Commission South African Law Commission (2000) Project 90 The Harmonisation of the Common Law and the Indigenous Law Discussion Paper 93 Customary Law of Succession Pretoria: South African Law Commission South African Law Commission (2003) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on Traditional Courts and the Judicial Function of Traditional Leaders Pretoria: South African Law Commission South African Law Reform Commission (2004) Project 90 The Harmonisation of the Common Law and the Indigenous Law Report on the Customary Law of Succession Pretoria: South African Law Reform Commission South African Law Reform Commission (2010) Project 138 The practice of Ukuthwala Pretoria: South African Law Reform Commission Theses Mnisi, S (2010) The Interface Between Living Customary Law(s) of Succession and South African State Law DPhil thesis University of Oxford Watney, MM (1993) Beginsels van die Opvolgingsreg van die Bapedi van Sekwati en Noord-Sothosprekendes in Vosloorus LLD thesis RAU Newspapers and magazines Mandela, N (1959) Verwoerd’s Grim Plot Liberation No.36, May 1959 Websites Mphumzi Zuzile ‘Miners took “invisible” muti’ Dispatch, 21 August 2012. Available from http://www.globalpost.com/dispatch/news/regions/africa/southafrica/120821/south-africa-striking-miners-thought-they-were-invincible-muti

453

Table of cases A Affordable Medicines Trust v Minister of Health (CCT27/04) [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) 43 Alexkor Ltd v Richtersveld Community (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) 10, 19, 20, 25, 28, 31, 32, 51, 62, 67, 164, 166, 176, 177, 236 B Baadjies v Matubela 2002 (3) SA 427 (W) 156 Bangindawo v Head of the Nyanda Regional Authority 1998 (3) SA 262 (Tk) 263 Bhe v Magistrate, Khayelitsha 2004 (2) SA 544 (C); 2004 (1) BCLR 27 (C) 174 Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) 12, 17, 19, 25, 26, 31, 34, 35, 36, 38, 43, 46, 47, 51, 54, 61, 63, 65, 66, 67, 87, 118, 124, 159, 160, 161, 171, 174, 175, 176, 184, 185, 241, 246 Booi v Xozwa 4 NAC 310 203 C Capuko v Ngazulwane 2 NAC 12 202 Cebisa v Gwebu 4 NAC 330 203 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) 31, 62, 228, 254 Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996) 19, 22 D Daniel v Socinsi 4 NAC 320 203, 204 De Wet NO v Jurgens 1970 (3) SA 38 (A) 134 Dikoko v Mokhatla (CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (3 August 2006) 199, 200

454

Du Plessis v De Klerk (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15 May 1996) 59 Dudumayo v Dalasile [2011] ZAECMHC 8 (26 May 2011) 243 E Ex parte Kros 1986 (1) SA 642 (NC) 145 Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A) 14, 21, 56, 58, 77, 79 F Fanti v Boto (16451/2007) [2007] ZAWCHC 78; [2008] 2 All SA 533; 2008 (5) SA 405 (C) (13 December 2007) 74, 83, 101 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14 October 1998) 43 Fuzile v Ntloko 1944 NAC (C & O) 6 201 G Gaga v Dyaba 1931 NAC (C & O) 4 152 Garane v Nkomokazi 2 NAC 68 201 Gomfi v Mdenduluka 3 NAC 21 (1912) 200, 201, 202 Gqozi v Mtengwane 1960 NAC 26 (S) 152 Gumede v President of the Republic of South Africa (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008) 17, 34, 38, 43, 46, 47, 62, 86, 96, 99, 112, 120, 128, 130, 131, 132, 133, 14 1, 143, 146, 155, 157, 236 Gunqashi v Cunu 2 NAC 93 (1910) 153 H Hermansberg Mission Society v The Commissioner for Native Affairs and Darius Mogalie 1906 TS 135 233 Hlophe v Mahlalela 1998 (1) SA 449 (T) 32, 38, 122, 123, 124, 205 Honey v Honey 1992 (3) SA 609 (W) 146 Hyde v Hyde and Woodmansee (1866) LR 1 P&D 93 I 455

Ismail v Ismail 1983 (1) SA 1006 (A) 13, 93 J Justice Mpondombini Sigcau v President of the Republic of South Africa Case CCT 84/12 [2013] ZACC 18 237 K Kambule v The Master (85) [2007] ZAECHC 2; [2007] 4 All SA 898 (E) (8 February 2007) 106 Kelatile v Mxoxelwa and Mtuti 4 NAC 322 204 Kewana v Santam Insurance Co Ltd 1993 (4) SA 771 (TkA) 178 Kodisang v Seakgela (1945) NAC (C & O) 51 206 Kosane v Molotya 1945 NAC (N & T) 70 202 Kulashe v Nkosi 1944 NAC (T & N) 22 201 L Lequoa v Sipamla (1944) NAC (C & O) 85 209 M Mabena v Letsoalo 1998 (2) SA 1068 (T) xiv, 26, 32, 33, 38, 58, 63, 101, 187, 189 Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4 March 2003) 46, 67, 80, 98, 100 Madolo v Mnukwa 11 SC 181 202 Mahala v Nkombombini 2006 (5) SA 524 (SE) 38 Maisela v Kgoloane NO 2000 (2) SA 370 (T) 188 Makapan v Khope 1923 AD 551 220 Malaza v Mndaweni 1975 AC (C) 45 169 Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April 2008) 98, 100, 103, 105 Maneli v Maneli (14/3/2-234/05) [2010] ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19 April 2010) 178 Mangaliso v Fekade 5 NAC 5 (1926) 150, 203 Manjezi v Sirunu 1950 NAC 252 (S) 152 Mathupa v Mahupye 1933 NAC (N & T) 6 150 Matsheng v Dhlamini 1937 NAC (N & T) 89 78 456

Mayeki v Kwababa 4 NAC 193 (1918) 152 Mayekiso v Mayekiso 1944 NAC (C & O) 81 169 Mayelane v Ngwenyama 2010 (4) SA 286 (GNP); [2010] JOL 25422 (GNP) 95, 140, 141, 142 Mayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013) 38, 67, 96, 117, 118, 144, 147, 191 Mazibuko v National Director of Public Prosecutions (113/08) [2009] ZASCA 52; 2009 (6) SA 479 (SCA); [2009] 3 All SA 548 (SCA) (26 May 2009) 134 Mbono v Sifuba 1 NAC 137 (1907) 201 Mcunu v Gumede (1938) NAC (T & N 6) 204 Mdoda v Skeyi 3 NAC 287 202, 204 Metal and Electrical Workers Union of SA obo Sibuyi v Wireforce Steelbar (Pty) Ltd (2011) 32 ILJ 1481 (BCA) 216, 217 Metiso v Padongelukfonds 2001 (3) SA 1142 (T) 178 Mfazwe v Tetana 2 NAC 40 (1910) 153 Mfeketho v Satimani 1947 NAC (C & O) 108 207 MG v BM (10/37362) [2011] ZAGPJHC 173; 2012 (2) SA 253 (GSJ) (22 November 2011) 106 Mgangabode v Ntshentshe 4 NAC 13 (1920) 208 Mhlekwa and Feni v Head of the Western Tembuland Regional Authority 2001 (1) SA 574 (Tk) 263, 264, 266 Mhlupheki v Bhoyi 1912 (1) NHC 38 204 Mkanzi v Masoka 1949 NAC 145 (S) 153 Mkunyana v Dumke (1939) NAC (C & O) 68 198 Mngantsiyana v Kyibi (1936) NAC (C & O) 64 203 Mogale v Engelbrecht 1907 TS 836 233 Mogale v Seima 2008 (5) SA 637 (SCA) 641 199 Mogidi v Ngomo 1948 NAC (N & T) 18 153 Moima v Matladi (1937) NAC (T & N) 40 208 Mokhantso v Chochane 1947 NAC (C & O) 15 201 Mokhatle v Union Government 1926 AD 71 214, 220, 233 Monakgotla v Minister of Native Affairs 1959 (1) SA 686 (T) 232, 233 Moseneke v Master of the High Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December 2000) 169 457

Mosii v Motseoakhumo 1954 (3) SA 919 (A) 232 Motaung v Motsoeneng (1939) NAC (C & O) 206 Motsoatsoa v Roro (46316/09) [2010] ZAGPJHC 122; [2011] 2 All SA 324 (GSJ) (1 November 2010) 83, 101 Mqitsane v Panya 1951 NAC 354 (5) 150 Mrubata v Dondolo 1949 NAC 174 (S) 86, 203 Mshweshwe v Mshweshwe 1946 NAC (C & O) 9 150 Mswala v Fleni 1948 NAC 5 202 Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA) 54, 63, 64, 167, 169, 173 Mtsenene v Mlahlwa 4 NAC 20 203 Myoli v Skemjana (1939) NAC (C & 0) 105 203 Mzizi v Pamla 1953 NAC 71 (S) 153 Mzwakali v Mahlati 2 NAC 31 204 N Nakabinde v Mhlangeni 1942 NAC (N & T) 89 202 Ndatambi v Ntozake 1 NAC 3 (1985) 151, 153 Ndlovu v Mokoena (2973/09) [2009] ZAGPPHC 29; 2009 (5) SA 400 (GNP) (20 April 2009) 101, 105 Nel v Cockroft 1972 (3) SA 592 (T) 139 Netshituka v Netshituka 2011 (5) SA 453 (SCA) 104, 183 Ngake v Mahahle 1984 (2) SA 216 (O) 190 Ngawana v Makuzeni 1 NAC 220 (1908) 200, 201 Ngcobo v Mdhlalose 1949 NAC (N-E) 68 199 Ngcobo v Zulu 1964 BAC 116 (N-E) 152 Ngqo v Twalana 5 NAC 9 202 Ngqobela v Sihele (1892–1893) 10 SC 346 93 N’guaje v Nkosa 1937 (NAC) 98 150 Ngwenyama v Mayelane (474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June 2012) 95, 141, 142, 143, 144, 147 Nkambula v Linda 1951 (1) SA 377 (A) 93, 94, 169 Nkohla v Rakana 4 NAC 321 204 458

Nkuna v Kazamula 1941 NAC (N & T) 128 152 Nobumba v Mfecane 2 NAC 104 (1911) 192 No-Italy Phindiwe Mtirara v MEC for Housing, Local Government and Traditional Affairs Unreported Case No 1402/2004 (High Court, Transkei Division) 241 Nomatshaka v Mhlokonywa 1933 NAC (C & O) 18 87 Novungwana v Zabo 1957 NAC 114 (S) 153 Nqanoyi v Njombeni 1930 NAC (C & O) 13 78 Ntinjane v Dinizulu 4 NAC 22 204 Ntshekentsheke v Gobo 1959 NAC (S) 57 193 Nwamitwa v Phillia 2005 (3) SA 536 (T) 30 P Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000 (3) BCLR 241 (25 February 2000) 43 Pickles v Pickles 1947 (3) SA 175 (W) 138 Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004) 18 PSC v LPM [2013] JOL 29847 (GNP) 102 Q Qobo v Poswayo (1945) NAC (C & 0) 45 203 R R v Dumezweni 1961 (2) SA 751 (A) 219 R v Janoo 1959 (3) SA 107 (A) 222 R v Kumalo 1952 (1) SA 381 (A); [1952] 2 All SA 9 (A) 220, 232 R v Mane 1948 (1) SA 196 (E) 222 R v Mpanza 1946 AD 763 220 R v Pearston 1940 OPD 153 223 R v Phakane 1956 (3) SA 638 (E) 220 R v Sibiya 1955 (4) SA 247 (A) 219 R v Sita 1954 (4) SA 20 (E) 222 R v Swartbooi 1916 EDL 170 222

459

Radebe v Road Accident Fund (2012/10855) [2013] ZAGPJHC 135 (9 May 2013) 102 Radebe v Sosibo NO 2011 (5) SA 51 (GSJ) 134 Raisiba Maria Mathaba v Minister of Home Affairs [2013] JOL 30820 (GNP) 101 Ramothata v Makhote 1934 NAC (N & T) 74 85 Reyneke v Reyneke 1990 (3) SA 927 (E) 139 S S v Alam 2006 (2) SACR 613 (Ck) 216, 218 S v Benn; S v Jordaan; S v Gabriels 2004 (2) SACR 156 (C) 215 S v Dalindyebo Eastern Cape High Court, Mthatha, Unreported Case No 267/04 259 S v Katelane 1973 (2) SA 230 (N) 223 S v Latha 2012 (2) SACR 30 (ECG) 216, 218 S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) (26 September 2007) 123 S v Maluleke 2006 (1) SACR 402 (T) 217 S v Maluleke 2008 (1) SACR 49 (T) 213 S v Makhalemele 1986 (2) SA 20 (O) 222 S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) 18, 64, 214, 215, 220 S v Matlapeng 1970 (1) SA 333 (T) 219 S v Mngadi 1971 (2) SA 220 (N) 220 S v Moshesh 1962 (2) SA 264 (E) 219 S v Mxhamli 1992 (2) SACR 704 (Tk) 223 S v Williams (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995) 215 Santam v Fondo 1960 (2) SA 467 (A) 85, 93 Sawintshi v Magidela 1944 NAC (C & O) 47 84 Seedat’s Executors v The Master (Natal) 1917 AD 302 93 Shabangu v Masilela 1939 NAC (N & T) 86 153 Shibi v Sithole Unreported Case No 7292/01 of 19 November 2003 North Gauteng High Court 66, 174 Shilubana v Nwamitwa 2007 (2) SA 432 (SCA) 30

460

Shilubana v Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008) 19, 30, 31, 37, 43, 46, 47, 51, 58, 66, 67, 68, 69, 160, 165, 229, 236, 241, 2 45 Sicefe v Nyavozake 5 NAC 17 203 Sigcau v President of the Republic of South Africa (CCT 93/12) [2013] ZACC 18; 2013 (9) BCLR 1091 (CC) (13 June 2013) 244, 245 Sigcau v Sigcau 1941 CPD 334 57 Sigcau v Sigcau 1944 AD 67 57, 68 Sihoyo v Mandobe 1941 NAC (C & O) 5 153 Simanga Mankayi v Nosawusi Mbi-Maselana 4 NAC 337 (1918) 216 Sindane v Mbhokazi (1930) NAC (T & N) 204 Sonyabashe v Maqungo (1938) NAC (C & O) 1 204 T Thembisile v Thembisile 2002 (2) SA 209 (T) 106, 153, 190 Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T) 55, 81, 121, 178 Thulare v Thulare Unreported Case No 50275/09, Gauteng, 10 June 2011 243 Tongoane v National Minister for Agriculture and Land Affairs (CCT100/09) [2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May 2010) 10, 15, 16, 20, 227, 229 Tonjeni v Tonjeni 1947 4 NAC (C & O) 8 169 Tsoali v Lebenya (1940) NAC (C & 0) 22 204 Tusi v Cekwaan 1939 NAC (N & T) 63 152, 153 V Van Breda v Jacobs 1921 AD 330 30, 67 Visser v Hull (4375/2008) [2009] ZAWCHC 77; 2010 (1) SA 521 (WCC) (21 May 2009) 135, 136, 138 X Xakata v Kupuka 2 NAC 62 (1910) 153 Xanase v Tunce (1939) NAC (C & O) 36 203 Xulu v Nene 1939 NAC (T & N) 202

461

Y Yako v Beyi (1944) NAC (C & 0) 72 203 Yared v Yared 1952 (4) SA 182 (T) 139 Z Zakaza v Dennis Pennington 4 NAC 192 208 Zondi v President of the Republic of South Africa 2000 (2) SA 49 (N) 170

462

Table of legislation International Conventions Convention on the Elimination of All Forms of Discrimination Against Women of 1979 Section 15(2) 115 South Africa A Abolition of Corporal Punishment Act 33 of 1997 215 Section 2 262 Administration of Estates Act 66 of 1965 184 Administrative Authorities Act (Ciskei) 37 of 1984 234 Age of Majority Act 57 of 1972 111, 112 Alienation of Land Act 68 of 1981 136, 137 B Black Administration Act 38 of 1927 (BAA) 21, 33, 112, 158, 161, 166, 167, 172, 176, 189, 224, 229, 251, 256, 265 Schedule 3 214, 252, 259, 266 Section 1 11 Section 2(7) 11, 232, 257 Section 2(9) 219 Section 3(1) 258 Section 5 11 Section 5(1) 232 Section 6(1) 255 Section 11 12, 16, 114 Section 11A 114 Section 11(1) 12, 53, 54, 55, 56, 78, 79, 93 Section 11(3) 114 Section 11(3)(b) 111, 114, 258 Section 12 214, 252, 255, 263, 266

463

Section 12(1) 253, 259 Section 12(2) 253 Section 12(3) 253 Section 12(4) 253, 260 Section 12(6) 253 Section 20 214, 252, 255, 266 Section 20(1) 11, 253, 259 Section 20(2) 214, 215, 253, 260, 262 Section 20(3) 253 Section 20(4) 253 Section 20(5) 253 Section 20(6) 253 Section 20(9) 253 Section 22 183 Section 22(6) 12, 168, 170 Section 22(7) 169 Section 23 12, 63, 79, 87, 160, 168, 174, 175, 183 Section 23(1) 12, 168, 170 Section 23(2) 168, 170, 171 Section 23(7) 169 Section 23(10) 53, 168, 169, 174 Section 23(10)(a)–(e) 53 Section 25 257 Section 27(7) 183 Section 31 85, 170 Section 35 94 Black Administration Amendment Act 9 of 1929 255 Section 9 94 Black Areas Land Regulations Proc R188 of 1969 12 Black Authorities Act 68 of 1951 21, 229, 235, 251 Section 2 15, 233 Section 3 15, 233 Section 3(5) 233 464

Section 4(1)(a) 15 Section 4(1)(b) 15, 233, 255 Section 4(1)(c) 15 Section 4(1)(d) 15, 232 Section 8 15, 234 Section 9 15, 234 Black Authorities Act Repeal Bill (B9-2010) Memorandum Clause 1.2 229 Black Land Act 27 of 1913 (Natives Land Act 27 of 1913) 10, 11, 21 Black Laws Amendment Act 76 of 1963 Section 31 94 Section 78 235 Section 79 235 Bophuthatswana Traditional Courts Act 29 of 1979 253 C Chiefs’ and Headmen’s Civil Court Rules 208 Rule 1 263 Rule 2 263 Rule 3 263 Rule 4 263 Rule 5 263 Rule 6 263 Rule 7 263 Rule 8 263 Rule 9 263 Rule 10 263 Rule 11 263 Rule 13 264 Chiefs Courts Act 6 of 1983 253 Children’s Act 38 of 2005 108, 123, 146, 156 Section 1 112 Section 1(1) 124, 125 465

Section 1(2) 124 Section 6 127 Section 6(1)(a) 127 Section 6(1)(b) 127 Section 6(2) 127 Section 6(3) 127 Section 7 126, 127 Section 7(f)(i) 124 Section 7(f)(ii) 124 Section 9 126 Section 17 111, 187 Section 18 124 Section 18(2) 125 Section 18(3) 104, 125 Section 18(3)(c) 125 Section 18(4) 125 Section 19 125 Section 20 125 Section 21(1) 205 Section 31(1)(a) 125 Section 31(1)(b) 126 Ciskei Administrative Authorities Act 37 of 1984 253 Civil Union Act 17 of 2006 179 Section 1 181 Communal Land Rights Act 11 of 2004 20 Communal Property Associations Act 28 of 1996 240 Constitution Act of 1977 (Bophuthatswana) 171 Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution) 37, 121, 173, 175 Constitutional Principle XI 17, 18, 22, 61, 62 Constitutional Principle XIII 17, 18, 22, 161 Epilogue 18 Section 14 19 466

Section 30 122 Section 30(3) 122 Section 181 17 Section 181(1) 17 Section 182 17 Section 183 17 Section 184 17 Constitution of the Republic of South Africa, 1996 (final Constitution) 17, 22, 31, 37, 41, 43, 44, 48, 49, 63, 64, 66, 67, 71, 84, 97, 103, 11 3, 128, 131, 143, 146, 160, 165, 177, 187, 196, 201, 205, 223, 241, 246, 247, 248, 251, 252 Chapter 2 171, 173, 178, 179, 186 Chapter 12 19, 20 Schedule 6 Section 2 253 Section 2(1)(a) 34 Section 2(1)(b) 34 Section 14 253 Section 16(1) 253, 266 Section 1(c) 42 Section 2 42, 46 Section 8 19, 47 Section 8(2) 36 Section 9 32, 47, 94, 118, 169, 174, 177 Section 9(2) 115 Section 9(3) 18, 115 Section 10 174 Section 15 19, 47, 94 Section 18 47 Section 28 124, 175 Section 28(2) 123, 124, 190 Section 30 19, 59, 62, 94 Section 31 19, 47, 59, 62, 94

467

Section 34 265 Section 36 175 Section 39 19, 161 Section 39(2) 19, 34, 35, 38, 39, 76, 80, 81, 82, 116, 173, 188, 193, 262 Section 39(3) 19, 116, 236 Section 43 249 Section 104 249 Section 165(2) 263 Section 166(e) 254 Section 172(1) 124 Section 211 47 Section 211(1) 228, 250 Section 211(3) 19, 46, 47, 52, 58, 59, 60, 62, 65, 69, 70, 81, 82, 83, 88, 111, 116, 125, 1 61, 173, 186 Section 212(1) 47, 228, 250 Sections 226–230A 249 Section 228(2)(b) 249 Section 235 19, 20, 47, 240 Section 241 34 Courts Act 49 of 1898 Section 80 78 Criminal Law Amendment Act 105 of 1997 Schedule 2 Part 1 paras (a)–(f) 218 Section 51(1) 218 Criminal Procedure Act 51 of 1977 Section 297 213 Section 300 213 Section 301 213 D Divorce Act 70 of 1979 149 Section 6 156, 157 Section 7 154, 157 468

Section 7(1) 156 Section 7(2) 156 Section 7(3) 155 Section 8 154, 156, 157 Section 9 154, 157 Section 10 154, 157 F Free State Traditional Leadership and Governance Act 8 of 2005 227 I Income Tax Act 58 of 1962 Section 1 94 Intellectual Property Laws Amendment Bill [B8-2010] 20 Intergovernmental Relations Framework Act 13 of 2005 227 Interim Protection of Informal Land Rights Act 31 of 1996 20, 240 Intestate Succession Act 81 of 1987 36, 65, 87, 118, 161, 176, 178, 180, 182, 184, 185 Section 1(4) 174 Section 1(4)(b) 53, 54, 63, 175 Intestate Succession Law Restatement Act 13 of 1990 (Bophuthatswana) 162, 168, 171, 181 K KwaNdebele Traditional Hearings of Civil and Criminal Cases by the Lingwenyama, Amakhosi, Amakhosana and Linduna Act 8 of 1984253 KwaZulu Act on the Code of Zulu Law 16 of 1985 12, 13, 33, 34, 108, 112, 128, 170, 224 Chapter 8 99 Chapter 10 168 Chapter 12 197, 209 Section 1 171, 191, 194 Section 1(1) 35 Section 3(2) 234 469

Section 7(1) 219 Section 16(2) 124 Section 20 130, 131 Section 22 131 Section 27(2) 205 Section 30 214 Section 34 205 Section 38(1) 99 Section 43 99 Section 47 99 Section 50(1) 153 Section 51 99 Section 52 99 Section 61 204 Section 67(2) 204 Section 79 171 Section 79(1) 161, 171 Section 79(2) 161, 171 Section 79(3) 171 Section 82 205 Section 93 199 Section 94 199 Section 98 205 Section 98(1) 206 Section 98(3) 204 Section 99 200, 201 Section 102 198 Section 102(4) 198 Section 105(1) 132 Section 116 207 KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990 253 KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 227, 243 L 470

Law 4 of 1885 (Transvaal) 9 Section 2 78 Law of Evidence Amendment Act 45 of 1988 (LEAA) 49, 68 Section 1 16, 22, 54, 190 Section 1(1) 46, 51, 55, 56, 57, 59, 67, 75, 79, 80, 81 Section 1(2) 35, 54, 56, 57 Section 1(3) 74, 75, 76, 83, 88, 132 Laws on Co-operation and Development Second Amendment Act 90 of 1985 114 Limpopo Traditional Leadership and Institutions Act 6 of 2005 227, 249 Local Government: Municipal Systems Act 32 of 2000 20, 227, 247 M Magistrates’ Courts Act 32 of 1944 Section 54A(1) 16 Maintenance Act 23 of 1963 Section 5(6) 94 Maintenance of Surviving Spouses Act 27 of 1990 174, 185 Marriage Act 25 of 1961 36, 107, 110, 115, 116, 128, 143, 183 Section 24A 104 Section 24A(1) 104 Section 24A(1)(a) 104 Section 24A(1)(b) 104 Section 24A(2) 104 Section 25 104 Marriage and Matrimonial Property Law Amendment Act 3 of 1988 16, 169, 183 Matrimonial Property Act 88 of 1984 (MPA) 36, 108, 110, 132 Chapter 3 133 Chapter 4 133 Section 1 136 Section 14 134 Section 15(1) 134 Section 15(2)(a) 135 471

Section 15(2)(b) 135 Section 15(2)(c) 135 Section 15(2)(d) 135 Section 15(2)(e) 135 Section 15(2)(f) 135 Section 15(2)(g) 135 Section 15(2)(h) 135 Section 15(4) 135, 136 Section 15(5) 135 Section 15(7) 137 Section 15(8) 136 Section 15(9)(a) 137 Section 15(9)(b) 134, 137, 139 Section 16 138 Section 16(2) 137, 138 Section 17(1) 135 Section 18 133 Section 19 133, 134 Section 20 133, 138 Section 20(1) 138 Section 21 146, 154 Section 24 133 Section 24(1) 154, 157 Mediation in Certain Divorce Matters Act 24 of 1987 156, 157 Mineral and Petroleum Resources Development Act 28 of 2002 20 Mpumalanga Traditional Leadership and Governance Act 3 of 2006 227 N Natal Code of Zulu Law Proc R151 of 1987 12, 13, 33, 34, 108, 112, 128, 224 Chapter 8 99 Chapter 10 168 Chapter 11 220 Chapter 12 197, 12 Chapter 14 220 472

Section 1 171, 191, 194, 222 Section 1(1) 35 Section 3(2) 234 Section 7(1) 219 Section 16(2) 124 Section 27(2) 205 Section 38(1) 99 Section 20 130, 131 Section 22 131 Section 30 214 Section 34 205 Section 57(2) 93 Section 43 99 Section 47 99 Section 50(1) 153 Section 51 99 Section 52 99 Section 61 204, 221 Section 61(2) 221 Section 62 221 Section 67(2) 204 Section 79 171 Section 79(1) 161, 171 Section 79(2) 161, 171 Section 79(3) 171 Section 82 205 Section 90(1) 220 Section 90(2) 220 Section 93 199 Section 94 199 Section 98 205 Section 98(1) 206 Section 98(3) 204 Section 99 200, 201 473

Section 102 198 Section 102(4) 198 Section 105(1) 132 Section 115 220 Section 116 207 Section 116(1) 221 Section 117 220, 221 Section 162(1)(b) 223 Natal Law 11 of 1864 85 National Credit Act 34 of 2005 135, 137 National House of Traditional Leaders Act 22 of 2009 227 Native Administration Amendment Act 13 of 1955 11 Native Trust and Land Act 18 of 1936 10, 15 Section 21 257 Northern Cape Traditional Leadership Governance and Houses of Traditional Leaders Act 2 of 2007 227 North West Traditional Leadership and Governance Act 2 of 2005 227 P Prescription Act 68 of 1969 208 Prevention and Combating of Corrupt Activities Act 12 of 2004 Chapter 2 259 Section 17 259 Section 20 259 Section 21 259 Prevention of Organised Crime Act 121 of 1998 134 Proclamation 110 of 1957 257 Proclamation 140 of 1885 Section 22 52, 68 Proclamation (Cape) 145 of 1923 Section 104(10) 53, 68 Proclamation R45 of 1961 260 474

Q QwaQwa Administration Authorities Act 6 of 1983 253 R Recognition of Customary Marriages Act 120 of 1998 (RCMA) 36, 39, 60, 93, 100, 106, 107, 108, 109, 110, 114, 115, 124, 128, 132, 14 8, 182, 189 Preamble 95 Section 1 26, 95, 96, 97, 153, 188 Section 2 133, 174, 179 Section 2(1) 92, 95, 99 Section 2(2) 92, 95, 102 Section 2(3) 92, 95, 99, 116 Section 2(4) 92, 95, 102, 116 Section 3 86, 102, 144, 187, 223 Section 3(1) 102, 103 Section 3(1)(b) 91, 92, 96, 102, 103, 122, 191 Section 3(2) 103 Section 3(3) 104 Section 3(3)(a) 104 Section 3(4) 104 Section 3(5) 104 Section 3(6) 104 Section 4(2) 105 Section 4(3)(a) 105 Section 4(3)(b) 105 Section 4(4)(a) 105 Section 4(4)(b) 105 Section 4(5) 105 Section 4(5)(a) 105 Section 4(5)(b) 105 Section 4(7) 105 Section 4(8) 105 Section 4(9) 105, 106 475

Section 6 112, 113, 114, 120, 121, 129, 187, 201 Section 7(1) 96, 128, 133 Section 7(2) 96, 133, 140, 143 Section 7(3) 133 Section 7(4) 145, 146, 154 Section 7(4)(a) 145 Section 7(4)(b) 145 Section 7(5) 154 Section 7(6) 95, 96, 141, 142, 144, 147, 154 Section 7(7) 140, 141, 143, 154 Section 7(7)(a)(i) 143 Section 7(7)(a)(ii) 143 Section 7(7)(a)(iii) 143 Section 7(8) 141 Section 8 156 Section 8(1) 149 Section 8(2) 149 Section 8(4)(a) 154, 155, 156, 157 Section 8(4)(b) 154, 157 Section 8(4)(c) 156 Section 8(4)(d) 156 Section 8(4)(e) 156 Section 8(5) 153 Section 9 111 Section 10 183 Section 10(1) 103 Section 10(2) 104 Section 11 105 Section 12 112 Section 13 131 Recognition of Customary Marriages Amendment Bill, 2009 Clause 4(2) 105 Clause 4(c) 105

476

Reform of the Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (RCLSA) 36, 39, 60, 158, 159, 168, 171, 175, 176, 177, 185 Section 1 26, 178 Section 1(b) 181 Section 2 87, 181 Section 2(1) 87, 180 Section 2(2)(a) 180, 181, 182 Section 2(2)(b) 178, 179, 180, 181, 182 Section 2(2)(c) 178, 179, 180, 181, 182 Section 3(1) 181 Section 3(2) 182 Section 3(3) 180 Section 4 182, 191 Section 4(1) 182 Section 4(2) 182 Section 4(2)(a) 180 Section 4(2)(b) 180, 181 Section 4(3) 183 Section 5 182, 184 Section 5(1) 184 Section 5(2) 184 Section 5(3) 184 Section 5(4) 184 Section 5(5) 184 Section 6 184 Section 7(1) 183 Section 7(2) 169, 183 Regional Authorities Courts Act 13 of 1982 (Transkei) 253 Section 7 263 Regulations for the Administration and Control of Townships in Black Areas Proc R293 of 1962 12

477

Regulations for the Administration and Distribution of the Estates of Deceased Blacks GN R200 of 1987 16, 158, 167, 168 Regulation 2 12, 53, 87, 161, 174, 175 Regulation 2(b) 170 Regulation 2(c) 170, 174 Regulation 2(d) 169, 170 Regulation 2(e) 87, 169 Regulation 3(1) 169 Regulations for the Recognition of Customary Marriages Act GN 1101 105 Regulations Governing the Control and Supervision of an Urban Black Residential Area and Relevant Matters GN R1036 of 1968 12 Remuneration of Public Office Bearers Act 20 of 1998 227, 243, 249 Remuneration of Public Office Bearers Amendment Act 9 of 2000 249 Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005 167, 253 Restitution of Land Rights Act 22 of 1994 240 S Self-Governing Territories Constitution Act 21 of 1971 14 Succession Act 23 of 1982 (Bophuthatswana) 171 T Traditional Courts Bill [B1-2012] 20, 253, 254, 266 Item 3 of the Memorandum on the Objects 253 Traditional Leadership and Governance Act 4 of 2005 (Eastern Cape) 227, 242, 243 Traditional Leadership and Governance Framework Act 41 of 2003 (TLGFA) 60, 184, 227, 235, 244, 245, 250, 258 Section 1 238, 239 Section 1(1) 241 Section 1(2) 238 Section 2 20, 238, 239, 251 Section 2(3)(c) 258 478

Section 3 20, 240 Section 3(2) 241 Section 3(2)(c) 258 Section 4 246 Section 4(1) 247 Section 4(1)(a) 247 Section 4(1)(b) 247 Section 4(2) 249 Section 4(3)(b) 249 Section 5 247 Section 5(3) 20 Section 7 20, 239 Section 8 237 Section 11(1) 242 Section 11(2)(b) 242 Section 11(3) 242 Section 12(1)(a) 214, 215, 242 Section 12(1)(b) 214, 215, 242 Section 12(1)(d) 214, 215, 242 Section 19 247 Section 20 248 Section 20(1)(f) 258 Section 20(2) 249, 251 Section 20(2)(b) 20 Section 20(2)(f) 20, 248 Section 20(2)(g) 248 Section 20(2)(m) 20 Section 20(3)(a) 249 Section 20(3)(b) 249 Section 20(4) 249 Section 21(1)(a) 246 Section 21(2)(c) 246 Section 21(3) 246 Section 22 229, 236 479

Section 25 236, 237 Section 26 239 Section 28(1) 238, 251 Section 28(3) 20, 239, 251 Section 28(4) 20, 241, 251 Section 28(5) 20, 239 Section 29 243 Traditional Leadership and Governance Framework Amendment Act 23 of 2009 227, 237 Transkei Authorities Act 4 of 1965 253 Transkei Marriage Act 21 of 1978 12, 112, 128, 168 Section 31 99 Section 38 162 U Uniform Rules of Court Rule 43 156 Union of South Africa Act, 1909 10 Upgrading of Land Tenure Rights Act 112 of 1991 240 Upgrading of Land Tenure Rights Amendment Act 34 of 1996 Section 1(a) 240 V Venda Traditional Leaders Administration Proclamation 29 of 1991 253 W Wills Act 7 of 1953 86, 159, 161, 171 Section 3(1) 87 Witchcraft Suppression Act 3 of 1957 224 Section 1 217 Section 1(a) 216, 217 Section 1(b) 218 Section 1(c) 218 Section 1(d) 218 480

Section 1(e) 218 Zambia Subordinate Courts Act Cap 28 Section 16 80

481