,CONTENTS
Page
FOREWORD v
PART 1: THEORETICAL AND STRUCTURAL OVERVIEW OF AFRICAN CUSTOMARY LAW 1
Learning unit 1: Historical overview of customary law 2
Introduction 2
Lecture 1: The pre-colonial era (the period before 1652) 2
Lecture 2: The colonial era (the period 1652–1909) 3
Lecture 3: The union era (1910–1947) 4
Lecture 4: The apartheid era (1948–1990) 4
Lecture 5: The transitional era (1990–1996) 5
Lecture 6: The democratic era (1994 to date) 5
Lecture 7: Transformation of customary law 6
Conclusion 10
Learning unit 2: The nature and concept of customary law 11
Introduction 11
Lecture 1: Definition and concept of customary law 11
Lecture 2: The nature and concept of customary law 12
Lecture 3: The difference between living customary law and official customary law 13
Lecture 4: Transformation of customary law 13
Conclusion 15
Learning unit 3: Ascertainment and Proof of Customary Law 16
Introduction 16
Lecture 1: Ascertainment of customary law: the traditional framework 16
Lecture 2: Ascertainment of customary law: the statutory framework 16
Lecture 3: Ascertainment of customary law: the constitutional framework 17
Lecture 4: Transformation of customary law 17
Conclusion 18
Learning unit 4: Internal conflict of laws 19
Introduction 19
Lecture 1: Conflict of laws under customary law 19
Lecture 2: Conflict of laws during the pre-constitutional period 19
Lecture 3: Conflict of laws during the post-constitutional period 20
Lecture 4: Transformation of customary law 20
Conclusion 21
PART 2: PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY LAW 23
Learning unit 5: Customary marriage – requirements for validity 24
Introduction 24
Lecture 1: Statutory requirements for the formation of a customary marriage 24
Lecture 2: Any additional requirements? 25
Lecture 3: The requirements for the validity of a further marriage 25
(iii) LCP4804/1/2019–2021
,Lecture 4: Transformation of customary law 25
Conclusion 28
Learning unit 6: Consequences of customary marriage–personal and proprietary 29
Introduction 29
Lecture 1: Personal consequences of the customary marriage 30
Lecture 2: Consequences of customary marriage in respect of children 30
Lecture 3: Proprietary consequences of customary marriage 30
Lecture 4: Transformation of customary law 30
Conclusion 31
Learning unit 7: Dissolution of the customary marriage 32
Introduction 32
Lecture 1: Dissolving a customary marriage by divorce 32
Lecture 2: Dissolving a customary marriage by death 32
Lecture 3: Consequences of divorce 33
Conclusion 33
Learning unit 8: Customary Law of Succession 34
Introduction 34
Lecture 1: Succession and inheritance in customary law 35
Lecture 2: Legislative interventions under colonial, union and apartheid administrations 36
Lecture 3: Legislative and judicial interventions under the Constitution, 1996 36
Lecture 4: Transformation of customary law 38
Conclusion 42
Learning unit 9: Customary law of obligations (contracts) 43
Introduction 43
Lecture 1: Capacity to enter into binding customary law commitments 43
Lecture 2: Customary law contracts: ukwenzelela, ukwethula, isondlo/dikotlo, inqoma/mafisa/sisa 44
Lecture 3: Ukufakwa as a specific customary law contract 44
Lecture 4: The attributes of ubuntu as found in ukufakwa 45
Lecture 5: Transformation of customary law 46
Conclusion 48
Learning unit 10: Customary law of obligations (delicts) 49
Introduction 49
Lecture 1: Delictual liability in customary law 49
Lecture 2: Defamation of character in customary law 49
Lecture 3: The delicts of adultery and seduction in customary law 50
Lecture 4: Transformation of customary law 50
Conclusion 52
PART 3: POLITICAL AND CIVIC ASPECTS OF AFRICAN CUSTOMARY LAW 53
Learning unit 11: Traditional leadership institutions 54
Introduction 54
Lecture 1: History of traditional leadership institutions 54
Lecture 2: Recognition and jurisdiction of traditional leaders 55
Lecture 3: Recognition of traditional communities 55
Lecture 4: Recognition of traditional councils 55
Lecture 5: Transformation of customary law 55
Conclusion 58
BIBLIOGRAPHY 59
(iv)
, FOREWORD
Dear Student
We are pleased to welcome you to the Advanced Indigenous Law (LCP4804) module.
During semester 2 of 2018, you will study this tutorial letter as the only study guide for
this module. As it stands, it is a draft study guide that is still in the process of completion.
You will also notice that it is in the form of a wrap-around, which means that you will use
it together with your prescribed textbook. Your prescribed textbook is Himonga C and
Nhlapo T (eds) (2014) African Customary Law in South Africa: Post-Apartheid and Living
Law Perspectives. Cape Town: Oxford University Press. This is the final information
on the prescribed material. You should be able to get the prescribed textbook from
bookshops that sell UNISA textbooks. If, for some reason, it is unavailable, the bookshop
should order it for you and will receive it within a few days.
Advanced Indigenous Law (LCP4804) provides an in-depth study of indigenous African
law which was the first legal system which applied throughout the country before it was
supplanted by Roman-Dutch law as the law of the land. We will explore the system’s
originality, uniqueness and distinctiveness after centuries of domination by the Western
component of South African law. This is an ontological defect that we must dispel from
our minds by gradually ridding customary law of all colonial and apartheid distortions
and by re-integrating indigenous norms with constitutional values to attain customary
law’s envisioned version for the 21st century. To attain that, the Constitution enjoins the
courts to apply customary law when it is relevant (section 211(3)). This requires us to study
indigenous African law according to its own value system because it is no longer subject
to the non-repugnancy caution of yesteryear. You will recall that, in the past, customary
law was applied in a manner that it would not be repugnant to the principles of natural
justice and public policy. This was a smart way of saying that customary law should not
offend Western notions of morality. We all know that this was a function of the inequality
between customary law and common law. Today section 39 of the Constitution treats
these two components of South African law equally and section 211 of the Constitution
recognises customary law.
You will notice that, as a wrap-around, this study guide goes hand in hand with the
prescribed textbook, both of which must be studied together with the prescribed cases
and statutes. Consequently, the study guide is not comprehensive and simply provides
a guide through the textbook and other study material.
As a study guide, this tutorial letter (Tutorial Letter 102) is divided into learning units which
are also divided into lectures. Each learning unit concludes with activities, feedback and
self-assessment. These exercises assist you to reflect on the study material discussed in
the lectures that constitute the particular learning unit. In most cases, the lectures will
simplify the understanding of the relevant study material to facilitate the learning process.
Towards the end of each learning unit, there is a brief lecture on the Transformation of
Customary Law so that you are able to appreciate the legislative and judicial efforts to
v LCP4804/1
Page
FOREWORD v
PART 1: THEORETICAL AND STRUCTURAL OVERVIEW OF AFRICAN CUSTOMARY LAW 1
Learning unit 1: Historical overview of customary law 2
Introduction 2
Lecture 1: The pre-colonial era (the period before 1652) 2
Lecture 2: The colonial era (the period 1652–1909) 3
Lecture 3: The union era (1910–1947) 4
Lecture 4: The apartheid era (1948–1990) 4
Lecture 5: The transitional era (1990–1996) 5
Lecture 6: The democratic era (1994 to date) 5
Lecture 7: Transformation of customary law 6
Conclusion 10
Learning unit 2: The nature and concept of customary law 11
Introduction 11
Lecture 1: Definition and concept of customary law 11
Lecture 2: The nature and concept of customary law 12
Lecture 3: The difference between living customary law and official customary law 13
Lecture 4: Transformation of customary law 13
Conclusion 15
Learning unit 3: Ascertainment and Proof of Customary Law 16
Introduction 16
Lecture 1: Ascertainment of customary law: the traditional framework 16
Lecture 2: Ascertainment of customary law: the statutory framework 16
Lecture 3: Ascertainment of customary law: the constitutional framework 17
Lecture 4: Transformation of customary law 17
Conclusion 18
Learning unit 4: Internal conflict of laws 19
Introduction 19
Lecture 1: Conflict of laws under customary law 19
Lecture 2: Conflict of laws during the pre-constitutional period 19
Lecture 3: Conflict of laws during the post-constitutional period 20
Lecture 4: Transformation of customary law 20
Conclusion 21
PART 2: PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY LAW 23
Learning unit 5: Customary marriage – requirements for validity 24
Introduction 24
Lecture 1: Statutory requirements for the formation of a customary marriage 24
Lecture 2: Any additional requirements? 25
Lecture 3: The requirements for the validity of a further marriage 25
(iii) LCP4804/1/2019–2021
,Lecture 4: Transformation of customary law 25
Conclusion 28
Learning unit 6: Consequences of customary marriage–personal and proprietary 29
Introduction 29
Lecture 1: Personal consequences of the customary marriage 30
Lecture 2: Consequences of customary marriage in respect of children 30
Lecture 3: Proprietary consequences of customary marriage 30
Lecture 4: Transformation of customary law 30
Conclusion 31
Learning unit 7: Dissolution of the customary marriage 32
Introduction 32
Lecture 1: Dissolving a customary marriage by divorce 32
Lecture 2: Dissolving a customary marriage by death 32
Lecture 3: Consequences of divorce 33
Conclusion 33
Learning unit 8: Customary Law of Succession 34
Introduction 34
Lecture 1: Succession and inheritance in customary law 35
Lecture 2: Legislative interventions under colonial, union and apartheid administrations 36
Lecture 3: Legislative and judicial interventions under the Constitution, 1996 36
Lecture 4: Transformation of customary law 38
Conclusion 42
Learning unit 9: Customary law of obligations (contracts) 43
Introduction 43
Lecture 1: Capacity to enter into binding customary law commitments 43
Lecture 2: Customary law contracts: ukwenzelela, ukwethula, isondlo/dikotlo, inqoma/mafisa/sisa 44
Lecture 3: Ukufakwa as a specific customary law contract 44
Lecture 4: The attributes of ubuntu as found in ukufakwa 45
Lecture 5: Transformation of customary law 46
Conclusion 48
Learning unit 10: Customary law of obligations (delicts) 49
Introduction 49
Lecture 1: Delictual liability in customary law 49
Lecture 2: Defamation of character in customary law 49
Lecture 3: The delicts of adultery and seduction in customary law 50
Lecture 4: Transformation of customary law 50
Conclusion 52
PART 3: POLITICAL AND CIVIC ASPECTS OF AFRICAN CUSTOMARY LAW 53
Learning unit 11: Traditional leadership institutions 54
Introduction 54
Lecture 1: History of traditional leadership institutions 54
Lecture 2: Recognition and jurisdiction of traditional leaders 55
Lecture 3: Recognition of traditional communities 55
Lecture 4: Recognition of traditional councils 55
Lecture 5: Transformation of customary law 55
Conclusion 58
BIBLIOGRAPHY 59
(iv)
, FOREWORD
Dear Student
We are pleased to welcome you to the Advanced Indigenous Law (LCP4804) module.
During semester 2 of 2018, you will study this tutorial letter as the only study guide for
this module. As it stands, it is a draft study guide that is still in the process of completion.
You will also notice that it is in the form of a wrap-around, which means that you will use
it together with your prescribed textbook. Your prescribed textbook is Himonga C and
Nhlapo T (eds) (2014) African Customary Law in South Africa: Post-Apartheid and Living
Law Perspectives. Cape Town: Oxford University Press. This is the final information
on the prescribed material. You should be able to get the prescribed textbook from
bookshops that sell UNISA textbooks. If, for some reason, it is unavailable, the bookshop
should order it for you and will receive it within a few days.
Advanced Indigenous Law (LCP4804) provides an in-depth study of indigenous African
law which was the first legal system which applied throughout the country before it was
supplanted by Roman-Dutch law as the law of the land. We will explore the system’s
originality, uniqueness and distinctiveness after centuries of domination by the Western
component of South African law. This is an ontological defect that we must dispel from
our minds by gradually ridding customary law of all colonial and apartheid distortions
and by re-integrating indigenous norms with constitutional values to attain customary
law’s envisioned version for the 21st century. To attain that, the Constitution enjoins the
courts to apply customary law when it is relevant (section 211(3)). This requires us to study
indigenous African law according to its own value system because it is no longer subject
to the non-repugnancy caution of yesteryear. You will recall that, in the past, customary
law was applied in a manner that it would not be repugnant to the principles of natural
justice and public policy. This was a smart way of saying that customary law should not
offend Western notions of morality. We all know that this was a function of the inequality
between customary law and common law. Today section 39 of the Constitution treats
these two components of South African law equally and section 211 of the Constitution
recognises customary law.
You will notice that, as a wrap-around, this study guide goes hand in hand with the
prescribed textbook, both of which must be studied together with the prescribed cases
and statutes. Consequently, the study guide is not comprehensive and simply provides
a guide through the textbook and other study material.
As a study guide, this tutorial letter (Tutorial Letter 102) is divided into learning units which
are also divided into lectures. Each learning unit concludes with activities, feedback and
self-assessment. These exercises assist you to reflect on the study material discussed in
the lectures that constitute the particular learning unit. In most cases, the lectures will
simplify the understanding of the relevant study material to facilitate the learning process.
Towards the end of each learning unit, there is a brief lecture on the Transformation of
Customary Law so that you are able to appreciate the legislative and judicial efforts to
v LCP4804/1
