LCP4804
NOTES
,
STUDY UNIT 1: AFRICAN CUSTOMARY LAW OF PERSONS
LECTURE 1 - LEGAL STATUS AND THE CHOICE OF LAW
LEGAL STATUS
Status refers to the legal position of a person as a member of a specific class. The
legal position of a person is related to his or her powers, rights and duties.
In terms of indigenous law, people belong to different classes or categories due to
factors such as age, sex, rank within the family, legitimacy or illegitimacy of birth,
adoption, disinheritance, mental capacity, order of birth within the family, marital
status, and kinship.
The juristic person as known to modern legal systems was foreign to original
indigenous law. The person was considered to be an individual human being. The
individual always shared his or her rights, powers and duties with his or her
agnatic group. There was no question of absolute majority or minority.
The principle of shared rights and duties: Every member of the agnatic group
shared in the rights of the group. The "share" of every member differed from that
of the other members since no two persons within the group had the same rank.
While the head of the agnatic group had the largest "share" in the rights of the
group, he did not have a "majority share". He could not act arbitrarily nor without
the co-operation of the group.
The emphasis in modern indigenous law falls strongly on the individual. This
emphasis on the individual frequently occurs at the expense of the other
members of the group. A marital union under original indigenous law was thus a
matter between the family groups of the man and the woman. In modern
indigenous law the emphasis is rather on the man, the woman and the woman's
father (or his successor) as individuals.
- In original indigenous law the family head controlled the family property on
behalf of and for the benefit of the family. In modern indigenous law the
tendency is to regard the family head as owner and to disregard the rights of
the other members of the family in respect of family property.
- In modern indigenous law the status of a person is related to his or her powers
to act and to appear in court as well as the power to acquire property and to
dispose of it. Status thus has an influence on a person's capacity to act, as
well as on his or her capacity to appear in court and to acquire property.
In indigenous law a person's status is influenced by several factors with the
result that no two persons had the same status.
CHOICE OF LAW
In indigenous law the legal capacity, as well as the capacity of a person to act or
to appear in court, was determined either according to the rules of:
statutory law, common law and case law; or
indigenous law
Critical Law Studies cc (c)
,
Bekker believes that there is only one legal system, namely the law of the land. –
his opinion was formed prior to the recognition of indigenous law in terms of the
current Constitution, when indigenous law was not recognised as a concurrent
legal system of the Republic of South Africa.
In Ex parte Minister of Native Affairs: In re Yako v Beyi it was decided that no basic
or primary legal system was applicable. There are, however, circumstances under
which indigenous law may be enforced by the courts. Section 1 of the Law of
Evidence Amendment Act 45 of 1988, empowered all courts of law to take judicial
note of indigenous law in so far as such law can be ascertained readily and with
sufficient certainty. Indigenous law may not be opposed to the principles of public
policy or natural justice, subject however, to the provision that lobolo, bogadi and
similar customs may not be regarded as opposed to such principles.
This position has been amended drastically by the Constitution.
Indigenous law and the Constitution:
Section 211(3) provides that courts must apply customary law when it is
applicable, subject to the Constitution and any legislation that specifically deals
with customary law. This provision amends s 1 of Act 45 of
1988 in that court MUST now apply customary law and cannot merely take
judicial notice of it. The court has to determine whether customary law is
applicable if it is found to be applicable the court has to apply it. Otherwise the
court is not compelled to apply customary law.
It is not clear whether the principles of public policy and natural justice still
apply. The fact that indigenous law is subject to the Constitution, makes these
principles redundant. Moreover, it can be asked whether these principles are not
in conflict with the right to culture?
Section 9(3) rules that the state may not unfairly discriminate, directly or
indirectly, against any person on, among others, the grounds of age or gender.
Section 9(4) provides for legislation to prevent and prohibit unfair
discrimination. In this regard the Promotion of Equality and Prevention of Unfair
Discrimination Act had been promulgated.
By recognising indigenous law on the one hand and prohibiting unfair
discrimination on the other, the opposing principles, namely the right of the
individual to equal treatment and the right of a group to adhere to the culture of
its choice (s 30).
PATRIARCHY:
There is no accepted definition of patriarchy but the concept refers to a type of
social system that is dominated by the principle of paternal authority and "father-
right". This authority applies to the private (domestic) and public domains.
Critical Law Studies cc (c)
,
Conflict between indigenous law and the Bill of Rights
Such conflict is unavoidable. The principle of patriarchy, implying cultural
discrimination against women, is inherent to African culture and indigenous law.
The Bill of Rights emphasises rights, whereas indigenous law emphasises duties.
The question is how this potential conflict should be dealt with? There is no
definite answer. However, there are a few guidelines which indicate that the Bill of
Rights has priority over indigenous law:
• S 2: The Constitution is the supreme law and indigenous law is subject to this
law (s 211(3)).
• Section 211(3): courts must apply customary law when it is applicable,
subject to the Constitution and any legislation that specifically deals with
customary law.
• S 8(1): the Bill of Rights applies to all law, including indigenous law
• S 8(2): the Bill of Rights is binding on a natural and a juristic person
(horizontal application of the Constitution)
• S 8(3): provides that courts, in applying a provision of the Bill of Rights to a
natural or juristic person, must apply the common law, or develop it where
necessary, in order to give effect to a right in the Bill of Rights (suggesting that
indigenous law may not be applied in these cases)
• S 9(4): prohibits unfair discrimination between persons (and providing for
national legislation to prevent or prohibit unfair discrimination)
• S 36(1): provides that the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society
• S39(1): requires the courts to promote the values that underlie an open and
democratic society based on human dignity, equality and freedom and equality
in interpreting the Bill of Rights
• S39(2): provides that in interpreting any legislation and applying and
developing common law and indigenous law, the courts must promote the
spirit, purport and objects of the Bill of Rights (suggesting that indigenous law
may also be developed)
• S 39(3): recognises the existence of other rights and freedoms that are
recognised or conferred by common law, customary law or legislation, to the
extent that they are consistent with the Bill of Rights
• S 30: recognises the right to culture
• S 31: regulates the enjoyment of culture by cultural communities
If it is accepted that the application of indigenous law is a constitutional right,
and not merely a freedom, this means that indigenous law is constitutionally
protected. In the event of conflict, the conflicting rights must be weighed against
one another. The various rights in the Bill of Rights are also not arranged in a
hierarchical order from more important to less important. The promotion and
protection of one category of rights does not exempt the state from promoting and
protecting another category of rights. Also, it may not lead to oppression of or
unfair discrimination against one category of persons, for instance women.
■ The position of a wife in a customary marriage. Discrimination against
married women in terms of section 11(3) of the Black Administration
Act has been terminated by the Recognition of Customary Marriages
Act. The ranking position of a wife in a polygynous marriage does have
Critical Law Studies cc (c)
NOTES
,
STUDY UNIT 1: AFRICAN CUSTOMARY LAW OF PERSONS
LECTURE 1 - LEGAL STATUS AND THE CHOICE OF LAW
LEGAL STATUS
Status refers to the legal position of a person as a member of a specific class. The
legal position of a person is related to his or her powers, rights and duties.
In terms of indigenous law, people belong to different classes or categories due to
factors such as age, sex, rank within the family, legitimacy or illegitimacy of birth,
adoption, disinheritance, mental capacity, order of birth within the family, marital
status, and kinship.
The juristic person as known to modern legal systems was foreign to original
indigenous law. The person was considered to be an individual human being. The
individual always shared his or her rights, powers and duties with his or her
agnatic group. There was no question of absolute majority or minority.
The principle of shared rights and duties: Every member of the agnatic group
shared in the rights of the group. The "share" of every member differed from that
of the other members since no two persons within the group had the same rank.
While the head of the agnatic group had the largest "share" in the rights of the
group, he did not have a "majority share". He could not act arbitrarily nor without
the co-operation of the group.
The emphasis in modern indigenous law falls strongly on the individual. This
emphasis on the individual frequently occurs at the expense of the other
members of the group. A marital union under original indigenous law was thus a
matter between the family groups of the man and the woman. In modern
indigenous law the emphasis is rather on the man, the woman and the woman's
father (or his successor) as individuals.
- In original indigenous law the family head controlled the family property on
behalf of and for the benefit of the family. In modern indigenous law the
tendency is to regard the family head as owner and to disregard the rights of
the other members of the family in respect of family property.
- In modern indigenous law the status of a person is related to his or her powers
to act and to appear in court as well as the power to acquire property and to
dispose of it. Status thus has an influence on a person's capacity to act, as
well as on his or her capacity to appear in court and to acquire property.
In indigenous law a person's status is influenced by several factors with the
result that no two persons had the same status.
CHOICE OF LAW
In indigenous law the legal capacity, as well as the capacity of a person to act or
to appear in court, was determined either according to the rules of:
statutory law, common law and case law; or
indigenous law
Critical Law Studies cc (c)
,
Bekker believes that there is only one legal system, namely the law of the land. –
his opinion was formed prior to the recognition of indigenous law in terms of the
current Constitution, when indigenous law was not recognised as a concurrent
legal system of the Republic of South Africa.
In Ex parte Minister of Native Affairs: In re Yako v Beyi it was decided that no basic
or primary legal system was applicable. There are, however, circumstances under
which indigenous law may be enforced by the courts. Section 1 of the Law of
Evidence Amendment Act 45 of 1988, empowered all courts of law to take judicial
note of indigenous law in so far as such law can be ascertained readily and with
sufficient certainty. Indigenous law may not be opposed to the principles of public
policy or natural justice, subject however, to the provision that lobolo, bogadi and
similar customs may not be regarded as opposed to such principles.
This position has been amended drastically by the Constitution.
Indigenous law and the Constitution:
Section 211(3) provides that courts must apply customary law when it is
applicable, subject to the Constitution and any legislation that specifically deals
with customary law. This provision amends s 1 of Act 45 of
1988 in that court MUST now apply customary law and cannot merely take
judicial notice of it. The court has to determine whether customary law is
applicable if it is found to be applicable the court has to apply it. Otherwise the
court is not compelled to apply customary law.
It is not clear whether the principles of public policy and natural justice still
apply. The fact that indigenous law is subject to the Constitution, makes these
principles redundant. Moreover, it can be asked whether these principles are not
in conflict with the right to culture?
Section 9(3) rules that the state may not unfairly discriminate, directly or
indirectly, against any person on, among others, the grounds of age or gender.
Section 9(4) provides for legislation to prevent and prohibit unfair
discrimination. In this regard the Promotion of Equality and Prevention of Unfair
Discrimination Act had been promulgated.
By recognising indigenous law on the one hand and prohibiting unfair
discrimination on the other, the opposing principles, namely the right of the
individual to equal treatment and the right of a group to adhere to the culture of
its choice (s 30).
PATRIARCHY:
There is no accepted definition of patriarchy but the concept refers to a type of
social system that is dominated by the principle of paternal authority and "father-
right". This authority applies to the private (domestic) and public domains.
Critical Law Studies cc (c)
,
Conflict between indigenous law and the Bill of Rights
Such conflict is unavoidable. The principle of patriarchy, implying cultural
discrimination against women, is inherent to African culture and indigenous law.
The Bill of Rights emphasises rights, whereas indigenous law emphasises duties.
The question is how this potential conflict should be dealt with? There is no
definite answer. However, there are a few guidelines which indicate that the Bill of
Rights has priority over indigenous law:
• S 2: The Constitution is the supreme law and indigenous law is subject to this
law (s 211(3)).
• Section 211(3): courts must apply customary law when it is applicable,
subject to the Constitution and any legislation that specifically deals with
customary law.
• S 8(1): the Bill of Rights applies to all law, including indigenous law
• S 8(2): the Bill of Rights is binding on a natural and a juristic person
(horizontal application of the Constitution)
• S 8(3): provides that courts, in applying a provision of the Bill of Rights to a
natural or juristic person, must apply the common law, or develop it where
necessary, in order to give effect to a right in the Bill of Rights (suggesting that
indigenous law may not be applied in these cases)
• S 9(4): prohibits unfair discrimination between persons (and providing for
national legislation to prevent or prohibit unfair discrimination)
• S 36(1): provides that the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society
• S39(1): requires the courts to promote the values that underlie an open and
democratic society based on human dignity, equality and freedom and equality
in interpreting the Bill of Rights
• S39(2): provides that in interpreting any legislation and applying and
developing common law and indigenous law, the courts must promote the
spirit, purport and objects of the Bill of Rights (suggesting that indigenous law
may also be developed)
• S 39(3): recognises the existence of other rights and freedoms that are
recognised or conferred by common law, customary law or legislation, to the
extent that they are consistent with the Bill of Rights
• S 30: recognises the right to culture
• S 31: regulates the enjoyment of culture by cultural communities
If it is accepted that the application of indigenous law is a constitutional right,
and not merely a freedom, this means that indigenous law is constitutionally
protected. In the event of conflict, the conflicting rights must be weighed against
one another. The various rights in the Bill of Rights are also not arranged in a
hierarchical order from more important to less important. The promotion and
protection of one category of rights does not exempt the state from promoting and
protecting another category of rights. Also, it may not lead to oppression of or
unfair discrimination against one category of persons, for instance women.
■ The position of a wife in a customary marriage. Discrimination against
married women in terms of section 11(3) of the Black Administration
Act has been terminated by the Recognition of Customary Marriages
Act. The ranking position of a wife in a polygynous marriage does have
Critical Law Studies cc (c)
