AFRICAN CUSTOMARY LAW
“Customary Law” / “Indigenous Law” =
Customs + usages traditionally observed among the indigenous African peoples of SA + which form part of the
culture of those peoples
Emphasis on duties rather than rights
The maintenance of order is supported by means of approving and disapproving legal sanctions
Sanction means:
Approval or confirmation of an act; and/or
Punishment for noncompliance with, i.e. statutes or behavioral prescriptions
Divisions of customary law:
Indigenous national law (tribal law)
Some kingdoms consist of several tribes + remnants (bits + pieces) of tribes, ruled by a king / paramount chief –
i.e. Zulu
Indigenous International law (Law of different tribes)
Tribes entered into agmts to help one another against communal enemies
Customary public Law
Governs relations btw:
Traditional authorities and subjects; and
Traditional authorities within the tribe
a. Indigenous constitutional + administrative law
Composition, powers + functions of the public organs of authority
b. Indigenous adjudicatory organs + law of procedure
Composition + jurisdiction of the various indigenous / customary courts
Procedures
Evidence that may be lead in court to reach a decision
c. Indigenous criminal law
Public action to punish a subject who transgresses a rule that is punishable by law
Customary Private law
Legal relations between individuals and groups in capacity as private persons
Law of property / persons / family / things / succession
Law of personality (i.e. honour; good name; privacy)
Law of immaterial property (i.e. copyright + patents) is unknown
Law of obligations:
o Contractual: arise btw a patient + a medicine specialist / traditional healer
o Quasi-contractual: arise btw a guardian + a person supplying his ward with the necessities of life w/o
his consent
o Delictual: arise btw an owner + another person who has willfully damaged his property
Customary law comprises not only of norms, but also fixed rules of procedure, and as such, may also be
subdivided into:
Substantive Law
Prescribes norms / requirements + attaches sanctions to these
Adjective Law (aka law of procedure + evidence)
Prescribes the manner in which norms are to be enforced + sanctions applied
, 2
Rights that fall within the vestee’s estate:
Violation of these entails patrimonial (determined in economic terms) loss + is the basis of an action for
damages
Right Object Examples
Real right Corporeal thing apart from the person Ownership
Obligatory right Performance Right to a fee for
(If vested in a group –duty to perform is also that of a group – i.e. professional services
bride’s family’s right to have marriage goods delivered to them
by bridegroom’s family)
Right of Productivity + freedom of group member Guardianship
authority
Group right of Freedom of members + entitles group concerned to productivity
guardianship of its members
Rights that do not fall within the vestee’s estate:
Violation of these rights result in an action for satisfaction
Occasionally, violation results in patrimonial loss – i.e. violation of right to a good name which results in
aggrieved losing her job – violator is a “thief” + aggrieved may claim loss of income
Right Object Examples
Right of Corporeal / Right to one’s body
personality incorporeal part of Right to one’s honor
vestee’s
personality
Where the vestee Southern Nguni ritual to remove defilement (adultery): beast is
is a group taken from wrongdoer’s residence by women belonging to seduced
girls group + is ritually slaughtered as an act of cleansing + to obtain
satisfaction
If girl is pregnant: guardian (as the rep of her group) is considered to
have suffered patrimonial loss + may recover damages (which means
that this action may lead to the infringement of various rights)
Various indigenous legal systems
Each tribe / kingdom has its own legal system that, in varying degrees, differs from the legal systems of the
other tribes / kingdoms – however, there’s substantial familiarity in the underlying principles + values of the
diff local legal systems
Division + features of the Indigenous African people of SA
Main groups + their characteristics:
Nguni:
Languages Originated from:
Zulu KZN
Xhosa Eastern Cape (esp. Ciskei + Transkei)
Swazi Swaziland + Mpumalanga
Ndebele Mpumalanga + North east Pretoria
NB Characteristics
Composite household divided into two or three sections –
Each section has a senior wife with affiliated wives subordinate to her
Each wife in a section formed a ‘house’ with its own rank, property and successor
Mostly applicable in rural areas – In urban areas the wives live in separate houses / government areas
, 3
Sotho:
Languages Originated from:
Tswana Botswana, North West + Northern Cape
Northern Sotho Northern Province
Southern Sotho Lesotho + Free State
NB Characteristics:
Household is not divided into sections
Each married woman has a certain rank, and her house has its own identity, property + successor
Shangana-Tsonga:
(aka “Tsonga” or “Shangana”)
Originally settled in Northern Province and Mpumalanga in areas adjacent to Mozambique
Venda:
Originally settled in the north-eastern part of the Northern Province
Language is called “venda”
Have historical links with the Shona-speaking people of Zimbabwe
CHARACTERISTICS OF AFRICAN CUSTOMARY LAW
Unwritten:
Their law was not recorded in written legal sources (i.e. statutes / law reports / textbooks)
Court procedures were conducted orally
Law was transmitted orally from one generation to the next
Important legal principles were expressed by means of legal maxims –
Group orientation + humaneness: “a person is a person in relation to other people”,
Marital relationship btw husband + wife: “you hold him or her with both hands”
Ruler reigns through his councils + acts in acc with the will of his people: “a ruler is a ruler through his
people + the subjects are subjects through their ruler”
Subjects who left the area will be welcomed back by the tribe: “there is no return to the womb; to the
ruins is the return
Customary:
Most indigenous legal systems resulted from age-old traditions and customs that came to be classified as “law”
Direct orders + instructions from leaders resulted in laws which were circulated by chiefs + which had to be
followed
Formal administration of justice limited the court’s function to the application, and not the creation, of law
Indigenous courts had no system of precedent
An expression of community values:
Public participation in the adjudication process resulted in law giving expression to the values / gen moral
behavioral code of the community = as values changed, so did the law + conflict btw legal + moral values was
unknown
Disputes affected the wider community – decisions had to take into account future relations between parties
within the community = as a result, admin of justice did not concern legal justice as such (i.e. who was right and
who was wrong), but the reconciliation of people (“human” justice)
Community’s interest so NB that an individual had no special part to play in the law – rather – his role remained
within the group (family on the one hand + community on the other)
The role of magico-religious conceptions:
Belief in ancestral spirits
After death, a person continues to live in a spiritual world – almost the same as when on earth
The law is derived from + protected by ancestral spirits
, 4
Deviation from the rules may lead to punishment by ancestral spirits (misfortune such as illness, drought, hail
etc are seen to be forms of supernatural punishment)
Effect of this belief on the law is 2-fold:
The law has a supernatural origin and is therefore seldom questioned; and
The law appears static and unchangeable – change would be against the wishes of ancestral spirits
Belief in sorcery
Supernatural powers in the universe may be used by a person for his own ends either to the advantage /
disadvantage of people / their own interests
Cases of sorcey involve a person (“sorcerer”) who uses supernatural powers to do harm
It is in the interest of the community that the sorcerer is identified + removed from the community
The observance of rules:
People voluntarily observe legal rules + rules for living because of other factors that are more NB than law
enforcing organs (i.e. police / courts) – such factors include:
The religious or sacral (holy) elements of the law
Public opinion, esp what other people may think + say about one’s behavior
If a person is harmed he will endeavour to get compensation / take measures to protect himself (i.e.
medicines / sorcery)
General participation in the legal process ensures that the law is handed down from generation to
generation – everyone has the opp to find out how the law operates in their community
Fear of punishment (especially that of supernatural origin)
Influence of indigenous leaders who are regarded as the living representatives of the ancestors who are
responsible for observance of the law
Recognized leaders played NB role in daily life of communities w/ having to refer to their judicial authority
i.e. allocation of land, admission of strangers
Leaders are the bearers of traditions + must ensure such traditions are observed + have the authority to
pronounce on what is allowed + what is not
Local heads of families and kinship groups were consulted before important decisions were taken which
ensured that the proposed action would not be opposed and interests of others would not be unfairly /
illegally harmed + that they knew about the matter in the event of a legal dispute arising
NATURE OF CUSTOMARY LAW
The indigenous legal system is “unspecialized” if compared with Western legal systems (note: no legal system
is totally unspecialized)
The larger the population, the larger the possibility of specialization
Specialised legal systems Unspecialised legal systems
Similarities:
Relations governed by law (organs of authority + subjects on the one hand; and groups + individuals on the
other hand)
Law is transferred from 1 generation to another = starts with education re family + develops in the wider
context of the community
Transgression of the law / legal rules have specific consequences for transgressors
“Customary Law” / “Indigenous Law” =
Customs + usages traditionally observed among the indigenous African peoples of SA + which form part of the
culture of those peoples
Emphasis on duties rather than rights
The maintenance of order is supported by means of approving and disapproving legal sanctions
Sanction means:
Approval or confirmation of an act; and/or
Punishment for noncompliance with, i.e. statutes or behavioral prescriptions
Divisions of customary law:
Indigenous national law (tribal law)
Some kingdoms consist of several tribes + remnants (bits + pieces) of tribes, ruled by a king / paramount chief –
i.e. Zulu
Indigenous International law (Law of different tribes)
Tribes entered into agmts to help one another against communal enemies
Customary public Law
Governs relations btw:
Traditional authorities and subjects; and
Traditional authorities within the tribe
a. Indigenous constitutional + administrative law
Composition, powers + functions of the public organs of authority
b. Indigenous adjudicatory organs + law of procedure
Composition + jurisdiction of the various indigenous / customary courts
Procedures
Evidence that may be lead in court to reach a decision
c. Indigenous criminal law
Public action to punish a subject who transgresses a rule that is punishable by law
Customary Private law
Legal relations between individuals and groups in capacity as private persons
Law of property / persons / family / things / succession
Law of personality (i.e. honour; good name; privacy)
Law of immaterial property (i.e. copyright + patents) is unknown
Law of obligations:
o Contractual: arise btw a patient + a medicine specialist / traditional healer
o Quasi-contractual: arise btw a guardian + a person supplying his ward with the necessities of life w/o
his consent
o Delictual: arise btw an owner + another person who has willfully damaged his property
Customary law comprises not only of norms, but also fixed rules of procedure, and as such, may also be
subdivided into:
Substantive Law
Prescribes norms / requirements + attaches sanctions to these
Adjective Law (aka law of procedure + evidence)
Prescribes the manner in which norms are to be enforced + sanctions applied
, 2
Rights that fall within the vestee’s estate:
Violation of these entails patrimonial (determined in economic terms) loss + is the basis of an action for
damages
Right Object Examples
Real right Corporeal thing apart from the person Ownership
Obligatory right Performance Right to a fee for
(If vested in a group –duty to perform is also that of a group – i.e. professional services
bride’s family’s right to have marriage goods delivered to them
by bridegroom’s family)
Right of Productivity + freedom of group member Guardianship
authority
Group right of Freedom of members + entitles group concerned to productivity
guardianship of its members
Rights that do not fall within the vestee’s estate:
Violation of these rights result in an action for satisfaction
Occasionally, violation results in patrimonial loss – i.e. violation of right to a good name which results in
aggrieved losing her job – violator is a “thief” + aggrieved may claim loss of income
Right Object Examples
Right of Corporeal / Right to one’s body
personality incorporeal part of Right to one’s honor
vestee’s
personality
Where the vestee Southern Nguni ritual to remove defilement (adultery): beast is
is a group taken from wrongdoer’s residence by women belonging to seduced
girls group + is ritually slaughtered as an act of cleansing + to obtain
satisfaction
If girl is pregnant: guardian (as the rep of her group) is considered to
have suffered patrimonial loss + may recover damages (which means
that this action may lead to the infringement of various rights)
Various indigenous legal systems
Each tribe / kingdom has its own legal system that, in varying degrees, differs from the legal systems of the
other tribes / kingdoms – however, there’s substantial familiarity in the underlying principles + values of the
diff local legal systems
Division + features of the Indigenous African people of SA
Main groups + their characteristics:
Nguni:
Languages Originated from:
Zulu KZN
Xhosa Eastern Cape (esp. Ciskei + Transkei)
Swazi Swaziland + Mpumalanga
Ndebele Mpumalanga + North east Pretoria
NB Characteristics
Composite household divided into two or three sections –
Each section has a senior wife with affiliated wives subordinate to her
Each wife in a section formed a ‘house’ with its own rank, property and successor
Mostly applicable in rural areas – In urban areas the wives live in separate houses / government areas
, 3
Sotho:
Languages Originated from:
Tswana Botswana, North West + Northern Cape
Northern Sotho Northern Province
Southern Sotho Lesotho + Free State
NB Characteristics:
Household is not divided into sections
Each married woman has a certain rank, and her house has its own identity, property + successor
Shangana-Tsonga:
(aka “Tsonga” or “Shangana”)
Originally settled in Northern Province and Mpumalanga in areas adjacent to Mozambique
Venda:
Originally settled in the north-eastern part of the Northern Province
Language is called “venda”
Have historical links with the Shona-speaking people of Zimbabwe
CHARACTERISTICS OF AFRICAN CUSTOMARY LAW
Unwritten:
Their law was not recorded in written legal sources (i.e. statutes / law reports / textbooks)
Court procedures were conducted orally
Law was transmitted orally from one generation to the next
Important legal principles were expressed by means of legal maxims –
Group orientation + humaneness: “a person is a person in relation to other people”,
Marital relationship btw husband + wife: “you hold him or her with both hands”
Ruler reigns through his councils + acts in acc with the will of his people: “a ruler is a ruler through his
people + the subjects are subjects through their ruler”
Subjects who left the area will be welcomed back by the tribe: “there is no return to the womb; to the
ruins is the return
Customary:
Most indigenous legal systems resulted from age-old traditions and customs that came to be classified as “law”
Direct orders + instructions from leaders resulted in laws which were circulated by chiefs + which had to be
followed
Formal administration of justice limited the court’s function to the application, and not the creation, of law
Indigenous courts had no system of precedent
An expression of community values:
Public participation in the adjudication process resulted in law giving expression to the values / gen moral
behavioral code of the community = as values changed, so did the law + conflict btw legal + moral values was
unknown
Disputes affected the wider community – decisions had to take into account future relations between parties
within the community = as a result, admin of justice did not concern legal justice as such (i.e. who was right and
who was wrong), but the reconciliation of people (“human” justice)
Community’s interest so NB that an individual had no special part to play in the law – rather – his role remained
within the group (family on the one hand + community on the other)
The role of magico-religious conceptions:
Belief in ancestral spirits
After death, a person continues to live in a spiritual world – almost the same as when on earth
The law is derived from + protected by ancestral spirits
, 4
Deviation from the rules may lead to punishment by ancestral spirits (misfortune such as illness, drought, hail
etc are seen to be forms of supernatural punishment)
Effect of this belief on the law is 2-fold:
The law has a supernatural origin and is therefore seldom questioned; and
The law appears static and unchangeable – change would be against the wishes of ancestral spirits
Belief in sorcery
Supernatural powers in the universe may be used by a person for his own ends either to the advantage /
disadvantage of people / their own interests
Cases of sorcey involve a person (“sorcerer”) who uses supernatural powers to do harm
It is in the interest of the community that the sorcerer is identified + removed from the community
The observance of rules:
People voluntarily observe legal rules + rules for living because of other factors that are more NB than law
enforcing organs (i.e. police / courts) – such factors include:
The religious or sacral (holy) elements of the law
Public opinion, esp what other people may think + say about one’s behavior
If a person is harmed he will endeavour to get compensation / take measures to protect himself (i.e.
medicines / sorcery)
General participation in the legal process ensures that the law is handed down from generation to
generation – everyone has the opp to find out how the law operates in their community
Fear of punishment (especially that of supernatural origin)
Influence of indigenous leaders who are regarded as the living representatives of the ancestors who are
responsible for observance of the law
Recognized leaders played NB role in daily life of communities w/ having to refer to their judicial authority
i.e. allocation of land, admission of strangers
Leaders are the bearers of traditions + must ensure such traditions are observed + have the authority to
pronounce on what is allowed + what is not
Local heads of families and kinship groups were consulted before important decisions were taken which
ensured that the proposed action would not be opposed and interests of others would not be unfairly /
illegally harmed + that they knew about the matter in the event of a legal dispute arising
NATURE OF CUSTOMARY LAW
The indigenous legal system is “unspecialized” if compared with Western legal systems (note: no legal system
is totally unspecialized)
The larger the population, the larger the possibility of specialization
Specialised legal systems Unspecialised legal systems
Similarities:
Relations governed by law (organs of authority + subjects on the one hand; and groups + individuals on the
other hand)
Law is transferred from 1 generation to another = starts with education re family + develops in the wider
context of the community
Transgression of the law / legal rules have specific consequences for transgressors
