IND2601 Ultimate Scope 10/10/2015
IND2601 Ultimate Scope
Group rights:
1. Unspecialized legal system
2. Customary marriage
3. Constitution / s 30 & 31
4. Law of personality and status
5. Criminal law – concept - rape
6. Succession – substitution
7. Multiple choice
8. Relationship between civil and customary marriage
9. Proprietary consequences
The Bible Questions & Answers:
1. Give an exposition of the factors that promote observance of customary law (10)
The religious or sacral (holy) element of the law – ancestral spirit believes cannot be disobeyed
Public opinion, and particularly sensitivity about what other people may think and say about one’s behaviour. In
customary law, the interests of the community are very important.
The knowledge that , i f a person is harmed, that person will endeavour to get compensation or will take
measures to protect him/herself
everybody in the community has a broad general knowledge of the law. general participation in the legal
process, and the law is handed down, orally, from one generation to the next
Fear of punishment. especially to punishment of supernatural origin, when the conduct in question conflicts
with accepted legal principles. E.g. heatwaves, floods
The influence of indigenous leaders in the community. Regarded as the living representatives of the ancestors
responsible for the community’s observance of the law
2a. Discuss the nature of customary law with reference to the following:
a) Group orientation (5)
b) The concrete approach (5)
c) The religious element (5)
d) Governmental functions (5)
e) Polygyny (5)
Describe the differences between specialised and unspecialised legal systems
a) Group orientation:
In unspecialised legal systems, emphasis falls strongly on the group rather than on the individual.
The individual functions entirely within the context of the group. Among peoples with unspecialised
legal systems, the informal and the formal systems of education are directed towards encouraging
the individual to adapt to, and become subordinate to, the interests of the group. The individual’s
acceptance of his or her particular place and rank within the community is impressed upon him or
1
, IND2601 Ultimate Scope 10/10/2015
her from early childhood. Everyone knows exactly what his or her role is in the community, and
there is not much room for individual freedom.
b) Concrete approach:
Unspecialised legal systems follow a more concrete and visible approach than
that of specialised legal systems, which tend to be more abstract in nature applies, among other
things, to the law of marriage, the law of obligations and to the structure and organisation of
constitutional units. The abstract consent and abstract expression of intent as characteristic of
Western law is, to a large degree replaced by apparent observable, visible acts from which consent
becomes obvious in a very concrete way concluding a marriage in an unspecialised legal system, the
actual visible transfer of both the bride and the marriage goods takes place. Of the concrete nature
of unspecialised legal systems is the importance attached to concrete evidence: the fact that a
married woman spent a night in a hut with another man is considered evidence of adultery Also, if a
man closes the door of his wife’s hut in a certain way, he makes it known that he wishes to divorce
her
c) The Religious element:
customary law is based on the belief that the law originates with the ancestors. Disregard of the law
is punished by the ancestors, not so much because it is considered “sinful”, but rather because it is
regarded as disrespect, neglect and contempt of the ancestors. Reconciliation between the
community and the ancestors is usually accomplished by slaughtering an animal and by having a
communal meal. If important juristic acts are planned, the blessing of the ancestors is obtained by
means of special rites role of extraordinary evidence, for example in the pointing out or
identification of sorcerers, is well known in customary law.
d) Governmental Functions:
Specialised legal systems distinguish clearly between the judicial, executive and legislative powers of
the state. Unspecialised legal systems do not, as a rule, draw this distinction. The tribal chief is, for
instance, not only the law-maker and executive official, but also the judge-in-chief. The possibility of
defective administration of justice and misrule under unspecialised legal systems was
counterbalanced by the close relation between law and religion, the public nature of the
administration of justice and the people’s intimate knowledge of the legal system. Whereas in
specialised legal systems the judge or magistrate is expected to find the law and to adjudicate
(decide) accordingly, it is characteristic of unspecialised legal systems that the views of the people
present in court, and not previous decisions, lead to a judgment, because the people in court
interpret the public sense of justice.
e) Polygyny:
In unspecialised or less specialised legal systems, marriage is polygynous. In other words, one man
can be involved in a marital union with more than one woman at a time. There is no difference
between specialized & unspecialized. Women are not allowed to marry more than one
man/husband
2b. Discuss indigenous law as unspecified law with specific reference to indigenous private law
2c. In unspecialized legal system the emphasis is on the group. Give example as to law with reference to law of
succession and marriage law:
Marriage law:
Group orientation:
o Both family groups participate not only in matter of choice of marriage partners - also in preceding
negotiations, agreement, transfer of marriage goods & ceremonies
without participation of both family groups marriage cannot take place
2
, IND2601 Ultimate Scope 10/10/2015
Concrete approached:
o delivery of marital goods
Religious element:
o ancestors – progression of children NB as the surname will be there if the father dies.
o Man is mortal so that he progresses children so if he dies his family will be taken care of and perform rituals as
he goes to the ancestors
Polygyny:
o Husband can have many wives
o Implication is that there is no longer one house but many houses
o Man is head of all houses
o This is a group
Time:
o Precise moment marriage has taken place is not NB
o As long as it has taken place
Law of Succession:
• Emphasis on the rights of the group and not the individual. Thus the person that succeeds will have control
over the whole agnatic group.
• It excludes the individual notion of inheritance.
• Because when you succeed you succeed as a head and have control over the whole agnatic group
• Total disposition by mean of a will was unknown
• Person could not mention whom can succeed him as the rights belong to group not individual.
3. Indigenous law is an expression of community values. Evaluate the statement (5)
♠ Law of community is values of community.
♠ Values change in course of time as did law
♠ Conflict between legal and moral values was not known
♠ Interest of community was NB that in eyes of law individual had no special part to play
♠ Administration of justice did not concern legal justice as such, but the reconciliation of people
(“ human” justice)
4. Discuss the implications of s211 of Constitution for the recognition of customary law. (15)
All courts must apply and therefore also recognise customary law.
The recognition and application of customary law are subject to the Bill of Rights.
The recognition and application of customary law are subject to legislation that specifically deals
with this matter. This implies that only legislation aimed at amending customary law is relevant and
not legislation in
general.
The courts determine when customary law is applicable. Courts therefore have a discretion to
decide whether customary law is applicable in a particular case. This discretion should be exercised
in agreement with the general principles of choice of law.
General principles of choice of law, we are of the opinion that, where it is not clear whether customary
law is applicable, a party can, by appealing to the right of choice of culture (sections 30 and 31), request
3
IND2601 Ultimate Scope
Group rights:
1. Unspecialized legal system
2. Customary marriage
3. Constitution / s 30 & 31
4. Law of personality and status
5. Criminal law – concept - rape
6. Succession – substitution
7. Multiple choice
8. Relationship between civil and customary marriage
9. Proprietary consequences
The Bible Questions & Answers:
1. Give an exposition of the factors that promote observance of customary law (10)
The religious or sacral (holy) element of the law – ancestral spirit believes cannot be disobeyed
Public opinion, and particularly sensitivity about what other people may think and say about one’s behaviour. In
customary law, the interests of the community are very important.
The knowledge that , i f a person is harmed, that person will endeavour to get compensation or will take
measures to protect him/herself
everybody in the community has a broad general knowledge of the law. general participation in the legal
process, and the law is handed down, orally, from one generation to the next
Fear of punishment. especially to punishment of supernatural origin, when the conduct in question conflicts
with accepted legal principles. E.g. heatwaves, floods
The influence of indigenous leaders in the community. Regarded as the living representatives of the ancestors
responsible for the community’s observance of the law
2a. Discuss the nature of customary law with reference to the following:
a) Group orientation (5)
b) The concrete approach (5)
c) The religious element (5)
d) Governmental functions (5)
e) Polygyny (5)
Describe the differences between specialised and unspecialised legal systems
a) Group orientation:
In unspecialised legal systems, emphasis falls strongly on the group rather than on the individual.
The individual functions entirely within the context of the group. Among peoples with unspecialised
legal systems, the informal and the formal systems of education are directed towards encouraging
the individual to adapt to, and become subordinate to, the interests of the group. The individual’s
acceptance of his or her particular place and rank within the community is impressed upon him or
1
, IND2601 Ultimate Scope 10/10/2015
her from early childhood. Everyone knows exactly what his or her role is in the community, and
there is not much room for individual freedom.
b) Concrete approach:
Unspecialised legal systems follow a more concrete and visible approach than
that of specialised legal systems, which tend to be more abstract in nature applies, among other
things, to the law of marriage, the law of obligations and to the structure and organisation of
constitutional units. The abstract consent and abstract expression of intent as characteristic of
Western law is, to a large degree replaced by apparent observable, visible acts from which consent
becomes obvious in a very concrete way concluding a marriage in an unspecialised legal system, the
actual visible transfer of both the bride and the marriage goods takes place. Of the concrete nature
of unspecialised legal systems is the importance attached to concrete evidence: the fact that a
married woman spent a night in a hut with another man is considered evidence of adultery Also, if a
man closes the door of his wife’s hut in a certain way, he makes it known that he wishes to divorce
her
c) The Religious element:
customary law is based on the belief that the law originates with the ancestors. Disregard of the law
is punished by the ancestors, not so much because it is considered “sinful”, but rather because it is
regarded as disrespect, neglect and contempt of the ancestors. Reconciliation between the
community and the ancestors is usually accomplished by slaughtering an animal and by having a
communal meal. If important juristic acts are planned, the blessing of the ancestors is obtained by
means of special rites role of extraordinary evidence, for example in the pointing out or
identification of sorcerers, is well known in customary law.
d) Governmental Functions:
Specialised legal systems distinguish clearly between the judicial, executive and legislative powers of
the state. Unspecialised legal systems do not, as a rule, draw this distinction. The tribal chief is, for
instance, not only the law-maker and executive official, but also the judge-in-chief. The possibility of
defective administration of justice and misrule under unspecialised legal systems was
counterbalanced by the close relation between law and religion, the public nature of the
administration of justice and the people’s intimate knowledge of the legal system. Whereas in
specialised legal systems the judge or magistrate is expected to find the law and to adjudicate
(decide) accordingly, it is characteristic of unspecialised legal systems that the views of the people
present in court, and not previous decisions, lead to a judgment, because the people in court
interpret the public sense of justice.
e) Polygyny:
In unspecialised or less specialised legal systems, marriage is polygynous. In other words, one man
can be involved in a marital union with more than one woman at a time. There is no difference
between specialized & unspecialized. Women are not allowed to marry more than one
man/husband
2b. Discuss indigenous law as unspecified law with specific reference to indigenous private law
2c. In unspecialized legal system the emphasis is on the group. Give example as to law with reference to law of
succession and marriage law:
Marriage law:
Group orientation:
o Both family groups participate not only in matter of choice of marriage partners - also in preceding
negotiations, agreement, transfer of marriage goods & ceremonies
without participation of both family groups marriage cannot take place
2
, IND2601 Ultimate Scope 10/10/2015
Concrete approached:
o delivery of marital goods
Religious element:
o ancestors – progression of children NB as the surname will be there if the father dies.
o Man is mortal so that he progresses children so if he dies his family will be taken care of and perform rituals as
he goes to the ancestors
Polygyny:
o Husband can have many wives
o Implication is that there is no longer one house but many houses
o Man is head of all houses
o This is a group
Time:
o Precise moment marriage has taken place is not NB
o As long as it has taken place
Law of Succession:
• Emphasis on the rights of the group and not the individual. Thus the person that succeeds will have control
over the whole agnatic group.
• It excludes the individual notion of inheritance.
• Because when you succeed you succeed as a head and have control over the whole agnatic group
• Total disposition by mean of a will was unknown
• Person could not mention whom can succeed him as the rights belong to group not individual.
3. Indigenous law is an expression of community values. Evaluate the statement (5)
♠ Law of community is values of community.
♠ Values change in course of time as did law
♠ Conflict between legal and moral values was not known
♠ Interest of community was NB that in eyes of law individual had no special part to play
♠ Administration of justice did not concern legal justice as such, but the reconciliation of people
(“ human” justice)
4. Discuss the implications of s211 of Constitution for the recognition of customary law. (15)
All courts must apply and therefore also recognise customary law.
The recognition and application of customary law are subject to the Bill of Rights.
The recognition and application of customary law are subject to legislation that specifically deals
with this matter. This implies that only legislation aimed at amending customary law is relevant and
not legislation in
general.
The courts determine when customary law is applicable. Courts therefore have a discretion to
decide whether customary law is applicable in a particular case. This discretion should be exercised
in agreement with the general principles of choice of law.
General principles of choice of law, we are of the opinion that, where it is not clear whether customary
law is applicable, a party can, by appealing to the right of choice of culture (sections 30 and 31), request
3
