CHAPTER 5: CUSTOMARY LAW DEFAMATION

- Identify, analyse and apply the different substantive rules and values related to the

customary law of dignity harm and the remedies involved for different types of dignity
harm.
- As to the common law of damage to dignity: Identify, analyse and apply the
requirements for liability for dignity infringements as well as accompanying defences and
remedies (this week's focus is only on introducing the requirements for liability).

“This court has, in a number of decisions, explained what this resurrection of customary law
to its rightful place as one of the primary sources of law under the Constitution means. This
includes that:
a) customary law must be understood on its own terms, and not through the lens of the
common law;
b) so understood, customary law is nevertheless subject to the Constitution and has to
be interpreted in the light of its values;
c) customary law is a system of law that is practised in the community, has its own
values and norms, is practices from generation to generation and evolves and
develops to meet the changing needs of the community;
d) customary 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;
e) customary law will continue to evolve within the context of its values and norms
consistently, with the Constitution;
f) the inherent flexibility of customary law provides room for consensus-seeking and the
prevention and resolution, in family and clan meetings, if disputes and
disagreements; and
g) these aspects provides a setting which contributes to the unity of family structures
and the fostering of co-operation, a sense of responsibility and belonging in its
members, as well as the nurturing of healthy communitarian traditions like ubunt.”1

SUMMARY OF ABOVE

1
Mayelane v Ngwenyama 2013 4 SA 415 (CC) at para 24.
In several court decisions, it has been clarified that customary law holds a significant place as one of the primary sources of
law under the Constitution. The following points summarize the court's explanation:

a) Customary law must be understood on its own terms, separate from the common law.
- Customary law must be treated with the respect it deserves as a primary source of law
(within the doctrine of adjudicative subsidiarity).
- In the quote above, the Constitutional Court in Mayelane summarised the constitutional
implications of recognising customary law as a primary source of law having equal status
to the common law.
- These implications should guide us and frame our thought process on our journey in this
book when we are examining customary law (and other sources) for purposes of the law
of injuries.
- Of further importance, this quote unambiguously signals the relationship between
customary law and ubuntu. In this regard, this relationship can be explained as follows:
o “While it is obvious that ubuntu and customary law are not synonymous, it ought to
be equally obvious that, as a fundamental value that informs the regulation of
African interpersonal relations and dispute resolution, ubuntu is inherent to
customary law.”
- Before we start with our exploration into African customary law and ubuntu, we should
make some preliminary points about the “African legal tradition of injuries” (as we
cannot unequivocally assume that the notion of “delict” exists in African law).
- A few important general themes feature in the African legal tradition of injuries (or
customary law related to injuries).

African legal tradition of injuries

- First, the African legal tradition of injuries deals with different types of injuries differently.
o In other words, each type of injury will have its own set of rules for determining
liability.
o Each type of injury also has its own set of rules for how a wrongdoer repairs the
harm that has been caused.
o We might interpret the African concept of injuries to be casuistic in nature because
each case (in other words, each type of injury) is treated differently.
- When we apply this to dignity for purposes of this chapter, we will explore a specific form
of injury recognised at customary law which scholars have labelled as “defamation”,
which is quite different from the common law concept of defamation.
- With this example of a customary law dignity injury, we will learn that African customary
law resists categorical classifications as to be found in more traditional Western
legal systems.

- Secondly, the African legal tradition of injuries is focused on restitution in kind (the
return goods or goods of the same kind to that which have been damaged) and
restoring harmony (the restoration of broken relationships) within a broader community
as opposed to mere monetary compensation.
- In this chapter, we will see how this notion of restoration relates ubuntu as a legal value
closely to the notion of dignity.
- We will see that ubuntu, as a dignitarian legal value, contains a lot of ideas and
possibilities for consideration to the law of injuries as a whole.
- Indeed, as our study of this book unfolds, we will see that ubuntu as a dignitarian value
could have an impact on the common law with its mostly European roots.
- Some would argue that this is one route towards the Africanisation of the common law,
while other are more sceptical of this approach.

- Therefore, in this chapter, we will consider African customary law as applied to dignity
together with ubuntu as a dignitarian legal value.
- We will consider the African customary law of delict related to “defamation” with its
unique features in terms of establishing liability, providing reparations, and legal
classification.
- Then we will explore ubuntu’s status as a constitutional value and its attendant relevance
for the possibilities that this may hold in the context of dignity injuries.
- We will also consider a more sceptical, decolonial take on the invocation of the
constitutional version of ubuntu.

THE CUSTOMARY LAW OF “DEFAMATION”

- Sources on official customary law recognise the existence of a customary law dignity
injury known as “defamation”.
- However, the customary law’s notion of defamation has its own unique features which
distinguish it from other customary law injuries and other sources of law pertaining to
dignity injuries.
o We will consider these features briefly below.

1. First, the customary law of “defamation” seems to protect both the dignitarian interests of
self-esteem and reputation.
- In customary law, there appears not to be a clear-cut distinction between dignity as self-
esteem (the internal dimension of dignity) and as reputation (the external dimension of
dignity) when dealing with customary law delict of “defamation”.
- Below, some ideas on how the customary law of “defamation” implicates dignity more
concretely are presented.

2. Secondly, the customary law of “defamation” seems to have a limited scope of

application in terms of official customary law.
- Specifically, the SCA in Mogale v Seima 2008 (5) SA 637 (SCA) noted that at para 9:
o “Our own indigenous law does not in general allow damages claims for defamation
unless allegations of witchcraft are involved.”

- Therefore, the customary law of “defamation” largely applies to circumstances where the
wrongdoer accuses the victim of being a “witch” i.e., allegations of witchcraft.
- However, there may be other instances to which the rules of customary-law defamation
may apply, but the majority of official customary law sources point to the accusation of
witchcraft as the dominant form of this customary law delict.
- Therefore, in this section, we will focus on this particular permutation of the customary
law of “defamation”.