African Customary Law in South Africa - TEXT BOOK

1
African
Customary Law
IN SOUTH AFRICA
Post-Apartheid and
Living Law Perspectives
PRIVATE LAW
THANDABANTU NHLAPO (EDITOR)

CHUMA HIMONGA (EDITOR)
IP MAITHUFI | SINDISO MNISI WEEKS
LESALA MOFOKENG | DIAL NDIMA
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African Customary Law in South Africa: Post-Apartheid and Living Law

Perspectives
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Contents in brief
PART ITHEORETICAL AND STRUCTURAL OVERVIEW OF AFRICAN

CUSTOMARY LAW
CHAPTER 1 HISTORICAL OVERVIEW OF CUSTOMARY LAW
CHAPTER 2 THE NATURE AND CONCEPT OF CUSTOMARY LAW
CHAPTER 3 LEGAL PLURALISM
CHAPTER 4 ASCERTAINMENT AND PROOF OF CUSTOMARY LAW
CHAPTER 5 INTERNAL CONFLICT OF LAWS
PART II PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY

LAW
CHAPTER 6 MARRIAGE
CHAPTER 7 CONSEQUENCES OF MARRIAGE
CHAPTER 8 DISSOLUTION OF MARRIAGE
CHAPTER 9 THE CUSTOMARY LAW OF SUCCESSION
CHAPTER 10 CONTRACTUAL OBLIGATIONS IN CUSTOMARY LAW
CHAPTER 11 CUSTOMARY LAW OF DELICT
CHAPTER 12 CRIMINAL LAW
PART III POLITICAL AND CIVIC ASPECTS OF AFRICAN CUSTOMARY LAW
CHAPTER 13 TRADITIONAL LEADERSHIP INSTITUTIONS
CHAPTER 14 TRADITIONAL COURTS
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Contents
CONTENTS IN BRIEF
CONTENTS
PREFACE
LIST OF AUTHORS
SPECIALIST CONTRIBUTORS
ABOUT THE BOOK
ACKNOWLEDGEMENTS
PART ITHEORETICAL AND STRUCTURAL OVERVIEW OF AFRICAN

CUSTOMARY LAW
CHAPTER 1HISTORICAL OVERVIEW OF CUSTOMARY LAW

1.1 Introduction
1.2 Colonialism (1652–1909)
1.2.1 Introduction
1.2.2 Socio-economic and political context of colonialism
1.2.3 Recognition of customary law
1.3 Union (1910–1947)
1.3.1 Introduction
1.3.2 Political background and wider legal context of the Union
1.3.3 Customary law, chiefs’ courts and state courts
1.4 Apartheid (1948–1990)
1.4.1 Political context of apartheid
1.4.2 Customary law and tribal authorities
1.5 Transitional period (1990–1996)
CHAPTER 2THE NATURE AND CONCEPT OF CUSTOMARY LAW

2.1 Introduction
2.1.1 Customary law as opposed to customary laws
2.1.2 Customary law and colonial history
2.2 Definition and concept of customary law
2.2.1 Introduction
2.2.2 Living customary law
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2.2.2.1 Definition of living customary law
2.2.2.2 Aspects of living customary law related to its definition
2.2.3 Official customary law
2.3 Mixed customary law
2.4 Reconciling customary law with fundamental human rights
CHAPTER 3LEGAL PLURALISM

3.1 Introduction
3.2 Dominant jurisprudential theories of law in South Africa
3.2.1 Positivism and the rule of recognition
3.2.2 Positivism and the rule of law
3.2.3 Legal centralism
3.3 Socio-legal theories of law
3.3.1 Living law and law as a competitive social field
3.3.2 Legal pluralism
3.3.2.1 Weak legal pluralism
3.3.2.2 Deep legal pluralism
CHAPTER 4 ASCERTAINMENT AND PROOF OF CUSTOMARY LAW

4.1 Introduction
4.2 The statutory framework for the ascertainment and proof of customary law
in the courts
4.2.1 The position before the Law of Evidence Amendment Act 45 of 1988
4.2.2 The position under the LEAA
4.2.3 The position under the Constitution
4.2.3.1 The recognition role
4.2.3.2 The application role
4.2.3.3 The alignment role
4.2.3.4 The ascertainment role
4.3 The problems associated with official customary law
4.4 The ascertainment of living customary law
4.5 New developments in the ascertainment process
CHAPTER 5INTERNAL CONFLICT OF LAWS

5.1 Introduction
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5.2 Conflict of laws under customary law
5.2.1 Resolution of conflicts between the laws of different systems of customary
law
5.2.1.1 Avoidance of conflicts
5.2.1.2 Resolution of conflicts under customary law
5.2.2 Legislative intervention
5.3 Conflict rules regulating conflicts between customary law and the common
law
5.3.1 Conflict of laws rules during the colonial era
5.3.2 Conflict of laws rules during the Union era
5.3.3 Conflict of laws rules during the apartheid era
5.4 The regulation of conflict of laws under section 211(3) of the Constitution
5.4.1 Section 211(3) of the Constitution as a conflict of laws rule
5.4.2 Conflict of laws rules under the Constitution
5.4.2.1 Agreement and intention
5.4.2.2 Nature of the transaction
5.4.2.3 Subject matter and environment of the transaction
5.4.2.4 The lifestyle of the parties
5.4.2.5 Exemption from customary law
5.4.2.6 Marriage by civil or Christian rites
5.4.2.7 Testate succession
5.4.2.8 Intestate succession
PART II PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY

LAW
CHAPTER 6MARRIAGE
6.1 Introduction
6.2 Recognition of customary marriages
6.3 The Recognition of Customary Marriages Act 120 of 1998
6.4 Legal requirements for a valid customary marriage concluded before 15
November 2000
6.5 Legal requirements for a valid customary marriage concluded after 15
November 2000
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6.6 Registration of a customary marriage
CHAPTER 7CONSEQUENCES OF MARRIAGE

7.1 Introduction
7.2 Sources in general
7.3 The relevant law
7.4 Personal consequences of marriage
7.4.1 Majority status and capacity of spouses
7.4.2 Majority status of a married minor
7.4.3 Polygamous marriages
7.4.3.1 Introduction
7.4.3.2 The status of wives inter se in polygamous marriages entered
concluded before 15 November 2000
7.4.3.3 The status of wives inter se in polygamous marriages concluded
after 15 November 2000
7.5 Consequences of marriage in respect of children of the marriage
7.5.1 Parental rights prior to the constitutional era
7.5.2 The effect of the Bill of Rights and the principle of the best interests of the
child on the affiliation of children
7.5.3 The effect of the Children’s Act 38 of 2005 on the consequences of
customary marriage regarding children
7.6 Proprietary consequences of marriage
7.6.1 Introduction
7.6.2 Uncodified customary law
7.6.3 The Natal Codes of Zulu Law
7.6.4 The Recognition of Customary Marriages Act 120 of 1998 and the
Matrimonial Property Act 88 of 1984
7.6.4.1 Monogamous customary marriages in terms of the RCMA and the
MPA
7.6.4.2 Polygamous marriages in terms of the RCMA
7.6.5 Alteration of the matrimonial property regime
7.6.5.1 Alteration of pre-RCMA polygamous marriage property regimes
7.6.5.2 Alteration of post-RCMA monogamous marriage property regimes
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CHAPTER 8DISSOLUTION OF MARRIAGE
8.1 Introduction
8.2 Dissolution by divorce
8.2.1 Adultery
8.2.2 Witchcraft
8.2.3 Infertility
8.2.4 Desertion
8.2.5 Other circumstances as grounds for dissolution of a marriage
8.3 Dissolution by death
8.4 Consequences of divorce
CHAPTER 9 THE CUSTOMARY LAW OF SUCCESSION

9.1 Introduction
9.2 Succession and inheritance in customary law
9.3 Legislative intervention
9.3.1 The Black Administration Act 38 of 1927
9.3.2 Regulations for the Administration and Distribution of the Estates of
Deceased Blacks
9.3.3 Succession to land
9.4 Judicial reform
9.5 Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009
9.5.1 Definition of ‘descendant’ and ‘spouse’
9.5.2 Modification of the customary law of succession
9.5.3 Property allotted or accruing to a woman in a customary marriage
9.5.4 Freedom of testation
9.5.5 Property rights in relation to certain customary marriages
9.5.6 Disposal of property held by a traditional leader
9.5.7 Dispute or uncertainty in consequence of the nature of customary law
CHAPTER 10 CONTRACTUAL OBLIGATIONS IN CUSTOMARY LAW

10.1 Introduction
10.2 Capacity to contract
10.3 Customary law contracts
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10.3.1 Lobolo
10.3.2 Ukwethula
10.3.3 Ukufakwa
10.3.4 Ukwenzelela
10.3.5 Isondlo
10.3.6 Mafisa, sisa or nqoma
CHAPTER 11 CUSTOMARY LAW OF DELICT

11.1 Introduction
11.2 Delictual liability
11.3 Specific customary law delicts and quantum of damages
11.3.1 Defamation of character and denial of chastity
11.3.2 The delict of adultery
11.3.2.1 Adultery within a customary marriage
11.3.2.2 Adultery with a widow
11.3.3 The delict of seduction
11.3.4 Ukuthwala as a delict
11.4 Rules of procedure
11.5 Prescription
CHAPTER 12 CRIMINAL LAW

12.1 Introduction
12.2 The theory of customary criminal law
12.2.1 The distinction between customary criminal law and the customary law of
delict
12.2.2 Punishment and co-liability
12.3 Specific customary law offences
12.3.1 Witchcraft
12.3.2 Contempt or defiance of the head of a group
12.3.3 Other crimes under the Natal Code of Zulu Law
12.4 Examples where the ordinary courts have applied customary criminal law
PART III POLITICAL AND CIVIC ASPECTS OF AFRICAN CUSTOMARY LAW
CHAPTER 13 TRADITIONAL LEADERSHIP INSTITUTIONS
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13.1 Introduction
13.2 History of traditional leadership institutions
13.2.1 Pre-colonial political relations
13.2.2 Traditional leadership during colonialism, Union and apartheid
13.3 Recognition and jurisdiction of traditional leaders, communities and
councils under the Traditional Leadership and Governance Framework Act
41 of 2003
13.3.1 Key definitions
13.3.2 Traditional community
13.3.3 Traditional council
13.3.4 Appointment and removal of traditional leaders
13.4 Powers and functions of a traditional council and leader
13.5 Funding
CHAPTER 14 TRADITIONAL COURTS

14.1 Introduction
14.2 Arrangement and constitution of traditional courts
14.3 Personal, territorial and substantive jurisdiction
14.4 Powers and process of traditional courts
14.5 Divergence between the regulations and customary practices
BIBLIOGRAPHY
TABLE OF CASES
TABLE OF LEGISLATION
GLOSSARY
INDEX
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Preface
This is an introductory textbook for undergraduate students who are studying

customary law in their early years of study in the LLB programme. It aims to provide
a lively, topical, and exciting text in a way which is clear, organised and accessible.
The book presents an introductory, comprehensive overview of African customary
law and its underlying philosophy. It seeks to present the material within a deeper,
more enquiring and informed framework, and to integrate the principles with
academic skills.
Although developed for undergraduate studies, the book provides an approach to
understanding the overarching system of customary law that will be of use to legal
practitioners and judges as well. In this respect, it attempts to show how customary
law’s epistemological approach is different from other areas of South African law,
and how it can be applied to solve problems within the community.
The book offers an innovative, developmental approach on perspectives of living
customary law. While providing a general framework for understanding the system of
customary law, the book endeavours to identify and develop the principles of living
customary law. As a starting point, the book should reflect existing law (which may
include official customary law), but should also illuminate and develop the dynamic
living customary law (possibly juxtaposing this with the official customary law).
The book is pedagogically developed – that is, it includes various learning features
which enhance its educational value. The pedagogy deals with difficult and complex
questions in a precise and clear manner, and ensures that students are intellectually
stimulated. Students are required to engage actively with the subject and to apply
academic skills such as critical thinking and analysis. The general approach of the
book is highlighted in the text, and the discussion features reflect both the
developmental aspects and the contentious issues apparent within the law.
The starting point of each chapter is the existing law (which, in some cases,
includes official customary law), and this also underlies the general text or ‘principles’
section. However, the book extends this explanation of the framework of existing law
and the overarching system by highlighting living customary law. Essentially, the
book endeavours to illuminate the relevance and importance of customary law by
developing its inherent jurisprudence. In some chapters, the authors have sought to
develop the field of customary law and demonstrate the application of living
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customary law and its values to practical situations by incorporating recent empirical
research in the field on which they are writing. The book further seeks to develop the
underlying principles by highlighting topical and relevant constitutional issues and
other problematic issues arising in legislation or the common law in the discussion
features of the book referred to as ‘Pause for reflection’ and ‘Counterpoint’. These
features also aim to develop academic skills (such as critical thinking, reflection,
understanding of legal thinking and the ability to construct analytical propositions). In
these features, issues, myths and assumptions are questioned and problematised so
as to stimulate the interest of the student, as well as to provide a clearer
understanding of contentious issues and the law as applied.
Specifically, the ‘Counterpoint’ feature supports the ability to think critically and
flexibly, and assists students to conceptualise legal issues from various
perspectives, develop skills in formulating legal argument, and build an awareness of
various opinions about a particular principle. It does this by highlighting specific
criticisms of the law just described or pointing to possibilities for the development of
the law, or identifying the areas of controversy, opposing viewpoints on a principle,
problems with current law, and possible alternatives. For example, the discussion in
this feature might critically consider the question whether the law pertaining to the
recognition of customary marriages is adequate or requires further development, or
whether the interests of women in a given area of customary law are adequately
protected.
The ‘Pause for reflection’ feature aims to develop students’ broader and firmer
understanding of the subject matter or of the context or jurisprudence underlying the
principle, as well as the ability to reflect and engage with the subject. It requires
students to reflect deeply on issues, thereby stimulating discussion, supporting
independent thinking, and developing the ability to engage meaningfully with relevant
issues. Thus, the discussion in this feature assists students to understand and think
through various aspects of the issue by providing further guidance on possible
approaches to it.
Presenting the discussions on various issues in these ways allows students to
pause, reflect and consider the arguments and developmental aspects of customary
law without disrupting their understanding and grasp of the basic legal framework.
The final major pedagogical feature of the book is ‘This chapter in essence’ that
provides a succinct list of essential points which draw together the key aspects of the
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chapter. The aim of this feature is not to provide a cheat-sheet for study, but rather to
guide students as to which areas of the chapter content should form the focus of
their attention and study.
The structure of the book sets out, first, the theoretical legal framework in which
the historical overview of customary law, the nature and conceptualisation of
customary law, and the concept of legal pluralism are discussed. Part I also explores
the issues of ascertainment and proof of customary law, and internal conflict of
laws. Part II discusses the key issues in customary law: standard topics in customary
law covering marriage, consequences of marriage, dissolution of marriage and
succession, as well as the topics of contract, delict and crime. Part III covers
traditional leadership and traditional courts.
With regard to the sources of customary law, we are guided in this book by the
clear language of the Constitutional Court in several decisions which leaves no doubt
that the customary law recognised by the Constitution is living customary law and not
official customary law. However, this is not without its difficulties, and the book does
attempt to bring these to the attention of students. Among these difficulties are
finding a way to understand living customary law in the context of the other
constitutional injunction to the courts to develop customary law in accordance with
the Bill of Rights. For instance the High Court decision of Mabena v Letsoalois
applauded as a good example of what a court needs to do to develop customary law.
The reason that this was a happy outcome is that the case affirmed a move from a
rigid rule of customary law to a more progressive one which recognises gender
equality and equality of decision making within the family. The question arises,
however, as to what the relationship is between the constitutional need to develop
customary law, on the one hand, and ascertaining the rules of living customary law
as practised by the communities on the ground. Do we accept a rule of customary
law and apply it because we have evidence that it accurately represents the day-to-
day practice of communities (and, therefore living law) or would we in pursuit of the
injunction to develop customary law affirm a practice even if there is no evidence as
yet that it is the living law of the people in this sense?
The second challenge is the question whether we are envisioning a future
customary law in South Africa as being in the formative stages in the sense that new
approaches will have to be developed for the gathering of materials on the rules of
living customary law to assist the courts in arriving at decisions. In other words, will
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every contested rule have to be established by empirical research, or will testimony
of witnesses as to the current practice suffice? The upshot of these questions is what
options exist for the attorney or advocate faced with litigation on a customary law
matter? This book suggest a guideline which, as a practical measure, acknowledges
the continued use of official customary law in some cases while pointing to the need
for a preference for living customary law where it can be ascertained. It will be in this
respect that researchers, NGOs and other bodies can make a contribution to the
development of the law by joining themselves in customary law litigation as friends of
the court.
Ultimately, the guiding premise of this book is that the future of customary law in
South Africa depends crucially on basing law reform or judicial development on
customary law emerging from communities as a starting point rather than defaulting
too readily to Western law. It is for this constitutional reason that the book limits itself
strictly to South African sources of customary law.
With regard to the actual sources used in the text, it is important to make it clear
that, although the ideal would be to discuss the living customary law, the reality is
that the consolidation of living customary law as a source of law readily usable by the
courts and others will take some time to emerge. This book is part of this process.
The research for this book revealed that much of the writing in books on
customary law to date relies either on old books or court decisions during the
colonial, union and apartheid South Africa, especially decisions of the Native Appeal
Court. Due to the paucity of works on customary law as a normative system based
on recent empirical research in South Africa, this book relies on the existing literature
documenting forms of official customary law. There is, therefore, a need for caution
in so far as it should not be assumed that the law stated in all the chapters in this
book represents living customary law. Of particular note are chapters 6 to 12 on
marriage, consequences of marriage, dissolution of marriage, succession,
contractual obligations, delict, and crime. In these circumstances, courts would do
well to employ multiple methods of ascertaining living customary law when
necessary.
However, there are various ways in which this book attempts to mitigate
knowledge gaps in existing literature and sources on living customary law. First, and,
most importantly, there are specific chapters in the book that include living
customary law sources. In this category are chapters 13 and 14, which refer to works
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documented by ethnographers writing in the mid- to late twentieth century as well as
the author in research conducted during the last six years. The book has also
benefited from other recent empirical studies on local communities.
Second, other chapters refer to recent court decisions incorporating aspects of
living customary law. For instance, chapter 6discusses court judgments which show
that the requirements of a valid customary marriage may be evolving rather than
contested. It also uses decisions that move the ascertainment of the essentials of a
customary marriage further away from the texts of official customary law. Some of
these cases show the willingness of the courts to accept the inherent flexibility of
customary law, as well as the involvement of the indigenous communities in the
development of living customary law.
In any case, we believe that this book has begun an important project for the
engagement with living customary law, an engagement which is as open as the
nature of customary law itself as an evolving system. It is an engagement that
encourages and underscores the importance of empirical research as a basis for
chronicles of customary law for study and judicial application, as well as problem
solving at all levels of society in which this system of law is practised. It is hoped that
students will find in the pages of this book a resource for thinking differently about
customary law in a post-apartheid South Africa where this law is now an equal
partner with the common law in the legal system.
Thandabantu Nhlapo
Chuma Himonga
Cape Town
February 2014
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List of authors
THANDABANTU NHLAPO (Editor)

BA (Law) (UBLS), LLB (Hons) (Glasgow), DPhil (Oxon)
Thandabantu Nhlapo is a Deputy Vice-Chancellor at the University of Cape Town.
Previous to this, he was a full-time Commissioner on the South African Law Reform
Commission where, as Chair of the Project Committee on Customary Law, he was
instrumental in the development of the Recognition of Customary Marriages Act of
1998. From 2000 to 2004, he held the positions of Deputy Chief of Mission and
Deputy Ambassador at the Embassy of South Africa in Washington DC. Prior to this,
he was a Professor and Head of the Department of Private Law at the University of
Cape Town where he taught African customary law and the law of persons and the
family. His academic research interests include African customary law and gender,
women’s human rights in family law, traditional values and modern constitutions, and
cultural diversity under the South African Constitution. Professor Nhlapo was
appointed convenor of the Technical Committee on Traditional Leadership, which
advised the Constitutional Assembly on all matters relating to customary law and
whose work contributed to Chapter 12 of the present Constitution. He has served as
a member of the Executive Council of the International Society of Family Law (ISFL)
and of the Governing Council of the International Institute for the Unification of
Private Law (UNIDROIT).
CHUMA HIMONGA (Editor)

LLB (Zambia), LLM (London), PhD (London)
Chuma Himonga is a Professor in the Department of Private Law at the University of
Cape Town where she teaches customary law. She holds the National Research
Foundation Chair in Customary Law, established by the South African Research
Chairs Initiative (SARCHI) of the Department of Science & Technology. She is a
former Deputy Dean of the Faculty of Law at the University of Cape Town as well as
a former member of the Board of the International Association of Law Schools. She
was a member of the South African Law Reform Commission Project Committee on
African Customary Law. Chuma is a rated and established researcher within the
National Research Foundation of South Africa rating system. She has published
widely in the areas of her research interests: family law, especially in African legal
18
systems, African customary law, children’s rights, and women and the law. She has
collaborated in three major international and regional academic research projects in
Europe and Africa involving investigations into various facets of family law, African
customary law and human rights, and the intersections between these normative
systems.
IP MAITHUFI
B Iuris, LLB (UNIN), LLM (UNW), LLD (Pretoria)
IP Maithufi is a Professor in the Department of Private Law at the University of
Pretoria where he teaches customary law and education law and policy at
undergraduate level. He is a former lecturer at the University of the North West and
Vista University where he lectured in the fields of family law, delict, succession, and
private international law. He is an admitted Advocate of the High Court of South
Africa. He was appointed as a full-time member of the South African Law Reform
Commission from 2001 to 2008, serving as project leader for the Harmonisation of
Customary Law and Common Law project. Professor Maithufi’s main fields of
interest are customary law, the drafting of legislation, and labour law. He has
published widely in the fields of customary law, family law, the law of succession,
and the law of delict.
SINDISO MNISI WEEKS

BA LLB (Cape Town), MSt DPhil (Oxford)
Sindiso Mnisi Weeks is a Senior Researcher in the Centre for Law and Society at the
University of Cape Town where she has worked on the Rural Women’s Action-
Research Programme, combining research and policy work on women, property and
authority under customary law, since August 2009. She was formerly a Senior
Lecturer in the University of Cape Town’s Department of Private Law where she
taught African customary law. As a young researcher, Sindiso has been highly rated
by the National Research Foundation of South Africa. Her main areas of interest, in
which she has published widely and spoken in academic forums and popular media,
encompass customary law, women’s rights, traditional governance, dispute
management and the Constitution, as well as land and succession. Her current
research focuses on traditional courts and vernacular dispute management forums in
South Africa, on which subject she is currently completing a book. Sindiso is the
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recipient of numerous academic awards, including a Rhodes Scholarship, a Skye
Foundation Scholarship, a Mellon-Mays Fellowship, the Ismail Mahomed/South
African Law Reform Commission Essay Competition, and the Women in Science
Award for the Development of Rural Women through Science and Technology.
LESALA MOFOKENG
BA LLB (Natal), Certificate in Legal Practice (LSSA), LLM (Georgetown, USA)
Lesala Mofokeng is a Senior Lecturer in the School of Law at the University of
KwaZulu-Natal, Howard College Campus, and is a Senior Residence Life Officer
responsible for undergraduate and postgraduate resident students. He is an
Advocate of the High Court of South Africa. He has lectured at the South African Law
Society’s School for Legal Practice since 2004, has presented lectures at the
University of Pretoria’s Good Governance Academy, and has facilitated numerous
succession planning workshops. Lesala’s main research interests include African
customary law, religious law, legal pluralism, international law and international
humanitarian law, and he has authored and co-authored academic books and
articles on legal pluralism.
DIAL DAYANA NDIMA

BJuris (Fort Hare), LLB, LLM, LLD (South Africa)
Dial Ndima is a Senior Lecturer in the Department of Public, Constitutional and
International Law, College of Law, at the University of South Africa, where he
teaches Advanced Indigenous Law. He is the Manager of the Centre for Indigenous
Law and Chairperson of the University of South Africa Law Clinic Management
Committee. Dial Ndima is a former tax collector, assessor, prosecutor, and
magistrate. He has published research in the areas of African customary law, African
jurisprudence and constitutional law.
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Specialist contributors
The Publisher and Editors express sincere appreciation to:
Jacques Matthee LLB LLM, Faculty of Law, North-West University, for the research
and other valuable support which he contributed during the development of the book,
and for his authorship of the ancillary materials that augment this book.
Aninka Claassens BA (Cape Town) BA Hons (Wits) PhD (Roskilde), and Monica
de Souza LLB LLM (Human Rights Law) (Cape Town), Centre for Law and Society,
Faculty of Law, University of Cape Town, for their valuable support in the authorship
of the discussion boxes featured in chapter 9.
About the book
African Customary Law in South Africa: Post-Apartheid and Living Law

Perspectives is a pedagogically rich learning resource, providing a clear and
innovative introduction to African customary law in South Africa. The text clarifies
and explains the subject matter in a style which encourages understanding, and its
pedagogical framework stimulates critical and reflective engagement with the
material. It supports the development of independent academic skills and applied
reasoning, allowing engagement with moot and contentious issues whilst maintaining
a clear understanding of the theoretical framework. The discussion features in the
book seek to develop the underlying principles by highlighting topical and relevant
constitutional, and other, problematic issues arising in legislation or the common law.
Myths and assumptions are questioned and problematised to stimulate the students’
interest, as well as to provide a clearer understanding of contentious issues and the
law as applied.
Brief description of features

Key terms and concepts: The key terms and concepts are identified in each
chapter with reference to the chapter’s subject matter. They are the most important
terms and concepts which a student should understand to achieve mastery of the
chapter’s contents. They appear as grey bold text, and have been included in the
glossary.
21
Pause for reflection: This feature aims to develop students’ broader and firmer
understanding of the subject matter or of the context or jurisprudence underlying the
principle, as well as the ability to reflect and engage with the subject. It requires
students to reflect deeply on issues, thereby stimulating discussion, supporting
independent thinking, and developing the ability to engage meaningfully with relevant
issues. Thus, the discussion assists students to understand and think through
various aspects of an issue by providing further guidance on possible approaches to
it.
Counterpoint: This feature supports the ability to think critically and flexibly, and
assists students to conceptualise legal issues from various perspectives. It develops
skills in formulating legal argument, and builds an awareness of various opinions
about a particular principle. It does this by highlighting specific criticisms of the law
just described or pointing to possibilities for the development of the law, or by
identifying the areas of controversy, opposing viewpoints on a principle, problems
with current law, and possible alternatives. A discussion here might critically consider
the question whether the law pertaining to the recognition of customary marriages is
adequate or requires further development, or whether the interests of women in a
given area of customary law are adequately protected.
Diagrams: The diagrams provide overviews and explain key concepts visually. This
feature reinforces understanding, helps to clarify key concepts, and shows more
clearly the interrelationship between distinct legal concepts.
Chapter in essence: This feature at the end of each chapter summarises the key
areas and core topics covered in the chapter in a succinct list of essential points.
Glossary: This resource contains explanations for the words and phrases that
constitute the jargon, or terms of art, particular to the area of study covered in the
book. African language terminology and phrases, and many other legal phrases,
including Latin, are explained and contextualised in the glossary.
Bibliography: A list of reference works appears at the end of the book. The works
cover the most important South African sources.
22
Acknowledgements
The authors and publishers gratefully acknowledge permission to reproduce

copyright material in this book. Every effort has been made to trace copyright
holders, but if any copyright infringements have been made, the publisher would be
grateful for information that would enable any omissions or errors to be corrected in
subsequent impressions.
Chapter 1
Quote on p 5 from Lugard, FD (1922) The Dual Mandate in British Tropical
Africa Edinburgh: William Blackwood and Sons 211; Quote on p 6 from Mattei, U and
Nader, L (2008) Plunder: When the Rule of Law Is Illegal Malden, MA: Blackwell 2
reprinted by kind permission of John Wiley and Sons; Quote on p 9 from McClendon,
T (1995) Tradition and domestic struggle in the courtroom: Customary law and the
control of women in segregation-era Natal The International Journal of African
Historical Studies 28(3):527–61 at 538–9 reprinted by kind permission of the editor
of The International Journal of African Historical Studies; Quote on p 13 from Luluaki,
JY (1997) Customary marriage laws in the Commonwealth: A comparison between
Papua New Guinea and Anglophonic Africa International Journal of Law, Policy and
the Family 11(1):1–35 at 6 reprinted by kind permission of Rightslink on behalf of
Oxford University Press; Quote on p 14 from Church, J (2005) The place of
indigenous law in a mixed legal system and a society in transformation: A South
African experience Australia and New Zealand Law and History E-Journal 94–106 at
95 reprinted by kind permission of the editor of Australia and New Zealand Law and
History E-Journal; Quote on pp18–19 from Bennett, TW (1995) Human Rights and
African Customary Law under the South African Constitution Cape Town: Juta 23
reprinted by kind permission of Juta & Company Ltd.
Chapter 2
Quote on p 24 from Luluaki, JY (1997) Customary marriage laws in the
Commonwealth: A comparison between Papua New Guinea and Anglophonic
Africa International Journal of Law, Policy and the Family 11(1):1–35 at 5 reprinted
by kind permission of Rightslink on behalf of Oxford University Press; Quote on pp
24–25 from Nhlapo, TR (1995) Cultural diversity, human rights and the family in
contemporary Africa: Lessons from the South African constitutional
23
debate International Journal of Law, Policy and the Family 9(2):208–25 at 217
reprinted by kind permission of Rightslink on behalf of Oxford University Press;
Quotes on p 27 from Jobodwana, ZN (2000) Customary courts and human rights:
Comparative African perspectives SA Public Law 15(1):26–49 at 30–31 reprinted by
kind permission of the editor of SA Public Law; Quote on p 27 from Bekker, JC and
Rautenbach, C ‘Nature and sphere of application of African customary law in South
Africa’ in Rautenbach, C, Bekker, JC and Goolam, NMI (2010) Introduction to Legal
Pluralism 3rd ed Durban: LexisNexis 29 reprinted by kind permission of LexisNexis;
Quote on p 27 from Hamnett, I (1975) Chieftainship and Legitimacy: An
Anthropological Study of Executive Law in Lesotho London: Routledge and Kegan
Paul 14; Quotes on p 27 from Woodman, GR ‘Customary laws and customary legal
rights: A comparative consideration of their nature and of the relationship between
laws’ in Svensson, TG (ed) (1999) On Customary Law and the Saami Rights
Process in Norway Skriftserie No. 8 Tromsø: University of Tromsø 5 reprinted by
kind permission of the University of Tromsø; Quotes on p 28 from Hund, J (1998)
‘Customary law is what people say it is’: H.L.A. Hart’s contribution to legal
anthropology Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of
Law and Social Philosophy 84:420–433 at 427 reprinted by kind permission of Archiv
für Rechts- und Sozialphilosophie; Quote on pp 28–29 from Hund, J (1998)
‘Customary law is what people say it is’: H.L.A. Hart’s contribution to legal
anthropology Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of
Law and Social Philosophy 84:420–433 at 427 reprinted by kind permission of Archiv
für Rechts- und Sozialphilosophie; Quote on p 29 from Woodman, GR ‘Customary
laws and customary legal rights: A comparative consideration of their nature and of
the relationship between laws’ in Svensson, TG (ed) (1999) On Customary Law and
the Saami Rights Process in Norway Skriftserie No. 8 Tromsø: University of Tromsø
2 reprinted by kind permission of the University of Tromsø; Quote on p 29 from
Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of
Executive Law in Lesotho London: Routledge and Kegan Paul 14; Quote on p
32 from Bennett, TW (2009) Re-introducing African customary law to the South
African legal system American Journal of Comparative Law 57(1):1–32 at 18; Quote
on p 33 from Woodman, GR ‘Customary law, state courts, and the notion of
institutionalization of norms in Ghana and Nigeria’ in Allot, A and Woodman, GR
(eds) (1985) People’s Law and State Law: The Bellagio Papers Dordrecht: Foris
24
Publications 156 reprinted by kind permission of Foris Publications; Quotes on pp
34–35 from South African Law Commission (1997) Project 90 The Harmonisation of
the Common Law and the Indigenous Law Discussion Paper 74 Customary
Marriages 15 reprinted by kind permission of the South African Law Reform
Commission; Quotes on p 36 from Mofokeng, LL (2009) Legal Pluralism in South
Africa: Aspects of African Customary, Muslim and Hindu Family Law Pretoria: Van
Schaik 57 reprinted by kind permission of Van Schaik Publishers; Quote on p
37 from Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the
context of living customary law South African Journal on Human Rights 25(3):491–
516 at 497 reprinted by kind permission of Juta & Company Ltd.
Chapter 3
Quote on p 40 from Roth, G and Wittich, C (eds) (1978) Economy and Society: An
Outline of Interpretive Sociology Berkeley: University of California Press 311; Quote
on p 41 from Galligan, DJ (2007) Law in Modern Society Oxford: Oxford University
Press 85 reprinted by kind permission of Oxford University Press; Quote on p
43 from Griffiths, J (1986) What is legal pluralism? The Journal of Legal Pluralism
and Unofficial Law 24:1–55 at 3 reprinted by permission of Taylor & Francis
Ltd www.tandfonline.com on behalf of The Journal of Legal Pluralism and Unofficial
Law; Quote on p 44 from Bourdieu, P (1987) The force of law: Toward a sociology of
the juridical field Hastings Law Journal 38(5):805–53 at 817; Quote on p 45 from
Griffiths, J (1986) What is legal pluralism? Journal of Legal Pluralism and Unofficial
Law 24:1–55 at 4; Quotes on p 45 from Van Niekerk, GJ ‘Legal pluralism’ in
Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction to Legal
Pluralism 3rd ed Durban: LexisNexis 3 and 9 reprinted by kind permission of
LexisNexis; Quote on p 45 from Woodman, GR ‘The idea of legal pluralism’ in
Duepret, B, Berger, M and Al-Zwaini, L (1999) Legal Pluralism in the Arab
World Leiden: Brill 3 Copyright © Brill. All rights reserved. Reprinted by kind
permission of Koninklijke BRILL NV; Quotes on p 46 from Van Niekerk, GJ ‘Legal
pluralism’ in Rautenbach, C, Bekker, JC and Goolam, NMI (eds) (2010) Introduction
to Legal Pluralism 3rd ed Durban: LexisNexis 9 and 9–10 reprinted by kind
permission of LexisNexis; Quote on p 47 from Falk Moore, S (1973) Law and social
change: The semi-autonomous social field as an appropriate subject of study Law
and Society Review 7(4):719–46 at 720 reprinted by permission of the Law and
25
Society Association; Quotes on p 47 from Malinowski, B (1927) Crime and Custom in
Savage Society London: Kegan Paul & Co 12 and 23.
Chapter 4
Quote on pp 52–53 from Allott, AN (1984) What is to be done with African customary
law? The experience of problems and reforms in Anglophone Africa from
1950 Journal of African Law 28(1–2):56–71 at 59 reprinted by kind permission of
Juta & Company Ltd; Quote on p 60 from Himonga, C and Bosch, C (2000) The
application of African customary law under the Constitution of South Africa:
Problems solved or just beginning? South African Law Journal 117(2):306–41 at 331
reprinted by permission of Juta & Company Ltd; Quotes on p 64 from Lehnert, W
(2005) The role of the courts in the conflict between African customary law and
human rights South African Journal of Human Rights 21(2):241–77 at 256–7
reprinted by kind permission of Juta & Company Ltd; Quote on p 65 from Hamnett, I
(1975) Chieftainship and Legitimacy: An Anthropological Study of Executive Law in
Lesotho London: Routledge and Kegan Paul 10; Quote on p 67 from Peires, JB
(1981) The House of Phalo: A History of the Xhosa People in the Days of Their
Independence Johannesburg: Ravan Press 29 reprinted by kind permission of Pan
Macmillan South Africa.
Chapter 5
Quote on p 72 from Oppong, RF (2007) Private international law in Africa: The past,
present, and future The American Journal of Comparative Law 55(4):677–720 at 677
reprinted by kind permission of the managing editor of The American Journal of
Comparative Law; Quotes on p 74 from Bennett, TW (2004) Customary Law in
South Africa Cape Town: Juta reprinted by permission of Juta & Company Ltd;
Quote on p 76 from Lee, RW (1953) An Introduction to Roman-Dutch Law 5th ed
Oxford: Clarendon Press reprinted by kind permission of Oxford University Press;
Quote on p 79 from Bennett, TW (2004) Customary Law in South Africa Cape Town:
Juta 53 reprinted by kind permission of Juta & Company Ltd; Quote on p 80 from
Bennett, TW (2004) Customary Law in South AfricaCape Town: Juta 68 reprinted by
kind permission of Juta & Company Ltd; Quote on p 81 from Kerr, AJ (1996) The
choice of and the application of customary law South African Law
Journal 113(3):408–10 at 409 reprinted by kind permission of Juta & Company Ltd;
26
Quote on p 82 from Rautenbach, C (2008) South African common and customary
law of intestate succession: A question of harmonisation, integration or
abolition Electronic Journal of Comparative Law 12(1):1–14 at 1 reprinted by kind
permission of the publisher; Quote on p 82 from South African Law Commission
(1999) Report on Conflicts of Law para 1.71 reprinted by kind permission of the
South African Law Reform Commission.
Chapter 6
Quote on p 92 from Ferraro, G (1980) Swazi Marital Patterns and Conjugal Roles:
An Analysis and Policy Implications Mbabane: USAID; Quote on p 94 from South
African Law Commission (1998) Report on Customary Marriages para 3.1.13
reprinted by kind permission of the South African Law Reform Commission; Quote
on p 104 from South African Law Commission (1998) Report on Customary
Marriages para 3.3.6 reprinted by kind permission of the South African Law Reform
Commission; Quote on p 106 from South African Law Commission (1998) Report on
Customary Marriages para 4.5.6 reprinted by kind permission of the South African
Law Reform Commission.
Chapter 7
Quote on p 117 from Himonga, C and Pope, A (2013) Mayelane v Ngwenyama and
Minister for Home Affairs: A reflection on wider implications Acta Juridica reprinted
by kind permission of Juta & Company Ltd; Quote on p 118 from Himonga, C and
Pope, A (2013) Mayelane v Ngwenyama and Minister for Home Affairs: A reflection
on wider implications Acta Juridica reprinted by kind permission of Juta & Company
Ltd; Quotes on p 119 from Dlamini, CRM (1999) The ultimate recognition of the
customary marriage in South Africa Obiter 20(1):14–40 at 25 and 26 reprinted by
kind permission of the Editor of Obiter; Quote on p 120 from Mofokeng, LL
(2009) Legal Pluralism in South Africa: Aspects of African Customary, Muslim and
Hindu Family Law 40–41 reprinted by kind permission of Van Schaik Publishers;
Quote on p 123 from South African Law Commission (1998) Report on Customary
Marriages61 reprinted by kind permission of the South African Law Reform
Commission; Quote on p 123 from Kaime, T (2009) The African Charter on the
Rights and Welfare of the Child: A Socio-legal Perspective Pretoria: Pretoria
University Law Press (PULP) 114–5 reprinted by kind permission of the author;
27
Quotes on p 129 from Heaton, J (2010) South African Family Law 3rd ed Durban:
LexisNexis 210–11 reprinted by kind permission of LexisNexis; Quote on p 138 from
Heaton, J (2010) South African Family Lawseed Durban: LexisNexis 82 reprinted by
kind permission of LexisNexis.
Chapter 8
Quote on p 150 from Bennett, TW (2004) Customary Law in South Africa Cape
Town: Juta 268 reprinted by kind permission of Juta & Company Ltd.
Chapter 9
Quote on p 162 from Bekker, JC (1989) Seymour’s Customary Law in Southern
Africa 5th ed Cape Town: Juta 70 reprinted by kind permission of Juta & Company
Ltd; Quote on p 163 from Comaroff, JL (1978) Rules and rulers: Political processes
in a Tswana chiefdom Man 13:1–20 at 2 published by Wiley-Blackwell on behalf of
the Royal Anthropological Institute of Great Britain and Ireland. Copyright © Royal
Anthropological Institute. All Rights Reserved; Quotes on p 163 from Costa, A (1997)
Custom and common sense: The Zulu royal succession dispute of the 1940’s African
Studies 56(1):19–42 at 31–32 © Taylor and Francis Group Limited on behalf of the
University of Witwatersrand, reprinted by kind permission of Taylor & Francis
Ltd www.tandfonline.com on behalf of the Taylor and Francis Group Limited on
behalf of the University of Witwatersrand; Quote on p 164 from Delius, P
(2008)‘Contested terrain: Land rights and chiefly power in historical perspective’ in
Claassens, A and Cousins, B (eds) (2008) Land, Power and Custom: Controversies
Generated by South Africa’s Communal Land Rights Act Cape Town: University of
Cape Town Press 216 reprinted by kind permission of the University of Cape Town
Press; Quote on p 165 from Schapera, I (1970) A Handbook of Tswana Law and
Custom 2nd ed London: Frank Cass 230, first published by the International African
Institute, London 1938; second ed. 1955; new impression 1959; second new
impression 1970 reprinted by kind permission of Boydell & Brewer Ltd and the IAI;
Quote on p 167 from Schapera, I (1970) A Handbook of Tswana Law and
Custom 2nd ed London: Cass 230, first published by the International African
Quotes on p 172 from Elton Mills, ME and Wilson, M ‘Land tenure’ in Mountain, ED
28
(1952) Keiskammahoek Rural Survey Vol 4 Pietermaritzburg: Shuter and Shooter
133 reprinted by kind permission of Prof. Francis Wilson; Quotes on p 172 from
Simons, HJ (1968) African Women: Their Legal Status in South Africa Evanston:
Northwestern University Press 265–66 reprinted by kind permission of the heirs of
Jack and Ray Simons; Quote on p 176 from Bennett, TW (2004) Customary Law in
South Africa Cape Town: Juta 49 reprinted by kind permission of Juta & Company
Ltd; Quote on p 177 from Oomen, B (2005) Chiefs in South Africa: Law, Power and
Culture in the Post-Apartheid Era Oxford: James Currey reprinted by permission of
Boydell & Brewer Ltd; Quote on p 179 from Bekker, JC (1989) Seymour’s Customary
Law in Southern Africa 5th ed Cape Town: Juta 281–82 reprinted by kind permission
of Juta & Company Ltd.
Chapter 10
Quote on p 186 from Elias, TO (1972) The Nature of African Customary
Law Manchester: Manchester University Press 145 reprinted by kind permission of
Olufemi Elias on behalf of the Estate of Judge TO Elias; Quote on pp 189–90 from
Koyana, DS (1980) Customary Law in a Changing Society Cape Town: Juta 154
reprinted by kind permission of Juta & Company Ltd; Quote on p 190from Bekker, JC
(1989) Seymour’s Customary Law in Southern Africa 5th ed Cape Town: Juta 160
reprinted by kind permission of Juta & Company Ltd; Quote on p 191 from Olivier,
NJJ, Bekker, JC, Olivier, NJJ (Jnr) and Olivier, WH (1995) ‘Indigenous law’ in
Joubert, WA (ed) (2009) The Law of South Africa 2nd ed Vol 32 Durban: LexisNexis
179 reprinted by kind permission of LexisNexis; Quote on p 192 from Bekker, JC
(1989) Seymour’s Customary Law in Southern Africa 5th ed Cape Town: Juta 136
reprinted by kind permission of Juta & Company Ltd; Quote on p 192 from Koyana,
DS (1980) Customary Law in a Changing Society Cape Town: Juta 71 reprinted by
kind permission of Juta & Company Ltd; Quote on p 193 from Koyana, DS
(1980) Customary Law in a Changing Society Cape Town: Juta 78 reprinted by kind
permission of Juta & Company Ltd; Quote on pp 193–4 from Schapera, I (1970) A
Handbook of Tswana Law and Custom 2nd ed London: Cass 230 first published by
the International African Institute, London 1938; second ed. 1955; new impression
1959; second new impression 1970 reprinted by kind permission of Boydell & Brewer
Ltd and the IAI; Quote on p 194 from Schapera, I (1970) A Handbook of Tswana Law
and Custom 2nd ed London: Cass 230 first published by the International African
29
Quote on p 195 from Olivier, NJJ, Bekker, JC, Olivier, NJJ (Jnr) and Olivier, WH
(1995) ‘Indigenous law’ in Joubert, WA (ed) (2009) The Law of South Africa 2nd ed
Vol 32 Durban: LexisNexis 184 reprinted by kind permission of LexisNexis.
Chapter 11
Quote on p 201 from Whitfield, GMB (1948) South African Native Law Cape Town:
Juta 443 reprinted by kind permission of Juta & Company Ltd; Quote on p 206 from
Bohler-Muller, N (2001) Cultural practices and social justice in a constitutional
dispensation: Some (more) thoughts on gender equality in South
Africa Obiter 22(1):142–52 at 152 reprinted by kind permission of the Editor
of Obiter; Quote on p 208 from Whitfield, GMB (1948) South African Native
Law Cape Town: Juta 404 reprinted by kind permission of Juta & Company Ltd.
Chapter 12
Quotes on p 211 from South African Law Commission (1999) Project 90 The
Harmonisation of the Common Law and The Indigenous Law Report on Conflicts of
Law paras 3.18 and 3.19 reprinted by kind permission of the South African Law
Reform Commission; Quote on p 214 from Hammond-Tooke, WD ‘World-view I: A
system of beliefs’ in Hammond-Tooke, WD (ed) (1974) The Bantu-speaking Peoples
of Southern Africa 2nd ed London: Routledge and Kegan Paul 318 at 336. Now
Taylor & Francis. Reprinted by kind permission of Taylor & Francis; Quote on p
215 reprinted with the kind permission of Simon & Schuster Publishing Group
from The Washing of the Spears: The Rise and Fall of the Zulu Nation by Donald R
Morris. Reprinted for eBook usage by kind permission of Russell & Volkening as
agents for the author. Copyright © 1965 by Donald R Morris. Copyright renewed ©
1993 by Donald R Morris. All rights reserved; Quote on p 215 from Terblanche, SS
(2007) Guide to Sentencing in South Africa Durban: LexisNexis 475 reprinted by kind
permission of LexisNexis; Quote on p 216 from Whitfield, GMB (1929) South African
Native Law Cape Town: Juta 415 reprinted by kind permission of Juta & Company
Ltd; Quote on p 221 from Bennett, TW and Pillay, A (2003) The Natal and KwaZulu
Codes: The case for repeal South African Journal on Human Rights 19(2):217–38 at
271 and 218 reprinted by kind permission of Juta & Company Ltd; Quote on p
30
223 from Bennett, TW (2010) The cultural defence and the custom of Thwala in
South African law University of Botswana Law Journal 10:3–26 at 4.
Chapter 13
Quote on p 230 from Delius, P ‘Contested terrain: Land rights and chiefly power in
historical perspective’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and
Custom: Controversies Generated by South Africa’s Communal Land Rights
Act Cape Town: University of Cape Town Press 217–18; Quote on pp 233–3-4 from
Mandela, N (1959) Verwoerd’s Grim Plot Liberation No. 36, May 1959 7–17; Quote
on p 234 from Albert Luthuli, Let My People Go: An Autobiography, Collins,
Johannesburg / London, 1962 p 200 reprinted by kind permission of HarperCollins
Publishers Ltd © 1962 Albert Luthuli; Quote on p 234 from Mbeki, G (1964) South
Africa: The Peasants Revolt Harmondsworth: Penguin Books 234 reprinted by kind
permission of Moeletsi Mbeki.
Chapter 14
Quote on pp 256–57 from Van der Waal, CS (2004) Formal and informal dispute
resolution in the Limpopo Province, South Africa Anthropology Southern Africa 27(3–
4):111–21 at 113 reprinted by kind permission of the Editor of Anthropology
Southern Africa; Quotes on p 257 from Hammond-Tooke, WD (1975) Command or
Consensus: The Development of Transkeian Local GovernmentCape Town: David
Philip 68 and 73–74 reprinted by kind permission of Richard and Graeme Hammond-
Tooke; Quote on p 261 from Van der Waal, CS (2004) Formal and informal dispute
resolution in the Limpopo Province, South Africa Anthropology Southern Africa27(3–
4):111–21 at 113 reprinted by kind permission of the Editor of Anthropology
Southern Africa.
31
Chapter 1
Historical overview of customary law

1.1 Introduction

1.2.1Introduction
1.2.2Socio-economic and political context of colonialism
1.2.3Recognition of customary law
1.3 Union (1910–1947)

1.3.1Introduction
1.3.2Political background and wider legal context of the Union
1.3.3Customary law, chiefs’ courts and state courts
1.4 Apartheid (1948–1990)

1.4.1Political context of apartheid
1.4.2Customary law and tribal authorities
This chapter in essence
1.1 Introduction
This chapter provides a broad overview of the history of the formal recognition of
customary law in South Africa situated within the wider politics prevailing during the
different time periods.1 We look at periods that are broadly defined as colonialism
(1652–1909), Union (1910–1947), apartheid (1948–1990) and the transitional period
(1990–1996). This history provides a crucial background for the laws we discuss in
this book as it is against this background that these laws (and their predecessors)
were produced. It also forms the challenging legacy which the current government is
attempting to undo.
The history we describe in this chapter could never be a complete telling – it is
limited by the extent of detail, variety, dynamism and nuanced complexity in the
actual history that we could not capture in so few words. The pre-colonial history has
been completely omitted from this chapter because of how much more so this caveat
32
applies to it. This chapter’s emphasis on particular elements in the story of time is
guided by what follows in subsequent chapters. Hence, the points we highlight in this
chapter are intended to contextualise some of the continuities and transformations
that later chapters discuss when dealing with present-day customary law.
It is obviously impossible to tell an objective history on the subject of customary law.
As with any other subject, history, even that pertaining to the law, is always
contested and laden with interests and emotions. However, one of the benefits
of state law is that it is mostly written in prescriptive texts that we can largely take at
their word. This is not to say that the law is objective or even determinative. In fact,
as you will learn through this book, in the case of customary law in
particular, positive law (that is, the law articulated in statute and precedent) can
never be said to be determinative. This means that the government did not have the
ability to determine completely the ways in which rural people lived and evolved their
systems of governance to adapt to their circumstances. However, statutes and
precedents provide us with clearer hooks on which to hang the broader socio-
economic, political and personal elements of history that will feature in this
discussion. We have elected to tell the history of customary law as enunciated by the
most authoritative scholars in the field – among them lawyers and historians2 – who,
although they often disagree, tend to agree on the key points.
It is important to keep in mind that the changes in customary law that occurred in
the formal legal sphere do not represent the full breadth of the developments that
took place in customary law and the relations between traditional leaders and their
people. In fact, some of the chapters in this book attempt to illustrate where points of
divergence exist between formally recognised customary law and what actually
occurs in rural communities’ everyday lives. The discussion in this chapter suggests
that many of these tensions originate in the imposition of an untrue version of
customary law that evolved in order to serve the state’s objectives.
33
1.2.1 Introduction
Terminology
direct rule a policy initially applied by the colonial British government where they sought
largely to assimilate the ‘natives’ under English common law
indirect rule a policy later applied by the colonial British government whereby ‘native’
administrations, courts and treasuries were established in the Cape and Natal
colonies in accordance with their understanding of customary law to ensure the
cooperation of traditional leaders and communities and to relieve the financial
burden on the colonial governments
terra nullius the principle that where land has not been productively used by the people
inhabiting it, it was not owned by those people who lived on and otherwise
used the land
lex nullius the notion of colonists that the ‘natives’ were without law
capitalism the economic policy and system in terms of which European countries sought
to enlarge their wealth by expanding their assets and domains to foreign lands
and that was therefore one of the primary drivers of colonialism
Enlightenment a cultural and intellectual movement in the 1600s and 1700s that served to
support broadly acceptable social knowledge and developments with the
premises of materialism and humanism as opposed to tradition
policy of a policy compelling people not originally subject to a culture or law to embrace
assimilation that culture or law as their own and conform to it in their practice
It is important to understand certain key concepts and policies before proceeding

further.
Indirect rule was a colonial policy articulated by Frederick Lugard who served the
British Crown in the early 1900s.3 In his words, indirect rule meant that:
The history, the traditions, the idiosyncrasies, and the prejudices of each
must be studied … in order that the form adopted shall accord with natural
34
evolution, and shall ensure the ready co-operation of the chiefs
and people.4
In other words, the colonial British government tried to understand African customary
law and to legislate in accordance with it so that the traditional leaders and the
ordinary people who lived under customary law would cooperate with the colonial
government. In practical terms, the British implemented indirect rule in three parts:5
 First, the British recognised traditional leaders by establishing ‘native’
administrations of which traditional leaders formed a part.
 Second, they established local dispute resolution forums as ‘native’ courts.
 Third, they established ‘native’ coffers into which the ‘natives’ paid taxes that
were then used for ‘native’ administration as the colonial government did not
want to squander its wealth.6
Indirect rule can be contrasted with direct rule. Direct rule was a colonial policy
originally adopted by the British in their colonisation of the Cape at the start of the
1800s. Under the policy of direct rule, they sought largely to assimilate the ‘natives’
under English common law. This was easier to effect in the Cape where the settler
population had a large presence and few ‘natives’ with whom they had to deal since
a large proportion of the Khoisan had been eliminated by disease and conquest.
However, the colony then expanded into the east where there were many ethnic
groups (now broadly known as Xhosa people) and where colonial forces had been
embroiled in almost a century of wars. The British needed a new policy that better fit
the circumstances. They had applied indirect rule in the colony of Natal, under
Theophilus Shepstone, since the mid to late 1800s. The British now also began to
apply the policy of indirect rule, informally at first, in the Cape colony from the end of
the nineteenth century.7
Terra nullius is the principle that where land has not been productively used by
the people inhabiting it, it was not owned by those people who lived on and
otherwise used the land. On this basis, colonial settler populations could own the
land which they found being used and possessed by Khoisan and black people.
Lex nullius is the notion that the ‘natives’ were without law. The term is used by
Mattei and Nader when describing how the rule of law ‘has flowed throughout Euro-
American expansions and with repetitive frequency to camouflage the taking of land,
35
water, minerals, and labor as happened in countless locales to native peoples
under colonialism’.8
Capitalism is the economic policy and system in terms of which European
countries sought to enlarge their wealth by expanding their assets and domains to
foreign lands. This policy was therefore one of the primary drivers of colonialism.
Under capitalism, European nations amassed assets and labour which they secured
through domination in foreign lands that they alleged they had discovered even
though there were other peoples inhabiting these lands already.
The Enlightenment was a movement in the 1600s and 1700s when global society
made a tremendous leap in its intellectual understanding and accomplishments. As a
cultural and intellectual movement, it originated primarily in Europe and later in
America. Through processes of imperialism, the Enlightenment served to support
broadly acceptable social knowledge and developments with the premises of
materialism and humanism as opposed to tradition. Materialism requires that all
knowledge that is to be accepted as truth must be verifiable by science. Humanism
requires all knowledge to be rational and thus verifiable through human reason.
A policy of assimilation compels people not originally subject to a culture or law
to embrace that culture or law as their own and conform to it in their practice.
1.2.2 Socio-economic and political context of colonialism
Scholars generally agree that colonialism, as a global phenomenon, was largely a

struggle over natural and human resources and authority, as well as cultural and
moral legitimacy, often referred to as the ‘civilisation’ mission. In the process of
colonisation, the colonisers, which were foreign states, asserted their power over
indigenous peoples and redistributed this power locally. Furthermore, colonisers
implemented their authority by means of physical and legal coercion. They did not
recognise and typically undermined the legitimacy of traditional leaders and
traditional institutions. Moreover, notions of difference prevailed as stereotypes that
found their expression in culture and in law. In other words, colonisers believed in
the superiority of their own culture and were disrespectful of local values. It is these
cultural attitudes that were channelled into law.
The reason for adopting these means of colonisation was that the colonisers
wanted to legitimise their rule and hence their laws. The colonisers were especially
interested in securing control of contractual relationships and financial dealings,
36
particularly over property. Property was the main asset that the colonisers wanted
legally to possess and, in fact, own.9 Property came in two forms: land and people
(slave labour). In the process, therefore, the colonisers dispossessed the local
population of their property by relying on the principle of terra nullius.
The principle of terra nullius was complemented by the principle of lex nullius. This
was apparent in how, at first, colonisers insisted on direct rule as their legal strategy.
This strategy compelled the ‘natives’ to succumb to the force and authority of the
colonisers’ legal systems. This strategy offered the colonisers security in that any
legal dispute was governed by a system of law which they understood and which
typically favoured them.10
Of course, for the initial colonisers, the Dutch, their ability to realise this strategy of
direct rule on a wide scale was restricted as they were physically confined to the
Cape and did not have enough people to enforce such a policy beyond this area.
However, when the British arrived in the early 1800s, tensions between the Dutch
and the British led to the Dutch seeking refuge from the British by migrating further
inland. The British also adopted a policy of direct rule but were much more intent on
including the ‘natives’ in their economy and culture. This was because they believed
that they had a superior culture, economy and legal system that would be good for
the ‘natives’ and would ‘civilise’ them.11
The British came to South Africa as part of a ‘global’ (European) trend
of imperialism.12 Initially, industrialisation and the Enlightenment had led to the
abolition of slavery and hence the British view that they had a higher standard of
living and morality which they should share.13 Industrialisation had also given the
British the ability to impose their standards by force using machinery
and firearms.14 In addition, capitalism was on the rise and with it global economic
expansion which meant pursuing greater wealth in foreign lands. Capitalism became
a core element of the British colonial enterprise. It led to the seizure of territory and
the inclusion of indigenous peoples in the settler economy as labourers.15
1.2.3 Recognition of customary law
The recognition of customary law must be understood within the context of

colonialism set out above. The recognition of customary law was not about
recognising the indigenous people as people with the capacity to make choices, with
creative abilities and with equal moral worth, including the right to govern
37
themselves. Rather, the recognition of customary law was driven by the state’s own
objectives as these could best be secured by using indigenous systems
and people.16 In this context, customary law and its adherents were mere
instruments in the hands of the state.
As mentioned above, the official policy of the British initially was to use direct rule.
However, during the late 1800s and early 1900s, the British did not have a unified
model of ‘native’ rule in South Africa. Although direct rule was the official policy of the
British, the de facto situation varied according to region. The form of rule depended
on the authorities and the material and human resources available in a
particular area.17 In other words, the British initially used indirect rule informally
during their colonial rule. They eventually realised that it was problematic for a settler
minority to rule the majority indigenous population effectively.18 The settler
population was always concerned about their security. The British recognised that
direct rule was proving to be a failure and the solution that emerged was to move to
indirect rule.
The British hoped that the policy of indirect rule would accomplish two
major purposes:19
 First, they hoped that indirect rule would fragment the majority population into
‘tribes’. This would result in the perception that they were small groups rather
than one dominant race and would reduce the threat of revolt.
 Second, indirect rule would create the impression of group autonomy
and independence.20 This was because indirect rule would permit the
indigenous communities to govern themselves except in so far as their self-
government conflicted with the rules imposed by the colonial government or
the evolving property interests of the government.21
The British formally adopted the policy of indirect rule in South Africa in the late
1800s. Theophilus Shepstone first introduced the policy in Natal in 1846. A few years
later, the Natal Native Affairs Commission of 1852–53 recommended that the native
population be assembled in reservations and that their daily affairs be administered
in a manner complying with their customary justice system only in as much as such
were in harmony with the principles of the colonial state’s legal system.22
38
The Commission concluded that, under customary law, traditional leaders were
despots and women were too liberated.23 What this meant in practical terms was that
the application of customary law by chiefs and the courts was subject to the proviso
that it not be contrary to justice and humanity. This is the so-called
repugnancy clause.24 It also meant that the colonial governor, a European, was the
ultimate authority on customary law as ‘supreme chief’.25
The elevation of the role of chiefs meant that they were given substantial power
which some exploited for personal gain or even abused.26 Hence, it is important to
note that not only the colonisers used and benefitted from the system. For example,
some members of indigenous groups saw fit to benefit themselves by aiding the
colonial government’s subordination of customary law and its people. At the same
time, there was resistance to this development from yet other sections of the
indigenous population, especially women and young men, who sought refuge in the
colonial courts. In this process, their actions contributed to the creation of more
official customary law.
PAUSE FOR
REFLECTION
The contribution of indigenous sections of the population to the development

of official customary law: women and young men
Women and young men also contributed in other ways to the development in and
authority of official customary law by appealing to the courts for protection against
the male elders who abused the power and authority the government had assigned
them. McClendon writes:
In 1931 an African court messenger in Natal testified … that courts

undermined the authority of husbands and fathers. Wives and daughters,
for instance, no longer brought their concerns to the head of the family,
but instead complained to the court that the husband or father did not give
them food or clothing. In the court messenger’s words, ‘The court is the
husband of the wife; the court is the father of the daughter. They run there
for their clothing and food.’27
Faced with the strictures imposed by the customary courts which sought to maintain
their authority by allying with the government in preventing African women from
39
going to the towns, women also took their search for freedom to the courts which
they petitioned for divorce.28
After the introduction of indirect rule in Natal, there was some variation in the pace at
which the provinces adopted the policy of indirect rule.29 In the Cape, black people,
the Khoi and then amaXhosa, lived in a British colony and were subject to British
government legislation and a system of administration of justice by white
magistrates. The colony officially adopted a policy of assimilation from 1865. This
meant that Roman-Dutch law was applicable in all matters where no legislation was
applicable. Nonetheless, chiefs ruled their communities under ad hoc agreements
with the government except where ‘incompatible with justice and humanity’. In British
Bechuanaland, Basutoland and Transkei (annexed), customary law continued to
apply to ‘natives’ subject to direction by the British High Commissioner. In the Free
State Republic and Transvaal, there was no separate policy for the indigenous
population until Law 4 of 1885 adopted the Natal policy. However, appointed
commissioners administered customary law, in other words civil and minor criminal
law, in special tribunals.30
1.3 Union (1910–1947)
1.3.1 Introduction
Terminology
Union period the period during which the four British colonies of the Cape, Natal, Orange
River and Transvaal were unified to form the Union of South Africa
reverse a process by means of which the government sought to compel people who had
urbanisation moved from rural areas to urban areas to return to the rural areas
During the Union period, the four British colonies of the Cape, Natal, Orange River
and Transvaal, the latter having formerly been Boer republics, were unified to form
the Union of South Africa. The beginning of this period was marked by the
establishment of the Union on 31 May 1910. The Union was declared by means of
the Union of South Africa Act, 1909 which was passed by the British Parliament on
20 September 1909. This Act thereafter served as the South African Constitution.
40
Reverse urbanisation was a process by means of which the government sought to
compel people who had moved from rural areas to urban areas to return to the rural
areas. This was achieved through law, forced removals and the creation and
compulsory assignment of language-based ‘homelands’ for black people.
1.3.2 Political background and wider legal context of the Union
During the period of the Union of South Africa, the government’s objectives were to
regulate the behaviour and movement of the ‘natives’.31 The underlying purposes
were to ensure that regulating the ‘natives’ took the least administrative and resource
investment from the state possible while ensuring that the ‘natives’ remained at the
disposal of the state for labour and production purposes.32There was little interest in
customary law even as a mode of rule. It thus became easier and easier to change
it legislatively.33 The state’s own resources were, in fact, also limited.
Resistance was also mounting. With increasing power given to traditional leaders for
them to use for their own benefit, discontent among the indigenous
people increased.34 Furthermore, major socio-economic and political shifts led to
intra-community problems such as land shortages, the distortion of authority and
power, and large-scale urbanisation and migration.35 The state and the male
traditional leaders colluded in an attempt to reduce the high levels of migration,
especially among women, to urban areas.36 The state attempted to reverse the trend
of urbanisation by means of forced relocation to tribal areas, the physical boundaries
of which were fixed and identified with specific ‘tribes’.37
There are a few key pieces of legislation that emerged during this period. We only
discuss two here.
First, the Natives Land Act38 prevented black people from acquiring land except
within the ‘scheduled native areas’. The Act confined black people, the majority of
the population, to reservations on 7% of the country’s territory.39 In the words of the
Constitutional Court in Alexkor Ltd v Richtersveld Community, ‘[t]his Act deprived
black South Africans of the right to own land and rights in land in the vast majority of
the South African land mass’.40 It also precluded white people from acquiring land in
those areas to ensure that the races were spatially segregated. The Natives Land
Act therefore put an end to black people pooling their resources in order to buy back
white-owned land.41 As part of its arguably intended consequences, the Act also
41
ensured that farm labourers were more readily available for exploitation on white
farms and it facilitated the availability of cheap labour for the mines.42
Second, the Black Administration Act (BAA)43 gave the Governor-General the power
to reshuffle ‘tribes’. He could ‘define’ and ‘alter’ boundaries; ‘divide’, ‘amalgamate’
and ‘constitute’ ‘tribes’; and ‘order the removal’ of ‘tribes’ ‘as necessity or the good
government of Natives may in his opinion require’ or ‘whenever he deems it
expedient in the general public interest’.44 Public interest, in this legislation, meant
the interests of the white community.
The BAA also made the Governor-General ‘supreme chief’ of all ‘natives’ in three
provinces – Natal, Transvaal and the Orange Free State.45 It permitted the Governor-
General to ‘recognise or appoint any person as a chief or headman in charge of a
tribe or of a location, and … to make regulations prescribing the duties, powers and
privileges of such chiefs or headmen’ as well as to ‘depose any chief so recognized
or appointed’.46
An equally important and invasive consequence of the BAA was its contribution to
the perpetual minority of married women in its general policy of privileging the adult
male members of the ‘tribe’. This subject is discussed further in chapter 7 (at 7.4.1)
on the majority status and capacity of spouses.
1.3.3 Customary law, chiefs’ courts and state courts
Terminology
rule of a rule of succession whereby the oldest male relative of the deceased
primogeniture inherited his intestate estate and women could not inherit from their
spouses
In addition, the BAA provided for chiefs’ courts. In fact, when the criminal jurisdiction
clause was amended in 1955,47 it moved away from the concept of the chief’s
imposed territorial jurisdiction as being over an area of which the traditional leader
had been given charge.48 The amended section 20(1) now read:
The Governor-General may confer upon any native chief or headman jurisdiction
to try and punish according to native law and custom, any Native who has
committed, in the area under the control of the chief or headman concerned, any
42
offence specified by the Governor-General, which is punishable under native law
and custom.
The chief was now firmly in control. As seen in chapter 14 on traditional courts, the
chief was now given an extensive list of powers to effect his control over his
assigned territory and the people within its bounds.
The BAA also prescribed the way in which the estates of black people were to
be administered.49 It set out that civil marriages between black people were out of
community of property50 and prescribed how and what assets of black people,
particularly those in customary unions, could be disposed of. For instance, black
people could not dispose of land held under quitrent by testament, but had to
dispose of it according to a schedule provided in the BAA. This schedule permitted
only men to inherit the land.51 Movable property belonging to a man or his customary
wife had to devolve under ‘black law and custom’ and could not be disposed of by
means of a will. ‘Black law and custom’ was interpreted to refer to the rule
of primogeniture whereby the oldest male relative of the deceased inherited his
intestate estate and women could not inherit from their spouses.52
Section 11 of the BAA set up a separate state court system for the application of
customary law.53 Aside from customary law’s application in chiefs’ and headmen’s
courts, this section prescribed that customary law was also to be applied in the
specially created state courts, named Native Commissioners’ Courts and the Native
Appeal Courts. In addition, customary law could be applied in these courts only if it
was consistent with ‘public policy or natural justice’.54 Therefore, customary law
applied only when not repugnant or contrary to statutes.55
Most provinces had had legislation or ordinances that regulated this application of
customary law. The vague wording of section 11 of the BAA was thus simply
interpreted in the same way as its predecessors had been. In Natal, this meant that
customary law applied to all ‘natives’ in all possible transactions, including some
economic transactions, and common law in foreign transactions or those with non-
Africans. The Cape followed the Transkei and applied customary law only in matters
of personal law where there was no Roman-Dutch law. In other words, overall, some
43
common law applied to ‘natives’ and some customary law, but in all provinces the
determination was made on a case-by-case basis.56
There were numerous ways in which the infiltration of common law into customary
law took place under the new order imposed by the BAA. Five examples will suffice.
First, Union officials staffed the Native Commissioners’ Courts and Native Appeal
Courts. These officials were sometimes called ‘customary chiefs’ although they
obviously were not and they knew little about customary law.57 Moreover, appeals
from the Native Courts went to the common law courts, which knew even less about
customary law than the Native Courts. While these common law courts assumed that
they knew much about customary law, they in fact interpreted customary law through
the lens of the common law with its accompanying Western values.58
Second, common law courts placed a high value on certainty through rigid rules and
relied on stare decisis (precedent) and codes such as the KwaZulu Act on the Code
of Zulu Law59 and the Natal Code of Zulu Law.60 This legislation had an impact far
beyond the borders of Natal.61 This search for certainty can be shown by the
behaviour of the courts as noted by Luluaki below.
PAUSE FOR
REFLECTION
An example of how the common law courts distorted customary law

Luluaki states that to give custom the character of certainty associated with law,
courts insisted on the payment of a bride price as a requirement for a valid marriage.
In this way, they were able to give ‘the quality of certainty to marriage whereby rights
over women and their children were clearly established’.62
The third example of the infiltration of common law into customary law was the
treatment of customary laws as a fact that had to be proved in every case.
The fourth example is that the application of customary law was subject to the
proviso that it should not be ‘repugnant to principles of public policy or natural
justice’. In the common law courts’ application of customary law, the relevant public
44
whose policy was observed was the white population. The courts also interpreted
natural justice in Eurocentric terms.63
Fifth, distortions of customary law occurred because the witnesses and assessors
who helped the judges to determine the true content of customary law were typically
old men who shared the government’s interest in controlling women and
younger men.64They therefore often used the power given to them to secure and
advance their own interests and to ensure that they retained control over these
demographic groups in a changing economic and social environment. As a
consequence, they would sometimes invent customary law rules that advanced
this cause.65
Hence, these factors distorted customary law.
1.4 Apartheid (1948–1990)
1.4.1 Political context of apartheid
Mamdani argues that there was a distinct continuity between the colonial period, the
Union period and the apartheid era.66 In fact, the transition from colonialism to the
apartheid era was slow and confused, and took place over the few decades
constituting the Union period. After World War II, human rights discourse became
prevalent in Europe. However, human rights were seldom discussed in African
colonies, especially where white settlers sought to protect their interests.67
In South Africa, the policy of indirect rule initiated by the British in Natal simply
became more formalised and entrenched in legislation under the National Party (NP)
government to become separate development. This was the euphemism used to
describe the system of apartheid.68 Separate development was supposedly intended
to lead ultimately to the self-government of black people in the homelands that were
established on a limited amount of land.69 The real reasons for the retention of
indirect rule were arguably more to do with the NP government’s commitment to
investing minimal cost and effort into the governance of traditional communities yet
also wanting to ensure maximal control over labour and land resources.70
1.4.2 Customary law and tribal authorities
During the apartheid era, the 1948 decision by the Appellate Division (now the
Supreme Court of Appeal) in Ex parte Minister of Native Affairs: In re Yako
45
v Beyi71 provided a standard approach to customary law. The Court ruled that no
presumption was to exist in favour of applying either common law or customary law,
but courts should apply the law that was most applicable to the parties and the
circumstances of the case.72 Arguably, this ruling contributed to the degradation of
customary law in the legal system.
COUNTER
POINT
Degradation of customary law in the legal system

Some argue that the decision in Yako v Beyi continued the British colonial policy of
indirect rule into the apartheid era. In other words, customary law was to apply only
to the individual in exceptional cases. Roman-Dutch law was seen as the general
law of the land resulting in the neglect of customary law.
According to Church, the decision in Yako v Beyi resulted in the recognition of
customary law ‘only as a special and personal law that operated outside of but only
as determined by the general law’.73 Customary law was not recognised as being
itself general law but was applied in exceptional circumstances where it was relevant
to the individual before the court. The state law remained the law of general
application and customary law therefore continued to be viewed through the
common law lens and would only be applied if it was consistent with common law
values.
Bennett’s view is that the recognition of customary law was marked by lack of
autonomy (that is, there was no individual choice) as culture formed the basis of
legal segregation.74 Hence, the individual did not have the opportunity to decide
whether customary law should apply to his or her case. If the court determined that
the individual was of a particular culture, it applied the customary law believed to
belong to that culture to that individual.
In the case of Tongoane v National Minister for Agriculture and Land Affairs,75 Chief
Justice Ngcobo, writing on behalf of a unanimous court, provided an abbreviated yet
fairly comprehensive account of the intricate relationship between apartheid laws
and the dispossession and oppression of black people. The Chief Justice gave
extensive attention to the central piece of legislation that laid the foundation for the
later establishment of homelands for black people and, thus, the exclusion of black
46
people from being South African citizens: the Black Authorities Act of 1951.76 In his
words:
The Black Authorities Act gave the State President the authority to
establish ‘with due regard to native law and custom’ tribal authorities for
African ‘tribes’ as the basic unit of administration … Under apartheid,
these steps were a necessary prelude to the assignment of African people
to ethnically-based homelands. … According to this plan, there would be
no African people in South Africa, as all would assume citizenship of one
or other of the newly created homelands …77
In the Black Authorities Act, ‘native/black law and custom’ meant whatever served
the state at any particular time. What served it most was power centralised in a tribal
ruler who controlled the land and the people on it subject to the state’s control of the
tribal ruler. Sections 2 and 3 of the Act permitted the State President to establish
‘tribal authorities’ to govern ‘tribes’ which, in terms of the BAA, could have been
falsely formed. Additionally, section 4(1)(d) of the Black Authorities Act reads:
A tribal authority shall, subject to the provisions of this Act – generally

exercise such powers and perform such functions and duties as in the
opinion of the Governor-General fall within the sphere of tribal
administration and as he may assign to that tribal authority.
In terms of section 4(1)(a) of the Black Authorities Act, the tribal authority was
responsible for ‘generally administer[ing] the affairs of the tribes and communities in
respect of which it has been established’. Under section 4(1)(b), the tribal authority
was to assist the tribal leader in his performance of ‘powers, functions or duties
conferred or imposed upon’ him. This included a broad power of taxation in line with
sections 8 and 9. These sections provided for treasuries to be established into which
customary and statutory tribal levies, fees, fines, property gains and profits were to
be paid.
PAUSE FOR
REFLECTION
Forced removals and resource insecurity
47
Tribal authorities were to ‘advise and assist the Government and any territorial or
regional authority … in connection with matters relating to … [among other things]
the development and improvement of any land within’ their areas
78
of jurisdiction. Later, this allowed the NP government to co-opt the tribal authorities
to assist it in the realisation of its policy of betterment under which the government
forcibly removed millions of Africans and caused substantial resource insecurity.79
As the Constitutional Court observed in Tongoane:
The forced removals of African people from the land which they occupied
to the limited amount of land reserved for them by the apartheid state
resulted in the majority of African people being dispossessed of their land.
It also left a majority of them without legally secure tenure in land.80
By the 1980s, the NP government was concerned mostly with maintaining so-called
‘law and order’.81 There were uprisings against imposed and authoritarian traditional
authorities in the homelands, especially in Bophuthatswana, now part of the North
West. The government declared a series of states of emergency, culminating in a
lengthy state of emergency from 1987 until 1990. During this time, in 1986,
Parliament enacted legislation that discarded the Native Commissioners’ Courts and
assigned their functions, extended to include criminal functions, to magistrates’
courts. Section 11 of the BAA was also repealed and re-enacted as section 54A(1) of
the Magistrates’ Courts Act.82 Subsequently, in 1988, section 54A(1) of the
Magistrates’ Courts Act was also repealed and was replaced by section 1 of the Law
of Evidence Amendment Act.83 This section permitted courts to take judicial notice of
customary law principles that were readily ascertainable and apply them where
applicable. It also provided for the proof, as a fact, of customary law principles that
were not readily ascertainable. In addition, it included a repugnancy clause.
The Regulations for the Administration and Distribution of the Estates of Deceased
Blacks were also passed in 1987.84 These regulations governed the intestate
succession of the estates of black people not covered by the BAA and generally
allowed for black people whose marriages would not ordinarily have been executed
under the common law to be so executed. Significantly, also, the Marriage and
Matrimonial Property Law Amendment Act85 ended the phenomenon of
86
discarded wives.
48
PAUSE FOR
REFLECTION
The colonial, union and apartheid eras give birth to different forms of
customary law
By the mid-twentieth century (ever since forced take-overs and Maclean’s
Compendium of 1866), three forms of customary law had come into being:
•The first form was official customary law. This was the customary law captured in
statute and precedent, and was directly influenced by Roman-Dutch and English
legal principles.
•The second form was academic law. This was the body of treatises on customary
law often referred to by courts when deciding disputes.
•The third form was living customary law. This was the version of customary law
developed and used by indigenous communities, and attested to orally in courts.87
We discuss these forms of customary law further in chapter 2.
Terminology
patriarchy a social system in terms of which men hold the dominant position and positions
of authority largely to the exclusion of women
In the uncertainty of the transitional period, customary law, the role of traditional
leaders and women’s rights were hotly contested issues.88 The primary question to
be answered in relation to the protection of customary law in the Constitution was
whether customary law should be subject to or independent of the Bill of Rights. This
issue was debated at CODESA I and II during 1991 to 1992 and the Multiparty
Negotiating Forum (MPNF) in 1993.
The debate was mainly between traditional leaders, primarily organised as the
Congress of Traditional Leaders of South Africa (CONTRALESA), and women’s
rights activists organised as the Women’s National Coalition.89 On the one hand,
traditional leaders expressed the fear that the equality clause would, among other
things, likely result in the eradication of large parts of customary law. The women’s
lobby, on the other hand, was concerned that if the traditional leaders’ appeal
49
succeeded, rural women would continue to be subject to patriarchy in the name of
customary law. They would thus be denied the benefits of equality on the basis of
sex and gender for which the Coalition was lobbying.90
In late 1993, the MPNF yielded the interim Constitution, tenuously breaking the
effective deadlock between the contesting parties over what to do about
customary law.91 Sections 181, 182, 183 and 184 of the interim Constitution provided
for a role for traditional leaders. As summarised in section 181(1), in essence, this
set of provisions permitted recognised traditional leaders to continue to function in
their roles and to exercise power in terms of their customary law subject to
amendment or repeal. Some perceived this as a loss by the women’s lobby because
it permitted traditional leaders to continue to impose themselves and customary law
as they saw it on their so-called subjects without their subjects having a choice in
the matter.92
The interim Constitution also included Constitutional Principle XI that protected
language and culture. Constitutional Principle XIII on the role of traditional leaders
provided for the recognition and application of customary law which, like common
law, was subject to the rights in the Constitution and legislation dealing therewith.
This signalled that the women’s rights activists had succeeded in their appeal for
gender equality rights to extend to women living under customary law.93
The interim Constitution also incorporated the concept of ubuntu from traditional
African jurisprudence. Although this concept was undefined, it was referred to in the
epilogue of the interim Constitution under the heading, ‘National Unity and
Reconciliation’. In 1995, the Constitutional Court defined the concept in the landmark
case abolishing the death penalty, S v Makwanyane.94 As did the other justices in
their own words, Ackermann J observed that the history of severely undermining the
dignity and violating the inherent right to life of so many South Africans had to be
undone. Hence, ‘[a] culture of respect for human life and dignity, based on the values
reflected in the Constitution, has to be engendered, and the State must take
the lead’.95 Chaskalson P observed that ‘[r]espect for life and dignity … are values of
the highest order under our Constitution’.96 Six of the 11 judges in this case
identified ubuntu as a key constitutional value that:
places some emphasis on communality and on the interdependence of the

members of a community. It recognises a person’s status as a human
50
being entitled to unconditional respect, dignity, value and acceptance …
The person has a corresponding duty to give the same …97
The Constitutional Court has made several allusions to ubuntu being one of the core
constitutional values of human dignity, equality and freedom.98 If ubuntu is
considered to contain such values, it will play a role in both informing constitutional
rights and in their interpretation.99
In brief, the justices saw ubuntu as encompassing, in its own way, these highest
constitutional values of human dignity and respect for human life. Ubuntu is not
specifically mentioned in the final Constitution but remains part of our jurisprudence.
This is evident from its continued influence in court decisions in different fields
of law.100
PAUSE FOR
REFLECTION
The certification of the final Constitution

To be certified by the Constitutional Court, the final Constitution had to comply with
Constitutional Principles XI and XIII mentioned above. Therefore, the final
Constitution of 1996 included the following provisions:
•Section 9(3) on the protection of equality includes among its listed grounds ethnic or
social origin and culture. According to Bennett, culture includes ‘a people’s entire
store of knowledge and artefacts, especially the languages, systems of belief,
and laws, that give social groups their unique characters’.101 Therefore, this
section gives people the right to be governed by the law applying to their particular
cultural group.
•Section 15 expands on section 14 of the interim Constitution, declaring that nothing
in the section prevents legislative recognition of marriages concluded under any
tradition or religious, personal or family law systems.
•Section 30 entrenches the individual’s right to participate in a culture of his or her
choice and section 31 protects a group’s right to participate in cultural activities of
their choosing. Distinguishing these two provisions from all others in the Bill of
Rights, the Constitution specifically qualifies these provisions by stating that
51
neither the rights in section 30 nor 31 can be exercised in a way contrary to the
provisions of the Bill of Rights.
•Section 39 treats customary law and its development as equal to the common law.
Section 39(2) states that ‘[w]hen interpreting any legislation and when developing
the common law or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights’.102 Section 39(3) provides that ‘[t]he
Bill of Rights does not deny the existence of any other rights or freedoms that are
recognised or conferred by common law, customary law or legislation, to the
extent that they are consistent with the Bill’.
•Chapter 12 provides for a role for traditional leaders both locally and nationally,
subject to the customs and usages of their communities, legislation and the
Constitution. In Chapter 12, section 211(3) specifically states that ‘[t]he courts
must apply customary law when that law is applicable, subject to the Constitution
and any legislation that specifically deals with customary law’.
•Section 235 articulates the right to self-determination of any community sharing a
common cultural and linguistic heritage, and provides a foundation on which the
state may legislate for cultural and linguistic communities to express this
international law right.
In Certification of the Amended Text of the Constitution of The Republic Of South

Africa, 1996,103 the Constitutional Court approved the final Constitution as meeting
its obligations in terms of the interim Constitution. However, the question remained
as to an appropriate definition of customary law as used in the Constitution and
whether it refers to official or living customary law. This was clearly articulated in
subsequent decisions.104 Furthermore, the Constitutional Court alluded to the
following question: if living customary law was the primary form of customary law
intended in the Constitution, how was this to be accurately discerned for the
purposes of dispute resolution in state courts?105 A related question is the meaning
of ‘when that law is applicable’ as used in section 211(3). Further still was the
question of whether the omission of customary law from section 8 of the Constitution
(referring only to common law to be developed by the courts) meant that the courts
could not develop customary law but only strike offending rules out.106
There are also questions with which the government continues to grapple in its
numerous attempts at passing regulatory legislation concerning customary law.
52
These are how to give appropriate effect to Chapter 12 that articulates the potential
for a role and functions to be given to traditional leaders in our democracy and
section 235 that recognises the international human right of local peoples to self-
determination.107 Of particular difficulty is how the government is to balance the
rights of individual people who live under customary law and the claims of traditional
leaders to certain powers and functions,108 as well as the balance between traditional
leaders and local government.109 This balance is particularly challenging with regard
to subject matter such as the Constitution and the demarcation of
110
community boundaries, the recognition or formation of appropriate governance
bodies and the distribution of their roles
and powers,111 land administration,112 administration of
mineral resources,113 administration of justice114 and the protection of
traditional knowledge.115
In the chapters that follow we discuss and attempt to unpack some of these
regulatory challenges.
THIS CHAPTER IN ESSENCE
•This chapter looks at the historical backdrop to the impact of colonialism and
apartheid on customary law. It also discusses the place of customary law in the
new constitutional dispensation. In both cases the discussion is located in periods
that are broadly defined as colonialism (1652–1909), Union (1910–1947),
apartheid (1948–1990) and the transitional period (1990–1996).
•The changes in customary law that occurred in the formal legal sphere do not
represent the full breadth of the developments that took place in customary law
and the relations between traditional leaders and their people.
•Colonialism largely featured a struggle over resources (natural and human),

authority, and cultural and moral legitimacy (what is often referred to as the
‘civilisation’ mission). The authority of the outside state was implemented by
coercion (physical and legal), not recognising and typically undermining the
legitimacy of the local authorities and methods.
53
•Under indirect rule, the government sought to understand African customary law
and legislate in accordance with it so that the indigenous leaders and the ordinary
people who lived under customary law would cooperate with the colonial
government. The policy was formed of three parts: ‘native’ administrations, ‘native’
courts and ‘native’ treasuries.
•During the Union period, the government’s objectives were to regulate the
behaviour of the ‘natives’ so as to ensure that they were at maximal disposal to
the state for labour and production purposes while costing the state as little as
possible. There was very little interest in customary law, even as a mode of rule,
as a result of which it became easier and easier to change it legislatively.
•Key Union pieces of legislation include the 1913 Natives Land Act which disallowed
black people from acquiring land except within the ‘scheduled native areas’ and
the Black Administration Act of 1927, in terms of which the Governor-General
(deemed ‘supreme chief’ of all natives) was given the power to reshuffle ‘tribes’.
•The BAA also provided for chiefs’ courts and set up a separate state court system
for customary law.
•Under the BAA, some sections of society, such as women and young men, were
disproportionately disadvantaged by an official customary law system that
privileged the adult male members of the ‘tribe’ and made them the only
participants in local decision making.
•There was no clear distinction between colonialism and apartheid. The initial
reasons for adopting indirect rule were still deemed compelling: the government’s
commitment to investing minimal cost and effort into the governance of traditional
communities yet also wanting to ensure maximal control of labour and land
resources, as well as the notion of natives’ lack of civilisation and the desire to
restrict racial mixing. This also justified the government’s continuing employment
of contrivances of customary law.
54
•In the early phase of formally named apartheid, the 1948 decision by the Appellate
Division in Yako v Beyi standardised court practice regarding the application of
customary law throughout the Republic. The Court held that no presumption was
to exist in favour of applying either common or customary law to ‘native’ cases, but
courts should apply the law that was most applicable to the parties and the
circumstances of the case. This was only one of the numerous ways in which the
infiltration of common law into customary law took place under this order.
•Under the Black Authorities Act of 1951, tribal authorities were formally established
to ‘administer the affairs of the tribes and communities in respect of which it has
been established’ and assist the tribal leader in his performance of ‘powers,
functions or duties conferred or imposed upon’ him. The tribal authorities also had
broad powers of taxation.
•By the 1980s, the national government was concerned mostly with maintaining so-
called ‘law and order’.
•Section 1 of the Law of Evidence Amendment Act of 1988 permitted ordinary courts
to take judicial notice of (unspecified) customary law principles that were readily
ascertainable and apply them where applicable and provided for the proof, as a
fact, of customary law principles that were not readily ascertainable. It included a
repugnancy clause that controlled the application of customary law.
•Three forms of customary law now existed: official customary law (in statute law and
precedent, influenced by Roman-Dutch and English law), academic law (the
scholarship referred to by courts) and living customary law (developed and lived
out by indigenous communities).
•In the transitional period, customary law, the role of traditional leaders and women’s
rights were hotly contested. The primary question to be answered was whether
customary law should be subject to or independent of the Bill of Rights. The
debate was mainly between traditional leaders and women’s rights activists.
55
•In essence, the interim Constitution of 1993 permitted already recognised traditional
leaders to continue to function in their roles and exercise power in terms of their
customary law subject to amendment or repeal of such.
•The interim Constitution also included Constitutional Principle XI protecting

language and culture, and Constitutional Principle XIII providing for the recognition
and application of customary law subject to the Constitution and legislation dealing
specifically with customary law.
•The interim Constitution also incorporated the concept of ubuntu from traditional
African jurisprudence.
•To be certified by the Constitutional Court, the final Constitution had to comply with
the Constitutional Principles in the interim Constitution. In the Second Certification
Judgment, 1996, the Constitutional Court determined that the final Constitution
had met its obligations in terms of the interim Constitution.
1This chapter draws on material included in Mnisi, S (2010) The Interface Between
Living Customary Law(s) of Succession and South African State Law DPhil
thesis University of Oxford.
2Bennett, TW (1995) Human Rights and African Customary Law under the South
African Constitution; Bennett, TW (2004) Customary Law in South Africa;
Bennett, TW and Peart, NS (1991) A Sourcebook of African Customary Law for
Southern Africa; Benton, LA (2002) Law and Colonial Cultures: Legal Regimes
in World History, 1400–1900; Chanock, M (2001) The Making of South African
Legal Culture, 1902–1936: Fear, Favour and Prejudice; Delius, P ‘Contested
terrain: Land rights and chiefly power in historical perspective’ in Claassens, A
and Cousins, B (eds) (2008) Land, Power and Custom: Controversies
Generated by South Africa’s Communal Land Rights Act 211–35; Mamdani, M
(1996) Citizen and Subject: Contemporary Africa and the Legacy of Late
Colonialism; Nhlapo, TR ‘African customary law in the interim Constitution’ in
Liebenberg, S (ed) (1995) The Constitution of South Africa from a Gender
Perspective 157–66; Ranger, TO ‘The invention of tradition in colonial Africa’ in
56
Hobsbawm, EJ and Ranger, TO (eds) (1992) The Invention of Tradition 211–
62; Claassens, A (2005) Women, customary law and discrimination: The
impact of the Communal Land Rights Act Acta Juridica 42–81; Himonga, C and
Bosch, C (2000) The application of African customary law under the
Constitution of South Africa: Problems solved or just beginning? South African
Law Journal117(2):306–41 at 306.
3Mann, K and Roberts, R (1991) Law in Colonial Africa 20; Mamdani (1996) 62. See
Lugard, FD (1922) The Dual Mandate in British Tropical Africa 193–213 for an
articulation of this policy.
4Lugard (1922) 211.
5Lugard (1922) 200–03; Mann and Roberts (1991) 20; Mamdani (1996) 53.
6Lugard (1922) 200–03; Mamdani (1996) 53. See also Mann and Roberts (1991) 20:
‘In the face of African resistance to direct intervention and in the interest of
containing administrative costs, indirect rule retreated from aggressive legal
and governmental reform … The task of the British colonial administrator was
now to reform indigenous administration from within indigenous institutions.’
7Mamdani (1996) 65–71.
8Mattei, U and Nader, L (2008) Plunder: When the Rule of Law Is Illegal 2.
9Mann and Roberts (1991) 23: ‘Law was used in struggles over resources and labor,
and these struggles in turn proved central to the making of [esp. state]
customary law itself.’ Also see Benton (2002).
10However, there were periodic instances in which their law led to logical
conclusions that did not favour them.
11Chanock (2001) 32–3; Mamdani (1996) 6; Benton (2002) 182–3.
12Mattei and Nader (2008) 23 and 81.
13Mattei and Nader (2008) 23.
14Mann and Roberts (1991) 9–11.
15Benton (2002) 24, 262; Mann and Roberts (1991) 15; Mamdani (1996) 37–8;
Mattei and Nader (2008) 21.
16Mann and Roberts (1991) 20. Also see Lugard (1922) 211.
17Mamdani (1996) 65–71; Church, J (2005) The place of indigenous law in a mixed
legal system and a society in transformation: A South African
experience Australia and New Zealand Law and History E-Journal 94–106 at
96–8.
57
18Mamdani (1996) 72–4, 294–5.
19Mamdani (1996) 72–4, 294–5.
20Mamdani (1996) 72–4, 294–5. See also Benton (2002) 22.
21Mamdani (1996) 50, 72–4, 91, 294–5. See also Benton (2002) 22.
22Mamdani (1996) 63, 115–6. See also Mattei and Nader (2008) 2, 11–13.
23Mamdani (1996) 81; Chanock (2001) 262, 267. Recall that patriarchy was still very
strong under British law.
24Church (2005) 96, 98; Chanock (2001) 282; Mamdani (1996) 63.
25Church (2005) 96, 98; Chanock (2001) 282; Mamdani (1996) 63.
26Mann and Roberts (1991) 20–1; Mamdani (1996) 79, 88, 122–8.
27McClendon, T (1995) Tradition and domestic struggle in the courtroom:
Customary law and the control of women in segregation-era Natal The
International Journal of African Historical Studies 28(3):527–61 at 538–9.
28McClendon (1995) 539.
29Chanock (2001) 243–61, 282; Church (2005) 96, 98; Mamdani (1996) 66–71.
30Chanock (2001) 243–61, 282; Church (2005) 96, 98; Mamdani (1996) 66–71.
31Mamdani (1996) 65–6, 70, 89; Mann and Roberts (1991) 21.
32Mamdani (1996) 6–7, 89; Benton (2002) 181–3.
33Lugard (1922) 211.
34Mann and Roberts (1991) 21; Mamdani (1996) 88, 122–8.
35Chanock (2001) 34–5, 329.
36Chanock (2001) 262, 267, 329–30; Mamdani (1996) 92, 97, 99–100.
37Mamdani (1996) 96–102.
38Act 27 of 1913, also known as the Black Land Act.
39The land assigned was later increased to 13% of the country’s territory under the
Native Trust and Land Act 18 of 1936.
40(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)
(14 October 2003) para 37.
41See Tongoane v National Minister for Agriculture and Land Affairs (CCT100/09)
[2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May
2010) para 12. Also see the Native Trust and Land Act.
42Chanock (2001); Delius (2008); Mamdani (1996).
43Act 38 of 1927.
44S 5 of the BAA.
58
45S 1 of the BAA.
46S 2(7) of the BAA.
47By the Native Administration Amendment Act 13 of 1955.
49See also ch 9 of this book dealing with the rules of succession under the BAA.
These rules were found to be unconstitutional in Bhe v Khayelitsha
Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1)
BCLR 1 (CC) (15 October 2004). Other legislation such as the KwaZulu Act on
the Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law Proc R151 of
1987 were later applied in the Natal region and the Transkei Marriage Act 21 of
1978 governed in the Transkei.
51S 23 of the BAA. The same could later be said of the Black Areas Land
Regulations Proc R188 of 1969, the Regulations for the Administration and
Control of Townships in Black Areas Proc R293 of 1962 and the Regulations
Governing the Control and Supervision of an Urban Black Residential Area and
Relevant Matters GG 976, 14 June 1968 GN R1036.
52S 23 of the BAA and reg 2 of the Regulations for the Administration and
Distribution of the Estates of Deceased Blacks (passed under s 23(10)). Also
see the discussion in Bhe.
53Section 11(1) of the BAA stated: ‘notwithstanding the provisions of any other law,
it shall be in the discretion of the Commissioners’ Courts in all suits or
proceedings between Blacks involving questions of customs followed by
Blacks, to decide such questions according to Black law applying to such
customs except in so far as it shall have been repealed or modified: provided
that such Black law shall not be opposed to the principles of public policy or
natural justice: provided further that it shall not be lawful for any court to
declare that the custom of lobola or bogadi or other similar custom is repugnant
to such principles.’
54Chanock (2001) 34, 328.
55Mann and Roberts (1991) 21; Mamdani (1996) 112–3, 115–22; Bennett and Peart
(1991) vi.
56Chanock (1991) 243–61.
57Chanock (1991) 34–5, 283, 292–3; Bennett (1995) 61.
59
58Chanock (1991) 34–5, 283, 292–3; Bennett (1995) 61.
59Act 16 of 1985.
60Published in Proc R151 of 1987, GG 10966.
61Mann and Roberts (1991) 36–7. See also Mnisi (2010) 36–8, 127–32.
62Luluaki, JY (1997) Customary marriage laws in the Commonwealth: A comparison
between Papua New Guinea and Anglophonic Africa International Journal of
Law, Policy and the Family 11(1):1–35 at 6 citing Chanock, M (1985) Law,
Custom, and Social Order: The Colonial Experience of Malawi and
Zambia 172–91.
63For example, much later, Ismail v Ismail 1983 (1) SA 1006 (A) rejected potentially
polygamous marriages.
64Bronstein, V (1998) Reconceptualizing the customary law debate in South
Africa South African Journal on Human Rights 14(3):388–410 at 395; Chanock
(2001) 329.
65Bronstein (1998) 395; Chanock (2001) 329. See also Mnisi (2010) 36–8.
66Mamdani (1996) 6–7; Chanock (2001) 37.
67Mamdani (1996) 7–8, 27–8, 89–90.
68Mamdani (1996) 6–7, 89.
69The Self-Governing Territories Constitution Act 21 of 1971 formed the legislative
framework for this.
70Oomen, B (2005) Chiefs in South Africa: Law, Power and Culture in the Post-
Apartheid Era 41.
711948 (1) SA 388 (A).
72Yako v Beyi 397.
73Church (2005) 95.
74Bennett and Peart (1991) vii.
(11 May 201) paras 10–29.
76Act 68 of 1951.
77Tongoane paras 24–25.
78S 4(1)(c) of the Black Authorities Act.
79This was realised in terms of the Native Trust and Land Act read with Procs 264 of
1939 and 116 of 1949.
80Tongoane para 25.
60
81Chanock (2001) 28. See also Mamdani (1996) 29–32.
82Act 32 of 1944.
83Act 45 of 1988.
84GN R200 of 1987. See also ch 9 of this book where these regulations are
discussed.
85Act 3 of 1988.
86The subject of discarded wives is dealt with in ch 9 of this book.
87These three forms of customary law are referred to in Bhe para 152. See
also Gumede v President of the Republic of South Africa (CCT 50/08) [2008]
ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008)
paras 11, 20 and 29 for the distinction between official and living customary law
and how they are treated by courts under the current dispensation.
88See the discussions in Bennett, TW and Murray, C ‘Traditional leaders’ in
Woolman, S and Bishop, M (eds) (2013) Constitutional Law of South Africa 2nd
ed rev service 5 26.1–26.67 and Oomen (2005) 37–86.
89Oomen (2005) 45–50.
90Oomen (2005) 45–50.
91Oomen (2005) 48–9.
92Oomen (2005) 48–9.
93Oomen (2005) 48–9.
94(CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD
164; 1995 (2) SACR 1 (6 June 1995).
95Makwanyane para 222.
98See, for example, Port Elizabeth Municipality v Various Occupiers (CCT 53/03)
[2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October
2004) para 37.
99See Himonga, C (2013) The right to health in an African cultural context: The role
of Ubuntu in the realisation of the right to health with special reference to South
Africa Journal of African Law 57(2):165–95.
100Keep, H and Midgley, R ‘The emerging role of Ubuntu-Botho in developing a
consensual South African legal culture’ in Bruinsma, F and Nelken, D (eds)
(2007) Explorations in Legal Cultures.
61
101Bennett (1995) 23.
102For a discussion of the meaning of development in the context of this section,
see Lehnert, W (2005) The role of the courts in the conflict between African
customary law and human rights South African Journal on Human
Rights 21(2):241–77.
103(CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December
1996).
104For example in Alexkor.
105Discussed in Bhe and, most clearly, in Shilubana v Nwamitwa (CCT 03/07)
[2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008).
106Settled in Alexkor para 51.
107See the Traditional Leadership and Governance Framework Act 41 of 2003, the
Communal Land Rights Act 11 of 2004 (found unconstitutional in the case
of Tongoane) and the presently debated Traditional Courts Bill [B1-2012],
among other legislation.
108See the discussion in Claassens, A and Mnisi, S (2009) Rural women redefining
land rights in the context of living customary law South African Journal on
Human Rights 25(3):491–516.
109See, for example, s 5(3) of the Traditional Leadership and Governance
Framework Act and the Local Government: Municipal Systems Act 32 of 2000.
See also see Oomen (2005) 43–4 and Mnisi Weeks, S (2011) Securing
women’s property inheritance in the context of plurality: Negotiations of law and
authority in Mbuzini customary courts and beyond Acta Juridica 140–173 at
146–9, 163.
110See ss 2, 7 and 28(3) of the Traditional Leadership and Governance Framework
Act and subordinate provincial legislation.
111See ss 3, 28(4) and 28(5) of the Traditional Leadership and Governance
Framework Act.
112See s 20(2)(b) of the Traditional Leadership and Governance Framework Act;
the Interim Protection of Informal Land Rights Act 31 of 1996; and the
Communal Land Rights Act (although no longer law).
113See s 20(2)(m) of the Traditional Leadership and Governance Framework Act
and the Mineral and Petroleum Resources Development Act 28 of 2002.
62
114See s 20(2)(f) of the Traditional Leadership and Governance Framework Act and
the Traditional Courts Bill.
115See the Intellectual Property Laws Amendment Bill [B8-2010].
63
Chapter 2
The nature and concept of customary law

2.1 Introduction
2.1.1Customary law as opposed to customary laws
2.1.2Customary law and colonial history

2.2.1Introduction
2.2.2Living customary law
2.2.2.1Definition of living customary law
(a)Custom
(b)Acceptance
(a)Living customary law distinguished from custom under common
law
(b)Living customary law as an evolving system of law
2.3 Mixed customary law
2.1Introduction
This chapter discusses the nature of customary law, focusing on the

conceptualisation of customary law as living customary law and official customary
law. We also discuss two related issues: the phenomenon of mixed customary law
and reconciling customary law with the protection of fundamental human rights.
2.1.1 Customary law as opposed to customary laws
It is important to note that there is no single or uniform system of customary law that
applies to all indigenous communities in South Africa. Instead, there are as many
versions of customary law as there are indigenous communities. However,
similarities exist in the principles of the customary laws of the various indigenous
64
communities at a general level. These similarities depend on whether the
communities share matrilineal or patrilineal forms of social organisation. All
indigenous communities in South Africa share major features of
1
patrilineal societies with the exception of the Balobedu community. They therefore
share common principles, especially in the areas of marriage and succession. It is on
this basis that we adopt the term ‘customary law’ in the singular in this chapter.
2.1.2 Customary law and colonial history
An appreciation of colonial history is essential to understanding the concept of

African customary law. We discuss this subject in chapter 1. Here, it is only
necessary to state that an analysis of customary law from a historical perspective in
South Africa links the concept of customary law to colonial, Union and apartheid
legal cultures. Writing about customary law and colonial history in commonwealth
Africa, Luluaki observes, for example, that:
‘customary law’ is a colonial invention aimed primarily at facilitating and

entrenching the colonial agenda in the management and control of
colonized peoples and to bring them closer within the larger colonial and
latterly neo-colonial legal, economic and cultural whole.2
Thus, official customary law was nothing but an official code for the governance of
Africans by the colonial state and capital. We discuss the major factors that
contributed to the emergence of this official customary law in chapters 1 and 4.
These factors may be summarised as:
 the treatment by the state courts of customary law as a fact that had to be
proved in every case, as well as the inevitable use of oral methods of proving
living customary law in the courts
 the ignorance of the officials of state courts about the content and nature of
customary law
 the use of precedent and academic literature as sources of customary law
 the codification of customary law
 the quest for legal certainty in the norms of customary law as sources of law
 the use of the repugnancy clause which had the effect of changing existing
customary law to suit official requirements.3
65
As a result of a combination of all these factors, new rules of customary law were
invented or constructed. The result was that much of what state courts presented
and applied as customary law was different from the customary practices that
governed African people’s relationships in their day-to-day lives. It should be
stressed that while African societies and their legal systems were neither static nor
‘pure’, colonialism with its capitalist economy, urbanisation and the consequent
social changes accelerated much of the process of the ‘invention’ of customary law.4
Luluaki also points out that the invention of customary law was neither a linear nor a
unidirectional process in which colonial and state instruments affected passive
African legal forms and social structures to produce ‘invented’ or new ‘customary
laws’. On the contrary, as Nhlapo points out, the process of the creation of the
customary law component of the colonial, Union and apartheid legal systems:
usually took the form of an alliance between the colonial authorities

and African male elders who, being the holders of ‘strategic’
resources in the form of land, cattle, women and children, defended
their vested interests by promoting the growth of rigid legal rules in
place of custom when the latter system could no longer protect them
from the effects of change.5
This is the context in which official customary law, which we discuss in the next
section, arose. Conceptually, we have retained the term ‘official customary law’ to
describe the relevant form of customary law in the post-colonial and post-apartheid
legal systems. The simple reason for this is that much of the customary law that is
applied by the courts today not only has its roots in the colonial, Union and apartheid
past, but continues to bear the same identifying marks as the official customary law
of these periods.
PAUSE FOR REFLECTION
Courts beware of the past

The Constitutional Court in Alexkor Ltd v Richersveld Community reminded the
courts to bear in mind this historical perspective when considering issues of
customary law:
66
Although a number of textbooks exist and there is a considerable
body of precedent, courts today have to bear in mind the extent to
which indigenous law in the pre-democratic period was influenced by
the political, administrative and judicial context in which it
was applied.6
Furthermore, the Court in this case made a pertinent point about the need for caution
regarding the sources of customary law. It stated:
caution must be exercised when dealing with textbooks and old

authorities [as sources of customary law] because of the tendency to
view indigenous law through the prism of legal conceptions that are
foreign to it.7
2.2.1 Introduction
The concept of customary law in South Africa consists of two forms of customary
law: living customary law and official customary law. There are also some variations
of concepts between living customary law and official customary law which we will
call state living customary law and mixed customary law.
The courts have recognised the co-existence of the concepts of living customary
law and official customary law.8 For instance, in Bhe v Khayelitsha Magistrate, the
majority judgment acknowledged the difference between these forms of customary
law in the following statement:
The official rules of customary law are sometimes contrasted with what is
referred to as ‘living customary law’, which is an acknowledgment of the
rules that are adapted to fit in with changed circumstances. The problem
with the adaptations is that they are ad hoc and not uniform. However,
magistrates and the courts responsible for the administration of intestate
estates continue to adhere to the rules of official customary law, with the
consequent anomalies and hardships as a result of changes which have
occurred in society.9
67
The High Court also differentiated between living and official customary law
in Mabena v Letsoalo.10 The Court held that there were two forms of customary law:
living customary law and official customary law. The Court noted that it had to
recognise the principle of living, actually observed, law as this would constitute a
development in accordance with the spirit, purport and objects of the Bill of Rights.11
The two major statutes dealing with customary law post-1994 also recognise the
concept of living customary law by implication. In this respect, the Recognition of
Customary Marriages Act (RCMA)12 and the Reform of Customary Law of
Succession and Regulation of Related Matters Act (RCLSA)13 both define customary
law as ‘the customs and usages traditionally observed among the indigenous African
peoples of South Africa and which form part of the culture of those peoples’.14 In this
context, culture implies the inherently evolving and changing nature of living
customary law.
PAUSE FOR
REFLECTION
The Constitutional Court’s view of the concept of customary law

In Bhe, the minority judgment of Ngcobo J identified three forms of customary law
and stated that all three forms are different:
•customary law that is practised in the community
•customary law that is found in statutes, case law or textbooks on official customary
law
•academic law that is used for teaching purposes.15
The first seems to represent what we have called living customary law while the
second represents official customary law. It is, however, not clear what the third form
consists of. If the Court meant the customary law that is recorded in textbooks, then
we can include it in official customary law. The reason for this is that the rules
described in these textbooks are derived from statutes that have codified customary
law or from court decisions on customary law. Thus, the view we take in this chapter
is that there are two concepts of customary law – official customary law and living
customary law with a possible variation of living customary law.
68
2.2.2 Living customary law
Terminology
patrilineage a group of persons who are related to a person by blood through the male line
matrilineage a group of persons who are related to a person by blood through the female line
hosi the term for a senior traditional leader among the Valoyi
In this section we consider the definition of living customary law and other aspects
that are related to the meaning of this concept.
2.2.2.1 Definition of living customary law
Customary law scholars are agreed that living customary law16 consists of the actual
practices or customs of the indigenous community whose customary law is under
consideration. Here is a sample of views:
•According to Jobodwana, the ‘customary law of a community is a body of customs
and traditions which regulates the various kinds of relationships between members
of the community’.17 He states further that in a traditional society, customary law
derived its authority from its acceptance by members of the community as a body
of rules binding on themselves: ‘[C]ustomary law never rested on the will of the
sovereign or supreme legislature for its validity but rather on its acceptance by the
community whose affairs it regulated. Acceptance means or implies that customs
must conform with actual patterns of behaviour.’18
•Bekker and Rautenbach define living customary law as ‘the original customs and
usages that are in a constant phase of evolvement [in the sense that as]
communities change … so do their rules’.19
•Hamnett defines living customary law as ‘a set of norms which the actors in a social
situation abstract from practice and which they invest with binding authority’.20
Living customary law usually consists of the unwritten customary practices that
regulate the day-to-day life of people. However, this does not mean that living
customary law cannot be recorded in writing. ‘It is quite possible in principle to make
written records of the norms of customary law. This is what textbooks about
customary law do.’21 The recording of living customary law only becomes significant
69
when it carries consequences for the nature of this system. According to Woodman,
an example of this is where:
a written record [of customary law] becomes an irrebutable statement

of customary law, irrespective of the norms observed by the affected
population; or if, when a written record has been made, no further
developments in customary law can be treated as legal.22
From these definitions of living customary law, we can see that the source of law is
custom, in other words a practice which emerges from relatively widespread social
practice and acceptance.23 There are two key concepts to consider here – ‘custom’
and ‘acceptance’. What do these concepts mean in the context of the definition of
living customary law?
(a) Custom
What is the difference between a mere repetitive habit or custom, for example a
social habit of a people such as the clapping of hands as a form of greeting among
the Lozi people of the Western Province of Zambia, and a custom that constitutes
the source of a customary rule? According to Hund, both lawyers and non-lawyers
use the word ‘custom’ to describe the repetitive behaviour of a group of people
or society.24 However, when lawyers speak of custom as a source of a customary
rule, this repetitive behaviour constitutes a rule when deviation from the expected
behaviour is openly criticised and meets with pressure for conformity.
Criticism of deviation ‘is regarded as legitimate or justified’.25 The number of
members of the group who ‘must treat the regular mode of behaviour as a standard
of criticism, and how often and for how long they must do so to warrant the
statement that the group has a rule are not definite matters’.26 The important point is
that the majority considers the standard (or behaviour) imposed to be obligatory.
There is also an ‘internal aspect’ to the custom. This simply means that most
members of the group ‘look upon the behaviour in question as a general standard to
be followed by the group as a whole’.27
However, in Alexkor, the Constitutional Court observed that by ‘its very nature
[customary] law evolves as the people who live by its norms change their patterns
of life’.28
70
PAUSE FOR
REFLECTION
Playing a game of chess

The following excerpt from Hund explains the element of the concept of custom as a
source of law through the rules of a game of chess:
Chess players do not merely have similar habits of moving the Queen
or the King in the same way that an external observer, who knew
nothing about their attitudes to the moves they make, could record. In
addition they have a critical reflective attitude to this pattern of
behaviour; ‘they regard it as (sic) a standard for all who play the
game’. Each not only moves the pieces in a certain way himself, but
has views about the propriety of all moving them in that way. Such
views are ‘manifested in criticism of others and demands for
conformity made upon others when deviation is actual or threatened,
and in acknowledgements of the legitimacy of such criticisms and
demands when received from others’.29
In a nutshell, ‘customary law arises out of repetitive actions [custom]

when and only when such actions are motivated by a sense of
obligation [among most members of the group].30
(b) Acceptance
With regard to acceptance as a concept in the definition of living customary law, we

stated above that the acceptance of the social practice by the group is essential to
the constitution of the practice or custom as a source of living customary law. In a
sense, every law receives social acceptance to be effective. However, customary
law is distinguishable by ‘the fact that it is this acceptance which makes it law by
giving it authority, and which gives it its content’.31 For example, there is widespread
social acceptance of the law that outlaws murder under the general law of South
Africa. However, it is not this social acceptance that gives the law against murder the
character of law. It is law because Parliament invested it with this character.
The social acceptance of a customary rule in this context does not necessarily
mean that it is voluntary. On the contrary, widespread observance of a customary
71
law rule may be due to coercion or force. The majority of the people may observe the
rule as a result of force on the part of those who consider themselves to have the
authority to enforce the customary law32 such as, for example, a traditional leader
and his or her council.
Hamnett stated the ultimate test of the definition of living customary law as follows:
Customary law emerges from what people do, or – more accurately –

from what people believe they ought to do, rather than from what a
class of legal specialists consider they should do or believe … [T]he
ultimate test is not, ‘what does this judge say?’ but rather ‘what do the
participants in the law regard as the rights and duties that apply to
them?’33
Thus, the group’s view of its own behaviour is central to the process of isolating
customary law from practices or customs that are not normative.34 However, the
centrality of the group’s own behaviour in respect of the definition of the rules of
customary law has led to problems about who has the authority to define customary
law.
COUNTER
POINT
Who defines customary law?

The definition of living customary law is a contested issue, especially in the context
of local power and gender relations.35 The absence of a single, clearly identifiable
person or group of persons who define customary law in a given community prompts
the question of who has the authority and power to define norms of customary law.
We return to the discussion of contestations concerning the content of customary law
later in section 2.2.2.2.
Hamnett’s view is instructive.36 He states that between the individual and the total
community or society there are intermediate corporate and semi-independent social
groups that constitute the social groups for purposes of defining or validating the
custom as law. These groups may consist of individual families such as, for example,
the patrilineage, matrilineage, the clan or the royal family. The customs to which
72
these groups attribute authority are considered to be socially and not merely
individually legitimised norms.
The exact nature of the intermediate groups that possess the ‘public’ character, so
to speak, of giving authority to legal norms varies from society to society. These
intermediate groups may also vary according to the kind of rule or subject matter
involved. For example, the immediate family of the deceased may determine
questions of inheritance. A more widely defined group may determine questions of
succession to the office of a traditional leader. Questions of land tenure may be
referred to some other authority, for example the traditional leader and his or
her council.37 All these groups define or interpret the norms in the respective subject
matters.
PAUSE FOR
REFLECTION
Example of customary law making in a rural setting

An indigenous community’s law-making process may be expressed through its
traditional governance system. For instance, the Valoyi Royal Council in Shilubana
v Nwamitwa38 passed a resolution on succession which was considered to have
changed the customary law of succession to the traditional office of hosi of the
Valoyi. The Constitutional Court accepted this resolution as representing a
development by the Valoyi of their own customary law.
The definition of living customary law and the discussion of the nature of this system
of law would not be complete without a consideration of two closely related elements
to which we now turn.
(a) Living customary law distinguished from custom under common law
The Appellate Division defined the concept of custom as a source of law under
common law in Van Breda v Jacobs39 where the Court stipulated four tests required
for a custom to have the authority of law. These are: the custom must be long
established, reasonable, uniformly observed and certain. In Shilubana, the Court
distinguished this notion of custom from its counterpart under customary law. It ruled
73
that while customary law is an independent and original source of law, custom at
common law is:
an immemorial practice that could be regarded as filling in normative

gaps in the common law. In that sense, custom no longer serves as an
original source of law capable of independent development, but
survives merely as a useful accessory. Its continued validity is rooted
in and depends on its unbroken antiquity (own emphasis).40
(b) Living customary law as an evolving system of law
We have already alluded to the evolving nature of living customary law in section
2.2.2.1. However, the importance of this feature of living customary law and its
recognition by the courts deserve separate discussion.
The evolving characteristic of living customary law has caught the attention of the
courts in democratic South Africa in various ways since 1994. In particular, the
courts have endorsed the evolving nature of this form of customary law as well as its
ability to adapt to changing conditions in society. In Shilubana, the Constitutional
Court held that living customary law ‘is adaptive by its very nature’ and that ‘by
definition, change is intrinsic to and can be invigorating of customary law’ (own
emphasis).41 This was, in effect, an endorsement of the Court’s earlier
pronouncement on the evolving feature of living customary law in Certification of the
Constitution of the Republic of South Africa, 1996.42
Similarly, the minority judgment in Bhe implicitly referred to living customary law as
a ‘dynamic system of law which is continually evolving to meet the changing
circumstances of the community in which it operates’.43 This chorus is taken up
in Alexkorwhere the Constitutional Court identified unwritten (living) customary law
as a system of law that ‘[t]hroughout its history … has evolved and developed to
meet the changing needs of the community’.44 It also observed that this system of
law would ‘continue to evolve within the context of its values and norms consistently
with the Constitution’.45 The last part of this statement must, however, not be
interpreted to mean that living customary law is by nature compatible with
constitutional principles. While its nature gives it the flexibility to adapt more readily
to these principles than official customary law, it would be wrong to consider living
74
customary law as inherently unproblematic. It must, therefore, be tested against the
Constitution like any other law.
The evolving characteristic of customary law means that its rules change in an
unregulated manner with new rules emerging and old norms ceasing to be observed.
The changes may be gradual, rapid or instant, depending on, for example, the pace
of social, economic or political change in society. Shilubana provides an example of
an instant change of a rule. As already alluded to, the Valoyi Royal Council changed
the rule of male primogeniture in relation to succession to hosi by passing a
resolution allowing a woman to succeed to the position of hosi to meet the
constitutional principle of gender equality. The important point, therefore, seems to
be that the practice must be shown to receive acceptance as a binding legal norm at
the relevant point in time.46 However, the point in time at which a norm can be said to
have emerged or lost its authority, as well as whether a norm has lost its authenticity
in the process of its application, may be contested.
COUNTER
POINT
Contestations over the content of living customary law

The fact that living customary law is unwritten and has no single authority
responsible for the definition of its content increases the potential for conflicts over its
content. This problem is aggravated by the fact that customary law evolves in an
unregulated manner. Although the Constitutional Court found it unnecessary to
resolve the issue, it acknowledged in Alexkor the fact that courts may be confronted
with conflicting views on what customary law on a subject provides. Indeed, there
are cases in which this has happened.47
Another contestation over the content of customary law concerns the authenticity
of the living customary law that the courts apply. There are two bases for this
contestation. The first is the decision in Mabena v Letsoalo.48 One of the issues
before the High Court was about the right of the mother of the bride to negotiate
the lobolo and consent to the marriage of her daughter. The Court accepted the rule
of customary law tendered by the respondent to the effect that the bride’s mother
had the right in certain circumstances, such as in the absence of the father, to
negotiate the lobolo and to consent to the marriage of her daughter. The Court held
that there were two forms of customary law, official customary law and living
75
customary law. The Court had to recognise the principle of living, actually observed
law as it would constitute a development in accordance with the spirit, purport and
objects of the Bill of Rights.49
However, some commentators have argued that the customary law which this
Court applied was not living customary law at all.50 Bennett argues that, if anything,
the rule applied was the rule of the two self-interested women, in other words the
respondent and her mother.51 He also argues that ‘it had virtually no evidence of a
rule of living law’ and that the only reason the so-called living rule was accepted was
because it ‘was consonant with the requirement of gender equality in s 9 of
the Constitution’.52
Thus, the customary law the Court applied may be desirable from the point of view
of constitutional rights. However, in terms of authenticity, it was not, according to the
critics, a rule of living customary law in the sense in which we have defined this
concept.
The second basis of the contestation under consideration is that living customary
law is transformed on entering the judicial process. Woodman argues that as soon
as a rule of living customary law enters the judicial process, it is transformed into
state law or official customary law.53 This is so because of the various factors at play
when a court is determining a matter under customary law. An example is the quest
for legal certainty in the outcome of the dispute and the training of judges in the
common law tradition with its affinity for the doctrine of precedent. In this respect,
Woodman concludes that:
It is erroneous to regret or criticise the divergence between sociologists’

customary law [or in our terms living customary law] and lawyers’
customary law [in our terms official customary law], if this is to imply that
it would be possible for lawyers’ customary law to have the same content
as sociologists’ customary law … It is not possible for state courts to
incorporate, adopt, apply, enforce, administer, observe, absorb, receive or
have transferred to them sociologists’ customary law …. Perhaps state
law may ‘cannibalize’ sociologists’ customary law …, but not if that means
the consumption of like by like: accuracy would be increased, although
the shock effect reduced, if we spoke instead of ‘devouring’.54
76
If the foregoing were applied to South Africa, it would be impossible for courts ‘to
incorporate, adopt, apply, enforce, administer, … [or] absorb’ living customary law
even if they had efficient ways of ascertaining this law. If anything, the law emerging
from the courts would have ‘devoured’ living customary law. In other words, any
attempt to admit living customary law in the superior courts would so completely
transform it that it would be unrecognisable and non-existent as a body of living law.
This, in turn, means that even if courts perceive themselves to be applying living
customary law, they are, in fact, not doing this. They are instead transforming living
customary law into something else, into what we may call state living customary law.
Both the arguments that the Court in Mabena v Letsoalo did not apply living
customary law and that living customary law is transformed on entering the judicial
process have two important implications for the conceptualisation of customary law:
•First, a living customary law norm retains its meaning as we have defined it in this
chapter only for as long as it has not been applied by a court. The moment it
becomes the subject of litigation and decision by the court, it loses its meaning
either because the court does not correctly identify the living norm or because the
court transforms the living norm in the process of applying it. Instead, it becomes
state living customary law.
•The second implication is that both state living customary law and official customary
law are official forms of customary law, albeit different in terms of their perceived
sources, and that they are both conceptually different from living customary law as
we have defined it.
We submit that these issues require further discussion beyond this chapter.
From section 2.2.2 above, it is clear that living customary law has to be distinguished
from official customary law. Official customary law is the law applied by the courts
and other state institutions. Typically, sources of official customary law are codes of
customary law55 and other legislation,56 court precedents and textbooks. This system
of law rarely represents the customary law of the people whose customary law it
purports to be. Through a combination of factors that contributed to the formation of
official customary law discussed fully in chapters 1 and 4 of this book, the people’s
oral and flexible body of customary law was transformed into a written, rule-oriented
77
and rigid version of customary law in the form of official customary law. This
ossification of living customary law has continued to be a typical feature of official
customary law in the legal system today.
COUNTER
POINT
Continued application of official customary law and issues of legal certainty

Despite the differences between official customary law and living customary law and
the fact that official customary law generally fails to represent the customary law of
the people, it continues to exist side by side with living customary law. In its
transitional arrangement provisions, the Constitution provides that ‘all law that was in
force when the new Constitution took effect, continues in force, subject to (a) any
amendment or repeal; and (b) consistency with the new Constitution’.57
If we take the view that what the Constitution has recognised is living customary
law as opposed to official customary law,58 then all official customary law in whatever
form is inconsistent with the Constitution and should not be applied. Nor should it be
developed in accordance with section 39(2) for this would prolong the application of
an illegitimate system of law beyond its life contrary to the transitional arrangements
of the Constitution. Gumede v President of the Republic of South Africa59 is implicit
authority for the legal proposition that the courts cannot develop official customary
law in the form of legislation. The Constitutional Court held in relation to the Kwazulu
and Natal Codes (the codified version of customary law) that while a competent court
may develop customary law, ‘its power in relation to legislation is not to develop the
legislation but to interpret it in a manner that promotes the objects of the Constitution
or to hold, where appropriate, that it is inconsistent with the Constitution and for that
reason invalid’.60
However, the courts continue to apply this system of official customary law. An
explanation for this is the dearth of empirical evidence of living customary law. The
courts are left with no option but to apply the only customary law readily available to
them – official customary law. The Constitutional Court, for example, highlighted this
problem in Bhe in the following statement:
78
The difficulty lies not so much in the acceptance of the notion of
‘living’ customary law, as distinct from official customary law, but in
determining its content … and testing it, as the court should, against
the provisions of the Bill of Rights.61
This problem has led to the suggestion that official customary law is applicable in
appropriate cases. For example, the South African Law Commission (SALC) stated:
[M]uch of the ‘official’ version will persist for the simple reason that
we have no other, more reliable account of customary law. It is true
that litigants are not bound by rules from this source. They are free to
allege a better version by calling proof of a new or more authentic
custom. But, if a party doing so does not meet the standards required
for proving custom then the ‘official’ version will prevail for want of
better evidence.62
Furthermore, alluding to the expense of necessary research, the SALC stated:
It is unfortunately not possible as many people have requested to

mount a nationwide survey in order to establish which customs are
still observed and which serve the interests of the African community.
The time and resources are not available to engage in such an
immense research project. Even if it were possible, the legal status of
the findings would be bound to be controversial, and, no matter how
sensitively done, any such statement of law is soon overtaken by
changes in social conditions.63
Apart from the issue of the transformation of living customary law noted in the
previous section, we submit that if the constitutional argument above is taken
seriously, there is no basis for the continued application of official customary law.
Moreover, living customary law is certain in its own right in the sense that its
principles do not change from one day to another or from one year to another to
require frequent massive research to identify and document it. Scholars should
therefore be encouraged to research this system of law and provide courts with
empirical evidence of its norms. In the meantime, the courts should be required to
ascertain living customary law through evidence where it cannot otherwise be
79
readily ascertained.64 The application of correct customary law is as much of a
demand for justice as any other.
The application of official customary law is also closely connected to the demands
of legal certainty. Official customary law is written down. It therefore enables courts
to apply it uniformly and with certainty. This issue of legal certainty arose
in Bhe where the Court declined to develop customary law in terms of section 39(2)
of the Constitution on a case-by-case basis. It reasoned that adopting this approach
would result in the slow development of customary law. Regarding certainty the
Court stated: ‘The problem with the development by the courts on a case-by-case
basis is that ... uncertainties regarding the real rules of customary law will be
prolonged and there may well be different solutions to similar problems.’65
We submit that if the Court’s rejection of this approach is meant to be of general
application, it would be problematic. In our view, a case-by-case approach is
conducive to the development of an inherently flexible or ‘negotiated’66 system of
law.
2.3Mixed customary law
Terminology
ukungena ‘a union with a widow undertaken on behalf of her deceased husband by his full or
half-brother or other paternal male relative for the purpose (i) in the event of her
having no male issue by the deceased husband of raising an heir to inherit the
property or property rights attaching to the house of such a widow or (ii) in the event
of her having such male issue of increasing the nominal offspring of the deceased’67
A chapter on the nature of customary law would be incomplete without mentioning

the new type of ‘customary law’ resulting from the reform of the customary law of
marriage and succession in 1998 and 2009 respectively. These reforms are aimed at
aligning customary law with the Bill of Rights. The reform of the customary law of
marriage by the RCMA incorporated a considerable amount of family law from both
the Marriage Act68 and the Matrimonial Property Act (MPA)69 regulating civil
marriages. The same is true of the RCLSA which has incorporated, with
modification, the Intestate Succession Act.70 At the same time, customary law
concepts of marriage and succession such as, for example, polygamy, lobolo,
80
woman-to-woman marriages and ukungena unions, have been retained as part of
the new laws. The result is that these new laws comprise a mix of customary law and
common law of marriage and succession respectively. These mixed laws clearly
constitute a new hybrid form of customary law.71
Terminology
ukuthwala traditionally, ‘a mock abduction of an unmarried woman [with or without her consent] by
a man who intends to marry her … resorted to primarily where there is some obstacle to
a marriage, for example when the girl’s father unreasonably withholds consent to the
marriage of his daughter’.72
The application of the Bill of Rights to private relations, which section 8(2) of the
Constitution fosters, immediately directs our mind to areas of potential conflict
between customary law and the Bill of Rights as well as the importance of the
distinction between living customary law and official customary law in this respect.
The most affected area is that of family relationships due to the patriarchal norms
that commonly govern these relationships. In addition, conflicts or potential conflicts
between customary law and fundamental human rights in this area may easily
extend to other areas such as land and traditional leadership. The fundamental
human rights to equality, non-discrimination and dignity are particularly implicated in
these conflicts. Subsequent chapters in this book deal with some of these conflicts in
more detail. We mention just a few examples here.
Section 9(1) of the Constitution guarantees equality of treatment before the law. It
states that ‘[e]veryone is equal before the law and has the right to equal protection
and benefit of the law’. Section 9(3) and (4) spells out instances where unfair
discrimination is prohibited. Section 10 provides that ‘everyone has inherent dignity
and the right to have their dignity respected and protected’. Examples of customary
law that are often cited as practices that may be found to conflict with one or more of
these rights include lobolo, polygamy, ukuthwala, the principle of male
primogeniture and succession to traditional status or office.
The courts have dealt with some of these issues. For example, in Bhe, the
Constitutional Court invalidated the principle of male primogeniture on the ground
81
that it discriminated against women with regard to inheritance. In Shilubana, the
Court endorsed a rule of customary law in the form of a royal resolution which
allowed a woman to succeed to the position of hosi as this rule promoted gender
equality. The Court thereby implicitly prohibited any principle of succession that
countenances discrimination. Furthermore, section 39(2) of the Constitution provides
an important mechanism for dealing with customary law conflicts with the Bill of
Rights. This section enjoins the courts to ‘promote the spirit, purport and objects of
the Bill of Rights’.
PAUSE FOR
REFLECTION
Views on how to reconcile customary law with the Constitution

Scholars have debated the issue of how to deal with conflicts or potential conflicts
between customary law and fundamental human rights in the Constitution. Four
views are worthy of note:
1. Since customary law is recognised subject to the Bill of Rights, fundamental
human rights should trump customary law which conflicts with
these rights.73 However, it is arguable that this is too simplistic a view given the
fact, for example, that the same Bill of Rights provides that when interpreting
customary law, the courts must develop it in accordance with the spirit, purport
and objects of the Bill of Rights. This suggests that the courts are expected to do
more than simply consider the Bill of Rights to trump customary rules that are
incompatible with it. Therefore, any conflict between customary law and
fundamental rights must be resolved by some nuanced balancing process.
2. When reconciling customary law and fundamental human rights, it is necessary to
draw a distinction between the substance of customary values and the form of
their expression.74 This view advocates for the retention of substantive good
values concerned with the subject of customary law under discussion minus their
undesirable aspects.
3. It is wrong to think of fundamental human rights and culture (or customary law),
especially in the field of women’s rights, as oppositional. Instead, living customary
law offers women space in which to access their rights and entitlements to
resources within their traditional institutions.75 Thus, it has been argued that ‘[i]n
the context of overlapping international instruments, state law, informal local law
82
and customary regimes, people tend to ‘mix and match’, drawing on whichever
authority, law or ‘right’ best advances their specific interests in
those instances’.76 This view enables women to contend for their rights in various
enclaves of the legal system, including customary law which is more accessible to
them. Furthermore, this view suggests that customary law is not always the villain
of women’s rights that it is usually projected to be.77
4. The application or implementation of living customary law rather than official
customary law may provide a better possibility of reconciling customary law and
fundamental human rights. This is because of the flexible and adaptive nature of
living customary law. Official customary law is considered to be oppressive, for
example, of women.78 In other words, it is necessary when dealing with issues of
conflict between customary law and human rights to distinguish between official
customary law and living customary law. By its nature, living customary law, unlike
official customary law, is flexible and adapts to changing conditions, including, it is
argued, those pertaining to human rights. In fact, we should remember that the
principle of male primogeniture that was invalidated in Bhe was a rule of official
customary law and not living customary law.79 As already stated, this is not to say
that all living customary law is compatible with the Constitution. Where this law is
found to be incompatible, it must be developed in accordance with section 39(2) of
the Constitution to bring it in line with the Bill of Rights.
In our view, the nuanced, balancing approach to reconciling customary law and
fundamental rights mentioned in point 1 and the views discussed under points 2–4
are preferable. This is because they are reconcilable with the constitutional
recognition of customary law.80
From these and other cases, such as Mabena v Letsoalo, Hlophe v Mahalela,
Gumede v President of the Republic of South Africa, Mahala
81 82
v Nkombombini, and Mayelane v Ngwenyama, it is clear that while the
Constitution recognises customary law, courts do not hesitate to invalidate rules of
customary law that violate constitutional rights. At the same time, these cases, as
well as the debates reflected in the Pause for Reflection discussion, show that the
task of reconciling customary law with the Constitution is not easy.
83
•The history of colonialism and apartheid in South Africa is essential to the

understanding of the concept of customary law in post-colonial and post-apartheid
South Africa. This chapter must, therefore, be read with chapter 1 of this book.
•The concept of customary law consists of two basic forms of law:
living customary law which is the unwritten, non-state law representing the
customary practices of the people who are subject to customary law
official customary law which is the law applied by the courts and other state
institutions.
•A third form of customary law, consisting of a variation of living customary law,
seems to be emerging. This is what we have termed state living customary law, a
form of living customary law that has been transformed into official customary law
on entering the judicial process. In the definition of customary law, we have
recognised the need for further debate beyond the scope of this chapter.
•A fourth form of customary law, a hybrid of customary law and common law, is also
the creature of the state in the context of law reform aimed at aligning customary
law with the Bill of Rights in the Constitution. This form is represented by the
RCMA and the RCLSA.
•Living customary law is distinguished from the common law concept of custom.
Living customary law consists of current practices that have binding authority and
that adapt to changing conditions. The common law concept of custom is a source
of law under common law that must satisfy the following criteria: the custom must
be long established, reasonable, uniformly observed and certain.
•South African courts recognise the dichotomy between living customary law and
official customary law although they acknowledge the difficulty of ascertaining the
living form. As a result, the courts usually apply official customary law which is
more readily ascertainable. The courts have also recognised the flexible nature of
living customary law and the ossified or rigid nature of official customary law. We
have expressed the view that research is essential to support the process of the
application of living customary law by the courts while they should be encouraged
to ascertain living customary law and to apply it.
84
•The reconciliation of customary law with constitutional rights is an important
undertaking that the courts have already begun to encounter, but debates among
scholars show the difficult nature of this task.
•In the determination of issues of conflicts between customary law and the
Constitution, it is necessary to draw a distinction between living customary law and
official customary law. As a flexible and adaptive system, living customary law is
more likely to enhance the protection of human rights than official customary law.
Where living customary law fails to offer protection to constitutional rights, it must
be developed in terms of section 39(2) of the Bill of Rights.
1Bekker, JC and Rautenbach, C ‘Nature and sphere of application of African

customary law in South Africa’ in Rautenbach, C, Bekker, JC and Goolam, NMI
(2010) Introduction to Legal Pluralism 3rd ed 15–43 at 21.
2Luluaki, JY (1997) Customary marriage laws in the Commonwealth: A comparison
between Papua New Guinea and Anglophonic Africa International Journal of
Law, Policy and the Family 11(1):1–35 at 5 citing Ranger, TO ‘The invention of
tradition in colonial Africa’ in Hobsbawn, EJ and Ranger, TO (eds) (1983) The
Invention of Tradition 211–262.
3See also Luluaki (1997) 5–6.
4For a summary of relevant literature on this subject, see Luluaki (1997).
5Nhlapo, TR (1995) Cultural diversity, human rights and the family in contemporary
Africa: Lessons from the South African constitutional debate International
Journal of Law, Policy and the Family 9(2):208–25 at 217.
(14 October 2003) fn 51.
7Alexkor para 54.
8See Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580
(CC); 2005 (1) BCLR 1 (CC) (15 October 2004) para 152.
9(CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15
October 2004) para 87.
101998 (2) SA 1068 (T). See further, Himonga, C ‘The future of living customary law
in African legal systems in the twenty-first century and beyond with special
85
reference to South Africa’ in Fenrich, J, Galizzi, P and Higgins, TE (eds)
(2011) The Future of African Customary Law31–57.
11Mabena v Letsoalo 1074.
12Act 120 of 1998 which came into operation on 15 November 2000.
13Act 11 of 2009 which came into operation on 20 September 2010.
14See s 1 of both Acts.
15Bhe para 152.
16Not all scholars use this term.
17Jobodwana, ZN (2000) Customary courts and human rights: Comparative African
perspectives SA Public Law 15(1):26–49 at 30.
18Jobodwana (2000) 31.
19Bekker and Rautenbach (2010) 29.
20Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of
Executive Law in Lesotho 14.
21Woodman, GR ‘Customary laws and customary legal rights: A comparative
consideration of their nature and of the relationship between laws’ in Svensson,
TG (ed) (1999) On Customary Law and the Saami Rights Process in
Norway 3–29 at 5.
22Woodman (1999) 5.
23Woodman (1999) fn 21 at 2.
24Hund, J (1998) ‘Customary law is what people say it is’: H.L.A. Hart’s contribution
to legal anthropology Archiv für Rechts- und Sozialphilosophie / Archives for
Philosophy of Law and Social Philosophy 84:420–433 at 426.
25Hund (1998) 427.
26Hund (1998) 427.
27Hund (1998) 427.
28Alexkor para 52.
29Hund (1998) 427, quoting Hart, HLA (1961) The Concept of Law 55–6.
30Hund (1998) 424, quoting Fuller, L (1969) Human interaction and the
law American Journal of Jurisprudence 14(1):1–36 at 16.
31Woodman (1999) fn 21 at 2.
32Woodman (1999) fn 21 at 2.
33Hamnett (1975) 10.
34See generally Hund (1998) fn 24.
86
35See generally Claassens, A and Mnisi, S (2009) Rural women redefining land
rights in the context of living customary law South African Journal on Human
Rights 25(3):491–516.
36Hamnett (1975) 13.
37Hamnett (1975) 13.
38(CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4
June 2008). For a complete history of the case as presented in the various
courts, see also Nwamitwa v Phillia 2005 (3) SA 536 (T) and Shilubana v
Nwamitwa 2007 (2) SA 432 (SCA).
391921 AD 330.
40Shilubana para 54. For an insightful criticism of this aspect of the decision, see
Mnisi, S (2010) The Interface Between Living Customary Law(s) of Succession
and South African State Law PhD thesis University of Oxford 175–79.
41Shilubana para 54.
42(CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC)
(6 September 1996) para 197.
43Bhe para 153.
44Alexkor para 53.
45Alexkor para 53.
46See Jobodwana (2000) 31.
47See, for example, Hlophe v Mahlalela 1998 (1) SA 449 (T) in which conflicting
evidence was tendered by witnesses on either side of the dispute. See
Himonga, C and Bosch, C (2000) The application of African customary law
under the Constitution of South Africa: Problems solved or just
beginning? South African Law Journal 117(2):306–41 at 338–9.
481998 (2) SA 1068 (T).
49Mabena v Letsoalo 1074H–1075C.
50See, for example, Bennett, TW (2009) Re-introducing African customary law to the
South African legal system American Journal of Comparative Law 57(1):1–32.
51Bennett (2009) 18.
52Bennett (2009) 18.
53See Woodman, GR ‘How state courts create customary law in Ghana and Nigeria’
in Morse, BW and Woodman, GR (eds) (1988) Indigenous Law and the
State 181–220.
87
54Woodman, GR ‘Customary law, state courts, and the notion of institutionalization
of norms in Ghana and Nigeria’ in Allot, A and Woodman, GR (eds)
(1985) People’s Law and State Law: The Bellagio Papers 156.
55For example, the Natal Code of Zulu Law Proc R151 of 1987 and the KwaZulu Act
on the Code of Zulu Law 16 of 1985.
56For example, the now repealed Black Administration Act 38 of 1927.
57S 241 of the Constitution read with Schedule 6 s 2(1)(a) and (b).
58See Himonga and Bosch (2000) 330–1.
December 2008).
60Gumede para 29.
61Bhe para 109.
62South African Law Commission (1997) Project 90 The Harmonisation of the
Common Law and the Indigenous Law Discussion Paper 74 Customary
Marriages 15.
63SALC (1997) Discussion Paper 74 Customary Marriages 15.
64See s 1(2) of the Law of Evidence Amendment Act 45 of 1988.
65Bhe para 112.
66See Mnisi (2010) 380, 388, 393–94.
67S 1(1) of the KwaZulu Act on the Code of Zulu Law and of the Natal Code of Zulu
Law. The custom is said to be prevalent among amaMpondo, amaHlangwini,
amaBhaca, amaXesibe and amaZulu, but not among amaXhosa and
abaThembu. See Mofokeng, LL (2009) Legal Pluralism in South Africa:
Aspects of African Customary, Muslim and Hindu Family Law 38.
68Act 25 of 1961.
69Act 88 of 1984.
70Act 81 of 1987.
71For a detailed discussion of these mixed laws, see chs 6–9 of this book.
72Mofokeng (2009) 57: If the woman is abducted without her
consent, ukuthwala ceases to be a delict and is punishable as a criminal
offence against the man who abducted the woman. This topic is discussed
further in ch 11 of this book.
88
73See, for example, Kaganas, F and Murray, C (1994) The contest between culture
and gender equality under South Africa’s interim Constitution Journal of Law
and Society 21(4):409–33.
74See, for example, Nhlapo, TR (1991) The African family and women’s rights:
Friends or foes? Acta Juridica 135:135–46.
75See, for example, Claassens and Mnisi (2009) 491–516.
76Claassens and Mnisi (2009) 497 citing Nyamu Musembi, C ‘Are local norms and
practices fences or pathways? The example of women’s property rights’ in An-
Na‘im, AA (ed) (2002) Cultural Transformation and Human Rights in
Africa 126–50. See also Himonga, C (2010) State and individual perspectives
of a mixed legal system in southern African contexts with special reference to
personal law Tulane European and Civil Law Forum 25:23–36.
77See also Himonga, C ‘Constitutional rights of women under customary law in
southern Africa: Dominant interventions and “old pathways”’ in Baines, B,
Barak-Erez, D and Kahana, T (eds) (2012) Feminist Constitutionalism: Global
Perspectives 317–35.
78See, for example, Himonga, C (2005) The advancement of African women’s rights
in the first decade of democracy in South Africa: The reform of the customary
law of marriage and succession Acta Juridica 82–107.
79On the differences between living customary law and official customary law of
succession, see Mnisi (2010) 133–46.
80See particularly ch 1 of this book.
812006 (5) SA 524 (SE), in which the Court refused to effect the principle of male
primogeniture in the context of a burial claim in favour of the deceased’s
alleged wife on the ground, inter alia, that the rule violated the constitutional
rights to dignity and equality.
May 2013).
89
Chapter 3
Legal pluralism
3.1 Introduction

3.2.1Positivism and the rule of recognition
3.2.2Positivism and the rule of law
3.2.3Legal centralism

3.1 Introduction
This brief chapter provides a basic introduction to the concept of legal pluralism as a
socio-legal theory and compares its elements to those of some conventional
jurisprudential theories of law. It explains the difference between weak and strong
legal pluralism, particularly as they manifest in the South African context. These
theories do not only situate customary law in legal theory but also open a window to
theories of law that are necessary for the understanding and study of law in modern
society generally.
PAUSE FOR
REFLECTION
What are the differences between jurisprudential and socio-legal theories of

law?
Jurisprudential theories of law tend to focus on legal sources, institutions and
officials – what can be summarised as the logical coherence of a system – as
determinants of what ‘is’ law. They can also be philosophical in their concern with
what ‘ought’ to be law. According to Roth and Wittich, jurisprudential theories of law
are marked by ‘taking for granted the empirical validity of the
90
legal propositions’.1 They are therefore sometimes critiqued as not being highly
descriptive but rather more abstract or hypothetical.
By contrast, socio-legal theories of law tend to be more sociological in their
orientation and thus focus on what ordinary people do as both adherents and non-
adherents of the law. In other words, they tend to view ‘legal order’ in relation to
social forces. They often use the terminology of seeking to understand ‘law in
practice’ as opposed to ‘law in the books’. Socio-legal theories are sometimes
perceived to be overly relativist (lacking in universal standards) because they often
do not recognise state law as sacred simply because of its form and because they
allow that other norms may be of equal value.
Legal pluralism is a socio-legal theory. We will also discuss legal positivism and state
centralism as the main jurisprudential theories of law in terms of which the South
African legal system operates.
The main jurisprudential theories of law in South Africa are legal positivism and state
centralism. We discuss the principles of these theories and how they apply in South
Africa below.
3.2.1 Positivism and the rule of recognition
Terminology
legal a jurisprudential theory of law that is based on the idea that law can be found in
positivism tangible sources that we can verify scientifically or logically, and rejects morality or
ethics as a source of law
Legal positivism is based on the idea that law can be found in tangible sources,
such as legislation and court precedents, that we can verify scientifically or logically.
Legal positivism therefore rejects morality or ethics, per se, as a source of law.2
According to Hart who wrote the seminal text on legal positivism, The Concept
of Law,3 this theory says, first, that the pedigree of rules, that is, their source,
determines their status as law.4 This is known as the sources thesis. Second, the
validity of rules in terms of the officially accepted rule of recognition, rather than
91
social acceptance, is what makes them laws instead of mere rules or norms or mere
convergence of behaviour.
In South Africa, it is the fact that laws have been enacted by the legislature or
articulated by the courts thus establishing precedent, in line with the Constitution,
that makes them laws. This is so regardless of whether the public accepts the rules
themselves or the rule of recognition. It is ‘enough that the people generally obey’.5
Simply understood, according to MacCormick, the rules do not require personal
endorsement by members of society. Nor do the system’s officials need to obtain
social consensus on the rules as long as the officials manage to adhere to and
maintain the system. The rules of the legal system and the general moral standards
of the community can therefore be clearly differentiated.6
PAUSE FOR
REFLECTION
Is there room in legal positivism for customary law?

Hart’s conception of the law allows for the potential inclusivity of a rule of recognition
and permits that a master rule may provide for the inclusion of custom.7 Yet, when
Hart later refers to this possibility and contemplates the transition of primitive
societies to societies with law, he envisions that this inclusion of custom will take
place by means of their either developing a rule of recognition or their customs being
subject to an already existing master rule. In either case, custom is brought into
order by the logical framework of positive law represented by the sources thesis.
This means that, save for such a founding positive law, customary law cannot be
law.
This is consistent with the situation in the South African legal system. Customary
law is a legitimate form of law from a formal point of view because of its recognition
in the Constitution which is the rule of recognition. In fact, the Constitution
specifically states that customary law must conform to the Constitution and
legislation dealing with it for it to be legally applicable.
However, Hart’s concession does not address the situation where no rule of
recognition formally exists to legitimise customary law’s place in the law and where
customary law continues to regulate people’s lives authoritatively. This was, indeed,
the case in South Africa before the Constitution gave customary law full recognition.
92
3.2.2 Positivism and the rule of law
Terminology
rule of the principle that the law is supreme in a legal order and that no state action is legitimate
law unless provided for by validly adopted law prior to the state taking the action
A founding principle in the Constitution is the rule of law.8 This is the principle that
the law is supreme in our legal order and no state action is legitimate unless
provided for by validly adopted law prior to the state taking the action. In short, the
rule of law requires:
 •the separation of powers between the three arms of state (executive,
legislative and judicial) with the courts having the right of review9
 •equality before the law
 •the right to a fair hearing accompanied by the assumption of innocence until
a person is proven guilty
 •legality.
According to the Constitutional Court, legality is a key component of the rule

of law.10 Legality refers to the lawfulness – that is, the non-arbitrariness – of state
action. It points to legal formality that comports with the positivist notions of the rule
of recognition and the sources thesis. It requires that laws be clear; certain, precise,
specific; consistently applicable; prospectively determined, predictable, foreseeable;
and publicly available, ascertainable, accessible.11
PAUSE FOR
REFLECTION
Applying legality to customary law

If the requirements for legality set out above were applied to customary law, much of
it would not comply. This is because much of customary law – particularly living
customary law – is law (in other words has normative purchase) by virtue of its local
acceptance rather than its being valid in terms of the Constitution, legislation or
precedent. In fact, much of living customary law has not been tested against the
Constitution. Moreover, because it is typically not written down, we often cannot
establish living customary law by or determine it from a source that is independent of
93
the moral code or behavioural patterns of its adherents. Furthermore, we can rarely
determine living customary law with certainty in advance of the dispute in which we
want to apply it. This also relates to the flexibility and contextual malleability of this
form of law. As a result of this flexibility, the rules may not seem clear or certain to
the onlooker although they are often clear enough to the members of the relevant
group to whom the laws apply.
It is also worthy of note that despite the above definition of the rule of law, living
customary law has been recognised as a source of law through Constitutional Court
decisions in several cases.12
3.2.3 Legal centralism
According to Griffiths, legal centralism claims that ‘law is and should be the law of
the state, uniform for all persons, exclusive of all other law, and administered by a
single set of state institutions’.13 In this theory, the state is therefore the focus as the
only source of legitimising authority in what is true law. This theory also sees the
state as having a monopoly over the creation and administration of law because of
the assumption that state institutions are logically coherent and mostly operate in a
manner strictly conforming to equality and neutrality.
COUNTER
POINT
Where does customary law fit in?

According to legal centralism, customary law does not qualify as law except where
the state has elected to make it such and integrate it into its own law. In this
instance, until the recognition of living customary law by the Constitution, only official
customary law was properly called law.
It is, furthermore, necessary to take note of criticisms of jurisprudential theories of

law.
COUNTER
POINT
Critiques of jurisprudential theories
94
One of the critiques of jurisprudential theories is that they tend to universalise
Western law and to assume its superiority over other normative systems. The
theories therefore overlook the contextual nature of the law, as well as its
development and need to fit in with the society that it is to serve at any one time.
There are many socio-legal theories. Some are associated with influential theorists
such as Max Weber, Emile Durkheim, Michel Foucault, Jurgen Habermas and Niklas
Luhmann to name a few. Others are affiliated with schools of thought such as
Feminism, Postmodernism, (neo-)Marxism and critical race theory.
One theory worth mentioning briefly is the notion of ‘living law’ coined by Ehrlich.
He writes about the common law in the eighteenth century in the same terms which
we may use to describe living customary law in South Africa today. Ehrlich theorises
that positive legal propositions cannot capture all of the common law. This is
especially so because as soon as the living or common law is codified, people’s
practice of it continues to evolve and it thus again varies from the
written law.14 Ehrlich argues that our view of the law must thus refer to sources
beyond statutes and precedents. In fact, people engaged in ascertaining the law
must look to what institutional law has ignored or censured, and which we can
determine by ‘direct observation of life’.15
Another theory worth mentioning is that of law as a competitive social field. This
theory, developed by Bourdieu, describes ‘the juridical field’ as ‘the site of a
competition for monopoly of the right to determine the law’.16 In other words, it
demonstrates the tension between those who engage in the formal processes of
creating and enforcing law, particularly in the courts, and ordinary citizens to whom
the law is meant to apply. Ordinary citizens must try to use the law to their benefit
despite not knowing what those on the inside of its institutions know.17 Bourdieu
observes the ways in which the law is shrouded in a mystique that makes it seem
independent, impartial, ordered and just. This makes it difficult for people with mere
‘naïve intuitions of fairness’ to challenge it.18 He also observes how this mystique
enables powerful insiders to define the law and hence to make authoritative
95
judgments of the social world – often even dictating social values and how people
perceive themselves – based on the law.19
Viewing the law in terms of this theory demonstrates the tremendous significance
of the question whether customary law is or is not‘law’ in an institutionalised sense.
The reason for this is that if customary law is not law, it (and its often poor observers)
is relegated to the realm of ‘naïve intuitions of fairness’. Customary law then holds
little sway over a form of law (mostly dominated by the powerful) that defines much
of how we perceive goodness and justice.
Initially established in response to legal centralism, legal pluralism seeks to

decentralise state law and draw attention to and understand the multiple legal
systems that exist officially and unofficially within a single legal order. Griffiths
explains the notion of legal pluralism as follows: ‘Legal pluralism is the fact. Legal
centralism is a myth, an ideal, a claim, an illusion.’20
Legal pluralism is associated with ‘a multicultural society in which various legal
systems are observed [….]. It exists as a result of the prevailing
cultural pluralism.’21 Thus, in any one given country, customary legal systems may
coexist with common and religious systems of law such as Hindu law, Islamic law
and Jewish law. Other authors have described legal pluralism as ‘the condition in
which a population observes more than one body of law.’22
Thus, descriptively, legal pluralism refers to two or more legal systems or
normative orders that may or may not be recognised as strictly legal systems but that
nevertheless coexist.23 The key is that they should have sufficient authority to direct
people’s behaviour and make them feel that they ‘ought to do something’ in
accordance with established norms whether explicit or not. The literature identifies
two prominent concepts of legal pluralism. These are weak legal pluralism and
strong legal pluralism. We discuss these concepts in turn below.
State legal pluralism is the weak form of legal pluralism. It refers to the recognition
and regulation by the state of a plurality of legal orders or systems. Hence, it sees
the plurality as being internal to a unitary state system. Non-state systems are
therefore not ‘law’ even if they are normative in terms of their practical effect. This
96
form of legal pluralism does little to disturb state centralism because it still centralises
the role of the state in legitimising law.
In South Africa, state legal pluralism is said to consist of a Western component
comprising the common law, legislation and judicial precedent on the one hand, and
an African component comprising customary law and religious forms of law on the
other. According to van Niekerk, this ‘developed within the framework of the Roman-
Dutch/English common law.’24 The African component is further broken down into
official customary law in the form of legislation or pronounced in judicial decisions. It
also includes ‘a body of substantive customary law which has not been explicitly
included in legislation or confirmed by the courts.’25 Furthermore, according to van
Niekerk, in terms of section 211(3) of the Constitution and section 1(1) of the Law of
Evidence Amendment Act,26 this body of substantive law ‘would include all
customary law which is readily ascertainable with sufficient certainty (in authoritative
texts), not opposed to the Western perceptions of natural justice and public policy
and not in conflict with the Constitution. Its application is subject to legislation which
deals with customary law.’27 The interesting question is what is the status of living
customary law in the context of legal pluralism?
COUNTER
POINT
Is living customary law part of state legal pluralism or not?

Interestingly, Van Niekerk does not seem to include living customary law in her
conception of state legal pluralism. It is arguable that in one sense she is correct
because although this system of law is a formal source of South African law, it does
not originate from the state, but from the people whose customary law is
under consideration.28 In another sense, she is wrong to omit living customary law
from state legal pluralism because this system of law owes its recognition as part of
South African official law to the state through the pronouncements of the
Constitutional Court.29
A discussion of state legal pluralism in South Africa would be incomplete without

mentioning two issues. The first issue concerns the management of state legal
pluralism. This answers the question of how the determination is made concerning
which of the various components of the state’s normative system is to be applied in
97
any single case. The relevant mechanism is the use of conflict of law rules. These
rules determine whether customary or common law applies to specific circumstances
or a specific case before the court.30
The second issue is the role of the repugnancy clause in the recognition of
customary law. Van Niekerk seems to attach importance to the repugnancy clause in
the recognition of customary law as part of state legal pluralism. However, it must be
observed that assigning this role to the repugnancy clause is questionable31 in the
light of the Constitution as the ultimate test for recognition of the validity of the laws
comprising the South African legal system.32
Deep legal pluralism is the strong form of legal pluralism as it recognises that
multiple normative orders may coexist even without belonging to a single, unified
state system or emanating from the same source of authority.33 Therefore, it grants
that competing and/or contradictory norms may exist and exert some authority on
people’s social lives. In fact, it often occurs that the state plays a subordinate role to
the regulation exercised by an informal authority. This form of legal pluralism is
critical of legal centralism as it challenges the idea that the state is at all involved in
the making of normatively authoritative rules.
Falk Moore, an anthropologist, coined the term ‘semi-autonomous social fields’ to
describe a strong legal pluralism as she saw it in an empirical study.34 In her
description, state and sectoral norms both have an influence on the way in which
individuals regulate their conduct – there are other agencies and modes of inducing
compliance. She emphasises law-in-society as opposed to law-and-society.
Malinowski, the father of modern-day legal anthropology, argues that to understand
law-in-society, we must not artificially isolate law as the element of study:
An ethnographer who sets out to study only religion, or only

technology, or only social organization cuts out an artificial field for
inquiry, and he will be seriously handicapped in his work.35
Malinowski says that we should rather ‘analyse all the rules conceived and acted
upon as binding obligations, to find out the nature of the binding forces, and to
classify the rules according to the manner in which they are made valid’.36 Many
legal pluralists have returned to this methodology in their scholarship. Falk Moore,
98
likewise, augments the approach by saying that ‘the small field observable [should
be] studied in terms of its semi-autonomy – the fact that it can generate rules and
customs and symbols internally, but that it is also vulnerable to rules and decisions
and other forces emanating from the larger world by which it is surrounded’.37
In brief, in a legal order such as that in South Africa, there are multiple sources of
normative authority apart from the state. The Constitution recognises many sources
of law: common law, customary law, religion/belief, legislation and
international law.38 It also provides for the development of norms by the communities
that seek to perpetuate themselves as identity-based groups.39 It provides legislative
support to enable the creation and observance of constitutionally compliant
‘alternative’ laws.40
It would seem that the Constitution adopts a mostly positivist approach, setting
itself up as the rule of recognition and the main sources of law as legislation
and precedent.41 However, in keeping with weak legal pluralism, it clearly recognises
alternative sources of law on condition that they conform to the state’s sources
of law.42 Hence, even living customary law is a legitimately recognised form
of law.43 Likewise, the Constitutional Court has repeatedly observed the dissonance,
originally described by Ehrlich, between the living law and the law-in-the-books.44
Nevertheless, while weak legal pluralism is the formal rule, the empirical reality is
more akin to strong legal pluralism. In other words, the state’s laws are just another
source of law among a plethora of semi-autonomous socio-legal fields that exert
some normative authority on each individual. Thus, sometimes people act in a
manner according to the pressure exerted by state law while at other times the social
and coercive pressure exerted by non-state authorities is greater. Some of the
following chapters in this book will therefore juxtapose these different forms of law,
namely state law and living customary law, and the tensions that exist between them
in practice.
•There are both jurisprudential and socio-legal theories of law that provide a valuable
theoretical basis for understanding customary law both as a concept of law and as
a source of South African law. Jurisprudential theories of law tend to prioritise
legal sources, institutions and officials as determinants of what ‘is’ law. By
99
contrast, socio-legal theories tend to view ‘legal order’ in relation to social forces
and therefore focus on what ordinary people do as both adherents and non-
adherents of law.
•The main jurisprudential theories of law in South Africa are legal positivism and
state centralism. Legal positivism is premised on the idea that law can be
discerned from observable and quantifiable phenomena and can therefore be
determined from tangible sources that can be verified scientifically or logically.
Centralism requires that for laws to be regarded as legitimate, the state through its
machinery makes, recognises or enforces laws uniformly.
•In South Africa, it is the fact that laws have been enacted by the legislature or
articulated by the courts thus establishing precedent, in line with the Constitution,
that makes them laws. This is so regardless of whether the public accepts the
rules themselves or the rule of recognition. Furthermore, customary law is a
legitimate form of law from a formal point of view only due to its recognition in the
Constitution (the rule of recognition). This is an expression of both positivism and
centralism.
•A clear expression of this positivism in South African law is seen in the fact that the
rule of law, and legality as a key part thereof, is the founding principle in our law.
The challenge this presents is that when these requirements are applied to
customary law, much of customary law (particularly the living version) would not
comply and would therefore not be considered to be law.
•Among the critiques of jurisprudential theories is that they tend to universalise
Western law and assume an evolutionary tone of Western substitution.
•There are many socio-legal theories of law. One worth noting is the notion of ‘living
law’ coined by Ehrlich. He writes about the common law in the eighteenth century
in the same terms which we may use to describe living customary law in South
Africa today. Ehrlich theorises that positive legal propositions cannot capture all of
the common law. This is especially so because as soon as the living or common
law is codified, people’s practice of it continues to evolve and it thus again varies
from the written law. Another theory to note is that developed by Bourdieu of law
as a competitive social field: it demonstrates the tension between those who
engage in the formal processes of creating and enforcing law, particularly in the
courts, and ordinary citizens to whom the law is meant to apply. This highlights the
practical significance of recognising customary law as ‘law’ or not.
100
•The key socio-legal theory of law to note is legal pluralism which refers to two or
more legal systems or normative orders that may or may not be recognised as
legal systems and that coexist and compete for definitive power over the subjects’
lives and influence each other in the process.
•State legal pluralism is the weak form of legal pluralism, referring to the recognition
and regulation by the state of a plurality of legal systems. Deep legal pluralism is
the strong form of legal pluralism as it recognises that multiple normative orders
may coexist even without belonging to a single, unified state system or emanating
from the same source of authority.
•‘Semi-autonomous social fields’ is the term coined by Falk Moore to describe strong
legal pluralism in terms of ‘the fact that [a semi-autonomous social field] can
generate rules and customs and symbols internally, but that it is also vulnerable to
rules and decisions and other forces emanating from the larger world by which it is
surrounded’.
1Roth, G and Wittich, C (eds) (1978) Economy and Society: An Outline of

Interpretive Sociology 311.
2Cowan, JK, Dembour, MB and Wilson, RA (2001) Culture and Rights:
Anthropological Perspectives 22 fn 7: ‘Legal positivism sees law as a “given”,
made up of data – or rules – which can be recognized and analyzed according
to certain observational tests.’
3Hart, HLA (2012) The Concept of Law.
4Galligan, DJ (2007) Law in Modern Society 84–5.
5Galligan (2007) 85.
6MacCormick, N ‘Law, morality and positivism’ in MacCormick, N and Weinberger, O
(1986) An Institutional Theory of Law: New Approaches to Legal
Positivism 128–9.
7Galligan (2007) 86–8.
8Ss 1(c) and 2 of the Constitution.
9In simple terms, the right of review of the courts gives the courts the power to
review or scrutinise the exercise of power by public officials. The aim is to
ensure that such exercise of power is rational or justifiable according to the
purpose for which the power was conferred on the office concerned. For
101
example, if an employee of the government is given the power to appoint
ambassadors to represent South Africa in foreign countries, the courts have
the right to review the exercise of this power by the official concerned to ensure
that he or she does not misuse the power for his or her personal benefit.
10Affordable Medicines Trust v Minister of Health (CCT27/04) [2005] ZACC 3; 2006
(3) SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) paras 48–9.
11Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte
President of the Republic of South Africa (CCT31/99) [2000] ZACC 1; 2000 (2)
SA 674; 2000 (3) BCLR 241 (25 February 2000) paras 17, 19–20 and
50; Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12)
BCLR 1458 (14 October 1998) para 58.
12See Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580
(CC); 2005 (1) BCLR 1 (CC) (15 October 2004); Gumede v President of the
Republic of South Africa (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243
(CC); 2009 (3) SA 152 (CC) (8 December 2008); Shilubana v Nwamitwa (CCT
03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June
2008). For further discussion, see ch 2 of this book.
13Griffiths, J (1986) What is legal pluralism? Journal of Legal Pluralism and
Unofficial Law 24:1–55 at 3.
14Ehrlich, E, Pound, R and Ziegert, KA (2002) Fundamental Principles of the
Sociology of Law 488.
15Ehrlich et al (2002) 493–5, 504.
16Bourdieu, P (1987) The force of law: Toward a sociology of the juridical
field Hastings Law Journal 38(5):805–53 at 817.
17Bourdieu (1987) 817, 820–1, 828–9, 831–2, 841–50.
18Bourdieu (1987) 817–8, 852.
19Bourdieu (1987) 816–8, 837–53.
20Griffiths (1986) 4.
21Van Niekerk, GJ ‘Legal pluralism’ in Rautenbach, C, Bekker, JC and Goolam, NMI
(eds) (2010) Introduction to Legal Pluralism 3rd ed 3.
22Woodman, GR ‘The idea of legal pluralism’ in Duepret, B, Berger, M and Al-
Zwaini, L (1999) Legal Pluralism in the Arab World 3.
23Van Niekerk (2010) 3.
102
26Act 45 of 1988.
27Van Niekerk (2010) 9–10.
28See ch 2 of this book.
29See, for example, Bhe, Gumede and Shilubana.
30But see Himonga, C (2010) State and individual perspectives of a mixed legal
system in southern African contexts with special reference to personal
law Tulane European and Civil Law Forum 25:23–36, where she shows that
the perspective of the actors in respect of the management of legal pluralism is
different from that of the state. See also ch 5 of this book.
31See, for example, Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA
218 (C); 2003 (7) BCLR 743 (C) (4 March 2003).
32See s 2 of the Constitution which declares the Constitution to be the supreme law
of the land.
33Van Niekerk (2010) 4, 11.
34Falk Moore, S (1973) Law and social change: The semi-autonomous social field
as an appropriate subject of study Law and Society Review7(4):719–46.
35Malinowski, B (1926) Crime and Custom in Savage Society 12.
36Malinowski (1926) 23.
37Falk Moore (1973) 720. For a discussion of examples of what comprises deep
legal pluralism in South Africa, see Van Niekerk (2010) 11–13.
38Ss 8, 9, 31, 39 and 211 of the Constitution.
39Ss 18 and 31 of the Constitution.
40Ss 15, 211, 212(1) and 235 of the Constitution.
41S 211(3) of the Constitution.
43See Bhe, Gumede and Shilubana.
44See Bhe, Gumede and Shilubana.
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Chapter 4
Ascertainment and proof of customary law

4.1 Introduction
in the courts
4.2.1The position before the Law of Evidence Amendment Act 45 of 1988
4.2.2The position under the LEAA
4.2.3The position under the Constitution
4.2.3.1The recognition role
4.2.3.2The application role
4.2.3.3The alignment role
4.2.3.4The ascertainment role
4.1Introduction
Terminology
inkundla or lekgotla the customary law forum for the trial of cases and resolution of disputes
Ascertainment and proof of a legal rule refer to the manner in which that rule is
identified as applicable to an issue in a judicial proceeding. The manner in which
rules are ascertained differs from one legal tradition to another depending on
whether we are concerned with an oral or a written tradition.
On the one hand, the common law of South Africa is a written tradition in which
specialised legal professionals ascertain legal rules from written sources. These
professionals know the law from their training and accumulate experience in the
practice of finding legal rules from written records.
104
On the other hand, the living customary legal system of South Africa is an oral
tradition that survives in unwritten narratives. In its pristine condition, people applied
it in its environment as part of their cultural upbringing and ascertained legal rules
with reference to their own oral sources. Indigenous communities themselves, using
their own expertise, theorised about, practised and administered customary law.1 In
this environment, the customary normative value system applied within its own frame
of reference in conformity with the African social habitat. Customary law’s qualities of
flexibility and capacity for change as well as local particularity2 arose from the
community’s participation in social interactions. As a result of customary law’s
association with evolving social practice, it developed its qualities of flexibility and
adaptability. Its relationship with participating communities gave customary law its
local uniqueness by bearing the features of those communities.
African customary law is a product of social discourse generated by indigenous
communities in South Africa. This makes it different from other legal systems, such
as Roman-Dutch law and English law, which are produced by institutions of
civil authority.3Hence, cultural outsiders who were brought up in a system of law that
excluded social participation in law making struggled to understand customary law.
Social practice within the circle of the system’s adherents facilitated the
ascertainability of customary law. People thus obtained their expertise in
ascertaining the rules of customary law as a result of their upbringing in its cultural
and social habitat.
This is significant for the purposes of legal ascertainment in view of the fact that
community participation meant that a litigant’s trial was conducted by his or her
peers. Consequently, there was no cultural gap between the parties to the dispute
and the court. There was also nothing that required the participants to prove the law
or custom relied on in each and every case.4
Customary law is found in sources such as the language, rituals, history, folktales
and story-telling as well as current issues that are prevalent in oral communications
and the ‘media’. In the normal course of events, participants in the culture have
natural access to these sources and have no difficulty in interpreting them. This is
exemplified in the pre-colonial twin’s case discussed below.
PAUSE FOR
REFLECTION
105
Ascertainment of customary law in a traditional context: the twin’s case
Mqhayi reveals how a sage centenarian, Khulile Majeke, a member of the
community, used his vast experience to help the inkundla or lekgotlaof King Hintsa of
the amaXhosa nation to ascertain the intricacies of the primogeniture rule in a rare
succession dispute between twins.5 Khulile Majeke was more than 110
years old,6 having matured in the practices of the lore and customs of the community
before whom he testified. In his narrative he referred to a precedent in which a
succession dispute that preceded the accession of one of their ancient kings to the
throne was resolved. The disputants were twin brothers who later decided to settle
the matter through negotiation involving a mock sale in which the first-born twin
traded his status for an agreed material item.
The centenarian noted that the peers of the present twins also once attempted to
resolve the dispute at hand by negotiation during their boyhood days when they
cajoled the twins into a similar mock sale in which the last-born traded his material
wealth for seniority. In his recommendations, Khulile Majeke endorsed the peers’
efforts to ascertain the primogeniture rule in the context of the qualities of
competence and performance which played a more vital role in the selection process
of the heir than the mere fact of being born first.7
However, colonisation changed the situation dramatically8 by placing the

administration of customary law in the hands of officials who were trained in the
Western concept of law only. As these officials were not versed in the African
tradition, they struggled to conceptualise customary law and the nuances of African
culture. Consequently, the extracultural pedigree of their training prevented them
from catching up with the ever-changing dynamics of customary law.
The outsider status of lawyers, magistrates and judges imposed language and
cultural limitations on them that inhibited their access to the oral sources of
customary law. Their alienation was aggravated by the policy of racial segregation
which prevented cultural and social integration. Hence, the colonial, Union and
apartheid authorities imposed the common law legal tradition of relying on written
records as a norm for customary law as well. To enforce the reliance on written
records, section 1(1) of the Law of Evidence Amendment Act (LEAA) 9 prescribes
that ‘[a]ny court may take judicial notice of … indigenous law in so far as such
law can be ascertained readily and with sufficient certainty’ (own emphasis).
106
Consequently, statutes, precedents and textbooks that were unknown to an oral
tradition became authoritative and ascertainable sources.10 As Dlamini puts it,
‘customary law … ceased to be indigenously developed’.11
In addition, codification brought about unforeseen consequences. Because the
written sources were not part of the social practices of the indigenous communities,
these sources soon revealed uncustomary characteristics. They tended to become
fossilised in the books on library bookshelves. The ensuing rigidity exposed the
written sources as questionable reflectors of the current social practices of the
communities. In their outdated and distorted form, the written records of customary
law became constant reminders that Africans had lost the opportunity to determine
their own legal culture.
All these shortcomings did not discourage the colonial, Union and
apartheid authorities12 from entrusting Western-trained practitioners with the
administration of customary law. Yet this exacerbated the dependence on written
records and generated the need to call for evidence to ascertain the law during
judicial proceedings. This led the state to develop legislative and other means of
solving the ensuing challenges.
COUNTER
POINT
Adjudication officer: appointment of local community members

African people knew customary law as part of their cultural upbringing and it was
prevalent in the language of their social discourse. A better option for the colonial,
Union and apartheid authorities than the appointment of Western-trained
practitioners would have been to appoint judicial officers from the community of the
adherents of customary law to apply their law. However, the need to ascertain and
prove customary law arose from the fact that the administration of the courts was
part of the colonial, Union and apartheid governments whose policies were based on
African disenfranchisement. Africans could therefore not be appointed to judicial
positions superior to the position of presiding officers at the chiefs’ courts that were
instituted pursuant to the policy of indirect rule.
Even under South African democracy, ethnicity is not a criterion for judicial
appointment. All judicial officers and lawyers practising in the South African courts,
regardless of their cultural background, are enjoined by section 211(3) of the
107
Constitution to apply customary law when it is applicable. It is therefore imperative
for all lawyers to study customary law and its traditions in the same way in which
they must acquaint themselves with the common law.
in the courts
4.2.1 The position before the Law of Evidence Amendment Act 45 of 1988
Terminology
lobolo or bogadi the African socio-legal practice in terms of which marriages are negotiated and
marriage goods are delivered
Legislation had to be enacted to facilitate the ascertainment of the applicable

customary law when disputes arose before the courts. An example of the earliest
provisions to help the courts to cope with this difficult task was Proclamation 140 of
1885 that was issued for one of the Transkeian territories.13
In keeping with the policy of non-recognition of customary law, section 22 of the
Proclamation contained the repugnancy clause. This clause allowed the courts to
restrict the application of customary law to those rules that they deemed were not
opposed to the principles of public policy and natural justice.
In terms of the repugnancy clause, the version of customary law put forward by a
party to litigation had to be in line with the common law standards of justice and
morality otherwise this party had failed to ascertain the applicable custom. In this
regard, Allott has the following to say with reference to Anglophone Africa:
Undoubtedly, the justice and morality to be applied in this task were

British justice and morality; but the British judges and administrators
showed themselves more sensitive to local ideas of justice than was
the case with the South African administrations …14
The repugnancy clause soon became so resilient that it was retained when
Proclamation 140 of 1885 was later superseded by section 104(10) of Proclamation
(Cape) 145 of 1923.15 Meanwhile, various versions of the repugnancy clause had
108
also appeared in the different areas known as Natal, the Transvaal and the Orange
Free State that had autonomous administrations prior to 1910.16
The formation of the Union of South Africa in 1910 paved the way for the
enactment of the Black Administration Act (BAA)17 in 1927 which superseded all the
laws regulating the ascertainment of customary law. Section 11(1) of the BAA served
three main purposes:18
•First, it gave discretion to the Commissioners’ Courts to apply customary law in all
proceedings between black people.
•Second, it subjected such application to the repugnancy clause.
•Finally, the ascertainment and application of customary law became uniform
throughout the Union of South Africa. However, the courts’ interpretation of section
11(1) continued to reflect the position taken by the different territories before
the Union.19
A completely new addition to the repugnancy clause was the exemption of the
custom of lobolo or bogadi. The courts were consequently not allowed to return a
verdict that this custom was repugnant to public policy and natural justice.
In terms of the policy of non-recognition of customary law during this period, any
customary law rule was regarded as a fact and litigants were required to prove such
rules according to the criteria contained in section 11(1) of the BAA. In this way, this
subsection made the application of customary law a cumbersome and expensive
exercise.
The BAA, however, endeavoured to resolve the matter of the ascertainment of
customary law through the statutory framework provided in section 23(10)(a)–(e),
read with regulation 2 of the Regulations for the Administration and Distribution of
the Estates of Deceased Blacks. This framework regulated the administration of
estates of black people and was reinforced by section 1(4)(b) of the Intestate
Succession Act20 which separated the administration of these estates from those of
other races in South Africa.
To ascertain customary law when administering the estates of black people, this
framework constituted the authoritative written records to be used by the officials.
Once they had established that the estate fell under section 23(10) of the BAA,
section 1(4)(b) of the Intestate Succession Act disqualified it from being administered
109
under the Intestate Succession Act which catered for everyone except
black people.21
4.2.2 The position under the LEAA
The Hoexter Commission of Inquiry into the Structure and Functioning of the Courts
to investigate the condition of customary law and its institutions in South Africa
submitted its report in 1983.22 The Commission found that the blacks-only
Commissioners’ Courts discriminated between litigants on the ground of race and
dispensed inferior justice to blacks. It concluded on this basis that these blacks-only
Commissioners’ Courts were repugnant institutions which needed to
be abolished.23 When the legislature implemented the recommendations of the
Commission, it enacted the LEAA. Section 1(1) of this Act reads:
Any court may take judicial notice of the law of a foreign state and of
indigenous law in so far as such law can be ascertained readily and
with sufficient certainty: Provided that indigenous law shall not be
opposed to the principles of public policy and natural justice:
Provided further that it shall not be lawful for any court to declare that
the custom of lobola or bogadi or other similar custom is repugnant to
such principles …
This section superseded section 11(1) of the BAA by amending the method for
ascertaining and proving customary law in an effort to improve the impact of the law
on litigants. Section 1(1) of the LEAA introduced the following new features that had
an impact on the ascertainment of customary law:
•While all the courts of South Africa were to apply customary law because the
special Commissioners’ Courts had been abolished, the application remained
subject to the courts’ discretion.24
•All the courts applying customary law were given the discretion to take judicial
notice thereof. It was therefore no longer necessary for the litigants to prove each
and every rule or custom that they alleged on the assumption that official
customary law was extensively recorded in legislation and other precedents. On
this basis, judicial notice was restricted only to the extent that customary law could
be ascertained readily and with sufficient certainty. This means that only the
customary law that was recorded in written form such as statutes, cases and
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textbooks was exempted from the necessity to be proved. On this basis, the
overuse of section 1(1) of the LEAA impeded the growth of customary law and
continued to have the effect of fossilising it.
•Section 1(2) of the LEAA allowed the courts to continue proving unwritten
customary law by oral evidence since it was not readily ascertainable with
reasonable certainty.
•For the purposes of ascertainment, section 1(1) of the LEAA equated customary law
with foreign law in South Africa. This section reads, ‘any court may take judicial
notice of the law of a foreign state and of indigenous law’, thus treating the two as
systems that needed to be viewed at the same level of recognition. First, the
courts needed to take judicial notice of both these systems. Second, both these
systems needed to be equally ‘ascertained readily and with sufficient certainty’
before they could be accepted. In other words, as late as 1988 the legislature was
still convinced that customary law was not equal to the common law, but was
subordinate to it.
•The repugnancy clause was retained. This meant that customary law still had to
comply with the common law standards of public policy and natural justice to be
valid.
•The exemption from the application of the repugnancy clause granted to the
custom of lobolo or bogadi was retained. No court was allowed to hold that this
custom was contrary to the principles of public policy or natural justice.
COUNTER
POINT
The application of customary law under the LEAA: mandatory versus

discretionary debate
In the case of Thibela v Minister van Wet en Orde,25 the Court interpreted the
wording of the phrase ‘any court may take judicial notice of … indigenous law’ in
section 1(1) of the LEAA as a mandatory provision that demanded the application of
customary law by the courts. This question had arisen in the context of an enquiry
into the validity of a customary marriage where the widow was claiming damages
after her husband was allegedly unlawfully killed by the police. The widow averred
that at the time of her marriage, her deceased husband had arranged with her and
111
her family in terms of customary law to be the father of her child by a previous
relationship.
In terms of this custom, the deceased undertook all the responsibilities of a father.
The child then became entitled to maintenance by the deceased as its lawful father.
The widow thus claimed that the child had suffered loss of maintenance and prayed
that this fact had to be factored into whatever damages the Court would award to
her. The Court upheld this application, declared the customary marriage valid and
that the child was entitled to maintenance as the child of the deceased by African
custom.
The Court treated the matter of the validity of the customary marriage as an
ascertainment issue as it delved into the constituent elements that constitute such a
marriage. The proof of the validity of the customary marriage in turn led to a
recognition issue as the Court recognised the husband’s customary law liability to
maintain his step-child in terms of African custom.
Kerr26 and Bennett27 have criticised this case and are of the view that the
application of customary law in terms of section 1(1) of the LEAA is permissive rather
than mandatory, and that it is the taking of judicial notice that seems to
be mandatory.28
Similarly, the view we take in this chapter is that no part of this section is
mandatory as it is clearly couched in permissive language in its entirety. It is difficult
to see how section 1(1) of the LEAA or any part thereof can be seen as mandatory.
The section reads ‘any court may take judicial notice of … indigenous law’ which is
permissive language. Moreover, it is consistent with the historical position of
customary law under the colonial, Union and apartheid administrations to regard its
application as merely permissive. Section 11(1) of the BAA, which was the
predecessor of this section, clearly provided:
… it shall be in the discretion of the courts of native commissioners in

all suits or proceedings between natives involving questions of
customs followed by natives, to decide such questions according to
native law applying to such customs (own emphasis).
This discretion was authoritatively laid down in Ex parte Minister of Native Affairs: In
re Yako v Beyi where Schreiner JA held:
112
… on a true construction [of section 11] the native commissioner is to
apply Common Law unless he thinks that native law is more
calculated to do justice.29
The use of ‘may’ in section 1(1) of the LEAA was clearly informed by this history of
applying customary law as a matter of discretion and we cannot properly assume
that it has mandatory implications.
Section 1(1) of the LEAA served a number of transformative purposes. First, it

endeavoured to facilitate the proof of customary law by relieving the courts of the
burden of proving customary law in each and every case.30 Second, and more
importantly, by allowing the courts to take judicial notice of customary law, the
section sought to save the litigants from the expense of having to bring witnesses to
give evidence to ascertain customary law that was already ascertainable from the
records such as legislation, court judgments and textbooks. Indeed, taking judicial
notice of recorded customary law was a way of equating its ascertainability with that
of the common law which needed no further proof.
However, the legislature was aware that most customary law was still unwritten
and was not readily ascertainable with sufficient certainty. Hence, section 1(2) of the
LEAA provides for the ascertainment and proof of the unwritten customary law by
way of evidence.31 Section 1(2) reads:
The provisions of subsection (1) shall not preclude any party from
adducing evidence of the substance of a legal rule contemplated in
that subsection which is in issue at the proceedings concerned.
Thus, section 1(1) of the LEAA does not limit the courts to the application of written
records of customary law, but also allows them to receive oral evidence to prove its
unwritten version. Needless to say, this approach fosters the development of living
customary law.
Long before 1988 the courts had accepted the tradition that customary law was
recorded in precedents and tended to take judicial notice of it in many cases. The
statutory requirement that the courts may take judicial notice of customary law was
simply recognition of this practice. However, there remained those cases where the
113
courts still had to hear evidence because the issues raised had not yet been
captured in precedents as customary law had never at any time been fully recorded.
Section 1(2) of the LEAA that regulated the calling of oral evidence for the
ascertainment of living customary law was the statutory recognition of this fact. In
practice, however, judges had often expressed frustration at having to apply living
customary law that was not readily ascertainable. An example of this is a succession
dispute where Davis J expressed his frustration as follows:
This question now … involves native law and custom of which without
evidence [the court] necessarily knows nothing, it seems manifest
that it cannot [decide it]. Evidence must be led, for instance, as to
exactly of what the Qaukeni Estate consists and what are the rights of
the Chief in relation thereto, of how native law and custom binds it to
the Chieftainship, whether there can be more than one Chief, what
precisely is meant by the ‘Great House’, and so on (own emphasis).32
This extract represents the level of ascertainment of customary law in the Union
courts where the judges made no secret of their ignorance of the system. Davis J
illustrated this aptly when he confessed that when it came to matters of customary
law, the court necessarily knew nothing. It could consequently not decide the matter
without hearing evidence on such matters as the royal estate, the rights of the king
pertaining thereto, the number of royal incumbents that can occupy a kingship
position at a time and the very concept of the Great House.
On appeal in the same matter, Watermeyer CJ amplified Davis J’s sentiments
regarding the difficulties of the ascertainment of customary law in the Union courts in
the following terms:
… this Court is faced with a difficult problem. Pondo law and custom
is a body of unwritten law save for certain decisions of the Native
Appeal Court and statements as to Native Law and Custom made by
native assessors which are recorded in the reports of the Native
Appeal Court, and save for certain passages in books dealing with
native custom. But even such records as there are are little more than
records of traditions, records of what someone at some time said the
custom was. In the reported cases the recorded opinions of assessors
114
naturally harden into law, and certain books are to some extent
accepted as accurately stating what native custom is. But apart from
making what use is possible of these scanty records, the only way in
which the Court can determine a disputed point, which has to be
decided according to native custom, is to hear evidence as to that
custom from those best qualified to give it and to decide the dispute
in accordance with such evidence as appears in the circumstances to
be most probably correct.33
As the above extract demonstrates, the learned Chief Justice took great pains to
emphasise the absence of records in customary law as the reason for the
indispensability of the need to hear evidence to prove it. These two dictums put
beyond doubt that written records were generally regarded as the most credible
sources for ascertaining customary law and that the hearing of evidence was a last
resort. This approach also gives credence to the view that the rule directing the
courts to take judicial notice of recorded customary law originated from
judicial practice.34
Thus, section 1(1) of the LEAA was a prominent aid in ascertainment proceedings
because it permitted the courts to take judicial notice of customary law where it had
been captured in written records and was readily ascertainable with
sufficient certainty.35 Courts were therefore relieved of the burden of proving
customary law in each case.36 However, not all customary law was captured in
written records so as to be readily ascertainable. Hence, section 1(2) of the LEAA
allowed the courts to receive evidence of the substance of oral rules adduced during
legal proceedings. This subsection therefore played a vital role in ensuring the
continued relevance of living customary law.
The Hoexter Commission recommended the continued existence of the courts of
traditional leaders after 1988 while recognising their imperfections in a number
of respects.37 Such courts represented a measure of accommodation for African
culture and were popular among the majority of the blacks.38 This recommendation
played a reconciliatory role by seeking to preserve the existence of courts in which
unwritten customary law was readily ascertainable. These courts did not require
litigants to produce written records to ascertain customary law during proceedings in
115
contrast with the Western-style courts which depended on such written records for
ascertainment.
4.2.3 The position under the Constitution
The broad question of ascertainment versus internal conflict between the common
law and customary law remains valid in the post-apartheid era. The ascertainment of
a legal system relates to the determination of the conditions in which its rules can be
identified and applied in legal proceedings. Ascertainment therefore relates to the
resolution of the question whether the official or living version of a rule is applicable
in a particular case.39 It may also relate to whether an old or new rule is applicable.40
The internal conflict between the common law and customary law also relates to
which of the possible legal rules or systems linked to the history of non-recognition of
customary law is applicable. This was the issue in Yako v Beyi where the Court
decided that, in general, the common law as the law of the land is applicable to all
matters, and that in special circumstances, customary law may be applied in the
interests of justice.41
Section 211(3) of the Constitution plays multiple roles in judicial proceedings. The
common understanding seems to be that the section plays three roles, namely
recognition, application and the alignment of customary law with the Constitution and
any legislation specifically dealing with customary law. As a whole, section 211(3)
reads:
The courts must apply customary law when that law is applicable,
subject to the Constitution and any legislation that specifically deals
with customary law.
However, we submit that this section also plays a role in the ascertainment of
customary law. As the subject of this chapter is ascertainment, we discuss the
commonly understood roles of the section in brief before we discuss its
ascertainment role in detail.
4.2.3.1 The recognition role
With regard to the recognition role, section 211(3) enjoins the courts, in imperative
terms, to apply customary law, thus making it a recognition clause. By so doing,
the Constitution ended a long period of the non-recognition of customary law during
116
which the common law was the general law of the land.42 The recognition of
customary law relates to the injunction directed at the courts that they ‘must’ apply
customary law as a matter of law as opposed to the previous situation under section
1(1) of the LEAA which merely gave the courts the discretion to apply it in the
interests of justice.
Furthermore, section 211(3) is a recognition instrument which should recognise
only the living version that is practised by the adherents of customary law, not the
official version that has been used as an instrument of state oppression. This view is
bolstered by sections 30 and 31 of the Constitution which simultaneously recognise
culture. The imperative to apply living customary law is, in fact, a mandate to uphold
living customary law’s own value system in its cultural context.
4.2.3.2 The application role
Section 211(3) functions as an application clause. This is implied in the wording

‘when that law is applicable’. This may relate to a possible conflict situation where a
choice has to be made between the common law (or other recognised system of law)
and customary law as the applicable system. We discuss this function of the
subsection more fully in chapter 5.
4.2.3.3 The alignment role
Section 211(3) functions to align customary law with the Constitution and legislation
that deals with it. With regard to alignment with the Constitution, customary law is
subject to the Constitution as the supreme law of the land. Most importantly, it is not
exempt from the application of the Bill of Rights.43
One of the most important issues regarding the application of the Bill of Rights is
whether the Bill of Rights applies to customary law directly or indirectly. The
Constitutional Court in Du Plessis v De Klerk explained the difference between these
two concepts as they relate to customary law.44 Sachs J stated that direct application
would entail:
a wholesale striking down of customary law because of violation of

the equality clause in Chapter 3 [the Bill of Rights]. The indirect
approach would permit courts closer to the ground to develop
customary law in an incremental, sophisticated and case-by-case way
117
so as progressively, rapidly and coherently to bring it into line with
the principles of Chapter 3.45
The alignment function of section 211(3) is not free from difficulties as shown in the
discussion below.
PAUSE FOR
REFLECTION
What does ‘subject to the Constitution and any legislation that specifically
deals with customary law’ mean?
There is the continuing ambiguity about the extent to which the Bill of Rights applies
to customary law.46 In addition, the phrase ‘subject to the Constitution’ poses
difficulties of how to balance the rights in the Bill of Rights with the right to culture
since there are no guidelines in the Constitution.
The part of the section subjecting customary law to legislation is equally difficult.
What kind of legislation is ‘legislation that specifically deals with customary law’? To
what degree must a statute deal with customary law before it qualifies to override
customary law?
We submit that only legislation that is intended to deal with customary law
comprehensively, such as legislation intended to reform this system of law, qualifies.
Examples are the Recognition of Customary Marriages Act (RCMA), 47 the Reform of
Customary Law of Succession and Regulation of Related Matters Act
(RCLSA),48 and the Traditional Leadership and Governance Framework Act
(TLGFA).49 In the event of a conflict between any rule of customary law and the
provisions of this legislation, the latter should prevail.
4.2.3.4 The ascertainment role
The view taken in this chapter is that the phrase ‘subject to the Constitution and any
legislation that specifically deals with customary law’ relates to ascertaining the
particular version of customary law to be applied. The issue of ascertainment is
called into question, first and foremost, by the mandate that courts ‘must apply
customary law’ and, second, by the proviso, ‘when that law is applicable’.
The courts must first ascertain the relevant rule, principle, concept or doctrine of
customary law before they can comply with the recognition imperative ‘must apply’.
118
Similarly, the courts can only comply with the application clause ‘when that law is
applicable’ once they have ascertained what that law is, that is, after measuring it
‘subject to the Constitution and any legislation that specifically deals with customary
law’. The ascertainment of customary law under the Constitution involves
determining the version that is recognised by the Constitution. The injunction
requiring the courts to apply customary law in section 211(3) refers to the living
version of customary law rather than the official version.50 This is a sequel to the full
constitutional recognition of customary law as a distinct legal system that now has its
own independent values and norms for the first time since colonisation in 1652.
The emphasis on recorded customary law was meant to facilitate judicial

proceedings from the point of view of the system’s Western-trained administrators
who were concerned with matters of efficiency and who were driven by
considerations of pragmatism. It was not an effort to develop customary law
according to its own values. Indeed, the recording of customary law resulted in the
development of a system of customary law which estranged the courts from the
community. It also impeded the development of the law from the date of recording so
that it could not keep pace with developments in social practice.
Moreover, the recording of customary law exacerbated the impact of the
repugnancy clause since it necessarily served to isolate and discard genuine
customary law rules that were regarded as contrary to the common law principles of
public policy and natural justice. Thus, the recorded official version of customary law
that was favoured by the courts reflected common law moral standards as opposed
to customary law normative values. This unwittingly discredited the version applied
by the courts and labelled it as not organically developed by the community. This, in
turn, negatively affected its customary credentials.51
The repugnancy clause was further debunked as generating the false
consciousness that it was promoting public policy and natural justice. When
deconstructed, the clause was exposed as a euphemism for eliminating
African culture.52 Ultimately, the weight of academic criticism dismissed the official
version of customary law as mere state culture that had nothing to do with the lived
experiences of its adherents because it was uncustomary, distorted and fossilised.53
119
The legislature was aware of these shortcomings of the official version and sought
to minimise the cultural deficiency on the bench by providing for the appointment of
assessors to fill the gap between the court and the community from which a matter
arose. It was hoped that black assessors would update the courts about the current
social practice, thus helping them to retain a modicum of legitimacy by keeping legal
practice abreast of community developments. This would, in turn, placate the
adherents of customary law.
However, the assessors did not have the desired impact. The white judicial officers
valued reference to written records that were confirmed in precedents more than the
propositions of current practice made by the assessors as they considered these
propositions to be questionable and less reliable. The taking of judicial notice of
recorded precedents proved more attractive and efficient to the judicial officers who
often considered the written texts to be more readily ascertainable than the advice of
the lay assessors.
Although the appointment of assessors shifted the costs to the state, it did not
entirely replace the need to call witnesses and was almost as cumbersome. The
assessors had to be identified and served with subpoenas notifying them about the
matter, the date and the venue, just as was the case with the witnesses.
In addition, there was also the risk of exposing the law to elitist and gendered
influence because of the tendency to focus on a pool of prominent members of the
community, such as traditional leaders, priests, teachers and policemen as
assessors, rather than ordinary people who were knowledgeable about customary
law on the one hand, and males rather than females on the other hand.
The constitutional changes from the old order to the current dispensation have
influenced the post-apartheid courts to heed academic calls to give priority to living
customary law. This was a sequel to the recognition of customary law in the interim
Constitution, particularly Principle XI of the 34 Principles annexed to that
Constitution. Principle XI committed the Constitutional Assembly ‘to protect South
Africa’s diverse cultures and to ensure application of customary law in
the courts’.54 For the purposes of the ascertainment of customary law, emphasis had
shifted from the written sources to the law that was practised by the adherents of the
system. This is reflected by the reference to culture and customary law which can
120
only relate to the living version since the interim Constitution itself represented a
triumph for cultural self-determination over cultural imperialism.
The courts have clearly taken advantage of the imperative language used in
section 211(3) of the Constitution that enjoins the courts to apply customary law
when it is applicable. The courts have added the combined effect of sections 30 and
31 of the Constitution, which respectively protect participation in and enjoyment of
culture, to reveal the centrality of the living version of customary law in the
ascertainment process.
Consequently, the Constitutional Court has acknowledged the ‘survival of an
evolving customary law’.55 The Court thus used the occasion of the certification
proceedings in ascertaining the living version of customary law as the version
recognised by the Constitution. This was simultaneously a case of recognition as
well as ascertainment. The Court demonstrated this by choosing to recognise the
‘evolving’ version of customary law. The Court also ascertained the ‘living’ version of
customary law as the version that the Constitution accepts for the new South Africa.
This symbolises a shift from the past where the courts were referred to the version
that was ‘readily ascertainable’.
According to Bennett, this was a judicial declaration that constitutional protection
was reserved for living customary law.56 This is not surprising as the South African
Law Reform Commission’s Special Project on Customary Law used living customary
law as the basis for its recommendations on the laws of marriage
and succession.57 The Constitutional Court has ultimately resolved the issue of the
version to be ascertained for application by the courts between the official version
based on the common law standards and the living version based on African values
and norms in favour of the latter. In Alexkor Ltd v Richtersveld Community, the Court
made the following dictum:
While in the past indigenous law was seen through the common law
lens, it must now be seen as an integral part of our law. Like all law it
depends for its ultimate force and validity on the Constitution. Its
validity must now be determined by reference not to common law, but
to the Constitution.58
121
The phrase ‘by reference not to common law’ depicts the Constitution as liberating
customary law from the hegemony of the repugnancy clause and freeing its own
cultural values to define its content. When the Court says that customary law ‘must
now be seen as an integral part of our law’, the Court is pointing out that it is the
living version that is constitutionally recognised as opposed to the official version
which sought to make customary law an integral part of the common law.
The Court proceeded to apply this principle by holding that customary law was the
applicable system in ascertaining the content of the community’s notion of ownership
of or interest in land. The experiences of the Richtersveld community and their
dealings regarding the land constituted a sufficient title that was distinct but
equivalent to the common law concept of ownership of land. The judgment is
authority for focusing the ascertainment of the community’s legally binding habits
regulating their affairs on their own customary law as opposed to the official
customary law of the state.
In its subsequent judgments, the Constitutional Court has since reaffirmed the
above dictum as authority for making the living version the focal point of the
ascertainment process. In Bhe v Khayelitsha Magistrate, the Court consolidated this
position as follows:
Throughout its history [customary law] has evolved and developed to

meet the changing needs of the community. And it will continue to
evolve within the context of its values and norms consistently with
the Constitution.59
The Court consciously chooses the words ‘its values and norms’60 to distinguish the
values of living customary law from the moral standards of official customary law that
are based on the common law principle of public policy and natural justice.61 This
background shows that the post-apartheid period has seen concerted judicial and
academic efforts to demonstrate customary law’s capacity to grow and develop in its
authentic form that is drawn directly from current social practice without dependence
on hegemonic legal texts.62
Mabena v Letsoalo63 is a case in point where the Court deviated from the standard
textbook approach and applied living customary law that recognises what people do
in practice. The prospective husband had negotiated the lobolo or bogadi of his
122
future wife with his prospective mother-in-law. The court accepted this gender-
neutral practice as consonant with the Bill of Rights.64 The Court can also be credited
with affirming African values where the husband can be seen as representing his
family while the mother-in-law represented her husband’s family. The two families
arrived at an agreement that was binding on them in terms of customary law.
There are inherent challenges in the process of ascertaining customary law. Some
courts have assumed that the mandate to apply customary law entails no more than
their duty to take judicial notice of the written materials and have proceeded with the
official version as usual.65 For example, in the three Mthembu cases, the customary
law of intestate succession was confined to the framework prescribed in section 23
of the BAA, read together with section 1(4)(b) of the Intestate Succession Act, and
the jurisprudence generated thereunder.
All three courts that handled the Mthembu matter neglected to ascertain whether a
non-sexist and constitutionally compliant living rule regulating the customary law of
intestate succession existed in social practice. Instead, Le Roux J, who presided in
the first court,66 relied on written materials based on academic opinion endorsing
male primogeniture as a hallowed rule that had unassailable redeeming features.
These features forced the male heir to provide shelter, sustenance and maintenance
for the widow and her children, and according to this view, could not be faulted.67
The second court’s attention was specifically drawn to the need to investigate the
living experiences of the relevant community with a view to ascertaining the binding
rules used in social practice.68 Mynardt J referred to the case of S
69
v Makwanyane where the Constitutional Court questioned the relevance of public
opinion as a factor in resolving constitutional questions.70 Mynardt J also refused to
develop the official rule of male primogeniture in line with the Constitution, rather
referring the issue to the legislature.71
The Supreme Court of Appeal (SCA) endorsed the referral of the matter to the
legislature. Mpati AJA (as he then was) believed that:
In any event, we would be ill-equipped to develop the rule for lack of

relevant information. Any development of the rule would be better left
to the Legislature after a process of full investigation and
123
consultation, such as is currently being undertaken by the
Law Commission.72
The learned Acting Judge of Appeal concluded that the practice of ascertaining
customary law through the exclusion of black women and children from benefitting
from the intestate estates of their husbands and fathers under the official version of
customary law was not ‘so grossly unjust and abhorrent, in the light of the present
constitutional order, that they could not be countenanced; nor was it an appropriate
case to entertain an invitation to develop the rule’.73
Academics criticised this conservative approach and apparent judicial reluctance
to recognise living customary law due to the culture of applying the
official version.74 Lehnert dismisses the judicial attitude revealed in
the Mthembu cases as a symptom of a failure ‘to recognise the changing socio-
economic circumstances in the communities that are living according to
customary law’.75 He also blames the failure to detect the condescending nature
inherent in the rule that subjects women to the care of a male heir on
judicial complacence.76 Lehnert rejects the ascertainment jurisprudence generated
by the Mthembu cases in the following terms:
The first major flaw of the judgments in the Mthembu cases was that
they gave no consideration to the application of living customary law
… [B]y contrast with the official customary law, in the living law the
principle of male primogeniture is, in fact, not strictly applied. As field
research into the customary law of succession in South Africa and
other southern African countries has shown, women are indeed
granted rights of inheritance. There have been many instances in
which widows have been given the right to inherit their husband’s
lands, and in which unmarried or divorced daughters of the deceased
may obtain their [fathers’] houses.77
This academic view reflects the primacy of the living law as the version that the
Constitution recognises. Hamnett endorses this view and agrees that the living law is
the focus of the ascertainment process because:
124
customary law emerges from what people do, or – more accurately –
from what people believe they ought to do, rather than from what a
class of legal specialists consider they should do or believe … [T]he
ultimate test is not ‘what does this judge say?’ but rather ‘what do the
participants in the law regard as the rights and duties that apply to
them?’.78
As Langa DCJ admitted, the greatest challenge does not lie in whether or not the
living law is the applicable version, but in how to find it.79 The learned Deputy Chief
Justice then held:
The question whether the Court was in a position to develop that rule
in a manner which would ‘promote the spirit, purport and objects of
the Bill of Rights’ evoked considerable discussion during argument. In
order to do so, the Court would first have to determine the true
content of customary law as it is today and to give effect to it in its
order. There is however insufficient evidence and material to enable
the Court to do this. The difficulty lies not so much in the acceptance
of the notion of ‘living’ customary law as distinct from ‘official’
customary law, but in determining its content and testing it, as the
Court should, against the provisions of the Bill of Rights.80
In Bhe, the Constitutional Court declared the official rule of male primogeniture that
preferred men over women for the purposes of succession and inheritance
unconstitutional. The Court’s first task then was to ascertain what the living version
of customary law was in order to replace the impugned official version. The
injunction of the Constitution to apply customary law implies trying to find the
living version.81 As illustrated in the above extract, Langa DCJ struggled to ascertain
the living customary law that would replace the invalidated official version and
conceded that this was a difficult task to undertake without further evidence to prove
it.
The learned judge ultimately decided against ascertaining the living customary law
and simply replaced the unconstitutional official version with the Intestate
Succession Act. Consequently, customary law had no further role in the matter as
125
the two Bhe daughters were appointed sole heirs to their deceased father’s estate
and received child’s portions.
In his dissenting opinion, Ngcobo J also refused to ascertain the current living
customary law of succession. The learned judge concluded, on the available
evidence, that it was possible to develop the official version of the primogeniture rule
to include women so that both sons and daughters could inherit their fathers’ estates.
The judge held that this could be done without having to ascertain the law actually
lived by the people. All that needed to be done to ascertain the applicable
primogeniture rule was to develop the existing rule which favoured only males so as
to bring it in line with the right to equality, thus curing the defect in
the system.82 Ngcobo J justified his decision as follows:
We are concerned with the development of the rule of male

primogeniture so as to bring it in line with the right to equality. We
are not concerned with the law actually lived by the people. The
problem of identifying living indigenous law therefore does not arise.
At issue here is the rule of male primogeniture which was applied in
the Bhe and Shibi matters. It is that rule which must be tested against
the right to equality, and if found deficient, as I have found, it must be
developed so as to remove such deficiency (own emphasis).83
In the Constitutional Court judgment of Shilubana v Nwamitwa, Van der Westhuizen

J endorsed Langa DCJ’s view that the true content of living customary law must
be ascertained.84 Van der Westhuizen J said that the first step is to determine the
community’s past practice. Once that has been ascertained, past practice is the
applicable customary law, subject to being constitutionally compliant and compliant
with applicable legislation. The only alternative to the community’s past practice is
the ascertainment and proof that a new legally binding social practice has emerged.
Once the court has ascertained the new practice as the applicable customary law, it
must accept it, subject, of course, to its compliance with the Constitution.
The emphasis on the practice of the community rather than the records of written
customary law is an indication of the shift in the judicial conceptualisation of the
ascertainment process. Van der Westhuizen J put the matter beyond doubt in the
following conclusion:
126
Where a norm appears from a tradition, and there is no indication that
a contemporary development had occurred or is occurring, past
practice will be sufficient to establish a rule. But where the
contemporary practice of the community suggests that change has
occurred, past practice alone is not enough and does not on its own
establish a right with certainty … Past practice will also not be
decisive where the Constitution requires the development of the
customary law in line with constitutional values.85
According to this statement,86 Shilubana has settled the ascertainment debate

between the living and the official versions of customary law in favour of the former.
Van der Westhuisen J emphasised that customary law is the practice of the
community, past and present. If past practice is proved, it must be accepted as the
community’s customary law. There are only two ways of deviating from the
community’s past practice, namely:
•proof that a new community practice has superseded the past practice, in which
case the new practice is the applicable customary law
•when past practice is developed to align customary law with constitutional values.
In the light of the Shilubana case it is now clear that the post-apartheid judicial
ascertainment of customary law has shifted from the official practice based on
written precedents and is now firmly rooted in the practices of the community. The
starting point is therefore no longer the taking of judicial notice of the written records,
which often distorted community practice,87 but social practice itself.88
The Constitutional Court has, in fact, warned against the uncritical use of codified
customary law that is found in records and precedents.89 It has embraced the flexible
and constantly adaptable living version that can never be outdated as past practices
are constantly replaced by new practices. Also, the living version comes from social
practice and is more likely to be consistent with the Constitution.
For this reason, the approach adopted in Van Breda v Jacobs90 for ascertaining
the legal validity of common law customs is not appropriate to customary law
because the common law customs must derive their existence from an unchanging
antiquity. However, customary law is inherently flexible and constantly adapts to the
changing conditions of the community.
127
The requirement of past consistent application of the rule is the test that ‘any new
development [of the ‘living’ law] must necessarily fail’ because ‘development implies
… departure from past practice’.91 Adherence to this requirement would result in the
Court applying rules which the communities no longer observe, thus stifling the
recognition of new social practices in response to the changing face of the society
under the Constitution.92
The Constitutional Court deviated from the equation made in section 1(1) of the
LEAA between customary law and foreign law. The learned judge stressed that ‘it is
also not to say that customary law must in the ordinary course be proven before a
court before it can be relied upon. The time when customary law had to be proved as
foreign law in its own land is behind us’.93 In fact, this dictum echoed Hlophe JP’s
disapproval of the treatment of customary law as foreign law in Africa.94
While the Shilubana judgment is to be hailed with respect to the tests for the
ascertainment of customary law, it created unprecedented levels of uncertainty in the
customary law of succession to traditional leadership as argued below.
COUNTER
POINT
Shilubana: uncertainty and unresolved issues

While the judgment in Shilubana provides good guidance on the ascertainment of
customary law, its impact has been to destroy certainty in the customary law of
intestate succession to traditional leadership. Prior to this judgment, the rule of living
customary law of succession, as established by both the High Court and the SCA,
clearly stated that the next traditional leader was the most senior son or male relative
of the previous leader. This was a general rule among the Africans in South Africa.
For instance, Peires has this to say in this regard:
… the heir to the chieftainship, known as the Great Son, was the son
of the Great Wife.95
In Sigcau v Sigcau,96 Prince Mandlonke Sigcau, the great son of the late King
Marelane Sigcau, succeeded his father in that position. Yet after
the Shilubana judgment this was no longer necessarily so. Van der Westhuisen J
brought an end to this certainty by recognising a traditional council’s amendment of
128
this rule and ordered the appointment of a woman as a traditional leader. In the
process, the following questions were left unanswered:
•whether the amendment was necessary since the son of the previous traditional
leader was available, ready and able to succeed his father
•what the implications of appointing a woman to such a position would be where the
woman was married to a commoner, with whom she had children, and therefore
could not produce a successor to the traditional leadership position
•the validity of the Court’s reliance on the flexibility of living customary law to provide
a future solution when the time for succeeding the woman came after such
conditions of uncertainty had been created.
Thus, the effect of the Shilubana judgment was to abolish a stable customary law
tradition that was readily ascertainable and that ensured the provision of a natural
successor to every traditional leadership position without replacing it with a credible
custom. Consequently, who the heir is in any given case is no longer readily
ascertainable from the custom itself, but is a matter to be deliberated and negotiated
at the time of the succession.97
 •As certainment and proof of customary law refer to the manner in which a
rule of customary law is identified as applicable to an issue in a judicial
proceeding. The manner in which rules are ascertained differs from one legal
tradition to another.
 •As an oral tradition that survives in unwritten narratives, living customary law
is different from other legal systems, such as the common law, in that it is
ideally ascertained and proved with reference to the oral sources of each
indigenous community. In other words, members of the community obtain
their expertise in ascertaining the rules of customary law as a result of their
upbringing in that community. In times of litigation, there is thus no cultural
gap between the parties to the dispute and the dispute forum. In essence,
everybody knows the applicable rules and, in cases of doubt, deference is
given to the elder members of the community.
 •This situation changed dramatically when colonisation placed the
administration of customary law in the hands of officials who were trained in
129
the Western concept of law only. These officials were prevented by their
different language and culture from accessing the oral sources of customary
law.
 •The main instrument devised to cure this defect was the Law of Evidence
Amendment Act 45 of 1988 although there had been earlier enactments such
as Proclamation 140 of 1885 which was later superseded by Proclamation
(Cape) 145 of 1923. All these enactments had one thing in common – the
repugnancy clause according to which customary law could not be applied
unless it was shown not to be opposed to the principles of public policy or
natural justice.
 •Section 211(3) of the Constitution plays a role in the ascertainment of
customary law in that it forms the basis for arguing that the version of
customary law recognised by the Constitution is living customary law as
opposed to official customary law. This understanding has now been
confirmed in a series of judgments of the Constitutional Court.
 •While it is now clear that official customary law has been discredited, it
remains a fact that living customary law is difficult to ascertain, in part
because of its continually evolving nature. The Shilubana case has brought
some much-needed clarity to the ascertainment of living customary law by
laying down some criteria to be observed in establishing a rule of customary
law as the one to apply in a case before the court. However, it has also
introduced uncertainty in the rules regarding succession to status of traditional
leaders.
1See Abiodun, BO (2007) Towards an African concept of law African Journal of

Legal Theory 1:71–83 at 74.
2Bennett, TW (2004) Customary Law in South Africa 44.
3See Abiodun (2007) 74.
4Dlamini, CRM (2002) The clash between customary law and universal human
rights Speculum Juris (1)1:26–46 at 40.
5See Mqhayi, SEK (1914) Ityala Lamawele 1–85.
6Mqhayi (1914) 17.
7Mqhayi (1914) 20.
130
8Dlamini (2002) 33.
9Act 45 of 1988.
10See Alexkor Ltd v Richtersveld Community (CCT19/03) [2003] ZACC 18; 2004 (5)
SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003) para 54; Bhe v
Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC);
2005 (1) BCLR 1 (CC) (15 October 2004) para 86; Shilubana v
Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA
66 (CC) (4 June 2008) para 44.
11Dlamini (2002) 32.
12Dlamini (2002) 34 writes: ‘[One] cannot ignore the effect of colonialism and
apartheid on how customary law was viewed and treated.’
13Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed.
14Allott, AN (1984) What is to be done with African customary law? The experience
of problems and reforms in Anglophone Africa from 1950 Journal of African
Law 28(1–2):56–71 at 59.
15Allott (1984) 59.
16Van Niekerk, GJ ‘Legal pluralism’ in Rautenbach, C, Bekker, JC and Goolam, NMI
(eds) (2010) Introduction to Legal Pluralism in South Africa 3 at 5 writes: ‘The
administrators of the various territories, to a greater or lesser extent, all aspired
to “civilise” the indigenous population and to oust their “barbarous” laws and
customs. Where customary law was recognised, it was subject to the strict
application of a repugnancy clause.’
17Act 38 of 1927.
18S 11(1) of the BAA reads: ‘Notwithstanding the provisions of any other law, it shall
be in the discretion of the courts of native commissioners in all suits or
proceedings between Natives involving questions of customs followed by
Natives, to decide such questions according to the native law applying to such
customs except in so far as it shall have been repealed or modified: provided
that such native law shall not be opposed to the principles of public policy or
natural justice: Provided further that it shall not be lawful for any court to
declare that the custom of lobolo or bogadi or other similar custom is repugnant
to such principles.’
19See ch 1 of this book.
20Act 81 of 1987.
131
21See Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA
867 (SCA) and Bhe.
22See Bennett (2004) 42, 141.
23See the Fifth Report of the Hoexter Commission of Inquiry into the Structure and
Functioning of the Courts, 1983. Also discussed by Bennett (2004) 141.
24See s 1(1) of the LEAA which says the courts ‘may’. Nowhere in the Act does it
state that the courts ‘must’ apply customary law.
251995 (3) SA 147 (T).
26Kerr, AJ (1996) The choice of and the application of customary law South African
Law Journal 113(3):408–10 at 409.
27Bennett, TW ‘The conflict of laws’ in Rautenbach et al (2010) 17.
28This issue is discussed further in ch 5 of this book.
291948 (1) SA 388 (A) 389.
30Himonga, C and Bosch, C (2000) The application of African customary law under
the Constitution of South Africa: Problems solved or just beginning? South
African Law Journal 117(2):306–41 at 336.
31See Bennett (2006) 17.
32Sigcau v Sigcau 1941 CPD 334 at 342.
33Sigcau v Sigcau 1944 AD 67 at 76.
35Bennett (2004) 48.
36Bennett (2004) 44.
37The Hoexter Commission Report Part 1 para 3.4.3.8 reads: ‘Although … the
chiefs’ courts function imperfectly their retention is widely supported both by
Blacks and by experts in Black customary law. These courts represent at once
an indigenous cultural institution and an important instrument for reconciliation.
For these reasons a rural Black will often prefer to have his case heard by the
chiefs’ court.’
38Bennett (2004) 141.
39See Mabena v Letsoalo 1998 (2) SA 1068 (T).
40See Shilubana.
41Yako v Beyi 397.
42Bennett (2004) 43.
132
43See ch 1 of this book. See also Rautenbach, C (1999) A commentary on the
application of the Bill of Rights to customary law Obiter20(1):113–32.
44(CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR 658 (15 May 1996).
45Du Plessis para 189.
46See also Rautenbach (1999) 126.
47Act 120 of 1998. See also Rautenbach (1999) 122.
48Act 11 of 2009.
49Act 41 of 2003.
50Himonga and Bosch (2000) 331 write: ‘… it is the law generated by the cultural
communities that is recognised by the Constitution. It is not the law created by
the state and its institutions, or stated by academics whose writings are based
on official records …’
51Dlamini (2002) 32 says: ‘… customary law ceased to be indigenously developed’.
52Dlamini (2002) 32.
53Bhe para 86.
54Bennett, TW (2009) Re-introducing African customary law to the South African
legal system American Journal of Comparative Law 57(1):1–32 at 7.
55Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96)
[1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6
September 1996) para 197.
56Bennett (2009) 7.
57Bennett (2009) 7.
58(CCT 19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC)
(14 October 2003) para 51. See also Gumede v President of the Republic of
South Africa (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3)
SA 152 (CC) (8 December 2008) para 43.
60That is, customary law’s values and norms.
62Bennett (2009) 9.
631998 (2) SA 1068 (T).
64Bennett (2009) 13.
133
65Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867
(SCA).
66Mthembu v Letsela 1997 (2) SA 936 (T).
67Mthembu v Letsela 1997 (2) SA 936 (T) 938–939.
68Mthembu v Letsela 1998 (2) SA 675 (T).
69(CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD
164; 1995 (2) SACR 1 (6 June 1995).
70Mthembu v Letsela 1998 (2) SA 675 (T) 685.
71Mthembu v Letsela 1998 (2) SA 675 (T) 685.
72Mthembu v Letsela (71/98) [2000] ZASCA 181; [2000] 3 All SA 219 (A) (30 May
2000) para 40.
73Mthembu v Letsela (SCA) para 40.
74See Bennett (2009) and Lehnert, W (2005) The role of the courts in the conflict
between African customary law and human rights South African Journal of
75Lehnert (2005) 257.
76Lehnert (2005) 257.
77Lehnert (2005) 256.
78Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of
Executive Law in Lesotho 10.
79Bhe para 109.
80Bhe para 109.
82Bhe para 115.
83Bhe para 220.
June 2008) para 56.
86See also Shilubana para 55.
87Alexkor para 52.
88See Mayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415
(CC); 2013 (8) BCLR 918 (CC) (30 May 2013) where the majority judgment
seems to have connected the proof of living customary law to its source, that
is, the community whose customary law is before the court. See also Himonga,
134
C and Pope, A (2013) Mayelane v Ngwenyama and Minister for Home
Affairs: A reflection on wider implications Acta Juridica 318–38.
89Bhe para 154.
901921 AD 330.
94Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7)
BCLR 743 (C) (4 March 2003) para 32.
95Peires, JB (1981) The House of Phalo: A History of the Xhosa People in the Days
of Their Independence 29.
961944 AD 67 at 74.
97For further criticism of this case, see Mnisi (2010) 174–79.
135
Chapter 5
Internal conflict of laws

5.1 Introduction

5.2.1 Resolution of conflicts between the laws of different systems of customary
law
5.2.1.1Avoidance of conflicts
5.2.1.2Resolution of conflicts under customary law
law
5.4.2.4 The lifestyle of the parties
Terminology
lex fori Latin – the law of the forum; the law of the court hearing and disposing of an
action
lex causae Latin – the law of the cause; where there is a conflict of laws, the law which has
136
precedence to dispose of the action
lex loci Latin – the law of the place where the marriage is celebrated
celebrationis
5.4.2.8Intestate succession
5.1 Introduction
The term ‘conflict of laws’ refers not to a conflict between legal systems but rather to
the method of choosing an appropriate rule to apply in the interests
of justice.1 Conflict of laws therefore refers to the rules for choosing the appropriate
law. These rules are also known as conflict rules. Such rules indicate when it is
appropriate to use a specific legal system where the dominant legal system in a
court (lex fori) is not the only legal system the court can use to resolve the dispute at
hand.
Conflict of laws applies to two kinds of conflicts that courts are called on to
determine when settling disputes between litigants:
 •In the first place, conflicts may arise between rules belonging to the legal
systems of two or more different countries. We refer to the rules used to
choose the appropriate law or legal system in this instance as private
international law.2
 •In the second place, conflicts may occur between different legal systems
operating within a single national legal system. This is often the case in
pluralistic legal systems such as those of African countries where customary
law exists alongside the common law and legal systems such as Muslim law
or Hindu law. In this instance, we refer to the rules used to choose the
appropriate law or legal system as personal or internal conflict of laws.3
This chapter deals with internal conflict of laws with the focus on:
 •the concept of conflict of laws under customary law
 •rules used to choose the appropriate law when a conflict occurs between
customary law and the common law
137
 •the provisions of the Constitution relating to the conflict of laws.
PAUSE FOR
REFLECTION
Private international law

Courts apply the national legal system when settling disputes between litigants.
However, the national legal system is not always appropriate in all cases to bring
justice to a matter before the court, especially where there is a foreign element in
the dispute.4 This leads to the need to explore whether the use of the rules of South
African law would best serve the interests of justice or whether such interests would
best be served by the use of the law of England, for instance. In this situation, the
court must select the applicable legal system by applying conflict rules which
connect the dispute before the court in some way with English law.
Note that conflict of laws ordinarily applies to the rules that regulate the way in
which a court may choose a foreign legal system (the lex causae) over the national
legal system (the lex fori) when resolving a matter before the court.5 A South African
court may select such a foreign legal rule because it is more appropriate than the law
of South Africa in resolving a particular issue in the interests of justice.6
The selection of the appropriate rule (lex causae), in our example the law of
England, rather than the one that is ordinarily used by the court (lex fori), that is,
South African law, involves the use of various connecting factors which play a vital
role in linking the law of England with the matter before the court. For instance, a
South African court uses South African law as the lex fori. Where this court has to
resolve a matter concerning the validity of a marriage concluded in a foreign country
(England), South African law’s connecting factor is the law of the place where the
marriage was concluded (lex loci celebrationis).7 In other words, English law is
connected to the matter before the South African court due to its role in defining the
marriage whose validity is at issue. The South African court will accept the marriage
as valid or dismiss it as invalid depending on what English law says about it.
Other connecting factors used by South African conflict of laws are the law of
domicile, the law of the place where movable or immovable property is situated and
so on. The provisions of these connecting factors determine the applicable legal
system and enable the court to choose its rules.
138
The conditions necessary for the existence of problems relating to conflict of laws
are the presence of social and commercial intercourse between people subject to
different legal systems.8 In this sense, precolonial customary law also had its own
concept of conflict of laws.9 Unfortunately, most writers on conflict of laws start
narrating the history of the subject from the time of colonisation.10 This creates the
false impression that the management of conflict of laws is a foreign concept that
was introduced by people from outside Africa. Furthermore, the paucity of research
on conflict of laws in Africa seems to lend credence to the idea that the continent’s
legal systems lack the concept of conflict of laws. Oppong attempts to correct the
record as follows:
Conflict of laws problems existed in pre-colonial Africa and were

consistent with current theories on pre-modern societies, addressed
by a mixture of practices and mechanisms that tended towards
conflicts avoidance and lex forism.11
In addition to the conditions for the application of conflict of laws mentioned above,
precolonial Africa had kingdoms which applied different legal systems.
Consequently, conflict of laws problems often ensued from social, economic and
political interactions among individuals and groups belonging to
different jurisdictions.12 Conflict of laws relates to the methods used to resolve
disputes arising from such interactions.
5.2.1 Resolution of conflicts between the laws of different systems of

customary law
The nature of customary law itself contributes to the avoidance of conflicts between
different systems of customary law. Where these conflicts occur, there are conflict of
laws rules which are used to resolve them.
5.2.1.1 Avoidance of conflicts
139
Terminology
imfecane (isiXhosa)or difaqane(Sesotho) ‘… social upheavals caused by wars among the African
communities of Southern Africa by the end of the
second decade of the nineteenth century. These led to
the emergence and consolidation of new nations’13
The nature of African culture influences the avoidance of situations of conflict of

laws. African culture does this in the following ways:
•First, there is a tendency to integrate different communities into the legal system of
the dominant group so that in due course no further conflicts arise. Integration as a
conflict-resolving factor became more apparent after
the imfecane/difaqane upheavals which afflicted southern Africa following the rise
of King Shaka in the first quarter of the nineteenth century. Almost the entire
Lesotho nation was born out of the convergence of different groups and
individuals whom King Moshoeshoe integrated into one group under one legal
system. Today, Lesotho is a homogeneous nation, but the clan names of
individuals still reveal their amaZulu, amaXhosa, amaHlubi and other origins. A
similar integration that took place as a result of the same social upheaval made
the amaMfengu group part of the amaXhosa cultural tradition. After just a few
decades, the conflict of cultures was resolved through social integration.14
•Second, communities tended to keep to themselves when contracting marriages
and conducting business transactions. In this way, they avoided conflict of
laws situations.15 Hence, people erroneously think that Africa had no conflict of
laws problems.
•Third, African communities continued to respect each other’s cultures after
integration. For example, King Moshoeshoe of the baSotho nation allowed
different communities to govern themselves according to their laws and customs
while they remained part of the same kingdom.16 Other groups also displayed
comparable degrees of social integration. In the Eastern Cape, for instance,
different family groups in the same community at village level perform certain
customary rituals connected to the initiation of boys and the celebration of
marriages differently but harmoniously. Some clans perform their circumcision
custom in the morning on the mountain because they come from an amaHlubi
140
background. Other clans perform theirs in the afternoon at the river because they
are from an abaThembu background. By allowing diversity in the context of unity,
communities after integration often manage to minimise conflicts in their different
approaches to the conduct of marriages, birth rituals and funerals.
5.2.1.2 Resolution of conflicts under customary law
Where conflicts between different systems of customary law occur, there are rules
that are applied to determine the applicable system. Because there are different
systems of customary law, the conflict of laws is likely to vary between these
different systems. Hence, any generalisation regarding conflict of laws in this section
is made merely to illustrate the point under discussion. It is not intended to be used
by the courts to apply to all cases.
In this next section, we will use an example from the field of family law to illustrate
how the concept of conflict of laws is used to resolve conflicts between the laws of
different communities or between different versions of customary law within the
same community.
Conflict of laws problems arise when the spouses come from different
communities. This is particularly so if one spouse comes from a matrilineal culture
where children belong to the wife’s family and the other spouse comes from a
patrilineal background. In a conflict of this nature, there is evidently no single rule
applicable across different systems of customary law. Arguably, the court would
have to determine the conflicts rule on a case-by-case basis.17
Conflicts may also arise within the same community, for example between
different versions of customary law within a patrilineal community. During marriage
negotiations, for instance, issues surrounding the custom of lobolo and the delivery
of the goods arising therefrom are decided according to the version of customary law
applicable to the bride’s family group which invariably hosts the negotiations.18 The
connecting factor here is the law of the wife’s family.19 The husband’s delegation
comprises visitors who come to ask for the hand of the woman in marriage. This
request is tabled, deliberated on and then either accepted or rejected according to
the law of the wife’s family. The resulting contract is framed according to the wife’s
version of customary law.
However, it would appear that the version of customary law of the husband’s
family determines the consequences of the marriage, for instance the status of the
141
bride and her children, and their relationship with the rest of her husband’s clan.20 In
terms of these relationships, she relinquishes her membership of her maiden family
and joins that of her husband. Her husband’s version of customary law governs the
family unit, known as the house, which the marriage establishes within the broader
household of the husband’s family.21 Membership of the husband’s family means
that both the wife and her husband fall under this family’s version of customary law,
including its system of succession.22
The discussion of conflict rules in this section is limited to the legislation of 1988
which is still in force.23
In 1988, Parliament enacted legislation to regulate the determination of the
appropriate legal system in conflicts between systems of customary law. In this
respect, section 1(3) of the Law of Evidence Amendment Act (LEAA)24 states:
In any suit or proceedings between Blacks who do not belong to the

same tribe, the court shall not in the absence of any agreement
between them with regard to the particular system of indigenous law
to be applied in such suit or proceedings, apply any system of
indigenous law other than that which is in operation at the place
where the defendant or respondent resides or carries on business or
is employed, or if two or more different systems are in operation at
that place (not being within a tribal area), the court shall not apply any
such system unless it is the law of the tribe (if any) to which the
defendant or respondent belongs.
Interestingly, this section refers to ‘proceedings between Blacks’ despite efforts

made in section 1(1) to portray this Act as non-racial legislation. However, section
1(3) is no doubt a conflict of laws provision as it seeks to regulate the version of
customary law to be chosen in specified complex situations. Before arriving at the
decision as to which version of customary law to apply in those circumstances, the
court must follow the steps below:
 •It must first make a finding as to whether the parties agreed expressly or
tacitly as to the version to be applied at judicial proceedings.
142
 •If the parties made an express agreement, the court’s task is simply to
implement the agreement. This is because the freedom to choose a legal
system is protected by the constitutional right to participate in the culture of
one’s choice which the courts must respect.25
 •In the event of a tacit or implied agreement, the court will impute the terms of
the agreement to the parties, taking into account their prior conduct, their
cultural orientation or the nature of the transaction.26
 •In the absence of any agreement between the parties, the court will seek to
resolve the conflict by selecting the version of customary law that applies to
the place where the defendant resides or works if such is the only prevailing
version at that place.27
 •Where the defendant’s version of customary law is one of several versions
prevalent at either his or her residence or workplace neither of which is in a
traditional area, the court must apply the first-mentioned version. Apart from
the unnecessary complexities of application, this requirement refers to
confusing and obsolete concepts, such as ‘tribes’, which have derogatory
connotations and may no longer mean anything to many people.28
COUNTER
POINT
Is there a need to amend section 1(3) of the LEAA?

Section 1(3) of the LEAA is controversial and unsatisfactory in several respects and
it appears to create more problems than it solves. For instance, there is no basis on
which section 1(3) chooses connecting factors such as residence or workplace.
These factors are borrowed from the common law, thus arbitrarily preferring the
defendant’s version of customary law to the plaintiff’s.29 The choice of the version of
customary law prevalent in the defendant’s traditional community would be a better
connecting factor than residence.30 The choice of the defendant’s traditional
community would amount to the parties’ personal law, which would be better still
than the choice of their traditional authority which Bennett suggests.31 The problem
with the suggestion of a traditional authority is that it would tie a party’s version of
customary law to a particular geographical area, thereby prejudicing those
customary law adherents and litigants who do not have ties with traditional
authorities.
143
A better approach to resolving these issues is to amend section 1(3) to provide for
a single rule that empowers the courts to apply the system of law that best serves
the interests of justice and that complies with the Constitution. At the same time, the
courts should be required to ascertain such a rule by reference to the living
customary laws of the litigants. In other words, since courts must always strive for
justice, they should apply the system of customary law that best serves this goal and
that reflects the binding practices of the adherents of the system of customary law
chosen, provided that it complies with the Constitution. It follows from this proviso
that if the chosen system does not comply with the Constitution, it would have to be
developed in accordance with section 39(2) of the Constitution. This proposed
approach affirms the application of living customary law in the field of conflict of laws
while adhering to constitutional principles.
law
Conflicts between laws do not only happen when South African law is involved with a
foreign legal system. Such conflicts also occur in our national legal system where our
law consists of components with different sources of origin and conceptual
backgrounds. This means that in South African law, disputes often occur where the
rules of customary law and the common law compete for selection.32
The history of the recognition of customary law in South Africa is dealt with
in chapter 1 of this book. This chapter will therefore deal only with the historical
aspects of conflict rules where this is necessary for the understanding of these rules.
Prior to 1652, customary law enjoyed unchallenged sovereignty as it was the only
legal system with jurisdiction in South Africa. The only choice of law that needed to
be made was which system of customary law to apply to litigants from different
cultural backgrounds.
In 1652, the first group of Hollanders led by Jan van Riebeeck arrived at the Cape
of Good Hope to establish a refreshment station for use by their company’s
trading empire.33 Roman-Dutch law, as it obtained in the province of Holland34 in the
Netherlands, regulated the legal affairs of these Hollanders who were employees of
the Dutch East India Company.35
144
In due course, the company transformed itself into a permanent governing
authority and became involved in business with Africans. An internal conflict question
arose as to which of the two legal systems should apply to those transactions
involving Africans and Europeans.36 The conflict rule that developed from this
relationship was that in the event of a conflict between Roman-Dutch law and
customary law, Roman-Dutch law prevailed. This indicates the existence of an
unequal relationship37 arising from the fact that Roman-Dutch law was imposed over
customary law as the primary legal system. The selection was not informed by any
connecting factor recognised in the discipline of conflict of laws other than the Dutch
colonisers’ view that European law was superior to African law.38
This act of imposing Roman-Dutch law on transactions involving Africans and
Europeans had nothing to do with a just resolution of a conflict between the two legal
systems. This is evidenced by the application of Roman-Dutch and English law even
to purely customary law disputes involving only Africans after the British had taken
over the Cape. The British colonisers initially applied Roman-Dutch law and later
English law as the lex fori regardless of the applicability of customary law as the lex
causae. The reason for this was ostensibly to rescue Africans from the application of
their supposedly inferior justice system.39
Furthermore, the British arbitrarily chose Roman-Dutch and English law through
the politics of non-recognition of customary law so that these two legal systems were
recognised as the only legal systems. They therefore enjoyed the status of the law of
the land which in turn meant that they enjoyed preference as the law of the place in
which the dispute is heard.40 To entrench Roman-Dutch and English law, the British
dispensed with the application of conflict rules. Hence, courts were ordered to apply
English or Roman-Dutch law, depending on whether they were situated in Natal or
the Cape Colony, as the primary system in all cases. The courts were merely to use
their discretion as to when to apply customary law as the lex causae in the interests
of justice.41
The subjugation of the Koi-San customary law to Roman-Dutch law rendered
it obsolete.42 This attitude towards customary law persisted under the British policy of
non-recognition following the Second British Occupation of the Cape. Unlike the
Dutch settlers who had neither abolished nor specifically recognised customary law,
the British initially specifically excluded its application ostensibly on the principle of
equality based on the norm that nobody should be subjected to an inferior system.43
145
When white rule expanded into the eastern interior to include areas with a dense
black population, the government’s policy of vigorous non-recognition of the
customary legal system started to show cracks. The personnel required to administer
the common law in the Cape Colony was not available.44 It was this realisation that
forced the British to rethink the rigid conflict of laws rule that preferred the application
of Roman-Dutch and English law to Africans. Instead, they considered the conflict of
laws rule that allowed the choice of customary law, albeit subject to the
repugnancy clause.45
With the expansion of white rule into the northern interior of South Africa through
the Great Trek which started in 1835, the rigid application of Roman-Dutch and
English law reveals a refusal to practise conflict of laws principles. The application of
some customary law was allowed in the territories now known as KwaZulu-
Natal46 and the then Boer Republics of the Transvaal (comprising Gauteng,
Limpopo, Mpumalanga and North West) and Orange Free State (now the Free
State). However, the version of the repugnancy clause applied left minimal scope for
the application of customary law.47
When the Union of South Africa was formed in 1910, all the territories mentioned
above were consolidated under one rule which excluded Africans from social, legal
and political participation. To provide a legal framework for the establishment of a
uniform ‘native’ policy for the entire Union, the Native Administration Act, later known
as the Black Administration Act (BAA), was enacted in 1927.48 Section 11(1) of the
BAA made the choice of customary law a matter of judicial discretion and read as
follows:
Notwithstanding the provisions of any other law, it shall be in the

discretion of the courts of the native commissioners in all suits or
proceedings between Natives involving questions of customs
followed by Natives, to decide such questions according to the native
law applying to such customs except in so far as it shall have been
repealed or modified: provided that such native law shall not be
opposed to the principles of public policy or natural justice: Provided
further that it shall not be lawful for any court to declare that the
146
custom of lobolo or bogadi or other similar custom is repugnant to
such principles.
COUNTER
POINT
Conflict rules versus imperial interests

The use of judicial discretion to choose customary law in resolving disputes between
Africans was not so much a conflict rule that was meant to resolve the conflict
between the two legal systems as an instrument for furthering the interests of the
colonial, Union and apartheid governments.49 This resulted in a conflict of
interpretation between judicial officers in the Native Appeal Court (later known as the
Appeal Court for Commissioners’ Courts). One interpretation was influenced by the
previous Transvaal policy of segregation and held that customary law was primarily
applicable in resolving disputes between Africans.50 The other interpretation was
influenced by the Cape policy of assimilation which held that the common law was
primarily applicable in these disputes.51
The matter was eventually settled in Ex parte Minister of Native Affairs: In re Yako
v Beyi where Schreiner JA expounded on the application of judicial discretion as
follows:
I find no support in the language of Act 38 of 1927 [referring to section

11(1) of the BAA] for the president’s view that native law should be
treated as prima facie applicable in cases between natives. On the
contrary, the indications are rather that common law was intended to
be applied unless the native commissioner in his discretion saw fit in
a proper case to apply native law.52
The dictum in Yako v Beyi reveals the purpose of the BAA to be the subordination of
customary law to the common law through the courts. This much is confirmed by the
inclusion of the repugnancy clause in section 11(1) of the BAA. This clause enforced
the sovereignty of the common law by demanding that the adherents of customary
law observe the moral standards of the common law.
The application of a uniform ‘native’ policy through the BAA with its repugnancy
clause sought to confirm the status of customary law as a subsystem of the common
147
law rather than to select the system which best served the interests of justice. It
served to direct the courts to choose the official version of customary law that
complied with common law standards in preference to the living version founded on
African cultural norms.53 Moreover, the choice of a customary law rule on the basis
that it complied with common law standards of morality regardless of its distorting
impact on African cultural norms does not seem to accord with the purposes and
principles of conflict of laws. Thus, section 11(1) of the BAA was designed to serve
the purposes of colonial, Union and apartheid legalism rather than to choose a just
solution for the dispute.
Under the BAA, customary law applied only to black people and all transactions
involving other races were dealt with according to the common law.54 In due course,
the BAA was repealed and replaced by the LEAA. However, there is controversy
about the extent to which section 1(1) of the LEAA is a conflict rule.
COUNTER
POINT
Is section 1(1) of the LEAA a conflict of laws rule?

Authors and case law seem to hold different views on certain aspects of this section
which make the answer to this question less obvious. The following are some of the
positions held.
Bennett holds the view that the LEAA is not a conflict of laws enactment. He
states:
In summary, the Law of Evidence Amendment Act does very little to

assist courts in deciding when to apply customary law. In fact, with
the exception of s 23 of the Black Administration Act [now repealed]
… the South African legislature has provided no explicit choice of
law rules.55
However, he regards the part of section 1(1) of the LEAA that contains the
repugnancy clause to be a conflict of laws rule. He states:
148
The proviso [i.e. the repugnancy clause] can be invoked either as a
choice of law rule or only after customary law has been selected as
the applicable system (own emphasis).56
The following are examples of a situation when the repugnancy clause is applied as
a conflict of laws rule and when it is not applied as such a rule.
Example 1
In case C, customary law rule X conflicts with common law rule Y. The
court finds X to be repugnant to public policy or natural justice and
strikes it down. The court then applies rule Y to the case.
In other words, if section 1(1) is used as a conflict of laws rule, then once the court
declares a rule of customary law to be repugnant to public policy or natural justice, it
should apply the common law to the case in place of the invalidated customary law
rule.
The following is the scenario when the repugnancy clause is not used as a conflict
of laws rule:
Example 2
In case C, customary law rule X conflicts with common law rule Y.
After the court has consulted the conflict of laws rules, for example
the parties’ agreement,57 it decides that rule X is applicable. If the
court then decides that rule X is repugnant to public policy or natural
justice, it strikes it down but does not apply rule Y to the case.
The result of not using the repugnancy clause in this example is that there is a
vacuum in terms of the applicable law and section 1(1) does not indicate how this
vacuum should be filled.58
There is therefore an advantage in treating the repugnancy clause as a conflict of
laws rule. This is so because no vacuum is created as to what law the court should
apply after it has invalidated the customary rule as it applies the common law. The
disadvantage is that this approach undermines the Constitution as a test of the
validity of the rules of customary law. By replacing the customary rule which is
repugnant to public policy with the common law, the conflict of laws process removes
the possibility of the court developing the invalidated rule according to section 39(2)
149
of the Constitution.59 Hlophe JP supported this argument in his dictum in Mabuza v
Mbatha in which he expressed the view that the Constitution rather than the
repugnancy clause is the appropriate test for the validity of customary law:
The approach whereby African law is recognised only when it does

not conflict with the principles of public policy or natural justice leads
to an absurd situation whereby it is continuously being undermined
and not properly developed by the courts, which rely largely on
‘experts’. This is untenable. The courts have a constitutional
obligation to develop African customary law, particularly given the
historical background referred to above. Furthermore, and in any
event, s 39(2) of the Constitution enjoins the judiciary when
interpreting any legislation, and when developing the common law or
customary law, to promote the spirit, purport and objects of the Bill
of Rights.60
In Thibela v Minister van Wet en Orde,61 the High Court held that section 1(1) of the
LEAA is a conflict of laws rule. However, Kerr has criticised this decision and argues
that:
what s 1(1) does is to impose a duty in appropriate cases to take

judicial notice of customary law, not to apply it.62
Bennett agrees with the position held by Kerr.63

Thus, except for the repugnancy clause, section 1(1) of the LEAA is not a conflict
of laws rule for resolving conflicts between customary law and the common law.
However, even the use of the repugnancy clause as a conflict of laws rule is
problematic in the context of the constitutional recognition of customary law.
Section 211(3) of the Constitution reads:
with customary law.
150
For the reasons that follow, section 211(3) of the Constitution is a conflict of laws
rule. It enjoins the courts to select customary law when customary law is applicable
subject to the Constitution and any legislation that specifically deals with customary
law. As stated in chapter 4 of this book, section 211(3) plays multiple roles, including
that of being a conflict of laws rule. In line with its role as a conflict rule, section
211(3) determines that matters governed by customary law must be resolved
according to this legal system.
Rautenbach illustrates the various historical stages in the development of the
choice of customary law as the applicable system in the following terms:
Customary law was initially ignored by the colonials, then tolerated

and eventually recognised, albeit with certain reservations and
conditions. The situation did not change much over the years until the
Constitution of the Republic of South Africa, 1996, finally brought
customary law on a par with the common law of South Africa by
affording it constitutional recognition, but subject to the Constitution
and other legislation.64
COUNTER
POINT
A controversial suggestion for the reform of conflict of laws

In its report on the reform of the conflicts of laws rules in 1999,65 the South African
Law Commission (SALC) suggested that in the event of a conflict between
customary law and the common law, the conflict of law process to determine the
selection of the applicable law should be governed directly by constitutional norms. It
stated:
[A] court’s decision to apply customary or common law must be in

harmony with the supervening value system of the country, the Bill of
Rights. Indeed, it can be argued that constitutional norms should now
directly enter the choice of law process to determine the selection of
an applicable law. For instance, where a plaintiff and defendant’s
interests diverge on account of an underlying conflict of laws, the
151
court’s choice of one or other legal system should be determined by
selecting the law that gives best expression to the Bill of Rights. This
would be a novel approach in South Africa, where choice of law rules
have generally been mechanically applied, without regard to the
ultimate result. Because a bill of rights is a transcendent code of
norms, however, the conflict of laws should no longer remain value-
neutral. Until rules of customary or common law have been amended
by court or Parliament to bring them into line with the Bill of Rights, if
application of customary law results in unfair discrimination the
common law may (as a temporary measure) be applied in its place
provided, of course, that the common law would secure a result more
in accord with the Bill of Rights.66
We submit that this proposal is untenable because the approach it suggests is likely
to hamper the development of customary law by the courts. A court should deal
exhaustively with the incompatibility of the customary law in question with the
Constitution and consider the possibility of the development of the customary law in
terms of section 39(2) of the Constitution during the conflict of rules process. Should
this not take place and the court replaces the customary law with the common law
during the conflicts of law process, other courts will then be precluded from
considering and developing the customary law if necessary.
Section 211(3) of the Constitution does not provide any guidelines as to how the
courts should determine the applicable legal system when customary law conflicts
with the common law or with another system of customary law. However, we submit
that conflicts between systems of customary law are determined by the legislation
dealing with conflicts of this nature, namely section 1(3) of the LEAA discussed
above.
As already argued above, the LEAA does not generally deal with conflict of laws
for determining conflicts between customary law and the common law. We submit
that the factors that the courts developed for this purpose before the new
constitutional dispensation should continue to determine these conflicts with
appropriate modification. We discuss the relevant factors below.
152
Parties to a contract can agree expressly or tacitly on the legal system that should
regulate their rights and duties. The courts generally appreciate parties who choose
the system of law which they intend should govern their transaction. This
arrangement promotes the objective of the conflict of laws to bring justice to the
matter because the parties normally select a legal system that is connected in some
way with them or with the transaction. Yet there are problems resulting from allowing
the parties too much autonomy as this may be open to abuse. For instance, they
cannot be allowed to exclude the legal system’s mandatory rules nor can they select
a system that is prejudicial to the interests of third parties.
Section 211(3) of the Constitution demands the application of customary law when
this is the applicable legal system. The requirement of applicability implies that the
Constitution makes the nature of the transaction an indicator that the parties chose
customary law if the dispute arises from a transaction peculiar to customary law such
as the agreement for the payment of lobolo/bogadi. Some people contract civil or
Christian marriages after the lobolo/bogadi transaction. This situation calls for the
making of a choice between customary law and the common law in the event of a
dispute about the consequences of the marriage.
In the past, the courts ignored the primary role of the lobolo/bogadi transaction
which always preceded the civil ceremony. They accepted that the Western nature of
the marriage ceremony was enough of an indicator that the parties had chosen the
common law. This was based solely on the dominant position of the common law.
Today, the matter is more complicated because of the equality of these two
components of South African law. The Constitution protects the right to practise the
culture of one’s choice, thus enabling the parties to practise the custom
of lobolo/bogadi.67 A court would probably hold that customary law is applicable
since the parties who practise this custom do so because it is part of their tradition
regardless of the fact that they subsequently also undertook the civil or Christian
marriage ceremony.
Selecting the nature of the transaction as a conflict of laws rule is therefore a
dramatic shift away from the previous situation where race was at the centre of the
153
conflict of laws process. The nature of the transaction focuses on the cultural
environment in which it takes place regardless of irrelevant factors such as race and
wealth.
Regardless of their race, the parties can in the ordinary course of business make a
customary law transaction which would attract the application of customary law.
Furthermore, the same parties can make a customary law transaction and then a
common law transaction on the same day. There is nothing preventing people who
were negotiating lobolo/bogadi in the morning from registering a business on their
way home in the afternoon. In this scenario, customary law would apply to the
negotiation of lobolo while the common law might apply to the business the parties
registered if the transaction is of Western orientation.
We submit that the form of a transaction and the nature of a prior transaction deal
with the same subject matter and should not be discussed under separate headings
as some scholars do.68
Under the old order, the courts used the fact that the transaction involved home-
grown mealies and the parties stayed in a homeland to determine that customary law
was applicable to their dispute.69 This is a derogatory way of choosing the applicable
legal system because it was based on the supposed inferiority of Africans and their
law, judged by the parameters demarcated for them during the colonial, Union and
apartheid eras. However, under the Constitution, people have a right to live
anywhere in the Republic as there are no longer homelands. Hence, such a conflict
of laws rule can no longer be countenanced.
Where the transaction is common in both customary law and the common law, the
court should look rather at the form of the transaction and the orientation of the
parties before deciding on the applicable system wherever the parties are living in
the country. The court should not be swayed by irrelevant factors such as as wealth
or poverty in deciding on the applicable legal system.
The adherents of customary law should not be judged to be de-Africanised and
treated under the common law simply because they stay in a Gauteng suburb and
drive German cars. Similarly, customary law should not be applied to people living
according to Western culture simply because they live in a township and eat mealie
pap without condiments. People’s cultural orientation exists independently of their
154
material conditions and places of residence. Their own conceptual outlook of who
they are should be apparent from the nature of their transaction which should direct
the court towards the applicable legal system.
5.4.2.4The lifestyle of the parties
This is another inappropriate category of conflict of laws rules because it focuses on

people rather than transactions. It labels people as adherents of customary law or
the common law instead of labelling the transactions as falling under customary or
the common law depending on the transaction. The reason given for categorising
people in this way for the purposes of conflict of laws is that there are no prior
transactions when dealing with delictual claims and family obligations.
This is not a valid argument because delictual claims are already treated as either
common law or customary law wrongs without regard for how the parties live.
Delictual claims arising from motor car collisions are always dealt with as common
law wrongs because of their nature regardless of the parties involved. A legal wrong
such as the seduction of a virgin can be handled either under customary law or the
common law depending on the culture chosen by the parties. If the father or
guardian of the woman, as plaintiff, brings the claim against the defendant by means
of traditional African methods, a customary law seduction procedure must be
followed. However, the woman herself can also institute a common law claim if she
is an adult. If not, her parent or guardian could institute such a claim on her behalf.
In the past, a conflict of laws rule was formulated on the basis that the plaintiff
farmed on a large scale, owned property in an urban area, was married by civil or
Christian rites, had a high school education or was an elder at a
70
Christian church. The defendant had comparable credentials, all of which had
nothing to do with the culture chosen by the parties in formulating the delictual claim.
The court decided that the common law was applicable to the case based on the
supposedly Western nature of the lifestyle of the parties rather than on the basis of
the system the parties considered binding on them. The subtext of this conflict of
laws rule is that customary law applies to people who lack these credentials and it is
therefore not acceptable in the post-apartheid era.
155
This conflict of laws rule was a direct attack on African culture and was based on a
succession of statutes dating as far back as Natal Law 11 of 1864. This statute
allowed Africans to apply for exemption from the application of customary law
provided that they were sufficiently civilised to be allowed to enjoy the benefits of the
common law. All that the applicant needed to prove before the exemption was
granted was that he or she was literate and was a partner in a
monogamous marriage.71 This provision later acquired countrywide application
through section 31 of the BAA. This conflict of laws rule has no place in the present
dispensation as it suggests that African culture is an obstacle to the achievement of
civilisation.
In the past, the courts took marriage by civil or Christian rites as an exemption from
customary law. The requirement of monogamy on which the statutory exemption was
founded was also central to the Western concept of marriage and was deemed to be
an indication that the spouses intended their marital consequences to be governed
by the common law.
Yet most Africans would have undertaken the lobolo/bogadi transaction,72 the
traditional wedding ceremony in which both family groups participated73 and
completed the formalities for a customary marriage prior to undertaking a Western
marriage ceremony. In such a case, there would have been no conflict of laws
reason for selecting the common law as the system regulating the consequences of
the marriage other than mere cultural domination74 based on non-recognition of
customary marriages.
In the past, black people celebrated civil or Christian marriages to escape the
disadvantages of non-recognition associated with the so-called customary union of
the apartheid era. As the name indicates, such marriages were accorded scant
recognition which amounted to non-recognition of the spouses’ marital status. The
reason for marrying according to civil or Christian rites was not that black people
embraced the Western tradition, but rather that they wanted to avoid having a
marriage classified as a ‘customary union’ which did not provide the spouses the
same official protection as a civil or Christian marriage.75
156
As a result, after the civil marriage ceremony, the spouses continued to live
according to their normal traditions. For instance, the husband married more wives
where necessary and his family continued maintaining his civil marriage wife after his
death. Both these behaviours indicate that the African concept of marriage remained
in the minds of the spouses as they never intended to be governed by the
common law.76 Following the judgment of the Constitutional Court in Gumede v
President of the Republic of South Africa,77the Recognition of Customary Marriages
Act (RCMA)78 abolished the difference in the legal consequences between some
customary and civil or Christian marriages.
In the past, there was a difference between customary marriage and the civil or
Christian marriage with regard to capacity to marry. In such cases, it was a conflict of
laws matter whether customary law or the common law would apply. This is no
longer the case as section 3 of the RCMA prescribes the same requirements for
customary marriages as those for civil or Christian marriages.
There are, however, inherent differences between the cultural foundations
underlying customary marriages and civil or Christian marriages. First, customary
marriages are potentially polygamous in the sense that a man may have more than
one wife. Second, the lobolo/bogadi transaction plays a big role in bringing together
two groups of families in an affinity relationship.
Civil or Christian marriages, however, are monogamous in nature and recognise only
the two spouses as actors in the marital relationship. These differences are
irreconcilable and bring issues of conflict of laws into focus. This explains why
customary law and the common law use different methods for resolving disputes
arising from adultery, separation and divorce.
A will is an institution of the common law in terms of which a testator expresses his
or her wishes regarding the distribution of his or her assets after his or her death. A
valid will must comply with the Wills Act79 which applies to all the people of South
Africa. The Wills Act also regulates the capacity of the testator to make a valid will.80
Once the requirements of the Wills Act pertaining to the validity of the will are
satisfied, the lawful contents of the will should be given effect to even if the testator’s
instructions for the distribution of the inheritance are couched in customary law form.
In other words, the Wills Act determines the validity of the will, the capacity of the
157
testator to make it and the testator’s intention regarding the distribution of his or her
assets. However, the Wills Act does not prescribe that the testator must make his or
her dispositions in a common law manner. Where a validly executed will reveals that
the intention of the testator is that his or her assets should be distributed according
to customary law, the Wills Act requires that effect should be given to that intention.
According to customary law, the family council administering the estate of the
deceased gives effect to the property dispositions the deceased makes on his or her
deathbed. This is the African equivalent of a will.81 The family council feel obliged to
implement such dispositions in the spirit of respect for and in deference to the wishes
of the deceased.82
Similarly, a person may make donations during his or her lifetime with an
instruction that these donations be implemented after his or her death. Such
customary dispositions were normally interpreted consistently with the customary
order of succession.83Dispositions like this are consistent with customary law and are
encouraged by the South African Law Commission.84
When recorded on paper, such dispositions strongly resemble the privileged
common law will which was used in South Africa until repealed by section 3(1) of the
Wills Act. Customary law dispositions are not common law wills and need not comply
with the latter’s rigorous requirements. Family councils always look at the context in
which the deceased made his or her dispositions and implement them in terms of
customary law.
5.4.2.8 Intestate succession
In the past, section 23 of the BAA read with regulation 2(e) of the BAA’s regulations
regulated the intestate succession of deceased Africans. No conflict of laws
problems could arise as these provisions made it clear that they were the only laws
under which intestate black estates could be distributed. Regulation 2 excluded
those estates that were distributed in terms of a valid will and placed them under
testate succession.
The Constitutional Court eventually invalidated section 23 of the BAA and
regulation 2(e) in Bhe v Khayelitsha Magistrate for being unfairly discriminatory on
the basis of race and gender.85 This judgment substituted the Intestate
Succession Act86 for the impugned provisions and added that this was a temporary
158
arrangement pending the development of a permanent customary law of succession
by the legislature.
In due course, the legislature promulgated the Reform of Customary Law of
Succession and Regulation of Related Matters Act (RCLSA),87 endorsing
the Bhe judgment. Section 2(1) of the RCLSA provides that the property belonging to
a deceased person living according to customary law who died intestate must be
distributed according to the Intestate Succession Act. Section 2 of the RCLSA
modifies the Intestate Succession Act which was initially designed for monogamous
marriages under the common law system of succession so that it now
accommodates spouses of a polygamous marriage and their children.
 •The term ‘conflict of laws’ refers not to a conflict between legal systems but
rather to the method of choosing an appropriate rule to apply in a given case
in the interests of justice.
 •Conflict of laws applies to two kinds of conflicts:
 Conflicts that arise between rules belonging to legal systems of different

countries are called private international law.
 Conflicts that occur between different legal systems operating within a

single national legal system are called personal or internal conflict of laws.
 •Precolonial customary law had its own concept of conflict of laws arising from
social and commercial interactions between people subject to different legal
systems or belonging to different jurisdictions. Customary law had
mechanisms for avoiding conflict but where conflicts could not be avoided,
there were rules that were used to determine the applicable system.
 •The legislature intervened in 1988 with the passage of the LEAA. Section
1(3) regulates the version of customary law to be applied in specified complex
situations.
 •Conflicts also occur between customary law and the common law. In South
Africa, the attempts to address these conflicts have a long history dating back
to the arrival of the Dutch at the Cape of Good Hope in 1652 when Roman-
159
Dutch law was imposed on the colony, and later the British who in their turn
introduced English law into the mix.
 •Conflict of laws also became subject to regulation by the Constitution.
Section 211(3) provides that ‘the courts must apply customary law when that
law is applicable, subject to the Constitution and any legislation that
specifically deals with customary law’.
1See Forsyth, CF (2003) Private International Law: The Modern Roman-Dutch Law
Including the Jurisdiction of the High Courts 4th ed 5.
2See Bennett, TW (2004) Customary Law in South Africa 49.
3See Bennett (2004) 50. In this chapter, we use the term ‘internal conflict of laws’.
4See Forsyth (2003) 4.
5Forsyth (2003) 2.
6Forsyth (2003) 1–6.
7Forsyth (2003) 2.
8Oppong, RF (2007) Private international law in Africa: The past, present, and
future The American Journal of Comparative Law 55(4):677–720 at 687.
9Oppong (2007) 677.
10Oppong (2007) 687.
11Oppong (2007) 677.
12Oppong (2007) 679.
13Mahao, NL (2010) O se re ho morwa ‘morwa towe! African jurisprudence
exhumed Comparative and International Law Journal of Southern
Africa 43(3):317–36 at 319.
14See Soga, TB (1937) Intlalo kaXhosa 6–13.
15According to Bennett (2004) 207–8, the baSotho–baTswana group of South
Africans positively encourages the choice of spouses from among certain
degrees of relationship by marriage.
16Mahao (2010) 333–4.
17See ch 4 of this book on the ascertainment of the content of a customary rule.
18See Fanti v Boto (16451/2007) [2007] ZAWCHC 78; [2008] 2 All SA 533; 2008 (5)
SA 405 (C) (13 December 2007) where Dlodlo J held that the customary
marriage did not come into being because the bride’s family was not involved
160
in the negotiations and could not state their terms. Bennett (2004) 210 and
232–3 sets out that all the lobolo/bogadi negotiations take place at the bride’s
home where the terms, demands and gifts are formulated. See also Soga
(1937) 72 and Bekker, JC (1989) Seymour’s Customary Law in Southern
Africa 5th ed 97.
19Bennett (2004) 199 fn 92 says: ‘Presumably, husbands must comply with the law
of their wives’ families, which is the law governing payment of lobolo.’
20Bennett (2004) 213 writes: ‘According to all the systems of customary law in South
Africa, marriage is patri- or virilocal. In other words, a bride is expected to live
with her husband, either at his own or his father’s homestead.’
21Bekker (1989) 273–306.
22Bekker (1989) 273–306.
23Due to the limited scope of this chapter, we will not discuss in this section the
historical position of conflict of laws rules, including the legislative provisions of
1927 and 1986, as well those of the former homelands dating back to 1965.
24Act 45 of 1988.
25Bennett (2004) 54.
26See Bennett, TW ‘The conflict of laws’ in Bekker, JC, Rautenbach, C and Goolam,
NMI (eds) (2006) Introduction to Legal Pluralism in South Africa 2nd ed 15 at
25.
27Bennett (2006) 25.
28Bennett (2006) 25.
29Bennett (2006) 25.
30Bennett (2006) 25.
31Bennett (2006) 25.
32Indeed, Forsyth (2003) 5 stresses that this is not a contest between legal systems.
It is rather a matter of selecting the most appropriate rather than the strongest
legal system.
33See Rautenbach, C (2008) South African common and customary law of intestate
succession: A question of harmonisation, integration or abolition Electronic
Journal of Comparative Law 12(1):1–14 at 2. See also Hosten, WJ, Edwards,
AB, Church, J and Bosman, F (1997) Introduction to South African Law and
Legal Theory 337.
161
34Lee, RW (1953) An Introduction to Roman-Dutch Law 5th ed 5 writes: ‘When we
speak of Roman-Dutch Law we mean not a law common to the whole of the
United Netherlands, but specifically the law peculiar to the Province of Holland.’
35Hosten et al (1997) 352–3.
36See Van Niekerk, GJ ‘Legal pluralism’ in Bekker et al (2006) 3 at 6.
38Grant, E (2006) Human rights, cultural diversity and customary law in South
Africa Journal of African Law 50(1):2–23 at 13.
39Rautenbach (2008) 1.
40Bekker (1989) 44.
41Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A).
42Grant (2006) 13.
43Grant (2006) 13.
44Grant (2006) 13.
45Grant (2006) 13–14.
46In Natal, legislation established separate courts for black people. S 80 of the
Courts Act 49 of 1898 provided: ‘All civil Native cases shall be tried according
to Native laws, customs and usages, save so far as may be otherwise specially
provided by law, or as may be of a nature to work some manifest injustice, or
be repugnant to the settled principles and policy of natural equity; except that
all cases arising out of trade transactions of a nature unknown to Native law
shall be adjudicated upon according to the principles laid down by the ordinary
colonial law in such cases; provided that nothing in this section shall be
deemed to extend the operation of any law of limitation or prescription of action
to any case to which but for this Act such law would not have applied.’
47In the Transvaal, s 2 of Law 4 of 1885 read: ‘The laws, customs or usages hitherto
existing among the natives shall continue to remain in force in this Republic as
long as they have not appeared to be in conflict with the general principles of
civilization recognized in the civilized world.’
48Act 38 of 1927 which later became known as the Bantu Administration Act of
1927, and finally, the Black Administration Act 38 of 1927 (BAA). See Olivier,
NJJ, Olivier, WH and Olivier, NJJ (Jr) (1989) Die Privaatreg van die Suid-
Afrikaanse Bantoetaalsprekendes 3de uitg 610–11. These changes were made
162
to coincide with the changing labels given to Africans who were initially called
‘natives’, then ‘Bantu’ and, finally, ‘Blacks’.
49Hosten et al (1997) 33.
50Matsheng v Dhlamini 1937 NAC (N & T) 89.
51Nqanoyi v Njombeni 1930 NAC (C & O) 13.
521948 (1) SA 388 (A) 397.
53See Van Niekerk (2010) 6–7.
55Bennett (2004) 53.
56Bennett (2004) 68 fn 244.
57One of the conflict of law rules considered below is that the parties to a dispute
may agree on the applicable system of law.
58By contrast, the equivalent provisions in Zambian legislation, for example, provide
that the principles of justice, equity and good conscience would apply in such a
case. S 16 of the Subordinate Courts Act Cap 28 empowers the courts to apply
African customary law ‘such African customary law not being to repugnant to
justice, equity or good conscience [….] (ii) in cases where no express rule is
applicable to any matter in issue, a […] shall be guided by the principles of
justice, equity and good conscience’.
59Section 39(2) of the Constitution provides for the opportunity for rules of
customary law that conflict with the Constitution to be developed rather than
struck down in accordance with the spirit, purport, and objects of the Bill of
Rights.
60(1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4
March 2003) para 31.
611995 (3) SA 147 (T).
62Kerr, AJ (1996) The choice of and the application of customary law South African
Law Journal 113(3):408–10 at 409.
63Bennett (2004) 53.
64Rautenbach (2008) 1.
65See South African Law Commission (1999) Project 90 The Harmonisation of the
Common Law and the Indigenous Law Report on Conflicts of Law.
66SALC (1999) Report on Conflicts of Law para 1.71.
163
67See Fanti v Boto (16451/2007) [2007] ZAWCHC 78; [2008] 2 All SA 533; 2008 (5)
SA 405 (C); (13 December 2007) and Motsoatsoa v Roro(46316/09) [2010]
ZAGPJHC 122; [2011] 2 All SA 324 (GSJ) (1 November 2010).
68Bennett (2004) 54–5 discusses these topics separately.
69See Sawintshi v Magidela 1944 NAC (C & O) 47.
70Ramothata v Makhote 1934 NAC (N & T) 74 at 76–7.
71Bennett (2004) 56–7.
72See Koyana, DS (1980) Customary Law in a Changing Society 27.
Common Law and the Indigenous Law Report on Customary Marriages paras
4.1.13 and 4.4.10 for a proposal that such actions indicate the spouses’
intention to be governed by customary law.
75See Santam v Fondo 1960 (2) SA 467 (A).
76See Mrubata v Dondolo 1949 NAC 174 (S) at 176.
December 2008).
78Act 120 of 1998.
79Act 7 of 1953.
80Bennett (2004) 60.
81Bennett (2004) 351.
82Schapera, I (1955) A Handbook of Tswana Law and Custom 2nd ed 230.
83See Nomatshaka v Mhlokonywa 1933 NAC (C & O) 18 at 23.
Common Law and the Indigenous Law Discussion Paper 93 Customary Law of
Succession para 1.3.
86Act 81 of 1987.
87Act 11 of 2009.
164
PART II
Personal law and personal rights in African customary law
CHAPTER 6 Marriage
CHAPTER 7 Consequences of marriage
CHAPTER 8 Dissolution of marriage
CHAPTER 9 The customary law of succession
CHAPTER10 Contractual obligations in customary law
CHAPTER11 Customary law of delict
CHAPTER12 Criminal law
165
Chapter 6
Marriage
6.1 Introduction

November 2000

November 2000
6.1 Introduction
This chapter discusses the customary law of marriage, especially in the context of
the Recognition of Customary Marriages Act (RCMA)1 which came into operation on
15 November 2000. This legislation made significant changes in customary law while
simultaneously attempting to preserve some aspects of this law. Many of these
changes were direct attacks on patriarchy and the lowly status of women and
children in customary marriages. Provisions of the RCMA effected these changes by
recognising the equal status of the spouses, reconfiguring the matrimonial property
system and introducing court-granted divorces. The RCMA also affirms the best
interests of the child as a guiding principle in matters relating to the welfare of
children during the marriage and at its dissolution. Other provisions, such as the
requirement of registration, attempt to improve the administrative governance of
Notwithstanding the passage of the RCMA, this chapter is also concerned with the
customary law of marriage as it stood before the promulgation of the legislation for
two sound reasons. In the first place, debate continues about the effect of the
RCMA’s provisions, especially those that appear to strike at the heart of customary
law. These include the attempts to manage polygamy, the refusal to make lobolo a
166
compulsory essential of marriage and the introduction of judicial divorces. Second,
the RCMA itself opens the door to a consideration of traditional practices and rituals
by making the validity of a customary marriage concluded after the date of its
commencement dependent on the marriage being ‘negotiated and entered into or
celebrated in accordance with customary law’.2
The chapter notes, as other chapters have done, the challenges posed by the
search for living customary law on many of the issues raised. It also raises some
questions about the contemporary relevance of many of the rules and principles
inherited from official customary law in the area of marriage.
Customary marriage is a fundamental building block in traditional African family
law and is as much a social process as it is a legal one. It is characterised by the
involvement of two kinship groups at every stage of the marriage process from
formation to dissolution, including during the married life of the spouses. It is also
characterised by a value system that emphasises the non-individual nature of the
relationship which traditionally involved family purposes beyond the immediate
interests of the couple.3 Ferraro usefully describes customary marriage in these
general terms:
… traditional marriages are more group oriented, tend to emphasize

the patrilineal descent of children, involve the payment of lobolo,
encourage polygamy as an ideal, place primary emphasis on
childbearing, and are very difficult to terminate.4
Customary marriage was also a private matter in which the state played no role nor
indeed did any other outside authority. The validity of the union depended not on the
intervention of any third party, but on the agreement reached by the families
involved. This, in part, explains the description of customary marriage as processual
(relating to or involving the study of processes). In the absence of marriage officers
and marriage registers, forms, declarations and signatures, the journey towards
married status allowed for many detours and accommodated multiple entry points.
For this reason, it is sometimes difficult to ascertain the existence of a marriage at
any given point in time5 since even death does not necessarily dissolve the union.6
167
Although the RCMA governs customary marriages today,7 the traditional laws and
rituals pertaining to marriage continue to be relevant. This is because in setting out
the requirements for a valid customary marriage, the RCMA requires that the
marriage needs to be negotiated and entered into or celebrated according to
customary law.8 Due to the recognition language it uses, the RCMA also renders it
necessary to discuss customary marriages under two separate headings: marriages
concluded before the Act came into operation on 15 November 2000 and marriages
concluded after that date.9
Before the coming into operation of the RCMA, customary marriages were subject
to limited recognition in South Africa as a result of their potentially
10
polygamous nature.
PAUSE FOR
REFLECTION
Ad hoc marriages: a history of non-recognition

In 1893 in the case of Ngqobela v Sihele, Lord de Villiers CJ said in respect of a
customary marriage:
A union, therefore, founded only upon Native customs and usages

within the Colony proper is not a marriage, whatever rights may by
special legislation have been given to the offspring of such a union in
respect of the distribution of the property left by their parents upon
their death. In the absence of special legislation recognizing such a
union as a valid marriage, the courts of law are bound – however
much they may regret it – to treat the intercourse, I will not say as
immoral, but as illicit.11
The English definition of marriage as a ‘voluntary union for life of one man and one
woman’ set out in the case of Hyde v Hyde andWoodmansee12 was imported into
South African law in the case of Seedat’s Executors v The Master (Natal).13 The
Court felt that it could not recognise customary marriages because, being potentially
polygamous, they offended against public policy.14
168
The situation was different in Natal where the Natal Code of
Zulu Law15 recognised customary marriages for all purposes. Supporting such
recognition were special courts for blacks which could apply customary law as long
as it was not repugnant to public policy and natural justice.16
Failure to recognise customary marriages in the common law courts had serious
consequences for African family life. Dlamini lists the kinds of hardship that were
visited on African families by this exclusion:17
 •Spouses married in terms of customary law were not considered to be
husband and wife. They therefore did not owe each other a duty of support.
 •Their children were considered to be illegitimate.
 •If the man married another woman by civil rites, the civil marriage
extinguished the customary marriage, leading to the discarding of the first wife
and her children.18
Limited recognition was introduced in the form of statutory enactments aimed at

remedying these glaring anomalies that resulted from non-recognition. Statutes were
passed to afford limited recognition of customary marriages to alleviate the plight of
customary spouses in the areas of tax,19 maintenance20 and the dependants’ action
in the case of the unlawful killing of a breadwinner.21 It was largely to correct this
situation that the South African Law Commission (SALC) embarked on its
investigation into customary marriages.22
PAUSE FOR
REFLECTION
Recognition of customary marriages long overdue

In its Report on Customary Marriages the SALC recommended the following:
In order to remove the anomalies created by many years of

discrimination, customary marriages, both existing and future unions,
must now be fully recognized. To do so will comply with ss 9, 15, 30
and 31 of the Constitution, provisions which suggest that the same
effect should be given to African cultural institutions as to those of
the western tradition.23
169
The Commission reached this conclusion after surveying the position of customary
marriages under colonialism, Union and apartheid, especially the careful distinction
drawn in the Black Administration Act (BAA)24 between marriages and the so-called
customary unions where the BAA did not recognise customary unions as
real marriages.25 The problems that flowed from this lack of recognition included the
wholesale withholding of the status of a real family from Africans married by
customary rites and their children. This led to a host of other anomalies. Non-
recognition also led to the effective superiority and overriding effect of a civil
marriage whenever it was contracted during the existence of a
26
customary marriage.
Terminology
polygamy a practice according to which a married person has more than one wife or husband at
the same time
polygyny a version of polygamy where the husband has more than one wife; used
interchangeably with polygamy in South Africa
polyandry a version of polygamy where the wife has more than one husband
According to its preamble, some of the main objectives of the RCMA are:
 to make provision for the recognition of customary marriages
 to specify the requirements for validity
 to regulate registration, proprietary consequences and dissolution
 to provide for the equal status and capacity of spouses in these marriages.
Section 1 of the RCMA defines customary marriage as ‘a marriage concluded in

accordance with customary law’. The RCMA defines customary law as ‘the customs
and usages traditionally observed among the indigenous African peoples of South
Africa and which form part of the culture of those peoples’.27 In addition, the RCMA
defines lobolo as ‘the property in cash or in kind, whether known as lobolo, bogadi,
bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which
170
a prospective husband or the head of his family undertakes to give to the head of the
prospective wife’s family in consideration of a customary marriage’.28
The RCMA grants recognition equally to customary marriages concluded before
the commencement of the Act on 15 November 2000 and those concluded after that
date, whether monogamous or polygamous.29
PAUSE FOR
REFLECTION
The regulation of polygamy

The issue of polygamy is important as a factor in the assessment of the
constitutionality of customary marriage as well as an important question in the proof
of the existence of such a marriage.
In attempting to regulate the patrimonial consequences of polygamy, the
legislature opened up an area of controversy by enacting section 7(6) of the RCMA.
Originally intended to protect the property rights of the first wife or wives in the event
of the husband intending to conclude a further marriage, the section became
embroiled in issues of proof of the existence of a customary marriage.
In Mayelane v Ngwenyama,30 heard in the North Gauteng High Court in 2010,
Bertelsmann J considered section 7(6) which provides:
A husband in a customary marriage who wishes to enter into a further

customary marriage with another woman after the commencement of
this Act must make an application to the court to approve a written
contract which will regulate the future matrimonial property system of
his marriages.
The learned judge came to the conclusion that failure to comply with this provision,
which he considered mandatory, invalidated any attempted subsequent customary
marriage. The Supreme Court of Appeal (SCA) overruled this decision
in Ngwenyama v Mayelane31 and held that failure to follow the instructions in section
7(6) does not invalidate a subsequent marriage. Like the High Court, the
Constitutional Court in Mayelane vNgwenyama32 invalidated the marriage but on a
different ground, namely the absence of the consent of the wife to the subsequent
marriage.
171
Thus, compliance with section 7(6) is not a requirement for a valid marriage as the
High Court had held, but the consent of the first wife to the husband entering into a
polygamous marriage is a requirement in some cases.33 The issue of polygamy as a
consequence of marriage is discussed in more depth in chapter 7 of this book.
Other aspects of the recognition formula have attracted scrutiny on

constitutional grounds.34 These include the issue of whether non-Africans can enter
into a customary marriage. It is submitted that the answer hinges on a true
understanding of the philosophy underlying customary marriage. This philosophy
places the woman’s family at the centre of the negotiations and therefore firmly
places in their hands the power of allocating ‘approved suitor’ status to
potential husbands.35
PAUSE FOR
REFLECTION
Who can marry in terms of customary law?

In customary law, the initial relationship between the wife-seekers and the family of
the potential bride is not an equal one. The woman’s family holds immense power as
the people who can either accept or reject offers of lobolo in cases both of regular
proposals and the various forms of irregular initiation of negotiations. In other words,
they can decide with whom to negotiate.
An appreciation of this position assists in answering the oft-asked question
whether a non-indigenous African can contract a customary marriage in terms of the
RCMA. The answer lies in section 3(1)(b) of the RCMA which provides that the
marriage must be negotiated and entered into or celebrated in accordance with
customary law. If this requirement is properly honoured, a non-African may be
accepted by the woman’s family as a suitor with whom lobolo negotiations may be
commenced. It appears to follow that the woman’s family would need to be
themselves adherents of customary law, observing known and accepted ways of
conducting the negotiations and celebrations required by the RCMA. According to
the definition of customary law in section 1, these ways need to be ‘customs and
usages traditionally observed among indigenous African peoples of South Africa and
which form part of the culture of those peoples’.
172
In our view, ‘indigenous African peoples of South Africa’ are those people who are
born into those groups or communities that are native to the continent and who, as
members of such groups or communities, observe or practise a system of
customary law.36
If this definition does not preclude white Africans, then clearly a black or white
suitor can marry into a black or white family that observes a system of customary
law. If white Africans are precluded, the inescapable conclusion is that a white man
can marry into a black family while neither a black man nor a white man would be
able to marry into a white family in terms of the RCMA.
Before analysing the legal rules relating to marriage itself, it is necessary to clear the
issue of marriage preliminaries, which are not only popular in cultural folklore, but are
also often misunderstood or confused with marriage itself. Sometimes these
preliminaries are about the rich ritual that surrounds the negotiation process;37 at
other times they amount to betrothal in its ordinary sense.38
PAUSE FOR
REFLECTION
Marriage negotiations as a ‘mating dance’

Among the Nguni, for instance, many practices have developed around the feigned
reluctance of the woman’s guardian to meet the delegation of negotiators from the
groom’s family. In some cases, this has led to various kinds of additional payments
as ‘incentives’. For instance, in some communities, a small gift called
the imvulamlomo (the mouth opener) is routinely followed by another dubbed
the ingqaqamazinyo (the teeth untangler). Outsiders are often amused by the
practice where a gift is proffered to persuade the woman’s guardian to open his
mouth to commence the negotiations, which is then followed by yet another incentive
to untangle his teeth so that he can speak.
The point about these preliminaries is that they are part of the ‘mating dance’
between the future in-laws: the gifts are small tokens in the drama, carrying
symbolic, not commercial, value. Needless to say, such practices have no legal
significance and play no role as essentials for a valid customary marriage. Criticisms
of cases where these token exchanges have been abused to inflate lobolo are
justified, but they sometimes miss the point of the practices.
173
The lobolo negotiations themselves are something of a carefully choreographed
dance dramatising the unequal power relations between the wife-seekers and the
woman’s people who are, as it were, the holders of the prize.39 The mock hostility
and pretended resistance to the suitors’ approaches, the gradual thawing as the
negotiations get properly underway, and the spontaneous joy and camaraderie
between the two groups once agreement has been reached are the mainstays of the
process. They are also in large part responsible for the enduring popularity of
the practice.40
The importance of lobolo in an African customary marriage and discussion of its
advantages and disadvantages are well documented, from the discredited colonial
and missionary view that the transfer of cattle amounted to wife-purchase to
contemporary debates about the value of lobolo in modern society.41 The prevalence
of the practice is often at the heart of the perception of customary marriage as a
process rather than an event. There are very few indigenous communities in
which lobolo is paid all at once. Indeed, in some Nguni societies, for example the
emaSwati, settling the obligation in one payment is actively discouraged. This is
seen as an arrogant flaunting of one’s wealth and depriving the two families of an
ongoing talking point. While all this is culturally interesting, it does bedevil the
question of ascertaining the existence of a customary marriage especially in the face
of denials of its existence, usually on the death of the husband.42
Viewing the lobolo negotiations as the gateway to a relationship in this way also
explains the many ‘irregular’43 ways of initiating marriage and why some of these
irregular ways become ‘regularised’ by the woman’s people’s willingness to
accept lobolo while others do not.

November 2000
Terminology
ukumekeza the formal integration of the bride into the bridegroom’s family according to emaSwati
customary law usually involving her dancing in the cattle byre while mock-
weeping symbolically44
174
imvume a form of integration of the bride into the bridegroom’s family (amaZulu/amaXhosa)
usually involving the slaughter of a small beast by the latter45
The RCMA recognises as valid all existing marriages, monogamous or polygamous,

which were valid under customary law at the time of the commencement of
the Act.46 This means that the customary law applicable to marriages concluded
before the RCMA remains relevant with its attendant problems
of ascertainment.47 These problems are partially alleviated by the existence of the
Codes of Zulu Law48 which codify in part the law on the subject for KwaZulu-Natal.
Needless to say, this is official customary law. This leaves the applicable customary
law to be ascertained for the rest of the country.
Essentials of a customary marriage in KwaZulu-Natal are found in section 38(1) of
both Codes and are set out as follows:
(a) The consent of the father or the guardian of the intended wife (if she is a
minor), which may not be withheld without good reason;
(b) The consent of the father or guardian of the prospective husband (if he
is a minor); and
(c) A declaration in public by the prospective wife to the official witness49 at
the wedding ceremony that she voluntarily submits to the marriage and
gives her consent.
In its preoccupation with consent, the section does not

mention lobolo at all50 although the practice does appear in other provisions of the
Codes which are concerned with the delivery of lobolo, its source and its quantum.51
Outside KwaZulu-Natal, the customary law applicable in the rest of the country is
uncodified and problems of ascertainment abound.52 This is the one area that
exhibits the highest levels of traditional activity and also reveals the greatest
variation of practices. Part of the reason lies in the ability of living customary law to
adapt to changing needs and expectations, and part in the existence of clan-based
variations on broad-based cultural themes.
The texts that do exist53 set out the requirements for a marriage by customary rites
followed in most systems of customary law in the country as the following:54
175
 the consent of the father or guardian of the prospective husband under certain
circumstances
 the consent of the guardian of the prospective wife
 the consent of the prospective husband
 the consent of the prospective wife
 the handing over of the prospective wife to the family group of the prospective
husband or the prospective husband himself as the case may be
 an agreement that lobolo will be delivered
 that there should be no existing civil marriage.
It is very difficult to assert first, that these requirements represent living customary
law and, second, that they are always complied with as being essential in
all circumstances.55 The non-existence of a civil marriage, for example, is clearly a
legitimate inclusion in the list of requirements for the conclusion of a valid customary
marriage in South Africa but it is equally clear that this is not a rule of customary law.
Fortunately, the courts have been active in developing contemporary
understandings of the essentials of a customary marriage. What is emerging from
the judicial decisions is the richness of variations in this area across traditional
communities. It is important to note that these variations, far from presenting a
conflict in customary law, may be the very fabric of living customary law.
COUNTER
POINT
Essentials of customary marriage: contestation or living customary law?

The case of Mabuza v Mbatha56 involved emaSwati customary law. The alleged
marriage took place before the RCMA came into operation. Among the issues in
dispute was the custom of ukumekeza. Ukumekeza is signified by ritual wailing by
the bride as she dances and performs other rituals in the cattle byre to introduce
herself to the ancestors. It was contested whether this was an essential requirement
in the formation of a valid customary marriage according to emaSwati law and
custom.
The Court held that there are two requirements for a marriage – lobolo and the
formal handing over of the bride to the bridegroom’s family (ukumekeza). It found
176
that this custom had evolved and that it could be dispensed with by agreement
between the parties and/or their families in appropriate cases.57
Some scholars, for example, Professor Bekker, have disputed the correctness of
this assessment by the Court. Accordingly, when he was called as an expert witness
in Maluleke v Minister of Home Affairs to testify on the meaning and significance of
an analogous custom, imvume, he testified that there is no customary marriage until
there is a form of integration of the bride into the bridegroom’s family. The Court
stated:
He [Professor Bekker] conceded that as a result of urbanization and

social and economic factors, tradition and custom have evolved to the
extent that some families dispense with the formal and elaborate
festivities that used to be held in the past to signify integration of a
bride into the groom’s family. Despite this development, in his
opinion, an act of integration is still crucial for the existence of a
customary union. He stated that this may even take the form of a mere
agreement by both families that the bride be integrated into, or
regarded as part of, the bridegroom’s family, without the holding of
any celebration or feast or ritual.58
Although the Court did not expressly pronounce on the requirement of imvume, a
close reading of the judgment suggests that it accepted imvume as a requirement for
a valid marriage. It seems to have accepted the expert evidence that in modern
times, this custom may be fulfilled by a mere agreement. The Court apparently
considered the uncontested fact that the families had agreed to the imvume being
held to mean that its requirement was met even though the ceremony was not
conducted due to the death of the man.
We submit that the arguments and judgments in these cases demonstrate
possible evolution of the requirements of ukumekeza and imvumerather than
contestations about them. Other recent cases have made it clear that there is a gap
between the understanding of official customary law with regard to the essential
requirements for concluding a valid customary marriage and the lived reality in
traditional communities. As far back as the case of Mabena v Letsoalo59 in 1998,
doubt was cast not only on the requirement of the consent of the bridegroom’s father
177
or guardian but also on the assumption that only men could head
the lobolo negotiations. Ndlovu v Mokoena60 confirmed the position that the payment
of lobolo does not on its own bring a valid customary marriage into existence. The
Court in Fanti v Boto61 went further than Mabenaand declared that the mother of the
bride-to-be could not only negotiate and receive lobolo, but that in certain
circumstances she could be a guardian in the ordinary sense. The judgment
provides an important example of the interplay between assertions of customary law
rules based on traditional understanding and evidence brought before the court in
direct challenge to such assertions.
The line of cases discussed above received impetus in 2013 with a series of court
decisions moving the ascertainment of the essentials of a customary marriage even
further away from the texts of official customary law. In the case of Raisiba Maria
Mathaba v Minister of Home Affairs,62 Khumalo J (after considering the judgment of
Matlapeng J in Motsoatsoa v Roro63) was at pains to emphasise the importance of
ascertaining the actual terms of the agreement between the two families. He
expressed himself in these words:
It should not escape our minds that African rites are made up of
varied indigenous, cultural and heritage practices that are evolving as
people’s lifestyles, socio-economic conditions and aspirations
change. It is therefore of utmost importance for the factual finding to
be based on what was agreed upon by the two families in their
negotiations, preceded by the consent of the couple.64
In the event, he found that whatever other understandings might exist with regard to
the transfer of lobolo, in the present case the parties had agreed that the marriage
process would remain incomplete until the groom’s family had paid in full and that
the marriage had not been concluded because this had not been done.
Two other cases in 2013, Radebe v Road Accident Fund65 and PSC
v LPM,66 confirm the trend of ascertaining the factual underpinnings of each
individual case in order to determine whether the essentials had been satisfied. In
the latter case, the court viewed a DVD of a ceremony alleged to have represented
the welcoming of the bride into her new family67 and, in the face of claims to the
contrary, came to the conclusion that she had been properly handed over.
178
PAUSE FOR
REFLECTION
An example of integration across indigenous communities in 2011

Observe a wedding ceremony between a young amaZulu woman and a young
moSotho man, both graduates of X University in South Africa. Following the
conclusion of a church ceremony in one town, the wedding guests drive to the home
of the husband’s parents in a small town in the Free State. Here, the wedding
ceremony is to be concluded with a customary marriage where the ceremony of
integration of the wife into the family of her husband is to be performed.
On arrival at the husband’s mother’s home, the wife is led to her mother-in-law’s
bedroom where she is made to sit on a straw mat provided for the occasion. Her
mother-in-law welcomes her to her house and tells her that she is her son’s wife and
now her daughter. She is then dressed in a brand new married
woman’s seShoeshoe, which is a dress bought by her mother-in-law, while the
husband is dressed in a baSotho blanket outfit. She is led outside to her husband
where they are both presented with a sheep by the husband’s uncle (mother’s
brother) and other elderly male relatives. A water pot is then placed on her head and
she carries it into her mother-in-law’s house where she puts it down. The ceremony
ends with ululation by the women. The sheep is cooked for the wedding guests and
community members attending the celebrations.68
Although the distinction between the position as it obtained before the RCMA and
after is important for ascertaining the requirements for marriage, it has lost much of
its significance in respect of proprietary consequences of marriage, as shown
in chapter 7 of this book.

November 2000
To be valid, a customary marriage concluded after the date of commencement of

the RCMA69 must comply with the provisions of the RCMA. These provisions are set
out in section 3, the most important of which is section 3(1) which provides as
follows:
179
For a customary marriage entered into after the commencement of
this Act to be valid –
(a) The prospective spouses –
(i) must be above the ages of 18 years; and
(ii) must both consent to be married to each other under customary law;
and
(b) the marriage must be negotiated and entered into or celebrated in
accordance with customary law.
Taken together, these are the key markers of validity in the ‘new’
70
customary marriage. The SALC was explicit in its reasons for adopting the
language that found its way into the current section 3(1)(b) requiring the marriage to
be ‘negotiated and entered into or celebrated in accordance with customary law’ in
order to qualify as a customary marriage.71 This was a conscious decision to desist
from identifying a set of practices and rituals and then prescribing them as essentials
for all traditional communities in the country.
This approach is compatible with, and indeed anticipates, the evolving nature of
customary law. Framing the provision in these terms leaves room for the admission
of new norms of customary law as they evolve from the practices of the people in
changing conditions. While this is to be applauded, it clearly raises the difficulties
alluded to elsewhere in this book about the need to ascertain living customary law by
means of evidence all the time in the quest to help the courts to apply the living
customary law as contemplated by the Constitution.
The Court considered the meaning of the words ‘the marriage must be negotiated
and entered into or celebrated in accordance with customary law’ in section 3(1)(b)
in Maluleke v Minister of Home Affairs.72 As already stated, the case involved the
custom of imvume. The validity of the marriage was challenged on the ground
that imvume did not take place.
Both counsel accepted that the word ‘negotiated’ refers to negotiations in respect
of the marriage, including lobolo, and that these negotiations had been completed. In
dispute, however, was whether a valid customary marriage had been ‘entered into or
celebrated’. The Court accepted the Oxford English Dictionary meaning of
‘celebrated’: ‘festivities or performance of a rite or ceremony’.73
180
The Court furthermore held that since the RCMA requires the validity of a
customary marriage to ‘be negotiated and entered into or celebrated’, the
negotiations which culminate in the payment of lobolo ‘seem to be the fundamental
stage in the conclusions of customary marriages.’74 The next stage of enquiry,
according to the Court, is to determine whether there are any factors that show that
the marriage was ‘entered into or celebrated’. The Court defined ‘entered into’ as it is
normally used to denote a contract, and the question is whether the parties to the
marriage had agreed that they were married. Such an agreement may either be
explicit or implicit.75
In section 3(2), read with section 10(1), the RCMA attempts to prohibit once and
for all the phenomenon sometimes referred to as a dual marriage or the infamous
‘discarded’ customary wife marriage – a ‘mixing’ of the civil and the customary
marriages systems – unless the two marriages are between the same
two parties.76 To make absolutely clear its disapproval of dual marriages, section
3(4) forbids any marriage, whether civil or customary, following on a marriage under
the Marriage Act.77 Should a couple convert their marriage from a customary
marriage to a civil marriage, the civil marriage becomes a marriage in community of
property ‘unless such consequences are specifically excluded’.78
There follows a set of provisions on the marriages of minors,79 setting out the
requirements of the consent of both parents or, in the absence of parents, the legal
guardian of the minor spouse.80 When such consent cannot be obtained, then
section 25 of the Marriage Act applies. This section called for the permission of the
Commissioner of Child Welfare, but as Heaton points out, the relevant authority
since the passage of the Children’s Act81 is now the Children’s Court.82 Section 24A
of the Marriage Act applies where a minor has contracted a customary marriage
without obtaining the requisite consent. It provides that the marriage ‘may be
dissolved by a competent court on the ground of want of consent’83 at the instance of
the parent, the guardian or the minor himself or herself. The application for
dissolution is available to the parent or guardian at any stage before the minor
attains majority or in any case within six weeks of the parent or guardian becoming
aware of the marriage. At the minor’s instance, the application is available before he
or she attains majority or within three months from that date.84 The court has to be
satisfied that dissolution is in the best interests of the minor.85
181
Customary law determines the prohibited degrees of relationship in respect of a
customary marriage.86 For example, among amaZulu, a person is not permitted to
marry another person with whom he or she has any kind of
87
blood relation. Similarly, among baSotho and baTswana, a man is not allowed to
marry any ascendant or descendant.88 While many of South Africa’s cultural
communities generally observe the principle of clan exogamy, in other words
marrying outside the clan, and the attendant taboos against incest, Jansen is correct
to warn against over-generalisation as the rules differ quite considerably from
community to community.89
The RCMA places a duty on the spouses of a customary marriage to ensure

registration of their marriage at the instance of either spouse,90 but nevertheless
states clearly that failure to register a marriage does not affect
its validity.91 Marriages concluded before 15 November 2000 had to be registered
within a year of that date92 or within any further period determined by the Minister by
notice in the Gazette.93 Those marriages concluded after the date of commencement
had to be registered within three months of the wedding or within any further period
gazetted by the Minister.94
Once a registering officer is convinced of the existence of the marriage, he or she
must register the marriage by entering the spouses’ identity, the marriage date,
any lobolo agreement including any other prescribed particulars95 and must issue a
certificate to the spouses.96
Section 4(5)(a) allows ‘any person who satisfies a registering officer that he or she
has a sufficient interest in the matter’ to enquire into the existence of the marriage by
applying in the prescribed manner to the registering officer. If the registering officer is
satisfied that a valid customary marriage exists, he or she must register the marriage
and issue a certificate.97 After investigation by the court itself on the basis of an
application to it, a court may order the registration of a customary marriage or the
cancellation or rectification of any registration.98 A registration certificate is prima
facie proof that the marriage exists.99 Section 11 empowers the Minister of Justice in
consultation with the Minister of Home Affairs to make regulations relating to various
matters of an administrative nature, including requirements to be met in applying for
registration, the documentation to be completed or furnished, and fees.100
182
COUNTER
POINT
Should registration of customary marriages be a compulsory requirement for

validity?
In its Report on Customary Marriages, the SALC was at pains to explain the dilemma
it faced with the question of registration. Referring to its Issue Paper that was
circulated at the start of the investigation, the Commission expressed itself in the
following words:
… the Commission noted a persistently low level of compliance with

the registration requirement and a considerable body of evidence
showing that the imposition of any formal requirement on customary
marriages has had the effect of depriving existing unions of whatever
limited validity they might otherwise have enjoyed. Accordingly, the
Commission argued that registration of a marriage should not be
compulsory. To allow registration at the instance of one of the parties
would sensibly acknowledge the fact that this formality has no
intrinsic merit: it is a pragmatic means of proving a marriage if and
when the spouses find it necessary to do so.101
The Commission also noted a flood of contrary opinion ranging from women’s
groups who believed that certainty in these matters was in the best interests of
women and children to public servants and human rights advocates who asserted
that compulsory registration was an international law obligation. In the end, the
Commission concluded that in the absence of a sensible penalty for failure to
register, it could not recommend that invalidity of the marriage itself should be the
sanction as this would exclude many perfectly sound marriages, putting women and
children further at risk. Recent cases such as Kambule v The Master102 and MG
v BM103 have confirmed that customary marriages which are otherwise valid
according to the RCMA are not invalidated by non-registration.104
 Before the passage of the RCMA and its promulgation on 15 November 2000,
South African common law did not recognise customary marriages as valid
183
marriages. Many anomalies flowed from non-recognition, famously illustrated
by court decisions striking down applications for relief in dependants’ actions
based on the unlawful killing of a breadwinner. These anomalies had to be
corrected by legislation in many cases.
 Since the date of commencement of the RCMA, customary marriages have

been governed by the Act.
 The RCMA recognises as valid those marriages, whether monogamous or

polygamous, contracted before the date of commencement and those entered
into after that date if they conform to the provisions of the Act.
 The RCMA prescribes the minimum age for marriage for both spouses as 18
years and makes it a requirement that they must both consent to be married
to each other under customary law. In addition to the two requirements, the
statute prescribes that in order to be valid, the marriage must be negotiated
and entered into or celebrated in accordance with customary law. This raises
important legal questions about the accessibility of the statute to would-be
spouses from outside the country or from ethnic groups other than indigenous
African peoples of South Africa.
 The RCMA regulates the marriages of minors and the steps to be followed to
conclude a valid marriage, or where the relevant steps have not been
followed, the consequences of non-compliance in respect of the status of the
marriage. The RCMA achieves this largely by extending certain provisions of
the Marriage Act to customary marriages.
 The RCMA discourages dual marriages by making it impossible for a

customary marriage and a civil marriage to coexist in respect of the same
couple. The RCMA does, however, allow a couple to convert their customary
marriage into a civil marriage.
184
 Because pre-RCMA marriages are recognised, and because ‘new’ marriages
under the RCMA must be negotiated and celebrated according to customary
law, it continues to be relevant to discuss the traditional rules and practices
relating to the formation of marriage according to customary law.
 The RCMA introduces registration of customary marriages but does not make
validity of the marriage dependent on registration. This provision has been
criticised as a failure on the part of the RCMA to remove once and for all the
uncertainty around proof of a customary marriage. A counter-argument to this
criticism is to point out the difficulty of changing cultural behaviour by
legislation and the reluctance to expose women in particular to non-
recognition again when, but for the registration, the marriage is valid and
sound in all other respects.
 Lobolo is defined in the RCMA but is not made a compulsory requirement for
the validity of a customary marriage. It is clear from other evidence, though,
that the lobolo negotiations and agreement are abiding features of customary
marriage in South Africa.
 There are challenges in ascertaining the living customary law of marriage

before and after the RCMA as many of the rules are contained in official
versions of customary law.
1Act 120 of 1998.

2S 3(1)(b) of the RCMA.
3See generally Nhlapo, TR (1992) Marriage and Divorce in Swazi Law and
Custom 44; Armstrong, A et al (1993) Uncovering reality: Excavating women’s
rights in African family law International Journal of Law, Policy and the
Family 7(3):314–369; Nhlapo, TR (1991) The African family and women’s
rights: Friends or foes? Acta Juridica 135:135–46 at 137–8; South African Law
Commission (1998) Project 90 The Harmonisation of the Common Law and the
Indigenous Law Report on Customary Marriages.
185
4Ferraro, G (1980) Swazi Marital Patterns and Conjugal Roles: An Analysis and
Policy Implications.
5See SALC (1998) Report on Customary Marriages 40; Van Schalkwyk, LN (2003)
Law reform and the recognition of human rights within the South African family
law with specific reference to the Recognition of Customary Marriages Act 120
of 1998 and Islamic marriages De Jure36(2):289–327 at 299. See also Jansen,
R-M ‘Customary family law’ in Rautenbach, C, Bekker, JC and Goolam, NMI
(eds) (2010) Introduction to Legal Pluralism in South Africa 3rd ed 54 who
refers to the RCMA’s failure to introduce state intervention into customary
marriages as a ‘grave omission’.
6It may continue through the invocation of the customs of the sororate or the levirate.
See generally SALC (1998) Report on Customary Marriages; Phillips, A (ed)
(1953) Survey of African Marriage and Family Life xi–xvii.
7The RCMA was promulgated on 15 November 2000.
9See s 2(1)–(4) of the RCMA.
10See Seedat’s Executors v The Master (Natal) 1917 AD 302.
11(1892–1893) 10 SC 346 at 352.
12(1866) LR 1 P&D at 130.
131917 AD 302.
141917 AD 302 at 309. See also Santam v Fondo 1960 (2) SA 467 (A) and Ismail v
Ismail 1983 (1) SA 1006 (A).
15S 57(2) of the Natal Code of Zulu Law Proc R151 of 1987.
16According to s 11(1) of the Black Administration Act 38 of 1927 (BAA), now
repealed.
17Dlamini, CRM (1999) The ultimate recognition of the customary marriage in South
Africa Obiter 20(1):14–40 at 16.
18See, for example, Nkambula v Linda 1951 (1) SA 377 (A).
19S 1 of the Income Tax Act 58 of 1962.
20S 5(6) of the Maintenance Act 23 of 1963.
21S 31 of the Black Laws Amendment Act 76 of 1963.
22SALC (1998) Report on Customary Marriages. The Commission reported its
findings to the Minister in August 1998. This was the second SALC report on
African customary marriages. In 1986, the Report on the Marriages and
186
Customary Unions of Black Persons had recommended full recognition for
23SALC (1998) Report on Customary Marriages para 3.1.13.
24Act 38 0f 1927.
25S 35 of the BAA as amended by s 9 of the Black Administration Amendment Act 9
of 1929 described a customary union as ‘the association of a man and a
woman in a conjugal relationship according to Black law and custom, where
neither the man nor the woman is party to a subsisting marriage’.
26Nkambula v Linda 1951 (1) SA 377 (A); Peart, NS (1983) Civil or Christian
marriage and customary unions: The legal position of the ‘discarded’ spouse
and children Comparative and International Law Journal of Southern
Africa 16(1):39–64 at 40–1.
27S 1 of the RCMA. Maithufi, IP (2000) The Recognition of Customary Marriages Act
of 1998: A commentary Tydskrif vir Hedendaagse Romeins-Hollandse
Reg 63(3):509–16 at 513.
28S 1 of the RCMA. Maithufi (2000) 513 notes that the definition studiously avoids
the notion of payment.
29S 2(1)–(4) of the RCMA. See Heaton, J (2010) South African Family Law 3rd ed
209 fn 3 for a helpful list of articles and commentaries on the early debates
about the constitutionality of the recognition of customary marriages which she
declares, correctly in our view, to be ‘no longer contentious’.
302010 (4) SA 286 (GNP).
31(474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071
(SCA); [2012] 3 All SA 408 (SCA) (1 June 2012).
May 2013).
33For a discussion of the extent of the application of the Constitutional Court
decision, see Himonga, C and Pope, A (2013) Mayelane v Ngwenyama and
Minister for Home Affairs: A reflection on wider implications Acta Juridica 318–
38.
34See, for instance, Gumede v President of the Republic of South Africa (CCT
50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8
December 2008) where the Constitutional Court declared s 7(1) and s 7(2) of
the RCMA to be unfairly discriminatory against women and therefore
187
unconstitutional. S 7(1) was impugned in respect of those aspects that applied
to monogamous marriages; s 7(2) in respect of the words ‘entered into after the
commencement of this Act’. These provisions are discussed in more depth in
ch 7 of this book.
35See Nhlapo (1992) 63–71. See also Dlamini (1999) 15; Jansen (2010) 50;
Maithufi, IP and Bekker, JC (2002) The Recognition of Customary Marriages
Act of 1998 and its impact on family law in South Africa The Comparative and
International Law Journal of Southern Africa35(2):182–97.
36We believe that this is the only construction that makes sense of the presumed
intention of the SALC and the legislature in defining customary law in the way
they did in s 1 of the RCMA. That intention must surely have been to
distinguish between local normative systems originating in values other than
those of European origin without resorting to the politically sensitive labels of
‘black’ and ‘white’. In this way, the African tradition can be honoured without
excluding non-members (who may voluntarily adopt this lifestyle) in ways that
offend against the non-discrimination provisions of the Constitution. We use the
terms ‘black’ and ‘white’ in this illustration in acknowledgement of the fact that
the question is invariably posed in these terms.
37Nhlapo (1992) 3. See also Nhlapo, TR (1989) International protection of human
rights and the family: African variations on a common theme International
Journal of Law, Policy and the Family 3(1):1–20.
38This is the case, for instance, in various versions of arranged marriages or other
forms of irregular marriage. See generally Jansen (2010) 47–9. See also
Nhlapo (1992) 59–63 on devised (arranged) marriages.
39Nhlapo, TR ‘The African customary law of marriage and the rights conundrum’ in
Mamdani, M (ed) (2000) Beyond Rights-Talk and Culture-Talk: Comparative
Essays in the Politics and Rights of Culture 136–48.
40In the understanding of many traditional communities, this lies at the heart of the
difference between African courtship rituals and Western rituals. To these
communities, it is not so much asking for the woman’s ‘hand in marriage’ as it
is an offer of ‘lighting a fire of friendship’ to use a popular opening line in the
negotiations.
41See generally Chigwedere, AS (1982) Lobolo: The Pros and Cons; Dlamini, CRM
(1984) The modern legal significance of ilobolo in Zulu society De Jure 1:148–
188
66; Dlamini, CRM (1985) Should ilobolo be abolished? A reply to Hlophe The
Comparative and International Law Journal of Southern Africa 18(3):361–76;
Hlophe, JM (1984) The KwaZulu Act on the Code of Zulu Law 6 of 1981: A
guide to intending spouses and some comments on the custom of ilobolo
Comparative and International Law Journal of Southern Africa 17(2):163–71;
Chinyenze, M (1983–4) A critique of Chigwedere’s book Lobolo: The Pros and
Cons in Relation to the Emancipation of Women in Zimbabwe Zimbabwe Law
Review 1 and 2. For a particularly negative missionary view, see the 1872
Report of the Commission on the Laws and Customs of the Basotho cited in
Poulter, SM (1976) Family Law and Litigation in Basotho Society 65.
42See generally De Koker, JY (2001) Proving the existence of an African customary
marriage Journal of South African Law 2:257–93.
43Nhlapo (1992) 59 ff; Holleman, JF (1975) Shona Customary Law: With Reference
to Kinship, Marriage, the Family and the Estate. The custom
of ukuthwala originally fell into this category.
44Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7)
BCLR 743 (C) (4 March 2003) para 22.
45Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April
2008).
46S 2(1) and s 2(3) of the RCMA.
47See SALC (1998) Report on Customary Marriages 18–22. See also Heaton
(2010) 40 fn 35 who points out the dilemmas inherent in ascertaining the
content of living customary law.
48The judgment of the Constitutional Court in Gumede indicates that the KwaZulu
Act on the Code of Zulu Law 16 of 1985 and the Natal Code of Zulu Law Proc
R151 of 1987 have been partially invalidated. Refer also to ch 7 of this book on
the consequences of marriage where these invalidations are discussed.
49The notion of an official witness makes its first appearance in the Codes although
it appears to be compatible with and based loosely on the traditional
understanding of the role of the Chief’s runner (umgijimi) in some Nguni
communities. The Chief’s runner was the eyes and ears of the traditional
leader at local events and functions although there is no suggestion that the
role traditionally included the verification of the bride’s consent.
189
50According to Bekker and Rautenbach (2010) 34, despite the silence, ‘it is in fact
inconceivable that a customary marriage can be concluded without an
agreement for the delivery of lobolo’. See also Heaton (2010) 206 who asserts
that lobolo is ‘customarily delivered’ in respect of a customary marriage.
51Ss 43, 47, 51 and 52 and Ch 8 of both Codes.
52See, for example, Heaton (2010) 206.
53Jansen (2010) 50–8; Olivier, NJJ et al ‘Indigenous law’ in Joubert, WA (ed)
(2009) The Law of South Africa 2nd ed Vol 32 para 95; Bekker, JC
(1989) Seymour’s Customary Law in Southern Africa 5th ed 105–25; Sinclair,
JD (1996) The Law of Marriage Vol 1 242–5; SALC (1998) Report on
Customary Marriages.
54Olivier (1998) 17–21 as cited by Jansen (2010) 51. See also s 31 of the Transkei
Marriage Act 21 of 1978.
55See, for example, Nhlapo (1992) 66–9 whose work among emaSwati of Swaziland
casts doubt in particular on the numerous requirements for consent that are
specified.
56(1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4
March 2003).
57Mabuza v Mbatha para 25.
58Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April
2008) para 10.
591998 (2) SA 1068 (T).
60(2973/09) [2009] ZAGPPHC 29; 2009 (5) SA 400 (GNP) (20 April 2009).
612008 (5) SA 405 (C).
62[2013] JOL 30820 (GNP).
63(46316/09) [2010] ZAGPJHC 122; [2011] 2 All SA 324 (GSJ) (1 November 2010).
64Raisiba Maria Mathaba v Minister of Home Affairs para17.
65(2012/10855) [2013] ZAGPJHC 135 (9 May 2013).
66[2013] JOL 29847 (GNP).
67In both this case and Radebe v Road Accident Fund there is a sense generated
that the verb ‘celebrated’ in s 3(1)(b) of the RCMA is increasingly being
construed to mean festivities such as a party rather than ‘solemnised’, which is
presumably the meaning intended by the legislature. Indeed in PSC v LPM, the
challenge to the applicant’s claim that she was ceremonially received into the
190
husband’s family was based on the allegation that the event she was referring
to was a child’s tenth birthday party, which was the wrong kind of ‘party’ from
the one required by the RCMA. This may not cause any problem where, as in
this case, the function in question incorporated some identifiable and
necessary customary ritual. The courts will have to be vigilant to prevent a
requirement for solemnisation according to customary law turning into a
requirement for a party.
68This case is used in this book with the permission of the couple to the marriage.
69S 2(2) and s 2(4) of the RCMA.
70For critiques of the ‘new’ customary marriage, see generally Mqeke, RB (1999)
The ‘rainbow jurisprudence’ and the institution of marriage with emphasis on
the Recognition of Customary Marriages Act 120 of 1998 Obiter 20(1):52–68;
Maithufi and Bekker (2002) on the choice of 18 years as the age of consent for
both spouses. See also the illuminating discussion in SALC (1998) Report on
Customary Marriages 70–7.
72(02/24921) [2008] ZAGPHC 129 (9 April 2008) para 8.
73But see our remarks in fn 67.
74Maluleke v Minister of Home Affairs para 12.
75Maluleke v Minister of Home Affairs para 13.
76See Netshituka v Netshituka 2011 (5) SA 453 (SCA).
77Act 25 of 1961. The SALC (1998) Report on Customary Marriages makes it clear
that the mischief sought to be cured by these provisions was the ‘dual
marriage’ which bedevils all systems in which both civil and customary
marriages are fully recognised. Para 3.3.6 explains the thinking behind the
provisions:
Conversion from a customary marriage to a civil marriage, but not
vice versa, should be allowed. This right should be based not on the
alleged superiority of any one marriage form, but rather on the
practical consideration that movement from a more open-ended and
facilitative arrangement to a stricter and more highly regulated
regime makes better sense than the reverse would do. It can be
reasonably assumed that the parties consciously intended, for
reasons of their own, to submit themselves to the stricter rules.
191
78S 10(2) of the RCMA.
79S 3(3)–(5) of the RCMA.
80S 3(3)(a) of the RCMA.
81Act 38 of 2005.
82S 18(3) of the Children’s Act. Heaton (2010) 207, 215–17.
83S 24(A)(1) of the Marriage Act.
84S 24A(1)(a) and (b) of the Marriage Act.
85S 24A(2) of the Marriage Act.
86S 3(6) of the RCMA; Jansen (2010) 3.3.3.2.
87Jansen (2010) 3.3.3.2.
88Jansen (2010) 3.3.3.2.
89See Jansen (2010) for examples. See also Nhlapo (1992) 58 on emaSwati.
90S 4(2) of the RCMA, but see clause 4(2) of the draft Recognition of Customary
Marriages Amendment Bill, 2009 which will require an application by both
spouses in future.
91S 4(9) of the RCMA. After much consultation and debate, the SALC consciously
opted for a provision that would not further expose perfectly sound customary
marriages to the risk of invalidity by making registration compulsory (65–70).
93Extensions so far gazetted by the Minister have been through GN 1228 GG 22839
of 23 November 2001, GN R1391 GG 31735 of 24 December 2008 and GN
R51 GG 32916 of 5 February 2010, bringing the date on which registration
needed to occur up to 31 December 2010.
94S 4(3)(b) of the RCMA. The Minister has extended the original period by GN
R1390 GG 31735 of 24 December 2008 and GN R54 GG 32916 of 5 February
2010, again bringing the date to 31 December 2010.
95S 4(4)(a) of the RCMA. It is interesting to note that, apart from the definition
section, this provision is the only other place in the RCMA where lobolo is
mentioned by name.
97S 4(5)(b) of the RCMA, but see clause 4(c) of the draft Recognition of Customary
Marriages Amendment Bill which does away with s 4(5).
192
99S 4(8) of the RCMA. See Ndlovu v Mokoena (2973/09) [2009] ZAGPPHC 29;
2009 (5) SA 400 (GNP) (20 April 2009) where the Court ordered cancellation of
registration. In Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC
129 (9 April 2008), an application for cancellation was refused.
100The Regulations were published in GN 1101 GG 21700 of 1 November 2000.
102(85) [2007] ZAECHC 2; [2007] 4 All SA 898 (E) (8 February 2007).
103(10/37362) [2011] ZAGPJHC 173; 2012 (2) SA 253 (GSJ) (22 November 2011).
104See also Thembisile v Thembisile 2002 (2) SA 209 (T) in which the Court
confirmed, obiter dictum, that non-compliance with s 4(9) of the RCMA does
not affect the validity of the marriage.
193
Chapter 7
Consequences of marriage
7.1 Introduction

7.4.3.1 Introduction
before 15 November 2000
after 15 November 2000

7.5.2 The effect of the Bill of Rights and the principle of the best interests of the
child on the affiliation of children

7.6.1 Introduction
7.6.4.1 Monogamous customary marriages in terms of the RCMA and the
MPA
7.6.4.1.1 Marriage in community of property
(a) Management of the joint estate
194
(i) Juristic acts requiring joint consent
(ii) Dispensing with the other spouse’s consent
(iii) Juristic acts in respect of which no consent is
required
(b) Protection of third parties and spouses inter se in
relation to the management of the joint estate
(i) Suspension of administration powers and
division of the estate
(ii) Interdict
(iii) Right of recourse
(iv) Actio Pauliana utilis
(v) Declaration of prodigality
7.6.4.1.2 Marriage out of community of property
7.6.4.2Polygamous marriages in terms of the RCMA
7.6.5Alteration of the matrimonial property regime
7.6.5.1Alteration of pre-RCMA polygamous marriage property regimes
7.6.5.2Alteration of post-RCMA monogamous marriage property regimes
7.1 Introduction
This chapter covers the following consequences of marriage: the legal status of the
spouses, the parent and child relationship and the proprietary consequences, as well
as how they can be altered.
In this chapter, we have made considerable use of the findings of the South African
Law Commission (SALC), now the South Africa Law Reform Commission (SARLC),
on customary marriages as a starting point in respect of the content of customary
law. These findings led to the reform of customary law with the enactment of the
Recognition of Customary Marriages Act (RCMA).1 The SALC’s findings were
reported in its Report on Customary Marriages in 1998.2
195
The RCMA has imported a considerable amount of the law governing civil marriages
to regulate important aspects of the consequences of a customary marriage. A
discussion of this body of law would help to give a complete picture of the
consequences of a customary marriage. However, the scope of this chapter
discourages an in-depth examination. Accordingly, we provide only a summary of the
relevant law while referencing standard textbooks on the consequences of a civil
marriage for a detailed discussion of the law concerned.
COUNTER
POINT
The state of the law governing consequences of marriage

The current state of the law regulating the consequences of customary marriage
raises two important points for consideration. The first point is the need for the
consolidation of the law that is scattered in different sources.
The law governing customary marriages since the RCMA came into operation is
fragmented in the sense that it is located in different pieces of legislation and
the common law regulating civil marriages. The RCMA has extended these laws
and, presumably, the precedents decided on them to
customary marriages.3 Furthermore, there is no single book devoted to the
comprehensive discussion of the ‘imported’ laws as they relate to customary
marriages.
This fragmentation of the law is unsatisfactory. It makes the law regulating
customary marriages, including the consequences of these marriages, difficult to find
without traversing different sources on the law governing civil marriages. There is,
therefore, an urgent need to consolidate the law regulating civil marriages that has
been extended to customary marriages into one source.
The second point is the wisdom of superimposing the law governing civil
marriages onto customary law. As pointed out, the RCMA has imported a large body
of this law. The problem is that some of this law and customary law regulating the
consequences of marriage are premised on different social and economic realities. A
clear example is the type of matrimonial property system envisaged by the law
regulating civil marriages in community of property discussed under paragraph
7.6.4.1. below. This kind of property regime is not common in the poverty-stricken
196
rural areas to which the superimposed law is also intended to apply.4 Other
examples of impositions of common law on customary law will be discussed in
relevant sections of this chapter.
Different legal regimes, namely the pre-RCMA and the post-RCMA regimes, govern
the law regulating the proprietary consequences of customary marriages. In the
belief that pre-RCMA regimes will sooner or later cease to exist, a major focus of this
chapter is on the consequences of a marriage entered into after the coming into
force of the RCMA. Again, we refer in appropriate sections to standard textbooks
that deal with the consequences of pre-RCMA marriages.
Customary law does not have a fixed age at which a person attains full adulthood.
Instead, a variety of factors, such as initiation and marriage, makes up the process
leading to adulthood.5 The RCMA changed the effect of marriage regarding the
status and capacity of the spouses under customary law. In the following sections,
we discuss the status and capacity of a married woman and a married minor.
The attainment of full status in traditional society cannot be described solely in terms
of the concept of majority as this may be seen as too narrow a concept. Individuals
attain the status of elderhood progressively through milestones in their individual
lives, such as the kinds of rituals they undergo,6 marriage and parenthood. For
example, traditionally, a man only attained full capacity and adulthood when he
established a separate homestead after marriage.7 Similarly, a woman’s movement
up the social ladder to the status of an elder was indicated by marriage, the birth of
her children and their own respective attainment of the status of an elder and in the
case of polygamous marriages, her seniority in the marriage.8
Under official customary law, in other words section 11(3)(b) of the Black
Administration Act (BAA)9 before its repeal, the marriage of a black woman had the
consequence of making her a minor under the tutelage of her husband. However,
the RCMA changed the official customary law on the age of majority by applying the
Age of Majority Act10 to persons subject to customary law as well. Section 9 of the
RCMA provides that ‘[d]espite the rules of customary law, the age of majority of any
197
person is determined in accordance with the Age of Majority Act, 1972 (Act 57 of
1972)’. According to the Age of Majority Act, a person attained majority at the age of
21 years. However, the Children’s Act11 repealed the Age of Majority Act. Section 17
of the Children’s Act now fixes the age of majority at 18 years.
In brief, all persons attain majority at the age of 18 years. Married women,
including those women married under customary law, are no longer minors under the
tutelage of their husbands.
However, there is a need to reflect further on the questions arising from the repeal
of the Age of Majority Act by the Children’s Act against the background of
constitutional provisions.
PAUSE FOR
REFLECTION
Age of majority under customary law: implications of the Children’s Act and
the Constitution
As stated above, the Children’s Act implicitly repealed section 9 of the RCMA on
majority status with the result that despite customary law, all persons are majors at
the age of 18 years. A number of questions may be asked about this:
•How is this way of changing customary law to be understood in the light of section
211(3) of the Constitution which subjects the application of customary law to
‘legislation that specifically deals with customary law’?
•While the RCMA that overruled the customary law on majority status by applying the
Age of Majority Act can be considered to be ‘legislation that specifically deals with
customary law,’ can this be said of the Children’s Act to justify its change of the
age of majority for people who are subject to customary law from 21 to 18 years?
Does this approach deny customary law its independent existence that is implicitly
guaranteed by the Constitution?
•Finally, does this application of legislation, which does not on the face of it deal
specifically with customary law, lead to the eradication or replacement of
customary law by other systems of law without appropriate legislative consultation
processes having taken place?
The answer to these questions seems to be that given that 18 years of age is also
enshrined in the Bill of Rights as marking the end of childhood, the Children’s Act
198
simply legislated on a constitutional norm. This norm should then apply to
everyone and to all systems of law, including customary law. Furthermore, the
Children’s Act includes customary marriages in its definition of marriage.12 This
suggests that the customary law regulating marriage may not depart from the
provisions of the Children’s Act involving marriage. Thus, the age of majority can no
longer be defined in terms of the customary concept of adulthood.
The extension of the Age of Majority Act to customary law sought to enhance the
legal capacity of black women whose legal capacity was usually inferior to that of
men as husbands or siblings.13 As already stated, under official customary law, the
marriage of a black woman resulted in her becoming a minor and, therefore, of
unequal status with her husband. To ensure that all married women are adequately
protected in terms of equal status, section 6 of the RCMA effects a more general
reform of customary law. This section provides that:
[a] wife in a customary marriage has, on the basis of equality with her
husband and subject to the matrimonial property system governing
the marriage, full status and capacity, including the capacity to
acquire assets and to dispose of them, to enter into contracts and to
litigate, in addition to any rights and powers that she might have at
customary law.
Although the RCMA does not provide for retrospective application, it seems that
rules introduced by the Act on the equal status of the spouses apply both to
marriages entered into before and after the Act came into force on 15
November 2000.14 This would be consistent with the approach taken by the
Constitutional Court in Gumede v President of the Republic of South Africa.15 This
decision applied the invalidation of legislation to some marriages retrospectively to
prevent discrimination against women who had been married under customary law
before the RCMA came into operation.
Furthermore, the RCMA abolished marital power for all marriages entered into
after the RCMA by repealing the relevant sections of the BAA, the Transkei
Marriage Act,16 the KwaZulu Act on the Code of Zulu Law17 and the Natal Code of
Zulu Law.18 Marital power severely limited the legal status of married women under
customary law. In this respect, the Constitutional Court in Gumedeaptly remarked:
199
The legislation [the RCMA] entrenches the equal status and capacity
of spouses and sets itself the task of regulating the proprietary
consequences of these marriages. In doing so, the Recognition Act
abolishes the marital power of the husband over the wife and
pronounces them to have equal dignity and capacity in the
marriage enterprise.19
The subjection of the wife’s legal status to the matrimonial property systems in
section 6 of the RCMA means that matrimonial property systems must be closely
examined on a case-by-case basis to determine the exact legal status of a married
woman. For example, antenuptial contracts may contain provisions that in some way
affect the status of wives in relation to their husbands in marriages out of community
of property.
The abolition of married women’s minority status and the elevation of their general
legal status have also encroached on the concept of the husband as head of the
family. This means that wives have the right to participate in decision making on
marital matters such as the rearing of children, birth control and the purchase and
alienation of family property, subject, with regard to the latter, to the spouses’
matrimonial property system.20
However, the equality of wives with their husbands raises difficult questions in the
context of some rights in the Constitution. These are discussed below.
COUNTER
POINT
Balancing the right to culture with other rights

In relation to the equal status of husbands and wives under the RCMA, how are we
to view the position held by the House of Traditional Leaders (Eastern Cape) that
‘the husband, as a link to the ancestors, should be the formal spokesperson and
head of the family’?21 The answer to this question may require a critical discussion of
the balance to be drawn between the right of husbands and wives to equality, on the
one hand, and the right of a people to practise their culture on the other.
In the context of the right to culture, the spouses are entitled to structure their
marriage relationship in accordance with their traditions, which may require men and
women to play different roles in the family. One of the husband’s roles might be that
200
of being a link to the ancestors. However, the structure of the relationship adopted
must not impair the dignity of the wife or infringe on any of her other constitutional
rights.
Generally, the reform of customary law relating to the legal status of married women
must be understood against the backdrop of centuries of state-engineered violation
of women’s and children’s rights in the colonial, Union and apartheid legal systems.
A brief discussion of this historical context follows below.
PAUSE FOR
REFLECTION
The backdrop to the reform of customary law

Traditionally, the principle of patriarchy generally subordinated women to men’s
power and wives enjoyed fewer entitlements in their marital relations with their
husbands than husbands did. For example, the husband was considered to be the
head of his family or household. Accordingly, he made the major decisions
concerning his family. Furthermore, once he had paid lobolo, the husband and his
family were entitled to have the children of the marriage affiliated to their family to the
exclusion of the mother and her family.22
Later, after the establishment of the Commissioners’ Courts in 1927, these Courts
introduced the common law split between the concepts of custody and guardianship
into customary law, along with the principle of the best interests of the child.
However, while these Courts applied the best interests principle to custody and were
able to grant custody to mothers in appropriate circumstances, they continued to
apply customary law to disputes over guardianship which they awarded to fathers.23
The legal status of the wife worsened with the emergence of official customary law
following the introduction of the colonial, Union and apartheid legal systems that
entrenched the inferior position of women’s standing in law. In particular, legislation
changed the legal status of married women to that of minors under the guardianship
of their husbands.24 As minors, they lacked the capacity to contract, to sue and be
sued in their own names in court, and to hold and to dispose
of property.25 Unfortunately, this minority status did not grant married women the
same benefits of special protection granted to a minor under the common law.26
201
Two amendments aimed at improving the legal status of women generally were
made to the BAA. Section 11(3), which was introduced in 1943, gave women subject
to customary law the capacity to enter into contracts under the common law and the
capacity to sue or be sued in actions concerned with these contracts. Section 11A
inserted in 1985 gave women limited capacity to acquire statutory rights to land in
African townships under newly enacted laws, especially 99-year leaseholds created
under the Laws on Co-operation and Development Second Amendment Act.27
While unmarried women benefitted from these provisions, section 11(3)(b) of the
BAA continued to restrict the legal status of married women living outside Natal. It
provided that:
A Black woman (excluding a Black woman who permanently resides

in the province of Natal) who is a partner in a customary union and
who is living with her husband, shall be deemed to be a minor and her
husband shall be deemed to be her guardian.
This section represented a typical distortion of living customary law through the
application of the common law concepts of minority and guardianship. The SALC
rightly observed that the common law concepts of minority and guardianship ‘could
not capture the actual nuances of female status’ and that this section ‘did not reflect
the social reality that married women were living independent lives’.28
However, the SACL found that even living customary law was not always women-
rights-friendly. To the contrary, it was nebulous and contradictory and it was far
from clear what the rules of contemporary customary law on the legal status of
spouses in marriage were.29 In its assessment, the uncertainty surrounding
contemporary customary law regulating the status of the spouses required legislative
intervention to provide for the equal status of spouses.30 The RCMA followed the
SALC’s recommendation and included section 6 in the Act.
Against this background, section 6 of the RCMA sought, as already stated, to
remove the vestiges of married women’s incapacities, most of which had become
rooted in state law. Most importantly, this provision gave effect to the principles of
gender equality in marriage guaranteed by sections 9(2) and (3) of
the Constitution.31 Similarly, the provisions of the RCMA regulating the child-parent
relationship were intended to cure defects in customary law rules that, according to
202
Bennett, focused on the affiliation of children rather than the rights of children,
including their best interests.32
All the changes to the status of spouses noted in the paragraphs above also have
significance in international human rights law. They ensure that South Africa is
compliant with its obligations under the Convention on the Elimination of All Forms of
Discrimination Against Women of 1979 to which it is a signatory. Section 15(2) of this
Convention obliges states to:
accord to women, in civil matters, a legal capacity identical to that of

men and the same opportunities to exercise that capacity. In
particular, they shall give women equal rights to conclude contracts
and to administer property and shall treat them equally in all stages of
procedure in courts and tribunals.
The discussion of the rules regulating the personal status of spouses in the
preceding paragraphs assumes that the marriage is monogamous. The relevant
statutory provisions considered make no specific reference to polygamous
marriages. However, there is no reason why these rules should not apply to the
personal relationship between the husband and each individual wife in a
polygamous marriage.33
What is less certain is how the personal status between one wife and another is
regulated. To answer this question, it is necessary to distinguish between
polygamous marriages contracted before and after the RCMA came into operation.34
While the civil marriage of a minor under the Marriage Act confers majority status on
him or her, marriage does not seem to have a similar consequence under customary
law. As already stated, the attainment of adulthood (‘majority’) under customary law
is a progressive process rather than a single event such as marriage.
However, it has been argued that on the basis of equal treatment, the marriage of
a minor according to customary law has the same effect as that of a minor married
under the Marriage Act.35 Nevertheless, we submit that, in the context of the
relationship between the common law in a broad sense and customary law
203
established by the Constitution, this argument is controversial and deserves
discussion.
COUNTER
POINT
Attaining majority through marriage: the relationship of customary law to the

common law under the new constitutional dispensation
The Bill of Rights accords customary law and the common law equal status.36 It is
arguable that the proposition for achieving equality of the married minor under
customary law by applying the common law undermines this status of customary law
in relation to the common law.
Furthermore, section 211(3) of the Constitution imposes a duty on the courts to
apply customary law subject only to the Constitution and any legislation that
specifically deals with customary law, and not to the common law as well. Thus, in
the absence of legislation that supersedes customary law, a marriage under
customary law does not have the consequence of conferring majority status on a
minor. This issue should therefore be determined according to customary law until
the law has been appropriately changed. At the very least, it is still an open question
whether the marriage of a minor in terms of the RCMA confers majority status on the
minor.
This argument is far from saying that the position of a married minor under
customary law passes constitutional muster. Rather, it simply asserts that the
constitutionality of customary rules on this and other subjects must be evaluated
independently of the common law rules and within the constitutional framework for
the recognition of customary law. It should also be emphasised that this framework
includes the development of customary law according to the spirit, objects and
purport of the Bill of Rights.37 These aspects of the framework do not countenance
the idea that customary law should merely be set aside in preference for common
law positions in the name of equality or some other constitutional principle.
204
7.4.3.1Introduction
Unlike a civil marriage, a customary marriage is potentially polygamous

in nature.38 In this regard, section 2(3) of the RCMA provides that ‘[i]f a person is a
spouse in more than one customary marriage, all valid customary marriages entered
into before the commencement of this Act are for all purposes recognised as
marriage’. Similarly, section 2(4) provides for the recognition of polygamous
marriages entered into after the commencement of the RCMA.
Although these provisions are couched in gender-neutral language, they do not
permit wives to have more than one husband at the same time. The RCMA does not,
therefore, permit polyandry. Thus, for the wife (but not for the husband), the
consequence of entering into a customary marriage is that the husband may at any
time marry another woman during the subsistence of their marriage.
However, in Mayelane v Ngwenyama,39 the Constitutional Court qualified the right
of the husband to enter into polygamous marriages by requiring him to obtain the
consent of the first wife in order to conclude a valid subsequent marriage or
marriages. Briefly, the facts were that the applicant, Ms Mayelane, and the
respondent, Ms Ngwenyama, both alleged that each one of them had concluded a
marriage with the deceased.40 The marriage of the applicant took place in 1984 while
the respondent alleged that she had married the deceased in 2008. Each of them
disputed the validity of the marriage of the other. Consequently, the applicant,
Mayelane, sought a High Court order declaring her marriage valid and that of
Ngwenyama to be null and void for lack of the first wife’s consent to the subsequent
marriage. The High Court granted her petition, whereupon the respondent,
Ngwenyama, appealed to the Supreme Court of Appeal (SCA). The SCA held both
marriages to be valid. Mayelane then approached the Constitutional Court which
held her marriage to be valid, but nullified the marriage of Ngwenyama for lack of
consent of the first wife.
The Constitutional Court ruled that Tsonga customary law requires a first wife to
consent to her husband taking an additional wife to validate the second marriage. It
also developed Tsonga customary law to include a requirement that the consent of
the first wife is necessary for the validity of a subsequent customary marriage to the
extent that it does not yet do so.41 In reaching these decisions, the Court relied, inter
205
alia, on the application of the constitutional rights to equality and dignity.42 The extent
of the application of this decision deserves further discussion.
COUNTER
POINT
Does the Constitutional Court decision in Mayelane apply to all indigenous

communities in South Africa?
In answer to the question posed above, some may argue that Mayelane applies to all
customary laws, not only to Tsonga customary law, because of its status as a
Constitutional Court decision. Consequently, men from any indigenous community
are required to obtain the consent of their existing wife or wives to enter into a
subsequent marriage, failing which the subsequent marriage is void.
Himonga and Pope agree that the judgment applies uniformly to all customary
laws in one sense:
As a result of this decision, it is incumbent upon the adherents of

each customary law system to ensure that their principles of consent
either meet, or are developed to meet, the constitutional principles of
equality and dignity in respect of first wife, husband and prospective
or existing subsequent wives in a polygamous marriage.43
However, they otherwise argue against an indiscriminate application of this decision

to all customary laws which does not take account of several important factors that
they discuss. Three of these may be mentioned:44
•First, living customary law is not based on precedent but on the practices of the
community concerned. Consequently, ‘a finding about the customary law of one
group is generally not applicable to other groups in the same way that the doctrine
of precedent applies in common law circumstances’.45
•Second, the Constitutional Court acknowledged in its judgment that it was ‘not able
to determine what the position in customary law systems other than the Xitsonga
system is’.46
•Third, while the constitutional principles of equality and dignity apply to all
customary law, it is still necessary to consider the nuances of different systems of
customary law because they may satisfy the constitutional principles in question
differently but adequately.
206
The fact that the husband but not the wife can have more than one spouse
simultaneously raises the question whether the constitutionality of polygamy could
be challenged.
COUNTER
POINT
Constitutionality of polygamy
The courts have not yet addressed the constitutionality of polygamy. In Mayelane,
the majority did not entertain the question about the constitutionality of this practice
because the issue was not before the Court.47 Similarly, the Constitutional Court
glossed over the issue in Bhe v Khayelitsha Magistrate.48 The Court, arguably,
implicitly approved of the practice by amending the Intestate Succession Act,49 which
it applied to customary estates, to include heirs in polygamous marriages.50 Thus,
the constitutionality of the practice of polygamy remains untested judicially.
The constitutionality of polygamy could be challenged on the ground that it unfairly
discriminates against women in terms of section 9 of the Constitution. Alternatively, it
could be argued that polygamy violates women’s right to dignity because only men
can have more than one wife while women cannot have more than one husband.
The following points may form the basis of arguments on one or the other side:51
•Polygamy performs valuable social functions by enabling a woman who may
otherwise remain unmarried to have a family. Thus, allegations of the
unconstitutionality of polygamy must be balanced against its perceived benefits.
•The consent of the woman to be in a polygamous marriage vitiates any
wrongfulness in polygamy from the point of view of fairness. In other words, why
should women not be free to choose a marriage of this kind? In this respect,
Dlamini observes:
It is hard to believe that a woman who decided freely to be involved in

a customary marriage after taking all factors into account could be
regarded as being discriminated against unfairly. If she entered into
the marriage from her own free will and volition the state has no
business in not recognising that marriage on the ground that it makes
her unequal to whomever … For some women it may sound hollow
that their marriage is not recognised in order to make them equal with
207
other women or men and to protect their dignity when in fact to attack
their marriage is to affront their dignity.52
•In answer to Sinclair’s criticism that his views ‘are cold comfort to women who are in
favour of gender equality,’53 Dlamini argues that this may be an oversimplification
of the situation by Sinclair because the protection of cultural rights is closely
connected with the dignity of the people whose culture is in question. He states:
Demeaning one’s culture often leads to one’s dignity and feelings of

self-worth being affected because culture is intimately intertwined
with the emotions of the people. No woman should be compelled to be
part of a customary marriage against her will. If she insists on
monogamy as guarantee of equality, she must marry in terms of civil
marriage because that type of marriage does not allow polygyny.54
•In these contexts, Dlamini also sees a situation where the constitutional requirement
of freedom of choice of the woman may check the pursuit of her rights to equality
and dignity.55
•Polygamy per se is not the cause of the subordination of women to men or of
prejudice or abuse suffered by women in marriage. Rather, ‘it is one factor
contributing to the patriarchal nature of society’.56
•The constitutionality of polygamy must be weighed against the suffering this practice
inflicts on women.57
•Abolishing polygamy is too controversial. The institution must be left to die a natural
death as changing economic conditions are leading to the inability of men to afford
to marry and support more than one wife.
•It would be impossible to enforce a prohibition against polygamy.58
7.4.3.2The status of wives inter se in polygamous marriages concluded before 15

November 2000
Terminology
simple marriage a polygamous marriage which consists of only two wives
complex marriage a polygamous marriage which consists of three or more wives
208
In the context of polygamy, a separate house is established for each wife on
marriage and the husband allots property to that house. A polygamous marriage
which consists of only two wives is called a simple marriage. Where the marriage
consists of three or more wives, it is known as a complex marriage.59 In this kind of
marriage, the wives are ranked according to the customary law concerned. For
example, among amaZulu of KwaZulu-Natal, there are three principal wives in the
kraal of a chief: ‘inkosikazi, or the indlunkulu; … the iqadi, or left-hand wife; …
the ikhohlo, or right-hand wife. All other wives a chief may take are affiliated to one
or other of these principal wives’.60
It would appear that customary law continues to regulate the status of the
wives inter se in marriages entered into before the RCMA came into operation on 15
November 2000. This proposition is based on the fact that the RCMA applies
customary law to other important consequences of polygamous marriages entered
into before the Act came into operation such as the proprietary consequences of
marriage. In this respect, the Constitutional Court in Gumede preserved the status
quo regarding the application of customary law to the proprietary consequences of
polygamous marriages entered into before the RCMA came into force while it
changed the status quo in respect of monogamous marriages concluded in the
same period.61
Customary law accords unequal status to wives in polygamous marriages
according to their houses. Houses are ranked in terms of seniority according to the
date of the woman’s marriage. Although the husband treats all women equally, he
gives deference to the senior wife62 in both simple and complex marriages.63 As for
the relationship among the wives, they should give the respect due to each other
according to their rank.64
7.4.3.3 The status of wives inter se in polygamous marriages concluded after 15

November 2000
With regard to polygamous marriages entered into after the RCMA came into
operation, the Act is silent on the regulation of the status of wives’ houses and their
ranking. It is therefore not clear whether customary law continues to apply to this
aspect of the personal status of the parties. This doubt is reinforced by section 6
which elevates the status of the wife to that of the husband ‘in addition to any rights
that she may have at customary law’. The wording of this section may imply that the
209
RCMA did not intend to take away the status or rank a wife may have under
customary law, including her rank arising in polygamous marriages.65 There is,
therefore, a need to clarify the legal position on several issues concerning the
personal consequences of polygamous marriages. Moreover, the issue of the
ranking of wives may raise a constitutional question for determination.
COUNTER
POINT
Is the differentiation of status based on the ranking of houses in polygamous

marriages unconstitutional?
Do customary practices that differentiate between wives with respect to the ranking
of their status according to their houses in polygamous marriages unfairly
discriminate against wives on the ground of the date of their marriage? Should the
principle of equality embedded in section 6 of the RCMA also apply to the
relationship between the wives inter se? Should the rules or practices in question be
invalidated for infringing the constitutional right to equality or developed in
accordance with the spirit, purport and objects of the Bill of Rights?
It may be argued that to the extent that the organisation of women’s houses
affects the material rights of the members of the various households, for example
in succession,66 the ranking system is unconstitutional on the ground of unfair
discrimination.
However, in our view, the differential treatment of wives in the context of
polygamous marriages does not amount to unfair discrimination. The ranking system
represents a cultural right which the women concerned choose to live by.
Presumably, the ranking system is known to the women when they decide to enter
into the marriage. They, therefore, consent to live within the rank of their marriage
when they decide to enter into a polygamous marriage, as argued in the discussion
under section 7.4.3.1 above.
The concept of illegitimacy is foreign to customary law. In general terms, in

matrilineal societies, children of unmarried women are born into the family of their
210
mother while those in patrilineal societies are born into the family of their father. In
some cases, a man who is not the biological father of the child may, on marrying the
child’s mother, pay lobolo for the child as well. The child then belongs to him and not
to the biological father.67 Thus, a child is always attached to a family, whether to that
of its mother, biological father or social father. This is in contrast to the common law
meaning of illegitimacy68 (or more correctly extramarital birth).
Before the interim Constitution came into operation in 1994, lobolo was an
important factor for the affiliation of children to the mother or father and their
respective families.69 Parental rights passed from the mother’s father and his family
to the father of the child and his family on payment of lobolo. Conversely, non-
payment of lobolo deprived the father and his family of parental rights.
7.5.2 The effect of the Bill of Rights and the principle of the best interests of
the child on the affiliation of children
As already stated, the colonial, Union and apartheid courts introduced the common
law concepts of guardianship and custody into customary law. These courts applied
the common law principle of the best interests of the child to custody disputes
involving children of customary marriages.70 However, the application of this principle
to customary law took on a new dimension when section 30(3) of the interim
Constitution introduced the principle in the Bill of Rights. This section provided that in
all matters concerning the child the best interests of the child were of paramount
consideration. The High Court considered this principle in relation to the role
of lobolo in Hlophe v Mahlalela.71
The applicant, the father of the child, claimed possession of his minor child who
had been living with her grandparents, the respondents, after the death of her
mother, the applicant’s wife. The applicant made the claim under emaSwati
customary law. The parents had subsequently entered into a civil marriage with each
other. One of the main issues was what effect the fact that the applicant had not
paid lobolo in full at the time of his wife’s death had on the issue of the child’s
custody. The Court did not expressly invalidate the practice of lobolo. However, it
nullified its effect on issues of custody. It held that rights of custody of children were
no longer to be determined by the payment or non-payment of lobolo, but by the
principle of the best interests of the child enshrined in section 30 of the Constitution.
Van den Heever AJ stated:
211
It is, in my view, clear that issues relating to the custody of a minor
child cannot be determined in this fashion, i.e. by the mere delivery or
non-delivery of a certain number of cattle. Any doubt as to the
applicable legal principles that might have existed in this regard was,
in my view, effectively removed by the promulgation of the Interim
Constitution of South Africa Act 200 of 1993 inasmuch as s 30(3)
thereof provides as follows: …This matter should and will therefore be
decided only on the basis of what would be in the best interests of
[the child].72
The Court, furthermore, impliedly considered lobolo to smack of the sale of and
trafficking in children, practices which could not be countenanced by the Bill
of Rights.73
The non-requirement of lobolo for a valid marriage in terms of the RCMA74 serves
to reinforce the irrelevance of this practice to the status of children. In its motivation
for this exclusion, the SALC stated:
If parties wish to give lobolo, they should be free to do so, but

payment or non-payment will have no effect on the spouses’
relationship or on their rights to any children born of the marriage.75
Thus, children of parents who married after the RCMA came into operation are
affiliated to both parents’ families whether or not lobolo was paid or promised at the
time of the marriage.
The best interests of the child principle is now the subject of section 28(2) of the
Constitution. This section may, therefore, be used as a basis for denying the effect
of lobolo on the status of children in customary law and in customary marriages in
particular. An interesting question, however, is whether the courts should not
consider the best interests of the child principle from a customary perspective, a
question which is considered below.
COUNTER
POINT
Is customary law devoid of the best interests of the child principle?
212
The Court in Hlophe v Mahlalela did not consider what the best interests of the child
principle means from the perspective of customary law. Invariably, the best interests
of a child in customary law are tied up with the interests of the child’s family or
community. Kaime’s description of this concept in a Malawian indigenous community
probably applies to most, if not all, cultural worldviews of indigenous communities.
This worldview:
focuses on family or community interests rather than on the individual

… Individuals are generally not in a position to claim rights which are
separate from and against the family or kinship group of which they
are members. Consequently, children do not have special entitlements
outside the welfare of the family as a whole.76
The principal rationale of this philosophy is that the family is regarded as a protective
place for all its members. Under this ethic of inclusiveness, decisions that promote its
welfare as a whole also automatically protect the welfare of its individual members.
However, where there is conflict, the interests of the individual, in this case the child,
have to be suspended.77
This group-oriented approach to children’s rights is likely to be opposed by
children’s rights advocates and champions of individual rights. However, based on
his empirical study, Kaime asserts that in the majority of cases, the choices made for
the welfare of the group also serve the interests of children. In other words, group
interests do in some cases mediate the interests of the child.
Furthermore, because of its flexible nature,78 the best interests of the child
principle is inherently applied on a case-by-case basis. There is therefore no reason
why it should not be compatible with the group orientation of a community’s care of
children in specific cases. No wonder then that the Children’s Act includes aspects of
group rights and responsibilities in the best interests of the child in the factors for the
determination of the best interests of the child. It provides for the needs of the child:
to remain in the care of his or her parent, family and extended family,
and to maintain a connection with his or her family, extended family,
culture or tradition …79
213
The core of this argument is that courts should endeavour to apply the customary
law philosophy of group rights to determinations of the best interests of children of
customary marriages in individual cases.

The Children’s Act made important changes to the law governing consequences of
customary marriages regarding children. Among other things, this Act seeks to align
the law of children to the Constitution, especially to section 28, which guarantees the
rights of the child. It introduces the notions of parental responsibilities and rights,80 in
addition to other concepts, such as that of ‘care’.81 However, since the Children’s Act
and the Constitution do not apply retrospectively, the question may arise as to which
children these pieces of legislation apply.
PAUSE FOR
REFLECTION
The effect of the non-retrospective application of the Constitution and the

Children’s Act
The Constitution82 and the Children’s Act do not have retrospective effect.
Consequently, it may be argued that a distinction must be made generally between
marriages entered into before and after each one of these laws came into operation
with regard to the parent and child relationship. The effect of this argument would be
as follows:
•With regard to the children of parents who married each other before the
Constitution and the Children’s Act came into force, children of the marriage are
affiliated to the husband’s family if the lobolo has been paid or agreed on.83 The
wife continues to bear children for her husband’s family until the marriage is
formally terminated.84 Since lobolo was essential for the validity of the marriage
before the RCMA, its non-payment would signify the absence of a marriage. The
children would then be affiliated to their mother’s family.85
•After the Constitution and the Children’s Act came into operation, the best interests
of the child are the paramount consideration in accordance with section 28(2) of
the Constitution. According to Hlophe v Mahlalela, lobolo is no longer the
determining factor.
214
However, although there is a need to clarify by legislation or court decision the effect
of non-retrospective application of these three sets of legislation, it is highly unlikely
that any court would entertain the discriminatory treatment of children on the basis of
the children’s date of birth or the date of marriage of their parents.
The Children’s Act makes it clear that the responsibilities and rights it introduces
apply to customary marriages as well because it defines a marriage to include a
marriage which is recognised in terms of customary law.86 Thus, a customary
marriage gives the husband and wife equal parental responsibilities and rights.87
Sections 18(2) and (3) of the Children’s Act define parental responsibilities and
rights as follows:
(2) The parental responsibilities and rights that a person may have in
respect of a child, include the responsibility and the right to –
(a) care for the child;
(b) maintain contact with the child;
(c) act as guardian of the child; and
(d) contribute to the maintenance of the child.
(3) Subject to subsections (4) and (5), a parent or other person who acts as
guardian of a child must –
(a) administer and safeguard the child’s property and property interests;
(b) assist or represent the child in administrative, contractual and other
legal matters; or
(c) give or refuse any consent required by law in respect of the child,
including –
(i) consent to the child’s marriage;
(ii) consent to the child’s adoption;
(iii) consent to the child’s departure or removal from the Republic;
(iv) consent to the child’s application for a passport; and
(v) consent to the alienation or encumbrance of any immovable
property of the child.
Because both the husband and wife have guardianship of the child,88 they may
exercise all the above responsibilities and rights independently of each other and
215
without the consent of the other, except for those matters stated in subsection (3)(c)
in respect of which both of them must give consent. However, joint consent in
respect of these responsibilities and rights may not be required in
89 90
two circumstances. The first is where ‘any other law’, presumably excluding
customary law,91 dispenses with such joint consent. The second is where a
competent court has dispensed with the consent of one of the parents.92
The Children’s Act also states that when making a decision regarding the matters
stated in subsection (3)(c), the guardian must give due consideration to the views
and wishes expressed by the child, bearing in mind the child’s age, maturity and
level of development.93 This requirement also applies to the decisions of the
guardian concerning the following:
… any decision –
…
(ii) affecting contact between the child and a co-holder of parental
responsibilities and rights;
(iii) regarding the assignment of guardianship or care in respect of the
child to another person in terms of section 27; or
(iv) which is likely to significantly change, or to have an adverse effect
on, the child’s living conditions, education, health, personal
relations with a parent or family member or, generally, the child’s
well-being.94
Section 9 of the Children’s Act stipulates that in matters concerning the care,
protection and well-being of a child, the standard that the child’s best interests are of
paramount importance must be applied. Section 7, in turn, provides a closed list of
factors that must be taken into account when applying the best interests of the child
standard. These are:
(a) the nature of the personal relationship between –

(i) the child and the parents, or any specific parent; [95] and
(ii) the child and any other care-giver or person relevant in those
circumstances;
(b) the attitude of the parents, or any specific parent, towards –
216
(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of the
child;
(c) the capacity of the parents, or any specific parent, or of any other care-
giver or person, to provide for the needs of the child, including emotional
and intellectual needs;
(d) the likely effect on the child of any change in the child’s circumstances,
including the likely effect on the child of any separation from –
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver or person,
with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the
parents, or any specific parent, and whether that difficulty or expense will
substantially affect the child’s right to maintain personal relations and
direct contact with the parents, or any specific parent, on a regular basis;
(f) the need for the child –
(i) to remain in the care of his or her parent, family and extended family,
and
(ii) to maintain a connection with his or her family, extended family,
culture or tradition;
(g) the child’s –
(i) age, maturity and stage of development;
(ii) gender;
(iii) background; and
(iv) any other relevant characteristics of the child;
(h) the child’s physical and emotional security and his or her intellectual,
emotional, social and cultural development;
(i) any disability that a child may have;
(j) any chronic illness from which a child may suffer;
(k) the need for a child to be brought up within a stable family environment
and, where this is not possible, in an environment resembling as closely
as possible a caring family environment;
(l) the need to protect the child from any physical or psychological harm that
may be caused by–
217
(i) subjecting the child to maltreatment, abuse, neglect, exploitation or
degradation or exposing the child to violence or exploitation or other
harmful behaviour; or
(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment,
violence or harmful behaviour towards another person;
(m) any family violence involving the child or a family member of the child;
and
(n) which action or decision would avoid or minimise further legal or
administrative proceedings in relation to the child.
Section 6 of the Children’s Act in turn provides for general principles that must guide
the implementation of the provisions of the Act, including those on parental
responsibilities and rights, as well as proceedings of courts and other organs of the
state in these and other matters concerning children.96 In other words, all actions,
decisions and proceedings in a matter concerning a child must be guided by these
principles:
(2) All proceedings, actions and decisions in a matter concerning a child

must –
(a) respect, protect, promote and fulfil the child’s rights set out in the Bill
of Rights[97], the best interests of the child standard set out in section
7 and the rights and principles set out in this Act subject to any lawful
limitation;
(b) respect the child’s inherent dignity;
(c) treat the child fairly and equitably;
(d) protect the child from unfair discrimination on any ground, including
on the grounds of the health status or disability of the child or a family
member of the child;
(e) recognise a child’s need for development and to engage in play and
other recreational activities appropriate to the child’s age; and
(f) recognise a child’s disability and create an enabling environment to
respond to the special needs that the child has.
218
Section 6 also gives the child’s family, including the extended family, the opportunity
to express their views in any matter concerning the child provided this is in the best
interests of the child.98 It furthermore gives a child and a person who has parental
responsibilities and rights in respect of that child, where appropriate, the right to be
informed of any action or decision taken in a matter concerning the child that
significantly affects the child.99
Terminology
accrual as an element of a marriage property regime, accrual means the growth or increase in
system the matrimonial property. It applies to marriages out of community of property and
entitles the spouses who own property separately during the marriage to share the
assets represented by the growth of their property in the course of their marriage on the
dissolution of the marriage. The spouse whose estate grows the most shares the gains
(accrual) of his or her separate property with the other spouse whose estate did not grow
or did not grow as much100
7.6.1 Introduction
Two possible ways of organising a section of a chapter on the proprietary

consequences of a customary marriage present themselves. The first would be to
organise the chapter according to the different types of marriages, for example
polygamous or monogamous marriages. The second is to divide the section
according to the applicable legal regime, for example customary law or common law.
The second approach is preferred in this chapter because of its simplicity although
the type-of-marriage approach cannot be completely excluded.
For the purposes of this section, the term ‘customary law’ excludes the provisions of
the RCMA. This is because the provisions of the RCMA merely import the law
applicable to civil marriages entered into in accordance with the Marriage Act. In
addition, the RCMA creates a statutory regime of proprietary consequences that
have modified or reformed the customary law of indigenous communities to produce
a hybrid of proprietary consequences of the so-called customary marriage.
219
Before the RCMA came into operation, customary marriages were entered into
and their consequences defined in terms of uncodified customary law, the Codes of
Zulu Law and other ‘homeland’ legislation such as the Transkei Marriage Act.
Because of the limited scope of this chapter, there is no specific discussion of the
legislation of the former ‘homelands’ other than the Codes of Zulu Law. The reason
the Codes are included is because they have been the subject of a judicial decision
in Gumede. This section of the chapter deals with uncodified customary law.
The point of departure for the discussion of the customary law regulating the
proprietary consequences of marriage is section 7(1) of the RCMA which was
invalidated by Gumede. Before its invalidation, this section provided that customary
law governed the proprietary consequences of customary marriages entered into
before the RCMA came into operation. Gumede invalidated the section because it
was, inter alia, unfairly discriminatory on the ground of gender and therefore contrary
to the Constitution. However, the invalidation applies only to monogamous marriages
as opposed to polygamous marriages. The Court held that the proprietary
consequences of polygamous relationships concluded before the coming into
operation of the RCMA will continue to be regulated by customary law until
Parliament intervenes.101
The proprietary consequences of polygamous marriages under uncodified
customary law are best understood by reference to the system of the ranking of
wives and their houses. Heaton sets out the following description of the
ranking system.102
Each customary marriage constitutes a house in which both the house and the
wife belonging to it are ranked according to the customary law of the indigenous
community concerned. The complex ranking is the predominant system and it
manifests in two forms:
One form determines each house’s relative rank according to the date
of the marriage, with the first wife (also known as the great, main or
chief wife) and her house occupying the highest rank. All other wives
and their houses are ranked according to the date of each marriage.103
The second form of complex ranking divides the houses into two sections. The first
section comprises the first wife, the main wife, whose house forms the senior house
220
of the section. The second wife, the right-hand wife, forms the senior house of the
second section. ‘All further wives are added, in turn, to the two sections, and their
ranking within each section is determined according to the date of each marriage.’104
The simple ranking system, which is said to be rare105 and does not receive any
further treatment in this work, consists of all wives who together make one estate in
which the husband is the head. However, each wife occupies a ‘different rank, which
is determined by the date of her marriage.’106 In both complex and simple ranking
systems, the husband is the head of each house.107
With regard to the proprietary consequences of a marriage in a complex ranking
system, property acquired by a spouse falls into two categories:
•General property consists of property acquired by members of a house. Property
acquired by individual members of the house, that is, wives and children, together
with assets received as lobolo for its members, belong to the house to which the
member belongs. Also included in the property of each house is any property
allotted to the particular house by the head of the family.
•Family property is the property acquired by the family head that has not been
allotted to houses. The family head draws from this property to support his
dependants. He may also use the property in this category as he pleases.108
The discretion of the husband as head of the family to deal with family property as he
pleases should be considered against the backdrop of section 6 of the RCMA. This
section states:
A wife in a customary marriage has, on the basis of equality with her

husband and subject to the matrimonial property system governing
the marriage … (own emphasis).
The words in bold mean that in the case of a customary marriage entered into before
the RCMA, the equal status of the wife to that of the husband is limited by the
proprietary regime described in this section. In other words, the husband as head of
the family is in control of the family property to the exclusion of the wife.
Furthermore, given the fact that women generally have less opportunities to earn
income and acquire property that should fall to their houses, wives have no property
of their own during the marriage and may be destitute if the husband deserts them.
Equally, they will have to leave the matrimonial home empty-handed on divorce.109
221
The customary law discussed above governs all marriages other than those in
KwaZulu-Natal in which the consequences are governed by the Codes, which we
discuss in the next section. However, for reasons mentioned in the discussion below,
it is necessary to ask how or whether these rules are still applied in modern society
in the same way as described here.
PAUSE FOR
REFLECTION
To what extent does uncodified customary law apply today?

The description of uncodified customary law regulating proprietary consequences of
simple and complex family households is among those rules of customary law that
have been carried from one generation of textbook to another. Arguably, they
represent official customary law. This raises a number of questions:
•First, does it mean that the rules under consideration are basically the same,
regardless of the indigenous community and its unique experience under colonial,
Union and apartheid legal systems?
•Second, how have these rules accommodated modern non-agrarian property such
as motor cars, television sets, fridges, stoves and so on?
•Third, are the ‘old’ divisions between general and family property still maintained?
•Fourth, who pays the utility bills such as the bills of the local authority?
In our view, based both on the evolving nature of customary law and on research
elsewhere on the African continent,110 which has shown how customary law has
adapted to new forms of matrimonial property, the rules discussed under this section
have probably been modified in practice. There is, therefore, the need for empirical
research to test this proposition.
The Natal Codes of Zulu Law generally apply only to the province of KwaZulu-
Natal.111 Section 20 of the KwaZulu Act and section 20 of the Natal Code regulate
the proprietary consequences of marriages falling under the Codes.112 The two
sections provide for the same basic principles of the complex ranking systems
discussed above by stating that a family head is the owner and has control of all
family property in the family home. Section 20 of the KwaZulu Act stated:
222
The family head is the owner of all family property in his family home.
He has charge, custody and control of the property attaching to the
houses of his several wives and may in his discretion use the same
for his personal wants and necessities, or for general family purposes
or for the entertainment of visitors. He may use, exchange, loan or
otherwise alienate or deal with such property for the benefit of or in
the interests of the house to which it attaches, but should he use
property attaching to one house for the benefit or on behalf of any
other house in the family home an obligation rests upon such other
house to return the same or its equivalent in value.
Section 20 of the Natal Code has a similar provision. Section 22 of the Codes
provided that all ‘[t]he inmates of a family home irrespective of sex or age shall in
respect of all family matters be under the control of and owe obedience to the family
head’.
As explained by the Constitutional Court in Gumede, these provisions meant that
the husband was the exclusive owner of all the property that was acquired during the
subsistence of the marriage.113 The Constitutional Court in Gumede invalidated the
rules regulating proprietary consequences under the Codes, namely sections 20 and
22 of the Codes on the ground that these sections infringed the constitutional
principle of gender equality. The Court made the decision with retrospective effect
with regard to monogamous marriages. In invalidating these sections the Court
stated:
These impugned provisions are self-evidently discriminatory on at

least one listed ground: gender. The provisions are discriminatory as
between wife and husband. Only women in a customary marriage are
subject to these unequal proprietary consequences. This
discrimination is on a listed ground and is therefore unfair unless it is
established that it is fair. And within the class of women married
under customary law, the legislation differentiates between a woman
who is a party to an ‘old’ or pre-recognition customary marriage as
against a woman who is a party to a ‘new’ or post-recognition
customary marriage. This differentiation is unfairly discriminatory.114
223
The Court stated further:
The matrimonial proprietary system of customary law during the

subsistence of a marriage, as codified in the Natal Code and the
KwaZulu Act, patently limits the equality dictates of our Constitution
and of the Recognition Act. The former statutes provide that the family
head is owner of all the family property over which he has ‘charge,
custody and control’ and may ‘in his discretion use the same for his
personal wants and necessities, or for general family purposes or for
the entertainment of visitors.’ This patriarchal domination over, and
the complete exclusion of, the wife in the owning or dealing with
family property unashamedly demeans and makes vulnerable the wife
concerned and is thus discriminatory and unfair. It has not been
shown to be otherwise, nor is there any justification for it.115
The invalidation of sections 20 and 22116 of the Codes means that uncodified
customary law now regulates proprietary consequences in KwaZulu-Natal as in the
rest of the country.117
However, we should mention that the rules that regulated the proprietary
consequences of marriage under these Codes are still relevant for two reasons:
•First, the order of invalidity does not affect the legal consequences of any act done
or omission or fact existing in relation to a customary marriage before this order
was made.118
•Second, any interested person may approach the Constitutional Court for a variation
of its order in the event of serious administrative or practical problems they
experience as a result of the order.119
For these reasons, there may still be cases in which disputes involving the
proprietary consequences of marriage under the Codes arise for determination by
the courts.
Before we leave this section, it is necessary to discuss the application of the
Codes to which we now turn.
224
PAUSE FOR
REFLECTION
Uncertainty regarding the application of the Natal Codes of Zulu Law

With regard to the application of the Codes, there is uncertainty in the literature on
the persons to whom they apply.120 There are two positions relevant to this chapter.
The first is that pursuant to section 105(1) of the Codes, which preserves the
application of the Law of Evidence Amendment Act (LEAA). 121 The conflict of laws
rules anticipated by the LEAA would determine the persons to whom the Codes
are applicable.122 Section 1(3) of the LEAA provides for a hierarchy of rules for
determining conflicts between rules of customary law emanating from different
indigenous communities.123 Thus, if a Zulu is married to a person from another
indigenous community and a decision has to be made as to what customary law
system to apply, the rules in section 1(3) of the LEAA will be applied to determine the
applicable system of customary law.
The second position supports the application of the Codes on the basis of the
principle of territoriality. This means that the Codes apply to black people who live in
the province of KwaZulu-Natal regardless of their tribal affiliations.
The position on the application of the Codes, like that of the conflict rules involving
customary law generally, is unsatisfactory and in need of reform. Unfortunately, the
legislature has not acted on the report of the SALC on these issues.124
This section outlines the law regulating proprietary consequences contained in the
RCMA, as well as statutory law extended to customary marriages by this Act.
Regarding the latter, the RCMA applies some provisions of the Matrimonial Property
Act (MPA) that regulate civil marriages to monogamous customary marriages that
are entered into in terms of its provisions.
The regulation of the proprietary consequences of marriage under the RCMA
encompasses the following types of marriages:
•all monogamous customary marriages regardless of whether they were entered into
before or after the RCMA came into operation
•polygamous marriages entered into after the RCMA came into operation
225
•customary marriages that have been converted to civil marriage125
•minors’ marriages entered into before and after the RCMA came into operation.126
However, due to the limited scope of this chapter, we deal with only the first two
types of marriages.127
7.6.4.1 Monogamous customary marriages in terms of the RCMA and the MPA
Although the RCMA recognises polygamous marriage,128 a couple may choose to

enter into and remain in a monogamous customary marriage for as long as their
marriage lasts. Section 7(2) of the RCMA, as amended by the Constitutional Court
in Gumede, regulates the proprietary consequences of such a marriage. Prior to this
decision, section 7(1) regulated the proprietary consequences of both monogamous
and polygamous marriages entered into before the RCMA came into operation.
Customary law governed these marriages. This would have been the uncodified and
codified customary law discussed above. Section 7(2) provided for the monogamous
marriages entered into after the RCMA. It stated that the parties were married in
community of property and of profit and loss unless community had been excluded
by an antenuptial contract. Section 7(3) extends Chapter 3 and sections 18, 19, 20
and 24 of Chapter 4 of the MPA to marriages in community contemplated by section
7(2) of the RCMA.
As already indicated, the Court in Gumede declared section 7(1) of the RCMA to
be unconstitutional and invalid to the extent that it related to monogamous customary
marriages. It also declared the words ‘entered into after the commencement of this
Act’ in section 7(2) to be unconstitutional and invalid and, accordingly, severed them
from the section.
The effect of the Gumede decision is that all monogamous customary marriages,
whether entered into before or after the RCMA came into operation, are now in
community of property unless this regime has been appropriately excluded by the
spouses. In the following sections, we discuss the legal consequences of in
community and out of community matrimonial property regimes applicable to
customary marriages entered into in terms of the RCMA.
226
7.6.4.1.1 Marriage in community of property
Terminology
asset property that has monetary value, such as a car, house, motorcycle, jewellery, furniture,
insurance policy and pension benefits that a spouse is entitled to claim
liability obligations for which a person is legally responsible, especially financial obligations
The discussion of the nature of a marriage in community of property in this section

takes as a point of departure the concept of community of property in the manner in
which it is understood under the common law. However, only a summary is
provided here.129
Community of property represents an indivisible joint estate, including
all assets acquired before and during the marriage. The spouses have equal shares
in the estate. Similarly, liabilities incurred before and during the marriage are
recoverable from the joint estate. However, certain assets and liabilities are excluded
from the joint estate so that they belong, or are charged, to individual spouses.
These include:
 assets excluded by antenuptual contract130
 assets excluded from the joint estates by a will or a legal instrument (deed)
containing a donation131
 delictual damages paid to one spouse by the other as compensation for bodily
injury inflicted by the latter
 assets excluded from the joint estate in pursuance, for example, of the
Prevention of Organised Crime Act.132
On dissolution of the marriage by divorce or death the parties are automatically

entitled to a share of the residue of the estate in equal shares after settlement of the
liabilities from the joint estate. The circumstances in which the joint estate may be
divided during the subsistence of the marriage are defined by law.133 The division
therefore cannot take place at the whim of the parties. Various aspects of the joint
estate are discussed in the following sections.
227
(a) Management of the joint estate
The MPA gives spouses equal powers to dispose of assets of the joint estate, to
contract for debts against the estate and to manage the joint estate.134 In these
respects, the MPA gives each spouse the power to perform any juristic act without
the consent of the other with the exception of several categories of juristic acts in
respect of which the consent of both spouses is required. The MPA also gives each
spouse the right to apply to the court to have the consent of the other spouse
dispensed with in those cases where joint consent is required. The various spousal
powers in respect of the administration of the joint estate are discussed below.
(i) Juristic acts requiring joint consent
In this section, juristic acts requiring the joint consent of the spouses are grouped
according to the manner in which the required consent is to be given or the specific
conditions attached to them.
Juristic acts requiring prior written consent only135

A spouse may not perform the following juristic acts without the prior written consent
of the other spouse:
 alienating, ceding or pledging any shares, stock, debentures, debenture
bonds, insurance policies, mortgage bonds, fixed deposits or any similar
assets, or any investment by or on behalf of the other spouse in a financial
institution, forming part of the joint estate
 alienating or pledging any jewellery, coins, stamps, paintings or any other
assets forming part of the joint estate and held mainly as investments
 withdrawing money held in the name of the other spouse in any account in a
banking institution, a building society or the Post Office Savings Bank of the
Republic of South Africa
 instituting or defending legal proceedings against another person with the
exception of the following:136
in respect of the litigating spouses separate property for the recovery of damages,
other than damages for patrimonial loss, by reason of the commission of a delict
against him in respect of a matter relating to his or her profession, trade
or business.137
228
Consent in respect of juristic acts under the first three bullet points may also be given
by way of ratification within a reasonable time after the act concerned.138
Juristic acts requiring separate prior written consent and attestation139

A spouse must obtain the consent of the other spouse for the following transactions
before the act since ratification is not permitted:140
 alienating, mortgaging, burdening with a servitude or conferring any other real
right in any immovable property forming part of the joint estate
 entering into any contract for the alienation, mortgaging, burdening with a
servitude or conferring of any other real right in immovable property forming
part of the joint estate
 binding oneself as surety.
Juristic acts requiring separate written consent and attestation141

Unlike the transactions listed in the previous paragraph, consent to these acts may
be by way of ratification:
 entering as a consumer into a credit agreement to which the provisions of the
National Credit Act142 apply but the written consent of a spouse is not required
before incurring each successive charge under a credit facility
 as a purchaser entering into a contract as defined in the Alienation of
Land Act143 and to which the provisions of that Act apply
Consent given in any manner

The consent required for the following transactions may be given in any manner –
written, orally, tacitly or by way of ratification within a reasonable time after the act
concerned except where it is required for the registration of a deed in a
deeds registry:144
 alienating, pledging or otherwise burdening any furniture or other effects of
the common household forming part of the joint estate
 receiving any money due or accruing to that other spouse or the joint estate by
way of:
remuneration, earnings, bonus, allowance, royalty, pension or gratuity by virtue of
his or her profession, trade, business, or services rendered by him or her
229
damages for loss of income mentioned in the point above
inheritance, legacy, donation, bursary or prize left, bequeathed, made or

awarded to the other spouse
income derived from the separate property of the other spouse
dividends or interest on or the proceeds of shares or investments in the name

of the other spouse
proceeds of any insurance policy or annuity in favour of the other spouse
donating any asset of the joint estate to a third party if the donation
unreasonably prejudices the interest of the other spouse in the joint estate.145
Whether a donation prejudices the interest of the other spouse is determined by

reference to any factor the court considers relevant, including the value of the
property donated, the reason for the donation, the social standing of the spouses
and their standard of living.146
(ii) Dispensing with the other spouse’s consent

In two instances a spouse may apply to the court147 for permission to enter into a
transaction which otherwise requires the consent of the other spouse under the rules
discussed above. These are:
 where the other party withholds the required consent and the court is satisfied
that the withholding is unreasonable
 the consent can for any other reason not be obtained and there is good
reason to dispense with the consent.148
(iii) Juristic acts in respect of which no consent is required

The MPA provides for juristic acts that do not require the consent of the other spouse
because they are performed in the course of the profession, trade or business of the
spouse who performs them. The following acts fall into this category:149
 entering into any contract for the alienation, mortgaging, burdening with a
servitude or conferring of any other real right in immovable property forming
part of the joint estate
230
 alienating, ceding or pledging any shares, stock, debentures, debenture
bonds, insurance policies, mortgage bonds, fixed deposits or any similar
assets, or any investment by or on behalf of the other spouse in a financial
institution, forming part of the joint estate
 entering as a consumer into a credit agreement to which the provisions of the
National Credit Act apply but the written consent of a spouse is not required
before incurring each successive charge under a credit facility
 as a purchaser entering into a contract as defined in the Alienation of Land
Act and to which the provisions of that Act apply
In addition, the following acts require no consent:150

 selling listed securities on the stock exchange and ceding or pledging listed
securities in order to buy listed securities
 alienating, ceding or pledging:
a deposit held in his or her name at a building society or banking institution
building society shares registered in his or her name.
(b) Protection of third parties and spouses inter se in relation to the

management of the joint estate
The MPA provides for measures to protect the rights of third parties151 and those of
spouses inter se in relation to the management of the joint estate.
If a spouse enters into a transaction with a third party without the consent of the
other spouse contrary to the consent rules discussed above and the third party does
not know or cannot reasonably know that the transaction is being entered into in
breach of the rules, the transaction is deemed to have been entered into with the
joint consent of the spouses.152 This rule also applies when the spouse acts in
breach of an order of the court suspending his or her powers in relation to the
administration of the joint estate in terms of section 16(2) of the MPA
discussed below.153
If the joint estate suffers a loss as a result of the action of the spouse who acts
without the consent of the other spouse, that spouse is liable to have his or her share
of the joint estate adjusted in favour of the other spouse on the dissolution of the
231
joint estates.154However, his or her liability in this respect only arises if he or she
knew or ought reasonably to have known that he or she would probably not obtain
consent for the transaction concerned.155
The MPA does not provide for the effect of a transaction without consent in which
the third party was aware that spousal consent was required and was not obtained,
but it seems that the transaction would result in a nullity.156
In addition to protecting third parties, the rules discussed in the preceding
paragraph extend protection to the spouses between themselves by ensuring that
the innocent spouse is compensated, through adjustment, for any loss that the
estate suffers as a result of the transaction he or she did not consent to. Sections 16
and 20 of the MPA and the common law give further protection to spouses between
themselves.
The protection mechanisms in sections 16 and 20 of the MPA consist of the
suspension of administration powers and the immediate division of the joint estate,
while the common law mechanisms are an interdict, the right of recourse, the actio
Pauliana utilis and a declaration of prodigality.157
(i) Suspension of administration powers and division of the estate

Section 16(2) of the MPA provides that where the interest of a spouse in the joint
estate is under threat, the affected spouse may apply to the court to protect the
threatened interest. The court will suspend any power which the other spouse may
exercise with respect to the administration of the joint estate if it is satisfied that such
a step is essential to the protection of the interest in question. The suspension of the
other spouse’s power may be for a definite or an indefinite period.
Section 20(1) of the MPA regulates the division of the joint estate. This section
states that the court may, on application by one spouse, order the immediate division
of the joint estate in equal shares or on such other basis as it deems just if it is
satisfied that:
 the interests of that spouse (the applicant) in the joint estate are being or will
probably be seriously prejudiced by the conduct or proposed conduct of the
other spouse
 third parties will not be prejudiced by the order.
In making the order under section 20, the court takes into account factors such as:
232
the duration of the marriage, the assets each spouse brought into the
marriage, each spouse’s debts at the commencement of the marriage,
each spouse’s contribution to the joint estate during the marriage, the
prejudice one spouse suffered in respect of assets of the joint estate
as a result of the other spouse’s conduct, and antenuptial debts that
were settled from the joint estate during the subsistence of
the marriage.158
(ii) Interdict
A spouse may apply to court for an interdict to prevent the other spouse from
alienating an asset of the joint estate with the intention of prejudicing the applicant’s
interest in the joint estate. There are three conditions on which the interdict may
be granted:159
 The first condition is proof of the intention that the property is being alienated
to prejudice the interests of the spouse in the estate.160
 The second is that the prejudiced spouse did not consent to the alienation
even where it can be shown that the intention of the other spouse was to
defraud him or her by way of the transaction.
 The third condition is that the wronged party has no suitable alternative
remedy. For example, where the alienation concerned requires the consent of
both spouses, the spouse approaching the court for an interdict must prove
that the remedy of recourse under section 15(9)(b) of the MPA does not
provide a suitable alternative remedy due to the fact that the threatened
transaction would result in the complete depletion of the joint estate.
(iii) Right of recourse

Where one spouse has already fraudulently alienated the assets of the joint estate,
the spouse who is prejudiced by this act has a right of recourse against the
fraudulent spouse or against his or her share of the joint estate on the dissolution of
the marriage.161
(iv) Actio Pauliana utilis

The actio Pauliana utilis remedy entitles the prejudiced spouse to recover the asset
from a third party where the other spouse has already fraudulently alienated an asset
of the joint estate.162
233
(v) Declaration of prodigality
Protection by means of declaring a spouse a prodigal by the court results in the
termination of his or her power with respect to the administration of the joint estate
and any separate property he or she may have.163
The protection offered to spouses by various laws noted in this section are
commendable. However, some of them are problematic as noted below.
COUNTER
POINT
Protection of the wife in the context of patriarchy and the suitability of the law
regulating the proprietary consequences of marriage
The law regulating the management of the joint estate discussed above raises one
important issue for discussion. Both the statutory and common law protective
measures relating to the joint estate are essential for the protection of spouses,
especially the wife. The wife’s protection is particularly important in the light of the
principle of patriarchy which is prevalent in South Africa. Where this principle is
applied, men are more likely to take decisions pertaining to the administration of the
joint estate without the consent of their wives even where their consent is legally
required. This problem is likely to be aggravated by the fact that the majority of
marriages under customary law are contracted by people living in rural areas. These
people are often not aware of how the protective laws under consideration work and
they are, therefore, unlikely to use them.
Furthermore, the High Court observed, rightly or wrongly,164 in Mayelane v
Ngwenyama that ‘most customary marriages are concluded by persons whose
access to worldly goods is limited’.165 In these circumstances, it may be argued that
the application of complicated rules regulating some aspects of a marriage in
community, such as the administration of the joint estates, is unrealistic
and inappropriate.166 There is, therefore, a need to revise these rules and simplify
their application to customary marriages.
7.6.4.1.2 Marriage out of community of property
Section 7(2) of the RCMA makes it clear that the default position of a marriage in
community of property can be avoided by parties opting for a marriage out of
community of property by concluding an antenuptial contract (ANC). The scope of
234
this chapter does not allow for a full discussion of the nature of an ANC and the type
of marriage it regulates.167 Suffice it to say that the main purpose of the ANC is to
regulate the proprietary consequences of the marriage and its primary feature is the
separation of the property of the parties.168
PAUSE FOR
REFLECTION
A legal vacuum?
The RCMA does not expressly extend the law governing civil marriages out of
community of property to customary marriages. Presumably this body of law is
extended by implication. One indication of this is the reference in section 7(7), albeit
in passing, to the accrual system. The accrual system is an essential feature of a
marriage out of community of property. There is, however, a need to clarify the legal
position on this matter by an appropriate amendment to the RCMA.
Furthermore, mention of the accrual system in section 7(7) seems to suggest that
the RCMA anticipates application of the accrual system as a default system to
customary marriages of spouses married out of community after the RCMA came
into force. In this case, since there is no concept of accrual in customary law, the
interpretation of the antenuptial contract would have to follow the common law. It
should be mentioned that the application of the accrual system as a default system
would mean that parties who do not want it to apply to their marriage out of
community of property should exclude it in their antenuptial contract.
The question, however, is whether mere choice of a marriage out of community of
property invites automatic accrual in the same way that it does in respect of civil
marriages. If this were the case, section 7(7) would contribute to the protection of the
interests of vulnerable spouses, especially wives, in the matrimonial property regime.
However, such an approach would require an amendment to the RCMA to provide
clearly for the accrual system as a default position.
A further issue requiring clarification is whether this section applies to
monogamous marriages entered into before and after the RCMA came into
operation. Arguably, the effect of Gumede is that all aspects of proprietary
consequences of all monogamous marriages, regardless of when they were entered
into, are governed by the RCMA and the relevant common law.
235
7.6.4.2 Polygamous marriages in terms of the RCMA
While customary law regulates the proprietary consequences of polygamous

marriages entered into before the RCMA came into operation, section 7(6) of the
RCMA regulates the consequences of polygamous marriages entered into after the
Act came into operation. This section requires the husband who enters into a
polygamous marriage to make a contract approved by the court to regulate the future
proprietary consequences of the marriage. Both the contract and the procedure
under which it is approved by the court are intended to protect the matrimonial
property rights of the spouses, especially wives, through the intervention of the court.
When considering whether to approve the application, the court must terminate the
existing property system and distribute the property between the spouses equitably.
The court must also take into account all the relevant circumstances of the family
groups which would be affected if the contract were approved.169
Section 7(8) of the RCMA requires all persons having a sufficient interest in the
matter, and in particular the applicant’s existing spouse or spouses and his
prospective spouse, to be joined in the proceedings to approve the written contract.
While the protective feature of the procedure for the approval of the contract is
laudable, a discussion of its challenges and possible changes is necessary.
PAUSE FOR
REFLECTION
Change of procedure
The procedure for the approval of the contract creates challenges for certain
sections of the population, such as people in rural areas, in terms both of knowledge
of the law and accessibility to courts for the approval of the contract.170 It is,
therefore, necessary to change the procedure for the approval of these contracts.
Suggestions may include decentralisation of the process with a view to locating it
within reach of the people most likely to be affected by it. An example is
institutionalising the process in bodies other than, or in addition to, courts, such as
banks or post offices, with officers appropriately trained for this purpose operating
these centres on specified days of the week or month.
The RCMA is silent on the effect of non-compliance with section 7(6), but the High
Court and Supreme Court of Appeal (SCA) considered the issue in Mayelane
236
v Ngwenyama171 and Ngwenyama v Mayelane172 respectively. The High Court held
that the second marriage, which was entered into without the contract, was void. In
its judgment, the High Court correctly stated, in our view, that section 7(6) aimed to
protect both the existing spouse and the new intended spouse by ensuring that the
husband obtained the court’s consent to a further customary marriage, albeit that
such consent was expressed in proprietary terms. It also correctly observed that both
the existing spouse and the intended further spouse had a vital interest in having
their relative proprietary positions safeguarded by the procedure laid down in section
7(6). The High Court went on to say:
Most customary marriages are concluded by persons whose access

to worldly goods is limited and whose financial security may be
severely prejudiced by an earlier or the conclusion of another
marriage if such fact is not disclosed to the spouses and dealt with by
the contract and the court’s approval. The failure to comply with the
mandatory provisions of this subsection cannot but lead to the
invalidation of a subsequent customary marriage.173
The Court cited, with approval, the view held by Cronjé and Heaton that an
interpretation of the subsection which did not make the husband’s capacity to enter a
further customary marriage depend on the court’s approval of the proposed contract
would imply that the court’s approval was unnecessary. This ‘would leave the
interests of the customary wives and their family groups unprotected’.174
The effect of the High Court decision was that all marriages of women in the
position of the respondent, the second woman, were void. Furthermore, the decision
had dramatic consequences for married women in the position of the respondent in
terms both of the women’s property rights and the legal status of their children born
of the union, bearing in mind that a void marriage is a complete nullity and
considered never to have taken place.175
Thus, the decision did not, in our view, adequately protect the competing interests
of women in polygamous marriages. For this and other reasons, it was not surprising
that the SCA overturned the decision on appeal in Ngwenyama v Mayelane.176 The
Court held that section 7(6) of the RCMA was not intended to invalidate the
237
subsequent marriage. Using a purposive interpretation as a basis for her decision,
Ndita AJA, who delivered the judgment for the SCA stated:
The purpose of the section must be determined in the light of the

legislative scheme which guided its promulgation. At the heart of the
Act is the intention to advance the rights of women married according
to customary law in order that they acquire rights to matrimonial
property they did not have before the enactment of the Act.
Effectively, the Act seeks to realise the right to equality envisaged in
the Bill of Rights. With this in mind, it becomes difficult to reason that
s 7(6) could be intended solely for the protection of the wife in an
existing marriage. The court a quo correctly considered and
acknowledged the equal status and capacity afforded to spouses in a
customary marriage and came to the conclusion that s 7(6) is aimed at
protecting the proprietary interests of both the existing and
prospective spouse, but failed to afford a purposive interpretation to
the section so that the second wife is equally protected. Properly
construed s 7(6) is for the benefit of women in both monogamous and
polygamous customary marriages … It follows that whatever
protection is afforded to women married according to customary law
equally applies to women in polygamous marriages.177
Furthermore, Ndita AJA held that concerns about the proprietary interests of the first
wife are sufficiently addressed in the RCMA through the provisions that give the
courts a wide discretion to determine what is just and equitable in a given case.178
In his separate judgment, Ponnan JA went further than Ndita AJA and held that
the second customary marriage was not void but valid, and that the marriage was
out of community of property.179 With regard to the estate, he reasoned that it ‘plainly
cannot be a marriage in community of property as that would imply the existence of
two joint estates, which it is clear cannot co-exist’.180According to Ponnan JA, his
decision would afford sufficient protection to the wife of the first customary marriage.
At the same time, it would ‘accord with the injunction of the Constitutional Court that
all legislation be interpreted in accordance with the spirit and purport of
the Constitution’.181
238
PAUSE FOR
REFLECTION
What kind of marriage system did the SCA in Ngwenyama v

Mayelane envisage?
While the decision of the SCA in Ngwenyama v Mayelane is laudable in many
respects, it left important questions unanswered. This is because it did not elaborate
on the kind of a marriage out of community it had pronounced on since the parties
had not concluded an antenuptial contract at the time of the purported subsequent
marriage. The questions are as follows:
•What kind of marriage out of community of property did Ponnan JA envisage?
•Are the parties to the ensuing polygamous marriage expected to conclude a
postnuptial contract to regulate the property of the marriage since they would not
have entered into an antenuptial contract at the time of the marriage?
•Since the RCMA does not indicate whether the accrual system mentioned in section
7(7) is a default system, can the Court’s decision be stretched to attribute the
property regime it envisioned to include the accrual system as the default system?
•If this were the case, what rules would govern this system – the rules governing the
civil marriage entered into in terms of the Marriage Act or new rules to be
developed by the courts or legislature?
Furthermore, we have observed elsewhere that the SCA did not consider the
implications of its decision on the proprietary consequences of the first marriage.
This marriage would have been in community of property by virtue
of Gumede having extended the application of section 7(2) to all monogamous
marriages regardless of the date they were entered into. As already stated, this
section provides that all monogamous marriages in respect of which no antenuptial
contract is concluded are automatically in community of property.182 Once the SCA
validated the subsequent marriage in Ngwenyama v Mayelane, two matrimonial
property regimes were in operation simultaneously – the marriage in community of
property of the first wife, which the SCA did not terminate, and the marriage out of
community of property, which it declared to govern the subsequent marriage. This
raises uncertainty about how the first wife’s property would be dealt with. The issues
239
discussed here indicate a need for further development of the law on the
consequences of non-compliance with section 7(6) of the RCMA.
Mayelane appealed to the Constitutional Court against the decision of the SCA. The
Constitutional Court found in her favour and held her marriage to be valid and held
that the second marriage was void. However, it reached this decision on a different
basis to the basis on which the case was decided in the High Court and the SCA.
This raises the issue of the precedent value of the SCA decision.
COUNTER
POINT
The precedent value of the SCA judgment in Ngwenyama v Mayelane

To understand the context in which the issue of the precedent value of the SCA
decision arises, it is necessary to state briefly the history of the case in the three
courts in which it was heard.
Mayelane’s application in the High Court was based on the ground that Tsonga
customary law required her consent to the subsequent marriage for it to be valid and
that she had not consented to the marriage. However, this ground was not
considered by either the High Court or the SCA. Instead, both courts based their
decisions on the interpretation of section 7(6) of the RCMA. The High Court
interpreted this section as requiring the approval of the contract regulating the
matrimonial property regime of the polygamous marriage, failing which the
subsequent marriage was void.
The SCA disagreed with the High Court’s decision on the ground that the
requirements for a valid marriage were regulated by section 3 and not section 7(6).
Accordingly, non-compliance with section 7(6) could not invalidate
a marriage.183 Equally important for the present purposes, Ponnan JA (in his
separate judgment) ruled that the consequences of non-compliance with section 7(6)
were that the subsequent marriage was out of community of property.184
Finally, the matter that was heard by the Constitutional Court was founded on
Mayelane’s original claim in the High Court, namely that she did not consent to her
husband’s marriage in accordance with Tsonga customary law and that the marriage
was therefore void.185 However, the Constitutional Court did not deal with the SCA’s
decision regarding the consequences of non-compliance with section 7(6).
240
We submit, therefore, that the SCA decision remains the authority for the principle
that non-compliance with section 7(6) does not invalidate the subsequent marriage
entered into without the consent of the first wife and that the resulting polygamous
marriage is a marriage out of community of property. This is notwithstanding the
difficulties this stance raises as mentioned in the preceding discussion.
7.6.5 Alteration of the matrimonial property regime
The RCMA provides for two instances where parties to a customary marriage may
alter their matrimonial property regime:
•a polygamous customary marriage entered into before the RCMA came into
operation
•a monogamous marriage entered into after the RCMA came into operation.186
Different rules apply to these instances and we discuss them separately in the
following sections.
7.6.5.1 Alteration of pre-RCMA polygamous marriage property regimes
Parties to a polygamous marriage entered into before the RCMA came into operation
may jointly apply to a court for leave to change the proprietary consequences
governing their marriage.187 All existing spouses and any other interested parties
must be joined to the proceedings.188 In determining this application, the court is
required to ensure that:
•there are sound reasons for the proposed change
•sufficient written notice of the proposed change has been given to all creditors of the
spouses for the amounts exceeding R500 or such amount as may be determined
by the Minister of Justice by notice in the Gazette
•no other person will be prejudiced by the proposed change.189
PAUSE FOR
REFLECTION
Making the alteration of pre-RCMA polygamous marriage property regimes

simpler and less costly
The courts have considered the meaning of the words ‘sound reasons’ in the first
point above in respect of civil marriages on a case-by-case basis.190 Presumably the
courts will take the same approach when interpreting section 7(4) of the RCMA as
241
they may also do with regard to the actual reasons that have been accepted as
sound. These actual reasons have included cases in which the parties pleaded
ignorance of the law, for example that they did not know the consequences of a
marriage in community of property.191 Ignorance of the law is likely to be common for
most spouses in customary marriages, especially among the rural population. They
are unfamiliar with the common law governing proprietary consequences which have
been extended to customary marriages. Moreover, there is a pronounced divergence
between the common law and customary law in the area of proprietary
consequences of marriage because of the absence in customary law of the concept
of community of property.
The potentially widespread ignorance of the law by spouses raises the question
whether it may not be more expedient and less costly to the spouses to change the
law and to make consensual alteration a default position subject only to the
protection of third-party interests. This protection could take the form of a
requirement worded in the language of section 7(4)(b) of the RCMA above. This
argument would also justify the rejection of the position that extrajudicial alteration of
the matrimonial property should be prohibited and unenforceable.192
The proposed change would relieve the spouses of extraneous proof or full
substantiation of the proposed change by the spouses,193especially where there are
no creditors. The procedure would then consist merely of rules aimed at the
protection of third-party interests. These rules could include that the spouses lodge a
notice of application with the registrar of deeds and the inclusion of a provision
preserving the rights of existing creditors in the notarial contract containing the
proposed change to the property system.194
If the court is satisfied with these conditions, it may terminate the matrimonial
property system which is applicable to the marriage and order the parties to enter
into a written contract which will regulate the future matrimonial system of the
marriages on conditions determined by the court.
7.6.5.2 Alteration of post-RCMA monogamous marriage property regimes
The rules applicable to the alteration of the property regime of post-RCMA

monogamous customary marriages are contained in section 21 of the MPA.
However, these rules are similar to those discussed in the preceding section.195 The
only difference is that the rules in section 21 of the MPA provide for the court to
242
make an order that the parties enter into a notarial contract to regulate their future
matrimonial property while the rule in section 7(4) of the RCMA simply refers to
a written contract. It is, however, not clear whether any substantive difference was
intended.
 The major consequences of a customary marriage fall into three categories:

the personal status of the spouses, the relationship of parents to their children
and proprietary consequences and their alteration.
 The law regulating the consequences of a marriage is the RCMA, but this Act
has incorporated a considerable body of the law governing civil marriages. In
this chapter, no attempt was made to discuss the law governing civil
marriages that has been extended to customary marriages exhaustively.
Instead, reference is made to relevant textbooks for detailed discussion of the
law in question as it applies to civil marriages.
 The RCMA has changed the personal status of wives dramatically by giving
them equal legal standing with their husbands, as well as full legal capacity
which they lacked in the past.
 The RCMA, together with the Constitution and the Children’s Act, has also
contributed to the equal legal treatment of husbands and wives with respect to
parental responsibilities and rights regarding their children. Moreover, some
courts have applied the best interests of the child principle enshrined in the
Constitution to disputes concerning parental responsibilities and rights in the
place of customary law, thereby changing the essence of customary child law.
 Before the Constitutional Court gave its decision in Gumede, it was necessary
to distinguish between marriages entered into before and after the RCMA to
determine the proprietary consequences of marriage. Since Gumede, the
more relevant distinction is that between polygamous and
monogamous marriages. The changes that were made to the law by this
decision are to the effect that, regardless of whether they were entered into
before or after the RCMA came into operation, all monogamous customary
marriages are in community of property by default. Polygamous marriages
243
entered into before the RCMA came into operation continue to be regulated
by customary law.
 By virtue of section 7(6) of the RCMA, the proprietary consequences of
polygamous marriages that are entered into after the RCMA came into
operation are regulated by a court-approved contract. The effect of non-
compliance with this provision was the subject of the SCA decision
in Ngwenyama v Mayelane.
1Act 120 of 1998.

Common Law and the Indigenous Law Report on Customary Marriages.
3For example, the RCMA applies certain sections and chapters of the Marriage Act
25 of 1961 and the Matrimonial Property Act 88 of 1984 (MPA) to customary
marriages as well.
4See Mamashela, M (2004) New families, new property, new laws: The practical
effects of the Recognition of Customary Marriages Act South African Journal
on Human Rights 20(4):616–41 at 631.
5See Bennett, TW (2004) Customary Law in South Africa 298–305.
6Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of African
Customary, Muslim and Hindu Family Law 8–9.
7Bennett (2004) 302.
8Some authors suggest that women never attained majority status. See, for
example, Maithufi, IP (1999) Children, customary law and the
Constitution Obiter 20(1):198–208 at 203. We hope, however, that this is not a
confusion of customary law in traditional society with official customary law,
which denied married women majority status.
9Act 38 of 1927.
10Act 57 of 1972.
11Act 38 of 2005.
12S 1 of the Children’s Act.
13SALC (1998) Report on Customary Marriages 99.
14See also Bennett (2004) 254.
244
December 2008).
16Act 21 of 1978.
17Act 16 of 1985.
18Proc R151 of 1987. See s 12 of the RCMA and the schedule. The BAA has now
been repealed except for a few provisions relating to courts.
19Gumede para 32.
22See Bennett, TW (1999) The best interests of the child in an African
context Obiter 20(1):145–57.
23Bennett (1999) 145–57.
24S 11 of the BAA (now repealed).
25See generally SALC (1998) Report on Customary Marriages 96; Bennett (2004)
252.
27Act 90 of 1985. See also SALC (1998) Report on Customary Marriages 97.
28SALC (1998) Report on Customary Marriages 98. See also Bronstein, V (2000)
Confronting custom in the new South African state: An analysis of the
Recognition of Customary Marriages Act 120 of 1998 South African Journal on
Human Rights 16(3):558–75 at 568–70, where she argues that in traditional
society and under colonial rule, African women owned and controlled the
proceeds of their enterprises until official customary law distorted the status
quo. Consequently, she suggests that in the absence of large-scale surveys of
living customary law and definitive statements of authentic living customary
law, the courts should ensure that ‘standards for establishing living customary
law are not placed beyond the reach of litigants’ (570).
31S 9(2) states: ‘Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative and other
measures designed to protect or advance persons or categories of persons,
disadvantaged by unfair discrimination may be taken.’ S 9(3) provides: ‘the
state may not unfairly discriminate directly or indirectly against anyone on one
245
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic
or social origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language, and birth.’
32Bennett (1999) 149.
33See also Heaton, J (2010) South African Family Law 3rd ed 217–18.
34See the discussion in sections 7.4.3.2 and 7.4.3.3.
35See Bennett (2004) 305–6.
36See, for example, s 39(3) of the Constitution which states: ‘The Bill of Rights does
not deny the existence of any other rights or freedoms that are recognized or
conferred by common law, customary law or legislation, to the extent that they
are consistent with the Bill.’
37See s 39(2) of the Constitution.
38Although polygyny is technically the correct term, we use the term ‘polygamy’ to
accommodate the more common and popular usage.
May 2013).
40The husband died in 2009.
41Mayelane para 75.
42For a detailed commentary on the issues raised by this decision, see Himonga, C
and Pope, A (2013) Mayelane v Ngwenyama and Minister for Home Affairs: A
reflection on wider implications Acta Juridica.
43Himonga and Pope (2013).
46Mayelane para 86.
47Mayelane para 34.
October 2004).
49Act 81 of 1987.
50See, further, Himonga, C ‘Constitutional rights of women under customary law in
southern Africa: Dominant interventions and “old pathways”’in Baines, B,
Barak-Erez, D and Kahana, T (eds) (2012) Feminist Constitutionalism: Global
Perspectives 317–35 at 326–8.
51See generally SALC (1998) Report on Customary Marriages 85–92.
246
52Dlamini, CRM (1999) The ultimate recognition of the customary marriage in South
Africa Obiter 20(1):14–40 at 25.
53Dlamini (1999) 26, citing Sinclair, J ‘Family rights’ in Van Wyk, D, Dugard, J, De
Villiers, B and Davis, D (eds) (1994) Rights and Constitutionalism: The New
South African Legal Order 563ff.
54Dlamini (1999) 26.
55For a more comprehensive discussion, see Dlamini (1999) 20–8.
57See Shepard, LD (2013) The impact of polygamy on women’s mental health: A
systematic review Epidemiology and Psychiatric Sciences22(1):47–62. This
author concludes that the ‘current state of the research reveals with moderate
confidence, a more significant prevalence of mental-health issues in
polygamous women as compared to monogamous women’.
58For further discussion of this issue of polygamy, see Van Schalkwyk, LN (2003)
Law reform and the recognition of human rights within the South African family
law with specific reference to the Recognition of Customary Marriages Act 120
of 1998 and Islamic marriages De Jure36(2):289–327 at 292–3.
Customary, Muslim and Hindu Family Law 40.
60Mofokeng (2009) 40–1.
61See Heaton (2010) 218 who suggests that the principle of equality between the
husband and each wife nullifies any distinction according to rank among the
wives inter se.
62Bennett (2004) 244.
63For a detailed discussion of simple and complex polygamous marriages and their
respective houses, see Bekker, JC (1989) Seymour’s Customary Law in
Southern Africa 5th ed 126–34.
64Bennett (2004) 244.
65See also Heaton (2010) 218.
67See, for example, Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T).
68Bennett (2004) 307.
69Mofokeng (2009) 54; Bennett (2004) 309.
70Bennett (1999).
247
711998 (1) SA 449 (T).
72Hlophe v Mahlalela 459. It should be mentioned, however, that in reaching its
decision, the Court was also influenced by the conflict of laws rule that if the
parties conclude a civil marriage subsequent to a customary marriage, which is
what happened in this case, the status of the parties, as well as that of the
children of the marriage, is determined in accordance with the common law on
custody (459A–B). The relevant common law on custody included the best
interests of the child principle.
73Hlophe v Mahlalela at 459.
74However, lobolo is still implicated with respect to the requirements of a valid
marriage by s 3(1)(b) of the RCMA (see ch 6 of this book).
76Kaime, T (2009) The African Charter on the Rights and Welfare of the Child: A
Socio-legal Perspective 114–5. See also Nhlapo, TR ‘Biological and social
parenthood an African perspective: The movement of children in Swazi family
law’ in Eekelaar, J and Sarcevic, P (eds) (1993) Parenthood in Modern Society:
Legal and Social Issues for the Twenty-first Century 35–50 at 47.
77Kaime (2009) 118.
78S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) (26 September 2007)
para 24.
79S 7(f)(i) and (ii) of the Children’s Act.
80See s 18 of the Children’s Act read with s 1(1) (i.e. the definition section).
81See ss 1(1)–(2) of the Children’s Act.
82A court deciding a constitutional matter may, of course, make any order that is just
and equitable (see s 172(1) of the Constitution). This could include a
retrospective order or an order limiting the retrospective effect of its order. See,
for example, Bhe para 128.
83Bennett (2004) 308–9.
84Bennett (2004) 309.
85Bennett (2004) 220, 224 and 308 and s 16(2) of the Codes on the affiliation of
children in relation to lobolo.
86S 1(1) of the Children’s Act.
87Ss 19 and 20 of the Children’s Act.
88Ss 19 and 20 of the Children’s Act.
248
89S 18(4) of the Children’s Act refers to ‘any other law or any order of a competent
court to the contrary’.
91This is in view of the fact that customary law is excluded by virtue of the
application of legislation (i.e. the Children’s Act) to customary marriages as
well. See also s 211(3) of the Constitution. The Children’s Act defines a
marriage to include a customary marriage and may therefore be considered to
be legislation that specifically deals with customary law.
93S 31(1)(a) of the Children’s Act.
94S 31(1)(b) of the Children’s Act.
95For the purposes of this Act, a parent includes any person who has parental
responsibilities and rights in respect of a child.
96S 6(1)(a)–(b) of the Children’s Act.
97For a detailed discussion of these rights, see Heaton (2010) 271–8.
99This is subject to the child’s age, maturity and stage of development.
100Barratt, A (2012) Law of Persons and the Family 307.
101Gumede para 56.
102Heaton (2010) 210–11. For a detailed description of these systems, see Bekker
(1989) 126ff.
103Heaton (2010) 210–11.
104Heaton (2010) 210–11.
105Heaton (2010) 210.
106Heaton (2010) 211.
107Heaton (2010) 210–11.
108Heaton (2010) 211.
109See Heaton (2010) 217.
110See, for example, Himonga, C ‘Property disputes in law and practice: Dissolution
of marriage in Zambia’ in Armstrong, A and Ncube, W (eds) (1987) Women and
Law in Southern Africa 56–84.
111Gumede para 29.
112The wording of each of the sections of the Codes is the same.
113Gumede para 27.
249
114Gumede para 34.
115Gumede para 46.
116S 22 had already been repealed by s 13 of the RCMA.
117See also Heaton (2010) 210.
118Gumede para 59.
119Gumede para 59.
120For a discussion, see Bennett (2004) 70–4.
121Act 45 of 1988.
122Bennett (2004) 71.
123For a discussion of these rules, see ch 5 of this book.
Common Law and the Indigenous Law Report on Conflicts of Law.
125See Heaton (2010).
126For a discussion of this topic, see Heaton (2010) 215–17.
127The bias in the selection of the marriages dealt with is justified by the need to
cover complex provisions of the common law that have been extended to
customary marriages. Nevertheless, we give references to discussions of the
types of marriages omitted.
128See s 2 of the RCMA.
129For a discussion of this concept, see Heaton (2010) 65–74.
130See Grotius 2.11.8. Although Radebe v Sosibo NO 2011 (5) SA 51 (GSJ)
involved the exclusion of the accrual system, it nevertheless illustrates how an
antenuptial contract effectively excludes an asset from the matrimonial property
regime.
131Voet 23.2.77.
132Act 121 of 1998. See De Wet NO v Jurgens 1970 (3) SA 38 (A) and Mazibuko v
National Director of Public Prosecutions (113/08) [2009] ZASCA 52; 2009 (6)
SA 479 (SCA); [2009] 3 All SA 548 (SCA) (26 May 2009). There are other
exceptional circumstances in which a spouse may receive more or less of their
share of the joint estate. See, for example, ss 15(9) (b) and 19 of the MPA
which provide for adjustment in the share of the joint estate and liabilities for
delicts that are recoverable from a spouse’s separate property rather than the
joint estate respectively. For an exhaustive discussion of these exceptional
circumstances, see Barratt (2012) 282–8.
250
133S 20 of the MPA.
134Ss 14 and 15(1) of the MPA. For a comprehensive discussion of this subject, see
Heaton (2010) 74–84; Barratt (2012) 289–304.
135S 15(2)(c), (d) and (e) and, by implication, s 15(5) of the MPA.
136S 17(1) of the MPA. For a discussion of the capacity of the spouses to litigate,
see Heaton (2010) 83–4.
137Further exceptions have been suggested, such as litigating in respect of children
from a previous marriage (see Heaton (2010) 84 fn 152).
138S 15(4) of the MPA.
139Ss 15(2)(a), (b), (f), (g) and (h) and 15(5) of the MPA. See Visser v
Hull (4375/2008) [2009] ZAWCHC 77; 2010 (1) SA 521 (WCC) (21 May 2009)
para 5 in which the Court held that s 15(2)(b) of the MPA forbade the sale of
immovable property falling into the joint estate by a spouse, married in
community of property, without the written consent of the other spouse. The
Court nullified the purported sale.
141S 15(2)(f), (g) and (h) of the MPA.
142Act 34 of 2005.
143Act 68 of 1981.
144This is because the MPA gives no specific indication concerning the manner of
consent, except that relating to ratification (see s 15(4)).
145In Visser v Hull paras 6, 12 and 13, the difference between the selling price and
the value of an asset that was sold well below its value was held to constitute a
donation.
146S 15(8) of the MPA. Some authors have argued that ‘it should be assumed that a
donation will unreasonably prejudice the other spouse’s interest in the joint
estate, and that the respondent therefore bears the onus of proving that the
donation does not and will probably not unreasonably prejudice the other
spouse’s interest.’ See Van Niekerk, PA (1999) A Practical Guide to
Patrimonial Litigation in Divorce Actions4.2.1 quoted by Heaton (2010) 77 fn
104.
147In other words, the High Court, a judge in chambers or a magistrates’ court (see
s 1 of the MPA).
148For a detailed discussion of this subject, see Heaton (2010) 80–1.
251
149S 15(6) of the MPA. Consent may, however, still be required in some cases. For
example, where a spouse concludes a contract for the alienation of immovable
property, consent will still be required to effect transfer (Heaton (2010) 78).
151For a detailed discussion of the protection of third parties, see Heaton (2010) 78–
9.
152S 15(9)(a) of the MPA.
153S 15(9)(a) of the MPA.
154S 15(9)(b) of the MPA.
155S 15(9)(b) of the MPA.
156See Heaton (2010) 79.
157According to Heaton (2010) 82, all the common law protective mechanisms are
based on fraud, in other words ‘the intention to prejudice the other spouse’.
158Heaton (2010) 82.
159See Heaton (2010) 82.
160See, for example, Visser v Hull and Pickles v Pickles 1947 (3) SA 175 (W).
161Heaton (2010) 82.
162The question whether this action is available to the spouses during the
subsistance of the marriage is not settled in case law. See Nel v Cockroft1972
(3) SA 592 (T) and Reyneke v Reyneke 1990 (3) SA 927 (E).
163Yared v Yared 1952 (4) SA 182 (T). Heaton (2010) 83 submits that the
constitutionality of the order of prodigality may be challenged on the ground
that it infringes the rights to dignity and privacy.
164The statement of the Court about the scarcity of worldly goods among Africans
who marry under customary law is inaccurate if not demeaning; it is a judgment
made without empirical evidence.
1652010 (4) SA 286 (GNP); [2010] JOL 25422 (GNP) para 23.
166See also Mamashela (2004) 621.
167For a detailed discussion, see Heaton (2010) 85–101.
168For a detailed discussion of the antenuptial contract, see Heaton (2010) 85–91.
170For a discussion of this, see Himonga, C and Stewart, J ‘Teaching women, social
realities, family and the law: African legal systems’ in Tsanga, AS and Stewart,
252
JE (2011) Women and Law: Innovative Approaches to Teaching, Research and
Analysis 223–57.
1712010 (4) SA 286 (GNP); [2010] JOL 25422 (GNP).
172(474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071
173Mayelane v Ngwenyama 2010 (4) SA 286 (GNP); [2010] JOL 25422 (GNP) para
23.
174Cronjé, DSP and Heaton, J (2004) South African Family Law 2 ed 204.
175Such marriages do not produce the consequences of a valid marriage. They
therefore deny spouses rights to property that they would otherwise have as a
married couple and their children would have the status of extramarital children.
176(474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071
177Ngwenyama v Mayelane para 19.
178This seems to be a reference to the requirements of s 7(7)(a)(i)–(iii) of the
RCMA.
180Ngwenyama v Mayelane para 38. This is substantially in line with the views held
by Heaton (2010) 212–14.
183See Ngwenyama v Mayelane para 38.
185Mayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC);
2013 (8) BCLR 918 (CC) (30 May 2013).
186For a detailed discussion, see Heaton (2010) 103–7.
190Heaton (2010) 105.
191See Ex parte Kros 1986 (1) SA 642 (NC).
192See Honey v Honey 1992 (3) SA 609 (W); Heaton (2010) 107.
193For this requirement, see Heaton (2010) 106.
194Heaton (2010) 106.
253
195S 21 of the MPA
Chapter 8
Dissolution of marriage
8.1 Introduction

8.2.1 Adultery
8.2.2 Witchcraft
8.2.3 Infertility
8.2.4 Desertion
8.1 Introduction
The ending of a customary marriage is attended by several debates as to whether

this kind of union can ever be permanently terminated during the lifetime of the
spouses and, indeed, even in the case of the death of one or both spouses.1 As a
result of these debates, even the terminology is contested. Do we talk about
‘termination’ or ‘dissolution’, and is ‘divorce’ ever appropriate? In this chapter we take
the view that much of the debate can be avoided if we are careful to define our terms
and not dwell too much on the perceived differences between the common law and
customary law approaches to ending a marriage. Giving the terms their ordinary
meaning, we shall discuss the termination of a customary marriage by divorce2 and
by death. Nullity is not discussed as it connotes a failed attempt at concluding a
marriage rather than the termination of an existing marriage.3
254
Terminology
sororate, inhlanti or seantlo a custom that enables a marriage to continue when the wife is
infertile by allowing a younger sister or half-sister of the wife to
marry the husband
theleka a practice observed among sections of the Nguni communities

where a wife will go home to her guardian either to end her
marriage or to initiate family discussions aimed at improving her lot,
usually involving the husband’s transfer of further instalments of
the lobolo
phuthuma the duty of a husband to fetch his wife when she has returned home
to her guardian whereupon the reason for her departure from the
matrimonial home is discussed and either amicably settled or a
divorce may ensue
The question of dissolution of marriage by divorce in customary law is complicated

both by the link between divorce and the courts in common law systems and by the
widely held belief in many traditional communities that a customary marriage
is indissoluble.4Divorce was a private matter between the two families who had
concluded the marriage in the first place. Although a difficult matter may need
resolution by a customary court, the standard business of a modern common law
court was not at issue in customary law.
As to the claim of indissolubility, this was based on an enduring belief in traditional
society that a customary marriage bound the two families together for life.5 It is easy
enough to see where this belief comes from. Customary marriage is widely
acknowledged to have been a union of high stability in the past.6 The lingering
assertion that it still is may be ignoring evidence of contemporary trends but is
understandable in the circumstances.
Since the date of commencement of the Recognition of Customary Marriages Act
(RCMA)7 there has been only one ground for divorce in customary law for marriages
concluded before and after 15 November 2000: the irretrievable breakdown of
the marriage.8The ground is defined in section 8(2) of the RCMA as being when ‘the
255
marriage relationship between the two parties has reached such a state of
disintegration that there is no reasonable prospect of the restoration of a normal
marriage relationship between them’.
In granting a divorce, a court can take into account the grounds that were
traditionally available to the spouses.9 However, a caveathere is again about
language. In the common law, a ground means a circumstance which, once proven,
must give rise to the granting of the divorce. In customary law, it is perhaps better to
speak of reasons or justifications rather than grounds.10 This is especially so in view
of the importance of the return of lobolo to signify divorce, a calculation that
frequently involves the establishing of fault.11
Generally speaking, adultery, witchcraft, infertility, desertion and other kinds of
neglect of marital duties may lead to the dissolution of a marriage. But such is the
nature of customary law that few hard-and-fast rules can be drawn.
8.2.1 Adultery
Adultery, for instance, may or may not be a ground for a divorce, depending on
whether it is committed by the husband or wife and whether the spouse persists with
the adultery.12
PAUSE FOR
REFLECTION
Adultery as a ground for divorce in customary law

Customary law exhibits relatively high levels of tolerance for human failings including
sexual misconduct. In the case of a wife’s adultery, a single incident probably will not
suffice to found a claim for dissolution. The preferred sanction would be a fine for the
paramour, a report to the woman’s guardian and, at times, ‘sending her home’ for a
while. Among emaSwati, for instance, even persistent adultery may result only in the
wife being ‘put aside’ by the husband. This is usually signified by shunning conjugal
visits to her house or physically relocating her living accommodation to a remote part
of the homestead.13 Generally speaking, however, a spouse may seek a divorce if
the adultery is persistent14 or incestuous,15 or when it is a factor in desertion.16 In a
potentially polygamous relationship such as a customary marriage, a husband’s
adultery will hardly ever be sufficient to found a divorce claim.
256
8.2.2 Witchcraft
Accusations of witchcraft were serious matters in traditional society.17 As a ground

for divorce, witchcraft is most commonly raised by wives against their husbands on
the basis of accusations by the husbands. If such an accusation leads to an actual
divination or ‘smelling out’ by an isangoma or some other medium, the wife’s action
may succeed. It may also succeed if these accusations are persistent18 or if it is
shown that the husband intended to drive the wife away with this behaviour.19
8.2.3 Infertility
Even a wife’s infertility which, in a society so concerned with offspring, may be

expected to be a fatal defect in the marriage does not necessarily terminate the
union. In an effort to preserve the marriage bond, traditional society deployed many
sophisticated mechanisms discussed below.
PAUSE FOR
REFLECTION
Infertility and divorce: social protection of the marriage relationship

One particular custom of widespread application is clearly designed to cushion the
blow to the marriage of infertility on the part of a wife for whom lobolo has been
transferred. The custom of the sororate (also called inhlanti or seantlo) enables the
marriage to continue by allowing a younger sister or half-sister of the wife to marry
the husband and bear children on her sister’s behalf. As a general rule, no
further lobolochanges hands. It is only when complications set in during this process
that the infertility of the wife may lead to divorce and the return of the lobolo. Divorce
on the basis of the husband’s infertility is rare. The traditional solution is the
surreptitious introduction of a male relative into the wife’s bed. However, impotence
suffices as a ground for dissolution of the marriage.20
8.2.4 Desertion
Desertion, in particular, presents a useful study of the dynamics of customary

marriage. There are clear cases where it will be sufficient as a ground for the
dissolution of a marriage and many other instances where it will not suffice.21
257
PAUSE FOR
REFLECTION
Desertion as a ground for divorce or as a cry for help

Desertion in customary law can be taken to have a weak and a strong version. The
strong version of desertion is accompanied by the intention not to return to the
marriage and is sufficient to provide a ground for dissolution of the marriage. The
importance of the weak version of desertion is that it offers one of the few avenues
by which a woman may initiate an end to her marriage or initiate family discussions
aimed at improving her lot. In both versions, the woman goes back home to her
guardian. Whether compromise is reached or the conflict hardens to the point of
divorce will depend in large part on the support of her guardian for her cause.22 This
explains customs such as theleka and phuthuma.
According to the practice of theleka as observed among sections of the Nguni
communities, a wife will go home for either of the reasons described above or to
extract further lobolo transfers from her husband. The husband has a duty to fetch
her (phuthuma) whereupon the reason for her departure from the matrimonial home
is discussed. Payment of a beast for misbehaviour by the husband or an agreement
for further lobolo instalments may resolve the matter amicably. If the issues prove
more intractable, a divorce may follow.
A basket of other common circumstances that may in certain cases lead to

dissolution include gross ill treatment, failure to maintain a spouse, refusal of sexual
privileges, disobedience and disrespect. Each case must be decided on its own
merits. There is little point in speculating about when each circumstance or
combination of circumstances might suffice or not for the dissolution of
the marriage.23The study of divorce, more than anything in customary family law,
brings out vividly what Marwick meant by an ‘almost illimitable capacity
for compromise’24 displayed by traditional society in matters of marriage. If any proof
were needed that the ground of irretrievable breakdown is central to customary law,
this provides important evidence. Traditional society will do all in its power to keep a
marriage alive but, being pragmatic people, they will let the marriage go when it
becomes clear that it is beyond repair.
258
During the colonial, Union and apartheid eras, the courts churned out a huge
volume of official customary law, usually in the form of a plethora of procedural rules.
These laws were partly meant to accommodate the return of lobolo in divorce
proceedings and therefore the need to involve the wife’s guardian, and partly to deal
with the ambiguity of the various factors signifying divorce described above.25 The
return of lobolo in divorce, in particular, generated a great number of rules, both as to
its incidence and the size of lobolo involved. As Bennett points out, this area of the
law is now relevant only when there is a need to establish whether spouses were
validly divorced before 15 November 2000. This enquiry is rendered more difficult by
the prevalence of informal separations and by the paucity of information on the living
customary law in this area.26
On the issue of the return of lobolo, many traditional communities observe at least
three criteria on the basis of which the guardian may retain some of the lobolo even
as he hands over the rest to mark the termination of the marriage tie. These criteria
are:
 whether the wife has borne children
 whether any fault can be attributed to either of the spouses
 whether her performance of services in her married home should
be acknowledged.27
Procreation is the main objective of a customary marriage. If the wife has fulfilled her
obligations to her married family in this respect, her guardian is entitled to retain
some of the lobolo in recognition of this but the amount varies.28 There is some
authority in official customary law that deductions are also allowed in the case of
adulterine children29 and miscarriages.30
Where it is established that the break-up is due primarily to the fault of one of the
parties, deductions from the lobolo returned are permissible. The guardian forfeits
the lobolo in its entirety if the wife is at fault31 but may keep some of the lobolo if the
break-up was the husband’s fault.32 More contested is the question whether a wife’s
services during the marriage can be the basis for deductions from
the lobolo returnable on divorce.33 There is some authority in official customary law
that in some communities lobolo could be retained if a husband assaulted
his wife,34 abandoned her35 or was impotent.36
259
A divorce order can only be given by a High Court, a family court or a
divorce court.37 Jansen characterises this development as a ‘radical amendment of
customary law’.38 She is correct in the sense that traditionally the state had no
involvement in divorce as it was seen as a private matter between the families
concerned. The critical indicator that dissolution had been agreed in this process
was the return of lobolo.39 The only difference was in KwaZulu-Natal where the
Codes implied the involvement of a court in any divorce arrangements.40
Terminology
levirate, ukungena, kungena or kenela the practice where a man’s widow may be required to
cohabit with one of his brothers or some other
nominated male relative, mainly for the purposes of
raising an heir
Because a customary marriage is an agreement between the families of the

spouses, the death of one spouse does not necessarily dissolve the marriage. It
simply ‘ushers in a new phase in the relationship’ because the contract is between
the families, not the spouses individually.41
On the death of the husband, the family council, among its various duties,42 will
decide whether there is a need to invoke the custom of the levirate. Also known
as ukungena, kungena and kenela, the levirate denotes the practice among certain
indigenous communities where a man’s widow may be required to cohabit with one
of his brothers or some other nominated male relative, mainly for the purposes of
raising an heir. Whether this is done or not depends on a number of factors,
including the age of the widow at the time and whether she has offspring. Again,
depending on the general tone of the relationship between the deceased’s family
and the widow, which is strongly influenced by the warmth or otherwise of the
relationship between the couple while the husband was alive, she may refuse the
levirate and still remain part of the family.
In many traditional communities that practise the custom of the levirate it is
generally acknowledged that a widow’s consent should be sought before the levirate
is invoked both as to her participation and as to the identity of the consort,43 and that
260
she is never compelled. It is equally clear, however, that a young widow without
children, or who has borne only girls, will come under immense pressure to accept
the levirate on pain of eviction from the household.
The death of a wife similarly does not end the marriage. The house established by
the marriage continues to exist and the husband may invoke the custom of the
sororate, discussed above, to raise the children for the house especially if she died
without issue.
Terminology
isondlo or dikotlo(Setswana) the payment in the form of one or two beasts that a person who has
raised a child has a right to claim from the parent who seeks to
acquire custody of the child
Sections 8(4)(a) and 8(4)(b) of the RCMA govern the consequences of a dissolution
of customary marriage by divorce. As a result, these consequences are now broadly
the same as those of a civil marriage. This is because section 8(4)(a) provides that a
court dissolving a customary marriage has the same powers as those found in
sections 7, 8, 9 and 10 of the Divorce Act44 and section 24(1) of the Matrimonial
Property Act (MPA).45 These are the same powers at the disposal of a court when
dissolving a civil marriage.
The importance of these provisions is that a court may order a division of the
assets or a maintenance plan in accordance with the terms of a settlement
agreement, or it may order post-divorce maintenance or the division or redistribution
of the assets of the marriage, or the forfeiture of benefits. The court may also deal
with the property of minors married without consent. The court may rescind, suspend
or vary any of these orders.46
Divorce in the context of a polygamous marriage is provided for in section 8(4)(b)
of the RCMA. This section enjoins the court, in the exercise of its powers as
described above, to take into consideration ‘all relevant factors including any
contract, agreement or order’ made in terms of sections 7(4) to 7(7) of the RCMA
and to ‘make any equitable order that it deems just’. These sections deal with a
change of the matrimonial property system for spouses
261
married before47 and after48 the date of commencement of the RCMA and husbands
wishing to contract further polygamous marriages.49
The question of the court’s power to order a redistribution of the assets of the
marriage has been the subject of fierce debate.50Writers disagreed on the effect of
the importation of the language of section 7(3) of the Divorce Act into divorce
proceedings under the RCMA. At issue was whether section 7(3) and therefore the
court’s power to redistribute the assets of the marriage would apply to customary
marriages concluded before 15 November 2000. Section 7(3) reads as follows:
7(3) A court granting a decree of divorce in respect of a marriage out of

community of property –
(a) entered into before the commencement of the Matrimonial Property
Act, 1984, in terms of an antenuptial contract by which community of
property, community of profit and loss and accrual sharing in any form
are excluded; or
(b) entered into before the commencement of the Marriage and
Matrimonial Property Law Amendment Act, 1988, in terms of section
22(6) of the Black Administration Act, 1927 (Act No. 38 of 1927) as it
existed immediately prior to its repeal by the said Marriage and
Matrimonial Property Law Amendment Act, 1988,
may, subject to the provisions of subsections (4), (5) and (6), on
application by one of the parties to that marriage, in the absence of
any agreement between them regarding the division of their assets,
order that such assets, or such part of the assets, of the other party
as the court may deem just be transferred to the first-mentioned
party.
One school of thought was that section 7(3) of the Divorce Act had no application to
customary marriages as these marriages were subject to a complete separation of
assets. A contrary view was that the section applied precisely because these
customary marriages amounted in effect to marriages with a complete separation
of assets.51
The decision in Gumede v President of the Republic of South Africa52 has ended
the debate. The Constitutional Court in this case held that it did not matter when the
262
marriage was concluded nor what the matrimonial property regime was – section
8(4)(a) of the RCMA applies to all these marriages as does the power of the court to
order a redistribution. As Moseneke DCJ put it:
In my view, there is no cogent reason for limiting the scope of the

equitable jurisdiction conferred on a divorce court by s 8(4)(a) of the
Recognition Act in relation to matrimonial property of a customary
marriage which is out of community of property. It is clear that at both
a textual and purposive level, s 8(4)(a) does not restrict the equitable
jurisdiction of a court to a marriage out of community of property.
This means that every divorce court granting a divorce decree relating
to a customary marriage has the power to order how the assets of the
customary marriage should be divided between the parties, regard
being had to what is just and equitable in relation to the facts of each
particular case.53
A court dissolving a customary marriage is empowered to order that one spouse pay
post-divorce maintenance to the other.54 This is a departure from traditional
customary law where the kinship system took care of the maintenance of women
and children on the dissolution of the marriage. The woman returned to her home
where her guardian as the lobolo holder had an obligation to support her and any
children she brought with her who would be under his guardianship as their maternal
grandfather. Any children left behind with the husband were his wards in the
ordinary way.55
When ordering maintenance the court is further empowered to take into account
‘provision or arrangements made in accordance with the customary law’.56 Thus,
where isondlo57 has been paid to any person for maintaining the child, the
maintenance order will take this into account. Similar considerations will probably
apply to any lobolo payments made.58
According to the RCMA, a court dissolving a customary marriage may make
orders regarding the custody or guardianship of children of the marriage.59 In terms
of section 8(3) of the RCMA, the court may apply the provisions of the Mediation in
Certain Divorce Matters Act60 and section 6 of the Divorce Act61 in doing so. This
places the children of a customary marriage in the same position on divorce as the
263
children in a civil marriage.62 This marks a significant shift from customary law where
the father had strong rights to custody and guardianship especially if he had
paid lobolo.63
Section 8(4)(c) of the RCMA empowers the court to order that any person who in
the court’s opinion has a sufficient interest in the matter be joined in the proceedings.
This clearly includes the wife’s guardian as the lobolo holder and any of the
husband’s other wives in the case of a polygamous marriage.64
Rule 43 of the Uniform Rules of Court applies to customary marriages65 and allows
spouses to apply for maintenance pending litigation, interim custody or guardianship
of any child and/or a contribution towards costs.
 Many writers hold the view that, once tied, the customary marriage knot
cannot be undone since even death does not necessarily end the marriage.
However, section 8 of the RCMA now prescribes that a customary marriage
may be dissolved only by a court by a decree of divorce and that the only
ground for divorce is irretrievable breakdown of the marriage.
 The definition of irretrievable breakdown is a situation where the marital
relationship between the parties has reached such a ‘state of disintegration
that there is no reasonable prospect of the restoration of a normal marriage
relationship between them’.
 Adultery, witchcraft, infertility (or impotence), desertion and various kinds of
neglect and ill-treatment are identified as some of the most common reasons
for terminating a customary marriage. This is qualified by the warning that
many of them are grounds for divorce only if they are persistent or gross.
Adultery and desertion in particular are highlighted. Adultery may be a
justification available to husbands against their wives but seldom vice versa.
Desertion may be the one clear avenue available to a woman to precipitate a
termination of her marriage.
 In customary law, the outward and visible sign evidencing the termination of a
marriage is the return of lobolo by the wife’s guardian to the husband or the
husband’s family. The guardian is entitled to keep a portion of the lobolo if his
daughter has borne children in her married family, if the breakdown was due
264
to the fault of the husband, and, among certain communities, in
acknowledgement of the services rendered by the wife during her time in the
marriage.
 A customary marriage is not necessarily dissolved by the death of one of the
spouses. In the event of the death of the husband, the marriage may continue
through the device of the levirate. Where it is the wife who dies, the invocation
of the sororate may keep the marriage tie alive.
 The consequences of divorce in a customary marriage are now broadly
similar to those of a civil marriage. This alignment was achieved by the
incorporation by section 8(4)(a) of the RCMA of sections 7, 8, 9 and 10 of the
Divorce Act and section 24(1) of the Matrimonial Property Act into divorce
proceedings under the RCMA. These provisions read together give a court
dissolving a customary marriage the same powers as those enjoyed by a
court dissolving a civil marriage. These powers include the power to divide the
assets of the marriage, to order that one spouse maintain the other (whether
based on a maintenance agreement or not), to redistribute the assets, to
order a party to forfeit benefits and to deal with the property of minors married
without consent.
 Divorce in the case of a polygamous marriage is governed by section 8(4)(b)
of the RCMA which empowers the court to consider a wide range of factors in
order to make a just and equitable order.
 In the case of Gumede, the Constitutional Court ruled that a court has the
same powers to redistribute the assets in all customary marriages whether
contracted before or after the date of commencement of the RCMA.
 A court ordering maintenance in a divorce may take into consideration any
provision that may have been made in customary law, such as isondlo, or any
arrangement made in terms of the lobolo agreement in favour of one party.
 The court may also make orders in respect of the custody and guardianship of
children, applying the provisions of the Mediation in Certain Divorce Matters
Act and section 6 of the Divorce Act, thus again aligning customary law and
common law in these matters.
265
1Jansen, R-M ‘Customary family law’ in Rautenbach, C, Bekker, JC and Goolam,
NMI (eds) (2010) Introduction to Legal Pluralism in South Africa 3rd ed 45 at
49; Nhlapo, TR (1992) Marriage and Divorce in Swazi Law and Custom.
2A further complication with the term ‘divorce’ is its association with the decree of a
court of law, which in the past had no role in the termination of a customary
marriage. A definition of the term that suffices for the purposes of this chapter
is taken from the Collins English Dictionary 2nd ed which refers to divorce as
‘the dissolution of a marriage by judgment of a court or by accepted custom’
(own emphasis).
3See Bennett, TW (2004) Customary Law in South Africa 291 for a brief discussion
of nullity in customary law and under the Recognition of Customary Marriages
Act 120 of 1998 (RCMA).
4See Bennett (2004) 266; Nhlapo (1992) 77.
5Nhlapo (1992) 77 ff; Marwick, BA (1940) The Swazi 33.
6Gluckman, M (1953) Bridewealth and the stability of marriage Man 53:141–43;
Nhlapo (1992); Maithufi, IP and Bekker, JC (2001) The dissolution of
customary marriages in South Africa Obiter 22(2):259–72.
7Act 120 of 1998.
8S 8(1) of the RCMA. It is sometimes mistakenly assumed that this ground is
imported from the Divorce Act 70 of 1979 and was introduced into customary
law by the RCMA. In fact, the irretrievable breakdown of a marriage is more
consonant with customary law where, as a rule, spouses resort to divorce only
when all else has failed. See Jansen (2010) 45; Bekker, JC (1976) Grounds of
divorce in African customary marriages in Natal Comparative and International
Law Journal of Southern Africa 9(3):346–55; Maithufi and Bekker (2001) 264.
9See Jansen (2010) 3.3.7.1.
10Nhlapo (1992) 77 discusses seven traditional reasons for a marital breakdown
among emaSwati: adultery, witchcraft, infertility, cruelty and neglect or gross ill-
treatment, refusal to render conjugal rights, gross disobedience and disrespect,
and desertion. He analyses whether these were considered to be grounds in
the common law sense and whether they were available to the spouses
equally. He concludes in the negative on both counts.
11Bennett (2004) 268.
266
12Bekker (1976).
13Nhlapo (1992) 79 ff.
14Mshweshwe v Mshweshwe 1946 NAC (C & O) 9.
15Mangaliso v Fekade 5 NAC 5 (1926).
16N’guaje v Nkosa 1937 (NAC) 98.
17See Bennett (2004) 268 who says, ‘Witchcraft for example is always a serious
matter, and the actual practice of witchcraft is clearly a good reason to end a
marriage’. See also Evans-Pritchard, EE (1937) Witchcraft, Oracles and Magic
Amongst the Azande 63–81.
18Mathupa v Mahupye 1933 NAC (N & T) 6.
19Mqitsane v Panya 1951 NAC 354 (S). See also Nhlapo (1992) 17.
20Ndatambi v Ntozake 1 NAC 3 (1985).
21We submit that desertion by a wife offers the one clear instance where she can
initiate the termination of her own marriage, whether regularly or irregularly
entered into.
22Bennett (2004) 271 ff; Nhlapo (1992) 87 ff.
23See generally Nhlapo (1992) 83–7.
24Marwick (1940).
25These procedures are captured comprehensively by Bennett (2004) 270 ff.
26Bennett (2004) 274 ff.
27Bennett (2004) 277–8.
28Gaga v Dyaba 1931 NAC (C & O) 4; Tusi v Cekwaan 1939 NAC (N & T)
63; Nkuna v Kazamula 1941 NAC (N & T) 128; Manjezi v Sirunu1950 NAC 252
(S). Among emaSwati, deductions for children born are two beasts for a girl up
to a total of four beasts, and one each for a boy up to a total of two (Nhlapo
(1992) 80). Needless to say, these negotiations may involve cash rather than
beasts on the hoof.
29Gqozi v Mtengwane 1960 NAC 26 (S); Ngcobo v Zulu 1964 BAC 116 (N-E).
30Mayeki v Kwababa 4 NAC 193 (1918).
31Mogidi v Ngomo 1948 NAC (N & T) 18. But see also for evidence of differences in
the rules in this area Mkanzi v Masoka 1949 NAC 145 (S); Mzizi v Pamla 1953
NAC 71 (S); Mfazwe v Tetana 2 NAC 40 (1910).
32Gunqashi v Cunu 2 NAC 93 (1910).
267
33Tusi v Cekwaan 1939 NAC (N & T) 63; Novungwana v Zabo 1957 NAC 114
(S); Sihoyo v Mandobe 1941 NAC (C & O) 5.
34Xakata v Kupuka 2 NAC 62 (1910).
35Shabangu v Masilela 1939 NAC (N & T) 86.
36Ndatambi v Ntozake 1 NAC 3 (1895).
37As a result of the combined effect of s 8(1) read with the definition of ‘court’ in s 1
of the RCMA. Heaton, J (2010) South African Family Law3rd ed 222 points out
that the divorce courts will cease to exist as they will merge with the regional
divisions of the magistrates’ courts.
38Jansen (2010) 65. The SALC debated the matter and opted for the provisions
primarily for the protection of women and children. See South African Law
Commission (1998) Project 90 The Harmonisation of the Common Law and the
Indigenous Law Report on Customary Marriagespara 7.1.21. Interestingly, the
SALC rejected suggestions that traditional courts could be granted jurisdiction
over divorces (para 7.1.18) although it supported the role of the traditional
leaders in mediation prior to divorce, now reflected in s 8(5) of the RCMA.
39See Bennett (2004) 278 who suggests that this is no longer a requirement under
the RCMA although the courts will consider it as an important indicator. In the
case of Thembisile v Thembisile 2002 (2) SA 209 (T), decided after the coming
into effect of the RCMA, the Court referred to this indicator as a useful pointer
in deciding whether a divorce had occurred or not.
40See s 50(1) of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and the Natal
Code of Zulu Law Proc R151 of 1987.
41Nhlapo (1992) 75. See also Jansen (2010) 49 and Maithufi and Bekker (2001)
264.
42Such as dealing with matters of succession and inheritance.
43See, for instance, Nhlapo (1992) 76 on emaSwati.
44Act 70 of 1979.
45Act 88 of 1984.
46S 8 of the Divorce Act.
48S 7(5) of the RCMA importing s 21 of the MPA.
49Ss 7(6) and 7(7) of the RCMA.
50Heaton (2010) 132–48; See also Bennett (2004) 281 ff.
268
51Heaton (2010) 132; Jansen (2010) 66–9.
December 2008).
53Gumede para 43.
54S 8(4)(a) of the RCMA read with s 7(1) and (2) and s 8 of the Divorce Act. The
court may make a maintenance order, or may rescind, vary or suspend one. It
may also endorse private agreements between the parties in this regard.
55See generally Jansen (2010) 68.
56S 8(4)(e) of the RCMA.
57See Bennett (2004) 282 for a discussion of the differences between isondlo and
maintenance as understood in the common law.
58Bennett (2004) 221 and 227.
59S 8(4)(d) of the RCMA.
60Act 24 of 1987. This Act introduces the role of family advocates and family
counsellors in divorce proceeding where the welfare of the children is an issue.
61This Act is likewise concerned with the welfare of children during divorce.
62See Maithufi, IP and Moloi, CMB (2002) The current legal status of customary
marriage in South Africa Tydskrif vir die Suid-Afrikaanse Reg4:599–611;
Maithufi and Bekker (2001) 195.
63These provisions must now be read in the context of the Children’s Act 38 of 2005
and are fully dealt with in ch 7 of this book.
64Jansen (2010) 68. See also Heaton (2010) 221–3.
65Baadjies v Matubela 2002 (3) SA 427 (W).
269
Chapter 9
The customary law of succession

9.1 Introduction

Deceased Blacks
9.4 Judicial reform

9.5.2 Modification of the customary law of succession
9.5.6 Disposal of property held by a traditional leader
9.5.7 Dispute or uncertainty in consequence of the nature of customary law
9.1 Introduction
Terminology
law of deals with testate and intestate succession, and the manner in which a person’s
succession estate or eligible assets are to be inherited by his or her beneficiaries after his or
her death
testate takes place where the deceased, the testator had, during his or her lifetime,
succession executed a valid will which indicates how his or her estate has to be shared or
divided after his or her death
270
intestate deals with the rules of law which determine who a person’s heirs or beneficiaries
succession are and their respective shares if the person dies without executing a valid will or
executing a will which disposes of only a portion of his or her estate
successor in customary law, the person who acquires status by taking the place of the
deceased, who becomes responsible for the deceased’s duties and obligations and
who succeeds to both the liabilities and assets of the deceased
deathbed wish the allotment of property to individuals on the deceased’s deathbed
The law of succession is a branch of private law which governs what is to happen
to a person’s estate or eligible assets after his or her death. It lays down how a
deceased person’s estate is shared by his or her heirs or beneficiaries and who such
heirs or beneficiaries are. It therefore identifies the heirs or beneficiaries as well as
their shares.
The law of succession is divided into two branches: testate and intestate
succession. Testate succession takes place where the deceased, the testator had,
during his or her lifetime, executed a valid will which indicates how his or her estate
has to be shared or divided after his or her death. The deceased himself or herself
states in a will or testament the names of persons who are to benefit from the estate
and their respective shares. The will or testament must comply with the requirements
prescribed by the Wills Act.1Intestate succession, however, deals with the rules of
law which determine who a person’s heirs or beneficiaries are and their respective
shares if the person dies without executing a valid will or executing a will which
disposes of only a portion of his or her estate.
The customary law of succession deals in particular with the preservation and
continuation of the family name and unity after the death of a person. It is not merely
concerned with the identification of the beneficiaries to the deceased’s estate, but
also with identifying persons who will succeed to certain status positions in the
family. The person who acquires status, that is, the successor, takes the place of
the deceased and becomes responsible for the deceased’s duties and obligations.
The successor succeeds to both the liabilities and assets of the deceased. As a
result of this, the successor becomes responsible for maintaining all the people for
271
whom the deceased was liable for maintaining during his or her lifetime and for
settling his or her debts irrespective of the value of the estate.
In 2009, the Reform of the Customary Law of Succession and Regulation of
Related Matters Act (RCLSA)2 changed the customary law of succession. The
RCLSA reformed the customary law, mainly to bring it in line with constitutional
principles. The first two parts of this chapter following this section discuss the
principles of customary law of succession (including official customary law) before
the RCLSA came into operation. This largely serves as a background to the reasons
for the reform of the customary law. The rest of the chapter deals with the judicial
and legislative reform of the customary law in the new constitutional dispensation.
PAUSE FOR
REFLECTION
Customary law and change: estate grabbing

In Bhe v Khayelitsha Magistrate, the Constitutional Court stated that the past
‘fossilisation and codification of customary law’ by colonial, Union and apartheid
authorities ultimately led to its marginalisation:
This consequently denied it of its opportunity to grow in its own right

and to adapt itself to changing circumstances. This no doubt
contributed to a situation where, in the words of Mokgoro J,
‘[c]ustomary law was lamentably marginalised and allowed to
degenerate into a vitrified set of norms alienated from its roots in
the community’.3
The problem of codified rules being transposed from previous socio-economic

contexts to the present has particularly serious implications for women. In the pre-
colonial agrarian context women played a pivotal role in the household economy.
They were the primary crop farmers and also produced the children on whom the
continuation of rural families depended. However, as the agricultural economy in the
former homelands came under increasing pressure from apartheid-created land
shortages, so women’s bargaining position within the family declined.4This made
women vulnerable to property-grabbing and eviction by family members who no
longer relied on their labour. This was exacerbated as the cash economy took hold
and the land to which African people were restricted became increasingly scarce.
272
This vulnerability was also exacerbated by codified versions of customary law that
vested African land rights and inheritance exclusively in men.5
In practice, there are various examples of customary rules being adapted to
changing circumstances.6 These developments were thwarted and restricted by the
rigid and timeless version of custom imposed by the Black Administration Act (BAA). 7
The Constitutional Court case of Bhe involved a magistrate applying the same
BAA to the effect that Ms Bhe and her two children were almost rendered homeless
after the death of her partner. Her partner’s father, who had been declared the sole
heir by the magistrate, wanted to sell the house that Ms Bhe and her partner had
lived in with their children to pay for his son’s funeral costs.8
In these circumstances, the Court highlighted that potential remedies must take
into account the material circumstances and power relations that, in practice, restrict
the options available to women and children. The Court said that to rely on the
making of wills as a means of extricating people from the discriminatory impact of the
BAA would benefit ‘[o]nly those with sufficient resources, knowledge, education or
opportunity to make an informed choice’.9
The power relations which frame the limits of what is possible in practice are in
some measure the outcome of the rigid versions of custom entrenched by laws such
as the BAA. This means that in some contexts current practice is deeply
discriminatory. In such situations, the recognition of living customary law is not
enough to remedy existing inequality. Thus the Court found in
both Bhe and Shilubana vNwamitwa10 that the development of customary law in line
with the Constitution is necessary to give effect to the right to equality.
The customary law of succession also recognises the method of allotting property by
the deceased during his or her lifetime which has the same effect as the common
law testamentary succession. A deceased person may, during his or her lifetime,
allot property to his or her child or an individual of choice. These allocations are
given effect to in the same manner as if they were contained in a valid will.
Moreover, a deceased person may make a deathbed wish which is also given effect
to in the same manner. We discuss this further below.
273
Terminology
male primogeniture the rule in customary law as codified by legislation in South Africa that
the eldest surviving male relative of the deceased succeeds to both
status and the whole estate of the deceased
inheritance the acquisition of property of the deceased unless the context

indicates otherwise
succession the acquisition of the status of the deceased unless the context
indicates otherwise
house heir a person who is entitled to inherit property in a particular house in a

polygamous family, usually that of his mother
general heir the person who acquires or succeeds to the status of the deceased
lesika a family court in the Sesotho languages
tshwaiso, go among baTswana, the allocation or allotment of property before death

tshwaisa or tshwaelo
The South African legal system is pluralistic in nature. This means that more than
one legal system is applicable in South Africa. Before the adoption of the current
constitutional dispensation on 27 April 1994, the common law was the primary
applicable legal system. Other systems of law, in particular customary law, were
applied only when they were not found to be in conflict with public policy or
natural justice.11 It was only after the coming into operation of the interim Constitution
that customary law was recognised on the same basis as the common law.12
Before the Constitutional Court decision in Bhe, the law of succession in South
Africa consisted of the common law of succession as regulated by the Intestate
Succession Act13 and the Wills Act, as well as the customary law of succession
whose application was characterised by the application of the principle or rule
of male primogeniture. The rules of the customary law of succession were
contained in various pieces of legislation and proclamations issued in terms of
274
the BAA,14 the Regulations for the Administration and Distribution of Estates of
Deceased Blacks,15 the KwaZulu Act on the Code of Zulu Law,16 and the Natal Code
of Zulu Law.17Besides these measures, certain areas in South Africa, which had
been granted nominal independence by the previous regime, had enacted legislation
dealing with succession. Among them were the then Transkei with its
Marriage Act,18 which contained provisions relating to succession,19 and
Bophuthatswana with its Intestate Succession Law Restatement Act.20
In the common law, succession relates to the acquisition of the property or eligible
assets or part thereof of a deceased person. The word ‘inheritance’ has the same
meaning. The law of succession therefore deals with the acquisition of the rights to
the property of another person who is deceased. This is the primary function of the
law of succession in the common law.
The customary law of succession, however, distinguishes between succession
and inheritance. Succession in customary law entails the acquisition of the status a
deceased person occupied during his or her lifetime. The successor acquires the
rights, duties and obligations of the person he or she succeeds. Such succession
may also be accompanied by the acquisition or inheritance of the property or some
of the property of the deceased. Such a successor is said to ‘step into the shoes’ of
the deceased as he or she takes over the status of the deceased.21 An example is
where the deceased was a traditional leader and another person acquires his or her
status as a traditional leader on his or her death.
A distinction is further made between a house heir and a general heir in customary
law. A house heir is a person who is entitled to inherit property in a particular house
in a polygamous family, usually that of his mother. A general or principal heir or
successor is a person who acquires or succeeds to the status of
22
the deceased. This is the successor who steps into the shoes of the deceased as
he or she takes over all his or her rights, duties and responsibilities. If the deceased
was the head of a family, the successor takes over such rights, duties and
responsibilities. This position has been described as follows:
The family headship does not die with the death of the father of the
family, but the authority which he alone exercised over his houses is
divided but remains undiminished, the eldest son of each house
becomes the family head of that house. Family headship is a
275
continuous exercise of well-defined rights and liabilities passing from
father to son without change or interruption.23
Succession, in other words the acquisition of status, in customary law is governed by

the rule of male primogeniture.24 Male primogeniture implies succession by males
through males only in respect of the acquisition of positions of status. In the case of
a deceased who was married to more than one wife, the eldest son in each house
succeeds to that specific house.25 In his absence, his eldest son or his son succeeds
until all the sons of the deceased and their sons have been exhausted before resort
is had to the second son and all his sons and their sons and other sons of the
deceased. The same rules are applicable to the succession to a monogamous
family head.26
Figure 8.1 An example of the application of the rule of male primogeniture in

determining succession to status
Succession to the status of A would start with AB1 until all his male descendants
have been exhausted, that is, AB11 and all his male descendants and AB12 and all
his male descendants and all their descendants, if any, before resort is had to AB2
and all his male descendants. They would be followed by AB3 and all his male
descendants in the order of their seniority by birth. The same rules would be followed
if the deceased was married to more than one wife.
COUNTER
POINT
Debates concerning whether male primogeniture is, in practice, a predictive

‘rule’ in succession to status
There is much scepticism in anthropological and historical literature as to whether
the ‘rule’ described above ever accurately reflected the actual dynamics of
succession to political office in pre-colonial South African society. Comaroff, for
example, having traced the actual history of chiefly succession among various
baTswana communities in South Africa found that deviations from the ‘rule’ of male
276
primogeniture are so common that they cannot be described as ‘unusual’ or
‘anomalous’:
The rules, however, cannot be assumed to determine the outcome of

indigenous political processes. If they are read literally, and examined
in the context of the history of the office, 80 per cent of all cases of
accession to the chiefship represent ‘anomalies’.27
Costa, writing of amaZulu kingship disputes, similarly asserts that while the ‘rule of
succession’ has been described by anthropologists and, in particular, apartheid
institutions, ‘[t]he history of the kings themselves […] points more to individual ability
than predestination’.28
Similar findings are made and explained by anthropologists and historians such as
Hammond-Tooke (in relation to amaMpondomise),29Delius (Bapedi),30 Beinart
(amaMpondo)31 and Peires (amaXhosa).32 Delius observes that:
… the idea that rules determined succession in these societies is a

considerable oversimplification. Reality was more complex and
allowed for competitive political processes shaped by the interplay of
popularity and power to determine who acceded to high office.33
In Alexkor Ltd v Richtersveld Community, the Constitutional Court warned of the

dangers of looking at indigenous law through a common law prism and directed us
instead to ‘the study of the history of a particular community and
34
its usages’. Elevating ‘rules’ out of the context in which they operate and are
reshaped can have a similar distorting impact.
The modus operandi adopted by first the colonial and later the Union and
apartheid governments was to justify their decisions using genealogies drawn up by
state ethnologists. The ethnography division of the Department of Native Affairs was
established in 1925 and played an important role in determining the outcome of
succession disputes. To rely exclusively or primarily on genealogies in the present is
to entrench fundamental misconceptions and distortions that were pivotal to the
‘divide and rule’ agenda of the colonial, Union and apartheid governments.
277
Even the leading government ethnologist, Van Warmelo, understood the limited
role of formal succession ‘rules’ in practice and attempted to convince his superiors
to take this into account. In his notes from 1945 we find the following passage:
My contention is therefore that this picking of chiefs out of the hat of

chance will have to stop unless the whole institution of chieftainship
is to come to grief. The natives always thought otherwise than to
accept chiefs only on birth. In the olden days chiefs were men of birth
plus a certain amount of ability … we cannot dispense with ability and
I am certain that the Government must sooner or later return to the old
principle of birth plus ability …35
The Constitutional Court has yet to decide on the validity of the rule of male
primogeniture in cases involving succession to status. Whether that judgment will be
restricted to issues pertaining to equality depends on the facts and arguments put
before it by opposing litigants. The actual dynamics of past and current succession
practices, and the colonial origins of the ‘genealogical approach’, would not
necessarily arise unless put forward by a party to the litigation or an amicus curiae.
This illustrates the evidentiary burden entailed in developing the jurisprudence of
living customary law as opposed to official customary law. As Bennett has said,
issues pertaining to availability of information tend to create a de facto presumption
in favour of official versions of customary law, whatever their failings.36
In the Shilubana case, the Court found that the customary community had the right
to develop their customary law in line with the Constitution, so enabling a woman to
accede to the throne. This case was therefore about the development rather than the
actual content of the customary law governing succession to status, which awaits
future litigation to be decided.
This discussion has focused on succession to status in relation to political
leadership. Succession to status is also crucial at the level of the family and family
home. The chapter as a whole has highlighted that succession and inheritance are
not separate constructs but are inextricably interconnected. In the next Counterpoint
discussion we refer to the increasing incidence of parents choosing a daughter, who
has taken on the responsibility for family care, as the person who will take over
responsibility for the family home on their death in preference to a less responsible
278
brother. In such cases, the daughter inherits the status of caretaker for the family
home on the assumption that she will maintain it for the benefit of the family as a
whole rather than as her own private property.37
According to customary law, the assets or property of a deceased person may be

inherited by various persons after his or her death.38The homestead or house of a
deceased person is normally inherited by his or her youngest son.39 This is because
customary law burdens this son with the responsibility of taking care of the deceased
when he or she is no longer capable of doing so.
Customary law further provides for rules to be applied in the division of the estates
of male and female deceased persons, whether married or unmarried. This position
has been described as follows:
The manner in which property is inherited after the death of the owner
depends upon his marital condition and sex, and upon the nature of
the property. The general rule regarding the latter is that sons inherit
all cattle and other property specifically used by males; while
daughters inherit the domestic utensils and other goods specifically
used by females.40
After observing the traditional mourning period, usually a year after the death of the
deceased, a family group meeting is called to determine the distribution of the estate
among the deceased’s heirs or beneficiaries.41 The family group, especially the
deceased’s principal heir and his paternal uncles, therefore supervises the
distribution of the deceased’s estate. The children of the deceased, irrespective of
their age and gender, are allotted various portions of the estate.42 In the event of a
dispute regarding the distribution or division of the estate, an aggrieved party may
appeal to the family court, sometimes known as a lesika court or to the chief.43
COUNTER
POINT
Males, ‘real property’, females, pots and pans: how unfair?

Schapera’s classic Handbook of Tswana Law and Custom was first published in
1938. In the Preface, Schapera states that he resisted the temptation to deal with the
‘spirit’ as opposed to the ‘letter’ of the law. He warns us that he does not discuss the
279
extent to which the laws he describes were ‘actually enforced or obeyed in practice’.
Instead he refers to his intention to write a future work describing ‘Tswana law and
custom as actually seen in practice’.44
This is an important caveat in relation to relying on the Handbook, and indeed
other publications of the time, as evidence of living customary law. Moreover, society
has been shaped by many changes since Schapera wrote in the 1930s. The
agricultural economy that underpinned specific gender roles in society has declined
significantly and, for the most part, family income is derived from sources other than
agriculture. Education and the cash economy mean that today women often invest
significant amounts in the family home. Standards developed in previous eras,
therefore, cannot be applied to determine the kinds of property that women should
inherit today.
It is therefore vital for lawyers to place evidence of practice before courts when
litigating on customary law issues. If only historically-specific texts are available to
judges, the result will be the application of misleading ‘rules’ of customary law
without understanding how these ‘rules’ actually operated in practice. Lawyers
should instead rely on a range of sources when presenting evidence of living
customary law. This evidence need not only be sourced from expert witnesses, but
can be drawn from a vast body of historical and anthropological literature in the
public domain and also from ordinary people making affidavits about their current
experiences of customary law’s application in practice.45
Far from women inheriting only pots and pans, it has become increasingly
common for parents to direct that a particular daughter (as opposed to a son) should
take over responsibility for the family home on their death.46 This is generally in
recognition of the daughter’s prior investment in the home or on the basis of the
responsibility she has exercised in practice in caring for aged parents and other
family members.47This change highlights the crucial nexus between inheritance and
responsibility as the underlying value informing succession. Laws such as the BAA
elevated the ‘principle’ of male primogeniture over the animating logic and purpose
of previous succession practices.
The allocation of property by the deceased during his or her lifetime resembles what
is known as testamentary or testate succession in terms of the common law. Testate
or testamentary succession occurs where a deceased person, the testator, has
280
executed a valid will disposing of his or her property. The deceased person therefore
gives direction as to what should happen to his or her property after death. Any
person may benefit any of his or her potential heirs by allotting or allocating property
to him or her in terms of customary law.48 On the death of the person who allotted
this property, its ownership passes to the person to whom it has been allotted.49 This
type of allocation is known as tshwaiso, go
tshwaisa or tshwaelo among baTswana.50
Besides the allocation or allotment of property before death, a person may also
express what is to happen to his or her estate after death. This arrangement is
recognised by customary law and has been described as follows:
Voluntary testamentation is not altogether unknown, in the sense that

a man may inform his eldest son and some other men of his ward that
after his death he wishes certain cattle or other property to be given to
certain children or relatives. His wishes are generally respected, for as
the proverb says, Lentswe la moswi ga le tlolwe ‘The word of a dead
person is not transgressed’.51
The above is an exposition of the living customary law which applied to the
succession and inheritance of the deceased person’s estate.
The official customary law was, however, that the rule of male primogeniture
applied. This rule, as we pointed out earlier, recognised only males as heirs to the
exclusion of females.52 No distinction was made between the acquisition of the
status of the deceased (succession) and the inheritance of property.53 Therefore, the
eldest surviving male relative of the deceased was allowed to succeed to the status
of the deceased as well as to property to the exclusion of the wife, daughters and
other children of the deceased.
Various pieces of legislation were enacted to regulate the customary law of

succession. All this legislation adopted the application of the rule of male
primogeniture in determining who the heir to the intestate estate was. This is what
became known as the official customary law of succession as it was applied by
South African courts.54
281
The most important legislation that governed the official customary law of
succession was the repealed BAA.55 The regulations issued in terms of the BAA, the
Regulations for the Administration and Distribution of Estates of Deceased Blacks,
determined the legal system to be applied to the devolution and administration of
intestate estates of black persons. As mentioned above, the position in the then
KwaZulu and Natal was regulated by the KwaZulu Act on the Code of Zulu Law and
the Natal Code of Zulu Law respectively. The Transkei Marriage Act regulated the
position in the then Transkei and the Intestate Succession Law Restatement Act
applied in the then Bophuthatswana.56
It is necessary to describe what the repealed BAA and the provisions of the
regulations issued in terms of this Act provided in order to understand the current
position of the customary law of succession as regulated by the RCLSA.
Besides regulating succession, the BAA also determined the consequences of civil
marriages contracted by black people.57 The effect was that civil marriages
contracted by black people were always out of community of property and of profit
and loss unless the parties thereto had declared a month before the celebration that
it was their intention to contract a marriage in community of property and of profit
and loss.58 It was also possible for such parties to conclude an antenuptial contract if
they wished to marry in community of property and of profit and loss. Where the
husband was a partner in a customary marriage with one woman before he married
another by civil rites, the civil marriage could not be in community of property and it
was regarded as a customary marriage.59
The general principle was that the law that regulated the proprietary
consequences of the marriage also determined the legal system to be applied to the
devolution and administration of the intestate estate of the parties. When the parties
were married by civil rites, the common law applied to the devolution and
administration of their intestate estate. Conversely, where the parties had contracted
a customary marriage, the customary law of succession applied to the devolution
and administration of their intestate estate.60
Section 23 of the BAA also provided for certain categories of property or assets
that could not be distributed by means of a will. These were as follows:
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(1) All movable property belonging to a Black and allotted by him or
accruing under customary law or custom to any woman with whom he
lived in a customary marriage, or to any house, will upon his death
devolve and be administered under Black Law and custom.
(2) All land in a location held in individual tenure upon quitrent conditions by
a Black will devolve upon his death upon one male person, to be
determined in accordance with tables of succession prescribed under s
23(10) of the Act.
(3) All other property of whatsoever kind belonging to a Black may be
devised by will.61
The abovementioned provisions meant that a black person married according to

customary rites was not legally entitled to dispose of property mentioned in section
23(1) and (2) of the BAA by means of a will. These kinds of property devolved on the
death of a black person on the eldest son in accordance with the rule of male
primogeniture. No distinction was made whatsoever between succession and
inheritance of property in terms of customary law. Thus, the eldest son or the
deceased’s nearest male relative was held to be the only person entitled to inherit
the entire intestate estate of the deceased.62
The BAA also excluded the jurisdiction of the Master from the administration of
intestate estates of black people irrespective of the type of their marriage.63 A
magistrate of the district in which the deceased was resident administered these
intestate estates.64 The Master administered the intestate estates of whites, Indians
and coloureds. The Constitutional Court declared this arrangement unconstitutional
in Moseneke v Master of the High Court65 as it constituted unfair discrimination on
the grounds of race, ethnic origin and colour.66
As already stated, when the deceased was, during his lifetime, a partner in both a
customary and a civil marriage to two women, the civil marriage was regarded as a
customary marriage for the purposes of succession.67 The civil marriage was
therefore presumed to have created a house in the same manner as a customary
marriage and the rule of male primogeniture applied to determine how its property
had to devolve.68
Contracting a civil marriage with another woman during the subsistence of a
customary marriage had the effect of dissolving the existing
283
customary marriage.69 The partner of the dissolved customary marriage became
what was known as a ‘discarded spouse’. She and her children did not have any
rights whatsoever to the estate of her erstwhile husband until his death whereon the
widow of the civil marriage and her children were regarded or deemed to have had
‘… no greater rights in respect of the estate of the deceased spouse than she or they
would have had if the said marriage had been a customary marriage’.70 For the
purpose of succession, the customary marriage was deemed to have been in
existence at the time of the death of the husband. This used to be the position from 1
January 1929 to 2 December 1988 when the Marriage and Matrimonial Property Law
Amendment Act71 came into operation and prohibited a person already married by
customary rites from contracting another marriage by civil rites.

Deceased Blacks
The Regulations for the Administration and Distribution of the Estates of

Deceased Blacks72 were enacted to determine which system of law, customary or
common law, regulated the administration and distribution of intestate estates of
deceased black people. As already stated, the type of marriage contracted by the
deceased was employed as a criterion or connecting factor to indicate the legal
system applicable to the devolution and administration of such intestate estates.
The regulations provided for three types of intestate estates, namely:
 intestate estates that were to devolve and be administered in terms of
customary law73
 intestate estates that were to devolve and be administered in terms of the
common law74
 intestate estates whose devolution and administration could specifically be
made subject to the common law but which normally were to devolve and be
administered in terms of customary law.75
Intestate estates that normally devolved and were administered in terms of

customary law, besides those listed in section 23(1) and (2) of the BAA, were:
 those of spouses of customary marriages
 those of spouses of a civil marriage which did not produce the legal
consequences of a marriage in community of property76
284
 those of parties who, at the time of death, lived with each other as putative
spouses
 those of unmarried black people.
Intestate estates that devolved and were administered in terms of the common law
were:
 those of black people who were exempted from the operation of
customary law77
 those of spouses to a civil marriage in community of property or under
antenuptial contract
 those of widows, widowers or divorcees (as the case may be) of a civil
marriage in community of property or under antenuptial contact and who were
not survived by spouses to a customary marriage contracted subsequent to
the dissolution of such marriage.
Intestate estates whose devolution and administration could be made subject to the
common law were those of deceased persons who were survived by any spouse or
partner or any issue or child of:
 a customary marriage
 a civil marriage that did not produce the consequences of a marriage in
community of property
 a putative marriage.78
In these cases of intestate estates, an application could be made to the Minister of

Justice that they should devolve and be administered in terms of the common law.
The Minister could then direct that the common law be applicable to these estates if,
in his or her opinion, the application of customary law to the devolution of the whole
or some part of these estates could lead to inequitable or
inappropriate results.79 Regulation 2(d) was declared unconstitutional on the ground
that it distinguished between intestate estates of a deceased who was a spouse to a
civil marriage out of community of property in terms of the repealed section 22(6) of
the BAA and those of spouses in a civil marriage in community of property or a
marriage under antenuptial contract for the purposes of succession.80
285
In the then KwaZulu and Natal there also existed rules relating to succession and
inheritance. These rules were provided for by the KwaZulu Act on the Code of Zulu
Law and the Natal Code of Zulu Law of 1987 respectively. The provisions dealing
with these issues were identical and provided as follows:
(1) Family property and personal property may be devised by will.

(2) House property may not be devised by will and upon the death of the
family head any such property shall, subject to the provisions of section
81(5), devolve and be administered under Zulu Law.81
In these territories, therefore, just like in the rest of South Africa, house property was
excluded from the provisions of the Wills Act and had to devolve in terms of the rules
of intestate succession under customary law. Family property and personal property
could, however, be devolved by will whereon the wishes of the testator
became applicable.82 An important distinction at that time between the position in the
rest of South Africa and the then KwaZulu and Natal was that in the latter territories
customary law was never applied to the devolution and administration of intestate
estates of persons married by civil rites.83 These intestate estates were always
governed by the common law irrespective of the proprietary consequences of such
marriages.
The position in the then Bophuthatswana was regulated by the
Succession Act84 which was later repealed and replaced by the Intestate Succession
Law Restatement Act of 1990. The effect of these measures was the abolition of the
customary law rule of male primogeniture for the purposes of intestate succession in
favour of the application of rules similar to those provided for by the
current RCLSA.85
PAUSE FOR
REFLECTION
Legislative intervention long before Bhe

The application of the rule of male primogeniture in the customary law of succession
was abolished in the then Bophuthatswana by the Succession Act as it was found to
discriminate unfairly on the basis of age and gender as envisaged by the
Constitution Act of 1977. This Act had provisions similar to the Bill of Rights
contained in Chapter 2 of the current South African Constitution of 1996. It also
286
prohibited unfair discrimination based on, among others, age and gender. The
process of attempting to adapt the customary law with the Bill of Rights therefore
commenced long before the Constitutional Court judgment in Bhe.
We mentioned above the provisions of the BAA regarding the devolution of land held
in individual tenure on quitrent conditions in a tribal area.86 Such land was to devolve
‘… upon one male person to be determined in accordance with tables of succession
to be prescribed under sub-section (10)’.87 The prescribed tables of succession were
based on the rule of male primogeniture in that such land could only be acquired by
male persons on the death of the person holding tenure of the land.
It is not necessary to deal with the content of these tables except to mention that
they adopted the rule of male primogeniture to determine who was to succeed to the
right to land held by deceased black people.
PAUSE FOR
REFLECTION
The impact of the BAA on preexisting practices that provided protection for
women
The BAA is the pivotal law that codified customary law across South Africa. It is
instructive to look at the impact it had on prior practice in various areas. This
illustrates how diverse customary and emerging practices were remoulded and
‘unified’ according to rigid principles that elevated and entrenched gender
discrimination.
Elton Mills and Wilson describe how in Keiskammahoek prior to 1927 so-called
civil marriages were deemed to be in community of property unless an antenuptial
contract had been entered into and children regardless of sex were entitled to equal
shares in the property at inheritance.88They describe that in practice ‘a considerable
amount of freehold land [was] inherited by, or through, women’.89 After 1927,
common law marriages entered into by black people no longer defaulted to
community of property and strict tables of succession were applied to the overall
exclusion of women.90 What is more, government administrators of the time were
generally opposed to granting fields to women.91
287
Elton Mills and Wilson state that ‘[u]nder the traditional law … a field for cultivation
was allotted to every married woman or widow’ and a woman’s rights over that field
constituted her property.92 In addition, it was not unusual for men in ‘communal’
areas to give their daughters fields, regardless of their marital status.93 However, as
Simons has pointed out, government administrators objected ‘strenuously and with
growing emphasis to the allocation of land to unmarried women’ and would cancel
such allocations where they were made by headmen.94
Simons traces the prohibition on women’s land rights not to ‘tribal custom’ but to
government administrators and laws that privileged men over women within the
overarching context of increasing restrictions on African landholding in general.95 In
his view, there was agitation within rural society to ‘restore to women the rights they
had to land in the old society’.96 This is borne out by Weinberg’s examination of the
historical records of the Bunga council. Time and again male councillors challenged
the interpretation that customary law restricted women’s land rights and pleaded for
improved land rights for women.97
9.4 Judicial reform
The current constitutional dispensation, which was adopted in South Africa on 27

April 1994,98 recognises customary law as a legal system on the same basis as the
common law. In this respect, the Constitution of 1996 provides that:
with customary law.99
The Constitution further provides that in the interpretation of ‘any legislation, and
when developing the common law and customary law, every court, tribunal or forum
must promote the spirit, purport and objects of the Bill of Rights’.100 South African
courts are therefore obliged to interpret and develop any provision of customary law,
including the law of succession, in line with the Bill of Rights.101 These provisions
have attracted disputes in which the customary law of succession conflicts with the
Bill of Rights. As was to be expected, one of the major issues to find its way into the
courts in the new constitutional dispensation was the principle of male primogeniture.
We mentioned above that the rule of male primogeniture was used in the
customary law of succession to determine who an heir (successor) was to the
288
intestate estate of deceased black people. The result was that the heir was the
eldest surviving male relative of the deceased to the exclusion of other children, wife
or wives and other relatives or dependants of the deceased. The heir acquired both
the property and assumed the status of the deceased and had an obligation to
maintain the other dependants of the deceased, namely his children and wife
or wives.102
The rule of male primogeniture was challenged in Mthembu v Letsela103 where the
Supreme Court of Appeal (SCA) held that this rule did not unfairly discriminate on
the grounds of age and gender as the heir was under a duty to maintain all the
dependants of the deceased. The SCA, however, indicated that if the rule of male
primogeniture was applied in an urban setting, there was a possibility that its
application may be discriminatory on the basis of age and gender. The SCA also
pointed out that this rule of customary law could not be developed by the SCA as it
was ill-equipped to do so but that such development should be left to the legislature
after a process of full investigation and consultation. The SCA noted the investigation
which was already underway by the South African Law Reform Commission
(SALRC) relating to the reform of the customary law of marriage.104
COUNTER
POINT
Mthembu v Letsela: creating more problems than it solved

The decision of the SCA in Mthembu v Letsela created more problems than it solved.
The first problem is that it upheld the official rule of male primogeniture which was
clearly discriminatory.
The second problem is the Court’s suggestion that if the rule of male
primogeniture was applied in an urban setting, there was a possibility that its
application may be discriminatory on the basis of age and gender.
The third problem is the Court’s ruling that the principle of male primogeniture
could not be developed by the Court as it was ill-equipped to do so but that such
development should be left to the legislature after a process of full investigation. This
was also the position taken in Bhe.105
These last two issues are controversial and continue to be points of debate.
289
The most important case in respect of the challenge to the principle of male
primogeniture was Bhe. At the time when the case was heard, the SALRC had
already made certain proposals relating to the customary law of succession.106 A
customary marriage at that time was recognised for all legal purposes as a
valid marriage107 and the Commission had proposed that wives of these marriages
be regarded as intestate heirs on the same basis as wives of civil marriages. The
children of such marriages, irrespective of sex and age, also had to be recognised
on the same footing as children of civil marriages for purposes of intestate
succession. According to these proposals, the Intestate Succession Act had to be
amended to include a spouse or spouses of a customary marriage and all children
as intestate heirs. The Maintenance of Surviving Spouses Act108 also had to be
amended to extend the meaning of the term ‘spouse’ to include a spouse or spouses
of a customary marriage.
Bhe followed a decision by the Magistrate of Khayelitsha and, on appeal, that of
the Cape High Court.109 The Cape High Court declared the provisions of
the BAA110 which dealt with male primogeniture unconstitutional and invalid. The
Court also declared unconstitutional provisions of the Intestate Succession Act in so
far as they excluded from their operation people whose estates devolved in terms of
the BAA.111
Another case which declared male primogeniture unconstitutional was Shibi v
Sithole.112 Here also section 23 of the BAA and regulation 2(c) of the Regulations for
the Administration and Distribution of Intestate Estates of Blacks were declared
unconstitutional. In both cases, the Courts ordered that the distribution of intestate
estates of black people had to be governed by the Intestate Succession Act.
The judgments in Bhe and Shibi were placed before the Constitutional Court for
confirmation. The Constitutional Court heard these cases at the same time because
they concerned the application of the rule of male primogeniture in the customary
law of succession. The case of Bhe therefore concerned an application for the
confirmation of an order of the constitutional invalidity relating to the application of
the rule of male primogeniture and the relevant provisions of the BAA113 as well as
those of the Intestate Succession Act.
The Constitutional Court held that section 23 of the BAA and its regulations were
manifestly discriminatory in that they violated the right to equality,114 the right
to dignity115 and children’s rights.116 The Court held that the customary law rule of
290
male primogeniture was unfairly discriminatory against women, children of the
deceased as well as extramarital children and declared the rule unconstitutional. The
Court thus found that the discrimination brought about by the application of this rule
could not be justified in terms of section 36 of the Constitution. Consequently, the
Court ordered that intestate estates that had previously devolved in accordance with
customary law had now to devolve in terms of the rules provided for in the Intestate
Succession Act (as amended by the Court). In this regard, the wife or wives in a
customary marriage as well as all their children, irrespective of age and sex, would
all be intestate heirs. The Court thus declared section 23 of the BAA, regulation 2 of
the Regulations for the Administration and Distribution of Estates of Deceased
Blacks as well as section 1(4)(b) of the Intestate Succession Act, in as so far as it
excluded from its application any estate or part thereof which is governed by
customary law, unconstitutional. The order was in force until the matter was
corrected by appropriate legislation.
The order of the Constitutional Court was made retrospective to 27 April 1994, that
is, the date of the coming into operation of the interim Constitution with two
exceptions. First, the declaration of invalidity did not apply to any completed transfer
of ownership to an heir who had had no notice of the challenge to the validity of
section 23 of the BAA and the rule of male primogeniture. Second, the order did not
apply to ‘anything done pursuant to the winding-up of an estate in terms of the [BAA],
other than the identification of heirs in a manner inconsistent with this judgment.’117
PAUSE FOR
REFLECTION
Bhe: opens the space for the development of living customary law
In addition to invalidating the principle of male primogeniture, the Constitutional
Court in Bhe ruled that its order to apply the Intestate Succession Act to estates
previously governed by customary law did not mean that the relevant provisions of
the Intestate Succession Act were fixed rules that must be applied regardless of any
agreement by all interested parties that the estate should devolve in a different way.
In other words, the Intestate Succession Act did not preclude the possibility of
interested parties reaching an agreement requiring the estate to devolve in a
different way provided that the agreement was consistent with the provisions of the
Act. Presumably, the Court envisaged the agreements complying with the provisions
291
of the Intestate Succession Act in broad terms only as opposed to strictly within the
letter of the provisions.
The Court adopted this approach to ensure that, through the agreements,
customary law would continue to develop spontaneously. We submit that one of the
ways this development could happen would be through agreements of members of
local communities, especially members of the deceased person’s family. This would
undoubtedly promote the development of the living customary law of succession,
albeit within the broad framework of the Intestate Succession Act.
As a result of the judgment in Bhe and the recommendations of the SALRC,118 the
legislature enacted the RCLSA. We discuss its provisions below.

The RCLSA was assented to on 19 April 2009 and came into operation on 20
September 2010. Before it came into operation, the devolution and administration of
intestate estates of black people was regulated by the position as outlined in
the Bhe judgment. This judgment was to the effect that these estates were to
devolve in terms of the rules laid down in the Intestate Succession Act.
The RCLSA provides that the Intestate Succession Act applies to the devolution of
the intestate estate or part thereof of any person who dies after its date of
commencement and whose estate does not devolve in terms of a will. One of the
aims of the RCLSA was therefore to ensure that the Intestate Succession Act
regulates the devolution of intestate estates of all persons.
COUNTER
POINT
Substitution of customary law by common law: is this an appropriate method

of changing customary law in the new constitutional era?
The method chosen by the Constitutional Court to address the discriminatory ‘rule’ of
male primogeniture in Bhe is indicative of the dearth of living customary law
evidence placed before the Court in the case.119 The result was that the Court
substituted the Intestate Succession Act, which applied to all South Africans other
than those previously subject to the BAA, pending a longer-term legislative solution
292
to the hiatus created by striking down the relevant provision of the BAA.120 This
recourse to common law precedents was criticised both in the minority judgment by
Judge Ncgobo and subsequently in academic articles.121 The concern is that
defaulting to common law precedents further undermines the integrity of customary
law in a context in which it is already vulnerable to the dominance of received law.122
The majority judgment pointed to the lack of evidence put before it concerning
living customary law in justifying its recourse to the Intestate Succession Act. Had
anthropological and historical evidence about the logic underlying customary
inheritance and the changes made to ‘rules’ of inheritance in practice been
presented to it by the parties, the judgment may have followed a different course. In
addition to these academic sources, customary expertise from both ‘expert’
witnesses and ordinary people could have been used to show on-the-ground
changes in customary inheritance practices which may be consistent with the Bill of
Rights. However, as Bennett notes, ‘in the heat of litigation, time and money militate
against undertaking a possibly inconclusive search for the living law’.123
It is important to note that the Constitutional Court’s recognition of customary law
on an equal footing with the common law in Alexkor does not assume strict
segregation between these two systems of law in perpetuity. Indeed, the Court
envisions a significantly less insulated place for customary law in the broader legal
system, stating that ‘indigenous law feeds into, nourishes, fuses with and becomes
part of the amalgam of South African law’.124
The reality is that living customary law, like the common law, is informed by a
range of normative frameworks when used by ordinary people in their day-to-day
lives. In grappling with the place of living customary law in relation to more dominant
forms of common and statutory law, it is necessary to interrogate exactly what is
meant by living customary law. Is it a species of customary law or the amalgam of
local law that people work out in practice in their daily lives? This raises the related
question concerning whether the recognition of living customary law in South Africa
is restricted to its operation as a strand of indigenous law or implies a broader
recognition of ordinary people’s law-making and law-integrating activities at the local
level. Oomen describes dispute resolution processes in South African customary
settings as follows:
293
The local process of dispute resolution is about mixing and matching
rules that refer to culture, common sense, state regulations, the
Constitution, precedent and a variety of other sources hardly
considered contradictory.125
While all this is clearly true, it does not conclude the debate. An unanswered
question remains which is the one posed earlier about the essence of the living
customary law described in Alexkor. If that essence consists of the conversion of the
common law (and indeed any other influences) by the ‘mixing and matching’ referred
to by Oomen into a regime of practice visibly discernible as what people actually do,
then it can be accepted that the resulting norms are indeed living customary law.
What needs to be guarded against is the temptation to truncate the process of
conversion as soon as a position is reached that is comfortable or convenient in
terms of the common law. In our view, the Constitutional Court’s proposition supports
a real contribution by customary law to the ‘amalgam’, not merely a wholesale
imposition of the common law on customary law.
The RCLSA applies to the estate or part of the estate of any person who is subject to
customary law who dies after the date of its commencement on 20 September 2010
and whose estate does not devolve in terms of a will. The RCLSA also applies to the
estate or part of the estate of any person who is subject to customary law and who
died intestate at any time after 27 April 1994.
The purpose of the RCLSA is set out in its long title:
… to modify the customary law of succession so as to provide for the

devolution of certain property in terms of the law of intestate
succession; to clarify certain matters relating to the law of succession
and the law of property in relation to persons subject to customary
law; and to amend certain laws in this regard; and to provide for
matters connected therewith.
The preamble to the RCLSA is instructive with regard to what the legislature
intended to achieve. It notes the inadequate protection granted by the customary law
of succession to a widow and certain children of a customary marriage whose
husband or father died intestate against the background of equality and equal
294
protection in terms of section 9 of the Constitution. It also notes the changed social
circumstances which make it difficult for the customary law of succession to provide
adequately for the welfare of family members and the declaration by the
Constitutional Court that the principle of male primogeniture is not reconcilable with
the notions of equality and human dignity as contained in the Bill of Rights.126 The
discussions in the preceding sections of this chapter attest to these inadequacies in
the rules governing intestate succession under customary law. The long title and
preamble to the RCLSA are therefore an indication of what the legislature intended
to achieve.
The definition section of the RCLSA contains a number of definitions of the terms
used in it. For the purposes of intestate succession, the definition of the terms
‘descendant’ and ‘spouse’ are important.
According to section 1 of the RCLSA, a ‘descendant’ is:
… a person who is a descendant in terms of the Intestate Succession

Act, and includes–
(a) a person who is not a descendant in terms of the Intestate Succession
Act of 1987 (Act 81 of 1987), but who, during the lifetime of the
deceased person, was accepted by the deceased person in accordance
with customary law as his or her own child; and
(b) a woman referred to in section 2(2)(b) or (c).
The meaning of ‘descendant’ has therefore been extended to include persons who
are regarded as dependants in accordance with customary law. An example is a
child who has been adopted in terms of customary law.127 Another example is a child
whose mother married another man after his or her birth. In other words, her
husband is not the child’s biological father.128
Also regarded as a descendant is ‘a woman referred to in section 2(2)(b) or (c)’ of
the RCLSA. This refers to ‘a woman, other than the spouse of the deceased, with
whom he had entered into a union in accordance with customary law for the purpose
of providing children for his spouse’s house. Such a woman must, if she survives
him, be regarded as a descendant of the deceased’.129 Where she dies before the
deceased, she is not to be regarded as the deceased’s descendant. The woman
295
referred to in this section is generally known as a substitute wife130 or
seed raiser.131 This is a woman whom a man has married for the purpose of bearing
or raising children for the house of a deceased, divorced or barren wife of a
customary marriage. This arrangement has been described as follows:
To any of, but particularly to, the more important of his houses,
including his great house, the family head may attach
a seyantlo or ngwetsi or lefielo wife; if he is rich enough he may attach
as many of the latter as he pleases. A seyantlo is married for the
express purpose of raising seed in a case where the major wife has
died or been divorced without having borne male issue, or leaving
young children in need of care, or is barren; the ngwetsi, also
called lefielo, is attached as a helper to the major wife. The status of
each is the same, namely, neither creates a separate house, and the
children of each are legitimate children of the house … If possible
a seyantlo or ngwetsi will be a sister of the wife of the house, or a girl
related to the family head.132
Section 2(2)(c) of the RCLSA provides that ‘a woman who was married to another
woman under customary law for the purpose of providing children for the deceased’s
house, that other woman must, if she survives the deceased, be regarded as a
descendant of the deceased’. This kind of a relationship has been referred to as a
woman-to-woman marriage.133 For the purpose of intestate succession, women
mentioned in section 2(2)(b) and (c) of the RCLSA are regarded as descendants in
the same manner as children of a customary marriage.
The RCLSA defines a ‘spouse’ as including ‘a partner in a customary marriage
that is recognised in terms of section 2 of the Recognition of Customary Marriages
Act, 1998’. Before the coming into operation of the Recognition of Customary
Marriages Act (RCMA),134 a spouse to a customary marriage was not regarded as an
intestate heir of his or her spouse. The RCMA ensured that a customary marriage
was given recognition for all purposes of South African law.135 As a customary
marriage is currently recognised on the same basis as a civil marriage, the widow or
widower is recognised as a spouse for purposes of intestate succession. Widows or
widowers of customary marriages contracted before 15 November 2000 are also
296
regarded as intestate heirs if their marriages were in existence at that time and
were valid.136
9.5.2Modification of the customary law of succession
Terminology
child’s calculated by dividing the monetary value of the estate by a number equal to the number
portion of children of the deceased who have either survived the deceased or died before him or
her but who are survived by descendants plus the number of spouses and women with
whom the deceased entered into a union in accordance with customary law
As the application of the principle of male primogeniture was found to be

unconstitutional, it was necessary to modify certain principles of customary law of
succession to comply with the Constitution.137 The customary law principles that
required modification related to the unequal treatment of children for the purposes of
succession as well as the unfavourable position of spouses of customary marriages.
This implied that all children of the deceased, irrespective of age, status and gender,
as well as all spouses of customary marriages had to be recognised as intestate
heirs. Other persons who were accepted by the deceased according to customary
law as his or her children also had to be recognised as descendants.138
The most important modification is that the estate or part of the estate of any
person who is subject to customary law and who dies intestate is to devolve in
accordance with the Intestate Succession Act.139 Where the deceased is survived by
a spouse140 as well as a descendant, such spouse is entitled to a child’s portion of
the intestate estate or so much ‘as does not exceed in value the amount fixed from
time to time by the Cabinet member responsible for the administration of justice in
the Gazette, whichever is the greater’.141
A child’s portion is defined in the section 3(3) of the RCLSA as:
… in relation to the intestate estate of the deceased, shall be

calculated by dividing the monetary value of the estate by a number
equal to the number of children of the deceased who have either
survived the deceased or have died before the deceased but are
survived by their descendants, plus the number of spouses and
women referred to in paragraphs (a), (b) and (c) of section 2(2) of the
297
Reform of Customary Law of Succession and Regulation of Related
Matters Act, 2008.
Besides the definition of the term ‘descendant’ as discussed in 9.5.1, that is, that a
descendant includes a person ‘who was accepted by the deceased person in
accordance with customary law as his or her own child’ and ‘a woman referred to in
section 2(2)(b) or (c)’ of the RCLSA, the word ‘child’ or ‘children’ is given an
extensive meaning to include children of certain unions known only in customary law.
These unions relate to seed raising and women-to-women marriages.142 Children
born as a result of these unions are regarded as intestate heirs and they also have to
be considered in the determination of a child’s portion in terms of section 3(3) of the
RCLSA.
Section 4(2)(a) and (b) of the RCLSA defines the word ‘child’ or ‘children’ for the
purpose of succession, either testate or intestate, to the estate of a woman in
relation to property allotted or accruing to her house under customary law by virtue of
her customary marriage to include any child:
(a) born of a union between the husband of such woman and another
woman entered into in accordance with customary law for the purpose of
providing children for the first-mentioned woman; or
(b) born to a woman to whom the first-mentioned woman was married
under customary law for the purpose of providing children for the first-
mentioned woman.
The definition in section 4(2)(a) above covers children of a union between a husband
and a woman which was entered into for the specific purpose of providing children to
a married woman who may have been unable to bear children of her own or for the
purpose of increasing the number of children of the house of the woman. These are
the children of a woman referred to in section 2(2)(b) of the RCLSA. These children
are, for the purposes of succession, regarded as the children of the wife in whose
house their mother was placed. Their mother is also regarded as a descendant if she
survives the male spouse of the customary marriage with whom she had entered into
a union to provide children for his house.
The children mentioned in section 4(2)(b) above refer to the children born of the
relationship envisaged by section 2(2)(c) of the RCLSA. These are children of ‘a
298
woman who was married to another woman under customary law for the purpose of
providing children for the deceased’s house’.143 Their mother is similarly regarded as
a descendant for the purposes of succession if she survives her spouse, that is, the
woman to whom she was married under customary law.144
In the determination of a child’s portion, therefore, the number of all the children of
the deceased, irrespective of their age, status and gender, as well as the spouse or
spouses of the deceased must be considered.
In the application of the Intestate Succession Act, where the deceased is survived
by a spouse as well as a descendant or descendants, such a spouse inherits a
child’s portion or so much as does not exceed in value the amount fixed from time to
time by the Cabinet member responsible for the administration of justice in
the Gazette, whichever is the greater.145 Currently, the amount fixed for this purpose
is R125 000,00.
A woman who enters into a union in accordance with customary law for the
purpose of providing children for the house of another woman (wife) is also regarded
as a spouse if she survives the deceased husband.
A woman who is married to another woman under customary law for the purpose
of providing children for the deceased’s house is also regarded as a descendant if
she survives that deceased woman.146
PAUSE FOR
REFLECTION
Inclusion of customary law concepts: meaning of ‘spouse’

One of the aims of section 2 of the RCLSA was to ensure that all persons who may
be classified as spouses in terms of customary law were declared intestate heirs.
These are:
•a wife of a customary marriage
•a woman who was brought into the house for the purpose of providing children for
that house if she survives the deceased husband
•a woman who was a partner in a woman-to-woman marriage contracted under
customary law if she survives her woman partner. She is regarded as a spouse in
respect of the intestate estate of the woman who married her.
299
However, it is not clear whether the women mentioned in the last two points are both
‘spouses’ and ‘descendants’ for purposes of succession because section 1(b)
defines them as ‘descendants’ while section 3(1) refers to them as ‘spouses’.
Presumably, this was an oversight on the part of the legislature. However, there is a
need for clarification of the position as the rules of succession applicable to them will
differ depending on whether they are regarded as ‘descendants’ or ‘spouses’. If the
women in the last two points are considered to be spouses, then all of them are
entitled to a child’s portion or so much of the intestate estate as does not exceed in
value the amount fixed from time to time by the Cabinet member responsible for the
administration of justice, whichever is the greater.147
When the intestate estate is not sufficient to provide each surviving spouse and
women referred to in section 2(2)(a)–(c) of the RCLSA with the amount fixed from
time to time, the estate is divided equally among them.148
PAUSE FOR
REFLECTION
Implementation challenges
From the definition of the terms ‘spouse’, ‘child’ and ‘child’s portion’, it is evident that
the distribution of the intestate estate of a husband married to more than one wife
may prove to be a daunting task which deals with the identification of various
intestate heirs who are recognised in terms of customary law. This may entail the
following:
•the identification of all wives of the deceased
•the determination of whether all wives (women) were legally married in terms of
customary law, that is, whether the requirements of the RCMA were complied
with, a task that may be made more arduous due to the possibility that many
marriages are not registered in terms of the RCMA
•the determination of the status of the children of the deceased, in particular the
children who were accepted by the deceased as his or her own during his or her
lifetime in terms of customary law
•the determination of whether the acceptance of the children mentioned in the point
above complied with the applicable customary law rules.
300
•the identification of all women involved in unions mentioned in section 2(2)(b) and
(c) of the RCLSA and whether such unions comply with the RCMA
•the determination of what constitutes ‘house property’ and ‘family property’ and
many other related issues.
It is envisaged that in such identification or determination, the provisions of section 5

of the RCLSA will become useful. This section is discussed under paragraph 9.5.7
below.
Section 4 of the RCLSA regulates the legal position of the property belonging to a
deceased woman married by customary rites. The RCLSA provides that the property
allotted or accruing to such a woman or her house by virtue of her marriage may be
disposed of in terms of the will of such a woman.149
Any reference in the will of the woman to a child or children and any reference in
the Intestate Succession Act to a descendant in relation to the woman have to be
construed as including any child:
(a) born of a union between the husband of such a woman and another
woman entered into in accordance with customary law for the purpose of
providing children for the first-mentioned woman; or
(b) born to a woman to whom the first-mentioned woman was married
under customary law for the purpose of providing children for the first-
mentioned woman’s house.150
The RCLSA ensures freedom of testation by providing that women married in terms
of customary law and all persons subject to customary law are free to dispose of
their assets or estates in terms of a will.151
Terminology
discarded a woman whose subsisting customary marriage was dissolved by a civil marriage of
spouse her husband and another woman contracted on or after 1 January 1929 but before 2
301
December 1988
We mentioned above that before the date of commencement of the Marriage and
Matrimonial Property Law Amendment Act, that is, 2 December 1988, it was possible
for a husband of a customary marriage to contract a valid civil marriage with another
woman during the subsistence of his customary marriage. This had the effect of
dissolving the existing customary marriage whose wife was regarded as a
‘discarded spouse’. This position was changed on 2 December 1988 by the
Marriage and Matrimonial Property Law Amendment Act which prohibited a husband
of a customary marriage from contracting a civil marriage with another woman during
the subsistence of his customary marriage.
The RCLSA protects the proprietary rights of the spouse of such a dissolved
customary marriage and her children in providing that ‘the widow of the marriage
under the Marriage Act, 1961 … and the issue thereof have no greater rights in
respect of the estate of the deceased spouse than she or they would have had if the
marriage under the Marriage Act, 1961 had been a customary marriage’.152The
‘discarded spouse’ and her children will therefore have the right to inherit whatever
property was allotted to the house that was created by the customary marriage
between her and the deceased husband. This will also include property that was
acquired by the spouse and her husband before their marriage was dissolved.
The proprietary rights of the ‘discarded spouse’ and her children are only protected
if the civil marriage, that is, the marriage contracted in terms of the
Marriage Act153 was entered into:
(a) on or after 1 January 1929 (the date of commencement of sections 22
and 23 of the Black Administration Act, 1927 (Act 38 of 1927), but before
2 December 1988 (the date of commencement of the Marriage and
Matrimonial Property Law Amendment Act, 1988 (Act 3 of 1988); and
(b) during the subsistence of any customary marriage between the husband
and any woman other than the spouse of the marriage under the
Marriage Act, 1961 (Act 25 of 1961).154
All civil marriages contracted after 2 December 1988 during the existence of a
customary marriage with another woman are regarded as null and void and do not
302
have any effect on the validity of the existing marriage by customary rites. This is
also provided for by section 10 of the RCMA.155
9.5.6Disposal of property held by a traditional leader
The devolution of property held by a traditional leader in his or her official capacity on
behalf of a traditional community as envisaged by the Traditional Leadership and
Governance Framework Act (TLGFA)156 is not regulated in terms of the RCLSA. The
RCLSA specifically excludes this property from its sphere of operation.157
9.5.7Dispute or uncertainty in consequence of the nature of customary law
Section 5(1) of the RCLSA authorises the Master of the High Court having
jurisdiction under the Administration of Estates Act158 to make a just and equitable
determination in order to resolve a dispute or uncertainty which may have arisen in
connection with:
(a) the status of or any claim by any person in relation to a person whose
estate or part thereof must, in terms of this Act, devolve in terms of the
Intestate Succession Act;
(b) the nature or content of any asset in such estate; or
(c) the devolution of family property involved in such estate.159
Section 5(2) of the RCLSA provides that before such a determination is made, the
Master may direct that an enquiry be held by a magistrate or traditional leader in the
area in which the Master has jurisdiction. Where an enquiry is held, the magistrate or
traditional leader has to make a recommendation to the Master who directed that the
enquiry be held.160 Due regard must be had to the best interests of the deceased’s
family members and the equality of the spouses in customary and civil marriages by
the Master in making a determination or the magistrate or traditional leader in
making a recommendation to the Master.161 The Act further authorises the Cabinet
member responsible for the administration of justice to make regulations regarding
any aspect of an enquiry envisaged by section 5 of the RCLSA.162
PAUSE FOR
REFLECTION
Securing livelihoods: the need to amend the RCLSA
303
The approach taken by the RCLSA to change the customary law of succession is
substantially similar to that adopted by the Constitutional Court majority judgment
in Bhe in that it also applies the Intestate Succession Act to estates previously
governed by customary law. While the RCLSA is an improvement as it makes
provision for family property, it only does so in the context of ‘any dispute or
uncertainty in consequence of nature of customary law’.163 This half-hearted
approach overlooks or ignores the institution of family property and its continued
importance to the livelihoods of millions of South Africa’s poor rural families. Recent
empirical research has confirmed the institution of family property as part of living
customary law.164 These studies confirm Ngcobo J’s concerns about the solution
adopted to reform customary law in Bhe by applying the Intestate Succession Act.
He considered this approach to be inappropriate because it would result in the
unbundling of family property to meet the demands of distribution to heirs under the
Intestate Succession Act. In this respect he stated:
The application [of the Intestate Succession Act] may lead to an

injustice in certain circumstances. Take the case where both parents
die simultaneously leaving a number of children, including minor
children and other persons who were dependent upon the deceased
for maintenance and support. Let us assume that the major asset in
the estate is an immovable property which is a family home. Each
child will be entitled to a share in the estate. Let us assume that one or
two children insist on getting their share and they cannot be bought
out. This will require the family property to be sold and the proceeds
to be divided equally amongst the children. Once the house is sold,
there will be no shelter for the minor children and other dependants of
the deceased. There is no duty on any of the other heirs to provide
such shelter ...165
In a nutshell, the position under living customary law is that the person the common
law refers to as heir is, in fact, only a steward responsible for the administration of
communal property to which a much larger group than the nuclear family of the
deceased, the extended family, has a claim.166 What all this suggests is that there is
a need to consider an amendment to the RCLSA to make provision for family
304
property in the scheme of devolution of estates set out by the Intestate Succession
Act, not only when they are disputes. The underpinning tenet of this provision should
be the incorporation of living customary law’s flexibility in dealing with ‘legal’ matters.
As Mnisi has observed, ‘a way of depicting community succession that is both
specific and flexible, and most importantly, is not alien to the community and thus
lends itself to community ownership and control and autonomy is needed.’167
The chapter has also highlighted the need to change the RCLSA to include the full
regulation of family property.
•Fundamental changes to the customary law of succession were brought about by

the Constitutional Court in the case of Bhe which held that the rule of male
primogeniture was unconstitutional as it infringed on the rights to equality and
dignity and children’s rights.
•The judgment in Bhe was followed by the enactment of the RCLSA which came into
operation on 20 September 2010.
•The rule of male primogeniture, which over many years had been a feature of
official customary law of succession, was dealt a deathblow and replaced with
rules adopted from the Intestate Succession Act.
•The RCLSA amends the Intestate Succession Act, the Administration of Estates Act
and the Maintenance of Surviving Spouses Act to ensure that the rights of persons
who were rendered vulnerable by the application of the rule of male primogeniture
in the customary law of succession are protected. This means that all descendants
of a deceased person as defined in the RCLSA, irrespective of their age and
gender, as well as the wife or wives of a valid customary marriage or marriages as
defined in the RCMA are recognised as intestate heirs.
•The result is that the present law of succession in South Africa is a hybrid system
which depicts features of both the common law and customary law.
1Act 7 of 1953.
2Act 11 of 2009 which came into force on 20 September 2010.
305
4Claassens, A (2013) Recent changes in women’s land rights and contested
customary law in South Africa Journal of Agrarian Change13(1):71–92 at 71.
5See, for example, s 23 of the Native Administration Act 38 of 1927, as originally
promulgated.
6See, for example, Kingwill, R ‘Custom-building freehold title: The impact of family
values on historical ownership in the Eastern Cape’ in Claassens, A and
Cousins, B (eds) (2008) Land, Power and Custom: Controversies Generated
by South Africa’s Communal Land Rights Act184–207 at 194.
7Act 38 of 1927.
8Bhe paras 14–17.
9Bhe para 66.
June 2008).
11Bekker, JC and Rautenbach, C ‘Nature and sphere of application of African
(eds) (2010) Introduction to Legal Pluralism in South Africa 3rd ed 15–43 at 17.
12Constitutional Principle XIII of Schedule 4 of the interim Constitution. See also ss
39 and 211(3) of the Constitution.
13Act 81 of 1987.
14S 23 of the BAA.
15Reg 2 of GN R200 of 1987.
16S 79(1) and (2) of the KwaZulu Act on the Code of Zulu Law 16 of 1985.
17S 79(1) and (2) of the Natal Code of Zulu Law Proc R151 of 1987.
18Act 21 of 1978.
19S 38 of the Transkei Marriage Act.
20Act 13 of 1990 which provided for rules similar to the current Intestate Succession
Act.
21Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed 263–74.
22Coertze, RD (1987) Bafokeng Family Law and Law of Succession 240–41.
23Bekker (1989) 70.
24Rautenbach, C and Du Plessis, W ‘Customary law of succession and inheritance’
in Rautenbach et al (2010) 121; Bekker (1989) 273.
306
25Bekker (1989) 273; Rautenbach and Du Plessis (2010) 121.
26Schapera, I (1977) A Handbook of Tswana Law and Custom 2nd ed 230–31;
Coertze (1987) 254.
27Comaroff, JL (1978) Rules and rulers: Political processes in a Tswana
chiefdom Man 13:1–20 at 2.
28Costa, A (1997) Custom and common sense: The Zulu royal succession dispute
of the 1940’s African Studies 56(1):19–42 at 31. At 32, Costa concludes that
his ‘survey of royal succession, marked as it is by regicide, gives surprisingly
little weight to the camouflage of rules; only with the last two monarchs did the
will of their predecessor, however manufactured, emerge as the legitimating
factor. Political support was the acid test.’
29Hammond-Tooke, WD (1975) Command or Consensus: The Development of
Transkeian Local Government 104.
30Delius, P ‘Contested terrain: Land rights and chiefly power in historical
perspective’ in Claassens and Cousins (2008) University of Cape Town Press
216; Delius, P (1983) The Land Belongs to Us: The Pedi Polity, the Boers and
the British in the Nineteenth-Century Transvaal.
31Beinart, W (1982) The Political Economy of Pondoland 1860 to 1930 13.
32Peires, JB (1981) The House of Phalo: A History of the Xhosa People in the Days
of Their Independence 29–30.
33Delius (2008) 216.
(14 October 2003) paras 56–7.
35DTA, File 13-918, ‘Succession to Solomon: Remarks by Ethnologist’, 28 May
1945, cited in Costa (1997) 33. Emphasis added.
36Bennett, TW (2004) Customary Law in South Africa 49.
37See Kingwill (2008) 184 for the subtle range of customary values that are taken
into account and balanced in determining the respective rights of different
family members.
38See Schapera (1977) 230–38; Coertze (1987) 247–54.
39Watney, MM (1993) Beginsels van die Opvolgingsreg van die Bapedi van Sekwati
en Noord-Sothosprekendes in Vosloorus LLD thesis RAU 60.
40Schapera (1977) 230.
41Schapera (1977) 237.
307
42Schapera (1977) 237.
43Coertze (1987) 268; Schapera (1977) 237.
44Schapera (1977) xi.
45In this way legal practitioners and judges would be giving effect to the
Constitutional Court’s declaration in Alexkor para 51 that ‘indigenous law feeds
into, nourishes, fuses with and becomes part of the amalgam of South African
law’.
46Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the
context of living customary law South African Journal on Human
Rights 25(3):491–516 at 499–502.
47Claassens and Mnisi (2009) 501.
48Bekker (1989) 216 and 231.
49Bekker (1989) 77.
50Schapera (1977) 216 and 231. Tshwaiso, go tshwaisa or tshwaelo means to mark
livestock or any kind of property with a specific mark indicating that it will be
acquired by a particular person when the giver or marker dies.
51Schapera (1977) 230.
52See Bekker (1989) 273–79; Rautenbach and du Plessis (2010) 120–24.
867 (SCA); Maithufi, IP (1998) The constitutionality of the rule of primogeniture
in customary law of intestate succession: Mthembu v Letsela 1997 (2) SA 936
(T) Tydskrif vir Hedendaagse Romeins-Hollandse Reg 61(1):142–7 at 142.
867 (SCA).
55Repealed by the Repeal of the Black Administration Act and Amendment of
Certain Laws Act 28 of 2005.
56See Maithufi, IP (1994) Marriage and succession in South Africa, Bophuthatswana
and Transkei: A legal potpourri Journal of South African Law 10(2):262–77 at
263.
59S 22(6) of the BAA. See also 9.3.2 below.
60See the Regulations for the Administration and Distribution of the Estates of
Deceased Blacks GN R200 of 1987.
308
61See also Chapter 10 of the KwaZulu-Natal Codes.
867 (SCA).
64Reg 3(1).
65(CCT51/00) [2000] ZACC 27; 2001 (2) BCLR 103; 2001 (2) SA 18 (6 December
2000).
66S 9 of the Constitution.
68Mayekiso v Mayekiso 1944 NAC (C & O) 81; Tonjeni v Tonjeni 1947 4 NAC (C &
O) 8.
69Nkambula v Linda 1951(1) SA 377 (A); Malaza v Mndaweni 1975 AC (C) 45.
70S 22(7) of the BAA. See also Bennett, TW and Peart, NS (1983) The dualism of
marriage laws in Africa Acta Juridica 145–70.
71Act 3 of 1988. See also s 7(2) of the RCLSA.
72GN R200 of 1987 promulgated in terms of s 23(10) of the BAA.
73Regs 2(d) and (e).
74Regs 2(b) and (c).
75Reg 2(d).
76See s 22(6) of the BAA.
77S 31 of the BAA.
78Reg 2(d).
79Proviso to reg 2(d).
80Zondi v President of the Republic of South Africa 2000 (2) SA 49 (N).
81S 79 of both Codes.
82S 79 of both Codes. See also s 1 of both Codes for the definition of ‘house’ and
‘family property’.
83S 79(3) of both Codes.
84Act 23 of 1982.
85See also Maithufi, IP (1992) The Bophuthatswana Intestate Succession Law
Restatement Act, 1990 De Jure 25(2): 457–62 at 457.
86See 9.3.1 above.
309
88Elton Mills, ME and Wilson, M ‘Land tenure’ in Mountain, ED
(1952) Keiskammahoek Rural Survey Vol 4.
89Elton Mills and Wilson (1952) 133.
92Elton Mills and Wilson (1952) 133. Schapera (1977) 202 and 205–06 also
describes fields as belonging to women. At 206 Schapera states that ‘[w]omen
are given preference in the inheritance of arable lands, and they sometimes
also receive land as a marriage settlement’.
94Simons, HJ (1968) African Women: Their Legal Status in South Africa 265.
95Simons (1968) 264–66.
96Simons (1968) 266.
97Weinberg, T (2013) Contesting customary law in the Eastern Cape: Gender, place
and land tenure Acta Juridica 100.
98See the interim Constitution of 1993 and the final Constitution of 1996.
101Ch 2 of the Constitution.
102See, inter alia, Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T);
2000 (3) SA 867 (SCA); South African Law Reform Commission (2004) Project
90 The Harmonisation of the Common Law and the Indigenous Law Report on
the Customary Law of Succession4–7.
1031997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867 (SCA).
104SALRC (1988) Report on Customary Marriages.
105Bhe para 100.
106SALRC (2004) Report on the Customary Law of Succession 1.
107See s 2 the RCMA; SALRC (2004) Report on the Customary Law of
Succession 70–71.
108Act 27 of 1990.
109Bhe v Magistrate, Khayelitsha 2004 (2) SA 544 (C); 2004 (1) BCLR 27 (C).
110S 23 and regulations framed under s 23(10) of the BAA.
111S 1(4) of the Intestate Succession Act.
112Unreported Case No 7292/01 of 19 November 2003 North Gauteng High Court.
310
113S 23 of the BAA and reg 2.
117Bhe para 129.
118SALRC (2004) Report on the Customary Law of Succession.
119This seems to be acknowledged by the Court at para 109 of Bhe.
120Bennett (2004) 49 fn 120 states that this approach ‘implies that the common law
is always available, as one of the foundations of the South African legal
system, to fill gaps in customary law’.
121Himonga, C (2005) The advancement of African women’s rights in the first
decade of democracy in South Africa: The reform of the customary law of
marriage and succession Acta Juridica 82–107.
122Himonga (2005) 98–105.
123Bennett (2004) 49.
124Alexkor para 51.
Apartheid Era 210.
127Metiso v Padongelukfonds 2001 (3) SA 1142 (T); Kewana v Santam Insurance
Co Ltd 1993 (4) SA 771 (TkA); Maneli v Maneli (14/3/2-234/05) [2010]
ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19 April 2010). See also Maithufi, IP
(2001) Metiso v Road Accident Fund case no 4588/2000 (T) Adoption
according to customary law: Kewana v Santam Insurance Co Ltd 1993 (4) SA
771 (Tk) followed De Jure 34(2):390–7 at 391.
128Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T).
129S 2(2)(b) of the RCLSA.
130Rautenbach and du Plessis (2010) 136.
131Bekker (1989) 279–83.
132Bekker (1989) 281–82.
133See Oomen, B (2000) Traditional woman-to-woman marriages and the
Recognition of Customary Marriages Act Tydskrif vir Hedendaagse Romeins-
Hollandse Reg 63(2):274–82 at 247. This form of marriage must be
311
distinguished from a same-sex marriage as provided for by the Civil Union Act
17 of 2006.
134Act 120 of 1998 which came into operation on 15 November 2000.
135See Maithufi, IP (2000) The Recognition of Customary Marriages Act of 1998: A
commentary Tydskrif vir Hedendaagse Romeins-Hollandse Reg 63(3):509–
16 at 509.
136S 2 of the RCMA.
138See the definition of ‘descendant’ and ‘spouse’ and s 2(2)(b) and (c) of the
RCLSA.
139S 2(1) of the RCLSA.
140Spouse includes a spouse in a customary marriage.
141S 2(2)(a) of the RCLSA.
142See 9.5.1 above.
143S 2(2)(c) of the RCLSA.
144See 9.5.1 above. Note that this is not a same-sex marriage as intended by s 1 of
the Civil Union Act.
145S 2(2)(a) of the RCLSA. See also 9.5.2 above.
146S 2(2)(b) of the RCLSA. See also 9.5.2 above.
147S 2(2)(c) of the RCLSA. See also 9.5.2 above.
153Act 25 of 1961.
154S 7(1) of the RCLSA. Note that this is a reenactment of the repealed s 27(7) of
the BAA.
155See, however, Netshituka v Netshituka 2011 (5) SA 453 (SCA).
156Act 41 of 2003.
157S 6 of the RCLSA.
158Act 66 of 1965.
312
163See the heading of s 5 of the RCLSA.
164See Mnisi, S (2010) The Interface Between Living Customary Law(s) of
Succession and South African State Law DPhil thesis University of Oxford,
especially conclusion at 404–406.
165Bhe para 231.
166For a detailed discussion, see Ngcobo’s judgment in Bhe.
167Mnisi (2010) 405.
Chapter 10
Contractual obligations in customary law

10.1Introduction
10.2Capacity to contract
10.3Customary law contracts

10.3.1Lobolo
10.3.2Ukwethula
10.3.3Ukufakwa
10.3.4Ukwenzelela
313
10.3.5Isondlo
10.3.6Mafisa, sisa or nqoma
10.1 Introduction
Elias, in his book, The Nature of African Customary Law,1 concerns himself with the
question whether or not the notion of civil liability under contracts exists in customary
law. He confronts the views of early writers, especially Sir Henry Maine,2 who argued
that relations between individuals in ‘primitive society’ were based on status and not
on contract. According to Maine, the concept of binding obligations outside status or
preexisting relationships did not exist in ‘primitive law’. Elias, using examples drawn
largely from marriage, communal labour practices and trading relationships, refutes
this approach, which he refers to as an ‘imposing farce’.3According to Elias, Maine:
spoke of the absence of contracts between individuals as due to the

regulation of personal relations by the status of the individuals, as
well as by the administration and inheritance of property within the
family according to customary law. He believed that these adequately
account for the lack of detailed rules in so-called
4
‘primitive’ communities.
We will show from specific examples discussed in this chapter that contractual
relationships indeed exist under customary law.5Currently, however, customary law
contracts have to be recognised subject to what the Constitution provides and, in
particular, the Bill of Rights.6 This is because the application of customary law is
subject to the Constitution.7
PAUSE FOR
REFLECTION
The nature of an obligation in customary law of contract

In customary law of contract, an obligation is identified in the context of a group or
family. One of the most important examples of a contract in customary law is lobolo,
which relates to a marriage in terms of customary law, and provides an illustration
that customary law contracts are concerned with a family or group. Other forms of
314
contracts which are closely related to lobolo are the ukwethula, ukwenzelela and
ukufakwa.
The contracts of isondlo (dikotlo) and mafisa, sisa or nqoma also clearly illustrate
the role played by the family or group in assuming contractual obligations in
customary law.8
10.2Capacity to contract
Customary law recognised that the only persons with full legal capacity were
family heads.9 Thus, only family heads were competent to enter into contracts in
customary law. They were authorised to conclude contracts on behalf of their
families as well as on behalf of individual members of their families. An individual
was regarded as a family head once he had entered into a marriage and had
established his own household.10 However, only males could become family heads.
PAUSE FOR
REFLECTION
Women as family heads: the constitutional imperative

We submit that as a result of the principle of equality enshrined in the Constitution,
all persons, irrespective of gender, may now become family heads.11 It is therefore
possible that any person, including a woman, whether married or unmarried, may be
regarded as a family head for the purposes of entering into customary
law contracts.12 The age of a person may, however, still affect his or her contractual
capacity in contracts originating in customary law. All persons acquire majority at the
age of 18 years.13 Therefore, all persons who are 18 years and older are entitled to
enter into any contract in terms of customary law.14
Furthermore, section 6 of the Recognition of Customary Marriages Act
(RCMA)15 provides that:
A wife in a customary marriage has, on the basis of equality with her

husband, … full status and capacity, including the capacity to acquire
assets and to dispose of them, to enter into contracts and to litigate,
in addition to any rights and powers that she might have at customary
law.
315
Considering what section 6 of the RCMA says, we may conclude that a married
woman may enter into any customary law contract provided that she is 18 years
or older.16
The reason for holding that only family heads had the capacity to enter into
customary law contracts was that they were liable for contracts entered into with their
consent by their family members and for the delicts they committed.17 This was due
to the fact that family heads were expected to exercise control not only over
members of their families, but also over whatever was acquired by the family
members in the form of family or house property.18 A family member could therefore
not be sued alone in customary law, but his or her family head was also sued as a
co-defendant.19
Typical customary law contracts that we discuss in this chapter are
the lobolo contract, contracts that arise as a result of the provision by another person
of goods in the case of ceremonies held for women, such as ukufakwa, and
contracts that arise as a result of the provision of lobolo,
namely ukwethula and ukwenzelela. Isondlo is also a typical customary law contract
which may arise from an express agreement between the parties or from the
circumstances of the case. Another form of contract, which is known only in
customary law, is mafisa, sisa or nqoma.
PAUSE FOR
REFLECTION
The impact or effect of the Constitution on the customary law of contract

The Constitution as the supreme law of the country applies to all law or conduct and
any law (including customary law) or conduct which is inconsistent with it is invalid.
Unfair discrimination based, among others, on race, gender, sex, culture, language
and birth is prohibited. Although customary law is recognised as a legal system, its
application is subject to the Constitution and any legislation that specifically deals
with customary law. Furthermore, customary law has to be developed in accordance
with the spirit, purport and objects of the Bill of Rights. The rules applicable to the
customary law of contract and to the specific contracts dealt with in this chapter may
therefore be changed or adapted by courts at any time in their interpretation and
development of any rule of customary law relating to contract.20
316
10.3 Customary law contracts
10.3.1 Lobolo
Terminology
lobolo ‘… property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo,
thaka, ikhazi, magadi, emabheka or by any other name, which a prospective husband
or the head of his family undertakes to give to the head of the prospective wife’s family
in consideration of a customary marriage’21
ukutheleka a procedure that entails the wife’s father or his heir taking her and her children away
from her husband to enforce payment of outstanding lobolo or until the lobolo is fully
paid
phuthuma a procedure that entails the husband fetching his wife and children from her father or
heir where the father or his heir has resorted to ukutheleka
The contract of lobolo is entered into at the time when a marriage is negotiated in
accordance with customary law. It is one of the most important features that
distinguishes a valid marriage from other forms of relationships in customary law.
The lobolo contract is concluded in respect of both customary and, in practice, civil
marriages in South Africa.22 Although this is the position, the RCMA does not
expressly provide that this contract is a requirement for a valid customary marriage.23
From the definition of lobolo, it is evident that this contract is an agreement
between the prospective husband or his family head and the family head of the
prospective wife to give property, in cash or kind, to the head of the prospective
wife’s family in consideration of a customary marriage with his daughter or the
prospective wife. The parties to the lobolo contract are therefore the prospective
husband or his family head and the family head of the prospective wife.24
The obligation to give lobolo rests with the prospective husband or his family head.
In the case of a man’s first marriage, it is customary that his family head takes part in
the lobolo negotiations, that is, the negotiations preceding the marriage and the
provision of lobolo.25 Where the prospective husband is a major, that is, he is already
a family head and self-sufficient, he is normally involved in the lobolo and marriage
negotiations. The right to receive lobolo rests with the prospective wife’s family head.
317
By receiving the lobolo, the prospective wife’s family head signifies that he agrees
that his daughter may enter into the marriage with her prospective husband.
Although this contract is between the prospective husband or his family head and
the family head of the prospective wife, they are not themselves involved in the
actual negotiations but are represented in such negotiations. The rule among
baTswana is that the prospective husband’s family is represented by his paternal
uncle and his wife, maternal uncle and his wife and other trusted family members.
The paternal and maternal uncles and their wives are always as a rule involved in
the lobolo and marriage negotiations. The family of the prospective wife is
represented in the same manner as that of the prospective husband.26
Before the enactment of the Black Administration Act (BAA), 27 the lobolo contract
was equated with a contract of sale or exchange. It is, however, clear that this was
an erroneous assumption. This contract is aimed at distinguishing a valid marriage
from an informal relationship as black South Africans do not regard a marriage,
whether by civil or customary rites, as valid without the provision of lobolo.28 The
effect of the lobolo contract is therefore to legalise the marriage. This has been
described as follows:
Ikhazi has been correctly described as the rock on which the Africans’
marriage is founded, and thus an essential feature of the customary
marriage. Without transfer thereof the existence of a marriage is under
a big question mark even if the parties are living together and beget
children. It goes without saying, therefore, that in our law, as in other
legal systems, marriage is a matter of family law. But marriage is also
a matter of the law of obligations. There must be agreement between
the woman’s guardian and her intending husband. The woman’s
guardian renders performance by transferring the bride to the man.
The husband makes a counter-performance by delivering ikhazi.29
In the past lobolo was given in cattle. It is currently provided in the form of money.
The amount of lobolo to be given varies from community to community. This is
described by Bekker as follows:
318
The amount of lobolo payable varies with different tribes. In some it is
fixed by custom, in others by agreement; in still others, no definite
amount is normally fixed, for in theory lobolo is without limit.30
Where the lobolo is not fully furnished, the outstanding amount may be claimed
through court action in the same manner as in the case of breach of
any contract.31 In certain communities, however, a procedure known
as ukutheleka may be used. This procedure entails the wife’s father or his heir
taking her and her children away from her husband to enforce payment of the
outstanding lobolo or until the lobolo is fully paid.32 Once the father or his heir has
resorted to ukutheleka, it is expected of the husband to fetch (phuthuma) his wife
and children from her father or heir.33 It would appear that ukutheleka cannot be
used to enforce the settlement of lobolo in respect of a civil marriage34 and where
any right of or to a child is in dispute. The principle of the best interests of the child
as envisaged by the Constitution is applicable, irrespective of the type of marriage.35
On divorce, the husband may sue for the return of the lobolo or part thereof. The
person who is sued for this return is the loboloholder, that is, the wife’s father or
his heir.36 A return of at least part of the lobolo was previously regarded as an
indication of the extrajudicial dissolution of a marriage in customary law.37
Note also that section 1 the Law of Evidence Amendment Act (LEAA) 38 provides
that ‘… it shall not be lawful for any court to declare the custom of lobolo or bogadi or
other similar custom is repugnant to …’ the principles of public policy or natural
justice.
PAUSE FOR
REFLECTION
The nature of the lobolo contract

The lobolo contract, an important feature of customary family law, was initially
regarded as being contrary to public policy or natural justice as it was equated with
an agreement of sale. Although not expressly provided as a requirement for a valid
customary marriage, the RCMA provides that a customary marriage must be
negotiated and entered into or celebrated in accordance with customary law.39
319
10.3.2 Ukwethula
Terminology
ukwethulaor ethula ‘… the custom whereby an obligation is imposed upon a junior house to
refund lobolo which may have been taken from a senior house to establish
such junior house. The lobolo of the eldest daughter of such junior house is
usually indicated as the source from which the liability is to be met but the
custom is not recognised as extending to the handing over of the ‘ethula’ girl
herself as a pledge of payment’40
Ukwethula or ethula is a contract that is associated with the provision of lobolo. It

relates to an interhouse debt where property is taken from one house to establish
another house in the same household or to benefit such a house.
When a customary marriage is contracted, a unit known as a house is created.
The husband may allot property to this house in accordance with customary law.
Property acquired by the wife and children of the house constitutes house property
that automatically accrues to the house to which they belong.41 This property must
be used exclusively for the benefit of the house to which it belongs. If it is used for
the benefit of another house, the latter is obliged to refund it. Therefore, where the
husband uses house property to provide lobolo for himself to obtain another wife, the
house established by the latter marriage becomes indebted to the former.
According to Olivier, ukwethula may also arise under the following circumstances:
(ii) If a family head lends cattle of one house to another in order to provide
lobolo for the marriage of a son from the last-mentioned house.
(iii) When the lobolo that would be acquired for a girl in a certain house is
allocated to another house in order to enable a son in that house to
lobolo a wife for himself. In this case, the debt exists only when the
lobolo is acquired for the girl and is used as lobolo for the wife of the
son concerned.
(iv) When the family head takes cattle from one house in order to pay a
debt of another house, in circumstances where the last-mentioned
house does not have cattle at its disposal for that purpose. This debt is
320
paid with the lobolo obtained for a sister (from that house) of the son in
whose favour the loan was arranged.42
The reason for the creation of an interhouse debt indicated in the circumstances
mentioned in (ii)–(iv) above is to enable the family head to assist his sons by
providing lobolo when they marry. When the family head takes property from one
house to assist a son in another house with his lobolo obligations, the house to
which the son belongs becomes indebted to the house that provided the lobolo.43
The ukwethula debt is normally settled from the lobolo to be received in due
course for the daughters of the debtor house. ‘The ‘theory is that the debt should be
settled from the lobolo of the eldest daughter of the house, but in practice, since she
may never marry, or die before marriage, settlement of the debt is claimable from the
lobolo of any daughter, usually that of the first married’.44
10.3.3 Ukufakwa
Terminology
ukufakwa literally meaning to be ‘put into the lobolo’,45 ukufakwa is a custom among the Eastern
Cape Nguni in terms of which a young woman’s father requests a relative to contribute
towards expenses to be incurred in respect of various traditional ceremonies normally
held for women. The debt is repaid from the lobolo to be received for the marriage of the
young woman concerned
intonjane a ceremony or feast celebrating a rite of passage observed by some of the Eastern Cape
Nguni to mark a young girl reaching marriageable age
Koyana describes the ukufakwa contract as follows:
Thandwefika becomes indebted to Mzimazi for a goat or a sum of R40

lent to him to cater at the intonjane ceremony of his daughter
Ngqongqo. Thandwefika says: ‘I shall refund you with a beast out
of ikhazi of my daughter Ngqongqo.’ This is the ukufakwa custom.
Mzimazi has now been ‘put into’ the ikhazi of Ngqongqo. He has been
made a participant, an entitled party therein. When the girl gets
married a beast out of her ikhazi must go to Mzimazi.46
321
Besides the lobolo to be received for the young woman, the ukufakwa debt may be
refunded from the damages received for her seduction.47
10.3.4 Ukwenzelela
Terminology
ukwenzelela among the Eastern Cape Nguni, an agreement in terms of which a man or his family
head or father requests his relatives or friends to contribute towards his or his
son’s lobolo requirements or other expenses relating to his or his son’s
marriage ceremony.48 The contributor is to be refunded from the lobolo received for
the first daughter of the recipient
Contributions in terms of ukwenzelela are regarded as a donation unless an

agreement was reached that they are a loan. At the time when these contributions
are made ‘a specific agreement can be concluded stipulating how and when
repayment will be made’.49
The person who has contributed is to be refunded from the lobolo to be received
for the first daughter of the recipient. If the recipient dies without a daughter, the
liability is not thereby extinguished as his heir becomes liable for the refund.50 If the
recipient cannot pay the debt out of the lobolo for his daughter, the debt may be
refunded out of his other assets.
10.3.5 Isondlo
Terminology
isondlo / a form of payment or remuneration by a natural guardian of a child to a person who

dikotlo takes care of that child
Isondlo is derived from ukondla in the Nguni languages, to maintain,51 and is known
as dikotlo among baTswana.52 It is a form of remuneration for maintaining or taking
care of a child of another person.
Isondlo is therefore a debt that arises when a person other than a child’s natural
guardian raises the child. When its natural guardian wishes to claim his or her
parental responsibilities or any right that may accrue as a result of the child, he or
she first has to settle this debt. Koyana describes this as follows:
322
It happens quite frequently that a woman goes away from her married
home with her children … These children are all brought up without
complaining but sooner or later the girls will get married and the
maintainer is assured of his beast out of the ikhazi of each girl,
as isondlo, while the lawful guardian inevitably lays claims to
the ikhazi of the girls. The same applies in the case of a girl seduced
and rendered pregnant. The father is the guardian of the child born if
he pays damages, and gets custody when he pays a sondlo beast.53
COUNTER
POINT
Should the custom of isondlo be developed in the best interests of the child?
Should the custom of isondlo be developed in terms of section 39(2) of the
Constitution so that the custom focuses on the best interests of the child, including
the boy child, as opposed to serving the rights of the adults involved as is currently
the case?
Among baTswana, a married man whose wife is unable to bear children may
acquire his extramarital child by paying dikotlo (isondlo) if no action for damages is
taken against him. Schapera explains this as follows:
This [payment of dikotlo] carries with it the implication that he is, to all
intents and purposes, to be regarded as the father of the child; but he
is nevertheless bound to consult its mother in all matters affecting its
welfare. He may leave the child with its mother’s people, giving them
one or more cows as dikotlô (maintenance fees), or go êpa bana (‘to
dig out the child’); and then later, when it is grown up, he takes it to
his own home. Or he may take it, while still young, and bring him up
himself. The practice of adopting an illegitimate child is said to be
fairly common among the Tswana, but is found in other tribes as well
…54
323
10.3.6 Mafisa, sisa or nqoma
Terminology
mafisa / ‘a custom whereby the owner of cattle or other livestock deposits them with some
nqoma / other person on the understanding that such person shall enjoy the use of them, but
sisa that the ownership will remain with and any increase will accrue to the depositor’55
The contract of mafisa is known among all African population groups of

South Africa.56 For example, it is known as mafisa among baTswana, baPedi
and baSotho.57 AmaXhosa call it nqoma (ukunqoma)58 and amaZulu and emaSwati
call it sisa.59
The mafisa contract is an agreement between the owner of cattle or other
livestock and another person who does not own cattle or other livestock to the effect
that the latter shall enjoy the use of the cattle or livestock while the ownership of the
cattle or livestock and its progeny (increase) remains with the owner. The borrower
undertakes to take care of the cattle as if they were his or her own and is entitled to
the benefit of their use and their products with the exception of
the offspring.60 Schapera has described the duty of the borrower to take care of
the mafisa stock as follows:
The herdsman is responsible for the welfare of the cattle while they
are in his keeping. Mogama-kgomo ya mafisa e re a e gama a be a
lebile kgoro go gopolêla mong wa yôna a tle a e tsaya, goes the
saying: ‘The milker of a mafisa cow should, while he is milking it look
at the gateway (of the kraal), expecting the owner to come and take it’,
i.e. he must use it carefully, lest he forfeits the benefit he derives
from it.61
The contract is normally entered into for an indefinite period, that is, long enough to
enable the borrower to enjoy the use of the livestock.62 Although the contract is not
of a fixed duration, the owner of the livestock may terminate it on demand.
The mafisa contract is aimed at, among others, assisting needy relatives and other
members of the community who have no livestock of their own to acquire their use
and for the owner of the livestock to acquire access to pasturage as well as to
facilitate the task of caring for the livestock.63 The borrower is not, unless otherwise
324
agreed between the parties, entitled to remuneration as the contract is to his or her
benefit as he or she is entitled to the use of the livestock.64
Besides taking care of the livestock as if he or she were the owner thereof, other
duties of the borrower are the following:
•to use the livestock only for the purpose for which they were given
•to allow the owner to inspect and earmark the livestock
•to report any losses to the owner immediately
•to replace the loss if he or she failed or neglected to report the loss unless it can be
proven that the livestock died naturally or was stolen
•to send the hide to the owner to enable him or her to identify the dead animal in the
case of death
•to account to the owner for the increase
•to return the livestock and increase to the owner within a reasonable time after the
owner has demanded its return or on the termination of the contract.65
The borrower, just like the owner, is entitled to terminate the contract at any time on
reasonable notice. Where the borrower neglects to care for the livestock, the owner
has the right to terminate the contract before it expires.66
The rights and duties of the owner of mafisa livestock have been summarised as
follows:
(a) The owner retains his ownership of the stock and its offspring, and may
vindicate it against even bona fide third parties. The stock may not be
attached in the payment of the debt of the sisa holder.
(b) The owner has the right to inspect the stock at any reasonable time and
to earmark it.
(c) The owner is entitled to terminate the agreement at any time.
(d) Subject to what is said above, the owner runs the risk of loss not caused
through the sisa holder’s negligence.
(e) If the sisa holder unlawfully alienates the stock for his own benefit, the
owner has a claim for damages.67
PAUSE FOR
REFLECTION
325
Ukwethula, ukufakwa, ukwenzelela, isondlo (dikotlo)
and mafisa (sisa or nqoma) as quasi-contracts
Authors in customary law view these contracts discussed above, that
is ukwethula, ukufakwa, ukwenzelela, isondlo and mafisa as quasi-
contracts.68 According to Mqeke, these contracts are examples of what has been
described as official customary law and are gradually in the process of
dying out.69 They are quasi-contracts because they do not satisfy all the
requirements of a contract as ‘liability arises from performance without agreement
based on enrichment or negotiorum gestio’.70
•Contractual relationships exist under customary law.

•Customary law recognised that the only persons with full legal capacity were family
heads and only males could become family heads. However, as a result of the
principle of equality enshrined in the Constitution, all persons, irrespective of
gender, may now become family heads.
•Lobolo is an agreement between the prospective husband or his family head and
the family head of the prospective wife to give property, in cash or kind, to the
head of the prospective wife’s family in consideration of a customary marriage with
his daughter or the prospective wife.
•Ukwethula or ethula is a contract that is associated with the provision of lobolo. It
relates to an inter-house debt where property is taken from one house to establish
another house in the same household or to benefit such a house.
•Ukufakwa is a custom in terms of which a young woman’s father requests a relative
to contribute towards expenses to be incurred in respect of various traditional
ceremonies normally held for women. The debt is repaid from the lobolo to be
received for the marriage of the young woman concerned.
•Ukwenzelela is an agreement in terms of which a man or his family head or father
requests his relatives or friends to contribute towards his or his
son’s lobolo requirements or other expenses relating to his or his son’s marriage
ceremony. The contributor is to be refunded from the lobolo received for the first
daughter of the recipient.
326
•Isondlo is a debt that arises when a person other than a child’s natural guardian
raises the child. When its natural guardian wishes to claim his or her parental
responsibilities or any right that may accrue as a result of the child, he or she first
has to settle this debt.
•The mafisa contract is an agreement between the owner of cattle or other livestock
and another person who does not own cattle or other livestock to the effect that
the latter shall enjoy the use of the cattle or livestock while the ownership of the
cattle or livestock and its progeny (increase) remains with the owner.
1Elias, TO (1972) The Nature of African Customary Law 144–5.

2Maine, H (1861) Ancient Law.
3Elias (1972) 145.
4Elias (1972) 145.
5See further Elias (1972) 144–5; Mqeke, RB (2003) Customary Law and the New
Millennium 117–19.
8Mqeke (2003) 114–19.
9Bekker, JC (1989) Seymour’s Customary Law in Southern Africa 5th ed 69–71.
10Bekker (1989) 85. On the majority status and capacity of spouses, see further ch 7
of this book.
11For a discussion of the right of spouses to structure their marriage roles, including
aspects of family headship, see ch 7 of this book.
13S 17 of the Children’s Act 38 of 2008.
14S 17 of the Children’s Act and s 3 of the RCMA. Because the age of 18 as the age
of majority in the Children’s Act is implicitly supported by the Constitution, it is
applicable to customary law as well even though there is no explicit provision in
the Children’s Act which applies it to children who are subject to customary
law. For a detailed discussion of the status of majority of married persons, see
ch 7 of this book.
15Act 120 of 1998.
327
16Not only persons married by customary rites, but also those married by civil rites
may contract in terms of customary law. See Olivier, NJJ, Bekker, JC, Olivier,
NJJ (Jnr) and Olivier, WH (1995) Indigenous Law 145.
17Bekker (1989) 81–4.
18Pienaar, JM ‘Customary law of property’ in Rautenbach, C, Bekker, JC and
Goolam, NMI (eds) (2010) Introduction to Legal Pluralism in South Africa 3rd
ed 77.
19Olivier (1995) 145–6.
20Maisela v Kgoloane NO 2000 (2) SA 370 (T). See also s 39(2) of the Constitution.
21S 1 of the RCMA.
22Vorster, LP, Prinsloo, MW and Van Niekerk, G (2000) Urbanites’ Perceptions of
Lobolo: Mamelodi and Atteridgeville.
23See, however, ch 6 in this book and Mofokeng, LL (2005) The lobolo agreement
as the ‘silent’ prerequisite for the validity of a customary marriage in terms of
the Recognition of Customary Marriages Act Tydskrif vir Hedendaagse
Romeins-Hollandse Reg 68(2):277–88.
24Jansen, R-M ‘Customary family law’ in Rautenbach et al (2010) 56.
26Nathan, C (1987) The Malome: Then and now Comparative and International Law
Journal of Southern Africa 20(3):421–6; Coertze, RD (1987) Bafokeng Family
Law and Law of Succession 152–4 and 156.
27Act 38 of 1927 which came into operation on 1 September 1927. See Bekker
(1989) 159.
28Jansen 58.
29Koyana, DS (1980) Customary Law in a Changing Society 5. See also Dlamini,
CRM (1985) Should ilobolo be abolished? A reply to Hlophe Comparative and
International Law Journal of Southern Africa 18(3): 361–76 at 365.
30Bekker (1989) 154.
31Bekker (1989) 160.
32Bekker (1989) 163–5; Bekker, JC (1985) Phuthuma / ngala en siviele huwelike De
Jure 18(1):176–9.
33See Maithufi, IP (1986) A civil marriage and the custom of phuthuma De
Rebus 224:387–8; Mofokeng, LL (2009) Legal Pluralism in South Africa:
Aspects of African Customary, Muslim and Hindu Family Law 59.
328
34Ngake v Mahahle 1984 (2) SA 216 (O). See also Mqeke (2003) 76–86.
35S 28(2) of the Constitution. For a detailed discussion of the best interests of the
child with respect to the consequences of a marriage within the constitutional
framework, see ch 7 of this book. See also Bennett, TW (1999) The best
interests of the child in an African context Obiter20(1):145–57.
36Olivier (1995) 82.
37Thembisile v Thembisile 2002 (2) SA 209 (T). See also Maithufi, IP
(2003) Thembisile v Thembisile 2002 (2) SA 209 (T) De Jure 36(1):195–200.
38Act 45 of 1988.
39S 3(1)(b) of the RCMA. See also Mayelane v Ngwenyama (CCT 57/12) [2013]
ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013).
40S 1 of the KwaZulu Act on the Code of Zulu Law Act 16 of 1985 and the Natal
Code of Zulu Law Proc R151 of 1987.
41See s 4 of the Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009 (RCLSA).
42Olivier (1995) 179.
43Bekker (1989) 334–5.
44Bekker (1989) 136.
45Koyana (1980) 71. See also Nobumba v Mfecane 2 NAC 104 (1911).
46Koyana (1980) 71.
47Bekker (1989) 335–6.
48Olivier (1995) 180.
49Ntshekentsheke v Gobo 1959 NAC (S) 57. See also Mqeke (2003) 117–19.
50Olivier (1995) 180; Koyana (1980) 72.
51Koyana (1980) 78.
52Schapera, I (1977) A Handbook of Tswana Law and Custom 2nd ed 166.
53Koyana (1980) at 78.
54Schapera (1977) 172–3.
55S 1 of the KwaZulu Act on the Code of Zulu Law and the Natal Code of Zulu Law.
56Olivier (1995) 182.
57Schapera (1977) 246–8.
58Koyana (1980) 72–4.
59Koyana (1980) 72–4; Bekker (1989) 338–41.
60Olivier (1995) 182; Schapera (1977) 246–7.
329
61Schapera (1977) 247.
62Bekker (1989) 338.
63Bekker (2010) 98.
64Bekker (1989) 340.
65See Schapera (1977) 246–8; Olivier (1995) 183–4.
66Bekker (2010) 99.
67Olivier (1995) 184.
68See, among others, Rautenbach et al (2010) 101; Mqeke (2003) 117–19;
Whelpton, F (1991) Die Inheemse Kontraktrereg van die Bakwena Ba Mogopa
van Hebron in die Odi Distrik van Bophuthatswana 76–7; Myburgh, AC
(1985) Papers on Indigenous Law in Southern Africa 92; Bekker (1989).
69Mqeke (2003) 118.
70Rautenbach et al (2010) 101.
330
Chapter 11
Customary law of delict

11.1 Introduction

11.3.4 Ukuthwala as a delict
11.5 Prescription
11.1 Introduction
This chapter deals with the customary law of delict with special reference to
customary law encoded in the KwaZulu Act on the Code of Zulu Law1 and the Natal
Code of Zulu Law.2 It covers the nature of delictual liability in relation to the
responsibility of the family head, examples of customary law delicts, and the
procedures, prescription and assessment of damages.
The sources of law we use in this chapter are typically those of official customary
law – the KwaZulu and Natal Codes of Zulu Law, the decisions of the Native Appeal
Court (NAC) and textbooks based on these two official sources.
As stated elsewhere in this book,3 customary law places more emphasis on group
rights, duties and obligations than on individuals. Within this context, traditionally, the
family head is an important figure with regard to delictual liability. As a general rule,
the head of the family is liable for delicts committed by the members of the family. He
331
or she also institutes claims for delicts committed in respect of members of the family
unit.
In KwaZulu-Natal, the delictual liability of African people is regulated by Chapter
12 of the KwaZulu and Natal Codes of Zulu Law which entirely supersedes
traditional principles. Section 102 provides that a father, guardian or family head is
liable in respect of delicts committed by a minor in the following circumstances:
(1) A guardian shall be liable in respect of delicts committed by his minor

ward while in residence at the same family home as himself.
(2) A father shall be liable in respect of delicts committed by his minor ward
while in residence at the same family home as himself.
(3) A family head shall be liable in respect of delicts such as is committed
by any minor inmate of his family home while in residence at the same
family home as himself.
However, legal proceedings arising out of any of the specified delicts above are
instituted against the minor committing the delict, jointly with his or her father,
guardian or the family head as the case may be.4
Terminology
‘blood’ are based on the principle that ‘a man may not eat his own blood’ and in these cases,
cases customary law does not fix the amount of damages payable for a delictual claim
In this section, we discuss the main examples of delicts under customary law. The
delicts discussed here are not exhaustive, but include the following: defamation of
character, adultery, seduction and ukuthwala. Further, we discuss the scale of
damages as fixed by custom for each of these delicts.
Note that customary law provides for a predetermined amount of damages for
most delictual claims. This means that, in most cases, the plaintiff need not prove the
calculable pecuniary loss suffered as a result of the defendant’s conduct. It will
suffice for the plaintiff to satisfy only the essential elements of the delict in question.
There are, however, some situations, known as ‘blood’ cases that are based on
the principle that ‘a man may not eat his own blood’.5 In these cases, customary law
332
does not fix the amount of damages payable for a delictual claim. Most of the cases
where the scale of damages is not fixed involve delicts committed against the
traditional leader although the actual victim would have been a private individual.
These cases include assault and theft. In assault cases, for instance, the Court
in Mkunyana v Dumke said the following:
In pure Native law no action lies at suit of an individual who has been
injured in his person, for the action is one which can be instituted only
by the chief of the tribe of the injured person, it being a case of
‘blood’.6
In those cases where the damages are not fixed by custom, the wrongdoer could be
‘eaten up’, that is, the traditional leader would confiscate his entire property.7
Defamation is specifically mentioned in section 93 of the KwaZulu and Natal Codes

of Zulu Law as being an actionable wrong. Every malicious statement alleging evil
conduct, such as witchcraft, on the part of a person constitutes defamation of
character. Where someone apparently utters defamatory words during a heated
quarrel, no action lies if shortly thereafter the wrongdoer gives a public apology. No
action lies also if someone addresses defamatory words in good faith and without
malice to a person in authority.8
In Mogale v Seima, Harms JA said:
It is not, however, without interest to note that since or due to the

influence of the Code of Napoleon, civil law countries such as
Germany do not recognise a damages claim for defamation unless the
defamation is a criminal defamation. Our own indigenous law also
does not in general allow damages claims for defamation unless
allegations of witchcraft are involved.9
According to this case, defamation under customary law is a restricted delict as it

applies only to witchcraft. However, section 94 of the KwaZulu and Natal Codes of
Zulu Law provides for another example of conduct actionable as defamatory relating
to unmarried women. Where a person brings into question the chastity of an
333
unmarried woman, the woman or her legal guardian can institute an action for
defamation against that person.
Note, too, that there have been constitutional developments in the common law of
delict that may be relevant to the customary law of delict. An example is the
application of the value of the traditional principle of ubuntu to the law of delict by the
Constitutional Court in Dikoko v Mokhatla.10
PAUSE FOR
REFLECTION
Emerging values in the remedy for defamation: the role of restorative justice
Presumably, the value of ubuntu applied to the common law by the Constitutional
Court in Dikoko applies to the customary law of defamation as well. This was a case
of defamation between two municipality officers. The reasoning of the Court was,
among other things, that the remedy for defamation should aim at restorative rather
than retributive justice and at mending broken relationships between the parties. In
this regard, the Court stated in its judgment:
In our constitutional democracy the basic constitutional value of

human dignity relates closely to ubuntu or botho, an idea based on
deep respect for the humanity of another. Traditional law and culture
have long considered one of the principal objectives of the law to be
the restoration of harmonious human and social relationships where
they have been ruptured by an infraction of community norms. It
should be a goal of our law to emphasise, in cases of compensation
for defamation, the re-establishment of harmony in the relationship
between the parties, rather than to enlarge the hole in the defendant’s
pocket, something more likely to increase acrimony, push the parties
apart and even cause the defendant financial ruin. The primary
purpose of a compensatory measure, after all, is to restore the dignity
of a plaintiff who has suffered the damage and not to punish a
defendant. A remedy based on the idea of ubuntu or botho could go
much further in restoring human dignity than an imposed monetary
award in which the size of the victory is measured by the quantum
ordered and the parties are further estranged rather than brought
334
together by the legal process. It could indeed give better appreciation
and sensitise a defendant as to the hurtful impact of his or her
unlawful actions, similar to the emerging idea of restorative justice in
our sentencing laws.
The focus on monetary compensation diverts attention from two

considerations that should be basic to defamation law. The first is that
the reparation sought is essentially for injury to one’s honour, dignity
and reputation, and not to one’s pocket. The second is that courts
should attempt, wherever feasible, to re-establish a dignified and
respectful relationship between the parties. Because an apology
serves to recognise the human dignity of the plaintiff, thus
acknowledging, in the true sense of ubuntu, his or her inner humanity,
the resultant harmony would serve the good of both the plaintiff and
the defendant. Whether the amende honorable is part of our law or
not, our law in this area should be developed in the light of the values
of ubuntu emphasising restorative rather than retributive justice. The
goal should be to knit together shattered relationships in the
community and encourage across-the-board respect for the basic
norms of human and social interdependence. It is an area where
courts should be proactive, encouraging apology and mutual
understanding wherever possible.11
Terminology
ukungena / kungena / kenelo a custom practised by both Nguni-speaking and Sesotho-speaking

groups according to which a widow enters into a union with a
brother or half-brother of the deceased in order to raise seed for the
deceased
Traditionally, adultery in customary law was committed with a wife married in terms
of customary law either during her husband’s lifetime or after his death if she is
cohabiting with her lawfully appointed ukungena consort.12 Further, adultery is
335
committed with a ‘widow of a man whose final obsequies have not been observed
and whose estate has not been settled’.13
In terms of section 99 of the KwaZulu and Natal Codes of Zulu Law, only the
husband can claim damages in respect of the wife’s adultery. The wife can obtain a
divorce, but she cannot claim damages in respect of her husband’s adultery.14
COUNTER
POINT
The right of a wife to sue for adultery

Section 6 of the Recognition of Customary Marriages Act (RCMA) 15 guarantees the
equal rights of husband and wife in a customary marriage. It is submitted that section
6, read with the rights to equality and dignity in the Constitution, implies that both
spouses have the right to take legal action against any third party for acts of adultery.
Thus, despite the legalisation of polygamy, it is submitted that a husband in a
customary marriage may also commit adultery if he is not married to the woman with
whom he commits the act.
A spouse is entitled to claim a full fine or penalty for each separate act of adultery
committed with his wife. One act of adultery consists of one or more acts of
intercourse with a married person from the time of its commencement to the date
when the husband takes action against the adulterer.16 By custom, indefinite claims
for adultery are considered immoral and are therefore not permitted. The best
remedy for the aggrieved party is a divorce,17 and in the case of a husband, a claim
for the return of lobolo.18 The amount of the fine varies from community to
community.
In some communities, the fine is increased if pregnancy follows while in others, the
fine is the same whether or not pregnancy ensues.19 In some communities, damages
are claimable only if pregnancy ensues.20 Where the custom permits a penalty for
adultery, the claim may be successful even where the pregnancy was caused by
another man prior to the wife’s marriage, but was discovered after marriage to a
different man. In Sibalala v Temba,21 the Court noted:
336
In Tshetsha v Mavolontiya 1 N.A.C. 111, which was followed by
Dayismani v Rebe 3 N.A.C. 248, it was laid down that when a girl is
taken by a wedding party in marriage to a man and it is discovered
after the lobolo has been paid and the wedding party has left that she
was pregnant when given in marriage, the husband has a right of
action against the seducer precisely as if the pregnancy had been
caused after the marriage, but when a man concludes a marriage at
the time knowing the girl is pregnant, he has no such right of action.
Ignorance on the part of the adulterer that the woman is married does not exonerate
him from liability. However, the adulterer can raise the following valid defences:
 First, the adulterer may be able to show that the circumstances, such as
neglect and ill-treatment,22 in which the married woman lived were such as
would lead a reasonable person to believe that her husband had
abandoned her.23
 Second, the defences of collusion and connivance are also known under
customary law.24 Thus, in Mswala v Fleni,25 a husband allowed his wife and
another man sufficient time to have intercourse in circumstances where he
could have easily stopped them. He admitted in court that his purpose in
following them was to catch them so as to claim damages for adultery. The
Court rejected his claim on the basis that his motives were immoral and that
consequently he had connived in the adulterous action of his wife.
 Third, the spouse cannot be awarded damages for each of his or her spouse’s
acts of adultery with the same person if, in the circumstances, the spouse has
clearly deserted the other spouse and has no intention of returning to
the marriage.26 It is submitted that the dissolution of the customary marriage
also extinguishes the claim, but preserves the husband’s right of action if he
has taken action against the adulterer before the dissolution of the
customary marriage.27
337
The husband should immediately take action against the adulterer by making a
report of the matter at the adulterer’s kraal and should simultaneously make a
demand for the customary damages.
Traditionally, proof of adultery was simple. Personal belongings, such as a blanket
found at the scene, could be produced as a ‘catch’, that is, evidence of the adultery.
Further, any conduct on the part of a man or wife showing undue intimacy with
another person, for instance where two married women (or men) are quarrelling over
one of their husbands (or wives), the other husband (or wife) may use such quarrel
as evidence of adultery.28
Where adultery is committed with a widow who is staying with her lawfully
appointed ukungena consort, the consort brings the action but the fine belongs to the
widow’s house since the consort acts on behalf of the late husband’s estate.29 Thus,
in the case of intercourse with a widow, she must be staying with her late husband’s
family as a recognised ukungena wife for the act to constitute actionable adultery.
This rule seems to be the same for most communities. Thus, in Mdoda v Skeyi, the
Court accepted the submission of the assessors in the following terms:
According to Native custom amongst the tribes that recognise the

practice of ‘ukungena’, the ngena has a right of action against the
adulterer. He is, however, not personally entitled to any damages
recovered which must go to the estate of the deceased husband.30
With amaXhosa communities, intercourse between the deceased’s relatives and a

widow is not only adulterous, but also incestuous.31
As for damages, the husband can sue for the return of lobolo subject to certain
exceptions. For instance, where he does not wish to terminate his marriage with his
wife, the husband can claim damages from the defendant only for illicit sexual
intercourse with his wife and the claim may not exceed three head
of cattle.32 However, where he wishes to terminate the marriage, he can sue the man
with whom his wife committed adultery for the amount of lobolo he
33
has paid. Alternatively, he can sue the recipient of his wife’s lobolo for the return of
the lobolo if the adulterer has paid lobolo for the same woman.34
338
Terminology
umgezo in the Nguni languages, meaning literally ‘the cleansing’, the penalty imposed for the
cleansing of the family and all the virgins in that community resulting from the delict
of seduction
ukusoma in the Nguni languages, a form of sexual intercourse without penetration by the man
for which no fine is claimable
ngquthubeast in the Nguni languages, the beast claimable where the defloration of a virgin is not
followed by pregnancy
mvimbabeast in the Nguni languages, the beast claimable for each pregnancy where seduction of
an unmarried woman is followed by pregnancy
Generally, customary law provides for the payment of a penalty or fine to a

woman’s guardian35 for the defloration of the woman, but also for a further act of
extramarital intercourse if pregnancy ensues.36 Thus, apart from the customary fine
payable for the defloration of a virgin, customary law also imposes an additional
penalty for each pregnancy of an unmarried woman, whether never married
or divorced.37
PAUSE FOR
REFLECTION
Problem of double jeopardy

In customary law, seduction means sexual intercourse with a virgin. According to
case law, there is nothing that prevents the father of an African woman from claiming
damages for seduction under customary law for the seduction of his daughter
despite the fact that she can simultaneously take the same legal action herself under
common law.38 This may lead to a problem of double jeopardy because the
defendant may be liable for ‘double’ damages payable for the same delict.
Where the defloration of a virgin is not followed by pregnancy, anything from one to
six head of cattle, the ngquthu beast, may be claimed depending on
39
the community.
339
Furthermore, seduction is viewed as sinful and as an insult to the ancestral spirits,
and may be punished supernaturally by the ancestors. Consequently, additional
penalties may be imposed for the cleansing of the family and all the virgins in that
community. This penalty is known as umgezo (literally ‘the cleansing’).40
In some indigenous communities, young couples practise ukusoma which may be
described as a form of sexual intercourse without penetration by the man. Among
these communities, which include amaZulu, no fine is claimable for
such intercourse.41
In Zulu law, where seduction of an unmarried woman is followed by pregnancy,
one beast is claimable for each pregnancy. This fine may be claimed in addition to
the ngquthu beast and the umgezo if the woman were a virgin. This beast is called
the mvimba beast.42It is claimable whether the pregnancy is followed by miscarriage
or the birth of the child. However, where the woman has become pregnant during an
existing engagement between herself and the man who caused her pregnancy,
the mvimba beast is not claimable unless the girl’s guardian was not a party to the
alleged engagement or cohabitation. If the cohabitation during an engagement has
taken place with the guardian’s consent and after payment of lobolo, he can only
claim the mvimba beast if the engagement is broken off in due course and the
marriage does not take place. It is submitted that where the plaintiff is of royal blood,
he is entitled to higher damages for the seduction of his wards.43 In addition, under
customary law, a woman has no right of action for her pregnancy or defloration.44 An
unmarried girl is under the guardianship of her father or his heir who has a
reasonable expectation of receiving lobolo for her in due course.
The first stage in the procedure for the recovery of damages for seduction is the
making of a report at the seducer’s kraal. Again, the parents must take action
immediately because a delay may be fatal to their case.45 Thus, it is the duty of the
girl who has been seduced to report this fact to her parents at the first opportunity,
after which her parents must immediately take action. If the seducer admits liability, it
is established that the seducer and his family head are liable for the customary fine
for seduction without pregnancy, the ngquthu beast. The parties wait to see if she is
pregnant and then establish the full fine for the pregnancy.46
A claim for seduction is difficult to prove if the woman dies prior to the institution of
the action for seduction. In KwaZulu-Natal, the claim is extinguished by the death of
the woman unless she dies while giving birth as a result of the seduction.47 However,
340
if the woman’s father takes action before she dies, the claim is not extinguished and
he may prosecute his claim to finality after the death of the girl. Also, where the
alleged seducer dies before the woman’s guardian has taken action, the guardian
loses his right of action. However, the death of the plaintiff does not bar his heir from
instituting or pursuing an action for damages for seduction because the heir will
inherit his right of action against the seducer.48
Traditionally, a child born as a result of seduction becomes a ward of the girl’s
guardian and the child will have ultimate rights of succession to the estate of the
mother’s guardian. This rule was codified in KwaZulu-Natal under section 27(2) of
the KwaZulu and Natal Codes of Zulu Law, which provides that an unmarried woman
will be the guardian of her minor illegitimate child. Section 82 regulates the right of
illegitimate children to inherit where the mother remains unmarried or is divorced or
widowed. The natural father of a child born as a result of seduction may in addition to
the fines payable, pay a fine called isondlo which entitles him to the custody of or
access to that child.49 The child then becomes the ward of his or her natural father
and will also have ultimate rights of succession to the estate of his or her
natural father.50
PAUSE FOR
REFLECTION
The development of customary law in the best interests of the child

Section 21(1) of the Children’s Act51 provides that the natural father of a child born
out of wedlock acquires full parental rights and responsibilities in respect of his child
if he ‘pays damages in terms of customary law’. The amount or scale of damages
differs from community to community. The parents of the woman determine and
receive the damages.
This section may be appraised as a measure of integration of customary law in
important child legislation. However, it may be asked whether the section is, in
principle, compatible with the stance taken by the High Court in Hlophe
v Mahlalela,52 which is discussed in more detail in chapter 7 of this book. In that
case, the Court disapproved of the role of lobolo in the determination of parental
responsibilities and rights in respect of a child in preference for the application of the
best interests of the child principle enshrined in the Constitution. Presumably, the
parental responsibilities and rights of the extramarital father should be determined
341
with reference to the same principle as opposed to the payment of damages under
customary law.53
The scale of damages for seduction is determined by custom. The Nguni group,
particularly amaZulu, prescribes one head of cattle (ingquthu) for the defloration of a
virgin, one head of cattle (imvimba) for each pregnancy plus one additional head for
cleansing (umgezo) the family.54 In isiZulu, the beasts are known as ngquthu cattle.
The ngquthu beast is a beast which is payable to the mother of the girl as an
acknowledgment of her care of her daughter during her maidenhood.55 Thus,
whenever a girl has lost her virginity by seduction or is about to lose it by marriage,
the ngquthu beast is payable to her mother by the seducer or the bridegroom as the
case may be.56
With baSotho, according to the decision in Motaung v Motsoeneng,57 the following
scale of damages applies in the Free State Province: two head of cattle for the
defloration of a virgin and four head of cattle are payable for up to two extramarital
pregnancies. Two head of cattle are payable for extramarital sexual intercourse with
an unmarried woman who is not a virgin. This scale of damages is the same
for baTswana.58 The baPedi fix the maximum amount at three head of cattle.59
COUNTER
POINT
The constitutionality of the delict of seduction

In customary law, the delict of seduction is often associated with virginity. According
to section 98(1) of the KwaZulu and Natal Codes of Zulu Law, the delict attracts the
payment of the ingquthu beast to the woman’s guardian. Once seduction is proved,
the burden shifts to the offender to prove that the woman was not a virgin. This delict
has led some scholars to argue that seduction must be abolished because it
contravenes the woman’s right to equality by placing masculine value on her virginity
and future marriage prospects. Furthermore it commodifies the woman as an object
to be bartered with.60 Expanding this argument, Bohler-Muller states:
The presence or absence of virginity would define a woman and her

value to a man and this would be a stereotype which oppresses
women because the continuation of this stereotype would amount to
cultural imperialism where the value of women is determined by man
342
and thus women would be more likely to be exploited, and even
abused if they are not virgins. Therefore, the answer would be to
uphold the right to gender equality at the expense of such delicts.61
Others have countered this argument as a representation of Western

cultural imperialism.62 In our view, the continued existence of the delict of seduction
strengthens the arguments of those who see it as an added infringement of the rights
to dignity and privacy of women, placing them in a position similar to those who are
subjected to virginity testing. Both have led to passionate appeals for abolition,
especially of the latter practice.
11.3.4Ukuthwala as a delict
Terminology
ukuthwala literally meaning ‘to carry away’, the custom to which a man and a woman resort where
they have agreed to marry each other, but there is an obstacle to their marriage and that
becomes a delict when it does not result in a negotiated marriage because of the refusal
of the bride’s family to consent to the marriage
Ukuthwala is a Zulu and Xhosa word which literally means ‘to carry away’. This
practice can be resorted to by a man in a range of circumstances. These range from
socially accepted, orthodox avenues for initiating marriage negotiations with the
family of the intended bride to irregular and sometimes radical departures from the
mainstream. In many instances, the family of a woman will in turn regularise these
overtures by commencing marriage negotiations. It is those cases where the
woman’s family refuses to negotiate the marriage that the practice
of ukuthwala becomes a delict. The woman’s family would, for example, refuse to
negotiate if they believed that the ‘abduction’ was an insult to their family. Among the
slights the woman’s family might perceive would be the circumventing of the father’s
consent. Thus, it is the decision of the wife’s family that characterises the behaviour
of the man and his family as actionable.
It should be emphasised that to be a customary law delict, ukuthwala must take
place without the consent of the girl’s guardian. It may take place prior to the
payment of lobolo or after the partial or full payment of lobolo whenever there is an
343
obstacle to the actual marriage of the parties, in other words, their living together as
husband and wife.
According to case law, the marriage resulting from a factually forcible ukuthwala is
not a valid marriage.63 Furthermore, this kind of ukuthwala would probably qualify as
an offence in terms of the KwaZulu and Natal Codes of Zulu Law.64
COUNTER
POINT
Ukuthwala as a contemporary social problem

In the last few years, there has been growing concern over certain practices,
especially in rural areas, that have developed under the pretext of ukuthwala. One of
the most persistent of these is forced marriage – sometimes the outright ‘sale’ – of
young girls to elderly men often with the collusion of the girls’ parents. So concerning
are these alleged practices that the South African Law Reform Commission in
December 2010 initiated an investigation into the practice of ukuthwala to seek an
understanding of the social, economic and other reasons for these contemporary
abuses of the custom and to consider an appropriate legal response.65
In the public debate on these matters, the custom is often defended by some as a
cultural practice that is a well-known preliminary to marriage, while others attack the
practice and see it as nothing short of kidnapping and even rape. The issue thus
straddles both criminal law and constitutional rights. There is also a perception that
poverty plays a role in the persistence of the abuse of the practice.
Because the main purpose of ukuthwala is to initiate the marriage negotiations, it is

customary that the damages for ukuthwala are merged into the lobolo property. With
the isiXhosa-speaking communities, one head of cattle is payable, excluding
penalties for seduction if applicable.66 Among baSotho, the man is forced to marry
the abducted woman under traditional law or, alternatively, pay a fine equal to
her lobolo.67
In matters of delictual liability, customary law insists that the plaintiff shall, as soon as
he discovers wrongdoing, lose no time in establishing his claim against the person or
persons responsible. For example, in Mgangabode v Ntshentshe,68 an heir was not
344
held liable for the damages arising out of his father’s adultery. The plaintiff should
therefore immediately take action in accordance with custom against the wrongdoer
and his family head jointly otherwise his action is liable to be fatally prejudiced
especially where the wrongdoer dies prior to action being taken. According to
Whitfield:
... the true rule of Native law is that where action is taken before the
death of the [so called] tort-feasor his heir is liable for his wrong-
doing, but that in cases where no such action has been taken the
claims lapses.69
The claim against the heir does not lapse where the legal action is taken against the
wrongdoer before he dies.70
Customary law actions are preceded by a demand for compensation. The demand
is compulsory but need not be in writing. The family representative or agent must
approach the wrongdoer with prima facie evidence of wrongdoing and then demand
compensation in terms of customary law. If the wrongdoer denies liability, the family
head may institute legal action in the court of the traditional leader or any other court
that has jurisdiction to hear the matter.71
11.5 Prescription
Terminology
prescription a debt or a claim which applies to the type of debt in question is extinguished after the
lapse of time as contemplated in the Prescription Act
Prescription means that a debt or a claim which applies to the type of debt in
question is extinguished after the lapse of time as contemplated in the
Prescription Act.72 Although the claim or debt is valid, the plaintiff is prevented by law
from recovering it after the time that applies to that debt or claim has passed.
In Moima v Matladi, the Court said the following about prescription:
… we must avoid the pitfall of applying principles of ethics of one

community to another and especially avoid fallacious reasoning from
one system of jurisprudence to another. The law of nature, i.e. natural
345
justice, is ignorant of statutes of limitation of action. It knows only that
a debt has been incurred and must be repaid. In this respect then,
Native law is nearer nature and must be held to be in accord with
natural justice.73
Thus prescription of actions has never been part of customary law in spite of the fact
that a delay in taking action may prejudice and even be fatal to a
claimant’s case.74 The plaintiff’s case is not prejudiced by prescription – it is
prejudiced by the passing of time which leads to the ‘fading out of evidence’.75
In Lequoa v Sipamla,76 McLouglin P noted that action must be taken immediately
by making a demand (informing the defendant’s family head) or issuing summons in
the following cases:
•where there is a claim, debt or liability which is open to denial or dispute
•where time is of the essence in fixing an event which resulted in liability (such as
seduction).
The above circumstances are not necessarily exceptions to the rule against
prescription, but rather, factors which may affect the probabilities of truth concerning
the plaintiff’s case.
By custom, the heir of the family head may inherit legal rights, obligations and
liabilities such as debts and locus standi. This means that the heir may institute legal
actions long after the death of the person from whom he had inherited these rights or
obligations. Because the heir steps into the shoes of the deceased, he is liable for
the debts of the deceased.
PAUSE FOR
REFLECTION
Customary law in the context of prescription in common law

The non-recognition of prescription of actions under customary law implies that the
plaintiff whose right of action has prescribed under common law may still take the
same action under customary law, provided that such action is recognised by
custom.
346
 As a general rule, in customary law the head of the family is liable for delicts
committed by the members of his family.
 In KwaZulu-Natal delictual liability of African people is regulated by Chapter
12 of the KwaZulu and Natal Codes of Zulu Law, which entirely supersedes
non-codified customary law principles.
 According to the Codes, the father, guardian or family head (as the case may
be) is liable for the delicts of a minor under his ward in varied circumstances,
but the minor who commits the delict is jointly liable with the father, guardian
or family head, as the case may be.
 The most common delicts discussed are defamation of character, adultery,
seduction and ukuthwala.
 Defamation under customary law is a highly restricted delict in that it applies
only to witchcraft. The KwaZulu and Natal Codes of Zulu Law provide for a
further conduct actionable as defamatory relating to unmarried women – this
is where the chastity of an unmarried woman is impeached.
 Traditionally, adultery in customary law is committed with a wife married in
terms of customary law either during her husband’s lifetime or with a widow
whose marital relationship with her deceased husband is not terminated.
 Defloration of a virgin is actionable and the damages go to the mother of the
seduced woman. Additional penalties may be incurred by the wrongdoer
where pregnancy results from seduction.
 Normally, the custom of ukuthwala is resorted to where a man and a woman
agree to marry each other, but there is an obstacle to their marriage.
However, this practice becomes a delict when it does not result in a
negotiated marriage because of the refusal of the bride’s family to consent to
the marriage.
 Customary law insists that the plaintiff shall as soon as he discovers wrong-
doing lose no time in establishing his claim against the person or persons
responsible, failing which, any evidence presented by the plaintiff may be
rejected.
 Prescription of actions has never been part of customary law.
 Generally, the amount of damages for each delict is fixed by custom unless
such a delict is committed against a traditional leader.
347
1Act 16 of 1985.
2Proc R151 of 1987.
3See ch 12.
4S 102(4) of the KwaZulu and Natal Codes of Zulu Law.
5Whitfield, GMB (1948) South African Native Law 395.
6(1939) NAC (C & O) 68.
7Whitfield (1948) 395.
8Ngcobo v Mdhlalose 1949 NAC (N-E) 68.
92008 (5) SA 637 (SCA) 641. Note that in support of this opinion, the Court relied on
Olivier, NJJ, Bekker, JC, Olivier, NJJ (Jnr) and Olivier, WH (1995) ‘Indigenous
law’ in Joubert, WA (ed) (2009) The Law of South Africa 2nd ed Vol 32 paras
183–6. A more detailed discussion of the practice of witchcraft may be found in
ch 12 of this book.
10(CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1) BCLR 1 (CC) (3
August 2006).
11Dikoko paras 68–69. See also Sachs J’s separate judgment.
12S 99 of the KwaZulu and Natal Codes of Zulu Law. See also Whitfield (1948) 469.
13Whitfield (1948) 462.
14S 99 of the KwaZulu and Natal Codes of Zulu Law. See also Ngawana v
Makuzeni 1 NAC 220 (1908); Gomfi v Mdenduluka 3 NAC 21 (1912).
15Act 120 of 1998.
16Mokhantso v Chochane 1947 NAC (C & O) 15.
17See Kulashe v Nkosi 1944 NAC (T & N) 22.
18Ngawana v Makuzeni 1 NAC 220; Gomfi v Mdenduluka 3 NAC 21 (1912); Mbono
v Sifuba 1 NAC 137 (1907); Fuzile v Ntloko 1944 NAC (C & O) 6. See Whitfield
(1948) 133.
19In amaMpondo communities, the husband cannot sue for ‘stomach’ (pregnancy) if
the wife’s adulterous act caused the marriage to be dissolved and
his lobolo was refunded. See Whitfield (1948) 94 and 469. In baPedi
communities, no additional penalties may be claimed if the adulterous
pregnancy was warranted by the husband’s negligence. See generally
Whitfield (1948) 456–68. In terms of s 99 of the Kwazulu and Natal Codes of
348
Zulu Law, no action for damages for adultery lies if the spouses were not living
together as man and wife when the act of adultery was committed.
20For example, emaSwati communities consider adultery with a married woman as
the most serious form of theft and civil action is only permitted if pregnancy is
caused by the man with whom she committed the act. See Whitfield (1948)
458. See also Garane v Nkomokazi 2 NAC 68.
21Quoted from Whitfield (1948) 443.
22Whitfield (1948) 469.
23This is implied in the decisions of Nakabinde v Mhlangeni 1942 NAC (N & T) 89
and Kosane v Molotya 1945 NAC (N & T) 70. See also Whitfield (1948) 456.
24Madolo v Mnukwa 11 SC 181 and Ngqo v Twalana 5 NAC 9.
251948 NAC 5.
26Gomfi v Mdenduluka 3 NAC 21.
27See Xulu v Nene 1939 NAC (T & N).
28See Whitfield (1948) 467. See also Capuko v Ngazulwane 2 NAC 12.
29See generally Bennett, TW (1991) A Sourcebook of African Customary Law for
Southern Africa.
303 NAC 287.
31Bennett (1991) 413.
32See Mngantsiyana v Kyibi (1936) NAC (C & O) 64; Myoli v Skemjana (1939) NAC
(C & 0) 105.
33Mtsenene v Mlahlwa 4 NAC 20; Xanase v Tunce (1939) NAC (C & O) 36.
34Sicefe v Nyavozake 5 NAC 17; Mangaliso v Fekade 5 NAC 5; Mngqantsiyana v
Kyibi (1936) NAC (C & O) 64.
35Booi v Xozwa 4 NAC 310; Cebisa v Gwebu 4 NAC 330.
36See Daniel v Socinsi 4 NAC 320.
37Mrubata v Dondolo 1949 NAH 174(S).
38Yako v Beyi (1944) NAC (C & O) 72; Booi v Xozwa 4 NAC 310; Qobo v
Poswayo (1945) NAC (C & 0) 45.
39See Nkohla v Rakana 4 NAC 321; Mzwakali v Mahlati 2 NAC 31; Kelatile v
Mxoxelwa and Mtuti 4 NAC 322.
Customary, Muslim and Hindu family Law 103.
41Sindane v Mbhokazi (1930) NAC (T & N).
349
42See Mhlupheki v Bhoyi 1912 (1) NHC 38.
43See s 61 of the KwaZulu and Natal Codes of Zulu Law.
44See s 67(2) of the KwaZulu and Natal Codes of Zulu Law which provides that the
damages for the defloration of a woman belong to her mother.
45Tsoali v Lebenya (1940) NAC (C & O) 22.
46Mcunu v Gumede (1938) NAC (T & N) 6; Daniel v Socinsi 4 NAC
320; Sonyabashe v Maqungo (1938) NAC (C & O) 1.
47S 98(3) of the KwaZulu and Natal Codes of Zulu Law.
48Mdoda v Skeyi 3 NAC 287; Ntinjane v Dinizulu 4 NAC 22.
49Bennett (1991) 278.
50Regard should, however, be had for s 34 of the KwaZulu and Natal Codes of Zulu
Law which requires a person seeking custody and guardianship in KwaZulu or
Natal to apply to court.
51Act 38 of 2005.
521998 (1) SA 449 (T).
53On the discussion of the best interests of the child principle from a customary law
perspective, see ch 7 of this book.
54See s 98 of the KwaZulu and Natal Codes of Zulu Law.
55S 98 of the KwaZulu and Natal Codes of Zulu Law.
56S 98 of the KwaZulu and Natal Codes of Zulu Law. When the seducer
pays ngquthu on account of his seduction of the girl, the girl’s mother usually
slaughters the beast and the women of her kraal eat it. When ngquthu is paid
as part of lobolo, she will usually keep the beast and allow it to increase. In
addition to the ngquthu beast, in the case of seduction, a penalty
called umgezo, usually being a goat or a small sum of money, may be claimed
in those areas where custom allows it.
57(1939) NAC (C & O).
58Kodisang v Seakgela (1945) NAC (C & O) 51.
59Whitfield (1948) 455.
60See Bohler-Muller, N (2001) Cultural practices and social justice in a constitutional
Africa Obiter 22(1):142–52.
61Bohler-Muller (2001) 152.
62See authors cited by Bohler-Muller (2001) 151.
350
63Mfeketho v Satimani 1947 NAC (C & O) 108.
64See of s 116(1) of the KwaZulu and Natal Codes of Zulu Law.
65See South African Law Reform Commission (2010) Project 138 The practice
of Ukuthwala.
66Whitfield (1948) 116.
67Whitfield (1948) 130.
684 NAC 13 (1920).
69Whitfield (1929) 404.
70Whitfield (1929) 404 referring to Zakaza v Dennis Pennington 4 NAC 192 where
the magistrate was advised by the counsellors that ‘once an action is instituted
it does not die’.
71Presumably, the Chiefs’ and Headmen’s Civil Court Rules (GN R2082 of 29
December 1967 (repealed in KwaZulu in 1989)) would apply to the court of a
traditional leader.
72Act 68 of 1969.
73(1937) NAC (T & N) 40 at 45.
74Lequoa v Sipamla (1944) NAC (C & O) 85.
75Whitfield (1948) 520.
76(1944) NAC (C & O) 85.
351
Chapter 12
Criminal law
12.1 Introduction

12.2.1 The distinction between customary criminal law and the customary law
of delict

12.3.1Witchcraft
12.3.2Contempt or defiance of the head of a group
12.3.3Other crimes under the Natal Code of Zulu Law
12.1 Introduction
In its Report on Conflict of Laws, the South African Law Commission (SALC) warned
about the dangers of allowing all courts to apply the customary law of crime. The
SALC noted the following:
It is a different matter to require other courts to apply the customary

law of crime. Although it has always been assumed, since colonial
times, that the common law should provide an overall framework for
government and control of the population, this assumption has never
been seriously considered in South Africa. To broaden the scope of
customary criminal law now would pose a major question of policy …
In the circumstances, there seems to be good reason for not changing
the existing position.1
The SALC further highlighted the turmoil that may result from the application of
customary law of crime parallel to the criminal law under the common law and
legislation in the following terms:
352
Criminal law, like other branches of public law, tends to be identified
with state sovereignty. Hence, it will be readily accepted that everyone
in the country should be subject to the same system of public law.
Moreover, because the commission of crimes affects the public weal,
a strong argument can be made for not allowing offenders to plead
innocence on the ground that their acts were condoned by a particular
cultural tradition. When laws involve not individual or narrow
community interests, but wider interests of the society as a whole, the
right to equal treatment will outweigh any freedom to pursue a culture
of choice.2
This chapter deals with the distinctive aspects of customary criminal law. In
particular, it considers the theory of customary criminal law, specific customary law
offences and examples where the ordinary courts have applied customary criminal
law.
Considering all the difficulties associated with the question of whether ordinary
courts should apply customary criminal law alongside criminal law under the
common law and legislation, it is necessary to discuss the African customary
concept of criminal law with regard to the structure or nature of African dispute
resolution, the distinction between customary criminal law and the customary law of
delict, and punishment and co-liability.
12.2.1 The distinction between customary criminal law and the customary law
of delict
Customary law is not homogeneous and it is not, generally, a penal system. It is a

system based on principles of restorative and healing justice. By comparison, with
criminal law under the common law and legislation, all crimes are committed against
the state rather than the victim. Therefore, it is only the state that may punish the
offender. Under customary law, some crimes are committed against private
individuals (or a group of individuals) or the state or both. As a result, many lawyers
have been unable to distinguish customary criminal law from the customary law of
delict.
353
The most obvious distinctions between customary criminal law and delict relate
mainly to legal procedures.3 According to Labuschagne and Van den Heever, the
two main procedural differences are as follows:
 First, the parties in a civil matter must personally present their case while in
criminal matters the responsible member of the tribal court must present the
factual details of the offence and lead the evidence.
 Second, customary law requires that the parties in civil matters attempt to
negotiate and settle their dispute extrajudicially through a group leader before
approaching the court. With criminal matters, however, the traditional leader
has the discretion to allow negotiations and extrajudicial settlement.4
Other differences relate to the penalties imposed for violations of law. For civil
matters, damages paid to the plaintiff are not necessarily assessed according to the
actual loss suffered by the plaintiff.5 In most situations, damages are fixed for
delictual wrongs.6In criminal matters, the penalties imposed by the traditional court in
the form of fines are paid primarily to the traditional leader or, at the traditional
leader’s discretion, to both the traditional leader and the victim of the crime.
Traditionally, damages and criminal penalties were paid in livestock. In modern
times, however, customs have evolved and damages and penalties are now paid in
money or a combination of livestock and money.
PAUSE FOR
REFLECTION
Distinguishing crime from delict in customary law

Is the perception that customary law did not distinguish between crimes and delicts
incorrect? The perception may have been created by a combination of factors, but it
seems that the main contributing factor is that the system allows for punishment and
reparation or compensation in the same action,7 and that customary law does not
recognise detention or imprisonment.
The fact that criminal penalties and delictual compensation are meted out in the
same action is not unique to customary law. Similar rules have been codified in
South Africa under sections 297, 300 and 301 of the Criminal Procedure Act.8 These
provisions of the Criminal Procedure Act allow the courts, having convicted the
offender, to order him or her:
354
•to pay compensation to the complainant for pecuniary loss resulting from the
offence
•to suspend or postpone the sentence and release the offender on condition that he
or she pays compensation to the complainant
•to render specific benefit or service in lieu of such compensation for damage or
pecuniary loss.9
These provisions of the Criminal Procedure Act also reflect the customary law theory
of criminal punishment. That is, the purpose of punishment is not only to punish the
offender, but also to ensure that the victim is properly compensated through
summary procedures.
African customary law principles of punishment are based on restorative justice,

reconciliation and ubuntu. In S v Maluleke, the Court said that restorative justice:
emphasises the need for reparation, healing and rehabilitation rather

than harsher sentences, longer terms of imprisonment, adding to
overcrowding in jails and creating greater risks of recidivism ... In
addition, restorative justice, seen in the context of an innovative
approach to sentencing, may become an important tool in reconciling
the victim and the offender, and the community and the offender.10
Consequently, African customary law did not provide for punishment in the form of
detention, imprisonment, torture, brutal punishment and hard labour. The most
common forms of punishment were confiscation of property, fines and loss
of status,11 and in particular, loss of social status.12
Traditionally, if the offender was too poor to afford a fine, ‘his father or nearest
relative was held responsible for its payment’.13Thus, elements of co-liability in
criminal punishment were common and, generally, criminal penalties were not fixed
by custom. It may be argued that customary law did not provide for minimum and
mandatory penalties, and that the traditional leader had the discretion to impose any
punishment for any offence. Consequently, the assessment of the appropriate
sentence was usually not an issue for dispute.
355
In modern times, appropriate penalties imposed by courts are determined in
accordance with clearly defined rules of punishment and sentencing. Further, the
powers of courts of traditional leaders are also legally restricted in so far as
punishments for both customary and statutory law offences are concerned. Section
20(2) of the Black Administration Act (BAA)14 provides as follows:
… a chief, headman or chief’s deputy may not inflict any punishment

involving death, mutilation, grievous bodily harm or imprisonment or
impose a fine in excess of R100 or two head of large stock or ten head
of small stock or impose corporal punishment.
Note that although customary law may not be strictly classified as a divine system of
law as punishment for certain serious offences was carried out by humans, it was
and still is considered to be supernatural. People therefore voluntarily observe the
rules of customary law out of fear of supernatural punishment. According to
Hammond-Tooke:
None of the South African Bantu have the concept of chance in their
world-view. Apart from death from extreme age and minor illnesses
such as chills and stomach upsets, all deaths and occasions of
misfortune are believed to be caused (‘sent’) by some external agent.
This agent may be a supernatural being in its own right, or a human
being using supernatural means. In the first case it is the ancestors
who are sending the misfortune, in punishment for some breach of
custom: in the latter the agent is human, a witch or sorcerer.15
Traditionally, the punishments for more serious crimes were banishment

or exile,16 and execution.17 Only the paramount chief or king could impose these
punishments. In S v Makwanyane, Sachs J noted that in the 1850s, the absence of
the death penalty in Zulu customary law angered Shepstone, Lieutenant Governor
of Natal.18 He quoted Donald Morris who wrote:
Hearken to Shepstone on November 25, 1850, substituting capital

punishment for the native system of cattle fines in the case of murder
... Know ye all ... a man’s life has no price: no cattle can pay for it. He
356
who intentionally kills another, whether for Witchcraft or otherwise,
shall die himself.19
The British colonial government of the Cape seemed to hold the same view in the
early 1800s after taking over the Cape Colony from the Dutch. As Terblanche
observes:
The British found the existing criminal procedure to be of little

substance and started the process of replacing it with the British
system from 1828 onwards.20
In modern times, fines21 and loss of status22 are the most common punishments,
while corporal punishment,23 banishment24 and execution25 have been outlawed in
South African law.
12.3.1 Witchcraft
Terminology
buloyi witchcraft in the Sesotho and Setswana languages
muthi commonly used to refer to umuthi, which means medicine (good or bad) in the Nguni
languages
ukubhula an isiZulu word meaning either to consult a diviner or what a diviner does when he or
she ‘diagnoses’ or identifies a problem
ukuphengula another word for ukubhula, used mostly among emaSwati
ukunuka an isiZulu word, literally ‘to smell’, meaning to divine or smell out
ukuthakatha to practise witchcraft
Being a wizard is not a crime, but casting a spell on another person is a criminal
offence, particularly if this leads to the death of another person. In addition, making
any statement claiming that another person is a wizard is defamatory and actionable
357
in the customary law of delict, but may not be punished criminally. In Simanga
Mankayi v Nosawusi Mbi-Maselana,26 the Court said:
In Native law and custom the most serious charge that can be made
against anyone, and the gravest crime that anyone could be accused
of, was that of causing the death of any person by means of
witchcraft, and in Native law the only action that could be entertained
for defamation was if a person was said to have practised witchcraft.
According to traditional customary law, wizards were not criminally punished by the
ruling authority, but were frowned upon and sometimes attacked by members of the
public and traditional doctors. Such incidents are still reported in South
Africa today.27Customary law did, however, punish any conduct associated with
witchcraft where such conduct resulted in death, injury or damage to the property of
another person. Essentially, this meant that by comparison, killings caused by acts of
witchcraft were considered to be more serious than other cases of murder.28
Whitfield recorded the seriousness of the crime of witchcraft among the Tsonga as
follows:
… witchcraft (buloyi) is one of the greatest crimes which a man can

commit. It is equivalent to assassination, even worse than murder, as
a dim idea of anthropology is added to the simple charge of killing. A
wizard kills human beings to eat their flesh.29
South African legislation also criminalises ‘the practice of witchcraft and

similar practices’.30 The Witchcraft Suppression Act31 does not define witchcraft, but
lists offences relating to the practice of witchcraft. Section 1 outlines the following
criminally punishable witchcraft practices:
Any person who imputes to any other person the causing, by

supernatural means, of any disease in or injury or damage to any
person or thing, or who names or indicates any other person as a
wizard … is guilty of an offence.
358
In S v Latha, the Court held that:
Section 1(a) of the Witchcraft Suppression Act 3 of 1957 was

promulgated in order to provide for the situation where persons
accused another person of being a witch or a wizard in circumstances
where they would not have been criminally liable at common law, but
whose imputations led to the death or injury of the person imputed to
be a witch. The primary purpose of the section is to punish people
whose utterances have resulted in other people killing or
32
injuring another.
In assessing sentence for contravening section 1(a) of the Witchcraft Suppression

Act, the interest of society requires that the sentence must not only deter the
offender and others from naming a person as a witch or wizard, but must also reflect
some sympathy for the subjective beliefs and motive of the accused.33
Further, the following practices constitute offences under section 1 of the
Witchcraft Suppression Act:
Any person who –

(b) in circumstances indicating that he professes or pretends to use any
supernatural power, witchcraft, sorcery, enchantment or conjuration,
imputes the cause of death of, injury or grief to, disease in, damage to or
disappearance of any person or thing to any other person is guilty of an
offence.
(c) employs or solicits any witchdoctor, witch-finder or any other person to
name or indicate any person as a wizard;
(d) professes a knowledge of witchcraft, or the use of charms, and advises
any person how to bewitch, injure or damage any person or thing, or
supplies any person with any pretended means of witchcraft;
(e) on the advice of any witchdoctor, witch-finder or other person or on the
ground of any pretended knowledge of witchcraft, uses or causes to be
put into operation any means or process which, in accordance with such
advice or his own belief, is calculated to injure or damage any person or
thing;
359
(f) for gain pretends to exercise or use any supernatural power, witchcraft,
sorcery, enchantment or conjuration, or undertakes to tell fortunes, or
pretends from his skill in or knowledge of any occult science to discover
where and in what manner anything supposed to have been stolen or
lost may be found,
shall be guilty of an offence ...34
Considering the practices associated with witchcraft as outlined above, it may be

concluded that the practice of witchcraft is evident in South Africa. Whether or not
such practices lead to the alleged consequences is questionable. For instance, it has
been reported that striking miners used witchcraft muthi (traditional medicines)
during the 2012 Marikana strike that resulted in the shooting of some strikers by
police. It was further reported that some of the 34 miners killed during that strike may
have believed that the traditional healer’s muthi had made them invincible and that
they could survive the shooting.35
The most recent legal matters involving the practice of witchcraft are indicative of
the extent to which such practices and people’s belief in witchcraft has affected
them. In Metal and Electrical Workers Union of SA obo Sibuyi and Wireforce
Steelbar (Pty) Ltd,36 the workers refused to come near or to work near a machine
which was operated by one of their colleagues (the applicant in the matter). They
had apparently observed the applicant sprinkling muthi near and around the
machine. As a result, the employer dismissed the applicant on the grounds of
‘sabotage’ because his colleagues believed that they would die if they came near the
machine.
At the CCMA hearing, it was found that the applicant had merely sprinkled sand
over spilled oil. Despite this finding, the CCMA ruled that the workers’ unreasonable
beliefs in witchcraft would make it inappropriate and difficult for the applicant to be
reinstated. The employer was required to compensate the applicant for an amount
equal to one year’s salary.
In S v Alam,37 a traditional healer told the accused to obtain human blood, which
the healer wanted in order to perform a ritual, in return for financial compensation.
The accused then raped a woman and obtained her blood after fatally stabbing her.
Where the practice of witchcraft as contemplated in section 1(a) to (e) of the
Witchcraft Suppression Act results in the death of a human being, the court must
360
impose a compulsory sentence of life imprisonment unless the court is persuaded
that compelling circumstances justify a lesser sentence.38 Compelling circumstances
were found to exist in S v Latha39 where two young accused were convicted of the
murder of a person whom they believed was bewitching their family. The Court found
that the accused were labouring under a serious delusion which, ‘though impotent in
any way to alter their guilt legally, does in some measure palliate the horror of the
crime and thus provide an extenuating circumstance’.40 The Court imposed a
sentence of 20 years’ imprisonment for the first accused and 15 years’ imprisonment
for the second accused. Five years’ imprisonment was conditionally suspended for
both accused.
PAUSE FOR
REFLECTION
Does the Witchcraft Suppression Act address the real issues of witchcraft in
South Africa?
The Witchcraft Suppression Act may not be regarded as a source of customary law
concerning the prohibition against witchcraft. The Act applies to and prohibits
conduct specified in the Act as witchcraft and makes no mention of customary law.
Thus, there may be conduct that is not covered by the Act but that would constitute a
crime of witchcraft under customary law.
12.3.2 Contempt or defiance of the head of a group
Terminology
inhlonipho or hlompho respect in the Nguni and Sesotho languages
ex curiae outside of court proceedings
in facie curiae during court proceedings
Customary law is a system of law that is premised on and seeks to protect group
interests. The group functions properly if it has a leader. It is for this reason that
customary law devised rules that prohibit the defiance of the group leader, whether
that person is a king, chief or simply a family head. The offence is based on the
361
African values of inhlonipho or hlompho (respect). This implies that any conduct that
a leader considers to be disrespectful is punishable as an offence.
With most African communities, a variety of factors, including conduct, speech and
physical appearance, determines inhlonipho. Further, where the leader has made a
particular order, defiance of such order amounts to an offence. Again, this is based
on the custom of inhlonipho. Thus, the problem with this offence is that it is not
clearly defined by customary law and, in its original form, the offence depends
almost entirely on what the leader considers to be defiance or contempt. The
problem was highlighted in R v Dumezweni where the Court referred to R
v Sibiya41 and said:
In a less developed system of law the outlines of legal concepts tend

to be less rigid and are often not clearly defined. Such concepts are
attended by disadvantages which it is difficult to eliminate with
immediate effect without disturbing the natural development of such a
system of law, but their elimination in criminal law is a matter of more
pressing concern. It is eminently desirable that there should be a
precise definition of an offence, and that its elements should not be
uncertain … That is more particularly the case where it is an offence
against the person called upon to pronounce upon the guilt of the
accused in the first instance, who may be naturally inclined to extend
the confines of the offence, if they are flexible.42
The prohibition against any conduct in defiance of traditional leaders’ orders was first
codified in the repealed provisions of the BAA.43 The offences still form part of
customary law despite the repeal of the relevant provisions of the BAA. This is
because the Chiefs’ Courts still exist and they can punish offenders for contempt of
court, that is, the orders of the chief while presiding over a case. Further, in
KwaZulu-Natal, section 7(1) of the Natal Code of Zulu Law still provides that:
Chiefs have the authority to require compliance by the people under

their jurisdiction with their duties under Zulu law and may give orders
for the purpose.
362
Defiance of a chief’s order occurs where a person refuses to carry out the chief’s
orders or does something in violation of the order or rule made by a chief. For
instance, in S v Moshesh,44 the appellant appealed against his conviction for
disobeying the chief’s order on the basis that the chief’s order was unlawful. He had
refused to assist in the removal of school furniture from one site to another. The
Court ruled that the chief had the authority to give the order he did and dismissed the
appeal. To punish the offender for this offence, the chief must be a legally
recognised chief.45
Contempt of a chief’s court occurs where a person fails to obey the order of a
chief ex curiae (outside of court proceedings)46 or in facie curiae (during court
proceedings).47 In Makapan v Khope,48 the Court held that a chief has the power
summarily to convict and punish for contempt of his court committed in facie
curiae while exercising civil jurisdiction.
Depending on the circumstances, contempt of a chief was considered in the same
way as high treason. As stated, customary law rules for contempt are deeply rooted
in the custom of inhlonipho (respect) and the higher the status and authority of a
leader are, the harsher the sentence is. Consequently, acts of insubordination
towards a chief are considered to be criminal and punishable.49 If the same offence
is directed at a king or a supreme chief, the sentence could, in the olden days, be the
death penalty.50 In Mokhatle v Union Government,51 Solomon Plaatje said the
following when giving evidence:
In the olden days, if the chief found men undermining his position, he
would get the people before him and fine or flog them. They would be
killed.
Defiance of the family head seems to be no longer enforced criminally in South

Africa. There are no recent reported cases dealing with this offence. However, in
KwaZulu-Natal, the offence remains in the law books as provided for in section 115
of the Natal Code of Zulu Law which reads as follows:
any person who defies the authority of a family head, or enters a

family home when permission to do so has been refused, remains in
or about any family home after being requested to withdraw ... shall be
guilty of an offence.
363
12.3.3 Other crimes under the Natal Code of Zulu Law
In KwaZulu-Natal, the Natal Code of Zulu Law (the ‘Natal Code’) prescribes several
offences. Some of these offences were known under traditional customary law and
were codified with some amendments during the colonial, Union and
apartheid eras.52 In this section, we discuss only those offences which we have not
discussed elsewhere in this chapter.
At least two chapters of the Natal Code have general provisions entitled ‘offence
and penalties’ which are intended to punish ‘any Black who contravenes or fails to
comply with any provision of [the said] Chapter’ or any ‘Black who disregards or fails
to comply with any duty, obligation, direction or prohibition imposed upon him by
this Code’.53 In addition to these provisions, the Natal Code specifically criminalises
the following types of conduct:
 •First, it is an offence for any member of the tribal community to disregard
customs or ‘regulations’ regulating the duly defined tribal boundaries54 or,
without authority, to move his family from their own area to that of another
presumably for permanent residential purposes.
 •Second, section 61 contains a scale of the maximum amounts or size
of lobolo property that may be delivered in respect of marriages to women in
certain categories.55 In the case of doubt, ‘the lobolo shall not exceed ten
head of cattle or their equivalent’.56 Under section 62, it is an offence for any
person to receive ‘lobolo in excess of the scale prescribed in section 61’.
 •Third, any person who coerces or attempts to coerce a woman to enter into a
marriage commits an offence. The Natal Code also prohibits the guardian of a
woman from permitting the celebration of a customary marriage after the
official witness has stopped or directed the suspension of such celebration.57
 •Fourth, there are miscellaneous offences listed under section 117. The
following persons shall be guilty of an offence:
 failure by those who have a natural duty to provide the necessities of life for
any other person to do so
 knowingly omitting to give proper warning to neighbours and other interested
parties concerning the presence of a contagious or infectious disease among
livestock
364
 carrying traditional weapons without the written authorisation of the
district officer58
 failure by the family head to report to the chief any serious crime committed or
the death of any person at or near his family home.
PAUSE FOR
REFLECTION
Criminal offences under the KwaZulu and Natal Codes

Bennett and Pillay have criticised the Natal Code as ‘a product of early colonialism
and its counterpart, the KwaZulu Act on the Code of Zulu, is a product of the
apartheid era. In South Africa’s new constitutional order, they stand out as
incongruous elements’.59 Despite the criticism, Bennett and Pillay concede that:
The origins of the Natal Code lie in a decision – which was advanced
for the time – to recognise customary law. When Britain annexed Natal
in 1843 ... [a] conflicting strand of thinking in colonial policy, however,
demanded respect for local institutions. Hence, in 1848, a Royal
instruction announced that: ‘Her Majesty had not interfered with or
abrogated any law, custom or usage previously prevailing among the
native inhabitants, except so far as the same might be repugnant to
the general principles of humanity recognised throughout the whole
civilised world’.60
It is submitted that the traditional laws prohibiting or punishing certain conduct are
still necessary and must be used effectively in criminal courts to punish offences
associated with, for example, umuthi killings.
The SALC’s Report on Conflicts of Law has recommended that ‘no attempt should
be made to extend application of customary criminal law to other courts. Criminal
justice is an area where the country needs a unified system of law …’ 61 and that ‘to
broaden the scope of customary criminal law now would pose a major question of
policy …’62 Nevertheless, in recent times, the courts have given effect to customary
law defences even when the offender was charged and tried in terms of criminal law
under the common law and legislation.
365
Note that the SALC defended its recommendation by citing early cases of R
v Swartbooi,63 R v Mane64 and R v Sita,65 where the Courts held that violations of the
criminal law could not be successfully defended on the basis that the offence in
question was a recognised customary law practice.66 This seems not to be the
general position. There are other cases where the courts have accepted defences
based on customary law even where the accused were not prosecuted in terms of
customary law, but under the common law and legislation.
In S v Makhalemele,67 the accused was charged and convicted in the magistrates’
court of the theft of pigs. On appeal, he argued that he was the owner of the pigs and
he had entered into a customary law contract of mafisa/ukusisa68 with the
complainant. He argued that, being the owner of the pigs, customary law allowed
him to remove the livestock deposited with the complainant without his consent. In
accordance with customary law, this did not constitute animus furandi and
consequently could not constitute the crime of theft. The appeal court accepted the
defence and acquitted the appellant. If the appellant in Makhalemele69 had not raised
this unique customary law defence, he would have not succeeded on appeal as such
a defence is unknown in criminal law under the common law. South African criminal
law, which is based on the Roman concept of furtum possessionis, punishes the
owner who deprives the lawful possessor of his or her possessory interest or right
without his or her consent.70
In R v Sita,71 a man was charged with the abduction of a 14-year-old girl. During
the trial in the magistrates’ court, he raised the customary defence of ukuthwala. The
magistrate accepted the defence and acquitted the accused on the basis that it was
not a crime if a man abducted a woman under the ukuthwala custom for the purpose
of marriage. The State then appealed to the High Court. The High Court reversed the
decision of the magistrate, arguing that the consent of the father of the woman for
the marriage of his daughter was always required. In the circumstances, the accused
did not obtain such consent at the time of ukuthwala.
The decision of the court implies that, under the current law, where the consent of
the father of a woman is no longer required for marriage purposes,72 there is no
crime of abduction if a woman is carried away in accordance with the custom
of ukuthwala with her consent73 but not the consent of her father. This view is also
supported by the decision of the Court in S v Katelane.74 The accused was charged
with the abduction of an unmarried woman in contravention of section 162(1)(b) of
366
the Natal Code. The Court was of the opinion that the word ‘abduction’ in the Natal
Code had the same meaning as abduction under the common law. The Court ruled
that where an unmarried woman ‘leaves her home of her own accord, a subsequent
harbouring of her will not constitute abduction ...’75Further, referring to the case of R
v Pearston,76 the Court said that ‘if a person plays a passive role, providing neither
the physical means of leaving control nor inducement to do so, he does not commit
abduction, by taking a minor in or living with her after she has removed herself
from control’.77
The custom of ukuthwala may be raised as a valid defence in cases of abduction
where a woman was aware of the intentions of the man and consented to the
abduction for purposes of marriage. According to the reasoning of the Court in S
v Mxhamli,78 it would also seem that where a person is convicted of abduction and at
the time of the offence he had followed the custom of ukuthwala, the Court may
consider this to be a highly mitigating factor during sentencing.
In Makwanyane,79 the Court recognised the African customary principle
of ubuntu as one of the values underpinning the Constitution, particularly concerning
the question of criminal punishment.
From the cases surveyed, it is submitted that the courts should continue to apply
defences that are rooted in customary criminal law as long as they do not violate the
Constitution. As Bennett argues:
… one might be forgiven for thinking that the relationship between

customary and common law was finally settled, but an area still to be
explored is criminal law. In this regard, an issue that invites serious
consideration is what Anglo-American jurisdictions term a ‘cultural
defence’. This defence allows members of a minority culture to argue
that they should be completely acquitted of criminal charges, or their
culpability be at least mitigated, on the ground that their cultural
norms were the reason for the commission of the crimes.80
Generally, customary law places most emphasis on group rights, interests and
duties. Similarly, a crime is committed if the perpetrator’s conduct violates the
interests of the group, for example the family, clan or tribal community, as
represented by an individual, for example the family head, chief or king. Similarly,
367
based on the principle of co-liability, if any member of the group commits a crime, he
or she is punished together with the head of the group, for example the family head,
because the head of the group is generally liable for crimes committed by individual
members of the group.81
 Customary law is not homogeneous and it is not, generally, a penal system. It

is a system based on principles of restorative and healing justice.
 Under customary law, some crimes are committed against private individuals
(or a group of individuals) or the state or both. Because of this, many lawyers
have been unable to distinguish customary criminal law from the customary
law of delict.
 In modern times, fines and loss of status are the most common punishments,
while corporal punishment, banishment and execution have been outlawed in
South African law.
 Being a wizard is not a crime, but casting a spell on another person is a
criminal offence, particularly if this leads to the death of another person. In
addition, making any statement claiming that another person is a wizard is
defamatory and actionable in the customary law of delict, but may not be
punished criminally.
 The Witchcraft Suppression Act tries to discourage witchcraft by criminalising
five distinct practices associated with it.
 Customary law prohibits the defiance of the group leader, whether that person
is a king, chief or simply a family head. The offence is based on the African
values of inhlonipho or hlompho (respect). This implies that any conduct that a
leader considers to be disrespectful is punishable as an offence.
 The Natal and KwaZulu Codes and the BAA prescribe offences, some of
which were known in customary law.
 There are cases where the courts have accepted defences based on
customary law even though the offender was charged and tried in terms of
criminal law under the common law and legislation.
368
Common Law and The Indigenous Law Report on Conflicts of Law para 3.18.
3Hoctor, SV (2006) Comparing criminal law rules: A role for customary law
concepts Fundamina 12(1):168–83.
4Labuschagne, JMT and Van den Heever, JA (1991) Die oorsprong van die
onderskeid tussen die fenomene misdaad en delik in primigene
regstelsels Obiter 94(2):80–95 at 84.
5See ch 11 of this book for examples.
6Examples are discussed by Whitfield, GMB (1929) South African Native Law 444–
47. See also Mofokeng, LL (2009) Legal Pluralism in South Africa: Aspects of
African Customary, Muslim and Hindu Family Law 102–3.
7For a detailed discussion of this issue, see Hoctor (2006) 168–83.
8Act 51 of 1977.
9S 297 of the Criminal Procedures Act. Note further that s 300 provides as follows:
‘Where a person is convicted by a … court of an offence which has caused
damage to or loss of property (including money) belonging to some other
person, the court … may, upon the application of the injured person or of the
prosecutor acting on the instructions of the injured person, forthwith award the
injured person compensation for such damage or loss …’ S 301 provides that
any person who innocently bought stolen property from a thief may be
compensated for pecuniary loss from money recovered from the thief where
the court orders the return of such property to the true owner.
102008 (1) SACR 49 (T) paras 26, 34.
11See, for example, s 12(1)(a), (b) and (d) of the Traditional Leadership and
Governance Framework Act 41 of 2003 (TLGFA). See also s 30 of the Natal
Code of Zulu Law Proc R151 of 1987 and the KwaZulu Act on the Code of Zulu
Law 16 of 1985: ‘A family head or guardian … against whom a complaint is
made of having acted foolishly or prodigally in respect of such person or
property and who upon inquiry by the district officer is found to be unfit for his
position, may be suspended therefrom … and may be placed under … the
administration of some other person by the district officer, or such family head
is a chief … by the Director-General.’
369
12See s 30 of the Natal Codes of Zulu Law concerning the suspension of chiefs. See
also s 116(2) concerning the dismissal of official witnesses in KwaZulu-Natal.
13Whitfield (1929) 395.
14Act 38 of 1927. Ss 12, 20 and Schedule 3 of this Act that list the crimes excluded
from traditional courts’ jurisdiction remain in force while the major portion of the
Act has been repealed.
15Hammond-Tooke, WD ‘World-view I: A system of beliefs’ in Hammond-Tooke, WD
(ed) (1974) The Bantu-speaking Peoples of Southern Africa 2nd ed 318 at 336.
16See Mokhatle v Union Government 1926 AD 71 at 75–6.
17Most serious crimes included acts of witchcraft. See the opinion of Sachs J in S v
Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391;
[1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) para 377.
18Makwanyane paras 379–80.
19Morris, DR (1965/1993) The Washing of the Spears: The Rise and Fall of the Zulu
Nation 174–75. Reprinted with the kind permission of Simon & Schuster
Publishing Group from THE WASHING OF THE SPEARS: The Rise and Fall of
the Zulu Nation by Donald R Morris. Reprinted for eBook usage by kind
permission of Russell & Volkening as agents for the author. Copyright © 1965
by Donald R Morris. Copyright renewed © 1993 by Donald R Morris. All rights
reserved.
20Terblanche, SS (2007) Guide to Sentencing in South Africa 475.
21See s 20(2) of the BAA.
22See s 12(1)(a), (b) and (d) of the TLGFA.
23See the Abolition of Corporal Punishment Act 33 of 1997. See also S v
Williams (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861
(CC) (9 June 1995). See also Morell, R (2001) Corporal punishment in South
African schools: A neglected explanation for its existence South African Journal
of Education 21(4):292–99.
24S v Benn; S v Jordaan; S v Gabriels 2004 (2) SACR 156 (C).
25Makwanyane.
264 NAC 337 (1918).
27See the cases discussed below: S v Latha 2012 (2) SACR 30 (ECG); Metal and
Electrical Workers Union of SA obo Sibuyi v Wireforce Steelbar (Pty)
Ltd (2011) 32 ILJ 1481 (BCA); S v Alam 2006 (2) SACR 613 (Ck).
370
28Simanga Mankayi v Nosawusi Mbi-Maselana 4 NAC 337.
29Whitfield (1929) 415.
30Long title of the Witchcraft Suppression Act 3 of 1957.
31Act 3 of 1957.
322012 (2) SACR 30 (ECG) 36 and 38.
33S v Maluleke 2006 (1) SACR 402 (T).
34The statute clearly targets the criminalisation of many of the actions involved in
the identification of alleged witchcraft, such
as ukuphengula, ukunuka, ukuthakatha and ukubhula, all of which are
known in Zulu customary law. Between them, these concepts cover the whole
process from employing a witch finder or other diviner to the actual alleged
witchcraft.
35Mphumzi Zuzile ‘Miners took “invisible” muti’ Dispatch, 21 August 2012. Available
from http://www.globalpost.com/dispatch/news/regions/africa/south-
africa/120821/south-africa-striking-miners-thought-they-were-invincible-muti
36(2011) 32 ILJ 1481 (BCA). For further discussion, see Grogan, J (2011)
‘Labour’ Juta’s Quarterly Review of South African Law (2).
372006 (2) SACR 613 (Ck) paras (a) to (d) of part 1.
38Paras (a) to (f) of Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of
1997 read with s 51(1).
392012 (2) SACR 30 (ECG).
40S v Latha 34.
411955 (4) SA 247 (A) 256.
421961 (2) SA 751 (A) 757.
43S 2(9) of the BAA provided that ‘any person obstructing any officer, chief or
headman in the lawful execution of his duty or disobeying any lawful order of or
wilfully insulting such officer, chief or headman while acting in the course of his
duty or wilfully obstructing the proceedings of any meeting lawfully convened
by such officer, chief or headman in connection with his duty shall be guilty of
an offence; and in addition, any person, who wilfully insults any such officer,
chief or headman while presiding over a meeting convened by him in
connection with his duty or wilfully obstructs the proceedings of such meeting
may be removed therefrom and, if necessary, detained in custody by order of
such officer, chief or headman, until the conclusion of such meeting’. For a
371
discussion of the powers of traditional leaders generally, see ch 13 of this
book.
441962 (2) SA 264 (E).
45S v Matlapeng 1970 (1) SA 333 (T).
46S v Mngadi 1971 (2) SA 220 (N).
47R v Kumalo 1952 (1) SA 381 (A).
481923 AD 551.
49See generally S v Mngadi 1971 (2) SA 220 (N); Mokhatle v Union
Government 1926 AD 71; R v Phakane 1956 (3) SA 638 (E); R v Mpanza1946
AD 763.
50The Constitutional Court abolished the death penalty in Makwanyane.
511926 AD 71 at 76.
52See generally Bennett, TW and Pillay, A (2003) The Natal and KwaZulu Codes:
The case for repeal South African Journal on Human Rights19(2):217–38.
53See s 90(1) and (2) in Ch 11 and ss 115 and 117 in Ch 14 of the Natal Code of
Zulu Law.
54For further discussion of the issue of boundaries under contemporary legislation,
see ch 13 of this book.
55There is no limit to the amount that a chief may demand as lobolo for his
daughter’s marriage. However, there is a limit of 15 head of cattle or the
equivalent value in money for the marriage of the daughter, son, brother or
uncle of a chief and the chief’s deputy, induna headman and the chief’s official
witnesses. For any other woman, the maximum amount of lobolo is 10 head of
cattle.
56S 61(2) of the Natal Code of Zulu Law.
57See s 116(1) of the Natal Code of Zulu Law.
58It is not clear who the relevant officer would be today.
59Bennett and Pillay (2003) 217.
60Bennett and Pillay (2003) 218.
631916 EDL 170.
641948 (1) SA 196 (E).
651954 (4) SA 20 (E) at 22.
372
66SALC (1999) Report on Conflicts of Law para 3.19 fn 33.
671986 (2) SA 20 (O).
68S 1 of the Natal Code of Zulu Law defines ukusisa as ‘a custom whereby cattle or
other livestock are deposited by their owner with some other person on the
understanding that such person shall enjoy the use of them, but that the
ownership shall remain with and increase accrue to the depositor’.
691986 (2) SA 260 (C).
70R v Janoo 1959 (3) SA 107 (A).
711954 (4) SA 20 (E).
72See s 3 of the Recognition of Customary Marriages Act 120 of 1998 (RCMA).
Note that the consent of the guardians is required for the marriage of a woman
only if she is below the age of 18 years.
73For more readings on this aspect, see Curran, E and Bonthuys, E (2005)
Customary law and domestic violence in rural South African
communities South African Journal on Human Rights 21(4):607–35.
741973 (2) SA 230 (N).
75S v Kalelane 231.
761940 OPD 153.
77S v Kalelane 231G.
781992 (2) SACR 704 (Tk). See the opinion of Davies AJ at 706D.
79See paras 263 and 308. For more discussion on the African jurisprudence
of ubuntu and the criticisms of applying it in criminal law, see English, R (1996)
Ubuntu: The quest for an indigenous jurisprudence South African Journal on
80Bennett, TW (2010) The cultural defence and the custom of Thwala in South
African law University of Botswana Law Journal 10:3–26 at 4.
81Whitfield (1929) 395.
373
PART III
Political and civic aspects of African customary law
CHAPTER 13 Traditional leadership institutions
CHAPTER 14 Traditional courts
Chapter 13
Traditional leadership institutions

13.1 Introduction

13.2.1Pre-colonial political relations
13.2.2Traditional leadership during colonialism, Union and apartheid

councils under the Traditional Leadership and Governance Framework
Act 41 of 2003
13.3.1Key definitions
13.3.2Traditional community
13.3.3Traditional council
13.3.4Appointment and removal of traditional leaders
13.4 Powers and functions of a traditional council and leader
13.5 Funding
13.1 Introduction
This chapter discusses the nature, recognition, jurisdiction and resourcing of

traditional institutions. This is primarily governed by the Traditional Leadership and
Governance Framework Act (TLGFA)1 as well as its provincial subordinates.2 The
TLGFA has been in operation since 24 September 2004 and was amended in 2009.3
374
Living customary law is another source of law in this area.4 However, the
legislation mentioned above has curtailed the application of living customary law
because it was promulgated with the intention of regulating traditional leadership
institutions. To the extent that this chapter refers to living customary law pertaining to
governance, it draws on historical, sociological and anthropological scholarship
documenting such.
It is important to keep in mind that what we present here are only broad, general
principles. There are variations in practice from community to community as a result
of differences in culture and the variable impact of South Africa’s socio-political
history. In addition, the primary emphasis in this chapter is on senior traditional
leaders (formerly known as chiefs) and headmen/women because these are the
traditional authorities that exist most widely, rather than kings/queens and principal
traditional leaders.
Traditional leadership has been in existence in South Africa since pre-colonial
times. The colonial, Union and apartheid governments varied in their recognition of
traditional leadership on a regional basis and perceived it to be the central element
of customary law and governance of customary communities. However, according to
customary communities, traditional leadership was and is not necessarily the central
element of customary law and governance, as discussed below.
COUNTER
POINT
Is traditional leadership the defining element of customary law and

governance?
Traditional leadership has not always taken the same form or been defined by the
same source or form of law. The nature of traditional leadership has changed over
time through the attempts of colonial, Union and apartheid governments to influence
and use it for their own objectives. Therefore, the nature of traditional leadership
varies depending on whether we view it from the official or living customary law
perspective.
There is also variation in the detail of practice of living customary law between
different communities and cultural groups. Hence, some rural people contest the
prevailing paradigm that traditional leadership – as most centrally represented by
chiefs – is the defining element of customary law and governance. This chapter
375
discusses the official perspective in terms of the TLGFA and pre-democratic
legislation in light of the living customary law perspective. We first discuss briefly this
institution’s pre-colonial form followed by contemporary reality.
The TLGFA gives recognition to traditional leadership pursuant to section 211(1) of

the Constitution which recognises ‘the institution, status and role of traditional
leadership, according to customary law’ and subject to the Constitution. Section
212(1) also foresees that national legislation might give ‘traditional leadership as an
institution’ a role at local level with regard to issues concerning their local
communities.
PAUSE FOR
REFLECTION
Legal distinction between a ‘role’ and ‘function’

The TLGFA often uses the terms ‘role’ and ‘function’ interchangeably. However,
there is a legal distinction between the two. Also, the Constitution envisages that
traditional leaders may be granted a role but does not require that they be
given functions.5 A role is a part that someone may play albeit that this role may be
relatively devoid of power and/or may be simply ceremonial. A function, however,
has a specific, practical purpose that typically comes with some responsibility
together with whatever powers are necessary to carry out that purpose.
This chapter deals with the questions that the TLGFA tries to answer. Mainly, how
can we ameliorate the legacy of tribes that were mixed and matched under Union
and apartheid legislation and tribal authorities who were illegitimately appointed over
tribes so established, most notably by the Black Administration Act (BAA)6 and the
Black Authorities Act?7
The possible solutions were most obviously twofold. The first solution was to
dismantle entirely the tribes and constitute them anew either by a method prescribed
by government or by freely allowing the community members to decide on whether
and how to constitute themselves and then to request formal recognition of their
community and leaders. The second solution was to retain the tribal authorities and
existing jurisdictional boundaries and initially attempt to reform them in some key
ways. Then, a special commission could oversee the process of making profound
376
changes over a lengthy period of time.8 With the TLGFA, the government has
chosen the second solution.
Shilubana v Nwamitwa9 tells us that we must identify living customary law by looking
at the traditions and present practice of communities.10 It is for this reason that the
pre-colonial reality of traditional authority is relevant here. However, the colonial,
Union and apartheid governments had a significant effect on the nature of
governance of customary communities and established the legislative precedents
and legacy that the present-day government has had to overturn.
13.2.1 Pre-colonial political relations
Terminology
ukukhonza means in the Nguni languages to give allegiance – people indicated that they were
joining a particular chief by giving a gift as a show of allegiance which was part of the
reciprocal arrangement between the traditional leader and his followers described
below
We often hear the phrase, ‘A chief is a chief by the people’ (in vernacular, ‘inkosi
yinkosi ngabantu’ or ‘morena ke morena ka batho’). What this described in pre-
colonial times was the fact that the personal relationship between a chief and his
people, without whom he had no chiefdom, was paramount.11 Put differently, the
phrase symbolised the mutual dependency between them. Through this relationship,
the people received:
•land on which to live and establish their livelihood
•protection of the territory in which they had their homestead through war if
necessary and against other individuals through the resolution of disputes
•assistance with rain-making
•propitiation of the ancestors
•punishment of witches.
In return, the chief received:

•followers – people to follow him
•labour and services where his people worked in his fields and fought in his army
377
•tributes such as a small portion of their produce and hunt.
Power and significance were therefore not only the chief’s but were distributed
relatively equally between him and his people.12
Chiefs could not be unbridled dictators as they were under much pressure to rule
fairly. Most chiefs faced the ongoing threat of competition from within and could
therefore be displaced by a competitor if they were not accountable to and willing to
listen to their followers, even the dissident voices among them.13 Moreover, because
land was abundant and people could easily secede if a chief did not rule in a way of
which the people approved, chiefs had an incentive to rule well.14 This is why,
despite common myths, there was actually heterogeneity in pre-colonial society:
there was much contestation and fragmentation in pre-colonial society due to
resistance to unjust, corrupt, incompetent or merely unsupported leaders.15
As a preventative accountability measure, chiefs were not
independent actors.16 They typically depended on and ruled with their councils.
These councils were made up of men who were chosen because they had popular
support, or based on their achievements, or because they represented a
substantial subgroup.17 A chief’s council communicated the will of the people and the
chief was required to consult with the council prior to making
significant decisions.18 While politically diverse:
vital to the social and political fabric of South African society were
forms of chieftainship that contained key elements of both
consultation and political competition, which ensured that the
interests and opinions of commoners could not be easily ignored.19
In pre-colonial times, traditional leadership obviously took on a different meaning

from what it would later do and has come to be assumed to mean. Rather than
governance in the sense of top-down authority, it referred
20
to stewardship. Therefore, an important dimension of traditional leadership was
that there were not only two levels of community, the individual subject and the chief
dictator, as illustrated in Figure 13.1. Rather, social organisation was layered with
much responsibility and authority resting at the lowest group level: that of
the family.21 Household heads therefore had political authority and administrative
oversight over the residence, its resources and its members, the clan or village had
378
this over the ward or village, while the chief had it over the community
at large.22Decisions were therefore typically made inclusively, with council
involvement in each sphere, at the most local level, and escalated to the next level
only if unresolvable at the lowest level as illustrated in Figure 13.2.23 This means that
the bulk of decisions were made locally. The idea of a chief who has authority over
every aspect of life of the customary community is therefore a fallacy.24
Chief
Community
(Individual)
Figure 13.1 Typical conception of traditional leadership
Nation/ Tribe’
Clan/ Village
Family
379
Figure 13.2 The reality on the ground of traditional leadership
Figure 13.1 illustrates how the relationship between a chief and the rest of the
community is typically conceived, particularly in light of the colonial, Union and
apartheid perceptions. Authority is often thought to be concentrated at the top of the
triangle with or in the chief.25 By contrast to Figure 13.1, in pre-colonial times, recent
history and present reality in most researched communities in South Africa,26 the
highest concentration of authority rests with the lowest level of social organisation:
the family. Matters that cannot be resolved at the lowest level – by virtue of difficulty,
complexity or their being of broader concern – will be transferred up through the
system until they reach the chief if ever they do reach him. Indeed, ultimate
responsibility in terms of oversight rests with the chief and the community’s council
but his or her role is by no means central to or definitive of customary law and
governance. It is also important to recognise the multilayered nature of authority and
the fact that multiple actors are involved in governance and decision making at each
level. For instance, there are councils forming the forums at each level and headmen
and sometimes headwomen as well as subheadmen are often involved between the
levels of the chief and the family in the wards and subwards that are the units
of administration.27
13.2.2 Traditional leadership during colonialism, Union and apartheid
Terminology
tribal the administrative councils that were established over tribes under the Black
authorities Authorities Act, comprising chiefs and a number of male councillors (usually six to
nine) specified in proclamations
The version of traditional leadership conceived in legislation from the previous

century stands at odds with that described above. Colonial, Union and apartheid
governments secured the political interests of some of the chiefs but not those of the
ordinary people. The idea that a chief’s legitimacy depends on the people was done
380
away with as the government made it clear that chiefs were recognised and
legitimised by the government.28 In terms of section 2(7) of the BAA, chiefs were to
be recognised by the Governor-General. The Governor-General had the power to
relocate and unite or subdivide tribes according to the public interests defined by
the state.29 He also had the power to demote and elevate chiefs.
This was true also of tribal authorities under the Black Authorities Act. Section
4(1)(d) states that a tribal authority must ‘generally exercise such powers and
perform such functions and duties as within the opinion of the Governor-General fall
within the sphere of tribal administration and as he may assign to that tribal
authority’. This sentiment is reinforced by a number of cases from around the time
when the Black Authorities Act was enacted and came into operation. The Court in R
v Kumalo30 found that because the chief had received a written appointment under
section 2(7) of the BAA, he had a responsibility to recognise and follow the rights
and responsibilities that came with the position. The Court in that case cited the
testimony received from the chief headman of the Clau Clau Native Reserve that
they ‘must obey law of White man’.31 The Court in Mosii v Motseoakhumo concluded
that ‘the Chief owes allegiance to the Crown only’.32 In Monakgotla v Minister
of Native Affairs, the Court held that ‘[the chief] is responsible for maintaining law
and order and for carrying out the instructions and requirements of
the Government’.33
The councils were slowly squeezed out of the process as their role became less
central, particularly in the first half of the twentieth century.34 In the early stages,
chiefs’ powers – especially over land – had not been thought to be autocratic but
with time, this view changed, particularly in the courts, as is apparent in the
discussion below.
PAUSE FOR
REFLECTION
Autocratisation of chiefly power

The case of Hermansberg Mission Society v The Commissioner for Native Affairs
and Darius Mogalie35 dealt with the capacity of the chief to enter into agreements
specifically relating to the transfer of land title on behalf of the tribe. The Court held
that the consent of all tribal people was not necessary but the unanimous consent of
the headmen was sufficient to justify alienation. Also, in Mogale v Engelbrecht,36 the
381
Court found that a chief must obtain the consent of a majority of his councilmen
before he can sue on an issue related to the transfer of land.
About two decades later, however, in Mokhatle v Union Government,37 the Court
suggested that democracy is ill-suited to natives and ruled in favour of chiefly
hegemony and thus that of the state. The Court noted that ‘[t]he Government today
has the power the old chiefs exercised’.38 The case concerned the expulsion of nine
members of the Bafokeng tribe in the Transvaal province for maintaining an
unauthorised council and undermining the recognised tribal authorities.
In the mid-twentieth century, legislation reinstated traditional councils in their formal

role. Under sections 2 and 3 of the Black Authorities Act, the State President was
permitted to establish ‘tribal authorities’ to govern ‘tribes’. This entrenched the false
territorially-based jurisdictional borders that had been established under the BAA or
newly established under section 3(5) of the Black Authorities Act. The tribal
authorities were clearly subordinate to the chief and, most importantly, the ‘Supreme
Chief’ who was the State President. Their role was to assist the chief of the tribe in
carrying out the ‘powers, functions or duties conferred or imposed upon’ the
traditional leader ‘under any law’ of the government.39 However, these new
conceptions of African governance did not go unchallenged by the resistance politics
of the time.
COUNTER
POINT
Objections made to prevailing notions of African governance

Leaders of the anti-apartheid movement raised objections to the apartheid
conceptions of African chiefs’ powers as articulated in the Black Authorities Act.
Nelson Mandela said:
[I]n South Africa, we all know full well that no Chief can retain his post
unless he submits to Verwoerd, and many Chiefs who sought the
interest of their people before position and self-advancement have,
like President Lutuli, been deposed ... Thus, the proposed Bantu
Authorities will not be, in any sense of the term, representative
or democratic.40
382
Albert Luthuli noted:
The modes of government proposed are a caricature. They are neither

democratic nor African. The Act makes our chiefs, quite
straightforwardly and simply, into minor puppets and agents of the
Big Dictator. They are answerable to him and to him only, never to
their people. The whites have made a mockery of the type of rule we
knew. Their attempts to substitute dictatorship for what they have
efficiently destroyed do not deceive us.41
Govan Mbeki observed:
Many Chiefs and headmen found that once they had committed
themselves to supporting Bantu Authorities, an immense chasm
developed between them and the people. Gone was the old give-and-
take of tribal consultation, and in its place there was now the
autocratic power bestowed on the more ambitious Chiefs, who
became arrogant in the knowledge that government might was
behind them.42
In addition, because land was in short and ever-decreasing supply, ordinary people
lost their main source of livelihood. They also simultaneously lost both the possibility
of political contestation between candidates for chieftaincy that was decided by the
support of the people and the possibility of secession. Secession was the ultimate
way for people to protest against unpopular chiefs and to force corrupt chiefs to
be accountable.43 Personal allegiance no longer defined chiefs’ jurisdictions. Rather,
their jurisdictions were defined by territorial boundaries set by the government as it
divided and amalgamated tribes at will. Thus, ordinary people no longer had a say in
who should lead them. As regards secession and relocation, it is notable also that,
for example, section 3(2) of the KwaZulu Act on the Code of Zulu Law44 and the
Natal Code of Zulu Law45 made relocating to another chiefdom without prior
permission an offence. Section 31(1)(m) of the Administrative Authorities Act
(Ciskei)46 criminalised a traditional leader’s incitement or assistance in secession.
Further, labour migration meant that homesteads had too few hands for their
subsistence farming and yet chiefs were granted taxation powers unlike any
383
reciprocal entitlements they had previously had to tributes. Sections 8 and 9 of the
Black Authorities Act provided for treasuries to be established into which customary
and statutory tribal levies, fees, fines, property gains and profits from all these had to
be collected. Traditional leaders were established as core instruments of influx
control. This was the management of black people’s access to the urban areas.
Traditional leaders held the power to grant or deny work permits to their subjects,
subject to the payment of levies, under the ‘call-in card levy’ system.47
The government’s basic assumption was that every black community was a
language-based tribe and therefore had to be assigned to a language-based
homeland and placed under the control of a chief.48 However, there were places
where that assumption clearly would not work without leading to excessive revolt.
Thus, the government amended the Black Authorities Act in 1964 to accommodate
what were called ‘community authorities’.49 These were authorities present in black
communities that had either too much diversity (especially where the people had
come together to buy land) or elected leadership in the form of a headman or
committee of community members. In other words, there were not traditional
authorities over every black community and some communities were based on
quasi-voluntary association and/or had elected leadership. Needless to say, this
inducement was created to encourage the chiefs’ cooperation in colonial and
apartheid governance. Unfortunately, this led to the autocratisation of traditional
leadership.
PAUSE FOR
REFLECTION
Inducements for chiefs to participate in and allow the autocratisation process

to take place
The apartheid government made it difficult for traditional leaders to resist the
pressure to cooperate with it in the oppression of their people.50As observed by
Nelson Mandela above, those traditional leaders who would not cooperate lost their
positions, while those who cooperated were given higher positions. Some were
promoted to paramount chiefs or the figureheads of the bantustans that were
subsequently formed. They were also given bigger pieces of land over which to
govern, independence, unaccountable power and wealth.51
384
councils under the Traditional Leadership and Governance Framework Act
41 of 2003
The TLGFA provides the terms for the recognition of traditional leaders, communities
and councils. With this recognition comes the issue of the form of customary law (in
other words, living or official) that constitutes the framework for the functioning of
these structures.
PAUSE FOR
REFLECTION
Does the flexibility of living customary law apply to traditional leadership?

As discussed in the introduction, presented with the choice between undoing all the
structures of the immediate past to establish an opt-in system or retaining these
structures to establish an opt-out system that would unfold over a lengthy period of
time, the government has chosen the latter. Also presented with the options of
creating a fluid and primarily elective system or a rigid and hierarchical system, the
government has chosen the latter.
Although customary law is not defined in the TLGFA, the choices the government
has made raise questions about the degree of flexibility inherent in the government’s
working definition of customary law which would seem to be rather inelastic. By
contrast, the definition given to customary law by the Constitutional Court suggests
that communities have the freedom – bridled only by the Constitution – to develop
customary law as they please.
In Gumede v President of the Republic of South Africa, Moseneke J said:
During colonial times, the great difficulty resided in the fact that
customary law was entirely prevented from evolving and adapting as
the changing circumstances of the communities required.52
The Court in Alexkor Ltd v Richtersveld Community observed:
It is important to note that indigenous 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.53
385
In the case of Shilubana, which dealt with changes by a community of its method of
succession to the position of senior traditional leader, the Constitutional Court found:
As has been repeatedly emphasised by this and other courts,

customary law is by its nature a constantly evolving system. Under
pre-democratic colonial and apartheid regimes, this development was
frustrated and customary law stagnated. This stagnation should not
continue, and the free development by communities of their own laws
to meet the needs of a rapidly changing society must be respected
and facilitated.54
These sentiments are in keeping with section 39(3) of the Constitution which allows
for the existence of rights and freedoms that are not contained in the Bill of Rights
but in legislation, common law and customary law as long as they comply with the
Constitution.
Equally important to the recognition of traditional leadership institutions was the

establishment of the Commission on Traditional Leadership Disputes and Claims
(Commission). The Commission is important to the understanding of the legislation
and jurisprudence concerning traditional leadership institutions. The Commission
was established in terms of section 22 of the TLGFA and its functions are defined by
section 25. In terms of section 25:
(2) (a) The Commission has authority to investigate and make

recommendations on –
(i) a case where there is doubt as to whether a kingship, or principal
traditional leadership, senior traditional leadership or
headmanship was established in accordance with customary law
and customs;
(ii) a case where there is doubt as to whether a principal traditional
leadership, senior traditional leadership or headmanship was
established in accordance with customary law and customs;
(iii) a traditional leadership position where the title or right of the
incumbent is contested;
386
(iv) claims by communities to be recognised as kingships,
queenships, principal traditional communities, traditional
communities, or headmanships;
(v) the legitimacy of the establishment or disestablishment of ‘tribes’
or headmanships;
(vi) disputes resulting from the determination of traditional authority
boundaries as a result of merging or division of ‘tribes’;
(viii) all traditional leadership claims and disputes dating from 1
September 1927 to the coming into operation of provincial
legislation dealing with traditional leadership and governance
matters; and
(ix) gender-related disputes relating to traditional leadership positions
arising after 27 April 1994.
The term of office of the original Commission created by the legislation passed in
2003 came to an end in 201055 but it was succeeded by the current Commission
whose members were appointed for five years, starting on 1 January 2011, in terms
of the Traditional Leadership and Governance Framework Amendment Act.56 The
current Commission is required to finalise the claims lodged with its predecessor
which number over 1 300.57
13.3.1 Key definitions
Terminology
chiefs under apartheid are now called traditional leaders in the current dispensation
tribal have been renamed traditional councils and are supposed to be reconstituted as
authorities described below
Section 8 of the TLGFA establishes a hierarchy of traditional leadership positions for

recognition:
 kingship or queenship
 principal traditional leadership (added by the amendment in 2009)
 senior traditional leadership (in common parlance, chieftainship)
 headmanship.
387
These terms are defined in section 1. The hierarchy of status frames and is
maintained throughout the legislation as it defines the jurisdiction, appointments,
roles and functions of each leadership position.
In terms of definitions, a ‘senior traditional leader’ is said to be a ‘traditional
leader’ of a precise ‘traditional community’ who either exercises authority over some
headmen or headwomen in terms of customary law,58 or simply has some headmen
or headwomen exercising authority in his or her area of jurisdiction. ‘Traditional
leader’ is a wider term that refers to any individual who holds a position of ‘traditional
leadership’ according to his or her traditional community’s customary law and who is
also recognised by law.
‘Traditional leadership’, according to the TLGFA, refers to the institutional and
governance structures, systems and processes that exist under customary law and
that are recognised and observed by traditional communities. The definitions
therefore suggest that customary law is the condition on which recognition is to be
given. However, the TLGFA also makes clear that it is recognition and assignment of
particular ‘status, role and functions’ by government in terms of the Act rather than
the traditional leader’s own community that is definitive of the traditional leader’s
position as such.59
The transitional arrangements outlined in section 28(1) of the TLGFA deem a
traditional leader who was appointed as such under relevant prior legislation and
whose status had not been revoked at the time the Act came into operation to be
recognised as such in terms of the appointment sections we discuss in the following
section. The condition set for such recognition is the finding by the Commission that
the traditional leader was legitimate.
A headman or headwoman is defined as the converse of a traditional leader –
that is, a person who, in terms of customary law and as recognised by the TLGFA, is
either subject to the authority of a senior traditional leader or who simply exercises
authority in the senior traditional leader’s jurisdiction. However, the TLGFA is silent
on some situations and this creates a gap in the law as it applies to a number of
communities.
COUNTER
POINT
A gap in the law
388
The TLGFA does not say what is to happen in the event that, in terms of the
customary law of a single community, a particular element of the hierarchy it
establishes does not exist. The Act makes the assumption that all traditional
communities are subject to the ‘political overlordship’60 of a senior traditional leader.
With only two possible scenarios provided for in terms of the relationship between
headman and chief, for example, the TLGFA does not provide for instances where
the headman is, in fact, the highest authority in a traditional community and therefore
has no senior traditional leader over him.
The TLGFA also assumes that traditional leadership is the distinguishing feature
that makes a community traditional. It therefore does not provide for a situation
where a traditional community may have developed alternative leadership in terms of
its living customary law.
13.3.2 Traditional community
In terms of section 2 of the TLGFA, a traditional community is recognised as such on

two conditions: first, that it is ‘subject to a system of traditional leadership’ in
accordance with its customary law, and second, that it functions under a system of
customary law. The TLGFA provides for some consultation with the community to be
recognised as a traditional community although this is to be detailed in provincial
legislation. The TLGFA also encourages transformation, such as greater equality in
royal succession.
Under the transitional arrangements, section 28(3) of the TLGFA provides that a
‘tribe’ that existed as such in terms of the law at the time the Act came into operation
is deemed a traditional community under section 2 of the TLGFA. This means that
the territorial boundaries of the traditional community are those boundaries that were
established in the latter half of the twentieth century. In light of the fact that a senior
traditional leader61 is to be recognised relative to a specific traditional community, the
community’s territorial boundaries serve as the senior traditional leader’s
jurisdictional boundaries. These are the tribal boundaries that section 28(3) deems to
persist.
The continuation of the recognition of a ‘tribe’ as a traditional community is subject
to the condition that it does not have its recognition subsequently withdrawn either
on the basis of section 7, which allows for limited terms on which a traditional
389
community’s status can be formally withdrawn, or a finding by the Commission under
section 26 that requires this.
PAUSE FOR
REFLECTION
Terms for withdrawal of recognition

The terms are limited for the withdrawal of recognition of traditional communities as
the tribes established under the BAA in terms of section 7 and as mentioned in
section 28(3) of the TLGFA. Withdrawal of recognition can only be considered when:
•the traditional community requests the Premier to withdraw its recognition as a
whole
•the province is asked to review the circumstances of communities subdivided and
amalgamated under colonial, Union and apartheid legislation
•two or more communities request the Premier to recognise them as a single
traditional community.
In terms of the second category of withdrawal that may be contemplated under the
legislation, the Premier is required to consider the recognition of separate
communities or a merged community if the review shows that this is necessary. The
Premier is under no obligation to grant such recognition.
What appears to be absent as a stand-alone category is the possibility that a
minority group of members of a community wants to withdraw from the traditional
community and form an independent community. This applies particularly when they
seek this recognition on grounds independent of apartheid, for example on the basis
of wanting to reform their governance or in reaction to unfavourable consequences
of contemporary legislation.
A simple example will illustrate the point. In terms of section 28(5) of the TLGFA,
community authorities are to be disestablished. The TLGFA does not explicitly say
what is to take their place. However, it is clear from the breadth of the terms of the
TLGFA that tribal authorities, now named traditional councils, are the default
position. In situations where community authority boundaries were located within
tribal boundaries, this would make some communities that have not previously been
part of the still-recognised traditional communities new parts of these recognised
communities. The people who form a subgroup of the traditional community may
390
wish to apply to withdraw formally from the traditional communities of which they find
themselves a part.
Several pieces of legislation define a community as a group of people, or portion

thereof, who share rules governing common resources and who choose to exist as a
single entity.62 Such a definition, had it been adopted in the TLGFA, would allow
subsections of formally recognised tribes to withdraw, if they so wished, without
needing the rest of the traditional community’s support. This seems most in keeping
with the principle of living customary law that communities are formed by personal
affiliation and the choice to associate with one another. Moreover, section 235 of the
Constitution states:
The right of the South African people as a whole to self-determination,

as manifested in this Constitution, does not preclude, within the
framework of this right, recognition of the notion of the right of self-
determination of any community sharing a common cultural and
language heritage, within a territorial entity in the Republic or in any
other way, determined by national legislation.
COUNTER
POINT
A denial of the right to self-determination of minority groups in traditional

communities
The foregoing provision suggests a definition of community that rests on a shared
cultural and linguistic heritage rather than the politico-legal construct of ‘tribe’. It
suggests that the national government may give effect to the right to self-
determination of such a community through legislation. As the legislation regulating
this arena, the TLGFA does not give effect to this right.
13.3.3 Traditional council
Once a Premier has granted recognition to a traditional community, they must

establish a traditional council according to the guidance provided in provincial
legislation pursuant to section 3 of the TLGFA. This guidance pertains to elections of
some members of the council, for instance. The number of councillors was originally
391
set at 30 but this provision was amended in 2009 to allow for variation between
differently sized communities and their respective needs. Therefore, the Premier can
gazette a formula for determining the appropriate number for a community. The
Premier must consult the provincial house of traditional leaders on this formula. In
addition, the Premier takes his or her guidance from a notice that is to be gazetted
by the Minister.
The most significant change that section 3 of the TLGFA introduces is the
requirement that at least one third of councillors be women. This requirement is,
however, qualified and provides that an exemption may be granted where it can be
proven that the women available for participation do not satisfy that minimum
numerical threshold. Section 3 of the TLGFA also arrives at the compromise of
allowing senior traditional leaders to appoint 60% of the councillors who may be
traditional leaders or ordinary members of the community. The remaining 40% are to
be ‘democratically elected’.
With regard to gender representativity, it should be noted that the courts have
given effect to gender equality in decisions concerning women vying to be
recognised as traditional leaders.
In the case of No-Italy Phindiwe Mtirara v MEC for Housing, Local Government
and Traditional Affairs,63 the Eastern Cape High Court found that the deceased
chief’s widow could be appointed a chieftainess and regent on behalf of her son who
was not yet of age. She could no longer be disqualified on the basis of her gender
because of the elimination of gender discrimination in customary law decided in Bhe
v Khayelitsha Magistrate.64
In the case of Shilubana, the Constitutional Court also found that the community’s
development of its law to appoint a woman as a traditional leader was acceptable
under our Constitution. This was so even if this was not consistent with the traditions
of the community pre-dating the Constitution.
COUNTER
POINT
Rendering traditional councils democratic

The TLGFA attempts to strike a balance between the claim that traditional leaders
customarily appointed councillors and the argument that people customarily had a
say in the appointment of councillors and even elected them in some places. In
392
support of the latter argument, people cite democracy under the Constitution as
creating an imperative for people’s participation by means of electing their leaders.
Given the 60:40 split on which the TLGFA settles, some people have raised
concerns about 40% being insufficient to render the councils democratic. Moreover,
the argument is sometimes raised that a one-third minimum of women on the council
is also not sufficient as it could become a ceiling.
The transitional arrangement provided for under section 28(4) of the TLGFA is that a
‘tribal authority’ already recognised when the Act came into effect is deemed a
traditional council under section 3 and is therefore required to perform the functions
given to traditional councils. This is on condition that a traditional authority complies
with section 3(2) within a given period. Initially, the period given was one year, then
provincial legislation extended the period to two years, and in 2009, it was extended
to 24 September 2011. It would seem that any traditional authorities that have not
held elections and transformed the composition of their councils to include women
are doing so illegally if they continue to perform the functions of traditional councils.
13.3.4 Appointment and removal of traditional leaders
Terminology
royal family ‘the core customary institution or structure consisting of immediate relatives of the
ruling family within a traditional community, who have been identified in terms of
custom, and includes, where applicable, other family members who are close
relatives of the ruling family’65
hereditary the system by which one traditional leader replaces another traditional leader by
succession virtue of inheritance of the position. Under this form of succession, the new
traditional leader is a blood relation of the old traditional leader and must be related
to a degree determined by the customary law of the community. Usually, this
means male primogeniture: the oldest son will therefore be first in line to inherit the
position. However, this principle is variably applied between communities, for
example the heir may be the oldest son of the first wife, the oldest son of the wife
whose lobolo was paid for by the community or the oldest son of the wife from the
most esteemed family66
393
When a senior traditional leader or headman or headwoman is to be appointed,
section 11(1) of the TLGFA requires the royal familyto act within a reasonable time
and ‘with due regard to applicable customary law’ in identifying a person whom
customary law would permit to serve in the relevant traditional leadership position.
Conviction of an offence subject to a year’s imprisonment, severe physical or mental
disability, or violation of a customary law or norm of sufficient significance
disqualifies a person from appointment.67
The Premier is to be informed of the person whom the royal family has identified
for the position and why. The Premier must then recognise the person in keeping
with provincial legislation. This legislation may provide for headmen or headwomen
to be elected or appointed according to customary law and for the Premier’s
consultation with the relevant traditional council.68 The Premier’s obligation in this
regard holds only so long as there is no suggestion or proof that the person was
identified other than in terms of ‘customary law, customs or processes’.69 If there is
such a problem with the person’s appointment, the Premier may hand the matter
over to the provincial house of traditional leaders for it to recommend a solution.
Alternatively, the Premier may refuse the person a certificate of recognition. In this
case, the Premier must also have the royal family revisit and resolve the matter.
COUNTER
POINT
Substantial and procedural difficulties with the appointment provision

The appointment provision raises a number of issues. On the one hand, the
appointment provision assumes the existence of a royal family. This further suggests
a presumption in favour of hereditary succession. On the other hand, in the case of
headmen and headwomen, the TLGFA provides for the possibility of election or
appointment. This provision is phrased as an option that the provincial legislature
can recognise at its discretion. It is unclear what remedy, other than challenging the
legislation on constitutional grounds, is available for a community that customarily
elects its headmen or headwomen where the provincial legislation – such as that of
the Eastern Cape70 – does not provide for this avenue. Moreover, there is no
provision in the TLGFA for the possibility of election or appointment with regard to
senior traditional leaders. This, therefore, seems to exclude categories such
as iziphakanyiswa. These are recognised chiefs who have been elected in KwaZulu-
394
Natal. It also suggests that the KwaZulu-Natal Traditional Leadership and
Governance Act, which does provide for iziphakanyiswa, is in violation of the TLGFA.
There is no provision for the Premier to consult with the traditional community prior
to appointing the relevant traditional leader. It is optional for the provincial legislature
to provide for consultation with the traditional council. Hence, the only way in which a
Premier may find out that the identification of a traditional leader has taken place in a
manner contrary to customary law would be when the matter is brought to his or her
attention by people seeking to lay a grievance.
It is unclear why the option to consult the provincial house of traditional leaders is
an alternative to the Premier’s refusal to issue a certificate and, thus, sending the
matter back to the royal family. It is further unclear whether a concern such as that of
an unduly appointed person identified as a public office bearer71 should be resolved
by referring it back to the royal family as the TLGFA provides. It appears that there is
no sanction provided in the TLGFA for cases where it may be found that the royal
family had unduly appointed an office bearer wilfully. The person would therefore
have no choice but to litigate. In any case, as the case of Dudumayo
v Dalasile72 demonstrates, the TLGFA process can always be circumvented by going
directly to the courts.
In this case, Mkhanyiseli Dudumayo petitioned the court to order the Premier of
the Eastern Cape to consider allowing him to be sworn in as headman of Maphuzi in
Mqanduli. His 77-year-old uncle, Mhlabunzima Dalasile, held the title but, as the son
of the late headman of this area, Daliwonga Dudumayo, Mkhanyiseli Dudumayo,
aged 33, argued that he had been wrongfully overlooked as he should have inherited
the position. The judge concluded that Dalasile was not the customary heir of this
position. The Court also held that the process followed in Dalasile’s appointment had
not complied with the TLGFA and the Traditional Leadership and Governance Act
(Eastern Cape) of 2005.73Dudumayo received the order for which he had petitioned
the court.
The case of Thulare v Thulare74 shows that the court will not tolerate persons
simply exercising the functions of a traditional leader without first formally obtaining
the title of traditional leader through the review, removal and appointment process
spelt out in the TLGFA. However, it also illustrates that the TLGFA has turned
disputes about authority, which would historically have taken place as political
conflicts in the relevant political unit, into legal disputes to be settled by the courts.
395
In Thulare v Thulare,75 although the court says that the facts are somewhat
unclear and contested, it seems that the traditional leader of Marota Marulaneng
Village in Lebowa (now part of Limpopo) had died by assassination. On the
traditional leader’s death, his brother, Seraki Thulare, was appointed as acting
traditional leader. He was also meant to father a son on behalf of his brother who
had died while traditional leader. This son would succeed Seraki Thulare’s brother as
the traditional leader of their community. This was according to their culture.
However, Sekwati Thulare, who was his father’s stepbrother, applied to the court to
prevent Seraki Thulare’s inauguration as acting traditional leader from proceeding.
His application failed.
Sekwati Thulare was supposedly the same uncle who had attempted a coup
during the reign of Seraki Thulare’s brother. Seraki Thulare had a certificate dated
1992 that formally recognised him as the acting traditional leader of the community.
Yet, his uncle, Sekwati Thulare, continued to perform certain functions as though he
were the legitimate traditional leader. This was why Seraki Thulare applied to the
court for an interdict against his uncle. However, Sekwati Thulare disputed the
legitimacy of Seraki Thulare’s appointment and recognition (and that of Seraki
Thulare’s brother before him) on the basis of a technicality pertaining to the
succession rules of the community. Sekwati Thulare lost the case and was, hence,
interdicted from continuing to perform the functions that he was doing. He was
instructed to employ a formal review process in terms of the TLGFA to challenge
Seraki Thulare’s appointment.
The proposition that issues of traditional authority have become more than political
conflicts is evident from the judgment of the Constitutional Court in Sigcau v
President of the Republic of South Africa.76 The Court ruled that ‘the institution of
traditional leadership and the determination of who should hold positions of
traditional leadership have important constitutional dimensions’.77Referring
specifically to the matter before the Court, it stated:
Resolution of this festering dispute troubling the amaMpondo [the

dispute had been going on for about seventy-five years78] needs to be
constitutionally clarified. It is in the interests of justice to do so.79
396
In Sigcau, the decision of the Constitutional Court turned on the differences between
the old and the new amended TLGFA.80 Briefly, the circumstances were that the
Commission had decided that one of the respondents, Zanoku Sigcau, was the
rightful king of the amaMpondo aseQaukeni in the place of the incumbent, the
applicant, Justice Sigcau. The latter applied to the High Court to set aside the
decision of the Commission, but he was unsuccessful. His attempt to apply for leave
to appeal to the Supreme Court of Appeal (SCA) also failed. He then sought leave to
appeal against the High Court judgment in the Constitutional Court which granted
him leave to appeal.
In the Constitutional Court he claimed, inter alia, that the High Court had erred in
not finding that the Commission had arrived at a wrong decision by finding that one
of the respondents and not the applicant was the rightful king. The matter was
decided on a technicality that the decision of the Commission was announced by the
President of the Republic on the basis of the new amended TLGFA instead of the old
unamended TLGFA.
The Court ruled in favour of the applicant and set aside the decision of the High
Court. Having come to this decision, the Court found it unnecessary to deal with any
of the other issues on which the applicant had based his appeal. One of these issues
– the approach of the Commission and the President to the appointment of a king
under customary law – is of interest because it concerns the concept of living
customary law.
PAUSE FOR
REFLECTION
The approach to the appointment of a king under customary law

The Centre for Law and Society (Centre) had been admitted as a friend of the Court
(amicus curiae) in Sigcau. In its submission, it argued, in our view correctly, that the
process of appointing a king under customary law entailed a recognition of the
Constitutional Court’s jurisprudence on living customary law.81 In other words, the
Court should pay attention to the current practices of communities regarding the
appointment of traditional leaders rather than relying purely on statutory provisions.
The Centre argued further that:
397
historical ‘rules’ or ‘principles’ of customary law were often after-the-
fact rationalisations of what was in its ‘living’ aspect, pragmatic
decisions based on what best served the community; and that this
approach was not apparent in the President’s and the
Commission’s approach.82
The removal provisions are similar to the appointment provisions. A traditional leader
may be removed on the grounds on which he or she cannot be appointed, as well as
on the basis that he or she was wrongfully appointed. A peculiarity exists in that the
TLGFA uses the permissive ‘may’. This implies that the royal family may also
choose not to remove a person on these grounds. This may be consistent with an
apparent presumption in the appointment and removal provisions of hereditary
succession. However, when the royal family becomes aware of such grounds and
elects to remove the traditional leader, it must timeously notify the Premier of the
decision and its reasons. Another peculiarity of the removal provision concerns the
participation of the community and other relevant traditional institutions.
PAUSE FOR
REFLECTION
A place for community participation in electing and removing leaders

As with the appointments provision, the removal provision assumes that there is a
royal family. The removal provision, however, makes no provision even for
discretionary provision, by provincial legislation, for the Premier to consult with the
community or traditional council.
At first glance, Shilubana provides a basis on which to say that the royal family
rather than the community determines the traditional leaders. This is so particularly
as it describes the royal family (‘traditional authorities’) as being ‘the high water mark’
of authority on succession in customary communities.83 However, among the facts
that contributed to the Court’s finding that Tiniko Shilubana was legitimately
appointed and that the community had developed the living customary law of royal
succession was that the community at large had endorsed the royal council’s
decision in a meeting.84 In addition, as mentioned above, the Court held that
communities must be allowed to and be assisted in adapting their own laws to their
changing circumstances and needs.85
398
The basis for this is that customary systems, at their core, are based on the
consensus of members of the community. The community members must be
consulted on and participate in the making of a wide variety of decisions concerning
their governance.86 Part of the mutual accountability on which the system is
premised is the idea that all are connected and bear responsibility towards one
another. The maxim, ‘Inkosi yinkosi ngabantu’ or ‘morena ke morena ka batho’ (a
chief is a chief by the people), captures the fact that the chief depends on his or her
people’s allegiance and support, and his or her legitimacy in their eyes.87 It is on this
basis that the voices of ordinary members of a community are, in fact, an important
element in the appointment of a traditional leader and are entitled to hold their leader
accountable. Kuper, and later Hammond-Tooke, refer to the ‘community-in-council’
at various levels of the community holding this right of participation in the
governance of their community.88
In Bhe, the Constitutional Court observed:
The positive aspects of customary law have long been neglected. The
inherent flexibility of the system is but one of its constructive facets.
Customary law places much store in consensus-seeking and naturally
provides for family and clan meetings which offer excellent
opportunities for the prevention and resolution of disputes
and disagreements.89
In the Court’s view, these were some of the elements that rightly justified the
protection of customary law under the Constitution.
The TLGFA provides a tiered way of resolving disputes and claims concerning
traditional leadership. It is only with regard to this, together with an annual
accounting by the traditional council under section 4, discussed below, that the role
of the community is explicitly mentioned. If the dispute arises ‘between or within
traditional communities or other customary institutions on a matter arising from the
implementation’ of the TLGFA, members of the traditional community concerned and
its traditional leaders or those forming part of its customary institutions, which may,
by definition, include the royal family, are required to try to resolve it themselves first
in terms of customary law before referring the matter to the Commission.90 If they
fail, then the matter can be referred to the provincial house of traditional leaders
399
which must attempt to resolve it according to its internal norms and processes. If
they cannot resolve it, then the Premier must receive the matter and consult with the
parties to the matter as well as the provincial house of traditional leaders before
settling the dispute. Only if the dispute has been unsuccessfully resolved at these
three stages can it be referred to the Commission in terms of sections 21(2)(c) and
(3) of the TLGFA.
13.4Powers and functions of a traditional council and leader
Section 4(1) of the TLGFA sets out a list of supportive functions to be performed by a
traditional council. In general, a traditional council must administer the traditional
community’s affairs according to ‘custom and tradition’ and aid the traditional leader
in carrying out his or her duties.91 In addition, traditional councils are to participate in
and advance cooperative governance and thus assist local, provincial and national
government in developing and delivering its planned service delivery and
development programmes.
Section 5 of the TLGFA sets out the duty of national and provincial government to
encourage partnering between municipalities and traditional councils. It provides that
traditional councils may enter into service delivery agreements with municipalities in
terms of the Local Government: Municipal Systems Act92 and other relevant
legislation. Ultimately, traditional councils are to carry out whatever functions are
assigned to them by customary law and statutes that are in keeping with the
Constitution.
Unlike the traditional council, which has a long list of general functions, the
traditional leader is to perform the functions that the traditional community’s
‘customary law and customs’ dictate as well as those given by legislation.93 A critical
question concerns the functions of the traditional leader in relation to the making of
customary law.
PAUSE FOR
REFLECTION
Can traditional leaders make customary law?

A common point of contention is whether or not traditional leaders can make
customary law in a manner akin to legislation. According to Comaroff and Roberts,
400
whose study looked at baTswana ‘rules and processes’, traditional leaders have a
limited legislative function. Their law making is subject to a combination of:
•their legitimacy in the community
•consultation with their council
•introducing rules that give expression to the changes of practice that are already
occurring in the community.94
The traditional leader typically seeks to ensure that his or her legislation is restricted
to mere pronouncements on the ways in which the community has already
developed the law. In other words, the legislation reflects what the community is
already doing.
Legislation that is inconsistent with the general will of the people can happen.
However, its effectiveness depends on the traditional leader’s legitimacy in the eyes
of his or her people. If a traditional leader has significant legitimacy in the eyes of his
or her people, they will assimilate and adopt the law that he or she has issued. If the
traditional leader has minimal legitimacy, they will simply exclude his or her ruling
from the ‘repertoire of norms’ from which they draw in their everyday lives and in
their arguing of cases.95
There is an additional long list in section 20 of the TLGFA that sets out the areas
where traditional leaders and councils may be given a role. These include land
administration, health, welfare, administration of justice, safety and security,
registration of births, deaths and customary marriages, economic development, the
management of natural resources and education, among others. If national or
provincial government organs assign roles to traditional councils or leaders, they are
under an obligation to do the following:
•Consult relevant traditional leadership structures and the South African Local
Government Association.
•Ensure that the role conforms to the Constitution.
•Consider the customary law of the relevant traditional community.
Some of the goals of giving traditional leadership institutions a role in the listed
spheres are to ensure uniformity in the implementation of policies in areas under the
jurisdiction of traditional councils, as well as cooperation and integration in planning
and service delivery.96 The organ of state that allocated the role is to oversee the
401
realisation of these goals. The reason for this is that conflicts sometimes arise
between traditional leadership institutions and the various spheres of government
when these institutions exercise functions falling into these administrative areas. The
conflicts arise mostly between wall-to-wall local government and traditional
institutions which effectively claim the powers of local government.
The concepts of formal and substantive uniformity are important to the
understanding of the goal of uniformity in the implementation of policies in areas
under the jurisdiction of traditional leadership institutions.
PAUSE FOR
REFLECTION
Formal and substantive uniformity in relation to the roles of traditional

leadership institutions
A question to ask with regard to the goal of uniformity is whether formal or
substantive uniformity is envisaged. In the present instance, formal uniformity, which
is to a large extent adopted by the TLGFA, refers to identical recognition and rules in
all traditional council areas. This form of uniformity may result in different outcomes
in different places by virtue of the diversity of histories and existing conditions on the
ground. Furthermore, formal uniformity has the potential to hamper the inherent
flexibility (variability and adaptability) of living customary law forms of governance.
By contrast, substantive uniformity refers to the realisation of effectively equal
outcomes. Therefore, varying rules and processes may be adapted to different
places to accommodate the degrees of legitimacy and existing strengths and
weaknesses between traditional leadership institutions in different parts of the
country. The goal in this instance would be that of defining a set of socio-legal
conditions that would result in just and positive outcomes universally.
Legislation is, in some ways, a rigid and thus limited tool by means of which to
achieve substantive uniformity. Yet, legislation is also a good way of providing
traditional leaders and councils with roles in so far as it offers publicity to the
exercise and allows for the possibility of ordinary rural people participating in the law-
making process. However, in practice, rural people are seldom able to participate
effectively as they live in remote areas. Detailed, accessible information on the laws
seldom makes the mainstream media or reaches community media outlets.
402
In brief, the TLGFA largely adopts the idea of formal uniformity in the
implementation of policies in areas under the jurisdiction of traditional leadership
institutions. In this way, it limits the extent to which each community can determine
how to evolve its customary law of governance in ways that go beyond the hierarchy
of narrow categories of traditional leadership and hereditary succession envisioned
by the legislation. While the TLGFA tries to balance rigidity (uniformity and certainty)
with the flexibility of living customary law forms of governance, it largely errs too far
on the side of rigidity by preferring formal instead of substantive uniformity. In doing
so, it endorses a specious vision of traditional leadership.
13.5 Funding
Terminology
tribal annual or sometimes ad hoc sums of money that leaders require of people who live in
levies traditional communities
The issue pertaining to the funding of the institution of traditional leadership raises a
number of questions. Who can collect funds, when, from whom and how? What can
we do with the funds and how do we make sure that funds are used correctly?
Since the Constitution gives only national and provincial government taxation
power and this power can be delegated only to local government97 subject to
stringent procedures, government is the only source of funds for traditional councils
and leaders. Thus, the form of funding specifically defined by the TLGFA is state
funding. Section 20(2) prescribes that national or provincial government must
attempt to make sure that it gives the traditional council or leader resources when it
allocates a role or function to them and that these are appropriately monitored and
accounted for. It must also ensure that the function is, in fact, carried out in
accordance with the Constitution.98 If a traditional council does not perform, the
403
assigned resources may be reversed.99 Additionally, the Remuneration of Public
Office Bearers Act100 permits the payment of traditional leaders.
Section 4(2) of the TLGFA requires provincial legislation to prescribe the manner
in which traditional councils carry out their functions. The minimum that the provincial
legislation must provide for is that traditional councils maintain proper records, have
their accounts and statements audited, disclose gifts received and comply with the
code of conduct. Section 4(3)(b) then requires that a traditional council meet
annually or more with its traditional community in order to account to the community
regarding the council’s undertakings and funds, as well as ‘levies received by the
traditional council’.101
Tribal levies are annual or sometimes ad hoc sums of money that leaders require
of people who live in traditional communities. If people do not pay these levies, they
are subject to sanctions. Examples of sanctions include:
•the denial of access to the traditional court to have disputes resolved
•the denial of a letter proving that a person resides in a particular traditional
community without which the person cannot get an identity document, social
grants or open a bank account
•the denial of permission to be buried in the area of jurisdiction.
Levies are to be distinguished from voluntary contributions that community members

may elect to make for the purposes of a social or economic development project that
will be of common benefit.102
Some controversy exists over the power of traditional leaders to levy their
communities.
COUNTER
POINT
Controversy over tribal levies

In light of the history concerning tribal levies under apartheid, briefly noted above,
the appearance of the word, ‘levies’, in the TLGFA has led to some concern. Another
cause for concern is that taxation power is confined to government. In addition,
granting power to traditional leaders to impose levies would lead to double taxation.
This concern is well articulated in the White Paper on Traditional Leadership and
Governance, July 2003, which said that:
404
[t]he authority to impose statutory taxes and levies lies with
municipalities. Duplication of this responsibility and double taxation
of people must be avoided. Traditional leadership structures should
no longer impose statutory taxes and levies on communities.
However, while double taxation of the poorest South Africans103 is surely to be

avoided, so too is government’s requiring traditional councils and leaders to carry out
functions assigned by it without providing them with sufficient funding for the task.
 •Traditional leadership institutions are primarily governed by the Traditional

Leadership and Governance Framework Act 41 of 2003 (TLGFA).
 •Living customary law also exists to govern this in practice and there are
variations in such practice from community to community as a result of
differences in culture and the variable impact of South Africa’s socio-political
history.
 •The TLGFA gives recognition to traditional leadership pursuant to sections
211(1) and 212(1) of the Constitution which recognise ‘the institution, status
and role of traditional leadership, according to customary law’ subject to the
Constitution and which allows government to legislate a role for traditional
leaders in their local communities.
 •The key challenge the TLGFA tries to address is how to undo the legacy of
tribes that were mixed and matched under colonial, Union and apartheid
legislation and tribal authorities who were illegitimately appointed over tribes
so established, most notably in terms of the BAA of 1927 and the Black
Authorities Act of 1951.
 •In pre-colonial times, the saying that ‘a chief is a chief by the people’
captured the fact that the personal relationship between a chief and his
people, without whom he had no chiefdom, was paramount; hence, the chief
and the people were mutually dependent.
 •To ensure accountability, chiefs were not independent actors but typically
depended on and ruled with their councils (made up of respected local men).
 •Social organisation was layered from the family, which had political authority
and administrative oversight over the residence, its resources and its
405
members, to the clan or village to the community at large. Different people
were tasked with the responsibility of each of these domains and most
decision making took place at the most local level.
 •The version of traditional leadership conceived in colonial, Union and
apartheid legislation mostly contradicted the pre-colonial reality, securing
some of a chief’s political interests but not the ordinary people’s.
 •As a result of colonial, Union and apartheid interventions, land was also in
short and ever-decreasing supply so ordinary people who lost their main
source of livelihood could no longer secede as a way of protesting against
unpopular chiefs and compelling corrupt chiefs to be accountable.
 •The TLGFA provides the terms of recognition of traditional leaders,
communities and councils.
 •Under the transitional arrangements in the TLGFA, in terms of section 28(1),
the recognition of traditional leaders continues from before the legislation
came into existence to the present.
 •In terms of section 28(3), a ‘tribe’ that existed as such in terms of law at the
time of the coming into operation of the TLGFA is deemed a traditional
community under section 2 of the Act. This means that the territorial
boundaries of the traditional community are those established in the latter half
of the twentieth century. These same boundaries serve as the senior
traditional leader’s jurisdictional boundaries.
 •Tribal authorities established under the Black Authorities Act become
traditional councils in terms of section 28(4), subject to the democratic
election of 40% of their members and the inclusion of women to make up a
third of their membership.
 •When a senior traditional leader or headman/headwoman is to be appointed,
the royal family is required to act within a reasonable time and ‘with due
regard to applicable customary law’ in identifying a person whom customary
law would permit to serve in the relevant traditional leadership position. They
must then alert the Premier who officially recognises the person. A similar
process applies to the removal of a senior traditional leader or
headman/headwoman.
406
 •Comaroff and Roberts say that traditional leaders’ law making in terms of
living customary law is subject to a combination of the traditional leaders’
legitimacy in the community, consultation with his or her council and his or her
introducing rules that give expression to the changes of practice that are
occurring in the community already.
 •Section 20(2) of the TLGFA prescribes that national or provincial government
must attempt to make sure that it gives the traditional council or leader
resources when it allocates a role or function to them and that these are
appropriately monitored and accounted for, as well as that the function is, in
fact, carried out in accordance with the Constitution. A contentious source of
funding used in rural communities is tribal levies which are acquired from the
rural community.
1Act 41 of 2003.
2North West Traditional Leadership and Governance Act 2 of 2005; Traditional
Leadership and Governance Act 4 of 2005 (Eastern Cape); KwaZulu-Natal
Traditional Leadership and Governance Act 5 of 2005; Limpopo Traditional
Leadership and Institutions Act 6 of 2005; Free State Traditional Leadership
and Governance Act 8 of 2005; Mpumalanga Traditional Leadership and
Governance Act 3 of 2006; Northern Cape Traditional Leadership Governance
and Houses of Traditional Leaders Act 2 of 2007. Other relevant legislation
includes the National House of Traditional Leaders Act 22 of 2009;
Remuneration of Public Office Bearers Act 20 of 1998; Local Government:
Municipal Systems Act 32 of 2000; Intergovernmental Relations Framework
Act 13 of 2005.
3By the Traditional Leadership and Governance Framework Amendment Act 23 of
2009.
4See Tongoane v National Minister for Agriculture and Land Affairs (CCT100/09)
[2010] ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May
2010) paras 75 and 79.
5See Certification of the Constitution of the Republic of South Africa, 1996 (CCT
23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6
September 1996) para 190. While the Court does not define the meaning of
407
‘institution, status and role’ with regard to the constitutional provision for
traditional leadership, it states that ‘powers and functions’ as well as ‘authority’
for traditional leaders are not guaranteed by the Constitution. It notes:
Had the framers intended to guarantee and require express
institutionalisation of governmental powers and functions for
traditional leaders, they could easily have included the words
‘powers and functions’ in the first sentence of CP XIII. … It is to be
noted further that [CPXIII.2 implies that] authority is not included in
those features of traditional leadership which have to be recognised
and protected.
6Act 38 of 1927.
7Act 68 of 1951. Of the Black Authorities Act, the Black Authorities Act Repeal Bill’s
(B9-2010) Memorandum states at clause 1.2: ‘The Act was a legislative
cornerstone of apartheid by means of which Black people were controlled and
dehumanized, and is reminiscent of past division and discrimination. The
provisions of the Bill are both obsolete and repugnant to the values and human
rights enshrined in the Constitution.’ Also see Tongoane paras 10–29.
8S 22 of the TLGFA established the Commission on Traditional Leadership Disputes
and Claims.
June 2008).
11Delius, P ‘Contested terrain: Land rights and chiefly power in historical
perspective’ in Claassens, A and Cousins, B (eds) (2008) Land, Power and
Act University of Cape Town Press 214–18.
12Delius (2008) 214–21.
13Delius (2008) 214–21.
14Delius (2008) 214–21.
15Delius (2008) 215.
16Delius (2008) 215.
17Delius (2008) 215.
18Comaroff, JL and Roberts, S (1981) Rules and Processes: The Cultural Logic of
Dispute in an African Context 80–3,180; Cook, P and Wilson, A (1931) Social
408
Organisation and Ceremonial Institutions of the Bomvana 146; Dutton, EAT
(1923) The Basuto of Basutoland 59–60; Hammond-Tooke, WD
(1975) Command or Consensus: The Development of Transkeian Local
Government 67–8, 74 fn 13; Kuper, H (1947) An African Aristocracy: Rank
among the Swazi; Mönnig, HO (1967) The Pedi 309; Reader, DH (1966) Zulu
Tribe in Transition: The Makhanya of Southern Natal 259–60; Schapera, I
(1970) Tribal Innovators: Tswana Chiefs and Social Change, 1795–1940 92;
Wilson, M, Kaplan, S, Maki, T and Walton, EM (1952) Keiskammahoek Rural
Survey Vol 3: 29–34.
19Delius (2008) 217–18.
20Delius (2008) 221–33.
21Okoth-Ogendo, HWO ‘The nature of land rights under indigenous law in Africa’ in
Claassens and Cousins (2008) 101.
22Okoth-Ogendo (2008) 101.
23Wilson et al (1952) 30–2.
24Wilson et al (1952) 30–2; Okoth-Ogendo (2008) 101; Bennett, TW ‘‘Official’ vs
‘living’ customary law: Dilemmas of description and recognition’ in Claassens
and Cousins (2008) 138–53.
25See Chanock, M (2001) The Making of South African Legal Culture, 1902-1936:
Fear, Favour and Prejudice; Delius (2008).
26See fn 21 above. This can also be said with regard to communities researched
within the last five years by the author in Mpumalanga and KwaZulu-Natal.
27Ibid.
28Delius (2008) 221–33.
30[1952] 2 All SA 9 (A).
31R v Kumalo 22.
321954 (3) SA 919 (A) 926G.
331959 (1) SA 686 (T) 688A.
34Delius (2008) 221–33.
351906 TS 135.
361907 TS 836.
371926 AD 71.
38Mokhatle v Union Government 76.
409
39S 4(1)(b) of the Black Authorities Act.
40Mandela, N (1959) Verwoerd’s Grim Plot Liberation No. 36, May 1959 7–17.
41Luthuli, A (1962) Let My People Go: An Autobiography Johannesburg/London:
Collins 200. Reprinted by kind permission of HarperCollins Publishers Ltd ©
1962 Albert Luthuli.
42Mbeki, G (1964) South Africa: The Peasants Revolt 234.
43Delius (2008) 221–33.
44Act 16 of 1985.
45Proc R151 of 1987.
46Act 37 of 1984.
47Claassens, A (2011) Resurgence of tribal levies: Double taxation for the rural
poor South African Crime Quarterly 35:11–16 at 15.
Apartheid Era 40–2.
49Ss 78 and 79 of the Black Laws Amendment Act 42 of 1964.
50Delius (2008) 231–2.
51Delius (2008) 231–2; Mamdani, M (1996) Citizen and Subject: Contemporary
Africa and the Legacy of Late Colonialism 79, 88, 122–8.
December 2008) para 19.
(14 October 2003) para 52.
55See Justice Mpondombini Sigcau v President of the Republic of South Africa Case
CCT 84/12 [2013] ZACC 18.
56Act 23 of 2009.
57See http://www.dta.gov.za/index.php/entities/52-commission-on-traditional-
leadership-disputes-and-claims.xhtml.
58It is worth noting here that the TLGFA does not at any point define customary law.
It also commonly refers to customary law, custom and tradition either together
or apart with the suggestion that they are of similar, if not the same, meaning.
We make this assumption in this chapter.
59S 1(2): ‘Nothing contained in this Act may be construed as precluding members of
a traditional community from addressing a traditional leader by the traditional
410
title accorded to him or her by custom, but such traditional title does not
derogate from, or add anything to, the status, role and functions of a traditional
leader as provided for in this Act.’
60Hunter, M (1936) Reaction to Conquest: Effects of the Contact with Europeans on
the Pondo of South Africa as cited in Delius (2008) 220.
61As defined in s 1 of the TLGFA.
62For example, the Restitution of Land Rights Act 22 of 1994 says that ‘“community”
means any group of persons whose rights in land are derived from shared
rules determining access to land held in common by such group, and includes
part of any such group’. The Interim Protection of Informal Land Rights Act 31
of 1996 says, ‘“community” means any group or portion of a group of persons
whose rights to land are derived from shared rules determining access to land
held in common by such group’. The Communal Property Associations Act 28
of 1996 says ‘“community” means a group of persons, which wishes to have its
rights to or in particular property determined by shared rules under a written
constitution and which wishes or is required to form an association as
contemplated in section 2’. The Upgrading of Land Tenure Rights Act 112 of
1991 says ‘“community” means a group of persons of which its members have
or wish to have their rights to or in a particular piece of land determined by
shared rules’. This definition was inserted by s 1(a) of the Upgrading of Land
Tenure Rights Amendment Act 34 of 1996. The latter legislation also says that
‘“tribe” includes – (a) any community living and existing like a tribe; or (b) any
part of a tribe living and existing as a separate entity’.
63Unreported judgment Case No 1402/2004 (High Court, Transkei Division);
judgment delivered 15 Sept 2005.
October 2004).
65S 1(1) of the TLGFA.
66The author has encountered each of these examples in communities researched
by her in Mpumalanga and KwaZulu-Natal.
67S 12(1)(a), (b) and (d) of the TLGFA.
68S 11(2)(b) of the TLGFA.
70Traditional Leadership and Governance Act (Eastern Cape).
411
71S 1 of the Remuneration of Public Office Bearers Act; also see s 29 of the TLGFA.
72[2011] ZAECMHC 8 (26 May 2011).
73[2011] ZAECMHC 8 (26 May 2011).
74Unreported Case No 50275/09, Gauteng, 10 June 2011.
75Unreported Case No 50275/09, Gauteng, 10 June 2011.
76(CCT 93/12) [2013] ZACC 18; 2013 (9) BCLR 1091 (CC) (13 June 2013).
77Sigcau para 15.
78Sigcau para 3.
79Sigcau para 15.
80Sigcau para 15.
81Sigcau para 18.
82Sigcau para 18.
84Shilubana para 5: ‘On 5 August 1997 the Royal Council accepted and confirmed
that Hosi Richard would transfer his powers to Ms Shilubana. On the same
day, a ‘duly constituted meeting of the Valoyi tribe’ under Hosi Richard
resolved that ‘in accordance with the usages and customs of the tribe’ Ms
Shilubana would be appointed Hosi.’
86See fn 21 above.
87Delius (2008) 214–18.
88Hammond-Tooke (1975) 67–8, 74 fn 13. Based on recent research, the author
can confirm that this remains the case in contemporary circumstances in at
least the ethnic groups of which Kuper and Hammond-Tooke were writing and
in some communities in KwaZulu-Natal.
89Bhe para 45.
90S 21(1)(a) of the TLGFA.
91Compare s 4(1)(a) in terms of which the tribal authority was to ‘administer the
affairs of the traditional community in accordance with customs and tradition’;
and s 4(1)(b) in terms of which it was to assist the traditional leader to carry out
his or her obligations.
92Act 32 of 2000.
93See s 19 of the TLGFA.
94Comaroff and Roberts (1981) 80–3.
412
96S 20(2)(f) and (g) of the TLGFA.
97See ss 43 and 104, ss 226 to 230A and s 228(2)(b) of the Constitution.
98S 20(3)(a) and (b) of the TLGFA.
100As amended by Act 9 of 2000 and the TLGFA in 2009.
101The Limpopo Traditional Leadership and Institutions Act is the only one that
specifically permits levying by traditional councils. Eastern Cape, North West
and Northern Cape legislation provides for voluntary contributions.
102Claassens (2011) 15: ‘There is a long-standing practice of groups of African
people agreeing to finance specific development projects by clubbing together
to raise funds. Historically this was the primary mechanism that black people
used to purchase land’.
103The highest concentration of people who live on less than R400 per month is in
the former homelands (more than 72% of the population) and 59% of people
living in these areas are women.
413
Chapter 14
Traditional courts
14.1 Introduction
14.1 Introduction
This chapter seeks to provide answers to the following questions:

 •Who has power to make or define laws in the context of disputes in
customary communities?
 •Similarly, who can resolve people’s problems and apply those laws in a
‘judicial’ context?
 •Whose problems can they resolve and apply those laws to?
 •What problems can they resolve and by what means?
 •What punishments and sanctions can they impose?
 •What differences exist between the official customary law regulatory
framework and current customary practices with regard to various aspects of
the courts’ work?
Put differently, the chapter deals with the constitution and distribution of traditional
courts, their jurisdiction (personal, territorial and substantive), the extent of their
powers for the purposes of administering justice and the divergences between the
theory and practice with respect to their operations.
These questions are presently covered by the Black Administration Act (BAA). 1 In
other words, they are largely governed by official customary law. Only three
provisions of the BAA, those dealing with traditional courts, are still
in operation.2 The questions concerned are also covered by a host of legislation
passed by the former homelands. This legislation continues to apply in terms of the
414
transitional arrangement declared by the Constitution to that effect.3 Section 16(1) of
Schedule 6 of the Constitution states: ‘Every court, including courts of traditional
leaders existing when the new Constitution took effect, continues to function and to
exercise jurisdiction in terms of the legislation applicable …’
The Traditional Courts Bill (B1-2012) is meant to repeal all this outdated legislation
but has not yet been passed into law. The reason for this is that it met with
resistance from organisations and a cross section of people who raised the concern
that ordinary people had not been consulted during the
4 5
drafting process. Substantive concerns have also been raised against the Bill. The
BAA has therefore been extended until such date as replacement national legislation
to regulate further the matters dealt with in sections 12(1), (2), (3), (4) and (6) and
20(1), (2), (3), (4), (5), (6) and (9) and the Third Schedule of the Act is implemented.6
This chapter focuses on the regime in terms of the BAA and cross-references the
way in which traditional courts operate in practice. This has been documented by
ethnographers writing in the mid- to late twentieth century, a recent ethnographer
whose research was conducted in the Limpopo region as well as the author in
research conducted during the last six years.7
PAUSE FOR
REFLECTION
Is there a need for a uniform system of customary courts?

Is there any good reason why there should be a uniform regulatory framework for all
traditional courts in South Africa? Put differently, why should each traditional court
not be left to function as a court of law on its own in accordance with the customary
law of the indigenous community with which it is associated. This question may
sound rhetorical, but it is actually not. This is a serious dilemma for anyone seeking
to answer such a question, especially in the South African context.
On the one hand, the Constitution and the Constitutional Court have recognised a
form of customary law (living customary law) representing the customary practices of
the country’s diverse indigenous communities. In addition, this system of law and its
institutions are by nature flexible and dynamic. Both these factors defy any idea of a
uniform regulation of traditional courts that, although envisaged to be state courts,
are premised or are to be premised on the nature of ‘living’ traditional courts.
415
On the other hand, once established as courts of law as opposed to, for example,
arbitration or mediation tribunals, these courts are state institutions and they, like any
other state institution, would be accountable for upholding the rule of law. As we saw
in chapter 3 of this book, the rule of law is a founding principle in the South African
Constitution. Thus, the answer to the question under consideration requires more
than a rhetorical answer; it requires a balancing of two competing values
underpinning the institution of traditional courts within the context of the South
African constitutional framework.
In this context, what is the answer to the question posed? We submit that the
maintenance of the rule of law is the reason for requiring a uniform regulatory
framework for all traditional courts. Once recognised as courts of law, these
institutions will wield state power for which they need to be held accountable by a
regulatory framework that is aligned with the Constitution and its values. However, it
will be necessary for the regulatory framework to include principles for the
constitution and operation of these courts that help to retain the essential elements
(that is, virtues and values) of traditional justice derived from robust research and
rural people’s experiences that are compatible with the Constitution. In this, it is
important also to keep in mind that some of these elements of traditional justice
cannot be fixed in law as they are, by nature, flexible or negotiable.
Two other reasons may be mentioned. First, uniform regulation provides for
greater supervision, curbing of indiscretions, corruption and arbitrariness. Second,
uniform regulation enhances the functioning and organisation of the courts and the
provision of their operational resources.
Although customary courts have come under much criticism in the context of the
legislative process around the Traditional Courts Bill, there are strong grounds on
which to protect them and to strengthen their consistency with
8
the Constitution. In Certification of the Constitution of the Republic of South
Africa, 1996,9 the Constitutional Court held that customary courts fall under section
166(e) of the Constitution. They are, thus, one category of ‘any other court
established or recognised in terms of an Act of Parliament, including any court of a
status similar to either the High Courts or the Magistrates’ Courts’. Besides their
constitutional legitimacy, there is no question that, on a practical level, customary
416
courts are much needed in remote parts of South Africa where there would otherwise
be no readily and economically accessible forums by which to obtain justice.
It is an established notion that the power to resolve disputes is central to the ability to
govern at all, and certainly effectively.10 The recognition and, in the process, the
establishment of ‘native’ courts was therefore vital to the changes in governance of
customary communities introduced by the colonial, Union and then apartheid
governments. The BAA gave explicit recognition to and regulated what are now
called traditional courts.
In its original guise, the BAA saw the role of the traditional leader as central, if not
exclusive, in tribal dispute resolution. The titles of the sections that recognised these
forums illustrate the point: section 12 was titled, ‘Settlement of civil disputes by
native chiefs’, and section 20 was named, ‘Powers of chiefs to try certain offences’.
By providing for traditional courts as principally constituted by chiefs who were taken
largely to know or to dictate customary law in their individual persons, the BAA
effectively made the chiefs both legislators and adjudicators.11 The provisions were
later amended to accommodate the existence of headmen structures as subordinate
to chiefly structures.12 However, the BAA did not give full expression to the
multilayered nature of customary communities and their dispute resolution forums by
ignoring family courts, for instance. This point deserves further interrogation.
COUNTER
POINT
Layers of dispute resolution forums

Customary courts do not exist at only one level (the chief’s court) or even two (the
headman’s court). Rather, as Wilson observed in Keiskammahoek in the former
Ciskei, a ‘lineage remnant’ council constituted the dispute resolution forum where
family matters were at issue.13 If the matter at issue were of inter-family concern, the
combined councils of both families involved in a dispute would form the ‘court’. If
they failed in their attempt to resolve the dispute, the matter might continue to the
local village section council, also known as the subheadman’s court, and then to the
village council, which was the headman’s court. There, the headman’s court was
the highest.14 However, the account illustrates the point well: there are four to five
417
different court formations available in this community. The BAA’s recognition and
regulation of only the headman’s court in this community was simply scratching the
surface of the traditional justice system applicable in the community described.
Figure 14.1 illustrates the extent of overlap with the layered nature of governance
depicted in the previous chapter. This involves the family at the lowest level of
social organisation,15 then the neighbours, followed by subwards and wards and,
lastly, the community at large. The kinship system may operate because people may
live in close proximity to their relatives. Thus, family forums right through to ward
councils may be largely kinship-based. However, the kinship system may also be
challenged by the levels of migrancy and mixing that have occurred in the past and
continue to occur in the present. Thus, the forums at each level may also be
somewhat diversely constituted. What is most evident, however, is that a case is not
bound to a linear process. As Van der Waal also describes it, ‘people [are] aware of
the possibilities of “shopping around” for the most favourable adjudication
mechanism’, both within and outside the traditional court system, and among forums
exhibiting varying degrees of formality.16
Please refer to the attached diagram
Figure 14.1 The diversity of customary dispute resolution forums in a single

community
418
In expanding its remit to include the possibility of authorising headmen to hold their
own court, the BAA also failed to appreciate the fact that customary courts cannot be
likened to state courts as elaborated below.
PAUSE FOR
REFLECTION
Customary courts as spaces for community participation

Typically, customary courts are organically constituted. In other words, ordinary,
local members of the community form the ‘community-in-council’ whether family
council, neighbourhood council, ward council or chief’s council.17 Van der Waal
writes of traditional courts in Limpopo that ‘customary courts are more open (“like
democracy”) because all adults can participate in them, they are public …’ 18 There is
an overseer of the process who may be the family head, neighbourhood foreman or
tribal policeman,19 headman, or chief headman or chief,20depending on which court
is concerned. Their role is simply to chair the meeting rather than to act as a judge.
Many ethnographers documenting practice in different customary communities in
South Africa note this principle.21 Hammond-Tooke writes about the Transkei in his
book about ‘command or consensus’ that ‘chiefship is sacred and, as such, must be
above criticism or reproach. This is achieved by effectively withdrawing the chief
from the decision-making process’.22 He adds that a chief who contradicted the will
of his people was in danger of losing their allegiance and, therefore, possibly his
very position.23 He emphasises that it was important that consensus be reached. He
defines consensus as the ‘legitimation of commands by the majority decision of a
broad-based body’.24
Similarly, writing about baSotho, Dutton25 observes that anyone could participate
in asking questions and that, although the headman would announce the decision,
he generally only summarised the majority view.26 Dutton observes the distinction
between the theory that the headman can make any decision he chooses and the
practice that the decision he gives is generally the sentiments of those present with
the exception of women. The exclusion of women from traditional justice
mechanisms is a serious and highly contentious issue for good reasons. First, the
exclusion is a human rights issue pertaining to gender equality in decision making
and participation at local-level governance. Second, participation in customary
dispute resolution equals participation in the making of living customary law.
419
COUNTER
POINT
Women’s exclusion
While customary dispute resolution forums typically allow ordinary members of the
community to participate, they tend to exclude women in two ways:
•First, they often exclude women from involvement as members of the courts who
can participate in the hearing, questioning and deliberations around a case.
•Second, they often exclude women from presenting their own cases if they come
before the court as litigants.
Women therefore most often play the role only of witnesses. Yet, even then, in some
communities the testimonies of women are treated with suspicion because women
are believed to be gossips and to lack the clarity of mind and strength of character
that men possess.27
Section 3(1) of the BAA entrenched the rule excluding women from customary
decision-making forums where it said that only ‘the adult male members of the tribe’
could participate in community decision making. This rule was complemented by
another rule that declared women in customary communities to be
perpetual minors.28 It later became a part of living customary law.29
This trend is slowly changing, however. In places where the traditional councils
under the TLGFA also hear disputes, the third of the traditional councils who are
women are invited to participate in dispute resolution.30 In some places where
women were not permitted to attend traditional courts or were required to sit outside
the court and relay information to the court through a male representative, women
are now permitted to enter the court space. However, in some of the latter places,
women are still not allowed to speak for themselves.31
Yet, even where women are no longer denied entrance into customary courts or to
speak in the courts, a problem still persists around widows. When women have lost a
spouse or other loved one, are in mourning and hence are wearing black, they are
almost always denied access to public spaces, including customary courts.
Therefore, if they are involved in a dispute with in-laws or older male relatives over
the property of the deceased, which the women are supposed to inherit, they are not
420
able to represent themselves in the dispute.32 They are consequently rendered even
more vulnerable to property grabbing than they already are.33
The BAA granted chiefs and headmen power to hear both civil and criminal cases in
their areas of jurisdiction – in other words, within the territorial boundaries of the
areas under their ‘control’. However, recognised or appointed traditional leaders
(chiefs and headmen) had to be authorised specifically to be able to consider or
settle civil cases and they had to be authorised in writing to decide
criminal matters.34
While the jurisdiction of traditional leaders was largely territorially defined, it was
also personally defined. If these traditional leaders were so authorised, they could
hear only those civil cases brought to them by black people against other black
people living in their area of jurisdiction. They also had to have the power conferred
on them to ‘try and punish’ black people who committed an offence in their
jurisdiction. This is technically still the case.
As far as their substantive jurisdiction is concerned, the customary courts were
permitted to hear any civil cases except for questions of ‘nullity, divorce or separation
arising out of a marriage’.35 Schedule 3 of the BAA excluded a long list of criminal
matters:
treason; crimen laesae majestatis; public violence; sedition; murder;

culpable homicide; rape; robbery; assault with intent to do grievous
bodily harm; assault with intent to commit murder, rape or robbery;
indecent assault; arson; bigamy; crimen injuria; abortion; abduction;
offences under any law relating to stock theft; sodomy; bestiality; and
any offence referred to in Part 1 to 4, or section 17, 20 or 21 (in so far
as it relates to the aforementioned offences) of Chapter 2 of the
Prevention and Combating of Corrupt Activities Act[36]; breaking or
entering any premises with intent to commit an offence either at
common law or in contravention of any statute; receiving any stolen
property knowing that it has been stolen; fraud; forgery or uttering a
forged document knowing it to be forged; any offence under any law
relating to illicit possession of or dealing in any precious metals or
421
precious stones; any offence under any law relating to conveyance,
possession or supply of habit-forming drugs or intoxicating liquor;
any offence relating to the coinage; perjury; pretended witchcraft;
faction fighting; man stealing; incest; extortion; defeating or
obstructing the course of justice; any conspiracy, incitement or
attempt to commit any of the above-mentioned offences.
With regard to the long list of crimes that were excluded, two things are particularly
striking:
•First, many of the crimes listed would not be crimes under customary law as they
would not be issues that would typically arise in a customary setting.
•Second, a number of the crimes are, in fact, tried regardless in customary courts.
The case of S v Dalindyebo,37 in which the king of abaThembu was convicted of

egregious punishments against his people whom he had tried for offences, including
murder, rape and robbery, provides detailed proof of this.38 However, many
customary courts resist trying anything but petty crimes. If they hear cases
concerning severe crimes, it is usually not in the sense of exercising an imagined
criminal jurisdiction, but rather in the sense in which criminal cases present the
possibility of civil claims for compensation.
Section 12(4) of the BAA provides for appeals from the customary court to the
magistrates’ court.39 It alludes to the fact that the civil jurisdiction of customary courts
is not exclusive, and thus people subject to the court’s jurisdiction could rather
choose to initiate their case at the magistrates’ court. The suggestion is also that,
once a matter has been initiated at a customary court as the court of first instance, it
can only go to the magistrates’ court on appeal.
PAUSE FOR
REFLECTION
Choice of court
Customary dispute resolution forums are not just layered but allow people to contest
decisions and/or choose their forum either within the customary system or outside it
in many instances.
Even under apartheid, while appeals took place internally, appeals also took place
in the Native Commissioners’ Courts and magistrates’ courts.40 Kuper notes that
422
among emaSwati, there was even sufficient flexibility so that people could create
new forums when the need arose. Thus, neighbours would gather informally to
resolve an issue arising in their area.41 Even today, at any stage of the process
documented in Figure 14.1, the parties may decide to exit the system and go directly
to the police and/or magistrates’ court. This includes the final stage if the chief’s
court does not yield a satisfactory resolution. Sometimes, the traditional leaders,
such as the tribal policeman and headmen, either encourage their people to take
their matters to the police or bring the matters to the police’s attention themselves.42
Section 20(2) of the BAA established that the trial procedure as well as ‘the
punishment, the manner of execution of any sentence imposed and … the
appropriation of fines’ would take place in accordance with customary law except to
the extent that this was modified by the Minister. The only regulations that the
Minister passed in this regard, using his power under subsection (9), were to do with
notice of appeal.43
PAUSE FOR
REFLECTION
Values of customary dispute resolution

The rules set out in the BAA and its regulations are highly formalistic. They are
therefore more consistent with the state courts and are quite contrary to the nature of
customary dispute resolution as it actually operates as well as to its values.44
We highlighted the first broad value earlier: namely, the value of community
participation in the determination of truth. This manifests in the process being
relatively open, simple and informal, in other words, non-professionalised. The
decisions are therefore not based on precedent.
The second important value is that of reconciliation, that is, wanting to restore
peace and harmony between the parties. Part of the objective here is the facilitation
of the reintegration of the offender into the community without reprisal by the
wounded party. This is easy to understand in the context of customary community
members living mutually dependent lives, often in close quarters, and, historically,
not having had any system of imprisonment. It is important that harmony be restored
so as to ensure that the parties and wider community can continue to share their
423
lives: witnessing each other’s marriages and marking other ceremonies together,
often sharing the use of the land and other natural resources, and helping to protect
one another from outside threats. The term, ‘ubuntu’, captures this sentiment well in
that it speaks of the fact that the relationships among the people who form the
community are part of what imparts humanity to each person. Mutual respect, which
might be shown through an apology at the end of a dispute, and forgiveness are
therefore expressions of this shared worldview.45
The third set of values is closely connected to the others – these are the values of
community responsibility and communal responsibility. Community responsibility
refers to the duty an individual owes to the community. Contrast this with the rights
owed to an individual, which is often emphasised in Western-style justice systems.
Again, the idea, commonly referred to as ubuntu, that ‘a person is a person through
and because of other people’ seeks to capture the essential value that an individual
depends on, and is depended on by, those around him or her. Although attention is
rarely drawn to this element of ubuntu, partly encapsulated in this idiom is the reality
of individuality: after all, it is the individual who is being constituted through his or her
relationships with other individuals. Hence, there is certainly a notion of individual
rights in customary law and dispute resolution. However, this notion is not as
emphasised as it is in Western systems. Indeed, as Van der Waal observes in
Limpopo courts, ‘[t]he emphasis is on social outcomes rather than on
individualising outcomes.’46 Thus, because the individual’s right is so embedded in
the community, it can be overlooked and sometimes completely ignored.
Communal responsibility refers to the possibility of more than a single individual
bearing responsibility for a wrong. Hence, whichever is appropriate in the particular
case, restoration of what is lost or compensation for the loss or damages (both being
themselves high values) are often required to be paid not just by the perpetrator, but
by the entire community. Contributions might be sought from their family and
sometimes the wider community also contributes.
This section is not intended to idealise the traditional justice system but to note the
values underlying the system. Unfortunately, these values are not always expressed
in ways that are appropriate in a constitutional democracy. Examples include
instances where communal interests are placed above those of individuals to the
detriment of individuals and their rights. They also include the common failure of
customary courts to recognise fully and protect the rights of women, children and
424
other vulnerable persons. Therefore, the express manifestation of these values
sometimes requires redefinition. Indeed, the Constitution provides appropriate
frameworks for such redefinition. This includes its equality provisions and section
39(2) that requires the courts to develop customary law in accordance with the spirit,
purport and objects of the Bill of Rights when necessary.
Since the coming into operation of the Constitution, limitations on traditional leaders’
powers have been included in the BAA itself.47These limitations are that traditional
leaders cannot punish people by ‘death, mutilation, grievous bodily harm or
imprisonment’. Nor can they impose a fine greater than R100 or ‘two head of large
stock or ten head of small stock’. They also can no longer legally punish
people corporally.48 However, official customary law under the rules made in terms of
the BAA continues to regulate the process of the courts.
PAUSE FOR
REFLECTION
Traditional courts’ powers to change customary law

There is plenty of evidence that traditional courts develop customary law in the
process of their dispute resolution. For instance, Comaroff and Roberts describe the
developments to the Tswana law of succession evolved by the traditional courts as
adapting customary law under two conditions: first, in light of changes in practice
meeting the particular concerns raised by the case with which the court is
confronted, and, second, the social legitimacy of the chief whose court is handing
down the law-changing decision being significant enough to persuade the community
to embrace the change as law.49
In the present day, the Constitution has had some effect on community attitudes
and, in turn, those of some traditional leaders. Mbatha describes the changes made
by traditional courts in the context of succession cases as a response to the social
problems resulting from a restrictive official customary law. These changes, while not
explicitly responding to the need for rights protection expressed by the Constitution,
respond to it nonetheless.50
Similarly, Van der Waal describes the example of a headman’s court holding that a
man should consult his first wife before undertaking the customarily permissible act
of marrying a second. This decision was in response to the activist behaviour of
425
women attending the court in Limpopo. The same court held that a woman denied
the right to marry by her father could circumvent his disapproval if it continued by
approaching the magistrates’ court, even though customary law would previously
have required that the daughter bend to her father’s wishes. The court also held that
a widow should not be compelled to enter into marriage with her brother-in-law
although the customary practice required that she do so.51
In terms of rule 1 of the Chiefs’ and Headmen’s Civil Court Rules,52 enacted under
section 12 of the BAA, the procedure applying to civil claims is that of ‘the
recognised customs and laws of the tribe’. The Rules seek to regulate a wide variety
of matters:
•rule 2: granting permission for chiefs to hear matters in the absence of the
defendant under certain conditions
•rule 3: adjournments and delays
•rule 4: avoiding bias by traditional leaders
•rule 5: banning legal representatives from customary courts
•rule 6: requiring quadruplicate records of proceedings
•rule 7: registration of judgments recorded under rule 6 with the commissioner
•rule 8: how judgments are to be executed, although they are to be executed
according to custom, and that obstruction of execution of a judgment is an offence
liable to a fine or, if not paid, imprisonment
•rules 9 and 10: the appeal of decisions to the area commissioner, now magistrate
•rule 11: in the case of an appeal, the furnishing of the chief’s reasons for the
judgment.
An important issue relating to the powers and process of traditional courts concerns
the doctrine of separation of powers.
COUNTER
POINT
Separation of powers
According to the doctrine of separation of powers, which is tacitly included in the
Constitution, the executive, legislature and judiciary have separate functions that are
performed by different people staffing these organs. This is so that they can ‘check
and balance’ one another. Under customary law, especially as enacted during
426
apartheid, traditional leaders, namely the chiefs and to a lesser degree the headmen,
perform functions falling under all of these spheres.
In the case of Bangindawo v Head of the Nyanda Regional Authority,53 a challenge
was brought against the regional courts in Transkei. These courts are statutory
tribunals staffed by traditional leaders.54 The grounds of the challenge were a lack of
observation of the separation of powers and the violation of independence and
impartiality. The Court held that customary law does not observe a clear separation
of powers akin to that in common law and thus the tests for independence and
impartiality were not applicable. Yet, in the Court’s judgment, adherents would not
view traditional leaders as biased on grounds of lack of separation and their exercise
of executive powers as well as judicial powers.
Mhlekwa and Feni v Head of the Western Tembuland Regional Authority55 did not
overrule Bangindawo which had been concerned with only civil jurisdiction. The
Court in this case held differently. While the Constitution does not explicitly mention
the separation of powers doctrine and section 165(2) does not preclude traditional
leaders from being judges simply because they exercise other governance functions,
‘some of the functions performed by a chief are such that it may potentially involve
him or her in controversial public issues and may create the perception of an unduly
close relationship with the executive branch of government’.56 The Court continued
that ‘the Regional Authority Courts Act does not presently include any measures or
other guarantees to ensure judicial independence’.57 The Court also had in mind the
severity of prison sentences that the Transkeian regional courts could impose in
criminal cases.
We can, indeed, see how independence and impartiality may be more important in
the context of criminal matters than in civil cases. However, it is worth noting that if
customary courts were more accurately reflected in legislation to capture their broad
community participation in the process, the issue of impartiality and independence
would take on a different form.
The Chiefs’ and Headmen’s Civil Court Rules, in particular rule 13, set out an
intricate fee scale whereby charges are to be paid to the chief. This applies if the
customary law of the traditional community does not prescribe fees. Specific charges
are for the chief’s:
427
•hearing of the case on the first day and giving judgment – R2,00 to be paid in
advance
•hearing the case on the second and subsequent days – R1,00
•providing a written record – R0,25
•attending the Commissioners’ court and providing reasons – R0,25
•travel as necessary – R0,25 per mile of the shortest route.
Fees are also paid to the messenger of the court for his travel as necessary, except
that travel for the delivery of the written record (R0,02½ per mile of the shortest
route) and for serving, delivery and executing a message (R0,20).
It is hard to know to what extent this formula was ever adhered to but it can
generally be said that it is not being adhered to today. This is evident from the South
African Law Commission (SALC) report on traditional courts and the judicial function
of traditional leaders.58 This is also apparent from empirical research discussed
below. The practices regarding both the fees and fines for criminal offences are
different from those prescribed by the regulations.
COUNTER
POINT
Fees keeping up with the times

With regard to the scale of fees for civil cases, empirical research shows that this is
not followed except in broad strokes.59 Thus, fees typically charged by customary
courts for bringing a case are as little as R30 or as much as R100. In some courts,
only the applicant pays the fee. If their case is successful, they can recover it from
the defendant when judgment is given. In other places, both parties pay the fee. In
some areas, a fee of perhaps R3060 or R50 is required for ‘raising the court’ when
the case is concluded. This fee may then go towards buying food and drinks for the
council after it has heard the case. In other places, the fee is higher or is simply
deemed an entitlement of the chief to have a cow over and above the cow that the
wrongdoer is fined.61
It is worth noting that in the present-day economy, R100 is not equivalent to either
two head of small or large stock.62 The maximum fines given for criminal cases in the
BAA are therefore extremely out of date.63 In many customary courts, fines
equivalent to one head of large stock run up to about R1 500.64 Indeed, such fines
428
are not simply applied to criminal cases, but often to civil cases too. However, in civil
cases, what losers of the case pay varies greatly by virtue of not only the local
practice, but also what they themselves may ask for in light of how they value their
loss and hence what they demand as compensation for it. Of course, compensation
is also often granted in the case of criminal matters and this may vary too.65
It is unsurprising that the official legal framework for customary courts is completely
out of touch with reality on the ground – after all, it is 85 years old. On the one hand,
the reasons for its dissonance with living customary law primarily include:
 •its failure to recognise that multiple forums exist at different levels of social
organisation
 •that multiple actors participate in and contribute to dispute resolution in each
of these forums
 •hence, traditional leaders do not singly exercise the role of administering
justice.
In fact, each of the steps in the customary dispute resolution system is designed to
provide an opportunity for the dispute to be settled as soon as possible and in the
most immediate relational circle of the individual. On the other hand, the divergences
in respect of court process are largely attributed to prevailing modern economic
conditions.
As mentioned in the introduction, the constitutionally recognised need for
customary courts to give access to justice to poor people in remote rural areas
across South Africa is undeniable. However, the kind of regulatory framework that is
needed to replace the present law is one that is nuanced enough to cope with the
stark differences between customary and state courts. This means that it should
recognise customary courts on their own terms, which requires permitting their more
multilayered and multivocal basis. Yet, coupled with that must be articulation with
section 34 of the Constitution in its provision that ‘[e]veryone has the right to have
any dispute that can be resolved by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent and impartial
tribunal or forum’. The regulatory framework must therefore provide sufficient
constitutional safeguards to ensure that otherwise marginal voices are able to
429
surface just as much as patriarchal voices, and that people can still choose whether
they seek to subscribe to customary law and its form of justice or not. It must also be
responsive to changing economic conditions in the country.
 •Item 16(1) of Schedule 6 of the Constitution states: ‘Every court, including

courts of traditional leaders existing when the new Constitution took effect,
continues to function and to exercise jurisdiction in terms of the legislation
applicable …’
 •The BAA gave explicit recognition to and regulated what are now called
traditional courts. Section 12 (on ‘Settlement of civil disputes by native chiefs’)
and section 20 (on ‘Powers of chiefs to try certain offences’) effectively made
the chiefs, and later also headmen, both legislators and adjudicators.
 •Mention was also made of different regulatory frameworks in the former
homelands.
 •The Traditional Courts Bill (B1-2012) is supposed to repeal all of this
outdated legislation but has not been passed into law yet on the grounds that
it met with resistance from a cross section of people and organisations who
raised the concern against it that ordinary people had not been consulted in
its drafting process. Substantive concerns have also been raised against the
Bill.
 •Customary courts do not exist at only one level (the chief’s court) or even two
(the headman’s court as well). The BAA’s recognition and regulation of these
courts excludes much of the traditional justice system.
 •Ordinary local members of the community form the ‘community-in-council’
(whether family council, neighbourhood council, ward council or chief’s
council) that hears cases at that level of social organisation. Therefore, the
role of the chief or headman is not akin to that of a judge in a Western court.
 •While customary dispute resolution forums typically allow ordinary members
of the community to participate, they tend to exclude women as members of
the court councils and as litigants.
 •The BAA grants chiefs and headmen power to hear both civil and criminal
cases in their territorial areas of jurisdiction.
430
 •Substantively, they can hear civil cases except for questions of ‘nullity,
divorce or separation arising out of a marriage’ and criminal matters not
excluded in Schedule 3 of the BAA.
 •Customary dispute resolution forums are not just layered but often allow
people to contest decisions and/or choose their forum either within the
customary system or outside it.
 •Three main values underlie customary dispute resolution: community
participation in the determination of truth, reconciliation and
community/communal responsibility.
 •Under customary law, especially as enacted during apartheid, traditional
leaders – namely chiefs and to a lesser degree headmen – perform executive,
legislative and judicial functions without observing a separation of powers.
However, the Court in Mhlekwa and Feni v Head of the Western Tembuland
Regional Authority66 held that in criminal matters there is a great need for
judicial independence.
 •The administration of justice by traditional courts shows divergences between
official customary law provisions and current customary practices.
1Act 38 of 1927.
2Ss 12 and 20 and Schedule 3 that list the crimes excluded from traditional courts’
jurisdiction.
3The Regional Authorities Courts Act 13 of 1982 (Transkei); KwaNdebele Traditional
Hearings of Civil and Criminal Cases by the Lingwenyama, Amakhosi,
Amakhosana and Linduna Act 8 of 1984; KwaZulu Amakhosi and
Iziphakanyiswa Act 9 of 1990; Venda Traditional Leaders Administration
Proclamation 29 of 1991; Bophuthatswana Traditional Courts Act 29 of 1979;
Transkei Authorities Act 4 of 1965; Chiefs Courts Act 6 of 1983; Ciskei
Administrative Authorities Act 37 of 1984; QwaQwa Administration Authorities
Act 6 of 1983. S 14 of Schedule 6 of the Constitution assigns these laws to the
provinces. In terms of s 2 of Schedule 6 of the Constitution, they continue to
apply: ‘(1) All law that was in force when the new Constitution took effect,
continues in force, subject to: (a) any amendment or repeal; and (b)
consistency with the new Constitution’.
431
4See item 3 of the Memorandum on the Objects of the Traditional Courts Bill, 2012,
for details of who was consulted.
5Claassens, A and Mnisi, S (2009) Rural women redefining land rights in the context
of living customary law South African Journal on Human Rights 25(3):491–516;
Himonga, C and Manjoo, R (2009) Challenges of formalisation, regulation, and
reform of traditional courts in South Africa Malawi Law Journal 3(2):157–81;
Mnisi Weeks, S (2012) Regulating vernacular dispute resolution forums:
Controversy concerning the process, substance and implications of South
Africa’s traditional courts bill Oxford University Commonwealth Law
Journal 12(1):133–55.
6This is after three other amendments of the Repeal of the Black Administration Act
and Amendment of Certain Laws Act 28 of 2005 have taken place to extend
the application of these provisions between its passing in 2005 and the most
recent amendment in 2012 in anticipation of the passing of the Traditional
Courts Bill. The prior deadlines were set for 30 June 2008, 30 December 2009,
30 December 2010 and 30 December 2012.
7Comaroff, JL and Roberts, S (1981) Rules and Processes: The Cultural Logic of
Dispute in an African Context 80–3,180; Dutton, EAT (1923) The Basuto of
Basutoland 59–60; Hammond-Tooke, WD (1975) Command or Consensus:
The Development of Transkeian Local Government67–8, 74 fn 13; Kuper, H
(1947) An African Aristocracy: Rank among the Swazi; Reader, DH (1966) Zulu
Tribe in Transition: The Makhanya of Southern Natal 259–60; Mountain, ED
(ed) (1952) Keiskammahoek Rural Survey Vol 3; Mnisi Weeks, S (2011a)
Beyond the Traditional Courts Bill: Regulating customary courts in line with
living customary law and the Constitution South African Crime Quarterly 31–40
at 35; Van der Waal, CS (2004) Formal and informal dispute resolution in the
Limpopo Province, South Africa Anthropology Southern Africa 27(3–4):111–21.
The author also draws on empirical research conducted using participant
observation in Mpumalanga (2007–2008) and trained fieldworkers to gather
daily evidence over an 11-month period in KwaZulu-Natal (2011–2012). The
former research is documented in Mnisi, S (2010) The Interface Between
Living Customary Law(s) of Succession and South African State Law DPhil
thesis University of Oxford. The latter will appear in Mnisi Weeks, S
432
(forthcoming 2014) Access to Justice? Dispute Management in Vernacular
Forums in Rural KwaZulu-Natal.
8Claassens and Mnisi (2009); Himonga and Manjoo (2009); Mnisi Weeks (2012).
September 1996).
10Lund, C ‘Negotiating property institutions: On the symbiosis of property and
authority in Africa’ in Juul, K and Lund, C (eds) (2002) Negotiating Property in
Africa 11–44; Roberts, S ‘Law and dispute processes’ in Ingold, T (ed)
(1994) Companion Encyclopaedia of Anthropology: Humanity, Culture and
Social Life 972; Turner, VW (1957) Schism and Continuity in an African
Society: A Study of Ndembu Village Life.
11No provision was initially made for the role of councils although, to this day, most
traditional courts are primarily constituted by councils. (This is discussed
further below.) This was later altered by the Black Authorities Act 68 of 1951 in
which provision was made, in s 4(1)(b), for ‘tribal authorities’ to assist the chief
in his functions as conferred or imposed by ‘any law’.
12S 6(1) of the BAA; Amendment Act 9 of 1929.
13Wilson (1952) 31–2.
14Wilson (1952) 32–3.
15Van der Waal (2004) 115, 119.
16Van der Waal (2004) 119.
17Hammond-Tooke (1975) 74, especially fn 13.
18Van der Waal (2004) 113.
19The position of ‘tribal policeman’ may have been conceived of by Proclamation
110 of 1957 (regulations under ss 2(7) and 25 of the BAA read with s 21 of the
Native Land and Trust Act 18 of 1936), which constituted ‘regulations
prescribing the duties, powers, privileges and conditions of service of chiefs
and headmen’. Included in these was the requirement that the traditional leader
maintain law and order, and enforce laws enacted by government or orders of
the Commissioner; the traditional leader’s entitlement to loyalty, respect and
obedience of ‘all Blacks resident within his area’; permission for him to
collaborate with the tribal council if custom permitted and the requirement that
he not abdicate his primary responsibility under law in doing so; conferral of the
power of search and seizure without warrant and criminal jurisdiction (to ‘try
433
and punish’), although only where explicitly given by the state – this was where
the proclamation allowed for the traditional leader to appoint a tribal policeman
or any person to arrest a suspected black person in his area, and detain or
impound stock.
20Van der Waal (2004) 113–15
21Kuper (1947); Wilson (1952); Reader (1966) 259–60; Mönnig, HO (1967) The
Pedi 309. Also see Comaroff and Roberts (1981) 80–83,180.
22Hammond-Tooke (1975) 68.
23Hammond-Tooke (1975) 68–74. In a rather fraught context, this is confirmed by
Comaroff, J and Comaroff, J (2003) Reflections on liberalism, policulturalism,
and ID-ology: Citizenship and difference in South Africa Social Identities:
Journal for the Study of Race, Nation and Culture9(4):445–73 at 461.
24Hammond-Tooke (1975) 73–4.
25Dutton (1923).
26Dutton (1923) 59–60.
27In two of the author’s field sites, focus group participants have expressed this view
rather strongly. Describing Limpopo courts, Van der Waal (2004) at 113 says
that ‘the voices of women and the youth are not yet taken seriously’.
28S 11(3)(b) of the BAA.
29See Mnisi Weeks, S (2011b). Securing women’s property inheritance in the
context of plurality: Negotiations of law and authority in Mbuzini customary
courts and beyond Acta Juridica 140–73.
30Mnisi Weeks, S (2011b) 157. Some erroneously interpret the TLGFA as
mandating that all traditional courts are required to reflect the compositional
changes brought to traditional councils by the Act. However, from s 3(2)(c) of
the TLGFA, it is clear that it is prescribing the gender composition of traditional
councils only and, from s 20(1)(f), that it envisions that subsequent legislation
will be passed in order to regulate traditional courts specifically. Indeed, s
2(3)(c) of the TLGFA requires progressive realisation of the transformation of
customary law relevant to the application of the TLGFA, specifically with regard
to gender representation in ‘the succession to traditional leadership positions’.
Yet, it is highly debatable whether participation in traditional courts, as
relatively informal community forums, constitutes ‘succession to traditional
leadership positions’. Hence, the distinction is made here with regard to
434
traditional councils that hear cases having been affected by the gender
composition requirements of the TLGFA while others were not unless they
voluntarily embraced the developments encouraged by the TLGFA’s
prescription for traditional leadership.
31Claassens, A and Ngubane, S ‘Women, land and power: The impact of the
Communal Land Rights Act’ in Claassens, A and Cousins, B (eds)
(2008) Land, Power and Custom: Controversies Generated by South Africa’s
Communal Land Rights Act 173–75; Curren, E and Bonthuys, E (2005)
Customary law and domestic violence in rural South African
communities South African Journal on Human Rights 21(4):607–35 at 633;
Higgins, E, Fenrich, J and Tanzer, Z (2007) Gender equality and customary
marriage: Bargaining in the shadow of post-apartheid legal pluralism Fordham
International Law Journal 30(6):1653–1708 at 1700–01.
32Mnisi Weeks (2011b) 140–73, especially at 149; Claassens and Ngubane (2008)
173–77; Claassens and Mnisi (2009) 491. Also see Comaroff and Comaroff
(2003) 459.
33Comaroff and Comaroff (2003) 459; Burman, S, Carmody, L and Hoffman-
Wanderer, Y (2008) Protecting the vulnerable from ‘property grabbing’: The
reality of administering small estates South African Law Journal 125(1):134–
56.
34Ss 12(1) and 20(1) of the BAA.
36Act 12 of 2004.
37Unreported Case No 267/04 Eastern Cape High Court, Mthatha.
38See the discussion of this case in Mnisi Weeks, S (2012) 133–55.
39A person can appeal a matter where the value is more than R10.
40Hammond-Tooke (1975); Mönnig (1967); Reader (1966); Wilson (1952).
41Kuper (1947).
42As with the diagram, these statements are based on the author’s current research
and findings in Mpumalanga and KwaZulu-Natal.
43Proclamation R45 of 1961.
44See Taylor, D (2007) ‘The truth the whole truth nothing but the truth’: Truth,
community and narrative in African procedural law Comparative and
International Law Journal of Southern Africa 40(2):215–36 and Skelton, A
435
(2007) Tapping indigenous knowledge: Traditional conflict resolution,
restorative justice and the denunciation of crime in South Africa: Part III –
Retribution and restoration in critical perspective Acta Juridica 228–46. While
these sources are themselves based on dated research, they are largely
consistent with the author’s own findings in research conducted recently. See,
for example, Mnisi (2010) 136, 145.
45However, there is a need for caution against the romanticisation of ubuntu. As part
of a system of unwritten law, this concept can be distorted to the disadvantage
of some sections of the population. See further, Himonga, C (2013) The right to
health in an African cultural context: The role of Ubuntu in the realisation of the
right to health with special reference to South Africa Journal of African
Law 57(2):165–95.
46Van der Waal (2004) 113.
47S 20(2) of the BAA, amended by s 2 of the Abolition of Corporal Punishment Act
33 of 1997.
48S 20(2) of the BAA, amended by s 2 of the Abolition of Corporal Punishment Act
33 of 1997.
50Mbatha, L (2002) Reforming the customary law of succession South African
Journal on Human Rights 18(2):259–86 at 271–3.
51Van der Waal (2004) 114–15.
52GN R2082 of 29 December 1967 (repealed in KwaZulu in 1989).
531998 (3) SA 262 (Tk).
54S 7 of the Regional Authorities Courts Act 13 of 1982 (Transkei).
552001 (1) SA 574 (Tk).
56Mhlekwa and Feni v Head of the Western Tembuland Regional Authority para
616.
57Mhlekwa and Feni v Head of the Western Tembuland Regional Authority para
616.
Common Law and the Indigenous Law Report on Traditional Courts and the
Judicial Function of Traditional Leaders 25.
59SALC (2003) Report on Traditional Courts 25. Also see Mnisi (2010) 266, 281.
436
60Van der Waal (2004) 114 reports such an instance for what she said is called
‘closing the court’ in the area she researched.
61Van der Waal (2004) 114. The author has encountered all of the cited examples in
different field sites in Mpumalanga and KwaZulu-Natal. Vast divergences in
practice can be found even within a small area where there may be two
different traditional communities living adjacent to one another. The same is
reported by Van der Waal (2004) 113–14.
62SALC (2003) Report on Traditional Courts 25; Mnisi (2010) 281.
63The SALC recommended raising the maximum for fines to R500.00, as in the
Small Claims Courts, or small stock. See SALC (2003) Report on Traditional
Courts 25.
64Mnisi (2010) 266, 281. Also see Mnisi Weeks, S (2013) Access to Justice? The
Uncertainties of Seeking Justice at the Intersections between Vernacular and
State Courts and Laws.
65Mnisi (2010); Mnisi Weeks (2013).
662001 (1) SA 574 (Tk).
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of the Courts (1983) Pretoria: Government Printer (1872) Report of the
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South African Law Commission (1986) Report on the Marriages and Customary
Unions of Black Persons Pretoria: South African Law Commission
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South African Law Commission
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Common Law and the Indigenous Law Report on Traditional Courts and the
Judicial Function of Traditional Leaders Pretoria: South African Law Commission
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South African Law Reform Commission (2010) Project 138 The practice
of Ukuthwala Pretoria: South African Law Reform Commission
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Mnisi, S (2010) The Interface Between Living Customary Law(s) of Succession and
South African State Law DPhil thesis University of Oxford
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453
Table of cases
A
Affordable Medicines Trust v Minister of Health (CCT27/04) [2005] ZACC 3; 2006 (3)
SA 247 (CC); 2005 (6) BCLR 529 (CC) (11 March 2005) 43
Alexkor Ltd v Richtersveld Community (CCT19/03) [2003] ZACC 18; 2004 (5) SA
460 (CC); 2003 (12) BCLR 1301 (CC) (14 October
2003) 10, 19, 20, 25, 28, 31, 32, 51, 62, 67, 164, 166, 176, 177, 236
B
Baadjies v Matubela 2002 (3) SA 427 (W) 156
Bangindawo v Head of the Nyanda Regional Authority 1998 (3) SA 262 (Tk) 263
Bhe v Magistrate, Khayelitsha 2004 (2) SA 544 (C); 2004 (1) BCLR 27 (C) 174
Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC);
2005 (1) BCLR 1 (CC) (15 October
2004) 12, 17, 19, 25, 26, 31, 34, 35, 36, 38, 43, 46, 47, 51, 54, 61, 63, 65, 66, 67,
87, 118, 124, 159, 160, 161, 171, 174, 175, 176, 184, 185, 241, 246
Booi v Xozwa 4 NAC 310 203
C
Capuko v Ngazulwane 2 NAC 12 202
Cebisa v Gwebu 4 NAC 330 203
Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96)
[1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September
1996) 31, 62, 228, 254
Certification of the Amended Text of the Constitution of The Republic Of South
Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4
December 1996) 19, 22
D
Daniel v Socinsi 4 NAC 320 203, 204
De Wet NO v Jurgens 1970 (3) SA 38 (A) 134
Dikoko v Mokhatla (CCT62/05) [2006] ZACC 10; 2006 (6) SA 235 (CC); 2007 (1)
BCLR 1 (CC) (3 August 2006) 199, 200
454
Du Plessis v De Klerk (CCT8/95) [1996] ZACC 10; 1996 (3) SA 850; 1996 (5) BCLR
658 (15 May 1996) 59
Dudumayo v Dalasile [2011] ZAECMHC 8 (26 May 2011) 243
E
Ex parte Kros 1986 (1) SA 642 (NC) 145
Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388
(A) 14, 21, 56, 58, 77, 79
F
Fanti v Boto (16451/2007) [2007] ZAWCHC 78; [2008] 2 All SA 533; 2008 (5) SA
405 (C) (13 December 2007) 74, 83, 101
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374; 1998 (12) BCLR 1458 (14
October 1998) 43
Fuzile v Ntloko 1944 NAC (C & O) 6 201
G
Gaga v Dyaba 1931 NAC (C & O) 4 152
Garane v Nkomokazi 2 NAC 68 201
Gomfi v Mdenduluka 3 NAC 21 (1912) 200, 201, 202
Gqozi v Mtengwane 1960 NAC 26 (S) 152
Gumede v President of the Republic of South Africa (CCT 50/08) [2008] ZACC 23;
2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December
2008) 17, 34, 38, 43, 46, 47, 62, 86, 96, 99, 112, 120, 128, 130, 131, 132, 133, 14
1, 143, 146, 155, 157, 236
Gunqashi v Cunu 2 NAC 93 (1910) 153
H
Hermansberg Mission Society v The Commissioner for Native Affairs and Darius
Mogalie 1906 TS 135 233
Hlophe v Mahlalela 1998 (1) SA 449 (T) 32, 38, 122, 123, 124, 205
Honey v Honey 1992 (3) SA 609 (W) 146
Hyde v Hyde and Woodmansee (1866) LR 1 P&D 93
455
Ismail v Ismail 1983 (1) SA 1006 (A) 13, 93
J
Justice Mpondombini Sigcau v President of the Republic of South Africa Case CCT
84/12 [2013] ZACC 18 237
K
Kambule v The Master (85) [2007] ZAECHC 2; [2007] 4 All SA 898 (E) (8 February
2007) 106
Kelatile v Mxoxelwa and Mtuti 4 NAC 322 204
Kewana v Santam Insurance Co Ltd 1993 (4) SA 771 (TkA) 178
Kodisang v Seakgela (1945) NAC (C & O) 51 206
Kosane v Molotya 1945 NAC (N & T) 70 202
Kulashe v Nkosi 1944 NAC (T & N) 22 201
L
Lequoa v Sipamla (1944) NAC (C & O) 85 209
M
Mabena v Letsoalo 1998 (2) SA 1068 (T) xiv, 26, 32, 33, 38, 58, 63, 101, 187, 189
Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7)
BCLR 743 (C) (4 March 2003) 46, 67, 80, 98, 100
Madolo v Mnukwa 11 SC 181 202
Mahala v Nkombombini 2006 (5) SA 524 (SE) 38
Maisela v Kgoloane NO 2000 (2) SA 370 (T) 188
Makapan v Khope 1923 AD 551 220
Malaza v Mndaweni 1975 AC (C) 45 169
Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April
2008) 98, 100, 103, 105
Maneli v Maneli (14/3/2-234/05) [2010] ZAGPJHC 22; 2010 (7) BCLR 703 (GSJ) (19
April 2010) 178
Mangaliso v Fekade 5 NAC 5 (1926) 150, 203
Manjezi v Sirunu 1950 NAC 252 (S) 152
Mathupa v Mahupye 1933 NAC (N & T) 6 150
Matsheng v Dhlamini 1937 NAC (N & T) 89 78
456
Mayeki v Kwababa 4 NAC 193 (1918) 152
Mayekiso v Mayekiso 1944 NAC (C & O) 81 169
Mayelane v Ngwenyama 2010 (4) SA 286 (GNP); [2010] JOL 25422
(GNP) 95, 140, 141, 142
Mayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013
(8) BCLR 918 (CC) (30 May 2013) 38, 67, 96, 117, 118, 144, 147, 191
Mazibuko v National Director of Public Prosecutions (113/08) [2009] ZASCA 52;
2009 (6) SA 479 (SCA); [2009] 3 All SA 548 (SCA) (26 May 2009) 134
Mbono v Sifuba 1 NAC 137 (1907) 201
Mcunu v Gumede (1938) NAC (T & N 6) 204
Mdoda v Skeyi 3 NAC 287 202, 204
Metal and Electrical Workers Union of SA obo Sibuyi v Wireforce Steelbar (Pty) Ltd
(2011) 32 ILJ 1481 (BCA) 216, 217
Metiso v Padongelukfonds 2001 (3) SA 1142 (T) 178
Mfazwe v Tetana 2 NAC 40 (1910) 153
Mfeketho v Satimani 1947 NAC (C & O) 108 207
MG v BM (10/37362) [2011] ZAGPJHC 173; 2012 (2) SA 253 (GSJ) (22 November
2011) 106
Mgangabode v Ntshentshe 4 NAC 13 (1920) 208
Mhlekwa and Feni v Head of the Western Tembuland Regional Authority 2001 (1)
SA 574 (Tk) 263, 264, 266
Mhlupheki v Bhoyi 1912 (1) NHC 38 204
Mkanzi v Masoka 1949 NAC 145 (S) 153
Mkunyana v Dumke (1939) NAC (C & O) 68 198
Mngantsiyana v Kyibi (1936) NAC (C & O) 64 203
Mogale v Engelbrecht 1907 TS 836 233
Mogale v Seima 2008 (5) SA 637 (SCA) 641 199
Mogidi v Ngomo 1948 NAC (N & T) 18 153
Moima v Matladi (1937) NAC (T & N) 40 208
Mokhantso v Chochane 1947 NAC (C & O) 15 201
Mokhatle v Union Government 1926 AD 71 214, 220, 233
Monakgotla v Minister of Native Affairs 1959 (1) SA 686 (T) 232, 233
Moseneke v Master of the High Court (CCT51/00) [2000] ZACC 27; 2001 (2) BCLR
103; 2001 (2) SA 18 (6 December 2000) 169
457
Mosii v Motseoakhumo 1954 (3) SA 919 (A) 232
Motaung v Motsoeneng (1939) NAC (C & O) 206
Motsoatsoa v Roro (46316/09) [2010] ZAGPJHC 122; [2011] 2 All SA 324 (GSJ) (1
November 2010) 83, 101
Mqitsane v Panya 1951 NAC 354 (5) 150
Mrubata v Dondolo 1949 NAC 174 (S) 86, 203
Mshweshwe v Mshweshwe 1946 NAC (C & O) 9 150
Mswala v Fleni 1948 NAC 5 202
Mthembu v Letsela 1997 (2) SA 936 (T); 1998 (2) SA 675 (T); 2000 (3) SA 867
(SCA) 54, 63, 64, 167, 169, 173
Mtsenene v Mlahlwa 4 NAC 20 203
Myoli v Skemjana (1939) NAC (C & 0) 105 203
Mzizi v Pamla 1953 NAC 71 (S) 153
Mzwakali v Mahlati 2 NAC 31 204
N
Nakabinde v Mhlangeni 1942 NAC (N & T) 89 202
Ndatambi v Ntozake 1 NAC 3 (1985) 151, 153
Ndlovu v Mokoena (2973/09) [2009] ZAGPPHC 29; 2009 (5) SA 400 (GNP) (20 April
2009) 101, 105
Nel v Cockroft 1972 (3) SA 592 (T) 139
Netshituka v Netshituka 2011 (5) SA 453 (SCA) 104, 183
Ngake v Mahahle 1984 (2) SA 216 (O) 190
Ngawana v Makuzeni 1 NAC 220 (1908) 200, 201
Ngcobo v Mdhlalose 1949 NAC (N-E) 68 199
Ngcobo v Zulu 1964 BAC 116 (N-E) 152
Ngqo v Twalana 5 NAC 9 202
Ngqobela v Sihele (1892–1893) 10 SC 346 93
N’guaje v Nkosa 1937 (NAC) 98 150
Ngwenyama v Mayelane (474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA);
2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June
2012) 95, 141, 142, 143, 144, 147
Nkambula v Linda 1951 (1) SA 377 (A) 93, 94, 169
Nkohla v Rakana 4 NAC 321 204
458
Nkuna v Kazamula 1941 NAC (N & T) 128 152
Nobumba v Mfecane 2 NAC 104 (1911) 192
No-Italy Phindiwe Mtirara v MEC for Housing, Local Government and Traditional
Affairs Unreported Case No 1402/2004 (High Court, Transkei Division) 241
Nomatshaka v Mhlokonywa 1933 NAC (C & O) 18 87
Novungwana v Zabo 1957 NAC 114 (S) 153
Nqanoyi v Njombeni 1930 NAC (C & O) 13 78
Ntinjane v Dinizulu 4 NAC 22 204
Ntshekentsheke v Gobo 1959 NAC (S) 57 193
Nwamitwa v Phillia 2005 (3) SA 536 (T) 30
P
Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President
of the Republic of South Africa (CCT31/99) [2000] ZACC 1; 2000 (2) SA 674; 2000
(3) BCLR 241 (25 February 2000) 43
Pickles v Pickles 1947 (3) SA 175 (W) 138
Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005
(1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004) 18
PSC v LPM [2013] JOL 29847 (GNP) 102
Q
Qobo v Poswayo (1945) NAC (C & 0) 45 203
R
R v Dumezweni 1961 (2) SA 751 (A) 219
R v Janoo 1959 (3) SA 107 (A) 222
R v Kumalo 1952 (1) SA 381 (A); [1952] 2 All SA 9 (A) 220, 232
R v Mane 1948 (1) SA 196 (E) 222
R v Mpanza 1946 AD 763 220
R v Pearston 1940 OPD 153 223
R v Phakane 1956 (3) SA 638 (E) 220
R v Sibiya 1955 (4) SA 247 (A) 219
R v Sita 1954 (4) SA 20 (E) 222
R v Swartbooi 1916 EDL 170 222
459
Radebe v Road Accident Fund (2012/10855) [2013] ZAGPJHC 135 (9 May
2013) 102
Radebe v Sosibo NO 2011 (5) SA 51 (GSJ) 134
Raisiba Maria Mathaba v Minister of Home Affairs [2013] JOL 30820 (GNP) 101
Ramothata v Makhote 1934 NAC (N & T) 74 85
Reyneke v Reyneke 1990 (3) SA 927 (E) 139
S
S v Alam 2006 (2) SACR 613 (Ck) 216, 218
S v Benn; S v Jordaan; S v Gabriels 2004 (2) SACR 156 (C) 215
S v Dalindyebo Eastern Cape High Court, Mthatha, Unreported Case No 267/04 259
S v Katelane 1973 (2) SA 230 (N) 223
S v Latha 2012 (2) SACR 30 (ECG) 216, 218
S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) (26 September
2007) 123
S v Maluleke 2006 (1) SACR 402 (T) 217
S v Maluleke 2008 (1) SACR 49 (T) 213
S v Makhalemele 1986 (2) SA 20 (O) 222
S v Makwanyane (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391;
[1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) 18, 64, 214, 215, 220
S v Matlapeng 1970 (1) SA 333 (T) 219
S v Mngadi 1971 (2) SA 220 (N) 220
S v Moshesh 1962 (2) SA 264 (E) 219
S v Mxhamli 1992 (2) SACR 704 (Tk) 223
S v Williams (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC)
(9 June 1995) 215
Santam v Fondo 1960 (2) SA 467 (A) 85, 93
Sawintshi v Magidela 1944 NAC (C & O) 47 84
Seedat’s Executors v The Master (Natal) 1917 AD 302 93
Shabangu v Masilela 1939 NAC (N & T) 86 153
Shibi v Sithole Unreported Case No 7292/01 of 19 November 2003 North Gauteng
High Court 66, 174
Shilubana v Nwamitwa 2007 (2) SA 432 (SCA) 30
460
Shilubana v Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009
(2) SA 66 (CC) (4 June
2008) 19, 30, 31, 37, 43, 46, 47, 51, 58, 66, 67, 68, 69, 160, 165, 229, 236, 241, 2
45
Sicefe v Nyavozake 5 NAC 17 203
Sigcau v President of the Republic of South Africa (CCT 93/12) [2013] ZACC 18;
2013 (9) BCLR 1091 (CC) (13 June 2013) 244, 245
Sigcau v Sigcau 1941 CPD 334 57
Sigcau v Sigcau 1944 AD 67 57, 68
Sihoyo v Mandobe 1941 NAC (C & O) 5 153
Simanga Mankayi v Nosawusi Mbi-Maselana 4 NAC 337 (1918) 216
Sindane v Mbhokazi (1930) NAC (T & N) 204
Sonyabashe v Maqungo (1938) NAC (C & O) 1 204
T
Thembisile v Thembisile 2002 (2) SA 209 (T) 106, 153, 190
Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T) 55, 81, 121, 178
Thulare v Thulare Unreported Case No 50275/09, Gauteng, 10 June 2011 243
Tongoane v National Minister for Agriculture and Land Affairs (CCT100/09) [2010]
ZACC 10; 2010 (6) SA 214 (CC); 2010 (8) BCLR 741 (CC) (11 May
2010) 10, 15, 16, 20, 227, 229
Tonjeni v Tonjeni 1947 4 NAC (C & O) 8 169
Tsoali v Lebenya (1940) NAC (C & 0) 22 204
Tusi v Cekwaan 1939 NAC (N & T) 63 152, 153
V
Van Breda v Jacobs 1921 AD 330 30, 67
Visser v Hull (4375/2008) [2009] ZAWCHC 77; 2010 (1) SA 521 (WCC) (21 May
2009) 135, 136, 138
X
Xakata v Kupuka 2 NAC 62 (1910) 153
Xanase v Tunce (1939) NAC (C & O) 36 203
Xulu v Nene 1939 NAC (T & N) 202
461
Y
Yako v Beyi (1944) NAC (C & 0) 72 203
Yared v Yared 1952 (4) SA 182 (T) 139
Z
Zakaza v Dennis Pennington 4 NAC 192 208
Zondi v President of the Republic of South Africa 2000 (2) SA 49 (N) 170
462
Table of legislation
International Conventions
Convention on the Elimination of All Forms of Discrimination Against Women
of 1979
Section 15(2) 115
South Africa
A
Abolition of Corporal Punishment Act 33 of 1997 215
Section 2 262
Administration of Estates Act 66 of 1965 184
Administrative Authorities Act (Ciskei) 37 of 1984 234
Age of Majority Act 57 of 1972 111, 112
Alienation of Land Act 68 of 1981 136, 137
B
Black Administration Act 38 of 1927
(BAA) 21, 33, 112, 158, 161, 166, 167, 172, 176, 189, 224, 229, 251, 256, 265
Schedule 3 214, 252, 259, 266
Section 1 11
Section 2(7) 11, 232, 257
Section 2(9) 219
Section 3(1) 258
Section 5 11
Section 5(1) 232
Section 6(1) 255
Section 11 12, 16, 114
Section 11A 114
Section 11(1) 12, 53, 54, 55, 56, 78, 79, 93
Section 11(3) 114
Section 11(3)(b) 111, 114, 258
Section 12 214, 252, 255, 263, 266
463
Section 12(1) 253, 259
Section 12(2) 253
Section 12(3) 253
Section 12(4) 253, 260
Section 12(6) 253
Section 20 214, 252, 255, 266
Section 20(1) 11, 253, 259
Section 20(2) 214, 215, 253, 260, 262
Section 20(3) 253
Section 20(4) 253
Section 20(5) 253
Section 20(6) 253
Section 20(9) 253
Section 22 183
Section 22(6) 12, 168, 170
Section 22(7) 169
Section 23 12, 63, 79, 87, 160, 168, 174, 175, 183
Section 23(1) 12, 168, 170
Section 23(2) 168, 170, 171
Section 23(7) 169
Section 23(10) 53, 168, 169, 174
Section 23(10)(a)–(e) 53
Section 25 257
Section 27(7) 183
Section 31 85, 170
Section 35 94
Black Administration Amendment Act 9 of 1929 255
Section 9 94
Black Areas Land Regulations Proc R188 of 1969 12
Black Authorities Act 68 of 1951 21, 229, 235, 251
Section 2 15, 233
Section 3 15, 233
Section 3(5) 233
464
Section 4(1)(a) 15
Section 4(1)(b) 15, 233, 255
Section 4(1)(c) 15
Section 4(1)(d) 15, 232
Section 8 15, 234
Section 9 15, 234
Black Authorities Act Repeal Bill (B9-2010)
Memorandum Clause 1.2 229
Black Land Act 27 of 1913 (Natives Land Act 27 of 1913) 10, 11, 21
Black Laws Amendment Act 76 of 1963
Section 31 94
Section 78 235
Section 79 235
Bophuthatswana Traditional Courts Act 29 of 1979 253
C
Chiefs’ and Headmen’s Civil Court Rules 208
Rule 1 263
Rule 2 263
Rule 3 263
Rule 4 263
Rule 5 263
Rule 6 263
Rule 7 263
Rule 8 263
Rule 9 263
Rule 10 263
Rule 11 263
Rule 13 264
Chiefs Courts Act 6 of 1983 253
Children’s Act 38 of 2005 108, 123, 146, 156
Section 1 112
Section 1(1) 124, 125
465
Section 1(2) 124
Section 6 127
Section 6(1)(a) 127
Section 6(1)(b) 127
Section 6(2) 127
Section 6(3) 127
Section 7 126, 127
Section 7(f)(i) 124
Section 7(f)(ii) 124
Section 9 126
Section 17 111, 187
Section 18 124
Section 18(2) 125
Section 18(3) 104, 125
Section 18(3)(c) 125
Section 18(4) 125
Section 19 125
Section 20 125
Section 21(1) 205
Section 31(1)(a) 125
Section 31(1)(b) 126
Ciskei Administrative Authorities Act 37 of 1984 253
Civil Union Act 17 of 2006 179
Section 1 181
Communal Land Rights Act 11 of 2004 20
Communal Property Associations Act 28 of 1996 240
Constitution Act of 1977 (Bophuthatswana) 171
Constitution of the Republic of South Africa Act 200 of 1993 (interim
Constitution) 37, 121, 173, 175
Constitutional Principle XI 17, 18, 22, 61, 62
Constitutional Principle XIII 17, 18, 22, 161
Epilogue 18
Section 14 19
466
Section 30 122
Section 30(3) 122
Section 181 17
Section 181(1) 17
Section 182 17
Section 183 17
Section 184 17
Constitution of the Republic of South Africa, 1996 (final
Constitution) 17, 22, 31, 37, 41, 43, 44, 48, 49, 63, 64, 66, 67, 71, 84, 97, 103, 11
3, 128, 131, 143, 146, 160, 165, 177, 187, 196, 201, 205, 223, 241, 246, 247, 248,
251, 252
Chapter 2 171, 173, 178, 179, 186
Chapter 12 19, 20
Schedule 6
Section 2 253
Section 2(1)(a) 34
Section 2(1)(b) 34
Section 14 253
Section 16(1) 253, 266
Section 1(c) 42
Section 2 42, 46
Section 8 19, 47
Section 8(2) 36
Section 9 32, 47, 94, 118, 169, 174, 177
Section 9(2) 115
Section 9(3) 18, 115
Section 10 174
Section 15 19, 47, 94
Section 18 47
Section 28 124, 175
Section 28(2) 123, 124, 190
Section 30 19, 59, 62, 94
Section 31 19, 47, 59, 62, 94
467
Section 34 265
Section 36 175
Section 39 19, 161
Section 39(2) 19, 34, 35, 38, 39, 76, 80, 81, 82, 116, 173, 188, 193, 262
Section 39(3) 19, 116, 236
Section 43 249
Section 104 249
Section 165(2) 263
Section 166(e) 254
Section 172(1) 124
Section 211 47
Section 211(1) 228, 250
Section
211(3) 19, 46, 47, 52, 58, 59, 60, 62, 65, 69, 70, 81, 82, 83, 88, 111, 116, 125, 1
61, 173, 186
Section 212(1) 47, 228, 250
Sections 226–230A 249
Section 228(2)(b) 249
Section 235 19, 20, 47, 240
Section 241 34
Courts Act 49 of 1898
Section 80 78
Criminal Law Amendment Act 105 of 1997
Schedule 2 Part 1 paras (a)–(f) 218
Section 51(1) 218
Criminal Procedure Act 51 of 1977
Section 297 213
Section 300 213
Section 301 213
D
Divorce Act 70 of 1979 149
Section 6 156, 157
Section 7 154, 157
468
Section 7(1) 156
Section 7(2) 156
Section 7(3) 155
Section 8 154, 156, 157
Section 9 154, 157
Section 10 154, 157
F
Free State Traditional Leadership and Governance Act 8 of 2005 227
I
Income Tax Act 58 of 1962
Section 1 94
Intellectual Property Laws Amendment Bill [B8-2010] 20
Intergovernmental Relations Framework Act 13 of 2005 227
Interim Protection of Informal Land Rights Act 31 of 1996 20, 240
Intestate Succession Act 81 of
1987 36, 65, 87, 118, 161, 176, 178, 180, 182, 184, 185
Section 1(4) 174
Section 1(4)(b) 53, 54, 63, 175
Intestate Succession Law Restatement Act 13 of 1990
(Bophuthatswana) 162, 168, 171, 181
K
KwaNdebele Traditional Hearings of Civil and Criminal Cases by the
Lingwenyama, Amakhosi, Amakhosana and Linduna Act 8 of 1984253
KwaZulu Act on the Code of Zulu Law 16 of
1985 12, 13, 33, 34, 108, 112, 128, 170, 224
Chapter 8 99
Chapter 10 168
Chapter 12 197, 209
Section 1 171, 191, 194
Section 1(1) 35
Section 3(2) 234
469
Section 7(1) 219
Section 16(2) 124
Section 20 130, 131
Section 22 131
Section 27(2) 205
Section 30 214
Section 34 205
Section 38(1) 99
Section 43 99
Section 47 99
Section 50(1) 153
Section 51 99
Section 52 99
Section 61 204
Section 67(2) 204
Section 79 171
Section 79(1) 161, 171
Section 79(2) 161, 171
Section 79(3) 171
Section 82 205
Section 93 199
Section 94 199
Section 98 205
Section 98(1) 206
Section 98(3) 204
Section 99 200, 201
Section 102 198
Section 102(4) 198
Section 105(1) 132
Section 116 207
KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990 253
KwaZulu-Natal Traditional Leadership and Governance Act 5 of 2005 227, 243
470
Law 4 of 1885 (Transvaal) 9
Section 2 78
Law of Evidence Amendment Act 45 of 1988 (LEAA) 49, 68
Section 1 16, 22, 54, 190
Section 1(1) 46, 51, 55, 56, 57, 59, 67, 75, 79, 80, 81
Section 1(2) 35, 54, 56, 57
Section 1(3) 74, 75, 76, 83, 88, 132
Laws on Co-operation and Development Second Amendment Act 90 of
1985 114
Limpopo Traditional Leadership and Institutions Act 6 of 2005 227, 249
Local Government: Municipal Systems Act 32 of 2000 20, 227, 247
M
Magistrates’ Courts Act 32 of 1944
Section 54A(1) 16
Maintenance Act 23 of 1963
Section 5(6) 94
Maintenance of Surviving Spouses Act 27 of 1990 174, 185
Marriage Act 25 of 1961 36, 107, 110, 115, 116, 128, 143, 183
Section 24A 104
Section 24A(1) 104
Section 24A(1)(a) 104
Section 24A(1)(b) 104
Section 24A(2) 104
Section 25 104
Marriage and Matrimonial Property Law Amendment Act 3 of 1988 16, 169, 183
Matrimonial Property Act 88 of 1984 (MPA) 36, 108, 110, 132
Chapter 3 133
Chapter 4 133
Section 1 136
Section 14 134
Section 15(1) 134
471
Section 15(2)(d) 135
Section 15(2)(e) 135
Section 15(2)(f) 135
Section 15(2)(g) 135
Section 15(2)(h) 135
Section 15(4) 135, 136
Section 15(5) 135
Section 15(7) 137
Section 15(8) 136
Section 15(9)(b) 134, 137, 139
Section 16 138
Section 16(2) 137, 138
Section 17(1) 135
Section 18 133
Section 19 133, 134
Section 20 133, 138
Section 20(1) 138
Section 21 146, 154
Section 24 133
Section 24(1) 154, 157
Mediation in Certain Divorce Matters Act 24 of 1987 156, 157
Mineral and Petroleum Resources Development Act 28 of 2002 20
Mpumalanga Traditional Leadership and Governance Act 3 of 2006 227
N
Natal Code of Zulu Law Proc R151 of 1987 12, 13, 33, 34, 108, 112, 128, 224
Chapter 8 99
Chapter 10 168
Chapter 11 220
Chapter 12 197, 12
Chapter 14 220
472
Section 1 171, 191, 194, 222
Section 1(1) 35
Section 3(2) 234
Section 7(1) 219
Section 16(2) 124
Section 27(2) 205
Section 38(1) 99
Section 20 130, 131
Section 22 131
Section 30 214
Section 34 205
Section 57(2) 93
Section 43 99
Section 47 99
Section 50(1) 153
Section 51 99
Section 52 99
Section 61 204, 221
Section 61(2) 221
Section 62 221
Section 67(2) 204
Section 79 171
Section 79(1) 161, 171
Section 79(2) 161, 171
Section 79(3) 171
Section 82 205
Section 90(1) 220
Section 90(2) 220
Section 93 199
Section 94 199
Section 98 205
Section 98(1) 206
Section 98(3) 204
Section 99 200, 201
473
Section 102 198
Section 102(4) 198
Section 105(1) 132
Section 115 220
Section 116 207
Section 116(1) 221
Section 117 220, 221
Section 162(1)(b) 223
Natal Law 11 of 1864 85
National Credit Act 34 of 2005 135, 137
National House of Traditional Leaders Act 22 of 2009 227
Native Administration Amendment Act 13 of 1955 11
Native Trust and Land Act 18 of 1936 10, 15
Section 21 257
Northern Cape Traditional Leadership Governance and Houses of Traditional
Leaders Act 2 of 2007 227
North West Traditional Leadership and Governance Act 2 of 2005 227
P
Prescription Act 68 of 1969 208
Prevention and Combating of Corrupt Activities Act 12 of 2004
Chapter 2 259
Section 17 259
Section 20 259
Section 21 259
Prevention of Organised Crime Act 121 of 1998 134
Proclamation 110 of 1957 257
Proclamation 140 of 1885
Section 22 52, 68
Proclamation (Cape) 145 of 1923
Section 104(10) 53, 68
Proclamation R45 of 1961 260
474
Q
QwaQwa Administration Authorities Act 6 of 1983 253
R
Recognition of Customary Marriages Act 120 of 1998
(RCMA) 36, 39, 60, 93, 100, 106, 107, 108, 109, 110, 114, 115, 124, 128, 132, 14
8, 182, 189
Preamble 95
Section 1 26, 95, 96, 97, 153, 188
Section 2 133, 174, 179
Section 2(1) 92, 95, 99
Section 2(2) 92, 95, 102
Section 2(3) 92, 95, 99, 116
Section 2(4) 92, 95, 102, 116
Section 3 86, 102, 144, 187, 223
Section 3(1) 102, 103
Section 3(1)(b) 91, 92, 96, 102, 103, 122, 191
Section 3(2) 103
Section 3(3) 104
Section 3(3)(a) 104
Section 3(4) 104
Section 3(5) 104
Section 3(6) 104
Section 4(2) 105
Section 4(3)(a) 105
Section 4(3)(b) 105
Section 4(4)(a) 105
Section 4(4)(b) 105
Section 4(5) 105
Section 4(5)(a) 105
Section 4(5)(b) 105
Section 4(7) 105
Section 4(8) 105
Section 4(9) 105, 106
475
Section 6 112, 113, 114, 120, 121, 129, 187, 201
Section 7(1) 96, 128, 133
Section 7(2) 96, 133, 140, 143
Section 7(3) 133
Section 7(4) 145, 146, 154
Section 7(4)(a) 145
Section 7(4)(b) 145
Section 7(5) 154
Section 7(6) 95, 96, 141, 142, 144, 147, 154
Section 7(7) 140, 141, 143, 154
Section 7(7)(a)(i) 143
Section 7(7)(a)(ii) 143
Section 7(7)(a)(iii) 143
Section 7(8) 141
Section 8 156
Section 8(1) 149
Section 8(2) 149
Section 8(4)(a) 154, 155, 156, 157
Section 8(4)(b) 154, 157
Section 8(4)(c) 156
Section 8(4)(d) 156
Section 8(4)(e) 156
Section 8(5) 153
Section 9 111
Section 10 183
Section 10(1) 103
Section 10(2) 104
Section 11 105
Section 12 112
Section 13 131
Recognition of Customary Marriages Amendment Bill, 2009
Clause 4(2) 105
Clause 4(c) 105
476
Reform of the Customary Law of Succession and Regulation of Related
(RCLSA) 36, 39, 60, 158, 159, 168, 171, 175, 176, 177, 185
Section 1 26, 178
Section 1(b) 181
Section 2 87, 181
Section 2(1) 87, 180
Section 2(2)(a) 180, 181, 182
Section 2(2)(b) 178, 179, 180, 181, 182
Section 2(2)(c) 178, 179, 180, 181, 182
Section 3(1) 181
Section 3(2) 182
Section 3(3) 180
Section 4 182, 191
Section 4(1) 182
Section 4(2) 182
Section 4(2)(a) 180
Section 4(2)(b) 180, 181
Section 4(3) 183
Section 5 182, 184
Section 5(1) 184
Section 5(2) 184
Section 5(3) 184
Section 5(4) 184
Section 5(5) 184
Section 6 184
Section 7(1) 183
Section 7(2) 169, 183
Regional Authorities Courts Act 13 of 1982 (Transkei) 253
Section 7 263
Regulations for the Administration and Control of Townships in Black Areas
Proc R293 of 1962 12
477
Regulations for the Administration and Distribution of the Estates of Deceased
Blacks GN R200 of 1987 16, 158, 167, 168
Regulation 2 12, 53, 87, 161, 174, 175
Regulation 2(b) 170
Regulation 2(c) 170, 174
Regulation 2(d) 169, 170
Regulation 2(e) 87, 169
Regulation 3(1) 169
Regulations for the Recognition of Customary Marriages Act GN 1101 105
Regulations Governing the Control and Supervision of an Urban Black
Residential Area and Relevant Matters GN R1036 of 1968 12
Remuneration of Public Office Bearers Act 20 of 1998 227, 243, 249
Remuneration of Public Office Bearers Amendment Act 9 of 2000 249
Repeal of the Black Administration Act and Amendment of Certain Laws Act 28
of 2005 167, 253
Restitution of Land Rights Act 22 of 1994 240
S
Self-Governing Territories Constitution Act 21 of 1971 14
Succession Act 23 of 1982 (Bophuthatswana) 171
T
Traditional Courts Bill [B1-2012] 20, 253, 254, 266
Item 3 of the Memorandum on the Objects 253
Traditional Leadership and Governance Act 4 of 2005 (Eastern
Cape) 227, 242, 243
Traditional Leadership and Governance Framework Act 41 of 2003
(TLGFA) 60, 184, 227, 235, 244, 245, 250, 258
Section 1 238, 239
Section 1(1) 241
Section 1(2) 238
Section 2 20, 238, 239, 251
Section 2(3)(c) 258
478
Section 3 20, 240
Section 3(2) 241
Section 3(2)(c) 258
Section 4 246
Section 4(1) 247
Section 4(1)(a) 247
Section 4(1)(b) 247
Section 4(2) 249
Section 4(3)(b) 249
Section 5 247
Section 5(3) 20
Section 7 20, 239
Section 8 237
Section 11(1) 242
Section 11(3) 242
Section 12(1)(a) 214, 215, 242
Section 12(1)(b) 214, 215, 242
Section 12(1)(d) 214, 215, 242
Section 19 247
Section 20 248
Section 20(1)(f) 258
Section 20(2) 249, 251
Section 20(2)(b) 20
Section 20(2)(f) 20, 248
Section 20(2)(g) 248
Section 20(2)(m) 20
Section 20(4) 249
Section 21(3) 246
Section 22 229, 236
479
Section 25 236, 237
Section 26 239
Section 28(1) 238, 251
Section 28(3) 20, 239, 251
Section 28(4) 20, 241, 251
Section 28(5) 20, 239
Section 29 243
Traditional Leadership and Governance Framework Amendment Act 23 of
2009 227, 237
Transkei Authorities Act 4 of 1965 253
Transkei Marriage Act 21 of 1978 12, 112, 128, 168
Section 31 99
Section 38 162
U
Uniform Rules of Court
Rule 43 156
Union of South Africa Act, 1909 10
Upgrading of Land Tenure Rights Act 112 of 1991 240
Upgrading of Land Tenure Rights Amendment Act 34 of 1996
Section 1(a) 240
V
Venda Traditional Leaders Administration Proclamation 29 of 1991 253
W
Wills Act 7 of 1953 86, 159, 161, 171
Section 3(1) 87
Witchcraft Suppression Act 3 of 1957 224
Section 1 217
Section 1(a) 216, 217
Section 1(b) 218
Section 1(c) 218
Section 1(d) 218
480
Section 1(e) 218
Zambia
Subordinate Courts Act Cap 28
Section 16 80
481

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1

THANDABANTU NHLAPO (EDITOR)

Published in South Africa by

Vasco Boulevard, Goodwood, N1 City, Cape Town, South Africa, 7460

© Oxford University Press Southern Africa (Pty) Ltd 2014

The moral rights of the author have been asserted

First published 2014

All rights reserved. No part of this publication may be reproduced, stored in a

African Customary Law in South Africa: Post-Apartheid and Living Law

Print edition ISBN: 9780199057184

First impression 2014

Typeset in Utopia Std Regular 9.5pt on 12pt

The authors and publisher gratefully acknowledge permission to reproduce copyright

PART ITHEORETICAL AND STRUCTURAL OVERVIEW OF AFRICAN

CHAPTER 1 HISTORICAL OVERVIEW OF CUSTOMARY LAW

CHAPTER 2 THE NATURE AND CONCEPT OF CUSTOMARY LAW

CHAPTER 3 LEGAL PLURALISM

CHAPTER 4 ASCERTAINMENT AND PROOF OF CUSTOMARY LAW

CHAPTER 5 INTERNAL CONFLICT OF LAWS

PART II PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY

CHAPTER 7 CONSEQUENCES OF MARRIAGE

CHAPTER 8 DISSOLUTION OF MARRIAGE

CHAPTER 9 THE CUSTOMARY LAW OF SUCCESSION

CHAPTER 10 CONTRACTUAL OBLIGATIONS IN CUSTOMARY LAW

CHAPTER 11 CUSTOMARY LAW OF DELICT

CHAPTER 12 CRIMINAL LAW

PART III POLITICAL AND CIVIC ASPECTS OF AFRICAN CUSTOMARY LAW

CHAPTER 13 TRADITIONAL LEADERSHIP INSTITUTIONS

CHAPTER 14 TRADITIONAL COURTS

PART ITHEORETICAL AND STRUCTURAL OVERVIEW OF AFRICAN

CHAPTER 1HISTORICAL OVERVIEW OF CUSTOMARY LAW

CHAPTER 2THE NATURE AND CONCEPT OF CUSTOMARY LAW

CHAPTER 3LEGAL PLURALISM

CHAPTER 4 ASCERTAINMENT AND PROOF OF CUSTOMARY LAW

CHAPTER 5INTERNAL CONFLICT OF LAWS

PART II PERSONAL LAW AND PERSONAL RIGHTS IN AFRICAN CUSTOMARY

CHAPTER 7CONSEQUENCES OF MARRIAGE

CHAPTER 9 THE CUSTOMARY LAW OF SUCCESSION

CHAPTER 10 CONTRACTUAL OBLIGATIONS IN CUSTOMARY LAW

CHAPTER 11 CUSTOMARY LAW OF DELICT

CHAPTER 12 CRIMINAL LAW

PART III POLITICAL AND CIVIC ASPECTS OF AFRICAN CUSTOMARY LAW

CHAPTER 13 TRADITIONAL LEADERSHIP INSTITUTIONS

CHAPTER 14 TRADITIONAL COURTS

This is an introductory textbook for undergraduate students who are studying

THANDABANTU NHLAPO (Editor)

CHUMA HIMONGA (Editor)

SINDISO MNISI WEEKS

DIAL DAYANA NDIMA

The Publisher and Editors express sincere appreciation to:

About the book

African Customary Law in South Africa: Post-Apartheid and Living Law

Brief description of features

The authors and publishers gratefully acknowledge permission to reproduce

Historical overview of customary law

1.2 Colonialism (1652–1909)

1.3 Union (1910–1947)

1.4 Apartheid (1948–1990)

1.5 Transitional period (1990–1996)

This chapter in essence

1.2 Colonialism (1652–1909)

It is important to understand certain key concepts and policies before proceeding

1.2.2 Socio-economic and political context of colonialism

Scholars generally agree that colonialism, as a global phenomenon, was largely a