AFRICAN CUSTOMARY LAW 278

CHAPTER 1

LEGAL PLURALISM

Legal pluralism = the coexistence of multiple legal systems within one society / one area of jurisdiction

• SA = multicultural society observing various legal systems, and although legal effect is given to certain institutions of,
e.g., Muslim Law – African Customary Law is the original law of the land and is officially recognised alongside Western
Law
• Legal pluralism results from the prevailing cultural pluralism
• Narrowly interpreted “legal pluralism” may be construed as the coexistence of various officially recognised state-laws
- State-laws = Roman Dutch law – as influenced by:
➢ English law
➢ Customary law incorporated into legislation and pronounced on by judicial decision (official)
➢ Living customary law
• This narrow interpretation of legal pluralism (=state-law pluralism) – does not explain SA reality, as it does not take note
of unofficially observed legal systems

BROAD VS NARROW INTERPRETATIONS

A. NARROW INTERPRETATION: STATE-LAW/WEAK LEGAL PLURALISM

• Based on a “dual systems” theory of legal pluralism
• Exists when European/Western common law and customary law run parallel in one area of jurisdiction and interact in
limited, prescribed circumstances
• Closely associated with legal positivism and legal centralism

LEGAL POSITIVISM LEGAL CENTRALISM

• Law can only be found in tangibly/empirically The idea that:
observable sources • Law should be state-sanctioned
• The law cannot be based on moral values • Uniform for everyone
- The law is what it is, not what it ought to be • Exclusive of all other law
• Administered by a single set of state institutions
• Only common law or official customary law will be
recognised by this approach

• The narrow understanding of legal pluralism flows from the perception that law consists of norms created and sanctioned
by official state organs – according to a basic rule of recognition
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 - Thus, laws derived from other institutions that are not state-sanctioned only become “law” when state authorises them

• Dating back to colonial times – indigenous people neither had desire not consciousness/voluntariness in subjecting
themselves to foreign law
• State-law dictates:
➢ Which laws may be applied
➢ When they are applicable
➢ When they should be regarded as acceptable – generally when they are not repugnant to Western moral ideas
➢ How they should be ascertained
➢ How conflicts with national law (common law) should be handled
• Even though the Const recognises cust law as a source of SA law – Western law is sometimes still regarded as the
dominant system and Western values primarily direct legal development
- Thus, Western law can sometimes be oversighted as being dominant

• State-law results in inequality because Western law will always dominate – resulting in weak legal pluralism
- Resulting, for many years, from the repugnancy clause

Repugnancy clause:
This doctrine prescribes that the courts shall not enforce any cust law rule if it is:
➢ Contrary to public policy; or
➢ Repugnant to / in conflict with natural justice, equity and good conscience

• Customary law would only apply if clearly ascertainable

• Colonisers used their own definitions and understanding to try conform customary law

B. DEEP LEGAL PLURALISM/BROAD INTERPRETATION

• Legal pluralism should be considered in a broader sense – a factual situation in society where various systems are
observed
- Official recognition of specific legal systems and non-recognition of others does not affect the factual existence of
legal pluralism
- Recognition determines the status of the legal systems which are officially and unofficially observed in a society
- i.e., the dominance of the central state law is irrelevant to the continued existence of unofficial systems

• Religious legal systems fall within this category – whose followers adhere to the normative authority of non-state
authorities because they feel socially obliged to do so
• The Const allows for the recognition of personal/family law traditions under any system – but emphasis is till on state
law because recognition remains a requirement for existence of those other legal systems

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 HISTORICAL EMERGENCE OF STATE LAW PLURALISM
• Originated during 2 British occupation of the Cape
nd

• Through missionaries and traders, Europeans had some effect on traditional cultures – but there was no record of any
recognition of these customary systems
- Thus, no trace of any form of state-law pluralism
• The DEIC (Dutch East India Company) had little interest in the Southern African interior – their primary interest in this
part of Africa was its strategic position
• The Raad van Justitie (highest court) was established in 1685 – with all lower courts operated by inexperienced laymen
who paid no attention to the systems of the traditional peoples

• As a result of British articles of capitulation which stated that the laws of a conquered nation would remain in force until
repealed – the change from Batavian to British control had no effect until the 2nd occupation
• It was only in 1806 (after the British occupation of the Cape) that cust law was officially regulated for the first time
• By mid-19th century SA was “zoned” (Boer Republic and English colonies) – who all aspired to “civilise” the native people
• Where cust law was recognised, it was subject to the repugnancy clause

• 1833 in the Cape, the British introduced a treaty system with chiefs to avoid direct rule of the indigenous peoples
- The policy was to control traditional communities through treaties with their chiefs
- Through these, the indigenous peoples became British subjects and, in essence, subjected themselves to British rule
– but retained their cust laws and customs
- This is regarded as the first instrument of state law pluralism
- Treaty systems abolished in 1845

• The Cape Native Succession Act 1864 and Kaffraria Native Succession Ordinance of 1864 were the first explicit
instruments recognising certain cust institutions
• Limited recognition was also given in Natal (Code of Zulu Law 1878)

• By 1910 cust law was recognised to a limited extent in all SA regions – but without conformity in the mass of various
laws – which regulated cust law
• The Black Administration Act = the first legislative instrument entrenching state-law pluralism for the country
• Black Administration Act combined all legislation
- S 11(1) said that cust law could apply if it was readily ascertainable – if it is not in conflict with boni mores, public
policy or the rules of natural justice (you cannot be a judge in your own matter, and always listen to the other side)

HISTORICAL EMERGENCE OF DEEP LEGAL PLURALISM

• ACL history is unwritten and carried down through oral tradition (primary source of information)
- Thus, had to determine to what extent legal pluralism existed before colonial SA

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 - Being unwritten history, there is insufficient evidence of the observance of more than one legal system in a single
society; or the coexistence of heterogenous communities with different legal systems within a single society

• Deep legal pluralism originated before state-law pluralism

• It began when the DEIC established a trading post in the Cape
• The Khoi employed at the refreshment station, like the other employees of the DEIC – were subject to the same imposed
Western laws
• Although disregarded by the official state authority – the traditional communities continued to observe their cust laws

• During British rule – the first Magistrate’s Courts were dispersed over large areas
- Due to insufficient policing – the government was unable to stop the influence of unofficial traditional courts on
application of official cust law
- As a result, magistrates, headmen, and chiefs continued to apply cust law despite the Cape’s non-recognition thereof
- In the Afrikaner Republics – cust courts continued to operate unofficially

• The application of unofficial cust laws and institutions became so widespread that the Native Laws and Customs
Commission of 1883 recommended that cust law be unofficially recognised as an uncodified system of common law
- The Cape government gave NO effect to the Commission's recommendations
➢ As a result: Magistrates/cust courts continued to apply unofficial cust law – while the HC refused in the absence of
a statutory provision allowing for it

Section 1.4.2 – 1.4.4 is self-study, just read through, unlikely to be tested

PEOPLE’S LAW
• People’s law has its roots in traditional cust law – but developed in urban areas populated mainly by African people in
reaction to the lack of legitimacy of the official legal order of the state
• People’s law resulted from:
(a) Class contradictions – people wanted to use system they were familiar with
(b) Lack of legal resources/access to justice
(c) Economic factors – people couldn’t afford attorneys
(d) Inefficiency of the existing justice system – people were denied basic rights

• The urban communities continued establishing informal dispute-settlement structures – which applied and adapted
urbanised cust law
- The regimental courts would usually be responsible for initiation ceremonies
- Family counsels were usually responsible for dispute resolutions

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 LEGAL PLURALISM IN SA TODAY

A. STATE LAW PLURALISM

• State law today consists both of:
1) Western component:
➢ Common law, legislation, judicial precedent and custom (not African)

2) African component:
➢ Official cust law (incorporated into legislation or pronounced upon in judicial decision); and
➢ A substantive body of living cust law not explicitly included in judicial precedent/legislation
o i.e., indirectly supported and recognised by the state

• Ito s 211(3) of the Const and s 1(1) of the Law of Evidence Amendment Act 45 of 1988 – the African component
includes customs/usages readily ascertainable with sufficient certainty
➢ Not opposed to Western ideas of natural justice and public policy
➢ Not in conflict with the Const
o The repugnancy clause

• Assimilation between cust law and Western law appears to be happening – a blending of the 2 systems into 1 unified
system within a Western-valued framework
- New awareness
- Const recognises:
➢ Culture, race, religion and equality (s 9 of the Const)

• E.g., as a result of s 9(4) of the Const – the impact of the Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000:
- According to this Act – the right to equality will take preference
- Introduction – cust law inherently patriarchal system
- S 8 prohibits discriminatory practices

• Further examples:
a) Law Reform Commission report in 2000 stated that it aimed at assimilating the 2 (common law and cust law) into
1 legal system
b) Bhe v Magistrate, Khayelitsha – CC struck down male primogeniture
▪ CC declared this cust rule = unconstitutional
c) The Recognition of Cust Marriages Act 120 of 1998 recognising cust marriages (s 6) – evidences movement
towards the common law

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 B. DEEP LEGAL PLURALISM
• State regulation, although often resulting in distortion – could not suppress the natural development of cust law and its
institutions
- The unofficial application of cust law by both official and unofficial institutions bears witness to the tenacity of cust law
– and its inherent ability to adapt to changing circumstances without losing its traditional character

• Today, many informal dispute-settlement institutions such as regimental courts/family counsels settle many informal
disputes
• The courts of the ward heads are traditional administrative and judicial tribunals functioning unofficially in rural areas
• Sometimes the official traditional authority courts function as unofficial tribunals of living cust law when they operate
outside the ambit of legislation
• There’s a widening divergence between official and living cust law – because official cust law is more static
- Bhe v Magistrate, Khayelitsha – the court said official cust law should be brought in line with living cust law
- In Mabena v Letsoalo – the court gave effect to living Pedi law, confirming women could be heads of families and
receive lobolo

1. Islamic Law:
• Courts are more tolerant of Islamic personal laws – but (guided by an ethos of legal positivism) are hesitant in recognising
institutions not aligned with Western values
• Amod v Multilateral Motor Vehicle Fund
- Court granted relief to plaintiff by giving effect to a contract flowing from a marriage concluded according to Islamic
rites – but explicitly declined to recognise a Muslim marriage as a marriage

• Daniels v Campbell
- CC declared that “spouse” used in the Intestate Succession Act 81 of 1987 and “survivor” as used in the Maintenance
of Surviving Spouse Act 27 of 1990 – includes surviving partner to monogamous Muslim marriages
- In Hassim v Jacobs this meaning was extended to polygenous Muslim marriages

• In Women’s Legal Centre Trust v President of the RSA

- The Court ordered the government to pass legislation recognising Muslim marriages – the state appealed the decision
- SCA found that the state is not obliged by any law to enact the legislation instructed by the court a quo – but it agreed
that Marriage and Divorce Acts were unconstitutional in not recognising Muslim marriages
- While waiting for CC’s approval – Divorce Act applies to the termination of Muslim marriages

2. People’s Law:
• Urban societies developed a system rooted in ACL – but adapted for urban life
• Civic structures acted as unofficial courts
• By mid 1980s there was at least one people’s court (Makgotla) in every township

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• These courts underwent restructuring to rid them of association with violence
- They were used as alternatives to Apartheid regime institutions
- Their official incorporation into the justice system happened in 1997 – when the Law Reform Commission recognised
community courts are “a fact of life”

• In 1999 – the South African Law Reform Commission recommended that traditional courts continue operating in rural
areas, or that they act as arbitration structures
- This was aimed at creating an accessible justice system with aims of restorative justice
- It also recommended the repugnancy clause be repealed
o These recommendations were not implemented and to date these institutions continue to operate unofficially

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