NOTE ILLUSTRATIONS PAGES viii, ix and 15
IND102-T
INTRODUCTION TO INDIGENOUS PUBLIC LAW
General :
Legal Concepts Change concept into questions “what”, “why”, “when” and “who”
e.g. Reconciliation :
(a) Why is “reconciliation” important?
(b) Between whom must “reconciliation” be brought about?
(c) How must “reconciliation” be brought about?
(d) What happens if “reconciliation” is not brought about?
Greater emphasis on people’s duties rather than rights
Important values
(a) group orientation
(b) “people orientation”
(c) truth
(d) informality
Study Unit 1
Lecture 1
1. The law and human relationships
1.1 Emphasis on duties rather than rights
1.2 “Public Law” –
legal relations between a government and its subjects, and
relations among the different parts of government i.e. legislative (responsible
for passing of statutes), executive (responsible for application of statutes and
other public services) and judicial organs (the courts)
1.3 “Private law” –
legal relations between individuals and groups in capacity as private persons
1.4 Maintenance of order is supported by means of approving and disapproving legal
sanctions
Sanction means = approval or confirmation of an act; and/or
Punishment of noncompliance with i.e. statutes or
behavioural prescriptions.
2. The name of this subject
2.1 “law and custom” – implies that customs have the force of law – not the case
2.2 “customary law’ – implies that law originated from custom only;
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, 2
In indigenous law, tribal legislation and edicts of chiefs
(traditional leaders) and kings also constitute an important
source of origin;
“customary law” now synonymous with “indigenous law”
2.3 “Indigenous” means something originated in a country or region
it belongs there;
it is a natural occurrence; or
it is limited to that particular country or region
3. The division of indigenous law – National and international law
3.1 National Law governs , within a certain state,
the relations among subject as well as foreigners;
the relations between subjects and government
3.2 International law, governs the relations between states
3.3 Distinction may be made between tribal law (national law) and the law of different
tribes (international law)
3.4 Intertribal law (“indigenous international law”) –
agreements entered into between tribes to help one another against
communal enemies; and
marriages between tribal chiefs and women from ruling families of other
tribes = sporadic barter between tribes
3.5 A distinction exists between Public and Private law in tribal law – public law
governs relations between
traditional authorities and subjects; and
authorities within the tribe
3.6 Private Law ito Western Systems has seven subdivisions
3.6.1 Law of persons = determines the status of a person i.e. rights, duties, powers,
capacities according to sex, age, mental state, married or unmarried, legitimacy.
This plays an important part in indigenous law
3.6.2 Family Law = concerns marriage, parents and children, guardianship and
curatorship
3.6.3 The law of things – rules concerning real rights iro material objects i.e. land,
cattle, motor vehicles and furniture
The law of immaterial property – rules concerning rights over immaterial
property i.e. patents and copyright (not known in indigenous law)
COLLECTIVELY KNOWN AS “THE LAW OR PROPERTY”
3.6.4 The law of obligations – rules relating to obligations (a legal tie between the
debtor and creditor requiring performance by the debtor to do or refrain from
doing something)
3.6.5 The law of succession – rules determining what is to become of a deceased
person’s estate (his patrimonial rights and duties)
3.6.6 The law of personality – right to honour, good name and privacy
3.7 Law may also be divided into substantive law and adjective law
Substantive law prescribes to norms or requirements, and attached
sanctions (i.e. approval or invalidity of unlawfulness) to these.
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, 3
Adjectival law or law of procedure and evidence prescribes the manner in
which norms are to be enforced and sanctions are to be applied.
3.8 In private law, unlawfulness results (consists??? – see pg 7)) in the infringement
of a right. An infringement resulting in liability is termed a delict.
Rights in indigenous law distinguished according to the object
Right Object Example
Real Right Corporeal thing apart from the person Ownership
Obligatory right Performance Right to a fee for professional
services
Right of authority Productivity and freedom of group Guardianship
member
Right of Corporeal and incorporeal part of Right to one’s body
Personality vestee’s personality Right to one’s honour
The first three fall within the vestee’s estate
Violation therefore entails patrimonial loss (loss determined in economic terms) =
action for damages
Rights of personality do not fall within the vestee’s estate – violation may result I
patrimonial loss
Legislation and court decisions do not always distinguish clearly between damages
and satisfaction
3.8 Group ownership is typical among the SA Bantu-speaking groups – and covers
movables such as cattle, agricultural produce, immovable property
3.9 Obligatory rights exist in SA indigenous law i.e. duty to perform is that of an
agnatic group in the case of a the right of a bride’s family for delivery of marriage
goods by the bridegrooms family.
3.10 The patrimonial group right of “guardianship” is well known in indigenous law. It
is considered a patrimonial right because it entitled the group concerned to the
productivity of its members.
3.11 Rights of personality exist among Bantu-speaking people, for example in cases
where rituals are performed to remove pain, sorrow or defilement. Where
pregnancy follows defilement, the girl’s guardian as the representative of her
group is considered to have suffered patrimonial loss and may recover damages.
4. Various indigenous legal systems
In former times, each tribe or kingdom had its own legal system. High degree of
similarity exists between the different local legal systems with regard to
underlying legal principles and legal values.
5. The division and features of the Bantu-speaking groups of South Africa.
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, 4
5.1 “Bantu-speaking” = family of languages
Other languages : Nama, Khoe, !X (!Kung)
5.2 Main groups of SA, Botswana, Lesotho and Swaziland, based on language and
culture are :
5.2.1 The Nguni Group
5.2.2 The Sotho Group
5.2.3 The Venda
5.2.4 The Shangana-Tsonga
The groups differ in respect of language, legal systems and customs – but have
in common a system of traditional succession and leadership. Individually, the
rules of succession are completely different.
5.1 Characteristics of the main groups
The Nguni group
Most important languages
Zulu,
Xhosa,
Swazi, and
Ndebele
Original areas
Zulu speaking groups – KwaZulu Natal
Xhosa-speaking groups : Eastern Cape (Ciskei and Transkei)
Swazi-speaking groups : Swaziland and Mpumalanga
Ndebele-speaking groups : Mpumalanga, north east of Pretoria
Characteristics
Composite household divided into two or three sections
Each section has a senior wife with subordinate wives
Each wife in a section formed a ‘house’ with its own rank, property and successor
Still found in rural areas, but in urban areas, a man who has more than one wife, the
wives live in separate houses
The Sotho groups
Most important languages
Tswana,
Northern Sotho, and
Southern Sotho
Original areas
FREE student notes uploaded by students to www.gimmenotes.co.za (NOT FOR SALE)
IND102-T
INTRODUCTION TO INDIGENOUS PUBLIC LAW
General :
Legal Concepts Change concept into questions “what”, “why”, “when” and “who”
e.g. Reconciliation :
(a) Why is “reconciliation” important?
(b) Between whom must “reconciliation” be brought about?
(c) How must “reconciliation” be brought about?
(d) What happens if “reconciliation” is not brought about?
Greater emphasis on people’s duties rather than rights
Important values
(a) group orientation
(b) “people orientation”
(c) truth
(d) informality
Study Unit 1
Lecture 1
1. The law and human relationships
1.1 Emphasis on duties rather than rights
1.2 “Public Law” –
legal relations between a government and its subjects, and
relations among the different parts of government i.e. legislative (responsible
for passing of statutes), executive (responsible for application of statutes and
other public services) and judicial organs (the courts)
1.3 “Private law” –
legal relations between individuals and groups in capacity as private persons
1.4 Maintenance of order is supported by means of approving and disapproving legal
sanctions
Sanction means = approval or confirmation of an act; and/or
Punishment of noncompliance with i.e. statutes or
behavioural prescriptions.
2. The name of this subject
2.1 “law and custom” – implies that customs have the force of law – not the case
2.2 “customary law’ – implies that law originated from custom only;
FREE student notes uploaded by students to www.gimmenotes.co.za (NOT FOR SALE)
, 2
In indigenous law, tribal legislation and edicts of chiefs
(traditional leaders) and kings also constitute an important
source of origin;
“customary law” now synonymous with “indigenous law”
2.3 “Indigenous” means something originated in a country or region
it belongs there;
it is a natural occurrence; or
it is limited to that particular country or region
3. The division of indigenous law – National and international law
3.1 National Law governs , within a certain state,
the relations among subject as well as foreigners;
the relations between subjects and government
3.2 International law, governs the relations between states
3.3 Distinction may be made between tribal law (national law) and the law of different
tribes (international law)
3.4 Intertribal law (“indigenous international law”) –
agreements entered into between tribes to help one another against
communal enemies; and
marriages between tribal chiefs and women from ruling families of other
tribes = sporadic barter between tribes
3.5 A distinction exists between Public and Private law in tribal law – public law
governs relations between
traditional authorities and subjects; and
authorities within the tribe
3.6 Private Law ito Western Systems has seven subdivisions
3.6.1 Law of persons = determines the status of a person i.e. rights, duties, powers,
capacities according to sex, age, mental state, married or unmarried, legitimacy.
This plays an important part in indigenous law
3.6.2 Family Law = concerns marriage, parents and children, guardianship and
curatorship
3.6.3 The law of things – rules concerning real rights iro material objects i.e. land,
cattle, motor vehicles and furniture
The law of immaterial property – rules concerning rights over immaterial
property i.e. patents and copyright (not known in indigenous law)
COLLECTIVELY KNOWN AS “THE LAW OR PROPERTY”
3.6.4 The law of obligations – rules relating to obligations (a legal tie between the
debtor and creditor requiring performance by the debtor to do or refrain from
doing something)
3.6.5 The law of succession – rules determining what is to become of a deceased
person’s estate (his patrimonial rights and duties)
3.6.6 The law of personality – right to honour, good name and privacy
3.7 Law may also be divided into substantive law and adjective law
Substantive law prescribes to norms or requirements, and attached
sanctions (i.e. approval or invalidity of unlawfulness) to these.
FREE student notes uploaded by students to www.gimmenotes.co.za (NOT FOR SALE)
, 3
Adjectival law or law of procedure and evidence prescribes the manner in
which norms are to be enforced and sanctions are to be applied.
3.8 In private law, unlawfulness results (consists??? – see pg 7)) in the infringement
of a right. An infringement resulting in liability is termed a delict.
Rights in indigenous law distinguished according to the object
Right Object Example
Real Right Corporeal thing apart from the person Ownership
Obligatory right Performance Right to a fee for professional
services
Right of authority Productivity and freedom of group Guardianship
member
Right of Corporeal and incorporeal part of Right to one’s body
Personality vestee’s personality Right to one’s honour
The first three fall within the vestee’s estate
Violation therefore entails patrimonial loss (loss determined in economic terms) =
action for damages
Rights of personality do not fall within the vestee’s estate – violation may result I
patrimonial loss
Legislation and court decisions do not always distinguish clearly between damages
and satisfaction
3.8 Group ownership is typical among the SA Bantu-speaking groups – and covers
movables such as cattle, agricultural produce, immovable property
3.9 Obligatory rights exist in SA indigenous law i.e. duty to perform is that of an
agnatic group in the case of a the right of a bride’s family for delivery of marriage
goods by the bridegrooms family.
3.10 The patrimonial group right of “guardianship” is well known in indigenous law. It
is considered a patrimonial right because it entitled the group concerned to the
productivity of its members.
3.11 Rights of personality exist among Bantu-speaking people, for example in cases
where rituals are performed to remove pain, sorrow or defilement. Where
pregnancy follows defilement, the girl’s guardian as the representative of her
group is considered to have suffered patrimonial loss and may recover damages.
4. Various indigenous legal systems
In former times, each tribe or kingdom had its own legal system. High degree of
similarity exists between the different local legal systems with regard to
underlying legal principles and legal values.
5. The division and features of the Bantu-speaking groups of South Africa.
FREE student notes uploaded by students to www.gimmenotes.co.za (NOT FOR SALE)
, 4
5.1 “Bantu-speaking” = family of languages
Other languages : Nama, Khoe, !X (!Kung)
5.2 Main groups of SA, Botswana, Lesotho and Swaziland, based on language and
culture are :
5.2.1 The Nguni Group
5.2.2 The Sotho Group
5.2.3 The Venda
5.2.4 The Shangana-Tsonga
The groups differ in respect of language, legal systems and customs – but have
in common a system of traditional succession and leadership. Individually, the
rules of succession are completely different.
5.1 Characteristics of the main groups
The Nguni group
Most important languages
Zulu,
Xhosa,
Swazi, and
Ndebele
Original areas
Zulu speaking groups – KwaZulu Natal
Xhosa-speaking groups : Eastern Cape (Ciskei and Transkei)
Swazi-speaking groups : Swaziland and Mpumalanga
Ndebele-speaking groups : Mpumalanga, north east of Pretoria
Characteristics
Composite household divided into two or three sections
Each section has a senior wife with subordinate wives
Each wife in a section formed a ‘house’ with its own rank, property and successor
Still found in rural areas, but in urban areas, a man who has more than one wife, the
wives live in separate houses
The Sotho groups
Most important languages
Tswana,
Northern Sotho, and
Southern Sotho
Original areas
FREE student notes uploaded by students to www.gimmenotes.co.za (NOT FOR SALE)
