TERM 3
HISTORICAL TREATMENT
1652
- Dutch arrived
- Applied roman-dutch law
- Ignored everything else
- THIS IS LEGAL CENTRALISM
- Legal centralism: state controlled and is an absolute source of power and authority
1814
- British colonized
- Did not interfere with ACL as long as not repugnant to public policy and natural
justice
- THIS IS WEAK LEGAL PLURALISM
- Weak legal pluralism: incorporate other law into state law
Strong legal pluralism
- Multiple legal orders without validity in one centralized authority
Legal pluralism and today
- Better to argue weak as recognition is still anchored in the constitution
- It is selective to that of ACL which it chooses to validate
- Only validates what it chooses to recognize
DEVELOPING CUSTOMARY LAW
ACTIVE PASSIVE
Creates new rule by reformulating another Recognizes current practices and makes
rule or creates new rule altogether them binding through the courts
BHE SHILUBANA
Only recognizes to the extent that it is in
line with the BoR
Often is not in line with living CL and thus is Gives authority and effect to living
minimally applied customary law
CONFLICT OF LAWS
COMMON LAW VS CUSTOMARY LAW
1. Look to s211(3) of the Constitution:
, - Must apply customary law where applicable, subject to relevant legislation and the
constitution
- Look to intention of parties involved
2. Now need to look to Law of Evidence Amendment Act s1(1) as this is relevant
legislation
- Cannot be against principles of public policy or natural justice
- If is against this, then apply common law
3. Authority – BHE
CUSTOMARY LAW VS CUSTOMARY LAW
- Arise from infecane
LEAA 1(3)
1. Did the parties agree to the version applied (tacit or express)?
2. If so, the courts must apply this version
3. If not, the court will try and infer a tacit agreement – will look to cultural orientation,
prior action, and the nature of the transaction*
4. If cannot infer, will apply version where defendant resides* or works* (if there is
only one version of law there)
5. If there is more than one version, will apply law of his tribe*
- Legislation has not clarified this law, and it remains confusing
- Everything confusing about this law can act as a criticism
- Note the * - these are things to critique
ASCERTAINMENT
1. Look at the past practices of the community concerned
- Parties have the onus of presenting proof (can take form of affidavits)
- Look at the context of the community
2. Respect the rights of communities that observe ACL to develop their law
3. Balance the need for flexibility and development against the values of legal certainty,
respect for vested rights and protection of constitutional rights
- AUTHORITY: Shilubana and Bhe
RCMA OLD MARRIAGES
- Do not apply any of the RCMA requirements
- Recognized as long as married according to customary law and the marriage is still in
existence
RCMA NEW MARRIAGES
Apply s3 requirements:
1. Over age of 18
2. Both parties consented (not just their families)
HISTORICAL TREATMENT
1652
- Dutch arrived
- Applied roman-dutch law
- Ignored everything else
- THIS IS LEGAL CENTRALISM
- Legal centralism: state controlled and is an absolute source of power and authority
1814
- British colonized
- Did not interfere with ACL as long as not repugnant to public policy and natural
justice
- THIS IS WEAK LEGAL PLURALISM
- Weak legal pluralism: incorporate other law into state law
Strong legal pluralism
- Multiple legal orders without validity in one centralized authority
Legal pluralism and today
- Better to argue weak as recognition is still anchored in the constitution
- It is selective to that of ACL which it chooses to validate
- Only validates what it chooses to recognize
DEVELOPING CUSTOMARY LAW
ACTIVE PASSIVE
Creates new rule by reformulating another Recognizes current practices and makes
rule or creates new rule altogether them binding through the courts
BHE SHILUBANA
Only recognizes to the extent that it is in
line with the BoR
Often is not in line with living CL and thus is Gives authority and effect to living
minimally applied customary law
CONFLICT OF LAWS
COMMON LAW VS CUSTOMARY LAW
1. Look to s211(3) of the Constitution:
, - Must apply customary law where applicable, subject to relevant legislation and the
constitution
- Look to intention of parties involved
2. Now need to look to Law of Evidence Amendment Act s1(1) as this is relevant
legislation
- Cannot be against principles of public policy or natural justice
- If is against this, then apply common law
3. Authority – BHE
CUSTOMARY LAW VS CUSTOMARY LAW
- Arise from infecane
LEAA 1(3)
1. Did the parties agree to the version applied (tacit or express)?
2. If so, the courts must apply this version
3. If not, the court will try and infer a tacit agreement – will look to cultural orientation,
prior action, and the nature of the transaction*
4. If cannot infer, will apply version where defendant resides* or works* (if there is
only one version of law there)
5. If there is more than one version, will apply law of his tribe*
- Legislation has not clarified this law, and it remains confusing
- Everything confusing about this law can act as a criticism
- Note the * - these are things to critique
ASCERTAINMENT
1. Look at the past practices of the community concerned
- Parties have the onus of presenting proof (can take form of affidavits)
- Look at the context of the community
2. Respect the rights of communities that observe ACL to develop their law
3. Balance the need for flexibility and development against the values of legal certainty,
respect for vested rights and protection of constitutional rights
- AUTHORITY: Shilubana and Bhe
RCMA OLD MARRIAGES
- Do not apply any of the RCMA requirements
- Recognized as long as married according to customary law and the marriage is still in
existence
RCMA NEW MARRIAGES
Apply s3 requirements:
1. Over age of 18
2. Both parties consented (not just their families)
