1. Explain those factors that encourage the observance of Indigenous law.
(10)
The vast majority of people in any indigenous community generally
observe most rules, including legal rules, faithfully every day without
being forced to do so. As far as indigenous law is concerned, the
following factors may explain why people observe these rules:
• The religious or sacred element of the law. The rules for
living, and thus also the law, are believed to come from the
ancestors themselves and are protected by the ancestral
spirits. It is the ancestors who make sure that these rules are
observed. Any disregard of, or deviation from, may lead to
punishment by the ancestral spirits. Misfortunes such as
illness, drought, hail, floods and heat waves are often,
therefore, even today, experienced and interpreted as forms of
supernatural punishment.
• Public opinion, particularly sensitivity about what other people
may think, or say, about one's behaviour.
• The knowledge that, if a person is harmed, that person will
endeavour to get compensation or take measures to protect
himself/herself.
• The fact that everybody in the community has a broad
knowledge of the law because of the general participation in
the legal process, and the fact that the law is handed down
orally from one generation to another.
• Fear of punishment, especially punishment of supernatural
origin, when the conduct concerned is in conflict with
accepted legal principles.
• The influence of indigenous leaders in the community, who are
living representatives of the ancestors and who are
responsible for making sure that the law is observed.
2. Discuss the unspecialised nature of indigenous law, with specific
reference to criminal and procedural law. (25)
(a) GROUP ORIENTATION
One of the characteristics of indigenous law which is strongly
visible in both indigenous criminal and procedural law is
, group orientation. Unspecialised legal systems emphasise the
group rather than the individual. The individual functions
entirely within the context of the group. As far as criminal law
is concerned, a whole family group can be punished for the
crime of one of it's members. In the case of sorcery, for
instance, the whole family might be banished and even killed.
Note that fines have to be paid by the group.
(b) CATEGORISATION
The whole idea of a sharp distinction between categories,
institutions and concepts is foreign to indigenous law. There
is no distinction between civil and criminal cases and nor are
there separate court procedures for these cases.
(c) INFORMAL
Unspecialised legal systems are also characterised by
informality. There is a great deal of flexibility when it comes to
the application of legal rules. For example: an important factor
in legal life is the process of constant consultation. A case
may not be taken to court before the parties concerned and
their families discuss the matter. In court there are also court
counsellors who participate in the proceedings throughout, by
questioning, by giving information and, eventually, by giving
their views on the matter. The court's decision is often based
on the consensus of these opinion's.
(d) LEGAL APPROACH: CONCRETE RATHER THAN ABSTRACT
Unspecialised legal systems follow a more concrete, real and
'visible' approach, compared with that of specialised legal
systems (which tend to be more abstract in nature). When a
person is charged with a crime (for instance), to prove that the
accused did indeed commit the crime, concrete evidence
would be presented to the court (i.e. evidence that
incriminated the accused). In the case of stock theft, for
example, a hide found in his possession would be regarded as
concrete evidence that the accused did indeed steal and
slaughter livestock.
(e) THE RELIGIOUS ELEMENT
The strong religious element that is present in indigenous law
is based on the belief that the law originated with the
, ancestors. Disregard of the law is punished by the ancestors,
not so much because disregard of the law is considered sinful,
but because it is regarded as being disrespectful of the
ancestors. Reconciliation between the community and the
ancestors is usually accomplished by slaughtering an animal
and having a communal meal. If the community plans to carry
out certain important juristic actions, the blessing of the
ancestors is obtained by means of special rites.
3. Evaluate the following statements:
(a) In a traditional court evidence is given under oath. (5)
The statement is incorrect. In a traditional court, evidence is
not given under oath. Perjury (wilfully giving false evidence
under oath) is therefore unknown. No action is taken against a
party or a witness who tells lies; if they do tell lies, this merely
harms their case.
(b) A traditional leader is empowered to punish anyone. (5)
This statement is incorrect. A traditional leader is not
empowered to punish anyone. He has power to punish only
black persons residing under his jurisdiction.
(c) Institutional action excludes unlawfulness. (5)
This statement is correct. In indigenous law there are certain
circumstances where what looks like an unlawful act is, in fact,
still considered lawful. In indigenous law, institutional action
is one ground for the justification of an unlawful act. This is a
cultural institution recognised as such. Thus injuries
sustained by young men during a stick fight would not
constitute assault. The same applies to injuries sustained in
the circumcision process that forms part of a cultural initiation
ceremony.
4. Discuss the execution of a sentence by an indigenous court. (10)
Unless the judgement of the indigenous court is taken on appeal, it
must be executed. Execution of the judgement or sentence must
take place as soon as judgement is passed. The fine (in whatever
prescribed form) must be taken to the court where the judgement is
given; part of this fine may be used to serve a meal to the court
members (usually livestock).
, It is possible to extract the payment goods by force if the fined
person refuses or neglects to pay the fine or compensation within a
reasonable time. A specially designated person then acts as
messenger to perform the function of forcefully effecting the
judgement of the court. If this happens, the fine and the
compensation may be increased summarily. The increase may be
regarded as a fine for contempt of court. In Sotho terms, this
increase was referred to as "thupa" (stick or admonition), used for
the maintenance of the messengers as execution costs perhaps in
today's terms.
It is possible to make an arrangement with the court to allow for the
fine or compensation to be paid in instalments.
In former times, sentences in the form of corporal punishment and
banishment were enforced directly after the court session. Today a
sentence by an indigenous court may be enforced only if no notice
of appeal is received within thirty days after registration of the
judgement with the local magistrate's court.
If the property to be confiscated is situated outside the area of
jurisdiction of an indigenous court, application must be made to the
clerk of the magistrate's court for the execution of the sentence.
Also, today, the messengers of the indigenous court are not allowed
to use force in order to execute a sentence or judgement. Any
interference with the messenger in the execution of his duties is
considered a crime. However, no more goods may be seized than
are laid down in the judgement.
Section 20(5) of Act 38 of 1927 makes provision for another way in
which to exact fines. If an indigenous court cannot exact a fine, the
court may arrest the guilty person, or have the person arrested, and
make him/her appear in the local magistrate's court within 48 hours.
If the magistrate is satisfied that the fine was imposed in a proper
manner and finds that all or part of it is still outstanding, the
magistrate may order that the fine be paid immediately. Failure to do
so may lead to the guilty person being sentenced to imprisonment of
a period not exceeding three months.
5. What punishments could formerly be imposed for contempt of the ruler?
Do these punishments still apply today? (5)
(10)
The vast majority of people in any indigenous community generally
observe most rules, including legal rules, faithfully every day without
being forced to do so. As far as indigenous law is concerned, the
following factors may explain why people observe these rules:
• The religious or sacred element of the law. The rules for
living, and thus also the law, are believed to come from the
ancestors themselves and are protected by the ancestral
spirits. It is the ancestors who make sure that these rules are
observed. Any disregard of, or deviation from, may lead to
punishment by the ancestral spirits. Misfortunes such as
illness, drought, hail, floods and heat waves are often,
therefore, even today, experienced and interpreted as forms of
supernatural punishment.
• Public opinion, particularly sensitivity about what other people
may think, or say, about one's behaviour.
• The knowledge that, if a person is harmed, that person will
endeavour to get compensation or take measures to protect
himself/herself.
• The fact that everybody in the community has a broad
knowledge of the law because of the general participation in
the legal process, and the fact that the law is handed down
orally from one generation to another.
• Fear of punishment, especially punishment of supernatural
origin, when the conduct concerned is in conflict with
accepted legal principles.
• The influence of indigenous leaders in the community, who are
living representatives of the ancestors and who are
responsible for making sure that the law is observed.
2. Discuss the unspecialised nature of indigenous law, with specific
reference to criminal and procedural law. (25)
(a) GROUP ORIENTATION
One of the characteristics of indigenous law which is strongly
visible in both indigenous criminal and procedural law is
, group orientation. Unspecialised legal systems emphasise the
group rather than the individual. The individual functions
entirely within the context of the group. As far as criminal law
is concerned, a whole family group can be punished for the
crime of one of it's members. In the case of sorcery, for
instance, the whole family might be banished and even killed.
Note that fines have to be paid by the group.
(b) CATEGORISATION
The whole idea of a sharp distinction between categories,
institutions and concepts is foreign to indigenous law. There
is no distinction between civil and criminal cases and nor are
there separate court procedures for these cases.
(c) INFORMAL
Unspecialised legal systems are also characterised by
informality. There is a great deal of flexibility when it comes to
the application of legal rules. For example: an important factor
in legal life is the process of constant consultation. A case
may not be taken to court before the parties concerned and
their families discuss the matter. In court there are also court
counsellors who participate in the proceedings throughout, by
questioning, by giving information and, eventually, by giving
their views on the matter. The court's decision is often based
on the consensus of these opinion's.
(d) LEGAL APPROACH: CONCRETE RATHER THAN ABSTRACT
Unspecialised legal systems follow a more concrete, real and
'visible' approach, compared with that of specialised legal
systems (which tend to be more abstract in nature). When a
person is charged with a crime (for instance), to prove that the
accused did indeed commit the crime, concrete evidence
would be presented to the court (i.e. evidence that
incriminated the accused). In the case of stock theft, for
example, a hide found in his possession would be regarded as
concrete evidence that the accused did indeed steal and
slaughter livestock.
(e) THE RELIGIOUS ELEMENT
The strong religious element that is present in indigenous law
is based on the belief that the law originated with the
, ancestors. Disregard of the law is punished by the ancestors,
not so much because disregard of the law is considered sinful,
but because it is regarded as being disrespectful of the
ancestors. Reconciliation between the community and the
ancestors is usually accomplished by slaughtering an animal
and having a communal meal. If the community plans to carry
out certain important juristic actions, the blessing of the
ancestors is obtained by means of special rites.
3. Evaluate the following statements:
(a) In a traditional court evidence is given under oath. (5)
The statement is incorrect. In a traditional court, evidence is
not given under oath. Perjury (wilfully giving false evidence
under oath) is therefore unknown. No action is taken against a
party or a witness who tells lies; if they do tell lies, this merely
harms their case.
(b) A traditional leader is empowered to punish anyone. (5)
This statement is incorrect. A traditional leader is not
empowered to punish anyone. He has power to punish only
black persons residing under his jurisdiction.
(c) Institutional action excludes unlawfulness. (5)
This statement is correct. In indigenous law there are certain
circumstances where what looks like an unlawful act is, in fact,
still considered lawful. In indigenous law, institutional action
is one ground for the justification of an unlawful act. This is a
cultural institution recognised as such. Thus injuries
sustained by young men during a stick fight would not
constitute assault. The same applies to injuries sustained in
the circumcision process that forms part of a cultural initiation
ceremony.
4. Discuss the execution of a sentence by an indigenous court. (10)
Unless the judgement of the indigenous court is taken on appeal, it
must be executed. Execution of the judgement or sentence must
take place as soon as judgement is passed. The fine (in whatever
prescribed form) must be taken to the court where the judgement is
given; part of this fine may be used to serve a meal to the court
members (usually livestock).
, It is possible to extract the payment goods by force if the fined
person refuses or neglects to pay the fine or compensation within a
reasonable time. A specially designated person then acts as
messenger to perform the function of forcefully effecting the
judgement of the court. If this happens, the fine and the
compensation may be increased summarily. The increase may be
regarded as a fine for contempt of court. In Sotho terms, this
increase was referred to as "thupa" (stick or admonition), used for
the maintenance of the messengers as execution costs perhaps in
today's terms.
It is possible to make an arrangement with the court to allow for the
fine or compensation to be paid in instalments.
In former times, sentences in the form of corporal punishment and
banishment were enforced directly after the court session. Today a
sentence by an indigenous court may be enforced only if no notice
of appeal is received within thirty days after registration of the
judgement with the local magistrate's court.
If the property to be confiscated is situated outside the area of
jurisdiction of an indigenous court, application must be made to the
clerk of the magistrate's court for the execution of the sentence.
Also, today, the messengers of the indigenous court are not allowed
to use force in order to execute a sentence or judgement. Any
interference with the messenger in the execution of his duties is
considered a crime. However, no more goods may be seized than
are laid down in the judgement.
Section 20(5) of Act 38 of 1927 makes provision for another way in
which to exact fines. If an indigenous court cannot exact a fine, the
court may arrest the guilty person, or have the person arrested, and
make him/her appear in the local magistrate's court within 48 hours.
If the magistrate is satisfied that the fine was imposed in a proper
manner and finds that all or part of it is still outstanding, the
magistrate may order that the fine be paid immediately. Failure to do
so may lead to the guilty person being sentenced to imprisonment of
a period not exceeding three months.
5. What punishments could formerly be imposed for contempt of the ruler?
Do these punishments still apply today? (5)
