African Customary 171
Table of Contents
Study unit 1- Intro to Legal Pluralism and Cust Law Pg 2- 10
Study unit 2- Nature and Sphere of Customary Law Pg 11- 19
Study unit 3- Recognition, Application & Ascertainment Pg 20-38
Of CL and Trad Courts and other dispute
resolution mechanisms
Study unit 4- Family Law Pg 39- 53
Study unit 5- CL of Inheritance and Succession Pg 54- 80
Page 1
,Study Unit 1-Intro to Legal Pluralism and Cust Law
Legal pluralism
• Overview: Theoretical meaning , narrow approach to the term broad approach and
historical context
A) Defintion
Parallel existence, legal systems, one jurisdictional area e.g Recognition of African Cust
law= legal system originally applied.
B) Legal Systems
State law
Common law:Roman Dutch law, as influenced by English law, adapted and developed by
legislation and pronounced in court by case law.
Religious based legal systems
• Jewish law
• Islamic law
• Hindu law
• Customary law- diff to official recognised law (official cust law)= living cust law
• Peoples law
Deep legal pluralism = how Europeans used legal system to manipulate African cuts law
to conform to their understanding of law
Customary law
Recognised and contained in legislation by ruling movement, case law
Extra: generic term to donate the various laws of the African indigenous people of SA.
Unofficial Customary law ( living Customary law)
Generally lived by, rural areas
Applied: unofficial customary institutions eg, Courts of ward heads and tradauth courts.
Often conflicts with the official cast law that is applied by the state courts or entrenched
in legislation.
Page 2
,C) Development
• Initially only state law pluralism ( common law)
• Movement towards : deep legal pluralism
• Work of SALRC : harmonisation
Forms of legal pluralism
Recognition:
• Sate law pluralism
• Deep l/p
Experience:
• Radically based legal pluralism
• Personal legal pluralism
1.2. Theoretical overview
1.2.1 Narrow interpretation ( state law pluralism)
• Narrow int of legal pluralism= dual system theory ( exists where Western Law and Must
law operate in a single society and are officially recognised by the state.)= at least 2
officially recognised legal systems run parallel and interact in limited, prescribed
circumstances
• Western law: western view + positivistic view = legal centralism= lawsuit be made by a
central authoritative system to be considered a law.
• We get this from the scrambler Africa= Europeans conquering
• Legal centralism is the idea that law should be state- sanctioned , uniform for everyone,
‘exclusive of all other law’ and administered by a single set of state institutions.-
According to this theory the state has the power to make laws - lesser normative
orderings such as the church, the family, the voluntary association and the economic
orgs are subordinate to the law and institutions of the state. Acc to this theory
unrecognised religious legal systems are thus not regarded as law in SA.
• Legal positivism=2 propositions. The first one is that law can only be found in tangible
or empirically observable such as legislation, case law and the law of old authorities.
The second one flows from the first one , if law can be found in tangible sources, it
means that law cannot be based on moral values. Thus following this approach only
common law and official Cost law will be regarded as law.
• Therefore : In SA 2 autonomous legal systems existed parallel to one another. Namely,
the western law + must law (official cust law)
• Narrow understanding of l/p flows from the perception that law consists of norms that
are created and sanctioned by official state organs in accordance with a basic rule of
recognition.
Page 3
, • Narrow interpretation L/P= colonial take overs
• Dominance of western law dates back to when colonisers superimposed European law
upon the customary legal systems.
• Today even though cust law is recognised by the constitution as a source of SA law,
western law is still regarded as the dominant system and legal development is largely
directed by Western values.
Customary law
• Official must law: officially recognised
• Provisional: Repugnancy clause-recognised to an extent that it doesn’t clash with rules
of national justice
• Cust law unequal in status= subservient ( Western/ Nat law=dominant law)
Gave rise to STATE LAW PLURALISM = weak l/p
• Nat law= abolished off cust law= possible earlier, more difficult today as a result of the
Constitution sec 39(2) and (3)
• Nat law prevails in cases of conflict
• Classifications and descriptions of nat law are used to explain the cust.law system
When theres conflict. National law always trumps customary law
1.2.2 Broad interpretation ( deep legal Pluralism)
Regards pluralism in a wider sense :
• Factual situation existing in a social field, observance of various legal systems or legal
orders.= known as ‘ social state of affairs’
• Recognition or no-recognition: no effect on factual existence - recognition simply
determines the status of the legal systems
• Dominance of the central or state law = irrelevant to the the continued existence of the
unofficial laws.
Basis: Real diversity
• Recognition of the unofficial legal systems
• All customs relevant
• Deep l/p= strong legal pluralism
1.3 Historical: State l/p in SA
Europeans through missionaries and traders had some effect on the traditional cultures of
SA first, their influence was limited - no record, of the recognition of cust law imposition of
a European system upon local pop= thus no traces of any form of state law pluralism
• 1652-1795: Dutch
No evidence of state- law pluralism during the Batavian control of the Cape.
-Strategic importance of Cape: trading post by DEIC
As a result of the British policy that the laws of a conquered Territory would remain in
force until altered by the conqueror, the change from dutch to British rule= no impact on
administrative justice
Page 4
Table of Contents
Study unit 1- Intro to Legal Pluralism and Cust Law Pg 2- 10
Study unit 2- Nature and Sphere of Customary Law Pg 11- 19
Study unit 3- Recognition, Application & Ascertainment Pg 20-38
Of CL and Trad Courts and other dispute
resolution mechanisms
Study unit 4- Family Law Pg 39- 53
Study unit 5- CL of Inheritance and Succession Pg 54- 80
Page 1
,Study Unit 1-Intro to Legal Pluralism and Cust Law
Legal pluralism
• Overview: Theoretical meaning , narrow approach to the term broad approach and
historical context
A) Defintion
Parallel existence, legal systems, one jurisdictional area e.g Recognition of African Cust
law= legal system originally applied.
B) Legal Systems
State law
Common law:Roman Dutch law, as influenced by English law, adapted and developed by
legislation and pronounced in court by case law.
Religious based legal systems
• Jewish law
• Islamic law
• Hindu law
• Customary law- diff to official recognised law (official cust law)= living cust law
• Peoples law
Deep legal pluralism = how Europeans used legal system to manipulate African cuts law
to conform to their understanding of law
Customary law
Recognised and contained in legislation by ruling movement, case law
Extra: generic term to donate the various laws of the African indigenous people of SA.
Unofficial Customary law ( living Customary law)
Generally lived by, rural areas
Applied: unofficial customary institutions eg, Courts of ward heads and tradauth courts.
Often conflicts with the official cast law that is applied by the state courts or entrenched
in legislation.
Page 2
,C) Development
• Initially only state law pluralism ( common law)
• Movement towards : deep legal pluralism
• Work of SALRC : harmonisation
Forms of legal pluralism
Recognition:
• Sate law pluralism
• Deep l/p
Experience:
• Radically based legal pluralism
• Personal legal pluralism
1.2. Theoretical overview
1.2.1 Narrow interpretation ( state law pluralism)
• Narrow int of legal pluralism= dual system theory ( exists where Western Law and Must
law operate in a single society and are officially recognised by the state.)= at least 2
officially recognised legal systems run parallel and interact in limited, prescribed
circumstances
• Western law: western view + positivistic view = legal centralism= lawsuit be made by a
central authoritative system to be considered a law.
• We get this from the scrambler Africa= Europeans conquering
• Legal centralism is the idea that law should be state- sanctioned , uniform for everyone,
‘exclusive of all other law’ and administered by a single set of state institutions.-
According to this theory the state has the power to make laws - lesser normative
orderings such as the church, the family, the voluntary association and the economic
orgs are subordinate to the law and institutions of the state. Acc to this theory
unrecognised religious legal systems are thus not regarded as law in SA.
• Legal positivism=2 propositions. The first one is that law can only be found in tangible
or empirically observable such as legislation, case law and the law of old authorities.
The second one flows from the first one , if law can be found in tangible sources, it
means that law cannot be based on moral values. Thus following this approach only
common law and official Cost law will be regarded as law.
• Therefore : In SA 2 autonomous legal systems existed parallel to one another. Namely,
the western law + must law (official cust law)
• Narrow understanding of l/p flows from the perception that law consists of norms that
are created and sanctioned by official state organs in accordance with a basic rule of
recognition.
Page 3
, • Narrow interpretation L/P= colonial take overs
• Dominance of western law dates back to when colonisers superimposed European law
upon the customary legal systems.
• Today even though cust law is recognised by the constitution as a source of SA law,
western law is still regarded as the dominant system and legal development is largely
directed by Western values.
Customary law
• Official must law: officially recognised
• Provisional: Repugnancy clause-recognised to an extent that it doesn’t clash with rules
of national justice
• Cust law unequal in status= subservient ( Western/ Nat law=dominant law)
Gave rise to STATE LAW PLURALISM = weak l/p
• Nat law= abolished off cust law= possible earlier, more difficult today as a result of the
Constitution sec 39(2) and (3)
• Nat law prevails in cases of conflict
• Classifications and descriptions of nat law are used to explain the cust.law system
When theres conflict. National law always trumps customary law
1.2.2 Broad interpretation ( deep legal Pluralism)
Regards pluralism in a wider sense :
• Factual situation existing in a social field, observance of various legal systems or legal
orders.= known as ‘ social state of affairs’
• Recognition or no-recognition: no effect on factual existence - recognition simply
determines the status of the legal systems
• Dominance of the central or state law = irrelevant to the the continued existence of the
unofficial laws.
Basis: Real diversity
• Recognition of the unofficial legal systems
• All customs relevant
• Deep l/p= strong legal pluralism
1.3 Historical: State l/p in SA
Europeans through missionaries and traders had some effect on the traditional cultures of
SA first, their influence was limited - no record, of the recognition of cust law imposition of
a European system upon local pop= thus no traces of any form of state law pluralism
• 1652-1795: Dutch
No evidence of state- law pluralism during the Batavian control of the Cape.
-Strategic importance of Cape: trading post by DEIC
As a result of the British policy that the laws of a conquered Territory would remain in
force until altered by the conqueror, the change from dutch to British rule= no impact on
administrative justice
Page 4
