Talk:Customary law in South Africa
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|WikiProject Law||(Rated Start-class, Low-importance)|
Although there is the view that colonialists 'invented' customary law as a way to govern natives while under the auspices of paying tribute to their culture and heritage, some other writers have argued that customary law was not so much 'invented' by them, but 'manipulated' so as to conform the actual practices of the natives to their westernised ideals as part of their 'civilising mission'. These writers prefer to view the colonial influence more as 'imagination', rather than 'invention'.
Whether imagination or invention, colonial actors had a significant impact on the existence and articulation of customary law. Native law was officially recognised in 1848 but only insofar as it did not infringe humanitarian principles of "civilised society" – understood to be white society in that day. The Kafir Commission (1852–1853) attempted to codify what they termed Kafir law and wanted this law to govern people. This was the colonists attempt to control the native tribes. The commission suggested that polygamy and lobolo be outlawed and that there be a more civil approach to the administration of native affairs. This suggestion was however not sustained.
Mamdani named this system "decentralized despotism." This was a system whereby colonial authorities used customary law (which they felt at liberty to adapt from within its institutions and terms) as a form of rule over the majority black population. David Welsh argues that Shepstone's system of indirect rule formed the "roots of segregation in South Africa" – not only according to racial divisions but the system entrenched (or manufactured) ethnic divisions too. It provided a model for the rest of the country. After the first publication of the Natal Code the most notable commission of inquiry into customary law in Southern Africa took place in the Cape. At this inquiry Shepstone was consulted as the expert on the law of Africans in Natal.
McClendon sees this as an example of the colonial states' refusal to hear the complaints of its African subjects and the unrestrained ability of the state to reshape African social and political institutions through law. Despite Shepstone's claims of success the actual effect of the new regulations were uncertain at best. The standardisation of bride wealth fees seemed to lack practicality and "subjects" found creative ways to get beyond the limit while applying the letter of the law. Yet, it did have some effect. From hereon, "[t]he rituals of rule were to be less personal and more regular represented less by meetings and more by codes registers and account books." That is, government was moving away from the personal style of rule that Shepstone had, which emulated African chiefship, to a more bureaucratic and legalistic style of rule due to its increasing power and confidence. The codes referred to constitute what is now generally referred to as official customary law: a system of norms given expression by colonialists themselves, drawn in part from practices that they observed but also from restrictions placed on those practices by those in power. Account books are a metaphor for the economic strings that government pulled, that served as government's motivation in many ways. The stakes of colonialism had increased; discovery of diamonds in the 1860s in Griqualand accelerated and widened the colonial economy. This both created a vast need for cheap labour and expanded government's ability to tax natives who provided that wage labour.
Shepstone, as the highest colonial official in Natal, was responsible for all native affairs from the creation of the colony until his transfer to the Transvaal in 1877. Thomas McClendon broadly argues that one particular moment marked an important transition in the colonial state of Natal. This was the moment when Shepstone toured the African reserves of Natal to promulgate the "New Marriage Regulations and Fees of 1869." McClendon describes these regulations as "Draconian". These regulations asserted direct colonial control over African marriage practices, imposing large fees (taxes), limiting the payment of bride wealth and requiring an "official witness" appointed by the state to ensure that women entered into these marriages voluntarily and that new limits on bride wealth were not exceeded. These regulations challenged traditional African hierarchies and gender relations. The state now set out to alter and directly regulate the practices and relationships within African society for the purpose of receiving more revenue from Africans.
Codification Main article: Codification (law)
In all of the South African pre-union colonies, the object was to maintain control over conquered people. However, there was much controversy over how to achieve this. Policies varied between strict assimilation and indirect rule in each of the colonies. There were sporadic attempts to codify Native law but due to the dynamic nature of living customary law (that is, the customary law that was lived by "native" peoples), this codification mostly served to shape future customary law artificially and dictated the administration of black populations, but not really the law they actually lived.
Similar to the trend in Natal and other colonies, in time, the inclination towards assimilation waned in the Cape Colony and the need for indirect rule became apparent. Controlling a conquered people required the maintenance of a tribal system and the regulation of natives by their own laws. However these laws were kept very general, which left gaps for the colonial authority to fill as they required. The result was that the law for white persons was detailed, written and formal, whereas the law for black persons was simple, elastic and personal. This allowed for better control of natives.
The Transvaal went to the extent of outlawing any polygamous marriage or a marriage that included bridewealth. With the British annexation in 1877, British policies of indirect rule changed the landscape of customary law recognition. To gain legitimacy and prevent "natives" from seeking justice from their own courts in rural areas, a native administration from Natal was sent to Transvaal. However, as the occupation ended the Republican courts of Transvaal still refused to recognise any polygamous or customary marriages and indeed still did not provide for valid marriages for anyone but white people until 1897. It was feared that recognising African people in the law would inadvertently elevate their status to that of white people's. Customary law was therefore left with this uncertain status.
"Native" Participation and the Repugnancy Principle
The historiography of customary law often fails to account for the ways that Africans continued to make their own history under the unelected conditions of colonialism and its repercussions. The history of South African customary law in particular has tended to exclude the contributions of Africans to the shaping of the law. Evidence shows Africans were written out of the record in many ways – especially since the many and most readily available (written) sources were ones prepared by colonisers. The paucity of records, invisibility of interpreters and failure to take testimonies from African witnesses before codifying "native" law makes it difficult to find these contributions.
However, recent scholarly analyses of customary law and indirect rule, such as that of Sara Berry, have detailed the subject matter of colonialism as a collection of conversations, debates and arguments among Africans as well as between Africans and colonial powers. It is therefore misleading to comprehend customary law as a mere "invention". Terence Ranger (who coined the term) has in fact re-examined his prior contribution and revised it, thus restoring African subjectivity. He now suggests use of the term "imagination" in place of "invention". Thus, as Berry observes, although colonizers had considerable power to shape institutions and discourse, that power was limited by a lack of resources and by a failure to understand the ongoing historical processes that they entered.
This shortage of resources in the 19th century meant the colonialists could no longer rule solely through coercion. Thus, despite the power of colonizers to "shape institutions and discourse", there was sufficient resistance by the natives to ensure that whatever the law was on paper, was a reflection – if a somewhat skewed reflection – of what they considered to be their governing norms. The powers of the chiefs to act as assessors of customary law and Africans (when summoned by magistrates), for instance, and their ability to hear cases before these were taken to magistrates allowed them some influence on the law. However, Moreover, since Shepstone himself did however act as the last court of appeal, because the chiefs' powers were confined by the colonial state, and still ultimately governed by colonial power.
Chiefs were given the opportunity, under indirect rule, to exert immense control over others, especially the socially weak. Chiefs were given "the power to enforce their notions of custom as law", and could rely on the support of colonial institutions. They shaped custom in ways that allowed them to consolidate their power, for example by even defining people's movement and settlement according to "custom". Although it was frequently claimed that customary rules were organically formulated in response to local conditions and needs, in reality they were often imposed by the administration – both colonial and "traditional". They contributed to the development of what was disingenuously described as the enforcement of custom when, in truth, it was the extension of colonial power and the development of a colonial economy. Consolidating the power of a pliant chief was one of the key mechanisms to achieve this. The outcome of this consolidation was the abuse of power by some chiefs, against their own people and their interests.
Despite these under-handed colonial strategies, Africans continued to challenge colonial authority, with methods ranging from evasion, testimony to commissions of inquiry, occasional rebellion to appearances in colonial courts. The latter (defiance) was a different kind of power from official influence exercised by native chiefs. In fact, the empowerment of chiefs as assessors and courts was one way colonizers had to draw on the actual experiences and practices of the natives at the time to avoid absolute resistance or revolution. An example of the effect of native resistance is that, despite the limits placed on bridewealth by the colonizers, the natives found ways of circumventing the restrictions. In fact, the not-so-subtle resistance caused the colonizers, themselves, to relax their approaches to the central practices of polygyny and bride wealth, for example. Furthermore, a colonial commission, itself, admitted that the natives were governed by their 'own laws' as regulated by Shepstone. Polygyny and lobolo was later codified in the Natal Code, and subsequently confirmed as legitimate in the Native Administration Act of 1927.
We can also find diverse African voices by looking at the ways ordinary Africans (those who were not elites or officials of the State) used the state courts to their own ends. Although the system of customary law contained many contradictions, these gave some who would normally be disadvantaged by customary the opportunity to challenge it and thus provides evidence of the ways that norms of customary law were continually contested.
The main colonial limitation on the ability of 'natives' to influence official customary law, however, was the 'repugnancy' principle whereby courts drew on western, 'civilised' ideals to reject certain native customs and practices on the basis that they were abhorrent to such western, civilised conceptions of morality. 'Natural justice' and 'public policy' (which form the terms of the repugnancy rule) have thus continued throughout South Africa's history of (non-)recognition of customary law. These ideas supported the colonial mission (or myth) of 'civilising' Africa.
Even outside the limits set by the repugnancy clause, customary law was not some immutable and uniform set of indigenous ideas and principles that predated colonialism. Rather, it was shaped by the societal changes occurring at that time, particularly the replacement of slavery by a new coercive colonial regime and the rapid growth of markets in wage labour and export crops. The conflict over customary law was deep-seated; and the political, economic and social dislocations that came about as a result of the onset of colonial rule heightened this conflict. Substantive customary law was shaped by the conflicting claims of those interested parties looking to secure wealth or power in these new areas
An example of this repugnancy clause is in the Law of Evidence Amendment Act 45 of 1988 (quoted below), which codifies the fact that the courts may take judicial notice of customary law, though this is qualified by the fact that such law has to be "readily ascertainable and sufficiently certain". Such law must also be in line with public policy principles, but a court is not allowed to declare the custom of lobola or any similar custom falls foul of these principles. The latter marks the conclusion of the colonisers' internal debate about the acceptability or reprehensibility of the practices of polygyny and lobolo (bridewealth). "The creation of the official discourse on African marriage…was at the core of the construction of segregation of the common law." The government wanted to abolish polygamy and marriages with lobola, but they continued to be legally recognised. This love-hate fixation was concluded by the Law of Evidence Act, which in turn concluded the time when customary "unions" were deemed legally and socially inferior to civil and Christian marriages.
Law of Evidence Amendment Act 45 of 1988:
(1) Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not be opposed to the principles of public policy and natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles.
(2) The provisions of subsection (1) shall not preclude any part from adducing evidence of the substance of a legal rule contemplated in that subsection which is in issue at the proceedings concerned.
Continued Through Apartheid
The patterns of colonialism were continued and intensified during apartheid. In particular, the codification of customary law, distortion of the powers of traditional leaders, and division of cultural groups was advanced by pieces of legislation, among them the Black Administration Act 38 of 1927, and the Black Authorities Act 68 of 1951. These expanded the realm of official customary law and deepened the rift between it and living customary law. Women were continuously sidelined and subjected to an exacerbated and entrenched form of patriarchy. These developments under apartheid set the scene for the questions that would plague South Africa as it formulated a democratic Constitution, and considered how to provide for customary law and traditional authorities in it.
The negotiations leading up to the Interim Constitution
In essence, the traditional leaders were trying to create two parallel systems of law, ACL and common law, neither of which could or should interfere with the other. However, the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that states must 'modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices of customary and all other practices based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.' There was therefore substantial opposition to the proposals, which succeeded. The Interim Constitution recognised the customary principle of "ubuntu" – simply defined as humanity (see S v Makwanyane for discussion). However, the general limitations clause was introduced to balance these conflicting interests.
While the Interim Constitution recognised ACL as an indispensable part of the South African legal landscape, it is important to note that the debate about the negotiation and inclusion of ACL was far from settled. Another difficulty is that when the Interim Constitution was enacted in 1994, the application of ACL was still subject to the Law of Evidence Amendment Act. The effect thereof was that courts were obliged to apply ACL where applicable, but only insofar as the principles did not conflict with public policy and natural justice
Nature, definition and sources of customary law Main article: Custom (law)
As seen earlier in the summary of the Constitutional Court's discussions, a central issue regarding (the recognition of) ACL is determining the appropriate methodology to know what practices and norms actually constitutes customary law. It is not immediately clear that classic Western theories of jurisprudence can be reconciled in any useful way with conceptual analyses of customary law, and thus some scholars (like John Comaroff and Simon Roberts) have characterised customary law norms in their own terms. Yet, there clearly remains some disagreement, which is seen in John Hund's critique of Comaroff and Roberts' theory, and preference for the contributions of H. L. A. Hart. Hund argues that Hart's "The Concept of Law" solves the conceptual problem with which schoalars who have attempted to articulate how customary law principles may be identified, defined and how they operate in regulating social behaviour and resolving disputes.
In the South African context, the vigorous debates over the nature, definition, and sources of customary law are yet to be settled. However, each conception of customary law presented by the theorists discussed presents genuine difficulties. While the South African legal system is so rule-based as to struggle to conceive of ACL in the way Comaroff and Roberts determine that it functions, South African legal history makes it difficult to countenance such an "evolutionary" view of customary law vis-à-vis formal law as is implicit in Hund's conception. (Ironically, it is by his very attempt to defend customary law from being undermined by being regarded as less than state law that Hund arrives at what, in the South African context, would be understood, in historical context, as a lesser view of customary law).
In what is seen by many to be a victory over a long, arduous and painful history, the Constitutional Court in Shilubana finally announced that customary law must be accepted on its own terms. That is, customary law must be accepted as the practices of the people who live according to it and adapt it to their changing circumstances and needs. Thus, the Court largely ruled in favour of the Comaroff and Roberts view. However, given the fact that the Court operates within a legal system that depends on the application of positively defined rules, Hund's theory is ultimately the winner as the courts will forever be seeking to translate fluid processes and contextually shifting norms into hard-and-fast rules. What it means for that to be achieved, the rules applied (and hopefully even determined), on a case-by-case basis remains to be seen.
References not used
- Bhe and Others v The Magistrate, Khayelitsha and Others (Constitutional Court of South Africa 2004). Text
- Du Plessis and Others v De Klerk and Another (Constitutional Court of South Africa 1996). Text
- Griffiths, John (1986). "What is Legal Pluralism" (PDF). Journal of Legal Pluralism. 24. Retrieved 19 September 2016.
- Hlophe v Mahlalela and Another (Transvaal Provincial Division 1998). Text
- Himonga, Chuma (2005). "The Advancement of African Women's Rights in the First Decade of Democracy in South Africa: The reform of the customary law of marriage and succession". Acta Juridica. Retrieved 19 September 2016 – via Sabinet. (subscription required (help)).
- Hund, John (1998). "'Customary Law Is What People Say it Is'". ARSP. 84.
- Kambule v Master of the High Court and Others (High Courts - Eastern Cape 2007). Text
- Kewana v Santam Insurance Co. Ltd (1993).
- Law of Evidence Amendment Act, Act No. 45 of 1988
- Mabuza v Mbatha (Western Cape High Court 2002). Text
- Maisela v Kgolane (Transvaal Provincial Division 2000). Text
- Mamdani, Mahmood (1996). Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton University Press. ISBN 9780691027937.
- Maneli v Maneli (South Gauteng High Court 2010). Text
- Merry, Sally Engle (2001). "Changing Rights, Changing Culture". In Cowan, Jane K.; Dembour, Marie-Benedicte; Wilson, Richard A. Culture and Rights: Anthropological Perspectives. Cambridge University Press. ISBN 9780521797351.
- Metiso v Padongelukfonds (SA 2002). Text
- MM v MN and Another (High Court of South Africa 2010). Text
- Mthembu v Letsela and Another (The Supreme Court of Appeal of South Africa 2000). Text
- Native Administrative Act, Act No. 38 of 1927
- Recognition of Customary Marriages Act, Act No. 120 of 1998
- Nedelsky, Jennifer (1993). "Reconceiving Rights as Relationship". Review of Constitutional Studies. 1 (1). Retrieved 20 September 2016 – via Social Science Research Network.
- Restitution of Land Rights Act, Act No. 22 of 1994
- Shilubana and Others v Nwamitwa (Constitutional Court of South Africa 2008). Text
- Thibela v Minister van Wet en Orde en Andere (SA 1995).