CHAPTER THREE

RECOGNITION, APPLICATION &

ASCERTAINMENT OF CUSTOMARY LAW
Position, recognition and application of customary law
prior to the Black Administration Act 38 of 1927

• Purpose: to provide for the better control and

management of African persons' affairs.
• Not recognised
• Netherlands ceded the Cape to Britain 1806 = RDL
• Difficult to introduce RDL to inland communities, so,
forced to somewhat acknowledge local customary
legal system
• Acknowledgment based on the repugnancy rule
(considerations of colonial policy and natural
justice)
Repugnancy clause?
• S 1(1) Law of Evidence Amendment Act
• courts shall not enforce any customary law rule if
it is contrary to public policy or repugnant
(contradictory) to natural justice

• Example: Customary law may give way or

opportunity to explore polygamy =
contrary to western public policy
• Same can be said for lobolo = ‘’selling of
bride’’
• Although ‘’recognised’’ it is not a
complete requirement of a valid
marriage
• system of values used to strike down a
customary rule is European in nature and
not the African one as the existence of
the repugnancy clause implies the
subservience of customary law to another
legal system of more general application
Position, recognition and application of customary
law after the Black Administration Act 38 of 1927

• Promulgation of the Act saw the uniform recognition of

customary law throughout SA

• S11(1) - some courts (Native Affairs Commissioners’

Courts) had discretion to apply customary law in cases
involving the customs followed by African people

• discretion was extended to all courts in 1988

• Customs like lobolo became officially recognised

• Was still however subject to repugnancy rule

 • ‘’Recognition’’ was limited
Position of
• No decisive expression that customary law would
customary law be accepted as applicable
cont. • Scholars argue that the apartheid gvt used this
limitation to implement segregation & control
indigenous people
• Recognition of customary law was weakened by
the imposition of the restrictions/limitation
• S 11(1) was repealed in 1986. Law of Evidence
Amendment Act came into operation in 1988
 • S 1(1) - Any court may take judicial notice of the law of a
Position of foreign state and of indigenous law in so far as such law
customary law can be ascertained readily and with sufficient certainty:
cont. 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.
 • All courts must apply and therefore also recognise
Implications of s211 customary law.

of the Constitution • The recognition and application of customary law is subject

to the Bill of Rights
See Gongqose & Shilubana cases
• The recognition and application of customary law are
subject to legislation dealing with this matter. This implies
that only legislation aimed at amending customary law is
relevant and not legislation in general

• The courts determine when customary law is applicable.

Courts, therefore, have the discretion to decide whether
customary law is applicable in a particular case. This
discretion should be exercised in agreement with the
general principles of choice of law
Laws recognised under the
Constitution
Section 30 provides that all persons have the
right to “participate in the cultural life of their
choice”.

Section 31(1) provides that:

• Persons belonging to a cultural, religious or linguistic

community may not be denied the right, With other
members of that community to enjoy their culture,
practise their religion and use their language.

‘Culture” and “religion” are critical terms for

determiming whether a social group can
demand recognition of its laws.
CONFLICT
OF LAWS
 • Where there are multiple legal systems operating
Common law or in a single geographical area – bound to be a
customary law? conflict of laws
• To resolve such issues, choice of law rules are
applied
• Indicate which law (CL or customary) applies
• By looking at legislation and case law relating to
customary law matters
• Remember Bhe case? Which law did the court
apply to the matter?
 • 1) Statutory choice of law rules – inferred from
Distinguish legislative provisions
between the • 2) Judge-made choice of law rules

different kinds
of choice of law
rules
 Statutory choice of law rules

• Formerly, no real legislative guidance on application of customary law

• Application of Customary Law = s 11 (1) Black Administration Act
(now repealed)
• ITO section, discretion to apply customary law given to
commissioners’ courts & their appeal courts
• Problem? Contrasting views from courts 1) first view = CL was
primarily applicable and customary law only applicable in matters
distinctively relating to African customs falling outside the principles
of RDL
• 2) second view = customary law primarily applied to African customs
and CL was the exception
• Since then, several legislation contain choice of law rules
 • The Black Administration Act restricted an African’s
Cont. power to bequeath property by will and made the
application of the customary law of intestate
succession mandatory to certain estates.
• Regulations promulgated under the Act further
provided that customary law was to apply if a
deceased person had married by customary law or
by civil/Christian customs but out of community of
property. These provisions have all been repealed.
Statutory choice of law rules
• Section 2 (1) Reform of Customary Law of Succession and Regulation of
Related Matters Act = The estate or part of the estate of any person who
is subject to customary law who dies after the commencement of this Act
and whose estate does not devolve in terms of that person’s will, must
devolve in accordance with the law of intestate succession as regulated
by the Intestate Succession Act
• Common law applies and not customary law
• See also Recognition of Customary Marriages Act in which requirements
of valid marriage are observed in accordance with living customary law
Statutory choice of law rules

The requirements for a valid

customary marriage are The last requirement has
listed in section 3(1): (1) the directed to apply the
The Recognition of
prospective spouses must be requirements considered
Customary Marriages Act
over the age of 18, (2) they necessary under the various
120 of 1998 is another
must consent to be married systems of living customary
example that modified
under customary law and (3) law, especially, of course,
customary marriages quite
the union must be agreement on or payment of
considerably (to be
“negotiated and entered lobolo, and the handing over
discussed further in LU 2.
into or celebrated in of the bride to the groom’s
accordance with customary family.
law”.
 JUDGE-MADE CHOICE OF LAW RULES
Application of the principles governing choice of law rules as laid down by the
courts

• Due to vagueness of statutory choice of law rules, courts have had to

establish principles to determine choice of law
• Based on
1) circumstances of case,
2) what law would a reasonable person have expected to be applied

5 guidelines have been established to determine choice of law rules

 • 1) Express agreement between the parties
GUIDELINES Parties enter into agreement in which it expressly
states that a particular law should apply/govern their
relationship – courts will enforce only that
agreement (see debate from scholars on this
position (pg 47 – 48)

2) Tacit agreement between the parties

Inferred from parties behavior.
Where defendant contests choice of law, court will
investigate plaintiff’s conduct prior to establish
intention from words and deeds
 • 3) Cause of action
GUIDELINES • Nature of cause of action
• Where action stems from custom (lobolo) it can be inferred
that customary law was contemplated
• Whereas normal commercial contracts suggest common
law
• Maisela v kgolane = customary law applies to contracts of
sale only where principles of customary law provide for sale
• Court stated = a) wrong to adjudicate on a sale not
governed by customary law merely because the parties are
black
• b) wrong to regard a sale as regulated by customary law if
common law principles are not known to the customary law
agreed upon by the parties (voetstoots)
 • 4) distinctive cultural practices
GUIDELINES • Choice of law is marked by cultural rituals
• E.g. marriage by Christian customs ‘’white
wedding’’ may infer regulation by common law
• African wedding/marriage may infer use of
customary law
• What happens when there is a civil/Christian
customs (white wedding) and concluded by
traditional/African ceremony = two legal systems
apply
 • CL = contract between bride and groom
GUIDELINES • Customary law = lobolo is between groom and
bride’s family
• Lobolo in this instance is ancillary (additional) to
the marriage
• So, questions of parental rights to children and
return of lobolo will be dealt with under CL
because underlying agreement/marriage entered
into = civil
• See article THE ENFORCEMENT OF THE PAYMENT OF LOBOLO
AND ITS IMPACT ON CHILDREN’S RIGHTS IN SOUTH AFRICA - NM
Ngema
 • 5) Ways of life
GUIDELINES Choice of law is governed by whether parties lived a
traditional life based on custom or whether parties
lived a more western life = CL
Assess how
conflicts between
different
systems of
customary law are
to be resolved

(SA customary law

systems)
 • (3) In any suit or proceedings between Blacks who
S 1 (3) of do not belong to the same tribe, the court shall not
in the absence of any agreement between them
Law of with regard to the particular system of indigenous
law to be applied in such suit or proceedings,
apply any system of indigenous law other than that
Evidence which is in operation at the place where the
defendant or respondent resides or carries on
Amended Act business or is employed, or if two or more
different systems are in operation at that place (not
being within a tribal area), the court shall not apply
any such system unless it is the law of the tribe (if
any) to which the defendant or respondent
belongs
 • 1) Courts must apply the law agreed to by parties
?
• 2) If no agreement can be deduced, apply law of
where defendant resides, carries business or was
employed
 1) Promotes CL principles
Problems
2) what if defendant resides in one area and works
with s1(3)? in another?

3) Outdated and offensive terminology

4) Litigation = CL ; Mediation = Customary

 • Mduduzi and Thobani are neighbours – they live in a suburb in

ICE TASK Port Elizabeth. Both are African men, however of different
cultures. Mduduzi is Zulu, from KZN and Thobani is Xhosa, from
Port Elizabeth.
• Mduduzi is starting a new job in Johannesburg and as per Zulu
tradition, he must slaughter a three goats before he leaves. He
loans a goat from Thobani and proceeds with the ceremony.
• 6 months after moving to Johannesburg, Mduduzi has not
returned the three goats. A dispute arises between Thobani
and Mduduzi in terms of which Thobani claims the return of the
goats he lent Mduduzi. Thobani issues summons against
Mduduzi for the return of the goats, alternatively, payment of
an amount equivalent to the three goats.
• Assess how conflicts between different systems of customary
law are to be resolved in terms of s1(3) of the law of Evidence
Amendment Act, 1988. Your answer must include a
discussion of the provisions of s1(3) and an evaluation or a
critique of the provision.
Assess how conflicts
between different
systems of customary
law are to be resolved

• REGIONAL SYSTEMS
OF CUSTOMARY LAW
Conflict arises from
whether to use foreign
law or SA Customary
law

S 1 (3) does not cater

for this type of conflict

Section’s wording is
vague

courts must then rely

on private
international law of
SA to determine which
system will apply
 • 1) Apply choice of law rules of SA (private
? international law) OR country in which dispute
arose

• 2) Determine whether the customary/state law of

the foreign country is applicable

• Chitima v RAF: Breadwinner dies in car accident.

Couple was married ito Zimbabwean customary
law. Court first looked at PVT Int. Law in SA (where
the marriage was celebrated) = Zimbabwe, and
therefore court used Zimbabwean customary law
to determine validity of the marriage
 • Living customary law = oral
Case law as an • Alexkor Ltd v Richtersveld Community: In applying
authoritative indigenous law, it is important to bear in mind that,
unlike common law, indigenous law is not written.
source of It is a system of law that was known to the
community, practiced and passed on from
living generation to generation. It is a system of law that
has its own values and norms. Throughout its
customary law history it has evolved and developed to meet the
changing needs of the community. And it will
continue to evolve within the context of its values
and norms consistently with the Constitution.
 • Customary law is ever-changing = up to date
CONSEQUENCE • Not always easy to distinguish the law from mere
OF ORALITY. custom
• No legislature who makes the law/documents it
 • In Sigcau v Sigcau = AD confirmed position of
CONT. customary law as being primarily unwritten
• Those rules that are recorded are mere opinions of
what someone at the time said the custom was
and would rather rely on the oral evidence of that
custom those best qualified to give it
• Case law is regarded as an authoritative source of
living customary law
• See debate on pg 51
 • PG 52 (From par 3.4) – top of pg 58
SELF STUDY • Pg 58 (from par 3.5) – pg 64