CHAPTER 3

GENERAL RULES ON THE APPLICATION OF CUSTOMARY LAW

(a) Courts competent to apply customary and common law

All courts in South Africa are competent to apply customary law.^[3] Under s 12(1) of the Black Administration Act,^[4] however, courts of the traditional authorities only have jurisdiction ‘to hear and determine civil claims arising out of Black law and custom’ brought before them ‘by Blacks against Blacks resident within [their] area of jurisdiction’. Thus, in civil suits, these courts have no competence to apply common law. Under s 20(1)(a) of the Act, on the other hand, traditional leaders may try offences at either common or customary law,^[5] provided the accused was Black or the offence was suffered by a Black.

The major objection to these provisions is the racist manner in which limitations on the traditional courts’ jurisdiction were conceived (an objection that can be remedied in whatever new legislation is contemplated for specifying powers of traditional leaders).^[6] For the purpose of this paper, however, which is to define circumstances when customary law may be applied, the question is whether it is not arbitrary to deprive traditional courts of jurisdiction to hear civil suits arising out of common law and whether customary criminal law should continue to be recognized.

(b) Principles governing choice of law

Specific statutory choice of law rules stipulate when common or customary law are to be applied in cases of succession and civil or Christian marriages. For all other cases, application of customary law is left to the discretion of the courts. The only statute relevant to the issue, the Law of Evidence Amendment Act,^[7] has only the following cryptic provision:

Any court may take judicial notice ... of indigenous law in so far as such law can be ascertained readily and with sufficient certainty ...^[8]

In fact, South African courts have never had the benefit of precise choice of law rules to direct them, with the result that they have had to create their own guidelines on a case-by-case basis.^[9] According to one line of thinking, all Africans were subject to customary law and common law could be applied only in exceptional cases. A contrary view considered common law to be prima facie applicable to all people in the country and customary law only by way of exception. This deadlock was finally resolved in Ex parte Minister of Native Affairs: In re Yako v Beyi,^[10] where the Appellate Division held that neither common nor customary law should be given priority: the courts had to select whichever law seemed appropriate in all the circumstances of a case.

Underlying the courts' decisions was a clear tendency to choose whichever law the parties would have expected to apply. While this rationale was never overtly expressed as a basis for choice of law, it is the soundest principle for deciding when to apply customary law, for, in doing justice between the parties, courts should seek as far as possible to uphold their legitimate expectations. Such reasoning can now be supported by the individual's constitutional right to pursue the culture of his or her choice.^[11]

If courts are to endeavour to give effect to the parties' expectations, then litigants should be entitled to agree that a particular law apply. From existing case law it is evident that the courts regularly inferred tacit agreements from prior conduct. Thus, if a defendant did nothing to contest the choice of law implicit in the plaintiff's pleadings (ie the nature of the remedy or the type or quantum of damages sought), the parties were deemed to have accepted that law as the basis of their suit.

While an absolute freedom to choose the applicable law has never been unconditionally endorsed, courts have never objected to a widespread practice whereby persons normally subject to customary law use the forms and institutions of common law, such as wills and contracts. (Conversely, of course, there is no reason why persons subject to common law should not engage in customary institutions if they wish.) Nowadays, under the Constitution, it would be necessary only to insist that this practice conform to the principle that all people in South Africa have recourse to protections offered by the bill of rights. In other words, one party's choice of customary or common law should not operate to prevent the other party from relying on his or her constitutional rights.

If a defendant contests the plaintiff's choice of law as it appears ex facie the summons, the court will have to determine which law the parties contemplated at an earlier stage of their relationship. According to several precedents, a choice of law can be inferred from the transaction on which the suit is based, if that transaction was characteristic of a particular legal system.^[12] Where the transaction was common to both legal systems, use of a form peculiar to one may be decisive. Especially in the case of marriage, if the spouses had married in church, the form of the ceremony is taken to imply the parties' tacit acceptance of common law as the basis of all legal issues related to their union.

Where a transaction had no culturally marked form, the courts delved deeper into the circumstances in which the transaction occurred in order to discover a prevailing cultural identity. Accordingly, the purpose of a transaction, the place where it was entered into and its subject matter have all been used as indications of tacit choice of law. In suits arising out of delicts and family relationships, where no prior transaction was involved, however, the courts looked to the parties' lifestyles as an indication of an overall cultural orientation and thus choice of law.

(c) Exemption from customary law

Under s 31 of the Black Administration Act, Africans who are deemed sufficiently acculturated to a ‘western’ lifestyle can apply to the State President for an exemption from customary law.^[13] So few people have applied for exemption that the procedure could now be considered obsolete.

(d) Unifying choice of law

The courts unified (and thereby simplified) choice of law by deeming all aspects of an action subject to one legal system. Hence the law applicable to the main claim determined such subsidiary questions as the relevant defences, quantification of damages and capacity.

Locus standi in judicio and contractual capacity are regulated by special statutory choice of law rules contained in s 11(3) of the Black Administration Act:

The capacity of a Black person to enter into any transaction or to enforce or defend his rights in any court of law shall, subject to any statutory provision affecting any such capacity of a Black, be determined as if he were a European; Provided that -

(a) if the existence or extent of any right held or alleged to be held by a Black or of any obligation resting or alleged to be resting upon a Black depends upon or is governed by any Black law (whether codified or uncodified) the capacity of the Black concerned in relation to any matter affecting that right or obligation shall be determined according to the said Black law.

In terms of this section, if a right or obligation arose out of a common law transaction, then capacity to enter the transaction and capacity to sue or be sued upon it must be tested by the same system.

Under s 11(3)(b), a Black woman ‘who is a partner in a customary union and who is living with her husband shall be deemed to be a minor and her husband shall be deemed to be her guardian’. In consequence, such women lack contractual capacity or locus standi. This proviso drastically restricts the scope of the main section, creates legal confusion and contravenes the right to equal treatment/non-discrimination under s 9 of the Constitution.

(e) The ‘repugnancy’ proviso

In s 1(1) of the Law of Evidence Amendment Act, application of customary law is subject to a so-called ‘repugnancy proviso’, ie that customary rules may only be applied:

Provided that [they] shall not be opposed to the principles of public policy or 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 ...

This general limitation on the recognition of customary law is a legacy of colonialism and a clear reflection of the ethnocentric bias in South Africa's legal system.

The repugnancy clause is unsatisfactory for other, technical reasons. In the first place, its scope of application is vague, for it is uncertain whether customary rules should be considered in abstract or in the context of particular facts or whether the clause should be used as a choice of law rule to avoid hard cases. In the second place, the clause can be used to subject customary law to the Constitution. Instead of engaging in a principled debate (as would be implied by s 211(3) of the Constitution) about horizontality or the limitation of constitutional rights, courts can read the terms ‘natural justice’ and ‘public policy’ in the repugnancy proviso as expressions of constitutional norms and without further consideration override customary law.

(f) Proposed reforms

Most provisions in the Black Administration Act need to be amended in order to delete the racist term ‘Black’ (and its definition in s 35). For the purpose of choice of law, an expression such as ‘person subject to customary law’ or a cognate term is more appropriate.

As far as the courts' power to apply customary law is concerned, it is necessary only to note that the civil jurisdiction of traditional authorities under s 12(1) should be expanded to include claims based on common law.

A further general issue, affecting all the courts, is whether recognition of customary law should be limited to civil matters only. South Africa has never taken a clear policy decision about recognizing customary criminal law and s 211(3) of the Constitution is too general to provide an answer. While a principled argument could be made in favour of all people in the land being subject to the same criminal code, traditional leaders are already authorized to try minor offences at both common and customary law.^[14]

Application of customary law should remain a matter of judicial discretion, but explicit statutory choice of law rules could usefully provide the courts with guidance in this regard. A model provision would read as follows:

Customary law may be applied [in any civil suit] where:

(a) the parties have agreed that it should apply; or

(b) from the nature of the pleadings, a prior transaction, the parties' lifestyle or their understanding of the provisions of customary law or the common law (as the case may be), it appears that the parties would have expected it to apply.

Because the exemption procedure provided by s 31 of the Black Administration Act has so seldom been used and because it is conceived in such paternalistic terms, it should now be abolished. That every person has free choice of culture (with the corollary that no one should be perpetually bound by a system of personal law against his or her will) is undoubtedly consonant with constitutional principles. None the less, it is undesirable to allow individuals to change their personal law by an administrative procedure, especially when it is uncertain what effect this change will have on existing obligations and on relations with third parties.

Three amendments should be made to s 11(3) of the Black Administration Act. First, in the interest of eliminating racism, the term ‘Black person’ should be replaced with ‘person subject to customary law’. Secondly, the phrase ‘to enter into any transaction or to enforce or defend his rights in any court of law’ should be deleted to expand the ambit of this section to cover delictual and proprietary capacity. Thirdly, with a view to bringing the status of customary law wives into line with s 9 of the Constitution, proviso (b) to the section should be deleted.

The so-called ‘repugnancy proviso’ has not been invoked by South African courts for many years and in other southern African states it has been repealed because of its associations with the colonial past. Retention of the proviso gives the courts an opportunity to avoid serious constitutional debates by applying the bill of rights under the guise of ‘public policy’. In the circumstances, the proviso should be repealed.

[3] This proposition follows from s 1(1) of the Law of Evidence Amendment Act 45 of 1988 and s 211(3) of the 1996 Constitution.

[4] 38 of 1927.

[5] Other than those specified in the Third Schedule to the Act.

[6] Thus civil claims should not be restricted to ‘Blacks against Blacks’ and criminal jurisdiction need not depend on the race of the accused/injured party. As far as jurisdiction over persons is concerned, a simple requirement of residence within a court’s area of jurisdiction should suffice.

[7] Section 1(1) of Act 45 of 1988.

[8] Subsection 1(4) provides that for the purposes of s 1 ‘”indigenous law” means the Black law or customs as applied by the Black tribes in the Republic or in territories which formerly formed part of the Republic’.

[9] Before the Law of Evidence Amendment Act was promulgated, s 11(1) of the Black Administration Act 38 of 1927 governed application of customary law, and it too left choice of law to the discretion of the courts.

[10] 1948 (1) SA 388 (A).

[11] Sections 30 and 31 of the 1996 Constitution.

[12] Hence transactions usually associated with customary law, such as bridewealth and loans of cattle, point to that law, while the contracts typical of modern commerce suggest application of common law.

[13] The effect of exemption was never altogether clear: although the person concerned was generally deemed free from customary law, he or she was would still be considered bound by customary obligations incurred before exemption.

[14] And any attempt to circumscribe the jurisdiction of these courts is unlikely to succeed, since customary law does not draw a precise distinction between civil and criminal matters nor does it always draw a distinction in the same way as common law.

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