CHAPTER 7

PROOF OF CUSTOMARY LAW

(a) Customary law treated as custom

Rules of customary law are subject to constant and (from the point of view of most courts) imperceptible change, a characteristic inherent in any law derived from social practice. It follows that, if the courts are to administer an authentic version of customary law, they must be prepared to take account of shifts in behaviour and attitude. However, a court's knowledge of customary law is bound to be second-hand, a consequence of the fact that, apart from tribunals of traditional authorities, courts are socially distanced from the communities they serve.

Under s 1(1) of the Law of Evidence Amendment Act,^[83] all courts in South Africa may take judicial notice of customary law ‘in so far as such law can be ascertained readily and with sufficient certainty ...’. The courts act as the final arbiters of customary law, a position that entitles them to call for evidence of disputed or questionable rules mero motu.^[84] Nevertheless, under s 1(2) of the Act, any party also has a right to adduce ‘evidence of the substance of a legal rule ... which is in issue at the proceedings concerned’.

A party alleging the existence of a customary rule that differs from the previously accepted version obviously bears the burden of proof, an onus that is normally discharged by calling witnesses. The test of sufficient proof is a balance of probabilities. If a litigant fails to meet this test, it could be argued, on a superficial reading of s 1(1), that the court would be obliged to apply common law instead of customary law. A freer and probably a better interpretation, however, would allow the court to continue applying existing rules of customary law (culled no doubt from precedents and textbooks) in the absence of evidence of a new rule to the contrary.

(b) Assessors

In the past, to alleviate the difficulties of proving customary law, commissioner's courts and the Black Appeal Courts could call to their assistance one or more assessors.^[85] This statutory authorization was, however, repealed.

(c) Proposed reforms

In light of the courts' general lack of expertise in customary law and the exacting process of proving new rules, the practice of calling assessors should be re-introduced.

[83] 45 of 1988.

[84] But this power does not license private investigations by judicial officers. Principles of procedural fairness should always be observed: when any rule is in doubt, the parties must be informed to give them the opportunity of calling witnesses of their own.

[85] Section 19(1) of the Black Administration Act.

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