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1.1 It is unfortunately far from clear when customary law is applicable, for the rules on application are fragmentary, vague, badly drafted and out of date. At present, the principal rule is one of recognition, and it is contained in the Law of Evidence Amendment Act (which is concerned with the evidence necessary to prove both customary and foreign systems of law). This rule gives no guidance to courts wishing to discover when customary law is applicable.
1.2 In 1996, South Africa's new Constitution formally acknowledged Roman -Dutch law and customary law as the major components of the state’s legal system. Customary law comprises the various laws observed by communities indigenous to the country, hence the term ‘indigenous law’ is often used in South Africa.[1] The term ‘customary law’ is preferred in this Report, however, partly because it has a wider currency in Africa and partly because it was used in the Constitution. Because the adjective ‘customary’ emphasises an origin in social practice, it may cause confusion with other systems of custom, whether those adopted by religious groups, such as the Muslims or Hindu communities, or by commercial institutions such as banks. It must therefore be appreciated that ‘customary law’ in the present context denotes only laws that have historical roots in the societies of pre-colonial South Africa.
1.3 The courts now need to know when they must apply rules from customary or common law, because notwithstanding recognition of customary law as part of the general law of the land, the circumstances in which it is to be applied are still vague. The problem to be discussed in this Report is known as a conflict of laws. Such conflicts arise whenever rules derived from two (or possibly even more) different legal systems are potentially applicable to the same set of facts. Choice of law rules are therefore needed to determine which rule to apply.
1.4 Although the conflict of laws may be a rather academic discipline, it is an essential part of any legal order which is prepared to recognize and enforce two or more different systems of law. Choice of law rules have to deal with everyday legal disputes. To take two examples from many: if a woman were seduced, in customary law her guardian would have an action for damages; in common law, she personally would have the action, but only if she were at virgin at the time of seduction. Under common law debts prescribe if they are not claimed in time; under customary law debts last indefinitely. In both these examples, the conflict of laws indicates which law to apply.
1.5 While problems like those above can crop up in nearly any part of a legal system, South Africa has very few explicit choice of law rules to solve them. The Black Administration Act[2] contains some rules regulating questions of succession, but apart from these the legislature has been silent. The Law of Evidence Amendment Act[3] is the main instrument (together with the Constitution) dealing with customary law, but it does no more than oblige the courts to take judicial notice of customary law, which is a rule of recognition rather than choice of law.
1.6 It follows that deciding when to apply customary law has generally been a matter of judicial discretion, with the result that judges have tended to decide each case on its merits. Although a casuistic approach such as this may achieve justice in individual cases, it does so at the cost of legal certainty. We now have a situation in which application of customary law is so vague that one human rights lawyer has claimed that the individual's right to certainty in the administration of justice has been undermined.[4]
1.7 Clear and explicit choice of law rules are therefore needed, and they must be placed in a separate enactment devoted to recognition and application of customary law. It is necessary to create separate legislation in order to disentangle choice of law from the two statutes in which it is currently regulated: the Black Administration Act (which has unhappy associations with policies of segregation and apartheid) and the Law of Evidence Amendment Act (which, as the title suggests, is principally concerned with ways of proving foreign and customary systems of law).
1.8 Dr A M S Majeke (Fort Hare University) posed a general question about the philosophy underlying legal pluralism (in other words, recognition of two or more systems of law within an otherwise unified legal regime). In view of the fact that indigenous communities had not created the institutions that now seek to regulate their lives, he asked who gave contemporary courts and legislatures the right to choose for people which rules to apply in a dispute. Dr Majeke felt that we should look to the substance of legal relationships, not to their form, in order to determine choice of law. In this regard, he noted that African communities have always had a flexible approach to solving problems. Hence the question of what law to apply would be answered with direct reference to the need to resolve a dispute between the parties.
1.9 The National Human Rights Trust appeared to distrust the entire notion of recognizing different legal systems. It felt that maintaining different laws for different people would not only entrench polarity and separatism in the country but would also undermine respect for the rule of law. It argued that customary laws have been eroded by time and that, if their values have not already fallen into desuetude, they would soon do so. The Trust said that, if people were allowed to choose the law to be applied, they would inevitably select whichever system would give them an advantage.
1.10 The last respondent's sense of unease about continuing to recognize the differences between customary and common law is a sense shared by many. Judge Albie Sachs, in particular, indicated considerable concern about the overall philosophy of the Discussion Paper. He felt that the Project Committee's thinking would result in ‘an anachronistic and formulaic approach', one based on the dualism of the colonial and apartheid eras and one that would be ‘out of keeping with our new constitutional and social reality'. Judge Sachs argues that the starting point should be the 1996 Constitution, which both enhances the status of customary law and subjects it to the Constitution. He says that harmonization of customary and common law cannot be achieved by a conflict of laws approach. Instead, that approach is likely to entrench the ‘archaic and technicist view of customary law as a given body of rules inherited from the past'. We should, in other words, be striving to blend South Africa's legal traditions in new laws that will reflect constitutional principles of equality and unity.
1.11 The Gender Research Project (CALS) echoed these views. It felt that the only justification for maintaining a dualist legal system is the important one of manifesting respect for African culture. Nevertheless, given the exhaustive changes needed to bring both customary and common law into line with the equality clause in the Constitution, and given the emergence of a democratic legislature in which the voices of black South Africans will now be heard, reconfiguring the dualist regime was not an appropriate method for remedying defects in the law. Redrafting choice of law rules prior to such changes would merely continue to violate women's rights to equality.
1.12 The Zion Christian Church expressed a view held by other respondents when it said that the Black Administration Act should not be kept on the statute book. In the minds of nearly all Africans, this Act is a symbol of colonial and apartheid oppression. On the general question of choice of law, the Church urged courts to treat each case on its merits. Nevertheless, it suspected that presiding officers would tend to choose common law in preference to customary law, a bias that will no doubt persist until the judiciary has better training in African jurisprudence.
1.13 The Women's Lobby said that clear choice of law rules were needed to direct courts to apply customary or common law, depending on the parties' social circumstances and the Constitution.
1.14 Professor A J Kerr (Rhodes University) and the Gender Research Project (CALS) made observations on more specific issues in choice of law. The Project questioned assumptions underlying residence or domicile as a basis of jurisdiction. Although both factors are supposed to reflect the individual's consent to be bound by the laws in question (and his or her democratic voice in creating and applying those laws), in the case of customary law at least, this assumption is unfounded, particularly so far as women are concerned. The Project also questioned the validity of a rival, identity-based conception of jurisdiction. This conception is predicated on the assumption that a coherent community exists, with interests distinct from those of its individual members. In a democratic country, such as the new South Africa, however, it is far from clear whether there is in fact a distinct community of people observing customary law. Professor Kerr felt that a personal quality, such as cultural orientation, may have a role to play in the choice of law process, but it is not the only criterion nor even the most important one. He particularly criticized the principle that the applicable law should be determined by the litigants' expectations. He said that it would be artificial to require a court to speculate about an apparent consensus between the parties, when it knew quite well that they had never put their minds to the matter. Professor Kerr suggested that, if the parties had not expressly agreed on the applicable law before or at the close of pleadings, the court should decide which system of law to apply.
1.15 The current lack of rules governing recognition and application of customary law can be traced to the colonial and apartheid periods in our legal history. Existing laws have not in substance been changed since 1927, the date when the Black Administration Act was passed. That Act did little more than repeat preceding colonial enactments.[5]
1.16 A distinctive policy towards customary law in southern Africa began with Britain's occupation of the Cape in 1806. The new colonial power confirmed the Roman-Dutch law already operating in the Cape as the general law of the land, for that system was deemed to be suitably ‘civilized'.[6] No account was taken of indigenous KhoiSan laws, primarily because the people concerned were thought too primitive to have a legal system worthy of respect. In addition, however, KhoiSan social and political institutions were, by the early nineteenth century, fast disintegrating. Without the vigour of a living society to sustain it, there was no system of law to recognize.
1.17 In 1828, Ordinance 50 was passed with the aim of ‘improving the conditions of Hottentots and other free persons of colour at the Cape' (and ultimately, of course, freeing the slaves). Thereafter, in an argument remarkably similar to that proposed by modern human rights lawyers, the principle of equal treatment was used as a justification for applying only Roman-Dutch law. Application of indigenous law would have subjected a section of the population to an inferior brand of justice. In terms of the same thinking, the Cape administration took no account of existing indigenous laws when Kaffraria was annexed on the eastern borders of the Colony.[7]
1.18 The Cape government had to rethink its approach, however, when it began annexing the Transkeian territories towards the end of the century.[8] This area was geographically remote from centres of power, settler immigration was restricted, and the people of the Transkei had not been completely subjugated.[9] In the circumstances, it was simply not feasible to impose Roman-Dutch law on the entire population. Despite these considerations, the colonial conscience balked at unqualified recognition of customary law. Hence the annexation proclamations gave the courts authority to apply customary law only if it was ‘compatible with the general principles of humanity observed throughout the civilized world'.[10]
1.19 The Cape's more considered policy in Transkei owed much to what had been happening in Natal. When Britain annexed the territory in 1843, Roman-Dutch law was again declared the general law of the new colony, but shortly afterwards courts were also allowed to apply customary law in disputes between Africans. This break with established colonial policy was due mainly to Shepstone (the Diplomatic Agent to the Native Tribes and Secretary of Native Affairs). He succeeded in persuading the authorities to co-opt the service of African leaders to the colonial administration,[11] and with recognition of traditional rulers came recognition of customary law. Again, recognition was subject to the formula that was later to be adopted in Transkei (and throughout Africa, in fact): ‘so far as [customary law] was not repugnant to the general principles of humanity observed throughout the civilized world'.[12]
1.20 British rule in Natal left its stamp on customary law in two other respects. The first was an exemption procedure, which originated in complaints that Shepstone's policy was doing nothing to promote ‘civilization' of the Colony. Africans who were considered suitably ‘detribalized' could apply to be subject to the common law.[13] The second was the Code of Zulu law. In 1869, much of the customary law on marriage and divorce was reduced to writing. Six years later, a complete code was drawn up for the guidance of the courts,[14] and in 1891 an amended version was made binding law.[15]
1.21 None of the trekker republics established outside the sphere of British rule evolved any independent policy on customary law. The Orange Free State, for instance, did little more than recognize marriages contracted in the Thaba 'Nchu reserve.[16] Similarly, the Transvaal produced specific legislation only after the period of British control, between 1877 and 1881. Law 4 of 1885, gave courts of native commissioners and certain specially appointed traditional rulers primary jurisdiction over Africans in civil cases. In these courts customary law was applicable, provided that it was consistent with the ‘general principles of civilization recognized throughout the civilized world'.[17]
1.22 While the Transvaal recognition formula was akin to Natal's, the Supreme Court of the Republic refused to give effect to customary marriages or bridewealth agreements. Both were regarded as inconsistent with the ‘civilized' conscience, the one because it was potentially polygynous and the other because it amounted to the sale of a woman.[18] By implementing the repugnancy proviso in this manner, the Court repudiated two of the most fundamental institutions of African culture. As the court in Meesadoosa v Links[19] was eventually to concede,
‘If the decision of this Court not to recognise marriages contracted according to native custom is to be extended to its logical conclusion ... we might as well sweep overboard all the native customs ... insofar as they affect the status of members of that family ... and the ownership and disposal of property belonging to the different members of the family. The consequence would be that it would strike at the foundation of the custom which prevails among natives as to the family system.’
1.23 Mention should finally be made of Bechuanaland. In 1885, the southern portion of this territory was constituted a Crown Colony of British Bechuanaland.[20] Because the region was sparsely populated and had few attractions for white settlers, apart from its strategic importance as a trade route to the interior, Britain did very little to interfere with the Tswana leaders' rule over their peoples.[21] Hence, when British Bechuanaland was annexed to the Cape in 1895, no attempt was made to impose the Cape policy of non-recognition of customary law.
1.24 What emerges from this brief account of the legal history of southern Africa is that the settlers' grudging recognition of customary law had little to do with a concern for the well-being of the African people. Considered too barbarous and backward to function as a viable legal system, customary law was tolerated in areas of marginal significance to the colonial regime, namely, marriage, succession, delict and land tenure. At no time was recognition regarded as a right inhering in the people to whom it applied. Instead, it was considered a precarious favour bestowed by a conquering power.
1.25 When the union of South Africa was established in 1910, the position of customary law differed radically from one part of the country to the other. In the Cape, and for all intents and purposes in the Transvaal too, customary law had no official recognition. In British Bechuanaland, and to a lesser extent in Natal and the Transkeian territories, it was regularly applied subject to the supervision of the higher courts.
1.26 Not only were such extreme differences inappropriate to the legal system of a unified state, but the rules on recognition and application were complex and confused.[22] The implementation of a new, uniform policy for the whole country was to complement the Union government's doctrine of segregation. At this time, it was apparent that social and political changes in the African population were posing a serious challenge to white rule. Traditional leaders, who formerly had been a constant threat to the colonial enterprise, were fast losing the support of their subjects. Africans now formed a sizable urban proletariat and they had developed independent political and labour associations. In order to avert a growing threat to white hegemony, the government began to revive traditional institutions in the hope that the energies of an increasingly competitive class of people would be deflected towards a ‘tribal' culture.[23]
1.27 In 1913, the Natives Land Act laid down a territorial framework for segregation.[24] Africans were thereafter prohibited from buying or leasing land outside certain ‘scheduled' areas.[25] This Act, the first so-called ‘pillar of apartheid', drew a clear division between the white-owned urban areas and farmlands (the seat of all real economic and political power) and the rural reserves (where Africans were supposed to get on with their own destiny).
1.28 In 1927, the Native Administration Act was passed.[26] Although the government's ostensible purpose was to rejuvenate African tradition,[27] its actual intention was to establish a separate system of justice to match segregation in land and society.[28] Under the Act, a new system of courts was created to hear civil disputes between Africans. Henceforth, approved traditional rulers were given judicial powers with jurisdiction to apply customary law.[29] They exercised civil jurisdiction concurrently with native commissioners' courts, which also heard appeals from courts of traditional leaders. At the top of this hierarchy was the Native Appeal Court.
1.29 Section 11(1) of the Native Administration Act prescribed conditions under which the commissioners' courts (and their Appeal Court) could apply customary law:
‘Notwithstanding the provisions of any other law, it shall be in the discretion of commissioners' courts in all suits or proceedings between Blacks involving questions of customs followed by Blacks, to decide such questions according to the Black law applying to such customs except in so far as it [had] been repealed or modified ....’
The new Native Appeal Court construed this discretion as a judicial one, which, if exercised capriciously, arbitrarily or without substantial reason, could be upset on appeal.[30]
1.30 At first, the obscure requirement that a suit or proceeding had to involve ‘questions of customs followed by Natives' was taken to mean that customary law could be applied only if it contained a rule appropriate to the facts of the case[31] or offered a remedy.[32] (This assumption was misguided, for a choice of law predicated on the existence of rules and remedies is bound to be arbitrary.)[33] Two Appellate Division decisions later reversed this approach by holding that the existence or absence of remedies was not critical to application of customary law.[34]
1.31 With no specific choice of law rules to guide them, the Native Appeal Court inevitably deferred to practices that had been established in the colonial period. The Cape and Orange Free State division of the Appeal Court, for instance, construed its discretion in s 11(1) to mean that customary law was applicable only in matters ‘peculiar to Native Customs falling outside the principles of Roman-Dutch law'.[35] In other words, the courts' general duty was to apply common law; they could take cognizance of customary law only by way of exception. The Natal and Transvaal division took the opposite view: that customary law was primarily applicable and common law could be applied only in exceptional cases.[36]
1.32 This impasse was finally resolved in Ex parte Minister of Native Affairs: In re Yako v Beyi.[37] In this case, the Appellate Division held that neither common nor customary law was prima facie applicable. Courts had to consider all the circumstances of a case, and, without any preconceived view about the applicability of one or other legal system, select the appropriate law on the basis of its inquiry.
1.33 The structures established in 1927 lasted until the 1980s, when, confronted with the imminent collapse of apartheid, the government was forced to initiate a series of reforms. Commissioners' courts, which had become the main judicial agency of the apartheid regime, were abolished (together with the Appeal Court),[38] and their jurisdiction was transferred to the magistrates' courts. In consequence, s 11(1) of the Black Administration Act was repealed and re-enacted as s 54A(1) of the Magistrates' Courts Act.[39] This amendment involved few significant changes for customary law.[40]
1.34 In 1988, the government undertook a more thorough-going, but this time less publicized reform of the terms of recognition of customary law. Section 1(1) of the Law of Evidence Amendment Act was passed to provide that:[41]
‘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 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 ....’
1.35 This section introduced two important changes. The first was removal of the stipulation that parties to a suit had to be ‘Black'.[42] By implication, whites too could be subject to customary law. The second was to extend the sphere of application of customary law to all courts in the country. Less important amendments were omission of the confusing qualification that a case should involve ‘questions of customs followed by Blacks' as well as the proviso that customary law might be applied only in so far as it had not been repealed or modified.[43]
1.36 The courts' power to take judicial notice of customary law was still subject to three provisos, two of which were carried over from s 11(1) of the Black Administration Act. The first was a general reservation in favour of public policy and natural justice, the so-called ‘repugnancy proviso' inherited from the colonial period.[44] The second proviso excepted bridewealth from purview of the first. This exception was a special dispensation that had been included in s 11(1) of the 1927 Act to safeguard against repetition of the decisions of the Transvaal Supreme Court.[45] The third proviso, however, was an innovation: the courts could take judicial notice of customary law only if the law could be ‘ascertained readily and with sufficient certainty'.[46]
1.37 We have remarkably little judicial interpretation of s 1(1) the Law of Evidence Amendment Act. The main reason for this dearth of precedent is the disappearance of commissioners' courts and their courts of appeal two years before the Act was promulgated. They had been a fruitful source of authority on application of customary law.[47] Because the legislature did not enact specific choice of law rules to replace the previous discretionary power to apply customary law (under s 11(1) of the Black Administration Act), we must conclude that application of customary law is still a matter of judicial discretion - with all the vagueness and uncertainty that such a discretion entails.
1.38 South Africa's history of legal and judicial segregation corresponds closely with the history of other African colonies. There, too, customary law was deemed applicable only to Africans in civil suits and normally only in particular courts.
1.39 Rules restricting the jurisdiction of the courts had the effect of precluding possible conflicts of law. Tribunals run by traditional rulers and an equivalent of the South African commissioners' courts were responsible for African litigation; the higher courts adjudicated settlers' disputes. By confining African disputes to particular tribunals, conflicts between customary law and the received systems of law seldom arose.[48]
1.40 When conflicts did arise, choice of law was based primarily on the parties' racial status and to a lesser extent on the nature of the cause of action. In francophone colonies the only consideration for applying customary law was the litigants' statut coutumier, as opposed to a statut civil français (which Africans could achieve by an exemption procedure).[49] In effect, race was the exclusive determinant of the applicable law, since no other choice of law rules were provided.[50]
1.41 In anglophone Africa, too, race was also the principal factor in choice of law, but customary law was not invariably applied to Africans. One approach - similar to that in South Africa - was to give the courts a more or less unfettered discretion as to when customary law should be applied.[51] Another was to deem customary law applicable in certain prescribed causes of action. In the Gold Coast, for instance, customary law was presumed to apply in matters of marriage, land tenure, the transfer of real and personal property, wills and inheritance.[52]
1.42 Independence provided an obvious opportunity to reform the colonial regime. Some states decided against any major change to choice of law rules. Zambia, for example, kept the ‘cause of action' approach it had inherited colonial rule,[53] and Lesotho the discretionary approach.[54] Other states undertook a thorough-going review of their entire legal system. Not all were sympathetic to customary law. Ethiopia and Ivory Coast, for instance, saw it as an obstacle to socio-economic development and national unity, and they therefore eliminated customary law in favour of imported systems of civil law.[55] These two countries were the exception, however, for most African governments were careful not to depart too far from their indigenous legal orders. Thus, when Senegal and Madagascar decided to reform their systems of family law, they integrated customary law with civil and other local laws into hybrid codes.[56]
1.43 Whether the decision was to unify the national law completely (as in Ivory Coast and Ethiopia) or merely to integrate certain topics, such as marriage and succession, the result for conflicts of law was the same. Once legal differences were removed, and everyone in the nation was subject to a single code of rules, there could be no more conflicts, because the courts had only one law to apply. As it happened, few countries attempted more than a codification of succession.[57] For the most part, customary and common law were retained as independent legal regimes.
1.44 Where different systems of personal law continued in operation, the question then arose whether customary law should still be confined to the lower courts. Swaziland made little change to the colonial regime: customary law may still be applied only in the Swazi courts[58] and common law in the High Court and magistrates' courts.[59] Possible injustices that might result from an action being brought in the wrong forum are solved by permitting transfer of cases.[60] The Swazi arrangement is no longer the norm in Africa,[61] however, nor is it in all respects desirable. Although disputes may be adjudicated in tribunals familiar with the litigants' personal law and its associated procedures, plaintiffs are encouraged to ‘forum shop',[62] and transferring cases that were mistakenly initiated in the wrong forum entails unnecessary costs and delays.[63]
1.45 In fact, African governments usually sought to give customary law a greater prominence in their legal systems by giving all courts power to apply it. Once customary law may be applied by any court in the land, conflicts of law are bound to arise and choice of law rules become necessary. This need has not always been perceived. Namibia, for example, took no action to replace provisions inherited from the period of South African rule.[64] Hence, although customary law has express recognition in the Constitution,[65] there are no rules governing its application. Although no one seems to have complained about this lacuna, the situation can hardly be considered ideal, for both courts and litigants need some guidelines on what law to apply.
1.46 In any event, the situation in Namibia is unusual. Most countries in Africa have taken care to specify the circumstances in which customary law should be applied. While doing so, they took the opportunity to cleanse the statute book of the racism that had formerly determined application of customary law. This meant discarding the assumption that only Africans could be subject to customary law. Various new terms were introduced to designate an appropriate link between a litigant and his or her system of personal law. Sometimes the link was membership of a political or cultural community,[66] sometimes an association with ‘a community in which rules of customary law ... are established'[67] and sometimes simply being ‘subject to' African customary law.[68]
1.47 Several states made special provision for application of customary law in situations where one party was not normally subject to it. Zambia, for instance, provided that in these circumstances the courts may apply customary law, provided that no one can claim its benefits if it appears from an express or implied agreement that some other law should apply.[69] According to the choice of law rule in Botswana, if a plaintiff who is subject to customary law asserts that system, and if the matter should be determined by customary law, then it should be applied.[70] Tanzania, by contrast, favours the defendant: customary law may be applied in any case where ‘it is appropriate that the defendant be treated as a member of the community in which such right or obligation obtained'.[71] Neither the Tanzanian nor the Botswana provisions are particularly apt, because allowing a litigant's role as plaintiff or defendant to dictate the law to be applied is arbitrary.[72]
1.48 In countries that decided to lay down new choice of law rules, two conflicting aims had to be met: giving more detailed guidance while at the same time allowing sufficient flexibility to cater for the peculiarities of individual cases. The Tanzanian solution was to provide a general deeming provision (similar to the earlier colonial legislation) that customary law would be applicable to members of a community governed by it, or in ‘any matter of status of, or succession to, a person who is or was a member of a community in which rules of customary law relevant to the matter are established'.[73] Kenya extended this ‘cause of action' approach even further.[74] Customary law is presumed to apply in cases about: land held under customary tenure; marriage, divorce, maintenance or dowry; seduction, enticement or adultery; matters affecting status, in particular the status of women, widows and children (including guardianship, custody, adoption and legitimacy); succession (both testate and intestate) and administration of estates (except property disposed of by a will made under a written law).[75]
1.49 Rules promulgated in Zimbabwe introduced a significant change of emphasis:[76] the parties are free to choose the law they wanted applied. Hence, ‘[u]nless the justice of the case' otherwise requires, customary law may apply in civil cases where the parties expressly agreed that it should apply, or, from ‘the nature of the case and the surrounding circumstances' it appears either that the parties had agreed or that it is just and proper that customary law should apply.[77] The terms ‘surrounding circumstances' were defined to include: the parties' mode of life, the subject matter of the case, the parties' understanding of customary and common law or ‘the relative closeness of the case and the parties' to customary or common law.[78]
1.50 Post-independence legislation in Botswana was similar.[79] Although customary law was deemed to apply to ‘tribesmen' in certain causes of action, parties were allowed freedom to select the applicable law. Hence, the common law could apply in three situations: if the parties expressly agreed that it should (either inter se or with the court); from all relevant circumstances it objectively appeared that the parties intended common law to apply; or the transaction out of which the case arose was unknown to customary law.[80] These relatively straightforward provisions were later replaced by far more complex rules. Choice of law is still linked to the form and nature of transactions (or unilateral dispositions), but now special rules have been included to deal with property rights (especially rights to land).[81]
1.51 In summary, it appears that reforms of the newly independent African governments have not always improved on, or indeed changed, the colonial regime. None the less, the following three points emerge from policies adopted in post-colonial Africa. First, conflicts of law become immaterial if a court's power to apply both common and customary law is removed or if legislation overrides personal law by imposing a single code of rules on everyone. Secondly, if race as the criterion for applying customary law is abolished, a problem then arises as to what assumption should govern the applicability of that law. The most viable solution seems to be a reference to a litigant's membership of a community observing customary law.
1.52 Thirdly, the ‘cause of action' approach avoids any reference to race or culture, but it contains problems of its own. One problem is deciding which system of law should be used to characterize the cause of action, since common and customary law do not necessarily agree on this question. (They may differ, for instance, on whether a claim for breach of promise to marry should be treated as an issue of marriage or delict.)[82] Another problem is the rigidity of deeming customary law applicable to a particular set of causes of action. Choice of law must be sufficiently flexible to cater for the great variety of cases that will arise.
1.53 The most progressive legislation to have appeared is from Botswana and Zimbabwe. Statutes in these countries borrowed principles from the more developed discipline of private international law, notably the principle that parties should be free to choose whatever law they wanted.
1.54 The history of customary law in South Africa has been closely bound up with the political fate of the African people. Even at the height of segregation and apartheid, when the South African government was at pains to assert an African cultural tradition, customary law was considered a second-rate system. Roman-Dutch common law has always been treated as the general law of the land and the model to which customary law should conform.[83]
1.55 South Africa's new constitutional dispensation has done much to improve the overall status of customary law. From several clauses in the Constitution,[84] not to mention comments made in the Constitutional Court,[85] it is evident that customary law is at last achieving recognition as a foundation of the South African legal system.
1.56 The question that must now be asked is whether customary law should be retained as a separate legal system - which is what the conflict of laws implies. Several respondents to the Issue and Discussion papers, notably Judge Albie Sachs, felt that South Africa should be working towards unified laws (and he mentions particularly family law, land law and succession). While these laws will draw their inspiration from all the country's legal traditions, s 35(3) of the Constitution requires courts to ‘have due regard to the spirit, purport and objects' of the Bill of Rights when developing either customary or common law. The Law Commission is in fact endeavouring to realize this goal in its projects on marriage and succession.
1.57 Blending two very different legal systems in a synthetic code is an immense undertaking, however, which has been accomplished in very few African countries (in fact only Ivory Coast and Ethiopia) and then largely at the expense of customary law. At a technical level, it may be questioned whether all legal differences can be reconciled. For instance, how are common-law rules on the prescription of actions and charging interest on overdue debts to be adjusted to customary-law principles which would permit neither of these claims? At a social level, it may be questioned whether everyone in the country either wants or is prepared for a single law. Are the peoples of South Africa willing to compromise their cultural traditions in an homogenized legal system? In any event, it must be appreciated that, for the immediate future at least, social and legal differences will remain, and, if that is the case, the conflict of laws will have an important role to play in selecting appropriate laws in particular cases.
1.58 What is more, the Constitution now provides an entitlement for invoking customary law in legal suits. Because ss 30 and 31 specifically guarantee an individual and a group's right to pursue a culture of choice,[86] it could be argued that application of customary law has become a constitutional right.[87] Previously, the state had assumed complete discretion in deciding whether and to what extent customary law should be recognized, an attitude typical of colonial thinking, for Africans were subject to whatever policies the conquering state chose to impose on them. Now, however, the state has a duty to allow people to participate in the culture they choose, and implicit in this duty is a responsibility to uphold the institutions on which that culture is based.[88]
1.59 This argument finds adventitious support in two sections of the Constitution. Section 15(3)(a)(ii) provides that legislation may be passed to recognize ‘systems of personal and family law under any tradition, or adhered to by persons professing a particular religion'[89] and s 211(3) obliges the courts to apply customary law in appropriate circumstances.[90]
1.60 The courts' duty to apply customary law under s 211(3) is subject to three important qualifications: that customary law is ‘applicable', that it is compatible with the Constitution and that it has not been superseded by ‘any legislation that specifically deals with customary law'. The first qualification might suggest that courts have an unrestricted discretion in deciding when to apply customary law, which could imply that application of customary law is again dependent on the vagaries of state policy. A preferable reading of ‘applicable', however, and one that is more in keeping with the general tenor of the Constitution, is to say that this discretion must be exercised in accordance with general principles governing choice of law.[91]
1.61 The third qualification - that customary law must be deemed repealed to the extent that it is inconsistent with legislation - clarifies a previously nebulous issue. While general legal doctrine would decree that statutes always override precedent, custom and the writings of jurists, customary law might none the less have been exempt if Parliament had intended an act to change only the common law. (It has long been uncertain, for example, whether the Age of Majority Act[92] applied to persons who were subject to customary law.) Section 211(3) now makes it clear that statutes will prevail only if they are aimed at amending customary law.
1.62 The second qualification is the most complex, since it implies that any legal relationship governed by customary law is subject to the Bill of Rights. That human rights should be imported into personal relationships - should in other words be horizontally applicable - is reinforced by s 8(2) of the Constitution. This subsection declares that a provision in the Bill of Rights will bind natural persons ‘if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right'.[93]
1.63 Because many rules of customary law reflect, directly or indirectly, the patriarchal traditions of African culture, large parts of the law could be declared invalid for infringing the right to equal treatment.[94] If that were allowed, the constitutional recognition given to customary law in 1996 would be an empty gesture.[95] No one in South Africa today would wish customary law to be relegated to its former position; and, if courts and Parliament are sincere in their respect for African cultural traditions, they must construe application of the Bill of Rights in such a way that the common law does not again emerge as the dominant regime.[96]
1.64 The word ‘applicable' in s 8(2) could, of course, be interpreted to mean that the Bill of Rights applies only when organs of state are involved, which is the traditional approach to application of human rights. But such a reading would defeat a clear intention of the drafters of the Constitution. A sensible construction of a word as vague as ‘applicable' would be to follow jurisprudence abroad,[97] where constitutional norms have been extended from their usual sphere of ‘vertical' operation only by way of exception. Courts have had to consider the nature of the constitutional right concerned and the offending rule of private law[98] - matters already provided for in s 8(2) - together with social context. This more circumspect approach to horizontality requires both a policy assessment of the extent to which the state should intervene in private relations and a legal assessment of how constitutional rights should relate to one another.[99] In summary, the overall effect of the Constitution is to require, on the one hand, greater respect for customary law and, on the other, a filter through which its rules must now be interpreted.
1.65 Because application of customary law has become a constitutional issue, the conflict of laws must also be reconsidered in view of the Bill of Rights. Previous courts did very little to acknowledge or support social and legal changes in South Africa's plural society. Although the common law should have been applied to those individuals who no longer considered themselves part of an African cultural tradition, the courts refused to allow individuals, women in particular, to escape the strictures of customary law without going through the formal exemption procedure.[100] It should now be acknowledged that freedom to pursue a culture of choice means that people are free to change their personal law through integrating themselves into whichever culture suits their needs. On this basis, it can be argued that parties are free to choose the law that best suits their needs.
1.66 Customary law continues to be recognized in South Africa as a separate legal system, not in order to perpetuate apartheid ideology, as some respondents to the Issue and Discussion Paper feared, but rather as the expression of an individual or group's constitutional right to maintain the African cultural tradition.
1.67 Reformulating choice of law rules is obviously not a way of removing contradictions between customary law and the Constitution, since separate legislative and judicial processes must perform that task. It would be wrong, however, to assume that, once constitutional reforms have been implemented, common and customary law will be the same and that legal dualism will vanish. Differences in culture are always likely to generate differences in law, with consequent conflicts of law.
1.68 Common and customary law may, of course, be legislatively integrated into a single code of rules, as happened in Ivory Coast and Senegal. Indeed, the Law Commission is currently engaged in projects to achieve this aim in the areas of marriage and succession.[101] Nevertheless, where differences between the two legal systems persist, legal dualism and the need for choice of law rules will also persist.
1.69 Some respondents to the Issue Paper indicated a concern that choice of law rules would operate to entrench unequal power structures. For instance, one litigant might be allowed to rely on a particular system of law at the expense of the other; choice of law rules might sustain the dominance of the common law or the patriarchal traditions of customary law. These fears must be allayed.
1.70 In the first place, it must be appreciated that the purpose of choice of law rules is to select the law that will do justice in the case. It is the court's power (and responsibility) to decide which law to apply, paying due regard to the parties' interests and their choice of legal system. Hence, althoug the courts must respect the individual’s freedom to choose a particular law, they must not do so at the expense of the other party (an issue discussed in more detail below in paras 1.79ff). If a plaintiff were to sue under the common law, for instance, and if the defendant were to acquiesce, the court need have no hesitation in applying common law to the claim. But if the defendant were to argue for customary law, the court would be obliged to investigate the parties’ relationship more deeply to discover another basis for deciding what law to apply.
1.71 In the second place, a court's decision to apply customary or common law must be in harmony with the supervening value system of the country, the Bill of Rights. Indeed, it can be argued that constitutional norms should now directly enter the choice of law process to determine the selection of an applicable law. For instance, where a plaintiff and defendant's interests diverge on account of an underlying conflict of laws, the court's choice of one or other legal system should be determined by selecting the law that gives best expression to the Bill of Rights. This would be a novel approach in South Africa, where choice of law rules have generally been mechanically applied, without regard to the ultimate result.[102] Because a bill of rights is a transcendent code of norms, however, the conflict of laws should no longer remain value-neutral. Until rules of customary or common law have been amended by court or Parliament to bring them into line with the Bill of Rights, if application of customary law results in unfair discrimination, the common law may (as a temporary measure) be applied in its place.[103]
1.72 It is true, as Dr Majeke says, that the choice of law rules considered below cannot hope to reflect the approach of traditional courts to dispute resolution. Such tribunals would seek to obtain a solution satisfactory to both parties, regardless of the technicality of the conflict of laws. Nevertheless, conflict problems normally arise in magistrates' courts and the High Court, where the approach to resolving disputes is more technical and legal, and where choice of law rules are therefore necessary.
1.73 The conflict problems considered below are conflicts between different systems of personal law. This phrase means that the common law and customary law are associated with different cultural traditions, which are applicable to people rather than places. In other words, no matter where litigants happen to be, they remain subject to either customary or common law.
1.74 Given South Africa's political history, the criterion for deeming a person subject to customary law was race. Hence, it was usually assumed that common law should be ascribed to whites and customary law to blacks. Latterly, however, this assumption was corrected, and, consonant with developments elsewhere in Africa, an individual's personal law came to be regarded as a matter of cultural affiliation.[104] There is truth in what the Gender Research Project (CALS) says about the artificiality of deeming customary law applicable to an ‘African’ community and common law applicable to a ‘western’ community. No community is so culturally homogeneous that only one system of law can express the attitudes and life styles of all its members. None the less, once the separate identity of customary and common law is recognized, it follows logically that they must be attributable to separate communities - a heavy-handed but inevitable solution to an infinitely complex social phenomenon.
1.75 A conflict of personal laws may arise in two situations: if parties to the case are normally subject to different personal laws, one to common law and the other to customary law, or, if the nature of their relationship requires application of a law other than their personal law.
1.76 Previous courts had little to guide them in choice of law. As we have seen, s 11(1) of the Black Administration Act simply gave the commissioners' courts a discretion to apply customary law. None the less, during the sixty years of their existence, these courts developed a set of principles that provide a useful foundation on which to develop more precise choice of law rules.
1.77 The major principle, although one that was usually only implicit in the courts' judgments, was a sense of appropriateness or reasonableness.[105] What determined that sense of appropriateness was the court's objective assessment of all the circumstances of a particular case:[106] what would a reasonable person, given these circumstances, have deemed the most suitable law?
1.78 The courts also took a more subjective approach which entailed deference to the expectations of the parties themselves; and a sense of reasonableness would dictate that the parties' views should direct a court's decision. If they had concluded an express agreement that a particular law should apply to their relationship, then the court need only enforce the agreement. Such forms of ‘conflict planning' are usually welcomed, because they remove much of the uncertainty about what law will govern an action, and, as indicated above, statutory choice of law rules in at least two African countries feature agreements between the parties.[107]
1.79 Professor Kerr, however, felt that the parties should not be free to choose a law unconnected with the subject matter of their dispute. His point reflects a persistent unease amongst scholars on the conflict of laws about allowing parties complete autonomy in choice of law.[108] The argument (in private international law) is that litigants should not be permitted to ‘contract out' of the mandatory rules of a legal system that would otherwise bind them. In addition, it should be appreciated that the decision whether to apply customary or common law is not the parties' but the court's.[109] The wording of the former s 11(1) of the Black Administration Act, for instance, made it clear that parties were not entitled to usurp a judicial power.[110]
1.80 Parties should obviously not be free to adopt a law that might defeat rights acquired by a third person[111] or might in any way prejudice the broader interests of justice. Moreover, as Professor Kerr says, if the Bill of Rights is applied horizontally, then any rule of customary law that is inconsistent with the Bill will no longer be valid, and so cannot be chosen by the parties. Apart from these caveats, however, there seems to be no convincing reason why litigants should not be free to select a law which happens to be convenient for their purposes. After all, persons subject to customary law may apply for exemption from it and they have always been free to use the forms and institutions of the common law, such as wills and contracts.[112] An even more important justification for party autonomy is the constitutional rule that individuals are free to participate in a culture of choice.[113]
1.81 If litigants should be allowed to select the applicable law, Professor Kerr then urges that their choice be made in writing, at the latest when pleadings close, so that the court will know in advance which system of law to apply. This requirement seems to be unduly restrictive. Why should the courts not take account of implicit agreements, ie, situations where a concurrence of intent or a general expectation may be inferred from the parties' prior conduct? In answer, Professor Kerr argued that it would be artificial to require a court to speculate about an apparent consensus between the parties, when it knew quite well that they had never put their minds to the matter.[114]
1.82 Professor Kerr is right in saying that litigants who are prepared to dispute the applicable law have directly opposed views when they come to court, and prior to that they probably never thought about the matter. Nevertheless, reference to an implied intent may account for a large number of cases (probably the majority), where no one questions choice of law. In practice, it is may be apparent from the face of a plaintiff's summons (namely, the nature of a remedy or the type or quantum of damages sought) that a particular legal system had been contemplated as the basis of a claim.[115] If the defendant does nothing to contest this choice of law, the court may infer acquiescence in the plaintiff's selection.[116]
1.83 If the defendant contests the plaintiff's choice of law, as it appears in the pleadings, the court may determine whether the parties had considered application of a particular law at an earlier stage of their dealings. This inquiry will entail an assessment of the words and deeds out of which the claim arose.
1.84 In cases heard by the former Black Appeal Courts and in statutory choice of law rules prescribed elsewhere in Africa, choice of law was often inferred from the nature of a transaction on which a suit was based. Transactions associated with African customary law, such as bridewealth and loans of cattle, were deemed to point to application of customary law.[117] Conversely, the commercial contracts typical of the common law suggested application of common law.[118]
1.85 Where a transaction was known to both systems of law, the parties' use of a form peculiar to one was sometimes taken as an implicit intention to abide by that law. In the case of marriage and wills, for instance, reference to culturally marked forms has been especially important.[119] Where the parties had married in church or in a civil registry office, the form of the ceremony was taken to imply the applicability of common law to issues associated with the marriage.[120] Similarly, if someone wanting to dispose of property on death were to draw up a document and have it duly signed and witnessed, the document would be treated as a will, with the result that its validity, terms and interpretation could be governed by the common law.
1.86 Courts should not, however, rely exclusively on the form or nature of a transaction.[121] As the Gender Research Project (CALS) noted, emphasizing only one factor could result in inconsistencies and arbitrary decisions. We shall see below, in the section considering marriage, that to apply common law to all the consequences of a marriage simply because it was celebrated in Church may be to defeat what the parties would in reality have expected.[122]
1.87 Where a transaction (or juristic act) was not culturally marked in any way, courts have delved deeper into the circumstances in which it occurred in order to discover a general cultural orientation. Thus the purpose of a transaction, the place where it was entered into and its subject matter have all been used as indications of the law to be applied.[123]
1.88 Many suits, notably those arising out of delicts or family relationships, do not involve transactions. In these cases, the parties' adherence to a particular cultural tradition has provided the basis for choosing an applicable law. People who observed the habits and customs of an African tradition were deemed subject to customary law, while those who had become acculturated to the ‘western' tradition were deemed subject to the common law.[124]
1.89 All the legislation in Africa governing application of customary law refers directly or indirectly to culture. Most often the reference is indirect, as when courts are authorized to apply customary law to suits between members of a community observing a system of customary law.[125] Zimbabwe opted for a more direct reference to culture by referring to ‘the mode of life of the parties', for it is from the particulars of life that the courts have to infer a general cultural alignment.
1.90 In two cases from Lesotho,[126] for instance, the courts investigated details as diverse as the parties' place of residence, occupation, religion, education, style of dress, eating and sleeping habits, use of bank accounts, preparation of wills and consultation with attorneys. From these facts a prevailing cultural affiliation became evident. The Gender Research Project (CALS) observed that the two decisions unconsciously reflected preference for the litigants' class, rather than their cultural orientation,[127] and that a life style - which admittedly is the product of education and income - does not necessarily affect an individual's attachment to his or her culture. While this point is taken, the focus of any inquiry should none the less be culture, of which life style is a strong, but not exclusive indication.
1.91 In most of the cases heard in South Africa, it so happened that both litigants adhered to the same culture. By and large, the courts were spared the classic conflict of laws situation - where a plaintiff followed one cultural tradition and the defendant another - because South Africa's policy of segregation ensured that whites had minimal contact with blacks.[128] Since the removal of apartheid, however, it is far more likely that people from different cultural backgrounds will interact and litigate.[129] The only viable approach to solving such conflicts would be to refer to the parties' expectations, which could be deduced from underlying transactions, and to such as other factors as the general environment of the claim. From a grouping of these factors a prevailing law must be determined.[130]
1.92 Under s 31 of the Black Administration Act, Africans who were deemed to be sufficiently acculturated to a ‘western' culture could apply for exemption from customary law. The power to grant exemption was vested in the State President.[131]
1.93 This procedure originated in the Natal policy of encouraging Africans to co-operate with the colonial mission to ‘civilize' subject peoples. In the context of the 1996 Constitution, exemption finds a more acceptable justification in the principle that every person should be free to pursue a culture of choice, which implies that people may not be involuntarily bound by a system of personal law. Another purely technical justification can be found in the certainty exemption brings to status: an individual can unequivocally declare in advance of any litigation a change in personal law.[132]
1.94 The effect of exemption, however, was never entirely clear. Although the courts were prepared to apply common law to an exempted person in matters of personal status, they would not grant immunity from racist legislation.[133] The courts also held that exempted persons remained bound by customary obligations incurred before being released from customary law.[134] From these decisions it is apparent that exemption did not function as a complete change of legal regime. Rather, it seemed to indicate an express choice of law, and hence only one factor that could be taken into account in deciding the applicable law.
1.95 In any event, very few people ever applied for exemption. This is hardly surprising, for the procedure has strong connotations of racism and paternalism. (Whites, for instance, could not exempt themselves from common law, indicating the clear bias against customary law.) The Gender Research Project’s (CALS) call for abolition of this procedure is endorsed by the Law Commission.
1.96 Once a court had decided which law to apply to a claim, the tendency was to subject all aspects of the action to the same legal system. The largely unconscious assumption that subsidiary questions, such as defences, quantification of damages[135] and capacity, should be governed by the law applicable to the main claim had the positive effect of unifying, and thereby simplifying, choice of law.
1.97 Special rules were promulgated in the Black Administration Act[136] to unify choice of law with regard to locus standi in judicio and contractual capacity. Section 11(3) provides that:
‘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;
(b) a Black woman (excluding a Black woman who permanently resides in the province of Natal) 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.'
This section provides that, if a right or obligation arises out of a common-law transaction, then the capacity to enter that transaction and the capacity to sue or be sued upon it must be tested by the same law.[137] Before questions of capacity can be considered, however, a court must decide whether the main claim is subject to customary or common law. This determination involves a somewhat illogical procedure of hearing all the evidence and arguments about the main claim before settling preliminary issues.
1.98 The Gender Research Project (CALS) proposed deleting s 11(3), so that all South Africans would have the same legal capacity, regardless of race, subject matter or gender. The Law Commission has met this proposal by recommending that the Age of Majority Act[138] be made applicable to everyone in the country. If this recommendation is enacted, s 11(3) will be automatically repealed.[139]
1.99 Under the second proviso to s 11(3), if a woman is married according to customary law and is ‘living with her husband', she is deemed to be a minor, and therefore without contractual capacity or locus standi. This provision has imposed an unwarranted burden on women and has created legal confusion.[140] The Law Commission has already recommended its repeal.[141]
1.100 Application of customary law should remain a matter of judicial discretion, but more exact guides to choice of law are needed to bring certainty to an issue that is currently vague and confused.[142] These guides have to be both precise and flexible enough to accommodate the great variety of factual problems likely to arise. They should also be simple and in keeping with the way in which courts have been used to solving conflict problems.
1.101 In the first instance, it should be made clear that the residual power to decide which law to apply lies with the court, not with the parties. In the second place, parties should be free to choose the applicable law, provided that their choice does not infringe rights acquired by others. If no express choice is made (and it must be appreciated that in practice litigants seldom make an express choice of law), then, the court should be free to infer a choice, which suggests that an implied agreement may be attributed to the parties. ( The notion of implied agreement is already an established principle in our private international law rules governing choice of law for contracts). Any sense of unease about allowing parties freedom to apply customary law to their relationship and thereby evade the Bill of Rights or principles of public policy may be laid to rest, since our courts have always had a residual power to refuse to give effect to contracts infringing public policy and the Bill of Rights. In any event, the discretion to apply customary law rests ultimately with the courts, not with the parties.
1.102 Through either the subjective concept of implied choice or the objective concept of reasonable expectation, courts are given appropriate grounds for delving deeper into the parties' relationship in order to discover a prevailing law. A list should be provided of typical factors that could assist in what may be a complex inquiry. This list could include: the nature, form and purpose of a prior transaction, the place where a cause of action arose, the parties' life styles (and hence cultural orientation) and their understanding of the relevant laws. While the nature and form of a particular transaction might prove especially significant, no one factor on its own should be regarded as decisive in indicating the applicable law. Rather, all of them should be considered in combination, so that the legal system with which the case has its closest connection may be ascertained.[143]
1.103 Further choice of law rules about issues ancillary to the main claim (ie, damages, defences, capacity, etc) need not be specified. The courts have evolved a consistent, and evidently satisfactory way of dealing with these questions. Similarly, no mention need be made of the role of the Constitution in choice of law, for this is a matter where exercise of judicial discretion is required.
1.104 Once a uniform age of majority becomes applicable to all persons in South Africa, the reason for s 11(3) of the Black Administration Act will disappear and the section may be repealed.
1.105 Although the exemption procedure contained in the Black Administration Act could perform a useful function by circumventing the need to discover a litigant's personal law, it seems to have played no useful role in the past. Moreover, because the procedure is so closely identified with colonialism and apartheid, it can have no place in a reformed South African legal system.
[1] Indigenous law is used, for example, in s 1(40 of the Law of Evidence Act 45 of 1988, where the term is defined to mean ‘the Black law or customs as applied by the Black tribes in the Republic or in territories which formerly formed part of the Republic’.
[2] Section 23 of Act 38 of 1927.
[3] Section 1 of Act 45 of 1988.
[4] Van der Vyver (1982) 15 CILSA 312-14.
[5] A general overview of approaches towards recognition of customary law in South Africa can be found in Hahlo & Kahn South Africa: the Development of its Laws and Constitution 319-34. Government policies are considered in Welsh Roots of Segregation, Rogers Native Administration in the Union of South Africa, Brookes The History of Native Policy in South Africa from 1830 to the Present Day chs 9 and 10 and Suttner (1985) 11 Social Dynamics 49.
[6] Wi Parata v Bishop of Wellington (1887) 3 NZ Jur 72 at 78.
[7] When Sir George Grey became governor, the policy of non-recognition was given further justification in Britain's drive to convert Africans to Christianity and western notions of `civilization'. See Burman Cape Policies towards African Law in Cape Tribal Territories 1872-1883 ch 2. Although local magistrates discovered that this policy was untenable in practice, no concessions were made, apart from allowing customary law to be applied in cases of intestate succession under the Native Succession Act 10 (Kaffraria) and 18 (Cape) 1864.
[8] A significant influence had been the Cape's experience with administering Basutoland. Because the territory was not incorporated into the Cape Colony, as had been the case with Kaffraria, the policy of non-recognition did not automatically apply. See Burman Chiefdom, Politics and Alien Law - Basutoland under Cape Rule 1871-1884 37-8.
[9] The annexation decrees claimed that the inhabitants were `not sufficiently advanced in civilization and social progress to be admitted to the full responsibility granted and imposed respectively by the ordinary laws of the Colony'. See Brookes (n5) 108 and Hailey African Survey 350.
[10] Section 23 of Procs 110 and 112 of 1879.
[11] Under Ord 3 of 1849, traditional rulers were to exercise unspecified judicial functions, subject to the general control of colonial magistrates.
[12] Ordinance 3 of 1849. See Bennett Application of Customary Law 79-80.
[13] Law 11 of 1864, as amended by Law 28 of 1865, allowed such individuals to petition the Governor for exemption, stating particulars of family, property, local chief and so on, and furnishing proof of an ability to read and write.
[14] Initially, when published in 1878, the Code was not legally binding in Natal, but by Proc 2 of 1887 it was made law for Zululand.
[15] Law 19 of 1891.
[16] Wetboek van die Oranje Vrystaat IV 1. Provision was made for recognition of marriages elsewhere by Law 26 of 1899. The traditional leader of Witzieshoek was given civil jurisdiction and the power to apply customary law: Hahlo & Kahn (n5) 327.
[17] Section 2 of Law 4.
[18] R v Mboko 1910 TPD 445 at 447 and Kaba v Ntela 1910 TPD 964 at 969.
[19] 1915 TPD 357 at 361.
[20] Northern Bechuanaland (now Botswana) became a separate Protectorate.
[21] Policy was formally expressed by Proc 2 of 1885, in which traditional rulers were given wide powers of civil and criminal jurisdiction.
[22] The Supreme Court, for instance, called for legislative intervention to bring order to `this chaotic state of affairs' and to the `curious jumble' of proclamations and colonial acts. See Roodt v Lake & others (1906) 23 SC 561 at 564 and Sekelini v Sekelini & others (1904) 21 SC 118 at 124, respectively.
[23] Bennett Application of Customary Law 46-7.
[24] Act 27 of 1913.
[25] The Native Trust and Land Act 18 of 1936 later released more land for the settlement of Africans. From areas demarcated in the two land Acts, the bantustans (later called the `homelands' and then `national states' or `self-governing territories') developed in the period after 1948.
[26] 38 of 1927.
[27] Thus, when the Minister of Native Affairs introduced the bill, he exhorted Parliament to accept customary marriage, polygyny and bridewealth (Hansard 28 April 1927 col 2918 and 2 May 1927 col 3047), and claimed that neglect of indigenous laws and customs had weakened traditional authority, thereby depriving rulers of their power to restrain the young (Hansard 28 April 1927 col 2907-8 and 2914-18).
[28] Hence, as the Zion Christian Church observed in response to the Issue Paper, the Act was used principally to suppress the African population.
[29] Section 12(1) of the Native Administration Act.
[30] Umvovo 1950 NAC 190 (S) and Mtolo v Poswa 1950 NAC 253 (S).
[31] See Nzalo v Maseko 1931 NAC (N&T) 41, Magadla v Hams 1936 NAC (C&O) 56 and Mkize v Mnguni 1952 NAC 242 (NE).
[32] See, for example: Muguboya v Mutato 1929 NAC (N&T) 73 at 76, Ntsabelle v Poolo 1930 NAC (N&T) 13, Nqanoyi v Njombeni 1930 NAC (C&O) 13, Mtolo v Poswa 1950 NAC 253 (S) and Sibanda v Sitole 1951 NAC 347 (NE).
[33] Bennett (1979) 96 SALJ 413-14.
[34] Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A) at 399 and Umvovo 1953 (1) SA 195 (A) at 201.
[35] Nqanoyi v Njombeni 1930 NAC (C&0) 13.
[36] Matsheng v Dhlamini & another 1937 NAC (N&T) 89 at 92, Kaula v Mtimkulu & another 1938 NAC (N&T) 68 at 71 and Yako v Beyi 1944 NAC (C&0) 72 at 77.
[37] 1948 (1) SA 388 (A) at 397.
[38] Section 2 of Act 34 of 1986. This reform followed from recommendations of the Hoexter Commission of Inquiry into the Structure and Functioning of the Courts Fifth Report Part V para 6.1.
[39] 32 of 1944.
[40] The scope of its application was broadened somewhat to include criminal matters, but it remained limited to `Blacks'.
[41] 45 of 1988. This reform involved the repeal of s 54A(1) of the Magistrates' Courts Act 32 of 1944.
[42] As defined in s 35 of the Black Administration Act 38 of 1927.
[43] This provision was arguably redundant, since all law in the country must be read subject to statutes in force: Bennett (1981) 30 International & Comparative Law Quarterly 86-7. Nevertheless, it reappeared in a more specific form in the 1996 Constitution. See below para 1.61.
[44] Which is considered in more detail below chapter 2.
[45] In which bridewealth transactions were held to be unenforceable because they were `uncivilised'. See above para 1.22.
[46] Otherwise customary law must be proved according to the rules specified for custom. For this purpose s 1(2) of the Act allows the parties to lead evidence of the substance of any legal rule in contention. See below para 10.23.
[47] Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T) is the only case to have been reported in which choice of law was specifically considered. The court interpreted s 1(1) of the Law of Evidence Amendment Act to be mandatory rather than permissive. Arguably, the decision case is incorrect, notwithstanding s 211(3) of the Constitution (which will be considered below para 1.59). As Professor Kerr pointed out in his response to the Issue Paper, s 1(1) means must as regards judicial notice but may as regards application of customary law. See further Kerr (1994) 111 SALJ 577 ar 580-1.
[48] As Lewin in Studies in African Native Law ch 9 commented, British colonial policy regarded questions such as the provision of conflict rules and the equity of the substantive law relatively less important than the courts and procedure.
[49] See Salacuse Introduction to Law in French-speaking Africa 449 and Robert (1959) 11 J Afr Admin 124-31.
[50] It was left to the courts and academic writers to evolve choice of law rules. See generally Salacuse op cit 43-65.
[51] This approach was adopted in the East African Protectorate (Kenya), Uganda, Bechuanaland, Nyasaland, Somaliland and Tanganyika. See Allott New Essays in African Law 130-3.
[52] Section 19 of the Supreme Court Ordinance 4 of 1876. This approach was subsequently adopted in Nigeria, Sierra Leone and Northern Rhodesia. See generally Allott op cit 123-30.
[53] Under s 16 of the Subordinate Courts Act Cap 45, customary law is applicable in civil cases between Africans, particularly in matters concerning customary marriage, the tenure and transfer of property, inheritance and testamentary dispositions.
[54] Section 2 of the General Law Proclamation 1884.
[55] See David (1962-3) 37 Tulane LR 187 on Ethiopia and Abitbol (1966) 10 J of African Law 141 on Ivory Coast. For more general comment, see David 1962 Annales Africaines 160
[56] Spellenberg (1985) 4 Jahrbuch für Afrikanisches Recht 139 and Blanc-Jouvan 1967 Revue Juridique du Congo 159-87. For a more general account of the position of customary law in post-independent francophone Africa, see Prinsloo 1993 TSAR 189; and for Zaire, Rwanda, Burundi and lusophone Africa, see Prinsloo 1993 TSAR 541.
[57] For example, the Wills and Inheritance Act 25 of 1967 (Malawi), the Law of Succession Act 1972 (Kenya) and the Intestate Succession Act 91 of 1989 (Zambia). Tanzania ventured further into the codification of marriage by the Law of Marriage Act 5 of 1971.
[58] Section 10(a) of the Swazi Courts Act 80 of 1950.
[59] Although, the Constitution of 1968 obliges them to apply customary law in certain circumstances (to do mainly with traditional authority).
[60] Thus, s 16 of the Subordinate Courts Act 66 of 1938 allows a magistrate to transfer cases involving only Swazis in which the causes of action are suitable to be heard by customary law to a Swazi court.
[61] What is more common is a restriction on the jurisdiction of traditional courts which entitles them to apply only customary law. In Zimbabwe, for instance, under s 16(1)(a) of the Customary Law and Local Courts Act Cap 7:05 local courts have no jurisdiction if common law is applicable to a case.
[62] Namely, initiate their cases in a court more likely to give them a favourable decision.
[63] See Bennett Application of Customary Law 92.
[64] Section 9(1) of the Native Administration Proc 15 of 1928 - a replica of s 11(1) of the South African Native Administration Act 38 of 1927 - was repealed when s 5 of Act 27 of 1985 abolished commissioners' courts in South West Africa.
[65] Article 66(1) of the 1990 Constitution.
[66] Section 1 of Namibia's Traditional Authorities Act 17 of 1995, for instance, speaks of affiliation to a `traditional community', and Botswana's Common Law and Customary Law Act Cap 16:01 speaks of membership of a `tribe' (which is defined in s 3).
[67] As in s 9(1)(a) of Tanzania's Judicature and Application of Laws Ordinance Cap 537.
[68] Or `affected by it'. See s 3(1) of Kenya's Judicature Act Cap 8.
[69] Namely, from the nature of a transaction out of which a cause of action arose. Section 16 of the Subordinate Courts Act Cap 45.
[70] Section 6(1) Rule 6 of the Common Law and Customary Law Act Cap 16:01.
[71] `... and it is fitting and just that the matter be dealt with in accordance with customary law ....' Section 9(1) of the Judicature and Application of Laws Ordinance Cap 537.
[72] See Wengler (1961 III) 104 Recueil des Cours 94.
[73] Section 9(1) of the Judicature and Application of Laws Ordinance Cap 537.
[74] Section 3(2) of the Judicature Act Cap 8 provides general authority for all the courts to `be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as is applicable and is not repugnant to justice and morality or inconsistence with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay'.
[75] Magistrates Courts Act 17 of 1967.
[76] The post-independence Customary Law and Primary Courts Act 6 of 1981 has been revised and renamed the Customary Law and Local Courts Act Cap 7:05.
[77] Section 3(1).
[78] Section 3(2).
[79] All courts in the country were given jurisdiction to apply customary law by the Customary Law (Application and Ascertainment) Act 51 of 1969. See the commentary by Himsworth (1972) 16 J African Law 4 and Sanders (1984) 5 Jahrbuch für Afrikanisches Recht 137.
[80] Section 4 of the 1969 Act.
[81] The Common Law and Customary Law Act Cap 16:01 (in the 1987 consolidation).
[82] See Bennett Application of Customary Law 103.
[83] See generally Lazar (1970) 19 International & Comparative Law Quarterly 492 and Burman (1976) 3 British J of Law & Soc 204.
[84] Notably s 211(3).
[85] In S v Makwanyane 1995 (3) SA 391 (CC) at 515-17.
[86] Section 30 of the Constitution states that all persons have the right to `participate in the cultural life of their choice' and s 31(1) provides that: `Persons belonging to a cultural ... community may not be denied the right, with other members of that community - (a) to enjoy their culture ... and (b) to form, join and maintain cultural ... associations and other organs of civil society.'
[87] This idea finds support in international law, especially in art 27 of the International Covenant on Civil and Political Rights (1966), the more general right to self-determination and the emerging body of `aboriginal' rights. See Bennett Human Rights and African Customary Law ch 2.
[88] A broad interpretation of the word `culture' would denote a people's entire store of knowledge and artefacts, especially the laws and values that give social groups their unique characters. See Kaganas & Murray (1994) 21 J of Law & Society 412.
[89] In addition, s 15(3)(a)(i) provides that legislation may be passed to recognize `marriages concluded under any tradition, or a system of religious personal or family law'.
[90] `The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.'
[91] Which are explored below paras 1.66ff.
[92] 57 of 1972.
[93] Section 8(1) provides that the Bill of Rights applies `to all law, and binds the legislature, the executive, the judiciary and all organs of state'.
[94] Guaranteed in s 9 of the Constitution.
[95] The decisions of the former Transvaal Supreme Court above footnote 18 provide a forbidding precedent. See Stubbs P, reported in (1929) 1 NAC (N&T) 1.
[96] An issue explored in more detail by Bennett Human Rights and African Customary Law chs 1 and 2, in the context of the 1993, Interim Constitution.
[97] In particular, developments in the United States, Canada and Germany, since the laws of those countries have exerted a considerable influence on the formation of our Constitution.
[98] See Mthembu v Letsela & another 1997 (2) SA 936 (T), for example, which considered the extent to which customary law actually prejudices women and children. In deciding which aspects of customary law are to be deemed unconstitutional, obvious targets would be rules of the `official' version, that owe little to an authentic African tradition or to contemporary social practice. See Bennett Human Rights and African Customary Law 38-40.
[99] The Gender Research Project (CALS), in response to the Issue Paper, suggested that, because the value of culture lies in its capacity to foster each individual's human potential, a culture may be protected only to the extent that it facilitates the autonomy of all its members. This argument is consonant with the express limitation on the right to culture in the Constitution, ie ss 30 and 31 are subject to the Bill of Rights. Hence, an argument of culture alone may not limit an individual's right to equal treatment under s 9.
[100] Following from the judgments of McLoughlin P in Ngwane v Nzimande 1936 NAC (N&T) 70, Yako v Beyi 1944 NAC (C&O) 72 at 76 and Mashego v Ntombela 1945 NAC (N&T) 117 at 121. He reasoned that if one party were given the benefit of a change in personal law, the other would be put at a disadvantage. Underlying this thinking, however, was a desire to maintain the policy of segregation: Bennett Application of Customary Law 66-7.
[101] See below paras 4.3 and 6.2.
[102] In other words, it has been assumed that, whichever rule is applied to the facts of a case, a just decision will be produced. For customary law, the repugnancy proviso provided a safety net of sorts, because rules incompatible with natural justice or public policy were not applied.
[103] Provided, of course, that the common law would secure a result more in accord with the Bill of Rights.
[104] Which is now in line with the constitutional right to culture: Bennett 1991 Acta Juridica 21-2 and Human Rights and African Customary Law 23-7.
[105] Bennett Application of Customary Law 105-6.
[106] Which is apparent in the Appellate Division's decision in Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A).
[107] See s 6(1) Rule 2 of Botswana's Common Law and Customary Law Act Cap 16:01 and s 3(1)(a)(i) of Zimbabwe's Customary Law and Local Courts Act Cap 7:05.
[108] Forsyth Private International Law 276ff.
[109] Lebona v Ramokone 1946 NAC (C&0) 14 at 16.
[110] Unfortunately, s 1(1) of the Law of Evidence Amendment Act, as read with s 211(3) of the Constitution, clouds this issue.
[111] In Botswana s 6(1) Rule 1 of the Common Law and Customary Law Act Cap 16:01 provides that: `Where two persons have the same personal law one of them cannot, by dealing in a manner regulated by some other law with property in which the other has a present or expectant interest, alter or affect that interest to an extent which would not in the circumstances be open to him under his personal law.'
[112] It is only when there happens to be a mandatory choice of law rule, such as s 23 of the Black Administration Act, that parties have no freedom to choose the law they want.
[113] Sections 30 and 31 of the Constitution.
[114] For this reason, the courts in Improvair (Cape) (Pty) Ltd v Establissements Neu 1983 (2) SA 138 (C) at 145 and Laconian Maritime Enterprises Ltd v Agromar Lineas Ltd 1986 (3) SA 509 (D) at 525-6 criticized the notion of implied intent when called upon to discover the proper law of a contract (a private international law issue).
[115] See, for instance, Mbaza v Tshewula NO 1947 NAC (C&0) 72.
[116] That the courts have consciously inferred consent is evident in cases where the principle of estoppel was invoked. Where plaintiffs had relied a particular system of law to bring a claim, they were precluded from objecting to the defendants' use of defences under the same system: Warosi v Zotimba 1942 NAC (C&0) 55 at 57. Conversely, where a defendant had raised a defence known to only one system of law, he was estopped from objecting to the plaintiff relying on the same system: Goba v Mtwalo 1932 NAC (N&T) 58.
[117] Nxumalo v Ngubane 1932 NAC (N&T) 34. See Peme v Gwele 1941 NAC (C&0) 3 and Fuzile v Ntloko 1944 NAC (C&0) 2 for bridewealth transactions.
[118] Dhlamini v Nhlapo 1942 NAC (N&T) 62 and Maholo v Mate 1945 NAC (C&0) 63.
[119] Section 6(1) Rule 2 of Botswana's Common Law and Customary Law Act Cap 16:01 makes express provision for the form of marriage.
[120] See below para 4.8.
[121] And it may be impossible to rely only on form. In the case of wills, for example, most systems of customary law permit disinheritance and dispositions of property, but these practices are not the same as wills, because they require approval of the family council. What if a written, signed and witnessed disposition of property was not approved by the family but did qualify as a common-law will? The form alone would not indicate which law should be used to judge its validity. A Kenyan case, Public Trustee v Wambui & others (reported in (1978) 22 Journal of African Law 188) held that the issue had to be determined in accordance with the testator's intention.
[122] See below para 4.10.
[123] See Mhlongo 1937 NAC (N&T) 125 and Sawintshi v Magidela 1944 NAC (C&O) 47, and, further, Mpikakane v Kunene 1940 NAC (N&T) 10 and Warosi v Zotimba 1942 NAC (C&0) 55.
[124] See Tumana v Smayile & another 1 NAC 207 (1908), Mboniswa v Gasa & another 1 NAC 264 (1909), Ntsabelle v Poolo 1930 NAC (N&T) 13, Monaheng v Konupi 1930 NAC (N&T) 89, Nzalo v Maseko 1931 NAC (N&T) 41, Ramothata v Makhothe 1934 NAC (N&T) 74 at 76-7, Magadla v Hams 1936 NAC (C&O) 56, Lebona v Ramokone 1946 NAC (C&O) 14, Sibanda v Sitole 1951 NAC 347 (NE), Mbuli v Mehlomakulu 1961 NAC 68 (S) and Mvubu v Chiliza 1972 BAC 66 (NE) at 69.
[125] In a Nigerian case, Olowu [1985] 3 Nigerian Weekly LR 372 (SC), for example, the court decided that the party in question, through processes similar to naturalization (Bello JSC at 389) or domicile (Oputa JSC), had become acculturated into a group other than the one into which he had been born.
[126] Mokorosi v Mokorose & others 1967-70 LLR 1 and Hoohlo 1967-70 LLR 318. See Poulter Legal Dualism in Lesotho 24-8.
[127] The court in Yako v Beyi 1944 NAC (C&0) 72 at 76-7, too, in its zeal to promote segregation, was concerned not to give effect to class distinctions emerging in African society.
[128] And when they did - usually through commercial and employment contracts - the common law was applied. In any event, until the Law of Evidence Amendment Act 45 of 1988 was passed, courts could apply customary law only if both parties to a suit were African.
[129] After independence, several African countries laid down express choice of law rules for this eventuality. See above para 1.47.
[130] Bennett Application of Customary Law 110.
[131] See GN 1233 of 1936.
[132] See Visser in Van der Westhuizen et al Huldigingsbundel Paul van Warmelo 258.
[133] Hence, Mahludi v Rex (1905) 26 NLR 298 at 315 and Mdhlalose v Mabaso 1931 NAC (N&T) 24 held that Africans remained subject to the jurisdiction of commissioners' courts.
[134] Kaula v Mtimkulu & another 1938 NAC (N&T) 68 and Ngcobo v Dhlamini 1943 NAC (N&T) 13. Cf Miya v Nene 1947 NAC (N&T) 3.
[135] Buthelezi v Msimang 1964 BAC 105 (S).
[136] 38 of 1927.
[137] Because the main clause of the section refers to `a transaction', capacities associated with delictual and proprietary claims were excluded. Maqula 1950 NAC 202 (S), Nhlanhla v Mokweno 1952 NAC 286 (NE) and Kunene 1953 NAC 163 (NE), however, held that claims relating to property should be governed by the common law. Locus standi was therefore determined by the same system.
[138] 57 of 1972. See Report on Customary Marriages para 6.2.2.25.
[139] On the principle that earlier legislation is superseded by later legislation. Little damage will be done to customary law, because the Age of Majority Act preserves the essential point of that system, namely, only mature adults are capable of performing juristic acts.
[140] See Kerr (1965) 82 SALJ 487 and (1973) 90 SALJ 4.
[141] See Report on Customary Marriages para 6.2.2.24.
[142] Principles elaborated by previous courts and statutory choice of law rules from certain African states (notably s 3 of Zimbabwe's Customary Law and Local Courts Act Cap 7:05 and s 6 of Botswana's Common Law and Customary Law Act Cap 16:01) provide useful models.
[143] In a manner suggestive of the `proper law' approach of private international law. See Bennett Application of Customary Law 108.
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