Fathers Responsible for the Sins of their Children? Notes on the Accessory Liability of a Family Head in the Customary Law of Delict
Elmarie Knoetze
Professor, Department of Private Law, Nelson Mandela Metropolitan University
Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me.1
1. INTRODUCTION
The employer of a young African man enquired about delictual liability of his employee. It transpired that the young man had consensual sexual intercourse with a virgin female African student from one of the Eastern Cape universities. Various issues arose from the employer’s enquiry. Firstly, the young woman’s mother demanded that the young man pay the customary fine for seduction. Secondly, the young man’s father averred that he was not under any obligation to assist his son with the payment of the fine, since the young man lived and worked in Port Elizabeth, while his father’s family home was situated in the rural Eastern Cape Province. The young man did not have the means to pay the fine for what was considered the wrongful act he committed and turned to his employer. The employer’s enquiry concerned delictual liability in customary law vis-á-vis South African common law. This article seeks to address pertinent matters and legal issues raised by this enquiry.
2. NATURE OF THE CUSTOMARY LAW OF DELICT
The customary law of delict gives redress for the violation of any right representing material value, capable of being acquired by a family head. This implies redress for damage to property, as well as for injury to a woman in so far as a family head’s rights in her have been violated2. Thus, the customary law of delict originally primarily comprised various sexual wrongs, such as seduction (the defloration of a virgin); impregnation of an unmarried woman; adultery (intercourse, with or without impregnation, with a married woman); intercourse, with or without impregnation, with an ukungenalho kenela partner in Nguni and Sotho groups respectively (male consort after the death of the family head); intercourse, with or without impregnation, with a widow;3 damage to property; limited instances of defamation; and theft.4 Outside KwaZulu-Natal, traditionally assault has not constituted a delict, but a crime (committed against the chief). It is thus considered actionable in the common law only.5 In 1963, statutory law recognised the delict of the negligent causation of the death of a breadwinner by the promulgation of section 31 of the Black Laws Amendment Act.6
It is important to note, as a point of departure, that the customary law of delict is not stagnant, but in a dynamic process of adaptation and change. Kerr points out that the normal mechanisms whereby customary law changes, are legislation, precedent, custom itself [and adaptations in terms of the “living law”].7
Potentially, the customary law of delict is in some respects incompatible with the Bill of Rights.8 The customs of virginity testing and ukuthwala9 might, for example, violate the girl’s rights to dignity and security of her body, in terms of sections 10 and 12 of the Bill of Rights respectively. The constitutionality of the continued recognition of seduction as a wrongful act in itself can also be questioned. It presupposes that certain adaptations and even profound changes could in principle be made to the customary law of delict.10 Moreover, there is a duty on courts to develop customary law according to the spirit, purport and objects of the Bill of Rights, the process of which is not altogether clear.11
Lehnert distinguishes between what he calls “active” and “passive” development of the law. He explains the difference as follows:12
The difference between these two kinds of development is, mainly, that the first method does not necessarily reflect the living law or that it may only reflect what is considered binding by a minority of affected people. This means that, in order to give effect to the Bill of Rights, courts can create rules which are not fully observed by the community. Effectively, this amounts to the formation of a new kind of official customary law. The law-creating nature of this form of development can be called the active development of customary law. In contrast, the second method of development, which merely recognises the development of living law, can be called passive development of customary law. Passive development is only relevant to the promotion of human rights to the extent that living customary law in fact conforms with human rights. ... Courts may not recognise rules of (living) customary law which are contrary to the Bill of Rights.
It is difficult to envisage how the court “can create rules which are not fully observed by the community” by utilising active development of the law. The court runs the risk of merely creating “paper law”, which would be difficult to enforce in a community where that version of the law is neither favoured nor practised. Passive development, on the other hand, will give recognition and effect to the living law as practised by traditional communities, provided that it conforms to the values of the Bill of Rights.
In a dispute arising from customary law, courts have the discretion to apply either customary or common law. Courts may take judicial notice of customary law13. However, that does not preclude any party to prove a custom in terms of section 1(2) of the Act. Mqeke laments Parliament’s apparent reluctance to enact new choice of law rules that might guide courts in the exercise of their discretion whether to apply customary or common law14. He consequently calls upon the Constitutional Court to provide general guidelines for its obligation to develop the law.15 In this regard, the concept of Ubuntu/botho may, where applicable, be used as a guideline to facilitate adaptation and to justify them.16
In determining delictual liability in customary law, it must continuously be borne in mind that the general elements and principles for delictual liability have not clearly crystallised in customary law to the same extent as in South African common law. The reasons can be attributed to the following: Firstly, customary law does not draw a clear distinction between the law of delict and criminal law. Secondly, it is in the nature of customary law to generalise, as opposed to the nature of common law to contain specialised rules and (often) subtle distinctions between these.
3. DEFINING ACCESSORY LIABILITY
It is a generally accepted rule of customary law that the family head has accessory liability for delicts committed by unemancipated members of his family home. This does not mean that the family head is solely liable, but that he may be sued with the alleged wrongdoer. In Pali v Diamond17 the court explained this as follows:
Whatever may have been the practice in Native Courts before contact with Europeans, the present day position is that the action is one brought against the wrongdoer in person. It is optional to sue him alone or to join him with the kraalhead, who incurs liability not as a tort feasor, or co-principal debtor, but as a surety responsible for the good behaviour of the inmates of his kraal.
The family head may not be sued separately. Hence, Bekker, quoting Olivier, describes accessory liability as “co-liability”, and not separate and independent liability18. The plaintiff may sue either the wrongdoer individually or the wrongdoer and the family head jointly. If only the wrongdoer is sued individually, no claim may later be brought against the family head. Moreover, no property under control of the family head may be sold in execution of judgment against the wrongdoer (if sued individually). From the summons commencing action it must be clear that the family head is sued in his capacity as family head, and not as joint wrongdoer.19
4. DELICTUAL RESPONSIBILITY
4.1 Persons with potential accessory liability
Traditionally, a married male who had established his own family home assumed certain rights and duties towards the members of his family home. The family head, as person in charge of the family homestead, consisting of one or more households (depending whether the marriage is monogamous or polygamous), or in the case of his predecease, his male heir, was considered jointly responsible for the unlawful acts of the inmates of the family home, inclusive of all the households, irrespective of the particular house in which the family head or wrongdoer resided.20
Since female-headed households is a social phenomenon common in both urban and rural areas21, it may be assumed that women could also be regarded as family heads.22 The reasons for this are threefold: Firstly, in terms of section 9 of the Constitution, nobody may unfairly discriminate against anyone on the bases of inter alia sex and gender. Secondly, in terms of section 6 of the Recognition of Customary Marriages Act, the wife has a status equal to her husband, and bears full status and capacities. Because the spouses have equal status, the customary principle that a husband is deemed head of the household, must necessarily fall away.23 Thirdly, in terms of the Traditional Leadership and Governance Framework Act24, women may on a public level be appointed as queens, senior traditional leaders and headwomen, and may thus hold positions of status. This was confirmed by the case of Shilubana v Nwamitwa.25 Similarly, earlier in Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as amicus curiae); Shibi v Sithole; South African Human Rights Commision v President of the Republic of South Africa26 the court declared, amongst other provisions, the male primogeniture rule and section l(4)(b) of the Intestate Succession Act27, which excluded Black estates from the reach of the Act, unconstitutional. This had the effect that African women now have the capacity to benefit intestately. Subsequent legislation (Reform of Customary Law of Succession and Regulation of Related Matters Act28 was passed to provide for the devolution of certain property and to clarify certain definitions (such as “descendant”) and other matters relating to the customary law of succession, such as the rights of inheritance of so-called “seed- raisers”29 and women in woman-to-woman marriages.30 Thus, bearing in mind that women have a status equal to males, that they have proprietary capacity and may inherit intestately, as potential family heads they should, logically, bear liabilities similar to those of male family heads. This necessarily includes accessory delictual liability.
4.2 Who may claim?
In customary law the (male) family head is the plaintiff, since traditionally he was the person who suffered a violation of rights representing material value, capable of being acquired by himself only.31 However, should a female act as family head, she should similarly have a claim against the defendant. In Mabena v Letsoala32 the court acknowledged that a girl’s mother is capable to negotiate for the lobolo of her daughter’s marriage, thereby either applying the living law, or developing customary law33. A mother’s capacity to act as family head was confirmed in Fanti v Boto:34
I want to make it very clear that the mother of a girl whose father died or is for some other acceptable and understandable reason absent and/or unable to discharge duties normally meant for the ‘kraalhead’, is quite entitled to act as the head of the family. Such mother becomes the ‘father’ and legal guardian of the children of her family. I state categorically that such a mother would legitimately negotiate for and even receive lobolo paid in respect of her daughter.
Thus, a female family head would be able to act as plaintiff.35
5. BASIS OF ACCESSORY LIABILITY
Various theories have been posited to declare the rationale for the recognition of accessory liability in customary law. Whereas no single theory seems to satisfactorily explain the basis of accessory liability, all, or at least most of the theories, have an element of logic. Note, however, that logic is often a criterion utilised in western legal thought processes to justify the existence or non-existence of legal institutions, doctrines or principles, a thought process not necessarily applicable to customary law. The list of theories explaining accessory liability is also not meant to be exhaustive. Thus, although not mooted as one of the bases for accessory liability, the doctrine of Ubuntu/botho may, for example, be sufficient to justify a family head’s accessory liability.
5.1 Group liability
Traditionally, the accessory liability of the family head for delict committed by family home inmates seemed to be based on group liability and the fact that ownership of the traditional medium of payment, namely cattle and other domestic animals, vested in the group. As representative of the group, the family head had the administrative jurisdiction over the group assets and would thus be the only member of the group capable of redeeming group liability for unlawful acts by its members. This is illustrated by the following dictum mMlanjeni v Macala:36
The basic principles of Native Law in general regard the family as a collective unit with joint responsibilities and assets. All property accruing to members of the family goes into a common pool and is administered by the kraalhead; liabilities incurred by members of the kraal are satisfied from such property. The family unit thus resembles a partnership of which the head of the kraal is the manager.
The difference is that in a partnership the relationship between the partners is based upon agreement, whereas in the family unit the relationship is based on native custom.
In traditional customary law, it was general practice in some communities for the son who worked away from home to send part of his wages home to his father, predominantly with the intention that his father would pay the lobolo in the event of the son’s marriage. Bekker points out that in the then Transvaal Province, the father of such a son would be liable for the latter’s delicts, even if committed away from the family homestead.37
With the passage of time, group liability usually gives room for individual liability. In so far as individual ownership and proprietary capacity are recognised, also in traditional communities, it casts into doubt the link between the group, on the one hand, and the delictual liability of the individual on the other. Various questions arise regarding the viability of group liability as explanation for family head liability, for example, questions whether people still live in groups; how urbanisation, where children leave the family home, affect accessory liability; what the impact is on group liability of wage labour that affords children financial independence. In this regard Bennett points out that due to social transformation of society (where the young respected the old, where there was a sense of responsibility and loyalty to the domestic group), the pattern of community subsistence, where all goods fell under the control of the family head on behalf of the group, has been disrupted. Moreover, for various reasons, for example, the rising number of births out of wedlock, irresponsibility and the ever-increasing cost of education, children no longer necessarily constitute part of the wealth for the group38. Bennett points out that the response of the courts to these changes has been negligible.39
The matter is further complicated by the provisions of sections 6 and 9 of the Recognition of Customary Marriages Act, as referred to above. In terms of section 6 of the Act, spouses in a customary marriage have been afforded equal status and capacity, which includes the capacity to acquire assets and to dispose of them, to conclude contracts, to litigate and to be held delictually liable. Arguably, a wife who commits an unlawful act should thus be personally liable. This applies to all inmates and members of the family who obtain majority status in terms of section 9 of the Act, which provided for the application of the Age of Majority Act,40 which fixed majority status at the age of 21. Subsequently, the Act was repealed by section 313 of the Children’s Act,41 fixing majority status at the age of 1842 An inmate of the family home would thus obtain proprietary capacity at the age of 18, which implies the powers to acquire, hold and alienate property and the right to use and enjoy it.43
5.2 Family headship
In terms of this theoretical justification of accessory liability, the deciding factor is family headship but not relationship. The family head is responsible for delicts committed by family home inmates or residents, irrespective of his relationship with them.44 In Malie v Shiba45 the court noted that “[i]t should be mentioned that in Native law a father is not liable for his son’s delicts because of his relationship but on the ground of kraalhead responsibilty.” Thus, the relevant inmates might not necessarily be children or grandchildren (descendants), or other blood relatives, such as the family head’s younger siblings. The family head is liable for the wrongful acts of all unemancipated inmates of the family home. In terms of this theory a family head may absolve himself from liability by disinheriting an inmate (for example, a son) or by driving him away.46 In this regard the theory is flawed. A family head would, for example, lack the capacity to disinherit residents who are not blood relatives, as they do not have the rights or interests to benefit intestately from the family head in the first place. Moreover, a family head would also lack capacity to expel a wrongdoer from the family home where the latter is a tenant.47
In Dhlamini v Sibeka48 the court furthermore declared that the family head has no liability also “where the son had severed all connection with his kraal.”
If the person who committed the wrongful act established his own family home before he committed the delict, amongst various, but not all traditional communities, the liability of the family head usually falls away.49 This seems to be a consequence of the former resident not qualifying as an inmate of the family home, subject to the family head’s headship. Moreover, in customary law the establishment of an own family home usually denotes an emancipated (majority) status with full capacities.50
5.3 Proprietary capacity of the family head
Traditionally, the control of all house and family property vested in the family head, with the concomitant duty to maintain his dependents and to bear the responsibility for their unlawful acts. Bennett points out that in customary law there seemed to be a complex of control and obligation that could not be separated easily.51 To put it simply, the family head controlled the property, also that which accrued to a particular household through the efforts of the members of the house. Because the family head was the only one with means to meet financial obligations, the responsibility to pay compensation for any wrongful acts was his.
In Mabaso v Mtimkulu52 (minority judgment) it was explained that:
[...] it may be observed that although the liability imposed upon kraal heads under native law may be regarded as inequitable under Colonial Law, it must be remembered that the inmates of a kraal are a source of wealth to the kraal head, and it is for this reason they [family heads] are to be held largely responsible for the misdeeds of those under their control.
With the passage of time in some traditional communities it became practice for migrant workers to retain their wages, while goods acquired from kin, like lobolo and inheritance, still accrued to the household. The courts seemed inconsistent in the application of the custom. Bennett points out that the courts in then Natal applied the old order of the sons’ earnings accruing to the family head, subject to his control. However, “[i]n Transkei, they avoided making a firm pronouncement by simply applying age of majority legislation. On that ground, it was held that major sons owned their own property outright”53. However, in Transkei as well as in the Appeal Court of Commissioners’ Courts, it soon became evident that the courts were inconsistent in the application of the rule. In Mfazwe v Modikayi54 the traditional version of property accruing to the control of the family head was upheld, but subsequently in Mlanjeni v Macala55 the court held that a son attained proprietary capacity at the age of majority.56 These decisions put strain on the principle of the interdependence of the control of property and delictual liability. It was expected that the courts would “have taken care to keep the rules of delictual liability in harmony with proprietary capacity, but again they usually failed to do so. In consequence, a [family head] could be held liable for the delicts of an inmate, even though the inmate had independent control of [his] property”57. This inconsistency led to the recognition of another ground for liability, namely, that of the doctrine of the family head’s duty of discipline over the inmates of the family home.
5.4 The duty of discipline over family home inmates
To overcome the discrepancy between individual proprietary capacity and accessory delictual liability, there is a point of view that the family head is liable not because he holds the property, but because he exercises, or is supposed to exercise, control and maintain discipline over those inmates who live with him.58
In Peter v Sango59 the court pointed out that the family head’s liability is not dependent upon relationship, but upon the control he is expected to exercise over every inmate of the family home. Inevitably, this requires a fairly precise definition of the terms “inmate” or “resident”, which, unfortunately, is missing in case law.
Without defining the term,60 the Appellate Division made the following observations re residency:
(i) Domicile and residence do not necessarily coincide or overlap;
(ii) a person may have more than one residence; and
(iii) a temporary visit does not constitute residency.61
Consequently, the determination of the residency of a person depends on all the circumstances of the case, read against the background of the principles listed above.62
Thus, the family head bears no liability for wrongful acts committed by mere “casual visitors”.63 Moreover, he will not be liable if the wrongful act was committed when a former inmate who set up his own family home commits the act away from his father’s family home. This raises the question of the family head’s liability for wrongful acts committed by former permanent inmates of the family home who work away from home. Bekker opines that a family head is not liable for delicts committed by those who are employed elsewhere on a permanent fulltime basis.64 This is confirmed by the decision in the case of Tombeel v Nakani65 where the son committed seduction at his place of work while he was living away from home.
However, if a family home resident commits a delict while temporarily absent from the family home and visiting elsewhere, the family head seems to be liable.66 It is uncertain whether a family head is liable for wrongful acts committed by former residents while they are employed in an urban area. With reference to Olivier’s opinion, Bekker contends that the family head will in such circumstances not be held liable, unless the wrongdoer was resident at the family home when the act was committed.67 The position may be different when the former permanent resident works away from home (for example, a migrant worker), but periodically returns home (on a mining roster systems of, for example, ten weeks on, and three weeks off, or what seems popular from a South African mining perspective, for middle management staff, of two weeks on duty and one week off duty), and has the intention to return home, the family head will arguably retain liability. Thus, in Penxa v Fani68 P, who worked in Lady Frere at a transport company and had accommodation provided there, was still regarded as an inmate because at weekends he went “home” to K’s family home. It is submitted that one should thus distinguish between the resident who has left the family home to work away from home permanently, and the migrant worker who goes home periodically and has as yet no intention of settling away from the family home, and who would thus be considered as unemancipated in terms of the principles of customary law.
Bennett points out that the principle of a family head’s liability based on a lack of control is best suited to a traditional social order where contacts with the outside world are minimal. The principle seems to make less sense in an urban context where it might be impossible or difficult for the family head to keep a watchful eye on his family home inmates.69
Moreover, it is submitted that the family head must have been aware that the wrongdoer was in the family home. This question has so far not been expressly decided by the courts, although there seems to be authority from which it may be inferred that the family head will only be held liable for delicts committed by persons of whose presence in his family home he was aware.70
6. BRIEF COMPARISON WITH SOUTH AFRICAN COMMON LAW
6.1 Definition of a delict
In terms of the South African common law a delict is defined as “the act of a person that in a wrongful and culpable way causes harm to another”.71 Accordingly, five elements must be met before a person can be held delictually liable, namely: (i) an act; (ii) wrongfulness; (iii) fault; (iv) harm; and (v) causation. Unlike the position in customary law, where the emphasis is on the family head’s violation of some material value, in South African common law “harm” as an element of a delict “should fall into one of two broad categories: patrimonial harm and non-patrimonial harm. The latter is further divided into two categories: pain and suffering, and infringement of personality interests”72. If any one or more of these elements are missing, in terms of the common law, there is no delict and consequently no liability.73
This elementological approach to determining delictual liability is completely foreign to customary law.
6.2 Parent/child liability
Firstly, young children who do not have the capacity to distinguish between right and wrong cannot be delictually liable. In customary law, it is explained by the maxim that they “do not have eyes to see”74. Bekker points out that despite conflicting decisions, a family head should in such circumstances not be held liable either.75 Secondly, although case law is not unanimous, it would appear that in view of the fact that the courts, among others, base the liability of the family head on the assumption that he exercises (or should exercise) control over family inmates, the age of the inmate is of no consequence in the family head’s liability. This, of course, is in conflict with the provisions of section 9 of the Recognition of Customary Marriages Act, as explained earlier. Consequently, Bekker submits that in the present circumstances all major inmates of a family home should be liable for wrongful acts committed by themselves.76 However, in so far as delictual capacity is not dependent upon age, it is uncertain whether Bekker’s reference to “major inmates” relates to those over the age of 18, or those who are considered emancipated (“major”) in terms of customary law.
In South African common law, a parent is not liable for the unlawful acts committed by his/her children, irrespective of the child’s age. Moreover, in terms of the common law a child under the age of seven years (an infans) has no delictual capacity, as he/she cannot understand the nature of the act committed, and is consequently not delictually liable for delicts based on fault. The child may, however, be held liable for delicts not based on fault, such as in the case of strict liability77. Children between the ages of eight and fourteen are presumed not to have delictual capacity. This presumption can be rebutted. In this category, delictual capacity is a question of fact that depends on the child’s maturity, inclusive of age, and the circumstances of the case.78
6.3 Vicarious liability
6.3.1 Definition
The closest form of common law liability that to some extent resembles that of the accessory liability of a family head in customary law is vicarious liability. In terms of the latter:
an employer is vicariously liable, regardless of the absence of fault on its part, for its employees’ delicts when these are committed in the course and scope of their employment. The employer is ... (jointly liable) with the employee to compensate the person who suffers harm as a result of the employee’s delict.79
The requirements for vicarious liability of an employer are thus threefold: Firstly, an employment relationship; secondly, the commission of a delict; and thirdly, that the delict must be committed within the scope of employment80. It must be noted that vicarious liability is restricted to the relationship between employer and employee only.
6.3.2 Basis of liability
There are a number of theories to explain and justify the vicarious liability of an employer, regardless of the absence of fault on his part, for wrongful acts committed by his employees within the scope and course of their employment.
These include the following, based on the theories noted by Loubser et al.81
(i) The employer is considered as the actor, acting through his employee, and thus bearing the loss arising from the wrongful act arising from the course and scope of the employee’s work.
(ii) The employer is regarded as the best “risk absorber”, since he can distribute the risk of accidents cost effectively by insurance and taking precautionary measures against potential damage or harm.
(iii) Vicarious liability can be justified on a moral basis. In terms of this theory, the employer obtains a benefit from his employee’s work, and should consequently bear the costs of harm arising from the employee’s work.
(iv) “The rule is also said to be ‘founded upon public policy and convenience; for in no other way could there be any safety to third persons in their dealings either directly or indirectly with him through the instrumentality of agents.’ ”
(v) In terms of the “creation of risk” theory, the employer creates a risk for his own benefit through the employee. The employer’s liability is therefore directly moulded upon the liability arising from the acts of the employee, or is coextensive and identical to the liability of the employee. “Where the employer creates a risk that third parties may be harmed while the employee is promoting the business or interests of the employer, it is fair to hold the employer liable.”
(vi) An employer is in control of the behaviour of his employees, [or in the advent of specialised work and skills, should at least attempt to be in control].
Whereas the theory of the exercise of control by the family head over his residents in the case of customary law seems plausible, in the case of common law the suggestion of vicarious liability of an employer based on his control over employees seems less convincing “as many employees perform skilled tasks that employers are incapable of controlling or even understanding what the employee is doing”.82
7. CONCLUSION
As noted above, the courts have discretion to apply either customary or common law in disputes arising from customary law. As confirmed by the case of Ex parte Minister of Native Affairs: In re Yako v Beyi,83 seduction, or defloration of a virgin, is regarded as a wrongful act arising from customary law. Various factors are taken into account in the exercise of the discretion. These include, amongst others, the lifestyle of the parties, type of marriage concluded (by the young man’s father), place of residence, nature of the act (delict concerned), stare decisis rule, nature of the pleadings, cultural orientation and affiliation.84 Thus, the case of the young man who approached his employer may indeed be subject to customary law. Should that be the case, the questions arise whether the girl’s mother has the capacity to institute a claim against him; and secondly, whether the young man’s father may be held co-liable for his son’s wrongful act.
In respect of the first question, it has been established in case law that a mother has the capacity to negotiate lobolo for her daughter. Ipso facto, a mother will have the capacity to sue for the seduction of her daughter, but probably only as family head herself and not while the girl’s father is still alive and is the de facto family head.
In respect of the second question, the position is not quite clear. The accessory liability of the young man’s father will depend on the question whether the young man can be regarded as a resident or inmate of his father’s family home. If the young man has settled away from the family home and has a (permanent) job in an urban area, it is doubtful whether his father will bear any co-liability. That seems to be the position in the current case. Had he been a migrant worker, periodically returning to the family home with the intention not to establish an urban home, the position might have been different.
Should the court apply common law, the girl’s mother lacks the capacity to institute a claim against the alleged wrongdoer. The girl will have to institute the claim herself. Secondly, in terms of the common law, the young man’s father will not bear any accessory liability for his son’s wrongful act.
Having considered the principles of both customary and common law of delict, as well as the facts of the case, it does not bode well for the young man’s case. Whether customary or common law is applied, it is apparent that his father will not be responsible for the sins of his child.
However, one should not negate the role of the court in potentially developing customary law in terms of the constitutional imperatives by, for example, abolishing the delict of seduction as such, taking into account the spirit, purport and objects of the Bill of Rights, with particular emphasis on the right to equal treatment and protection of all by the law. However, whether the “development” of the law includes the abolition of a custom is yet another question.