African Customary Law Reviewer

GENERAL INTRODUCTION Division and features of indigenous African people of

Southern Africa
Emphasis in customary law is on duties whereas most 1.) Nguni groups – composite household divided into
people place the emphasis on rights. 2 or 3 sections, each with a senior wife
a.) Zulu
Customary law: the customs and usages traditionally observed b.) Xhosa
among the indigenous African peoples of SA and which form part of c.) Swazi
the culture of those peoples (sec 1, Recognition of Customary d.) Ndebele
Marriages Act). 2.) Sotho groups – household not divided into
- Synonymous with “indigenous law” sections. Each married woman has a rank and her
house has own identity, property and successor
Divisions of customary law a.) Tswana
1.) Tribal law (national law) and the law of different b.) Sotho
tribes (international law) 3.) Venda
2.) Public law and private law 4.) Shangana-Tsonga
a.) Public law
i.) Indigenous constitutional and
administrative law CHARACTERISTICS OF ACL
ii.) Indigenous adjudicatory organs and
law of procedure Indigenous legal systems of Africa do not form a single
iii.) Indigenous criminal law system. Family of systems which share no traceable common
b.) Private law parent… But reveal sufficient similarity of procedure, principles,
i.) Law of persons institutions, and techniques for a common account to be given of them
ii.) Family law
iii.) Law of things (immaterial property, 1.) Unwritten nature of ACL
e.g. copyright, unknown in SA - Transmitted orally from one generation to the next
customary law) - Public participation of adult men in administration
iv.) Law of obligations of justice
v.) Law of succession - Community has broad general knowledge of law
vi.) Law of personality - Legal principles expressed as legal maxims
3.) Substantive and adjective (procedural) law
2.) Customary nature
Rights in customary law: - Legal system a result of age-old traditions customs
Right Object Example - No system of precedent
Real right Corporeal thing Ownership
apart from the 3.) Expression of community values
person - Public participation resulted in law giving
Obligatory Performance Right to a fee expression to prevalent values
right for professional - As values changed, so did law
services - Conflict between legal and moral values unknown
Right of Productivity and Guardianship - “human” justice – emphasis on reconciliation and
authority freedom of a maintaining harmony in community (not on who is
group member right and who is wrong)
Right of Corporeal or Right to one’s
personality incorporeal part body/ right to 4.) Magico-religious conceptions
of vestee’s one’s honour
personality a.) Belief in ancestral spirits
- Ancestral spirits maintain contact with living
1st 3 within vestee’s estate – any loss is patrimonial loss and relatives on earth
is basis for action for damages - They have an interest in the community and make
their wishes known
Rights of personality do not fall within vestee’s estate – - Rules for living and law derived from ancestors
violation results in action for satisfaction and protected by ancestral spirits
- Any disregard/deviation from rules may lead to
Group ownership is typical among indigenous African punishment by ancestral spirits (e.g. illness,
people. Both rights and duties vested in agnatic group. drought, hail, floods)
- Effect on law:
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i.) Supernatural basis means law is Group versus individual orientation

seldom questioned - In specialised legal systems, emphasis on individual
ii.) Law static and unchangeable as any and individual may uphold his rights even when it
change may be against wishes of is against the interests of the state/community
ancestral spirits - In unspecialised legal systems, emphasis on the
group rather than the individual. Individual
b.) Belief in sorcery functions entirely within context of the group
- Sorcerers must be identified and removed from the
community Rights
- Supernatural process often implemented to - Rights vested in group, not individual
identify sorcerer then he/she is killed or removed - Group (not individual) is owner/creditor
- Ruler does not rule as an individual, but only as the
5.) Observance of rules for living representative of the ruling family
- Factors in voluntary observance:
a.) Religious element of the law Law of marriage
b.) Public opinion (in customary law, interests of - Marriage concerns family groups – both family
community very important) groups participate in choice of marriage partner,
c.) Knowledge that if a person is harmed that negotiations, agreement, transfer of marriage
person will endeavour to get compensation or goods and ceremonies
take measures to protect him/herself (sorcery) - Parties who acquire rights and duties are the
d.) The fact that everybody in the community has households of the bride and groom
broad general knowledge of the law
e.) Fear of supernatural punishment Law of contract
f.) Influence of indigenous leaders who are - Parties to contract are agnatic groups rather than
regarded as living representatives of ancestors individuals
- Authority emanating from indigenous hereditary
position alone enough to ensure observance of law Criminal law
without formal administration of justice - Whole family group could be punished for crime
- Local heads of families and kinship groups of one its members
consulted before anything important – ensured - Fines paid by group
that proposed action would not be opposed and - In sorcery, whole family banished or killed
that interests of others would not be harmed - Parents liable for wrongs of their children

Administrative law
NATURE OF CUSTOMARY LAW - Public takes active part in proceedings – cross-
examining witness and discussing the case
Legal systems differ in terms of degree of specialisation - Negotiations for extrajudicial settlement take place
between family groups, not individuals
Specialisation – distinction of certain functions or
definition of certain activities; separation, differentiation, Concrete versus abstract approaches
division, distinction, classification, delimitation, definition or - Unspecialised legal systems follow a more concrete
individualisation in respect of time, activity, functions, interests, duties, and visible approach than specialised legal systems,
knowledge and conceptions, including the isolation or abstraction of which tend to be more abstract in nature.
ideas and concepts - Abstract consent and abstract expression of intent
replaced by apparent observable, visible acts from
Specialised legal system Unspecialised legal system which consent becomes obvious in a concrete way
Individual orientation Group orientation - Marriage – actual handing over of bride and
Abstract approach Concrete approach marriage goods
No religious element Religious element - Oral agreement supplemented with actual handing
Highly categorised Lack of categorisations over of object
Kinship has no role Kinship has important role - Importance attached to concrete evidence (fact
Monogamy polygyny that a married woman spent the night in a hut with
another man is considered evidence of adultery)
Formalities Lack of formalities
- Rights to land acquired in a visible, perceptible
Time is important factor Time is not important
manner by demarcating and actually using the land
Separation of powers No separation of powers
- Legal communities very concrete in feelings of
people and terminology – referred to as a “person”
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 African Customary Law Reviewer

or “cow”. Organs of legal community defined as - Tribal chief is lawmaker, executive chief and judge
parts of the body (e.g. headmen are ears and eyes) - Possibility of defective administration of justice
and misrule counterbalanced by close relation
The religious element between law and religion, public nature of
- Belief that law originates with the ancestors administration of justice and people’s intimate
- Disregard of law punished by ancestors because knowledge of legal system
regarded as disrespect, neglect and contempt of
ancestors
- Reconciliation between community and ancestors CUSTOMARY LAW AND THE CONSTITUTION
is usually accomplished by slaughtering an animal
and having a communal meal Prior to 1994 constitution, indigenous law was given
- If important juristic acts are planned, blessing of uniform recognition with promulgation of Black
ancestors obtained through special rites Administration Act 38 of 1927
- Extraordinary evidence (e.g. identification of - Some courts had discretion to apply indigenous
sorcerers) is well-known in customary law law in cases between indigenous African people
- This discretion was extended to all courts in 1988
Categorisation
- Sharp distinction between categories, institutions Sec 11 of BAA re-enacted as sec 54A of Magistrate’s
and concepts is foreign to customary law Court Act (1944), which was later repealed by sec 1 of the
- In specialised legal systems there is a clear division Law of Evidence Amendment Act (1988):
between criminal and civil cases and each has its
own procedure (1) Any court may take judicial notice of the law of a foreign
- In unspecialised systems, criminal and civil cases state and of indigenous law in so far as such law can be
are tried in a single hearing ascertained readily and with sufficient certainty: Provided
- No separate court procedures that indigenous law shall not be opposed to the principles of
- No distinction between crimes and delicts public policy or natural justice: Provided further that it shall
not be lawful for any court to declare that the custom of
Kinship lobolo or bogadi or other similar custom is repugnant to such
- Kinship plays dominant role in legal life principles.
- Household = legal unit
- Wider family circle (family group) has extensive (2) The provisions of subsection (1) shall not preclude any party
authority over its members from adducing evidence of the substance of a legal rule
contemplated in that subsection which is in issue at the
Polygyny proceedings concerned
- One man can be involved in a marital union with
more than one woman (3) In any suit or proceedings between Blacks who do not belong
to the same tribe, the court shall not in the absence of any
Lack of formalities agreement between them with regard to the particular system
- Administration of justice relatively informal of indigenous law other than that which is in operation at
- Legal rules applied with great flexibility the place where the defendant or respondent resides or carries
- Aim of court to effect reconciliation on business or is employed, or if two or more different
- Emphasis on people in context of community, and systems are in operation at that place (not being within a
not on strict application of legal rules tribal area), the court shall not apply any such system unless
- Constant consultation – family; court councilors it is the law of the tribe (if any) to which the defendant or
respondent belongs
Time
- In specialised legal systems, specific moments are Implications on sec 1 of LEAA
important to determine when rights and duties - All courts may take judicial notice of indigenous
come into existence (e.g. moment of birth, death, law, although they are not obliged to do so
marriage, when contract comes into being) - Judicial notice limited in so far as indigenous law
- In unspecialised systems precise moment is not may be ascertained readily, with sufficient certainty
important – only that the event did actually occur - No duty on courts to take judicial notice of
- Prescription is unknown to unspecialised systems indigenous law by, for instance, calling in expert
witnesses
Governmental functions - Not necessary for judges to have any formal/
- Specialised systems distinguish clearly between practical knowledge of/ training in indigenous law
judicial, executive and legislative powers
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- Onus on party to prove indigenous law in court – Sec 31 upholds another aspect of right to culture: right of a
places financial burden on litigant who must obtain group of people to have and maintain a specific group
services of an expert witness identity. Group and individual identity symbiotic in nature
- Condition: must not be opposed to principles of – individual right to adhere to culture of choice assumes
public policy or natural justice (contra bonos mores) existence of a cultural group or community

Sec 211 of the 1996 Constitution: Secs 30 and 31 convert a freedom into a constitutional right

(1) The institution, status and role of traditional Customary law and the BoR
leadership, according to customary law, are
recognised, subject to the Constitution Customary law has been accepted and recognised as part of
the SA legal system. Like other laws, it is subject to BoR
(2) A traditional authority that observes a system
of customary law may function subject to any Recognition of customary law and constitutional
applicable legislation and customs, which prohibition against discrimination (sec 9(3)) gives rise to
includes amendments to, or repeal of, that conflict between 2 opposing principles:
legislation or those customs 1.) Right of individual to equal treatment
2.) Right of group to adhere to culture of its choice
(3) The courts must apply customary law when Principle of male primogeniture inherent in ACL yet
that law is applicable, subject to the discriminates unfairly against women.
Constitution and any legislation that
specifically deals with customary law BoR emphasises individual rights, whereas customary law
emphasises the group, community, and the individual
Implications of sec 211(3) within the context of the community
- All courts must apply customary law
- Recognition and application of customary law BoR emphasises rights; customary law emphasises duties
subject to the Bill of Rights
- Recognition and application of customary law Constitution does not give clear answer to conflict.
subject to legislation that specifically deals with it There are, however, indications that fundamental rights
- Courts determine when customary law is have priority over customary law:
applicable – this discretion should be exercised in - Sec 2 – Constitution is supreme law
agreement with general principles of choice of law - Sec 8(1) – BoR applicable to all laws
- Sec 36(2) – no fundamental rights will be limited
Sections 30 and 31 of the Constitution by any law, except under 36(1) or other consti prov
- Sec 39(1) – requires courts to promote values that
Sec 30: Everyone has the right to use the language and underlie an open and democratic society based on
to participate in the cultural life of their choice, but no human dignity, equality and freedom in interp BoR
one exercising these rights may do so in a manner - Sec 39(2) – in interpreting any law and applying
inconsistent with any provision of the Bill of Rights and developing common and customary law,
courts must have due regard for spirit, purport and
The concept of “culture” mentioned in sec 30 may well be objects of BoR
interpreted as including customary law - Sec 36(1) – allows rights in BoR to be limited by
law of general application (including customary
Sec 31(1): Persons belonging to a cultural, religious or law), provided that such limitation is reasonable
linguistic community may not be denied the right, and justifiable in an open and democratic society
with other members of that community –
(a) To enjoy their culture, practise their religion If it is accepted that application of customary law is a
and use their language; and constitutional right, in event of conflict, rights must be
(b) To form, join and maintain cultural, religious balanced against each other
and linguistic association and other organs of
civil society
INTRODUCTION TO CUSTOMARY LAW OF PERSONS
Section 31 gives state 2 duties:
1.) Not to interfere with rights of the individual Family unit in customary law is the household (“kraal”).
2.) To allow the existence of institutions that would Family group of each wife forms a house. Whenever a man
be necessary to maintain the culture concerned has more than 1 wife, there are 2 or more houses in a kraal

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The legal subject in indigenous law In modern indigenous law, person’s status influenced
strongly by specific age (18) at which majority is attained
Legal subject: bearer of rights and duties
Some factors influencing status:
Original indigenous law recognised only natural
persons as a legal subject, not juristic persons 1.) Age

(Original indigenous law – prior to Black Admin Act 1927) In original indigenous law, minority and majority
unknown. No person was altogether a minor. Even a
Individual shared rights, powers and duties with agnatic newborn baby shared in rights, powers and duties of
group. Individual’s share in rights of the agnatic group agnatic group.
depended on his/her status within the group
Age not without legal significance:
Agnatic group not a juristic person because individual Under 6 years Child cannot be held accountable
members did not have rights, powers and duties Reached puberty Can get married
independent from the group. Also, agnatic group did not Mental immaturity Not qualified to succeed to position
have rights, powers and duties independent from members
More important than age was physical development.
Individual’s status within agnatic group influenced by age, Puberty strongly emphasised – initiation ceremonies.
sex, marital status, legitimacy, adoption, disinheritance, Person considered an adult and marriageable after
family and house rank and mental state. undergoing these ceremonies

Head of agnatic group held highest rank within the group. In modern indigenous law, majority now attained at 18.
In original indigenous law, only men could hold this Effect of majority: individuals become majors and obtain
position. Head had certain powers distinguishing him in a rights, powers and duties independent of agnatic group
significant way from other members of group. However, he
did not form a separate entity from the group. 2.) Sex

In modern indigenous law, the emphasis is on the In original indigenous law, only males could succeed to
individual person as a human being. Individual is bearer positions of status. Women could not become family head
of rights, powers and duties. Within context of the agnatic or succeed to general or house property.
group, the individual is independent of the other members.
In modern indigenous law, position of female influenced
Head of group regarded as person in whom group’s rights by majority. Sec 9 of constitution and sec 6 of Equality Act
are vested – head is therefore regarded as owner of group’s prohibit discrimination. Position regarding succession of
assets. However, individual should not be separated females must change
from group as this may lead to injustice – undermining
rights and privileges of other members of group 3.) Rank
Family rank House rank
Status – linked to a person’s legal position or standing and Hierarchy of members Hierarchy of various houses
determines a person’s powers. within family group that make up household
In original indigenous law, the individual shared his/her a.) Family rank
rights with other members of the agnatic group. The - Males occupy higher rank than females
individual’s share in the rights depended in his/her status - Principle of primogeniture: eldest son holds higher
within the group. This status again was influenced by rank than his younger brothers
factors such as family rank, house rank, age, sex, etc. - Twins – conceptions among various indigenous
African groups vary. For some, first born
Status Rank considered elder; for others, last born
Determines powers derived Just one factor which may - Within broader family group. Rank of children
from objective law influence a person’s status qualified by father’s rank within family of origin. If
father eldest brother, his children hold higher rank
Principle of shared rights meant no question of absolute
majority/minority. In original indigenous law, idea of fixed b.) House rank
age at which person attained majority unknown. The higher - Consequence of polygyny – each wife and her
a person’s status, the more powers he/she obtained children form separate house in household

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 African Customary Law Reviewer

- Various houses each hold a particular rank Does not concern 2 persons, but rather 2
- Basis of ranking differs among tribes: family groups. Consequently:
For some, rank determined by who 1.) Death does not dissolve marriage
married first (first wife = main wife) 2.) In case of deficiency in spouse (e.g.
In some cases, main wife comes from infertility), person from family group
particular descent group may be substituted
Nguni have complex ranking system: Accompanied by delivery of marriage
household divided into sections and house goods (lobolo) by man’s agnatic group to
rank determined by section it is in woman’s agnatic group
- Rank of children depend on rank of house. Procreation of children, particularly male
Children of main wife rank higher than children of children, of great importance (ensure
other wives, regardless of age ancestors taken care of in afterlife)
Process of growth, rather than a legal
transaction which comes into being at a
NATURE AND CHARACTERISTICS OF CUSTOMARY specific time
FAMILY LAW AND THE LAW OF MARRIAGE Creates a legal unit – family/ house which
develops into a household
Scope and nature of customary family law Change in status – more powers
- Consequences of marriage
Relationships between people - Requirements:
- Husband and wife No fixed age requirements
- Parents and children (guardianship) Certain degrees of kinship forbidden
Consequences concerning family property: Serious mental illness = unfit for marriage
Patrimonial consequences Impotence and serious physical defects
Additional (due to polygyny): legal could be substituted for by most groups,
relations between composite houses but recognised as grounds for dissolution
- Property either house or general property
- Component families constitute agnatic group. Customary union
However, each family within agnatic group has - Prior to commencement of Recognition of
certain rights and powers it can exact/protect from Customary Marriages Act 120 of 1998, CU was the
other houses in same household statutory recognised version of TIM
- Houses can become involved in contractual - Did not replace TIM which still exists in rural areas
relationships with each other - Definition: the association of a man and a woman in a
- Houses cannot oppose each other in lawsuit. Head conjugal relationship according to Black law and custom,
of family (husband) cannot go against himself where neither the man nor the woman is party to a
- Agnatic group cannot be divided against itself subsisting marriage (sec 35, BAA 1927)
- Conflict – wider family group settles dispute “subsisting marriage” = civil marriage
Shows that CU recognised as a “marital
Nature & characteristics of customary law of marriage union”, but not as a “marriage”
- Distinction made between: - All valid CUs have been converted to CMs
Traditional indigenous marriage (TIM) - Since 1985, CUs in KwaZulu-Natal have been
Customary union (CU) recognised as CMs in terms of KwaZulu Act
Customary marriage (CM) - Registration of CM compulsory in KwaZulu-Natal
- Prior to 1999, indigenous marriage not formally in terms of sec 45 of Codes of Zulu Law
recognised as a marriage
- 15 November 2000, Recognition of Customary Customary marriage
Marriages Act 120 of 1998 came into operation. - Definition: a marriage concluded in accordance with
- Prior to this Act, only TIM and CU customary law (sec 1(iii), Recognition of
- CM is modern version of TIM Customary Marriages Act 120 of 1998)
- Rural areas – marriage concluded with TIM in - Act came into effect on 15 November 2000 and
mind. In event of dispute, indigenous courts distinguishes between CMs validly in existence
adjudicate in terms of rules and concepts of TIM. before this date and those entered after this date
HC or divorce court apply rules of CM - Sec 2(1): A marriage which is a valid marriage at
customary law and existing at the commencement of this Act
Traditional indigenous marriage is for all purposes recognised as a marriage
- Features: - Sec 2(3): If a person is a spouse in more than one
Polygynous customary marriage, all valid customary marriages entered
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 African Customary Law Reviewer

into before the commencement of this Act are for all purposes Termination of betrothal
recognised as marriages 1.) Death of man/woman
- Validity of CMs entered into prior to Act should 2.) Mutual agreement
be determined in terms of requirements back then 3.) Unilateral termination
- CMs entered into after Act must meet
requirements of Act Death does not automatically terminate betrothal. Various
- Sec 2(2): A customary marriage entered into after the peoples (Pedi, Venda, Tswana) provide for substitution.
commencement of this Act, which complies with the
requirements of this Act, is for all purposes recognised as a Mutual agreement between man and woman unlikely.
marriage Woman’s father also a party to agreement. In original
- Sec 2(4): If a person is a spouse in more than one indigenous law, family groups had to agree to terminate
customary marriage, all such marriages entered into after the
commencement of this Act, which comply with the provisions Unilateral termination with or without good cause.
of this Act, are for all purposes recognised as marriages - Good cause for man’s group:
(Legal requirements discussed in a subsequent chapter) Unreasonable postponement of marriage
Woman’s misconduct with other men and
neglect of betrothed
THE BETROTHAL IN CUSTOMARY LAW Woman’s immorality. If man condones,
cannot terminate with good cause
Nature of the legal act Physical injury incurred by man rendering
him unfit for marriage – must compensate
In original indigenous law betrothal is agreement woman’s group for expenses incurred
between 2 family groups with regard to a future marriage. - Good cause for woman’s group:
1.) Agreement Man marries someone else during
2.) Delivery of all or some of marriage goods betrothal period
Not all indigenous groups recognise the betrothal as an Man’s immorality where monogamous
independent legal act if the agreement and transfer of the marriage contemplated provided woman
marriage goods and transfer of the woman all take place does not condone
within a single ceremony which stretches over a few days Continuous neglect
Too much attention paid to other women
In modern indigenous law, parties are individuals (man, and neglect of betrothed and her family
girl and girl’s father). If man still a minor, he has to also be Where woman’s group terminates, Mehlomakulu v
assisted by his father. Jikejela established the following principles:
- Betrothal agreement does not create an enforceable 1.) Woman alone decides whether she wishes to
right or obligation to marry terminate; guardian has no say
- Betrothal agreement can be repudiated/terminated 2.) Woman alone decides whether she wishes to reject
at any time without aggrieved party being able to the man or condone his misconduct
demand compensation on grounds of breach of K 3.) Condonation/rejection by guardian without
- Legal consequences of termination of betrothal woman’s agreement has no effect
restricted to patrimonial aspects
Consequences of termination
Consequences of betrothal
- Woman should not pay attention to other men Death
- Man must not neglect her (due to polygyny, he - Marriage goods returned
may pay attention to other women as long as he - Compensation paid for losses of cattle only if these
does not neglect his betrothed) had not been reported in good time (woman’s
- Delivery of betrothal goods group has duty to care for cattle and report losses)
Betrothal gifts Marriage goods - Where man has caused woman’s death, goods are
e.g. blankets, clothing, other e.g. cattle or money not returned (e.g. man made woman pregnant
household goods during betrothal and she died during labour)
Upon delivery, property rights Ownership remains
transferred vested in giver until Agreement – parties usually also come to an agreement
marriage concluded regarding disposal of goods. Usually returned
If betrothal terminated, articles If betrothal terminated,
not automatically returned. Guilt must be returned to Unilateral termination
determining factor man’s family group - Zulu: marriage goods returned regardless of which
party brought about termination
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- Others: guilt factor plays a role marriage, the intended husband, his parent or guardian or
Man terminates with good cause: returned other person agrees to deliver to the parent or guardian of the
Man terminates without good cause: man intended wife.
forfeits goods already delivered - Sec 1(iv), Recognition of Customary Marriages
Woman terminates with good cause: man Act: property in cash or kind…which a prospective
forfeits goods already delivered husband or the head of the family undertakes to give to the
head of the prospective wife’s family in consideration of a
customary marriage
LEGAL REQUIREMENTS FOR CUSTOMARY MARRIAGE
Requirements for lobolo contract:
Absolute requirements Relative requirements 1.) Consent of father/guardian of bride-to-be
Must be satisfied beforehand Compliance may be later 2.) Consent of bride (in modern indigenous law)
If not met, no juristic act (null Valid juristic act may be 3.) Consent of bridegroom (in modern IL)
and void ab initio) effected* 4.) Transfer of bride effects marriage
Arise from law; cannot be Parties can mutually agree 5.) Transfer of lobolo (practice varies among groups)
excluded/amended by mutual to alter these requirements a.) Fokeng, Mogopa: all marriage goods must be
agreement; unalterable to suit circumstances delivered before transferring bride
*such juristic act can be fulfilled by satisfying deficient b.) Other: part must be delivered before transfer
requirements at later stage/ terminated by failure to do so c.) Tswana: marriage goods delivered from
marriage goods received in future from her
Legal requirements for customary marriages entered daughter’s marriage
into before 15 November 2000 d.) South Nguni: ukutheleka – wife’s people
- Before: same as legal requirements for TIM/CU impond her from time to time until husband
- After: sec 3, Customary Marriages Act 120 of 1998 delivers more marriage goods to free her
- Act confers legitimacy on polygyny
Transfer of bride
Legal requirements for TIM - Need not take place physically but there must be a
- Absolute requirements: formality of some kind
1.) Man and woman must not be related to one - Bridegroom need not personally be present
another within the prohibited degrees of kinship (transfer is to his family group)
2.) Consensus between 2 family groups regarding: - For some groups, sufficient if bridegroom allowed
a.) 2 individuals to be united in marriage to sleep with bride
b.) Marriage goods which must be delivered
3.) Bride must be transferred by her family group to Pre-existing marital union
the man’s family group - Only a requirement for woman due to polygyny
4.) Woman not already involved in a marital union - If woman already married, marriage null and void
- Ceremonies has value as proof but not legal reqts
- Absence of age reqts Legal requirements for a CU in KwaZulu-Natal
- Sec 38(1) of Codes of Zulu Law:
Kinship 1.) Consent of bride’s father/guardian if still a minor,
- Incest pollutes and defiles community which consent must not be unreasonably withheld
- If incest occurs there may be supernatural 2.) Consent of bridegroom’s father/family head, if
punishment from ancestors (droughts, etc) bridegroom still a minor
- Offending parties must be killed or undergo 3.) Public declaration by bride to official witness that
purification ceremonies to free community union takes place with her consent
- Code further says that CU must be registered but
Consensus between 2 family groups failure does not render union null and void
- Individuals cannot agree on behalf of group - With conclusion of CU, parties to lobolo contract
- Customary ways in which young man and woman are bridegroom and person entitled to lobolo –
attempt to force family groups to agree to marriage lobolo, in this instance, is a separate contract
Elopement (Zulu: ukubaleka)
Kidnapping the bride (Nguni: ukuthwala) Legal requirements for CU outside KeaZulu-Natal
- Olivier:
Marriage goods (lobolo) 1.) Consent of bridegroom’s father in certain
- Sec 1(1), Codes of Zulu Law: cattle or other property circumstances (if bridegroom is a minor)
which, in consideration of an intended customary or civil 2.) Consent of bridegroom
3.) Consent of bride’s father
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4.) Consent of bride Relationship between civil and customary marriages

5.) Handing over of girl to man/his group - Act regulates relationship between customary and
6.) Agreement that lobolo will be delivered civil marriages
7.) Non-existence of a common-law (civil) marriage Sec 3(2): save as provided in sec 10(1), no spouse in a CM shall be
competent to enter into a marriage under the Marriage Act 1961
Legal requirements for customary marriages entered during the subsistence of such CM
into after 15 November 2000 - This does not prevent husband and wife in a
- Sec 3, Recognition of Customary Marriages Act monogamous CM from converting their marriage
120 of 1998: into a civil marriage
1.) Prospective spouses must both Sec 10(1): a man and a woman between whom a CM subsists are
a.) Be above the age of 18 years, and competent to contract a marriage with each other under the Marriage
b.) Consent to be married to each other Act 25 of 1961, if neither of them is a spouse in a subsisting CM
2.) Marriage must be negotiated and entered into or with any other person
celebrated in accordance with customary law - Legislature’s intention was to avert situations
which existed previously. Before 1998, where a
Age requirements person concluded a CM and subsequently entered
- Act makes provision for CM of minors: into a civil marriage with someone else, CM was
Sec 3(3): (a) If either of the prospective spouses is a minor, both automatically dissolved and woman and children
his or her parents, or, if he or she has no parents, his or her legal automatically discarded! However, material rights
guardian, must consent to the marriage of discarded wife were protected by BAA. If civil
(b) if the consent of the parent or guardian cannot be obtained, marriage first, subsequent CM null and void. Wife
sec 25 of the Marriage Act, 1961, applies (commissioner of in void CM enjoyed no protection under the law.
child welfare may grant consent)
Registration of CM
Sec 3(4): (a) …Minister (of Home Affairs) or any officer in the - Previously, only CM in KwaZulu-Natal had to be
public service authorised in writing thereto by him or her may grant registered
written permission to a person under the age of 18 years to enter into a - Act now makes provision for registration of all CM
CM if the Minister/said officer considers such marriage desirable and - Failure, however, doesn’t affect validity of marriage
in the interests of the parties in question. - Registration merely provides proof of CM
x x x
(c) If a person under the age of 18 years has entered into a
CM without written permission of Minister or relevant officer, CONSEQUENCES OF CUSTOMARY MARRIAGES
Minister or officer may, if he/she considered the marriage desirable
and in the interests of parties in question, and if the marriage was in General consequences
every other respect in accordance with this Act, declare the marriage in 1.) New and separate unit (family/house) comes into
writing to be a valid customary marriage being. This unit is also a legal unit
2.) Husband and wife have a mutual obligation to live
Sec 3(5): Subject to subsection (4), sec 24A of the Marriage Act together. Some groups allow woman to live with
1961 applies to the CM of a minor entered into without the consent of eldest son once he occupies his own residence
a parent, guardian, commissioner of child welfare or judge, as the case 3.) Husband and wife have mutual duty to allow
may be (applicn for annulmt must be brought by parent/ sexual intercourse
guardian/minor personally with HC within prescribed time 4.) Status of man and woman changes
limits, before minor reaches 21 or 3 months thereafter) Powers of woman’s group in respect of
guardianship over her are transferred to
Consensual requirements husband and his group
- Both prospective spouses must consent Children under guardianship of husband
- Prevents forced marriages and his family
- Also in line with equality clause of consti Wife enjoys considerable amount of
independence in own house but must
Negotiation and celebration in accordance with consult with husband on impt matters
customary law Husband, as family head, has specific
- Differs from group to group powers – represents family in external
- Generally, family groups must negotiate and matters; responsible for order and
consent to 2 individuals being united and to discipline within family and for its needs
delivery of lobolo – this indirectly rendered and interests
lobolo a requirement for CM Husband’s wider family also have measure of control over
- Some groups also require physical transfer of bride property. This meant wife protected against mismanagemt
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Personal consequences Control over house property

- Each wife in a polygynous TIM and CU occupies a - House property belongs to husband, wife of the
particular rank within the greater composite house and their children – all share in property and
household. Her rank influences her status, her each have duty to contribute
relationship with her husband’s other houses and - Husband controls property on behalf of house, but
her children’s rights to succession in consultation with wife and children
- CU – individuals seen more as individuals, each
Simple ranking system with particular rights and powers. Husband only
- Only found among those Tsonga groups that have person who can dispose of house property.
not been influenced by the Zulus Children who have attained their majority earn
- No married woman establishes a house their own living and have estate separate to house.
- Woman who marries man first becomes main wife Married woman has no legal control over house
- All other wives ranked in order of marriage property. Unlikely that her original rights of
- Husband has control of property as a whole disposal over house property would be recognised
- At husband’s death, eldest son of main wife under modern law. However, where husband
assumes control of common property irresponsibly disposes of house property and
- Wives and children have claim to maintenance ignores wife’s objections, she can institute action
from common property against him on behalf of her house
- Household means are not divided
Relationships between houses
Complex ranking system - Original indigenous law: property of every house
1.)Household divided into sections forms a separate unit
- Southern Nguni - Codes of Zulu Law compels family head to keep
- 2 or 3 sections property of his houses separate
- First 2 women a man marries become main wives - Gen rule: one house may not be enriched at cost
of 2 sections. All further wives are added to these on another house
sections as subordinate wives - Property used to benefit another house:
- First wife = main wife; her house = great house 1.) Reasonable and for a just cause
- 2nd wife forms the right-hand house 2.) Family head must consult members of house
- All further wives known as “rafters” and added in - Instances where such transfer allowable:
turn to great house and right-hand house House has to repay a debt and does not have
- Each house separate legal unit with own property necessary property to do so
- Rafter house subordinate to main house of section Property of one house used as marriage goods
2.) Household not divided into sections for a son of another house. Daughter from
- Sotho-Tswana latter house is usually appointed as source
- Gen. rule: first woman married becomes main wife from which debt to be repaid
- Except: preferential marriage House property used to marry a subordinate
- Rank of wives det accdg to order of marriage wife. Such a wife usually affiliated to house
- Each wife est separate house with own property that supplied the property
*seed-raiser wife = substitute; doesn’t form separate house - Transfer of property from one house to another
results in a debt relationship between 2 houses
Relationship between husband and wife - Death of family head does not extinguish debt
- In TIM and CU (outside KZN), wife under - Previously, houses could not sue each other
guardianship of husband – like a minor - In modern indigenous law, woman can initiate
- Repealed by RCM Act 120 of 1998: wife no longer claim on behalf of her house
under guardianship of husband, but also major
Sec 6: a wife in a CM has, on the basis of equality with her husband Reform under the Recognition of CM Act
and subject to the matrimonial property system governing the marriage, - Sec 7(1) of RCM Act 120 of 1998 provides that
full status and capacity, including the capacity to acquire assets and to proprietary consequences of CM entered into
dispose of them, to enter into contracts and to litigate, in addition to before commencement of Act continue to be
any rights and powers she might have at customary law governed by customary law (sep. houses with own
house property in polygynous marriages retained)
Proprietary consequences - Sec 7(2): monogamous CM entered into after
- TIM and CU create separate house estate commencement of Act results in a family estate
- Except: Tsonga who have not come under that is in community of property and of profit and
influence of Zulus loss unless antenuptial contract provides otherwise
- Sec 7(1) & (2) proposes differential treatment
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Gumede v Gumede: held that this was unfair 3.) Death

discrimination of women in “old” CM. Provisions declared TIM – didn’t dissolve marriage. Substitute
unconstitutional and invalid. Effect: proprietary CU – in modern indigenous law, death of
consequences of marriages entered into before and after wife terminates CU, though substitution
the commencement of Act now enjoy same status – both also possible. House of deceased wife
community of profit. Both spouses in CM, irrespective of continues to exist. If no son, husband may
when they were concluded, have equal control of property marry “seed-raiser” in her place. Death of
husband does not dissolve CU. Widow
CM further reformed by application of Matrimonial remains wife of household. Male relative
Property Act 88 of 1984 which gives equal powers to could procreate children with her for
husband and wife to administer and control joint estate in deceased
CM which is in community of property CM – not clear. Sec 8 of Act provides only
for dissolution by a decree of divorce. Can
In a polygynous CM, where husband intends to enter into be argued that since there is no explicit
further CMs with other women, Act states that husband amendment of customary law, it still
must apply to court to approve written contract regulating applies – death doesn’t terminate marriage
future matrimonial property system of his marriages
Grounds for dissolution
- Traditionally, divorce unknown
DISSOLUTION OF CUSTOMARY MARRIAGES - No fixed grounds for dissolution
- Any party could dissolve even without reason
Husband and wife cannot dissolve marital union alone. - Did have effect on marriage goods – if husband
TIM – family groups. CU – plus wife’s father/his successor dissolved on good grounds, returned. If husband
dissolved without good grounds or wife’s group
TIM was concluded without any state involvement and also has good grounds, husband forfeited goods
dissolved without state interference – matters of private law
- Same for CU outside KZN Original indigenous law
In KZN, govt appoints official witness who should be 1.) Non-fulfilment of wife of child-bearing duties;
present at celebration of CU (Codes of Zulu Law). CU in substitution possible here
this province can only be dissolved by a court 2.) Failure to deliver marriage goods (note: wife’s
group usually very patient with this)
RCM Act 120 of 1998: CM can only be dissolved by court 3.) Continual violation of conjugal fidelity by wife,
amounting to repudiation; attempts by wife to
Ways of dissolution prevent husband from taking action against her
1.) Court action lover; single act of incest by wife
TIM – court only involved when families 4.) Premarital pregnancy concealed from husband
couldn’t agree on consequences of dissolution 5.) Neglect of mutual marital duties, incl. sex
CU – In KZN, must be dissolved by 6.) Expulsion of wife by husband
competent court. Outside KZN, not 7.) Desertion by wife with persistent, unfounded
compelled to institute court action. Parties refusal to return
may approach court to decide on return of 8.) Accusations of witchcraft by husband against wife
marriage goods. Court approached for 9.) Impotence of husband (substitution possible)
declaration that CU dissolved
CM – RCM Act 120 of 1998 provides that only Modern indigenous law
competent authority to dissolve CM is a court 1.) Adultery, but only if it amounts to repudiation or
(family court/HC/divorce court) renders union impossible. Protection of
2.) Outside the court – In original indigenous law, lover/incest aggravating circumstances (no longer
TIM dissolved by family groups. This principle separate grounds)
recognised in modern indigenous law for CUs 2.) Pregnancy during marriage resulting from secret
outside KZN. Possibilities: premarital intercourse with another man
Mutual agreement between parties. Need 3.) Desertion by wife
not be grounds. Agreement usually also 4.) Refusal to have sexual intercourse
provides for consequences In KZN, accdg to Codes of Zulu Law, both husb & wife:
Husband’s initiative – with or without 1.) Adultery
good reason 2.) Continued refusal of conjugal rights
Wife and father’s initiative – with or 3.) Wilful desertion
without good reason 4.) Continued gross misconduct
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5.) Imprisonment for at least 5 years Consequences for husband and wife
6.) Condition rendering continuous living together of - Man’s status not seriously affected
spouses insupportable and dangerous - Wife’s position changes drastically – divorced
In addition, wife may dissolve on following grounds: woman; no longer under husband’s guardianship
7.) Gross cruelty/ill-treatment by husband - Original indig law: woman reverted to being under
8.) Accusations of witchcraft or other serious guardianship of her agnatic group of birth
allegations made against her by husband - Wife in CU also reverts to guardianship of father
or his successor unless she is above 21
Customary marriage - Sec 6 & 9 of RCM Act 120 of 1998, wife in CM is
- Sec 8(1): CM can only be dissolved on ground of a major and remains a major after dissolution
irretrievable breakdown of the marriage
- This is in line with existing, living customary law, Consequences for the children
prov not only the views of the spouses, but also - Wife’s house not dissolved
the views of the wider family group are taken into - Orig ind law: children remained members of
account when det fact of irretrievable breakdown house. Infants could accompany mother to her
- Sec 8(2): in order to grant decree of divorce, court people, but had to be returned when older
must be satisfied that marriage has reached such a - Codes of Zulu Law: CU: children under
state of disintegration that there is no reasonable guardianship of husband. Court may make an
prospect of restoration of normal marriage order regarding their custody and maintenance
relationship between the spouses - Parental rights det by lobolo – if lobolo paid,
- Question of fact: relevant facts and circumstances husband and family entitled to children
- Court’s discretion but if defendant doesn’t - RCM Act 120 of 1998: court makes order
challenge, little option but to accept - Court has adapted customary law by emphasising
best interests of the child
Effect of dissolution on marriage goods - Guardianship act 1993: grants equal powers of
- Either returned or forfeited (may be in part) guardianship to both parents of a minor child
- Various groups differ but following factors usually
taken into account: Proprietary consequences
1.) Amount of blame on either side - House continues to exist
2.) Number of children born of the marital union - Wife lost all rights and powers in respect of house
3.) Portion of marriage goods already delivered property. Could not claim maintenance
- RCM Act 120 of 1998 provides for maintenance
Amount of blame on either side and matrimonial estate sharing
- Party who is to blame forfeits marriage goods - Sec 9, Divorce Act: no person ought to benefit from a
- Customary to return at least 1 beast to indicate in marriage which he/she has caused to fail.
concrete manner that marriage dissolved - RCM Act 120 of 1998: court must make equitable
order re polygynous marriages
Number of children born
- For most groups, 1 beast allowed for every child
the wife has borne (incl. miscarriages) CUSTOMARY LAW OF PROPERTY
- Should wife have more children than marriage
beasts, at least 1 beast should be returned to In orig indig law, agnatic group (or house subdivision of
husband as concrete proof of dissolution agnatic group) was bearer of rights. Head of group
exercises right on behalf, and in interests, of agnatic group
Portion of marriage goods already delivered
- If husband has not delivered all marriage goods What are the distinctive characteristics of orig indig law of things?
and he is responsible for breakdown, he is - Agnatic group (and house) bearer of rights
indebted for the balance - Property rights limited to ownership of movable
- Should parties fail agree re marriage goods, court and immovable things
may be approached. In such case, court not asked - Individual ownership unknown
to dissolve union. Union already dissolved. Court
merely asked to decide on marriage goods In modern indig law, real rights also vested in individuals

Consequences of dissolution Categories of property

- Marital union terminated 1.) General property
- Position in customary law differs from SA law 2.) House property
3.) Personal property
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General property belongs to household as a whole. CUSTOMARY LAW OF SUCCESSION AND INHERITANCE
Controlled by family head but he is not personal owner of
property. Each member of household shares in property Inheritance Succession
accdg to his/her status within the group. Family head Division of assets of No division of property. Successor
exercises control on behalf, and interests, of group. deceased among heirs takes place of deceased and gains
General property includes: control over property and people
Property of family head’s mother’s house Should liabilities Successor succeeds to assets AND
Property which family head has earned exceed assets, heirs liabilities. Should liabilities exceed
Land allocated to family head by tribal authority inherit nothing assets, successor succeeds to these
and which has not been allotted to a partic house as well*
On death of family head, control of general property passes *this differs among various groups
to head’s general successor
Customary law of succession
House property refers to property that belongs to each
separate house (among Tsonga uninfluenced by Zulu, General principles
house property unknown). Controlled by head of house - Succession takes place on death of predecessor;
(husband) who may be head of several houses. In disposing there is no question of succession while family
house property, he is morally (but not legally) obliged to head still alive
consult wife of house and house successor (if adult). Wife - In orig indig law, succession related solely to
has reasonable degree of control over house property as far status, but modern indig law does acknowledge
as daily household affairs are concerned. notion of individual inheritance of property
House property includes: - In orig indig law, no such thing as total disposition
Earnings of family members by means of will. Today, not uncommon
Livestock allocated to partic house - Distinction between general succession and
Property given to woman on her marriage special/house succession
(household utensils/Nguni: ubulungu beast) - Orig indig law, successor succeeded to assets and
Marriage goods received for daughters of house liabilities. In modern indig law, differs bet groups
Compensation for wife’s adultery/seduction of any KZN – succeeds only to those debts that
of the daughters of house emanate from marriage contracts (lobolo)
Crops from fields belonging to house Rest of SA – all debts
Land allocated to house for dwelling & cultivation - Succession in status limited largely to males
Wife of house can protect house property in case of - Principle of primogeniture (firstborn son)
husband’s prodigality. She can call on husband’s agnatic - Succession = duty that can’t be relinquished/ceded
group, and today, can also apply to magistrate - Male descendants enjoy preference to male
On husband’s death, control of house property ascendants; male ascendants preferred over
passes to house successor (wife’s eldest son) - doesn’t mean collateral relatives
successor becomes owner of property to excl of others - Disposal among living possible, prov formalities
- Successor may, on good grounds, be removed
Who is responsible for the control of general and house property? from line of succession (disinherited)
- General property controlled by family head, in
consultation with senior men and women of General order of succession
agnatic group - Principles:
- House property controlled by family head in 1.) Succession through death
consultation with wife and senior children 2.) Primogeniture
3.) Succession by males in male line
Personal or individual property – property that belongs
to a person who has acquired it, although it may be under Succession in monogamous household:
the control of the family head 1.) Eldest son or, if he is deceased, his eldest son
2.) If eldest son died without male descendants, 2nd
Originally, personal property unknown in customary law. son or his male descendants in order of birth
Had to consult with other members of agnatic group 3.) Deceased has no male descendants/survived them,
deceased’s father
In modern indig law, individual ownership acknowledged. 4.) If survived all male descendants and father, his
Here, rules governing property essentially same as those eldest brother of his male descendants
generally applicable in SA law. In individual’s use of 5.) Grandfather of deceased or his male descendants
property, morally (but not legally) obliged to consult family according to seniority
head. Individuals may dispose of property as they wish 6.) Great-grandfather and his male descendants
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7.) Traditional ruler Disposition inter vivos

8.) President as supreme chief - Family head could make certain allotments during
his lifetime which would remain valid after death
Succession in a polygynous household Allotment of property to spec house/ son
- Eldest son in each house succeeds in that Adoption (except Zulu and Swazi)
particular house Transfer of younger son from one house
- If he is deceased, his male descendants to another house without a son
- Then younger brothers and their descendants Seed-raising
- Should a house have no male descendant, Allocations of daughters to sons in a
successor obtained from house next in rank house as a means of providing for
- Among peoples whose household is divided into marriage goods of these sons
sections, attempt first made to obtain successor Ukungena – procreation of successor for a
from houses affiliated to main house within a deceased man by his widows
section before considering next section Disinheritance (“disherison”)
All above methods have definite influence on customary
Order of succession among male children: rules of succession. Must be accompanied by formalities
1.) Legitimate son and done in consultation with wider family group
2.) Illegitimate son by virgin, widow/ divorced
woman for whom maintenance (isondlo) paid Statutory regulation of customary law of inheritance
3.) Ngena children
4.) Adopted/adulterous children of wife (unless she Testamentary dispositions
has been repudiated) in chronological order in - In orig indig law, total disposition of property by
which they became attached to family means of a will unknown. Main reason: rights and
5.) Sons of widow not born out of an ngena union duties held by agnatic group
6.) Premarital son of unmarried woman or - In modern indig law, wills recognised
extramarital son of divorced woman for whom no - Black Administration Act (1 Jan 1929): all movable
isomdlo paid. (Succession through a woman – can property allocated to a house/wife in a CM was
only occur if no other male relatives) inherited accdg to rules of orig ind law and could
not be bequeathed by means of a will. All other
General and special succession property could be disposed in a will
- Civil marriage/unmarried man/all women can
General succession Special succession dispose of their whole estate by means of a will
Succession to position of Succession to position of
family head head of a house Intestate inheritance
Control over household and Control over house and - Bhe case: inheritance under customary law (BAA)
property of general estate house property declared unconstitutional
(property belonging to agnatic - Reform of Customary Law of Succession Act:
group as a whole) Intestate Succession Act now applies
- Moseneke: declared differentiation in sec 23(7)
Powers and duties of the successor BAA and regulation 3(1) unconstitutional. Brought
- Powers and duties passed on in more or less direct era of racial discrimination in administration of
proportion to rank of each house deceased estates in SA to an end
- Each house successor had considerable autonomy - Zondi: regulation 2 unconstitutional to extent that
- Had to care for and support house members, see it distinguishes, for purposes of intestate
that debts were paid and collected and provide succession, between estate of African in
marriage goods for sons community of property marriage and estate of
- General successor same but also acted in place of African in marriage out of community of property
deceased family head and obtained control over
general property – responsible for general debts of Challenges to sec 23 of BAA and regulations
household and could collect outstanding debts - Bhe: Sec 23 which affords recognition to principle
- KZN: generally liable only for debts equal to of male primogeniture declared unconstitutional. It
assets. Except: lobolo debts/interhouse loans excluded women/extra-marital children from
- Outside KZN: universal succession inheriting. Rights to equality and human dignity
- Successor also liable for delicts of deceased – Declaration of invalidity retrospective to
limited to cases where action instituted before 27 April 1994. Except: completed transfer
death of deceased or where deceased accepted of ownership unless est that transferee
liability during lifetime. Limited to extent of estate had notice of challenge
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Legal reform Settlement of disputes between non-related family

- Reform of Customary Law of Succession Act groups
11 of 2009 reaffirms that Intestate Succession Act - Negotiation
will be applicable to all estates. - If unsuccessful – headman’s court
- Sec 2 provides for situations usually found in
customary law: If between husband and wife:
Spouse inherits same portion as child 1.) Discussed with husband’s family circle
Regarded as descendant of deceased 2.) Wife’s family invited to help
3.) No solution – may lead to termination of
marital relationship without headman involved
JUDICIAL APPLICATION OF CUSTOMARY LAW 4.) Reconciliation – conciliatory meal offered by
party at fault
THE AFRICAN CUSTOMARY PROCESS OF
NEGOTIATION IN DISPUTES If dispute between non-related family groups:
1.) Aggrieved person discusses with own family
Negotiation and mediation in African customary law aimed 2.) If agreed that wrong had been done, matter
at bringing about reconciliation between people who are reported to family group of wrongdoer
engaged in a dispute. Means of settling dispute. (“throwing a kierie”)
3.) Wrongdoer’s group meet to investigate and
Phases in development of dispute: discuss the complaint
1.) Grievance or latent-conflict phase – event 4.) If clear wrong done, group sends
experienced by party that is harmful representatives to offer apologies
2.) Conflict phase – aggrieved party communicates 5.) If accepted, matter resolved
aversion/feeling of being wronged 6.) If no reaction from wrongdoer’s group,
3.) Dispute phase – other party gets involved (e.g. aggrieved group will again “throw the kierie”
apologies/denial) (repeated up to 4 times)
In practice, dispute may not go through all 3 phases and 7.) Matter taken to court
may not go in that order 8.) Negotiations may include headman-mediator
9.) Any stage parties come to an agreement,
Procedures for handling disputes: reconciliatory meal held
- Disregard, so grievance does not lead to conflict
- Avoidance – break off relations with other party Changes
- Self-help – aggrieved party acts unilaterally - Family groups often not functional today
- Negotiation with view to reconcile - Local residential group takes place of extended
- Mediation – 3rd party involved as mediator family groups – neighbours play larger part in
- Arbitration – 3rd party decision binding and process of negotiation
enforceable - Urban areas – many strangers living close to each
- Judicial adjudication – court settles dispute other. Reported to police, church groups or civil
Disregard, avoidance and self-help involve one party. authorities
Negotiation involves 2 parties. Mediation, arbitration and
judicial adjudication involves 3 parties
GENERAL PRINCIPLES OF CUSTOMARY
Settlement of disputes within family groups COURT PROCEDURE
- Negotiation with view to reconciliation
- Mother/senior female figure reports dispute to If act gives rise to both a civil and criminal action, both
head of family – private matter; meeting of adults aspects dealt with in same hearing
- If matter cannot be settled within family circle,
senior relatives outside family invited to help Lodgement procedure
- Then assistance of direct neighbours
- Emphasis: restoring relations Civil case
- If meeting finds solution – wrongdoer 1.) Plaintiff’s agnatic group first try negotiate with
reprimanded and required to “wash the wrong” defendant’s agnatic group
(chicken/goat slaughtered and eaten – meal) 2.) No agreemt, plaintiff’s group reports to headman
- If solution not accepted, local headman (head of 3.) Headman sets a date for hearing and notifies
lowest customary court) acts as mediator before defendant
making a formal judicial decision 4.) On day of hearing, parties and witnesses must be
present. Case may not be heard in absence of one of parties
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5.) If party cannot be present, postponed Application in the magistrate’s court

6.) If unhappy with decision of headman’s court, - 2 capacities:
referred to chief’s court (same procedure) 1.) Court of first instance – magistrate has choice:
apply common law or African customary law
Criminal case 2.) Court of appeal (from CTL) – may confirm,
1.) Agnatic group of injured person reports case to alter or set aside judgment = decision of MC;
local headman not ordinary appeal as could involve a re-trial
2.) In exceptional cases, complaint lodged directly
with chief’s court African customary law and the small-claims court
3.) Headman investigates matter and reports to chief - Reasons:
4.) Chief sets date for trial; parties notified 1.) Relieve pressure on MC
5.) Customary procedure applies where it is not in conflict 2.) Obviate high cost of lawyers
with public policy and natural justice 3.) Prevent delay in bringing case before courts
- Person may not be sentenced in his absence 4.) Psychological barriers litigants experience
- Chief may not administer justice in a case in which when dealing with formal tribunals
he himself is the complainant 5.) Barriers caused by poverty, ignorance and
feelings of alienation
Trial procedure Hoexter commission: SCC attempt to reconcile parties and
- Main principles: presiding officials could play a more active inquisitorial role
1.) Onus is on accused to prove innocence in court - Jurisdiction: restricted to hearing of small claims
2.) Sessions of courts held in public (currently set at R3000)
3.) All parties must be present during trial - Excluded from jurisdiction:
4.) No legal representation (but assisted by relatives) Dissolution of CM
5.) Proceedings conducted orally Actions for damages for seduction and
Today, a chief’s court judgment must be registered with breach of promise to marry
magistrate within 2 months, or else lapses (these must be brought to MC)
6.) Proceedings fairly informal but orderly manner - No legal representation permitted
7.) No oath taken by parties /witnesses – no perjury - General rules of evidence not applicable
8.) Prescription of debt/claim unknown – plaintiff, - Questioning of witnesses on inquisitorial basis
however, compelled to submit claim without delay (court takes active part)
as it may make it more difficult to prove facts - No requirement that commissioners should speak
9.) Court proceedings are inquisitorial in nature – a Bantu language or that they should be proficient
court’s duty to try establish truth through in African customary law
questioning and cross-examination
Would you say that the institution of the small claims court has solved
the problem of black litigants in regard to access to the law?
APPLICATION OF CUSTOMARY LAW IN THE COURTS While procedure similar to that of African
customary law (informal, no legal representation), certain
Sec 1, Law of evidence Amendment Act 45 of 1998: all customary law matters cannot be dealt with by these courts
courts can apply African customary law in so far as such law is (dissolution/seduction/breach of promise to marry).
readily available and certain Further, commissioners not required to have special
knowledge of African customary law. Although it is
Sec 39(2) of consti makes provision for application and cheaper and more informal, doubtful whether it will satisfy
development of African customary law by courts as long as the needs of the black litigant.
it accords with spirit and purport of Bill of Rights

Courts which can apply African customary law JURISDICTION

1.) Constitutional court IN THE COURTS OF TRADITIONAL LEADERS
2.) High court
3.) Magistrate’s court African customary leader had ex officio powers to decide any
4.) Court of traditional leaders matter which came before his court. BAA imposed a
5.) Small-claims court radical limitation. African customary leader referred to as
“chief” or “headman”. Constitution refers to them as
Aggrieved party’s choice initiate claim in CTL, MC or SCC “traditional leaders.”
- CTL – appeal to MC then HC
- SCC – no right to appeal to MC BAA: tradl leaders empowered to adjudicate civil and
If customary law in conflict with BoR – HC, SCA, CC criminal cases provided Minister has granted them power
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Unlikely that courts of tradl leaders will draw distinction 2.) Free system of evidence – no evidence
between crim and civ matters as they are reqd to do by excluded: all evidence admissible and judged
BAA and common law – tradl leader liable. on its merits by court

Only black people have access to CTL Burden of proof and evidential burden
- NOT UNFAIR DISCRIMINATION: it is general
practice to limit institutions of a particular culture Burden of proof Evidential burden
to the members of that cultural group Determines which party Party must prove its claims
- Reasonable and justifiable limitation on law against loses case if court does not in court
discrimination; special measure have sufficient grounds to
- Blacks have choice as to court in which they will make finding on issue of
institute action and not obliged to go to CTL fact
Such a situation Civil Criminal
Jurisdiction in civil matters inconceivable in customary
1.) Arise from African customary law law. Extrajudicial methods Plaintiff’s Onus on
2.) Instituted by black people against black people of proof known group must defendant to
residing within his area of jurisdiction (diviner/ordeal by poison) submit prove
Gqada v Lepheana: traditional leader empowered to In ACL, neither party has evidence to innocence
deicde on lobolo claim arising from African customary burden of proving case. prove its (no concept
marriage (marriage already dissolved). Court takes active part in claim of reasonble
process of questioning doubt)
Appeal – local MC (unless claim for less than R10 except
important principle of law) Measure of proof
- Absolution from the instance unknown in ACL
Jurisdiction in criminal matters (dismissal of claim because it can’t make a decision
1.) Any crime in accordance with common law in favour of one of the parties on evidence)
2.) Any crime in accdance w/ African customary law - Court plays active part in questioning
3.) Any statutory crime referred to by the Minister - Any person present in court may submit evidence
- All evidence tested and weighed
Limitations: - Aim: not to prove who is right and wrong but to
- Crimes committed between black people in area determine the truth and reconcile the parties with
under his control (residence; not grp membership) each other and with court and community
- 35 offences excluded (no need to memorise), e.g.: - No specific test like that of a “reasonable man” etc
High treason - Parties allowed to submit unabridged version
Murder
Culpable homicide Evidential material and means
Rape
Robbery Evidence
1.) Direct evidence (evid of person who has
Appeal – MC with jurisdiction in area which trial took place seen/heard something directly) best form of evid.
- MC may hear new evidence (more like re-trial) Not enough on its own; considered with other evid
- Must continue to apply African customary law 2.) Circumstantial evidence used to supplement evid
3.) Hearsay evidence admissible
4.) Concrete evidential material has especially strong
AFRICAN CUSTOMARY LAW OF EVIDENCE evidential value (clothing left with victim)
5.) Evidence in previous cases also considered
Nature 6.) Court can produce evidence
- Trials in African customary courts still governed by 7.) Any person present in court may submit evidence
African customary law of evidence, provided not Open system of questioning – witness may be recalled at
in conflict with principles of public policy and any stage and parties/court/person in court may conduct
natural justice own questioning of parties/witnesses. A party/witness’s
- Appeal to MC – general SA law of evidence applies refusal to answer a question will lead to an unfavourable
- African customary law of evidence based on conclusion, namely that the person is hiding something
custom, not formal rules. Informal. from the court
- 2 characteristics:
1.) Inquisitorial procedure – court plays active Admissions – accepted as proven.
part in examining parties and witnesses - Made outside court - admissible
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Judicial notice – court takes notice of known facts w/o 5.) Economic situation
requiring proof (e.g. cultural customs; animal behaviour) 6.) Circumstances of parties when offence took place

Presumptions accepted until rebutted. Mangangahlaa – court levy/court costs

- Children of married woman are children of her - Compensation to court for time of members
husband - In order to close proceedings
- Adult is mentally sound - Goat/head of cattle (if long case) slaughtered for
- Person doesn’t voluntarily give clothes to stranger members of court and eaten in a meal shared by
- Person does not voluntarily remain prostrate so them and litigants – also plays role in reconciliation
that another person may hit him on the back - Element of punishment (unreasonably refused to
- Action is instituted without delay. Plaintiffs who come to accord w/ otherparty during negotiations)
fail to do so intend to harm opponents - Today, money – paid into tribal fund
- Due from party against whom judgment given
Extraordinary evidential material
- In former times, assistance of a traditional healer Execution of sentence or judgment
- If facts difficult to prove, parties sent to healer – - Execution takes place as soon as possible after
extrajudicial means such as throwing of bones or sentencing or judgment (unless on appeal)
other tests determined guilt - Any delivery of goods takes place at court
- Finding accepted as decisive evidence in court - Possible to seize goods, even by force (not today)
- Today, execution of judgment requires prior
Competence to give evidence or to testify registration at local MC
- Gen rule: all persons (except insane/intoxicated) - BAA 1927: another way of exacting unpaid fines –
- Even young children and co-accused arrest, MC 48 hours, ordered to pay immediately.
- Drunk people given time to sober up – postponed Failure – imprisonment not exceeding 3 months
- Wife may testify for/against husband & vice versa
- Chiefs/headmen/members of court council may
not act as witnesses. However, they do not have to AFRICAN CUSTOMARY CRIMINAL LAW
withdraw from case if they know something. They
must convey their evidence to court ACT AS AN ELEMENT OF A CRIME

Giving evidence Crime – human act that is in conflict with the generally
- Not under oath. Perjury unknown accepted interests of the community, that can be blamed on
- No action taken if party/witness tells lies. It will the perpetrator, and the consequence of which is that the
merely harm their case perpetrator may be punished by the community
- If witness cannot attend, trial postponed
- Evidence given orally in presence of parties, and is Elements of a crime: [AUGP]
subject to questioning 1.) Human Act (act/omission)
- Each party given full opportunity to testify at their 2.) Act must be Unlawful
discretion to the court, without interruption 3.) Guilt – must be possible to blame perpetrator.
- Court may tell person to get to the point. If he fails Relation between act and consequences examined
to do so, it may harm his case 4.) Punishment – community must be of opinion that
- If later appears that wasted court’s time, fined act should be punished

Differences between crime and delict:

SENTENCING AND EXECUTION OF SENTENCES Crime Delict
IN THE CUSTOMARY COURTS Parties harmed Community Individuals/agnatic
groups
Sentence or judgment Property Public property Property of a
- Judgment based on consensus (no maj or minority) affected particular agnatic
- Reconciliation, restitution group or individual
- Each case judged on its merits – no stare decisis Procedure Must be tried Mediation before
in court in the legal proceedings
Factors in determining amount of compensation: first instance instituted
1.) Damage done intentionally? Punishment/ Offender Damages paid to
2.) Unfounded claims compensation punished harmed party
3.) Attitude of parties concerned
4.) Status
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In ACL, certain acts constitute both crime and delict. No 3.) Self-help (e.g. thief, rapist, adulterer caught in the
separate actions; matter as a whole is settled in court act may be assaulted/killed); but NOT vengeance
so assault after the fact not allowed
No prescription of crime 4.) Executing orders
5.) Impossibility (of executing an order)
The act 6.) Consent – agnatic group has consented
- Only conscious human acts constitute crimes 7.) Institutional action (e.g. circumcision in initiation
- Unconscious/involuntary acts not crimes ceremonies that cause injuries)
- Act must cause harm (attempt not punishable) 8.) Discipline (adult over child; initiation master)
- Acts performed by animals – not crimes
- Criminal act may involve an omission Defence Necessity
- However, nobody has duty to prevent a crime Defence against an attack by Any condition that poses
another person that has already a threat to a person or
Cause and effect: the problem of causality begun/threatening to begin property
- In ACL, no theory of causation
- People know from general experience that a Guilt
certain act causes a particular effect - 2 forms of guilt (culpability):
- Criterion: experience of the community 1.) Intent (malice) - required for most African
- Every act that constitutes an indispensable customary law crimes
condition for a particular state of affairs = cause 2.) Negligence – official discipline not adhered to/
- Poisoning – not necessarily cause death culpable homicide – unlawful and negligent killing

More than one perpetrator and co-liability - Small child/insane person not criminally liable. It
is said that an insane person is not a whole person and
Co-perpetrator Accomplice Accessory after his actions are like an injury caused by a tree trunk
the fact - Intoxication does not exclude criminal liability.
Participates in Assists another Helps criminal Also not a mitigating factor if accused himself
crime (conscious who has evade liability responsible for the condition. If made to commit
collaboration committed a (hiding) – crime in such a condition, it is mitigating
required) crime (helper) independent crime - Supernatural cause (sorcery) does not exclude
criminal liability but may be a mitigating factor
If a person persuades, orders or bribes another person to
commit a crime, he is also considered to be participating Punishment
- Originally, the ff forms of punishment in ACL:
Whether perpetrators equally involved or not doesnt matter 1.) Death penalty
2.) Banishment
In ACL, head of the agnatic group also liable for crimes 3.) Confiscation of property
of its members. Based on group rights and duties. Fines 4.) Removal of offender to an appointed area with
paid by group, represented by head. Northern Sotho: a cow the communal territory
is brought to ruin by her calf. 5.) Fines (stock)
6.) Corporal punishment
7.) Compulsory labour
UNLAWFULNESS, GUILT AND PUNISHMENT 8.) Warning
AS ELEMENTS OF A CRIME Punishment may be increased by combining any of above-
mentioned forms of punishment. Imprisonment unknown
Unlawfulness
- In conflict/harmful to interests of community Factors influencing determination of punishment
- Mitigating circumstances:
Grounds of justification: [DN-SEIC-ID] 1.) Insignificance of offence
- Excludes the unlawfulness of an act 2.) Youth
1.) Defence – self-defence/defence of others; persons 3.) Provocation
or property against unlawful attack; need not flee 4.) Diminished liability
2.) Necessity (e.g. breaking into a peron’s home to - Aggravating circumstances:
extinguish a fire; killing a sorcerer) 1.) Seriousness of crime
2.) Use of force in perpetration of crime
3.) Perpetration of crime within victim’s dwelling
4.) Repeated perpetration of crimes
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Further, intentional unlawful acts punished more severely - Nowadays, may not be tried by an African
than negligent acts customary court as a crime, but only as a delict

Nowadays, African customary court may still impose

punishment in accordance with customary law, but with the TRADITIONAL LEADERSHIP
following limitations:
1.) No punishment resulting in death, mutilation or LEGAL RECOGNITION OF TRADITIONAL LEADERS
bodily harm, incl corporal punishment
2.) Maximum fine limited Consti makes provision not only for traditional authorities,
3.) May not sentence person to imprisonment but also for recognition, institution, status and role of
traditional leadership (sec 211(1) and (2))

CONTEMPT OF THE RULER, ASSAULT AND RAPE Traditional leadership

- Sec 211(2) refers to a traditional authority that
Contempt of the ruler observes a system of indigenous law
- Serious crime - Cultural institution which has been handed down
- Any act of a subject that intentionally rejects, from generation to generation
disregards, opposes or disputes the authority of a - Traditional Leadership and Governance
ruler constitutes a crime Framework Act 41of 2003 refers to traditional
- Rejection of authority of traditional leader, national leadership as the customary institutions or structures as
assembly or representative of ruler (headman or recognised, utilised or practised by traditional communities
messenger) also regarded as contempt of the ruler
- Requires intent Implications for constitutional recognition
- Stranger to ruler’s area does not have allegiance to
ruler and cannot commit this crime Sec 211(1): the institution, status and role of traditional
- Former days, punished by: leadership, according to customary law, are
Banishment recognised, subject to the Constitution
Death penalty
Fine Sec 211(2): a traditional authority that observes a
Corporal punishment system of customary law may function subject to any
- Nowadays, only valid form of punishment: fine applicable legislation and customs, which includes
amendments to, or repeal of, that legislation or those
Assault customs
- Unlawfully and intentionally hurting another
person’s body (blood, bodily injury) Inclusion of traditional leadership in a democratic
- If no blood/injury – no offense of assault constitutional dispensation leads to certain inconsistencies:
- Intention and unlawfulness are requirements - Leg: democracy implies elections. Tradl system –
- Less serious – delictual element; settlement hereditary leadership based on male primogeniture
- Punishment: fine/corporal punishment/combinatn - Official holds office for life instead of fixed term
- Nowadays, pay medical costs - compensation - Inconsistency brought to fore when we look at
powers given to traditional leaders at provincial
Rape and national levels.
- Man uses violence to force woman to have sex Natl level: elected to national council
with him without being married to him Provl level: elected or appointed by tradl
- Sex with a girl who is not sexually mature also rape authorities to provincial houses
even if no violence Limited powers: cannot legislate
- Only man can commit rape independently – laws made must be
- Violence is a requirement. Woman must offer considered by provl and natl legislature.
resistance unless threatened Can insist on being consulted about
- Woman must report matter to head of her family mattres of ACL but can do little more
immediately than delay leg process if they disagree
- Some groups require penetration (if none, assault) - Clash between equality clause and male succession
- Also harms honour of agnatic group – consent not and patrilineal system of descent
a defense 1.) Generally accepted cultural tradition =
- Punishment: death, fines, corporal punishment “unreasonable discrimination”?
- Caught in act – self-help/satisfaction 2.) Sec 36(2): indigenous legal rule does not limit
fundamental rights in consti, except as determined in
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 African Customary Law Reviewer

subsection (1) or any other determination of the Statutory framework for traditional leadership and
Constitution. Sec 211 and 212 make provision institutions
for continued existence of traditional
authorities. If principle of patrilineal Traditional Leadership and Governance Framework
succession abolished, no longer traditional Act 41 of 2003
3.) Political background that resulted in ch 12 on
tradl authorities in consti – tradl leaders Recognition of traditional communities
specifically persuaded to support consti and
new political dispensation on condition that Sec 2(1) community may be recognised as a traditional community if
tradl form of govt would be protected (a) It is subject to a system of traditional leadership in terms of
that community’s customs; and
(b) Observes a system of customary law
TRADITIONAL AUTHORITY IN SOUTH AFRICA (2) Premier of a province may, by notice in the Provincial Gazette, in
accordance with provincial legislation and after consultation with the
Basis for traditional rule is traditional state/community provincial house of traditional leaders, community concerned and king
and queen, recognise a community as a traditional community
This section deals with characteristics of traditional
state/community in SA before it was subjected to large- Sec 2(3): traditional community must transform and adopt
scale influence from Western institutions of authority customary law and customs to comply with BoR and consti

Characteristics of the traditional state Withdrawal of recognition of traditional communities

Traditional state: people in a cultural context who Sec 7(1) withdrawal may only be considered where –
comprise an autonomous jural community (a) Community concerned requests Premier
(b) Provl govt requested to review position of community that
Jural community: political unit with its own juristic life was divided/merged prior to 1994 by law
1.) Own territory – boundaries demarcated (c) 2 or more communities request to be merged
2.) Own household – denotes interaction bet (2) withdrawal must be done by Premier in accordance with applicable
members of jural community legislation which must provide for:
3.) Own public law authority – organs of authority (i) withdrawal of recognition of traditional council
that exercise authority within community and also (ii) consultation with provincial house of tradl leaders,
represent community against outside jural community, king and queen before withdrawal affected by
communities. Head is most important organ notice in PG

Factors influencing establishment and structure: Recognition of traditional leaders

1.) Genealogical factors - Dates back to pre-colonial times.
2.) Religious factors - New consti disp, regulated constitutionally and leg
3.) Territorial factors
Functions and roles of traditional leaders
State comprised a hierarchy of constituent jural
communities. Sec 19: A traditional leader performs the functions provided for in
- Empire terms of customary law and customs of the traditional community
- Federation of tribes concerned, and in applicable legislation
- Tribe
- District/section Sec 20(1) natl govt or provl govt may, through leg or other measures,
- Town and town wards provide a role for tradl councils or tradl leaders in respect of –
- Ward (a) Arts and culture
Organ of authority of smallest/lowest jural community (b) Land administration
subordinate to authority of next higher jural community (c) Agriculture
(d) Health
Every ward generally comprised a number of family groups (e) Welfare
(f) Administration of justice
No separation of powers. Head of comprehensive jural (g) Safety and security
community exercised exec, leg and judl functions. Lower (h) Registration of births, deaths and CMs
organs of authority had no leg functions, only exec and jud (i) Economic devt
(j) Environment
(k) Tourism
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(l) Disaster management Not SA citizen

(m) Management of natural resources Not permanently resident in RSA
(n) Dissemination of info rel to govt policies/programs - Sec 6: vacation of seats
Death of a member
Traditional councils Resigns by written notice
- In exercise of his functions, tradl leader Disqualified (sec 5)
traditionally assisted by various councils who acted Absent 3 consecutive meetings w/o leave
as advisors – 4 types: Breach of code of conduct
1.) Private council Member ceases to be member of provl
2.) General/representative council house that elected him/her
3.) Court council - Sec 11: powers and duties
4.) People’s assembly Cooperate with prov houses of TL
Consider Parliamentary Bills referred to it*
Recognition of traditional councils (Sec 3) Advise Natl govt and make
- Once Premier recognised tradl community, comm recommendations re tradl leadership and
must est a tradl council in line with provl legn customary law
up to 30 members * Referral of Bills to the National House of TL – any
at least 1/3 must be women parliamentary bill pertaining to customary law or customs
members must comprise – of traditional communities must be referred to the National
1.) tradl leaders and members of comm House of Traditional Leaders for comments
2.) selected by senior tradl leader
3.) 40% democ elected for term of 5 yrs Local Houses of Traditional Leaders (Sec 17)
- Premier by notice in Prov Gazette and in accdance - Number of members – no more than 10 or 20
with relevant provl legn, recignise tradl council - Elected by electoral college consisting of kings and
queens or their reps and senior traditional leaders
Functions of traditional councils (Sec 4) residing within the district municipality
1.) Administering affairs of tradl community in
accordance with customs and tradition
2.) Assisting, supporting and guiding tradl leaders SUCCESSION TO TRADITIONAL LEADERSHIP
3.) Supporting municipalities in identification of
community’s needs Indigenous principles of succession to tradl leadership
4.) Participatg in devt of policy and legn at local level 1.) Hereditary system; follows patrilineage
5.) Participating in devt programmes 2.) Successor is eldest son of ruler by tribal/main wife
6.) Promoting ideals of cooperative governance 3.) Other wives ranked – impt where regent appointed
7.) Performing functions conferred by customary law 4.) Sons of ruler retain rank of mothers
5.) Substitution
Houses of traditional leaders a.) Of ruler: levirate
- 2 categories: b.) Of tribal wife: sororate
1.) National house and provincial houses of
traditional leaders (sec 212, consti; Framework Reform of principles of succession
Act; National House of TL Act 22 of 2009)
2.) Local houses of traditional leaders (sec 17, FA) Shibulana v Nwamitwa: case concerned constitutionality
of principle of male primogeniture that governed
National House of Traditional Leaders (Act 22, 2009) succession to chieftainship. Ms. Shilubana was only child of
- Sec 2: establishment; term: 5 years deceased traditional leader so his younger brother
- Sec 3: composition succeeded him. Royal family passed resolutions that she
3 persons who are senior tradl leaders would succeed her uncle in line with constitutional precepts
elected by each provl house of equality. When he died, his eldest son contested her
At least 1/3 must be women succession to position. CC held that community had right
- Sec 4: election – provl houses elect from members to develop its own law and customs. Women can now also
- Sec 5: qualification – not eligible if be considered for succession in accordance with gender
Member of mun council, provl leg or Parl equality (sec 9 of consti).
Serving sentence of imprisonment
Unrehabilitated insolvent Legislative measures governing succession to TL
Unsound mind - At present, provinces are vested with power to
Convicted of criminal offence and recognise and appoint traditional leaders
sentenced to more than 12m imprisonmt
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- Provincial legislature not bound by local law of TRADITIONAL LEADERSHIP AND GOVERNANCE
succession of a particular tribe
- In practice, however, tribes are usually permitted Traditional administrative act – action of an
to nominate a person according to tribal law administrative organ, such as the chief, ward head, etc
- Although modern law occasionally provides for
observation of African law of succession, General determination Particular determination
authorities are not bound by it Applies to all subjects Applied to particular subject
- Framework Act: Rules of creation, revocation & interpretation are different
King/queen recognised by President by
notice in GG; certificate of recognition Disregard of valid determination = crime
Senior TL, headmen/headwomen recognd
by Premier by notice in PG; certificate of Validity requirements
recog; informing House of TL 1.) Author – ruler in consultation with tradl authority
2.) Form of the act
Problems in connection with succession a.) Announcement – notification
- Tribal fission in case of dispute no longer possible b.) Content – clear and understandable
– unallocated land no longer available c.) Correct procedures – must consult tradl auth
- Modern times – HC. Seldom succeeds in solving 3.) Purpose of the act – particular objective;
authorised purpose
Causes of succession disputes 4.) Consequences of the act – reasonable
1.) Traditional leader tries to divorce tribal wife a.) Consequences and effect must be possible
without cooperation of ruling family b.) Rights and freedoms of subjects must not be
2.) Traditional leader marries a wife in a civil marriage exceedingly burdened
without cooperation of ruling family. She is then c.) No unlawful discrimination
only wife and sometimes regarded as tribal wife
although in terms of customary law she is not Requirements for administrative determinations incomplete
3.) Appointment of tribal wife or other wife as regent unless law provides for methods to enforce requirements
a.) She associates with unacceptable males
b.) Refuses to cooperate with ruling family Control over TL’s administrative actions
c.) Wife who is not tribal wife tries to usurp 1.) Consultation with councils (tradl authority) –
traditional leadership for her son precedes administrative action
d.) Tribal wife opposed by deceased chief’s 2.) Mediation – intervention of 3rd party (council)
brothers and half brothers 3.) Judicial control according to customary law –
4.) Ranking of wives gives rise to disputes (order) ACL does not allow court action by subject to
5.) Temporary lack of tribal wife causes problems – oppose administrative action of ruler in tribal court
wife who temporarily took over claims position because ruler would have to act as judge and
6.) Biological paternity of successor disputed accused in same case. Can use indirect means by
7.) Witchcraft – accusations against tribal wife to raising invalidity as a defence in a crim suit
exclude rightful successor 4.) Internal review according to common law –
8.) Substitution – man/woman who acted as local magistrate, provincial minister entrusted with
substitute sometimes claim privileges of man or tradl authorities and President can review
woman for whom they substituted 5.) Judicial control according to common law –
internal review not a pre-requisite
What influence can succession disputes have on the tribal authority? a.) Review of validity of administrative act
It can bring administration to a halt, and divide b.) Interdict
the traditional authorities into opposing parties so that c.) Mandamus
nothing gets done for the community. d.) Indirect – invalidity raised as defence
Today, traditional leader is held privately and criminally
Resolution of succession disputes liable for his invalid administrative actions
- Seek to resolve dispute internally, accdg to customs
- If can’t, referred to relevant provincial house of TL Sec 6(1), Promotion of Administrative Justice Act, 2000
- Unable, referred to Premier of province concerned applies to admin decisions of TLs: any person may institute
procdgs in a court/tribunal for the judicial review of an admin action
Commission on Traditional Leadership Disputes and
Claims may decide on any tradl leadership dispute and
claims arising in any province (Sec 25) applying customary  GOOD LUCK! 
law and customs of relevant tradl community
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