South Africa

795. A Coercive Form of Legal Pluralism. South Africa has a diverse legal history. Its present legal system has its origins in Roman Dutch law (from the Netherlands) but with a strong infusion of English common and statute law. In addition there is provision for the recognition of the customary law of the Bantu (or Blacks). There is thus, in one sense, a ‘pluralist’ legal structure with not only separate laws but a separate court structure for the Blacks. The rationale for this form of legal pluralism, is, of course, the political doctrine of apartheid or ‘separate development’, which:

envisages the distinctive evolution of the different South African racial groups, and more particularly, as far as the African is concerned, ‘progression’ from an ethnic base to realise his aspirations within his ‘historical homelands’.[1207]

The Government has thus been a strong proponent of tribalism and of the application of indigenous customary law. A key feature of the South African .position is its coercive character. The recognition of indigenous customary law is a vehicle for avoiding the recognition of the equality of all South Africans, and is accompanied by rules maintaining the superiority of the ‘white’ legal system and its rules.[1208] By contrast, many other African countries have, since independence, opted for integrated legal systems, partly in response to the demands of ‘nation-building’, partly as a reaction against pluralism as a form of ‘separate development’. Some of the states in Nigeria have for example abolished customary courts, preferring instead that customary law be applied in the ordinary courts. Tanzania, Uganda, Zimbabwe and Kenya have also opted for integrated court systems.[1209] The Northern States of Nigeria, on the other hand, have retained customary courts and worked on improving them.[1210] Other African countries have excluded customary law completely or modified its recognition to meet their new situation.[1211]

796. Customary Law and Separate Courts. The recognition of customary law in South Africa is provided for in the Black Administration Act 1927. This Act establishes four courts whose jurisdiction extends only to Blacks.[1212] These courts are Chiefs Courts (s 12), Divorce Courts (s 10(1)), Commissioners Courts (s 10) and an Appeal Court for Commissioners Courts (s 13). There is, a fight of appeal to the Supreme Court (s 14) although customary law, unless specifically established in statutory form (e.g. Natal Native Code), will only be applied if there has been evidence of its existence and applicability in the lower court. All of the courts specifically created for Blacks may apply customary law. At the lowest level a chief or headman may be authorised by the Minister ‘to hear and determine civil claims arising out of Black law and custom’ (s 12). A chief or headman may also be granted jurisdiction, pursuant to s 20:

to try and punish any Black who has committed, in the area under the control of the chief or headman concerned –

(i) any offence at common law or under Black law and custom …

(ii) any statutory offence.

Certain offences are specifically excluded from a chief’s jurisdiction and his punishment powers are also circumscribed. Above the chiefs’ courts in the hierarchy of Black courts are the Commissioners’ Courts. These are ‘courts of law’ with both an original criminal and civil jurisdiction and they also provide an avenue of appeal from the chiefs’ courts. Commissioners’ courts are given a wide discretion in the application of custom (s 11):

Notwithstanding the provisions of any other law, it shall be in the discretion of the Commissioner’s Court in all suits or proceedings between Blacks involving questions of customs followed by Blacks to decide such questions according to the Black law applying to such customs except in so far as it shall have been repealed or modified: Provided that such Black law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles.

In determining relevant customs Commissioners’ Courts and the Appeal Courts may call on Black assessors to act in an advisory capacity (s 19). Commissioners are not required to have any specialist knowledge of ‘Black law or custom’. Although they have the same qualifications as magistrates, they are public servants and do not have the independence of judicial officers. Their lack of training and inexperience has been the subject of much criticism:[1213]

This inadequacy is reflected in their failure on the one hand to evolve meaningful rules for the choice of legal system and on the other hand, failure to adapt indigenous rules to modern settings.[1214]

Criticisms of the way in which s 11 has been interpreted are similarly widespread.[1215]

797. Conflicts over the Application of Custom. While there is apparent flexibility in the application of custom, difficulties have arisen over which system, customary law or Roman-Dutch, should be paramount in particular cases. For example, should customary law be applied, prima facie, unless clearly inappropriate [1216] or should some other principle apply? Bennett has suggested one approach:

As far as possible, the court should attempt to give effect to the litigant’s expressed choice of legal system, but, in the absence of any such choice, it will be compelled to consider the facts as a whole and, after weighing them, objectively determine which legal system is favoured by the preponderance of the connecting factors.[1217]

There are also doubts over the meaning of the ‘repugnancy clause’. But much more basic questions arise as to the suitability of recognising custom in this way in South Africa. Most Blacks no longer live in rural areas but in urban, industrialised areas. There is also now much greater mobility between rural and urban areas:

The migrant workers return to the reserves, bringing with them new ideas acquired in the city. These have a considerable impact on rural life. Living patterns are changing, the patriarchal power is waning, the family group is smaller, and polygamy is almost non-existent …[1218]

Such changes have had significant impact on laws, customs and traditions particularly in the area of family and marriage laws. Such changes make the application of custom more difficult: persons coming before the Black courts (either in civil or criminal matters) may well not accept that any particular customary law applied to them. In any event it is only in legal disputes arising between Blacks that ‘conflict of laws’ questions arise. If a white person is involved Roman-Dutch law automatically applies.

798. Bantustans or Homelands Areas. Development of the homelands areas (‘Bantustans’) adds another coercive dimension to the way customary law is recognised in South Africa. The Transkei Constitution Act 1963, s 50, goes further than s 11 of the Black Administration Act in relation to the application of custom:

In all suits and proceedings between parties involving or based ,on questions of Black custom the court shall apply the Black law applicable to such custom as far as is practicable in deciding such question, except where such custom is opposed to the principles of public policy or natural justice …

There is, therefore, in the Transkei Courts (and other Bantustans) a greater obligation to apply customary law than in the Commissioners’ Courts in other parts of South Africa. How significant this has in fact been is difficult to assess:

The decisions of these courts [Commissioners’ Courts and Appeal Courts for Commissioners’ Courts] are so often inconsistent that it is only with difficulty that principles governing the application of one or other legal system may be extracted.[1219]

799. Assessment. The South African system provides for the extensive recognition of a ‘customary law of the Blacks’ and for a separate system of courts to apply customary law. Quite apart from the coercive, involuntary characteristics of apartheid and the Bantustan policy, the system has many limitations. It appears that the official Black courts, especially the Commissioners courts, though primarily set up to hear civil cases between Blacks, in fact deal with very few private law disputes.[1220] In some black urban areas unofficial courts known as makgotla have been established as a self-help measure. They conduct summary trials and inflict on-the-spot punishments; their operation, and the rules they apply, are based largely on traditional customs and institutions.[1221] But, in any overall assessment, the subservience of the indigenous legal system to the general legal system and the lack of control exercised by the Blacks over their lives are critical. The ‘indigenous’ system is plainly an imposed one, dependent on the general legal system and forced to defer to it whenever conflict arises.[1222]