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 A. INTRODUCTION

a) Welcome to Indigenous Law

b) This is a very interesting Module, for a number
of reasons:

1) It is interdisciplinary: it is a combination of
many disciplines [history, law, jurisprudence,
sociology, anthropology and politics].

2) Also, there are many areas of contention and

disagreement.
c) It is important, though, to note that LAW
will be the focal point of the Module.
d) Answers – and contentions and
submissions in Tests and Assignments
th
- must be supported by legal or judicial
authority [(1)legislation, (2) case law, (3)
books and (4) journal articles].
e) Please ensure that you get the
following: 1) Learning Guide
2) The Prescribed Book (the latest edition:
6 Edition) 3) The correct Test/Assignment
dates.

B.PRELIMINARY POINTS 1
a) South Africa is a multi-lingual and multicultural country.
b) Broadly, there are four race groups – (1) Black, (2) Coloured, (3)
Indian and (4) White.
c) There are eleven official languages.
d) Black people, themselves, are divided into many groups, and
clans, who speak 9 different languages, and several dialects.

e) Terms like “black”, “African” and “indigenous” are used

interchangeably. And, it is important to understand them in this
context.

f) The Module known has been called different names at

different institutions - and by lawyers and judges. (1) African
Law; (2) African Customary Law; (3) Customary Law; (4)
 Indigenous Law, and (5) Legal
Pluralism. Which one do you prefer?
Why?

This is largely influenced by ideology

and world view of those involved.

C. THE HISTORY OF LEGAL PLURALISM IN

SOUTH AFRICA
a) The history of South Africa, in general, is
one of many contested terrains.
b) There are many differing/conflicting views
on it.
c) But there are common features in the
customs and usages of indigenous
African people of South Africa.
1) Black people – including the Khoi and
Sans – are indigenous to – or the
aboriginal peoples of South Africa.
2) White people came to SA at different
times; and below are the important
dates to consider:

i. 1488: Bartholomeu Diaz: arrives in the

Cape.
ii. 1497: Vasco Da Gama arrives in Natal.
iii. 1510: The Battle of Fish River: the Khoi-Sans defeat General
d’ Almeida – for disrespecting their rights to – (1) land, (2)
cattle, (3) oceans, (4) the rivers and (5) other resources.

iv. d’ Almeida had just come back from a successful campaign

in India. The Khois and the Sans were asserting their
rights to these resources.
v. 1652: Jan Van Riebeeck and his entourage arrive, on the
suggestion of the Dutch East India Company (DEIC) whose
only interest it was to establish a Refreshment Station, for
sailors. But, they decide to stay, and not leave.
vi. 1795: The British arrive for the first time;
and do not stay.
vii. 1806: The British arrive for the second
time, and decide to stay (and institute
direct rule); the common law is imposed
on all the
inhabitants of the Cape, including black
people – irrespective of the
consequences.

viii. The Indian people (from India, Pakistan or

the Asian subcontinent) came in 1860, and
settled in Cape Town and Durban –
 bringing with them their own religion, laws
and traditions.

ix. The Jewish people first came to South

Africa in 1669. In the
1920s, another group came from England,
Germany and Holland. And, after the
discovery of diamonds (1867) and gold
(1888), more of them came from countries
in Eastern Europe (such as Lithuania).

d) As indicated, when the British came, the

Afrikaners had already arrived.
e) The British allowed the common law
(Roman-Dutch law) to continue applying,
even where black people were involved.
f) But, that changed when they moved further
up, in a northeasterly direction (to the
present Eastern Cape and KwazuluNatal).
g) For instance, in 1864, the Customary Law
of Succession Act, and an Ordinance, was
passed in order to alleviate the harshness
of applying common law to disputes
involving succession among black people.
This is
because the local customs were so
entrenched; and could no longer be
 ignored. Direct rule was no longer
viable.
h) Ironically, the Afrikaners - did not want to
be subjected to British rule; and they
decided to move further up into the South
African hinterland.
i) That was the beginning of the Great
Trek/die Groot Trek (1835/6).
j) Some of the Voortrekkers went in a north-
westerly direction into the Transvaal (now
Gauteng and the North-west); and the
others, in a north-easterly direction into the
Eastern Cape and Natal.
k) There were about 8 wars – known as the
Frontier Wars - that were fought on the
eastern frontier - with the blacks asserting
their ownership of the land, and the
white people claiming it as theirs (as
terra nullius), as if there
was no one living there; and no laws to
speak of (lex nullius).
l) King Hintsa and the warrior Maqoma are
some of the Xhosa leaders who took up
arms in defence of their land.
m) In Natal too, there were battles between
the Zulus and the Afrikaners – and, later
with the British.
n) For instance, King Langalibalele, of the
amaHlubi was banished to Robben Island
in 1874, for taking up arms against the
British.
o) There were battles, also, with King Dingane
(at eNcome/Blood River in 1838); and with
King Cetshwayo (at Isandlwana in 1879).
p) There was Bhambatha kaMancinza Zondi
resisted the levying of poll tax against
individual members of family family. This
came to be known as the Bhambatha
Revolution of 1906.
q) There were other battles with Mzilikazi
Khumalo, in the southwestern and north-
 western sides of the country, such as the
battle of Vegkop which took place in 1936;
and the battle near Groot Marico, in 1838
when Mzilikazi and his people were forced
into Botswana. From there, they moved to
Rozvi Kingdom, now known as Zimbabwe.
r) Wherever the Afrikaners and the British
arrived, customary law was applied only
when it was not “against civilisation”. That
came to be known as the “repugnancy
clause”.
s) In a sense, customary law was made
subject/subservient to the common law –
and Western/European norms.
t) Similar wars of resistance were fought in
the Transvaal, in defence of the land, and
the dignity of the black people. King
Sekhukhune played a prominent role there.
u) There, too, Law 4 of 1885 was passed,
which made customary law subject to the
values of the white people – the Afrikaners
and the British.
v) While trying to subjugate black people, the
Afrikaners and the British were fighting
against each other (and among
themselves); and that culminated in the
“Anglo-Boer War”.
w) This war is, sometimes, referred to as the
South African War; because there were
also black people fighting on both sides of
the conflict. It began on 11 October 1899,
and ended on 31 May 1902 - after the
signing of the Vereniging Treaty.

x) Then, in 1910, the Afrikaners and the

British decided to establish the Union of
South Africa; and excluded black people
from the proceedings.
y) Hence, the formation of the African
National Congress in 1912, with the view to
agitating for the (1) return of land to its
 rightful owners, (2) respect for human dignity and (3) equality
for all inhabitants.

z) In 1927: the Black Administration Act was passed:

1) the Act gave the State President - or the Governor-General
prior to that - very wide powers. He literally had the power to
rule black people by decree (see s 5 and 25 of the BAA).
2) He was made the Supreme Chief of all black people (s 1).
i. he could change or reconfigure the borders, as he
pleased (s 5)

ii. he could appoint, recognise or depose chiefs (traditional

leaders); or determine their duties, powers and privileges
(s 2 and 7).
D. THE NATURE OF SOUTH AFRICAN LAW
a) The history, as discussed, points to the
genesis of Legal Pluralism in South
Africa.
b) At the beginning, there was the direct rule:
the common law was applied regardless of
the consequences to black litigants.

c) Later, there was indirect rule approach,

championed by Sir Theophilus Shepstone
was adopted. This was because:
 1) black people’s customs and usages
could no longer be ignored.
2) white administrators also wanted to
divide black people into tribes and
clans; and give them a false sense of
independence and control in respect of
(1) governance; (2)levying taxes and
(3) the courts, and administration of
justice
d) As a result, South Africa is a country of
many legal systems and normative values,
under one constitutional order.
e) But, the Constitution – not the common law
- is now the supreme law of the land; and
 every law, practice or custom has to
comply with it (see s 2 thereof).
f) There is, therefore - 1) The Constitution.
2) The common law (Roman-Dutch Law and
English Law, as developed by the courts
and legislation).
3) Customary law (and its many
strands/brands catering for different
communities).
4) Religious and personal forms of law, such
as Jewish Law, Hindu Law, Islamic Law.
5) There is also an overlay of statutory law
(Acts of Parliament which are intended to
repeal or modify customary law and
common law).

6) And this, is called Legal Pluralism

It is important to note that there are two types

of legal pluralism: (1) narrow or state law legal
pluralism; and (2) broad legal pluralism.

E.THE TYPES OF LEGAL PLURALISM

a) “State law” or official legal pluralism
1) It is sometimes called the “dual systems”
legal pluralism; because it often involves a
Western or European system (eg, common
law) existing side by side with an African
one (customary law).

2) It also described as the “weak” form of

legal pluralism.

3) It is based on unequal power relations

between the state and citizens.
4) It is founded on legal science; and it stands
on two pillars –
i. legal positivism; and
 ii. legal centralism.

5) Legal positivism means that the law must

–
i. be contained in a tangible form;
ii. or flow from a verifiable source, such
as (1) legislation, (2) judicial precedent,
or (3) old Roman-Dutch sources.

iii. For that reason, morals and ethics

cannot be a source of law.
6) Legal centralism means that the law must
issue from, and be sanctioned by, an
 official source (eg, (1) Parliament, (2)
provincial legislature or (3) local council).
7) In other words, the validity of the law is
based on –
i. the “source doctrine” (what is the
source?) and
ii. the “recognition rule” (is the law which
grants recognition?)
7) In other words, the laws derive their
pedigree from a recognised person or
source – to be valid.
8) Under the current constitutional
dispensation, Parliament derives its
powers from the Constitution.
b) The broad or unofficial type of legal
pluralism
1) This is type of legal pluralism is often
referred to as the strong form of legal
pluralism.

2) It recognises the factual situation which

exists within a particular country. It is a
socio-legal phenomenon.

3) This is because it recognises all forms of

normative standards; whether flowing from
state
organs, or non-state authorities (or from
semi-autonomous social fields), such as
 priests, rabbis or imams or other
community leaders (eg, headmen and
headwomen).

4) It is not based on unequal relations (as

between the state and the citizens).

5) Except for a few instances, South Africa

seems to be leaning towards weak or
state-law legal pluralism.
6) In other words, there has to be legislation
or court judgments for a particular brand of
personal or religious to be recognised.
 7) The Constitution is the original source of
authority for all the laws, regulations,
customs and practices in the country.

8) And, so far, only the common law and

customary law are fully recognised
under the South African constitutional
order.

9) But, for exceptions see –

i. Ryland v Edros 1997 (2) SA 690

 (CC) ii. Daniel v Campbell NO and
Others
2004 (5) SA 331 (CC) iii. Khan v Khan
2005 (2) SA 272 (T) iv. Hassam v Jacobs
2009 (5) SA 572
(CC)
v. SJ v SE 2021 (1) SA 563 (GJ)
In these cases, the courts were accept and
recognise some or other aspect of Islamic
Law, in order to protect the interests of the
wife and the children involved.
F. LEGAL PLURALISM IN SOUTH AFRICA TODAY
a) State-law/official/weak/shallow pluralism.
1) The South African law is an admixture
of:
i. the common law (Roman-Dutch Law and English Law as
developed by the courts; and amended by legislation), and
ii. customary law (the official and the living version thereof).
2) Section 211 (2) of the Constitution allows the communities to
develop – or amend - their version or brand of customary law.
3) Section 211 (3) enjoins the courts to apply customary law
subject to –
i. the Constitution; or ii. any law that
deals with customary law.
4) These laws include the –
i. Law of Evidence Amendment Act 45 of 1988.
ii. Recognition of Customary Marriages Act, and
iii. Reform of the Customary Law of Succession and
Regulation of Related Matters Act 114 of 2009).
5) Customary Law is now fully recognised source of law. But
which version of “customary law” is it?

6) It seems Western norms still hold sway in this regard.

 7) The Act referred to above make reference to the (i)
Constitution, (ii) Bills of Rights, (iii) divorce, and (iv)
antenuptial contracts - which are all Western
phenomena.
8) In other words, a new hybrid system seems to be
emerging, which is a combination of the common law
and customary law.

G.THE DIFFERENT ELMENTS OF SOUTH AFRICA’S LEGAL

PLURALISM
a)As indicated above, in South Africa there is
1) Common law (Roman-Dutch Law and English Law, as
developed through case law, and modified by legislation).
2) customary law
3) Islamic Law 4) Jewish Law 5) Hindu Law
6) People’s Law

H.PEOPLE’S LAW
a) It is also important to understand the phenomenon called
“People’s Law”.

b) It emerged in the 1950s, but gained prominence in the 1970s

and 1980s, in South Africa’s townships.
c) It developed in response to the failure of the colonial and
apartheid governments to protect black people.
d) The police and armed forces existed, mainly, to protect the
white community. For black people, crime is not a post-1994
phenomenon. Cf electricity and other infrastructure.
3) Therefore, members of these communities decided to set up,
alternative structures, such as (i) makgotla, (ii) street
committees; (iii) block committees, (iv) and peoples’ courts
- to deal with crime in their communities. In some of the
townships, self-defence units were set up.

4) The setting up of these structures was, depending on the

circumstances, viewed as (1) treason, (2) sedition or (3)
contravention of some or other statutory provision (eg, (i) the
Communism Act 44 of 1950 and the Terrorism Act 83 of 1967
 – which were later consolidated, and
renamed the Internal Security Act 74 of
1982.
In this regard, see –
1) S v Mayekiso 1988 (4) SA 739 (W) (where
the setting up of these structures was found
to amount to treason).
2) S v Zwane 1989 (3) SA 253 (W) (where
these acts were held to be seditious; an act
less serious than treason).
3) The Traditional Courts Bill, after its many
incarnations, still has not been
promulgated yet.