Oral Law in Litigation in South Africa: An Evidential Nightmare?

Christa Rautenbach

doi:10.17159/1727-3781/2017/v20i0a3268

Abstract

In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts. 

Highlights

Customary law is a collective term for the variant of legal systems applicable to traditional communities in South Africa
The Court's sensitivity towards racial considerations is understandable in the light of the political climate in South Africa, it is difficult to see how race could not play a role in deciding the applicable legal system, because the customary law generally applies only to members of African traditional communities
The South African judiciary seems to have a disadvantage in comparison with its counterparts in traditional courts.[112]

Summary

Introduction

South Africa follows the rule of stare decisis, and precedent is an important source of law.[28] The discussion that follows deals with a few of these pioneering decisions and the principles we can glean from them The aim of this analysis is to determine if the existing evidentiary rules are appropriate to accommodating the challenges oral law presents in litigating matters involving customary law in the ordinary courts. The constitutional recognition of customary law removed only the first hurdle standing in the way of its becoming a worthy member of the South African legal order, especially in adjudicating matters involving issues in customary law.[36] It is one thing to give recognition but another thing to determine exactly what is being recognised and when it must be applied in court.

Choice of law: the when question

Ascertainment of customary law: the what question

Conclusion

Literature