Application Of Customary Law Research Articles

The Centrality of Customary Law in the Judicial Resolution of Disputes that Emanate from it – Dalisile v Mgoduka (5056/2018) [2018] ZAECMHC

The recent judgment by the Mthatha High Court in Dalisile v Mgoduka ((5056/2018) [2018] ZAECMHC (Dalisile)) has elicited much jubilation over the permeation of customary-law principles into the judicial resolution of disputes that emanate from a customary-law context. The judgment comes at a time when common-law principles appear to have infiltrated the resolution of disputes that originate from customary law. This case paves the way and provides a foundation for the resolution of customary-law disputes within their own context. It reinforces arguments that have long been canvassed to constitutionalise customary law within its own framework. It endorses the envisioned commitment to translate into reality the “healing of the divisions of the past” as envisaged in the preamble of the Constitution of the Republic of South Africa 1996. Section 211(3) of the Constitution is distinct and prescriptive on the obligations of the courts relating to the application of customary law. Section 211(3) is in the context of pursuing the advancement of a constitutionalised system of customary law that seeks to equate the applicable laws of the Republic.This case has filled a lacuna in the application and interpretation of customary law, which has been clouded by the prism of common law. The gap was acknowledged by the court in Alexkor Ltd v Richtersveld Community (2003 (12) BLCR 1301 (CC).
 In Alexkor, customary law was affirmed as an independent and legitimate source of law that is empowered to regulate its own affairs within the framework of the Constitution. It does not have to be legitimised and validated by common-law principles in addition to the Constitution.Resolving disputes arising from customary law has been a great cause for concern. The courts have delivered many disappointing judgments in the area of resolving customary-law disputes. These judgments appear to lean towards importing common-law principles into the resolution of disputes that arise from the system of customary law. This case note does not intend to discuss these judgments in any depth as they have been dealt with elsewhere.It is thus not the purpose of this case discussion to delve into the history of customary law. Its intended focus is limited to the significant stride made by the court in Dalisile in uprooting the dominance of the application of common-law principles in the resolution of disputes that arise from the system of customary law. The objective is to generate debate on the contribution that the judgment makes to the incorporation of Africanised principles into the broader constitutional framework of the jurisprudence of our courts. The note argues that it is the Constitution that is the dominant authority over all the legal systems that are applicable in the Republic, including customary law.

Critical Investigation of Challenges in the Recognition of Customary Law in the Democratic South Africa

This paper identifies indirect colonial rule as an impediment towards recognition of indigenous authority in South Africa. Indigenous Africans have observed customary law from time immemorial in the pre-colonial era to govern its own people with success before the establishment of British colonial policies. Indirect rule treated indigenous tribal chiefs as political intermediaries, which has caused imbalance of the application of law. This policy was used as a mechanism from which apartheid emerged during the twentieth Century and changed African political identity landscape to favour imperialistic ideology. We explore potential alignment in the application of customary law with common law in our courts to mark the democratic dispensation in the post-colonial era. This paper aims to explore the implications of different legal systems used in democratic post-apartheid South Africa and which are influenced by the apartheid legacy and the failure to recognise African values and principles. The influence of western values resulted in the omission of Ubuntu humanist philosophy from the Constitution of the Republic of South Africa, 1966 (Act 108 of 1996) (hereinafter referred to as “the Constitution”).

A PERSPECTIVE ON THE DICHOTOMY OF ACQUISITION OF PARENTAL RESPONSIBILITIES AND RIGHTS BY FATHERS IN TERMS OF THE CHILDREN’S ACT AND CUSTOMARY LAW

South Africa’s legal system is pluralist in nature. It is embedded in two components, namely, customary law and the common law, which converge to form one national legal system through legislation and case law. However, the distinct development of these two components of the legal system has a significant impact on how their respective frameworks are perceived and subsequently applied in given cases. Traditional African family systems were regulated under the “banner” of customary law, but the validity of the system was ultimately decided in terms of the common law, subject to the repugnancy clause. The repugnancy clause was introduced during the colonial era and was used as a measure discarding certain indigenous African values as contrary to public policy and natural justice (see Juma “From ‘Repugnancy to Bill of Rights’: African Customary Law and Human Rights in Lesotho and South Africa” 2007 21 Speculum Juris 88). Hence, the common law was generally preferred to customary law. This state of affairs influenced the manner in which the two components of the legal system developed, entrenched an outlook of a subservient position towards African customary law particularly in relation to parental responsibilities and rights as asserted below. This position, in turn, rattles the traditional family value system of the indigenous African people.This state of affairs persists regardless of the fact that in the new constitutional dispensation, customary law has been afforded legitimate recognition. Section 211 (3) of the Constitution provides that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. Furthermore, section 39(3) recognises the rights and freedoms “that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill of Rights”.The official recognition of customary law necessitated that the application of the customary law and the common law within the same legal system be harmonised. Issues pertinent to the harmonisation of the common law and customary law were discussed in the South African Law Commission Report of 1999 (South African Law Commission Report “Harmonisation of the Common Law and the Indigenous Law: Report on Conflicts of Laws” Project 90 of 1999). One of the issues raised in the report was how to determine when the customary law is applicable (Himonga and Bosch “The Application of African Customary Law under the Constitution of South Africa: Problems Solved or Just Beginning? 2000 117 South African LJ 314). It was found that generally, the judiciary exercises its own discretion to decide when to apply the customary law (South African Law Commission Report of 1999). A constant challenge that the judiciary faces is to ascertain the customary law position in a given case. This exercise generally requires probing of both the “official” and “living” versions of the customary law. Needless to say, an investigation of this nature is complex. Normally the traditional customary law position, that is, the living customary law of the pre-colonial is considered in light of its significance in the contemporary society. The diverse plethora of customs and cultures has further compounded the process of ascertaining a customary law position of the various indigenous African groups. Finally, it is essential that the judiciary consider the manner in which a group interprets and applies a particular custom. Due to the said complexities that prevail when attempting to ascertain the African customary law position, the attitude, then is generally to adopt the apparent African customary law position.In light of the said entrenched tensions between customary law and common law in terms of application, this note seeks to explore the dichotomy of the acquisition of parental responsibilities and rights as portrayed in legislation and in terms of customary law. Specific reference will be made to the legal position of unmarried fathers in this regard. This note investigates how parental responsibilities and rights are acquired as provided for in legislation. It further examines whether, in terms of customary law, unmarried fathers can acquire parental responsibilities and rights as stipulated in the legislation.

The Development and Application of Customary Law in Vietnam: Perspectives and Challenges

The Development and Application of Customary Law in Vietnam: Perspectives and Challenges

Customary Law, Social Development and Administration of Justice in Nigeria

Customary law is the law that captures the norms, traditions and rules of behaviour of the people. It is the law propelled by the worldview, beliefs, philosophies and value system of the people. In traditional societies, customary laws were largely unchallenged save by compelling innovations that re-channeled aspects of the practices of the people and subsequently altered its traditions. Since the introduction of English law in the administration of justice in Nigeria about a century ago, customary law has been fighting for breath and a large chunk of it has not survived the conflict that was the necessary outcome of the contact. This paper has discussed the nature of justice that the hybrid legal system has produced. It has answered the question whether the judicial system that yields legal justice has produced social justice as well. It has also made projections into the future of customary law and examined the imperatives of a smoother marriage of convenience between the borrowed English legal system and native law and custom so as to achieve justice that is real and answers to the needs of the society. The topic is discussed under six sub-heads, namely: Introduction; conceptual analysis; application of customary law in Nigeria; customary law and justice; customary law and arbitration; and conclusion. Under conceptual analysis, the meaning, sources and progressive development of customary law have been examined including their relationship with the English common law. On the application of customary law, the standard requirements for the validity and enforcement of the law have been discussed critically. The capacity of customary law to produce both legal and social justice has been evaluated under the sub-head of customary law and justice while the content, context and legal status of customary arbitration and customary awards have been treated under customary law and arbitration. The co-relation between customary law and social development was examined and practical policy formulations suggested for enhancing the role of customary law in social development. The conclusion summarized salient points raised and evaluated in the work and projected the capacity of customary law to play a more pro-active role in the administration of justice in Nigeria when and after obvious negative tendencies by the operators have been eliminated or at least minimized.

Application of African Customary Law: Tracing its Degradation and Analysing the Challenges it Confronts

Historically, African customary law has occupied the lower rungs of the legal ladder, often being set aside for more formal laws. This is primarily due to the introduction of western and religious legal systems through the exploration of western nations into Africa, missionary activity and, subsequently, colonisation. However, African countries – including Kenya – are making an effort to give due recognition to customary law. This paper discusses the steady degradation of customary law from the colonial period to the promulgation of the Constitution of Kenya 2010 where there are attempts to resuscitate its application, it also discusses the challenges that the courts may face in this application of customary law today and possible solutions to these challenges.

Unraveling an Intricate Legal System: A Strategic Review of the Duality of Customary and Statutory Laws in South Sudan

In adopting legal pluralism, the South Sudanese legal system has witnessed severe gaps and challenges in the application of both customary and statutory laws. The disparity between customary law-legal practices and formal legal provisions is glaring and the plurality has had a sad effect on the efficiency of the law to meet its basic purpose – justice dispensation. The application of customary law in the traditional courts and the application of statutory law in the formal courts is a parallel process, which has inadvertently left two competing versions of justice, with that sought from customary courts repressing the rights of litigants almost constantly. The duality of laws has converged to constantly challenge the legitimacy of both systems. While the state has remained the gravity of reforming the confusion, a classical theme of conflicting positions remains visible, especially with regards to subject matter jurisdiction. The duality of the two legal systems remains unresolved and efforts to harmonize the system are still in their formative stages and have hardly improved the functionality of each system. The confusion of the two legal systems might be traced back to the start of the second civil war (1983-2005), but most importantly, the side by side existence has been extremely troubled, and always pitting the statutory courts against the customary justice. Reformers have supported both customary and the formal legal systems, however the newly adopted common law and the customary law systems are at a very nascent stage, requiring much more support. While initiatives such as the developing a customary law strategy in 2009, customary law conferences, rule of law forums and the recent ascertainment conducted by the United Nations Development Programme (UNDP) have been implemented for over a decade, there has been minimal results and the current legal system still requires support in order for South Sudan to arrive at a more acceptable and highly functional legal system. Should legal pluralism continue to be the desired legal system, then workable approaches of disentangling the duality must be explored.

Custom, Normativity and Authority in South Africa

In post-apartheid South Africa, debates about the future of the former homeland countrysides are dominated by questions about the sources of legitimate authority. Within these debates, the normative force of customary law is almost automatically paired with the institution of chiefly rule, and the two of these are usually contrasted – be it negatively or favourably – with the liberal provisions of the nation's democratic constitution. Here I contest this implicit conflation of customary order with chiefly power, whether that conflation be by advocates or critics of them both. I suggest that this unspoken identification of the normative domain with that of sovereign political power overlooks a point that is increasingly prominent in the literature on ‘living customary law’: the argument that customary law draws force from a multiplicity of authorities, through processes that are ultimately embedded in the everyday constitution of the social world itself. Based on ethnographic research in northern KwaZulu-Natal, I argue that the application of customary law by diviners, who mediate the authority of the dead in familial matters, is at least as, if not more, important than chiefship in the constitution of living customary practices.

CONFLICT BETWEEN CUSTOMARY LAW AND HUMAN RIGHTS IN CAMEROON: THE ROLE OF THE COURTS IN FOSTERING AN EQUITABLY GENDERED SOCIETY

Cameroon's legal system is partly a product of colonialism. Colonialism resulted in the imposition of extraneous legal values in the territory. In addition to those values, customary law and human rights are also recognized. Cameroon's legal system thus consists of a mosaic of rules. Among those rules, customary law and human rights have a problematic relationship because many of their values conflict. Some customary values offend human rights and adversely affect the status of women. Although attempts have been made through the legislative process to eradicate discriminatory customary values, in practical terms, little or no success has been achieved. Consequently, the courts have assumed the role of ensuring that customary law responds to the dictates of human rights through the adoption of an egalitarian jurisprudence in the application of customary law. The courts rarely expressly use the language of human rights in the determination of cases; however, by applying the repugnancy test, the courts have at least inadvertently introduced the language of human rights into their jurisprudence. The courts' gender-sensitive approach in the enforcement of customary law has an impact on women's rights. This article suggests that the work of the courts should be complemented by other gender-based initiatives.

Diversity in Democracy: Accommodating Religious Particularity in Largely Secular Legal Systems

The articles assembled in this symposium share their roots in a workshop we organized at the International Institute for the Sociology of Law (IISJ) in Onati, Spain, in June 2011. The workshop, titled “Legal Pluralism and Democracy. When Does Legal Pluralism Enhance, When Does It Erode Legitimacy of and Trust in Democratic Institutions?” examined the consequences of legal pluralism for various facets of democracy, from human rights and political equality to issues of stateness, legitimacy, and self-determination. Half of the papers discussed the application of customary law in pluri-legal systems, particularly in Africa and South America, while the other half dealt with the application of religious law, especially in Muslim-majority countries as well as Israel and India.Other papers presented at the workshop have been published in the IISJ's “Oñati Socio-Legal Series” on the Social Science Research Network and are available for download at http://papers.ssrn.com/so13/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=1605943.The three articles featured in this symposium address how the law may take account of diversity in the face of the democratic promise of universal rights standards: they probe the question of how to accommodate cultural particularity while also delivering upon the promise of universal and equal citizenship. Both are crucial sources of legitimacy of and trust in democratic political systems, even while they are also often mutually exclusive standards.

Los conocimientos tradicionales y el régimen legal de acceso y distribución de beneficios

La ponencia pone en evidencia los intereses entorno al acceso a los conocimientos tradicionales de las comunidades indígenas y locales y marca la necesidad de definir los institutos en juego para dar una respuesta legal eficiente en el marco político, científico y económico. Pasa revista, críticamente, a los conceptos que han sido desarrollados entorno de la temática en los ámbitos internacionales, regionales y locales, y desarrolla la tesis de la aplicación del derecho consuetudinario en especial en lo atinente al consentimiento fundamentado previo y la distribución de beneficios. Sin desdeñar el tratamiento de los conflictos planteados, y los que se avizoran en un inminente futuro, se abordan las implicaciones y escenarios en los que la determinación de los Estados y de los organismos internacionales han de enfrentar en la materia.

The significance of South Africa's Traditional Courts Bill1 to the challenge of promoting African traditional justice systems

ABSTRACT The tabling of the Traditional Courts Bill before South Africa's Parliament is part of a larger collective effort of the legislature to enhance the essential role of traditional leadership and customary law (intertwined principles) in the advancement and consolidation of democracy and justice. The Bill is set against a continental imperative to undo the distortions effected on African traditional justice systems by decades of colonialism and apartheid, and offer a path of renewed growth and development. This article explores the extent to which the Bill succeeds, and more generally, the extent to which the enactment of legislation, without more, is sufficient to weave traditional leadership and customary law into the fabric of South Africa's new democracy. The article also questions whether limiting the Bill's application to communities historically subject to the jurisdiction of traditional leaders under apartheid serves today's constitutional objectives. Or is it a post-apartheid endorsement of separate development? It is argued that this limited and racialised application of customary law entrenches the legal separateness characteristic of colonial/apartheid rule. If passed in its present form, the legislation will not adequately contribute to the development of customary law and will undermine the constitutional mandate that all courts apply customary law where applicable, and that customary law be afforded equal respect.

« Le délit d'abandon de domicile conjugal » ou l'invasion du pénal colonial dans les jugements des « tribunaux indigènes » au Soudan français, 1900-1947

This article aims to examine the interplay between customary law, colonial law, and French law through the study of court cases of female desertion in the region of Kayes in French Sudan (now known as Mali) for the period 1900-1947. In 1903, a new colonial legal system was decreed in French West Africa. The new legislation guaranteed that the colonial courts would enforce African customs for African subjects. In order to facilitate control over colonial courts and the application of customary laws, the colonial administration was eager to formalize and unify the content of customary laws. This formalization relied on what the "traditional power," the jurisprudence of colonial courts, and the colonial administration viewed as customary law. This process ultimately led to a kind of "invention of tradition" pertaining to family law, which with the help of "traditional power" entailed the penalization of female desertion. The colonial and local considerations of power control in the region entailed increasing restrictions over women's mobility. From 1910 onward, wives accused of desertion were increasingly forced by the colonial courts to return to their husbands. If they refused, from 1914, the court started sending them to prison. Both "traditional power" and the colonial administration had agreed to declare female desertion as being henceforth a "customary offence."

Competition and Interaction between State Law and Customary Law in the Court Room: A Study of Inheritance Cases in Indonesia

This paper aims to explain the competition between various legal systems in a district of Indonesia as manifested in courtroom hearings. In lawsuits concerning inheritance women deny the applicability of the whole or a part of the substance of Batak customary law, according to which a woman is not an inheritor, and seek protection from state institutions. On the other side their male opponents seek to insist on the application of customary law. However, for women the state legal institutions are unfortunately almost unreachable. As a result of the corruption of bureaucracy during the past 30 years, the route is very tiring and expensive.Women who take their cases to state courts fall into two categories. Older women and widows are driven to come as a result of long suffering from domestic violence. Younger women come out of choice: as agents of social change they brave the risk of high social loss to claim inheritance rights under state law. I find that nine out of ten cases decided in the Supreme Court are won by women. This success for women is a consequence of earlier judge-made law. The earliest decision declaring Batak women to have inheritance rights equal to those of men was given in 1961, and there have been many subsequent Supreme Court decisions confirming women’s rights as inheritors, displaying an interaction between national legal institutions and local customary law.However, women have experienced these dispute settlement processes painfully. Cases can last 25 to 30 years. In one case studied the woman (claiming a share of her deceased father’s property) died during the process and the litigation was continued by her daughter. Success for women in the state courtroom does not mean that gender justice is fully effective. Women’s daily experiences still include much conflict and disputing over inheritance, and women, especially poor widows, continue to suffer from discrimination in this field.

Its a ‘Black Thing’: Upholding Culture and Customary Law in a Society Founded on Non-Racialism

ABSTRACTThis article engages with the racial distinction inherent in legal dualism and the application of customary law, and questions the justification for upholding this distinction in a society founded on non-racialism. After exploring the theoretical foundations of racialism and the links between racialist and culturalist ideology, the article engages in a brief historical overview of legal dualism in South Africa before investigating the manifestation of racialist ideology in legislation and judicial decisions involving the recognition and application of customary law. Concluding that upholding legal dualism frustrates the constitutional founding value of non- racialism, the article then contemplates instances of unfair discrimination on the ground of race relating to various aspects of legal dualism, choice of law as well as customary rules themselves. Thereafter, the article discusses the importance of protecting cultural identity and cultural rights in the constitutional dispensation, and attempts to locate customary law within this realm of protection. Keeping in mind the constitutional imperative to develop the common law and customary law in accordance with the spirit, purport and object of the Bill of Rights, the article finally investigates ways in which cultural values and customary law could be accommodated in the South African legal system. In particular, the article argues for the harmonisation and integration of common law and customary law in a manner that allows for interaction between these systems without perpetuating legal dualism.

Is there a role for the application of customary law in addressing aboriginal criminality in Australia

In the past decade, there has been no shortage of empirical evidence that supports the poor health, education, and employment prospects for Aboriginal Australians. Moreover, Aboriginal people are far more likely than non-Aboriginal people to be drawn to the attention of police and taken into custody. Their presence in the criminal courts is disproportionately high and they are vastly over-represented in prison. Commission after commission and study after study have concluded that Indigenous Australians are at vastly greater risk of threat to life, victimization, and health than non-Indigenous Australians. This essay argues that there are grounds for greater recognition of Aboriginal customary law as a means of addressing the malaise. It reviews the political and legal climate in which such responses to Aboriginal criminality are currently being addressed.

Conflict of Laws — The Application of Customary Law and the Common Law in Zimbabwe

Conflict of Laws — The Application of Customary Law and the Common Law in Zimbabwe

Codification of Customary Law

During the past 50 years, the study of African customary law has been enthusiastically pursued. The growing awareness of this subject has, at the same time, stimulated a critical awareness of the problem of its place in the legal system of an African state. With the attitudes of modern African nations, the place of customary law is necessarily an ambiguous one. Because the colonial governments' application of customary law and European law was determined, primarily, by the race of the litigants, this was frequently perceived as discriminatory and, hence, antithetical to the views of African nationalism. On the other hand, it is true that customary law, the law of the African people, reflects the traditional African culture, whereas the imported systems of Western European law reflect European values and attitudes. At an even more fundamental level, customary law is regarded as representing the old social order. As such, it is often perceived to be in opposition to the new social order represented by the European legal systems. The latter are usually more in keeping with the demands of modern society, particularly in the public and commercial sphere, whereas customary law is suited, rather, to the simple, face-to-face societies of the eighteenth and nineteenth centuries.

The Swazi Law of Succession: A Restatement

The question, “What is customary law?”, poses a number of different problems. It can (and no doubt it will) give rise to answers which stem from differing interpretations of the sort of discussion that it is attempting to stimulate. It is fair to suppose that some of these will deal with the jurisprudential aspects of customary law, and its relation to other branches of the law. Others may cover the purely procedural and administrative factors that govern the application of customary law in various countries. And yet others may choose to emphasize the changing nature of customary law and the doubts which surround the precise details of its future in many contemporary countries.