Summary of Learning Unit 2 of Part 1 of TL501

THE AFRICAN COMPONENT AND ISLAMIC LAW

Students please work through TL501. This Summary may be used as a study aid only

Please bear the “Learning Outcomes” in mind as you work through the Unit.
“:LEARNING OUTCOMES
After studying this learning unit, you should be able to
• discuss the importance of oral traditions in the study of pre-literate history
• analyze the effect of colonialism on the recognition and application of indigenous law
• explain how the Constitution affected the recognition and application of indigenous
law
• explain how the Constitution affected the recognition and application of Islamic law”

Although Legal pluralism exists in the multicultural society of South Africa legal effect is given
to certain institutions of some South African communities but only indigenous African law
together with Western law are officially recognised and constitutionally entrenched as
sources of South African law.

This LU (learning unit) deals with external legal history that is the political, economic, social and
constitutional factors that contributed to the recognition and development of indigenous law.

We also look at the historical legal development of Islamic law.

2.1 INDIGENOUS LAW

Indigenous law refers to the law of the Bantu speakers who presently occupy the greatest part
of Africa south of the Sahara. There are a great variety of indigenous legal systems who share
enough common features and fundamental similarities to be regarded as a single legal family.
Therefore “indigenous law” in this module includes all the legal systems of the different
groups of Bantu speakers.

Bantu speakers came to South Africa in approximately AD 500. They originated in West
Central Africa, and from there migrated southwards and eastwards.

Indigenous law developed a long time ago. Its history can be traced to a time before there was
writing.
Important! It is necessary for students to know:

 how the legal history of pre-literate people is passed on from

one generation to the next
and
 how such history is reconstructed by scholars.
 You will also learn about the impact of colonialism on the
recognition and application of indigenous law and
 about the impact of the Constitution of the Republic of
South Africa, 1996

2.1.1 The pre-colonial era

• Legal history and oral traditions in pre-colonial
Africa

PRE-LITERATE TRADITION - The Bantu speakers have a preliterate

tradition (a tradition without writing). The history of indigenous law can
be traced back to a time when there was no writing.

ORAL TRADITIONS
Until approximately seventy years ago, there were no written records of their history or their
law.
Oral traditions were used to reconstruct the unwritten legal history. Oral traditions are stories
or communications from the past passed on from generation to generation. They are
remembered through e.g songs, legends, poems etc.

WHY WAS RESEARCH ON THE HISTORY OF PRE-COLONIAL

INDIGENOUS LAW NEGLECTED UNTIL THE 1950s?
In the 1950s research was done on the history of indigenous law. Before then such research was
neglected because people believed that history could only be based on written documents.
Research by historians was not undertaken for the following reasons:

 historical facts could be distorted when recounted

orally;
 human memory alone was regarded as unreliable; and
 there was uncertainty about what method should be
used.
HOW WERE THESE OBJECTIONS TO RESEARCH OVERCOME:
These objections to the study and teaching of pre-literate African history were
overcome by
̵ making use of an interdisciplinary approach, by using the
source material of other disciplines such as ethnography
and archaeology; and
̵- by the critical analysis and comparison of various oral
accounts to substantiate the information.

Today indigenous law has to a certain extent been recorded through:

 Legislation
 Codification
 Restatement.
However indigenous law is still essentially oral law which is
being handed down from generation to generation. Field
research has to be done in indigenous communities to establish what the actual
living indigenous law is.

• The Cape 1652–1795

In 1652 Jan van Riebeeck arrived at the Cape to establish a trading post and refreshment
station for the Dutch East India Company.
 Judicial administration of the Company during the period 1652 – 1795
was not well ordered.
 Courts were staffed by laymen.
 Before 1795 when the British took control of the Cape indigenous law
was not interfered with by the Dutch settlers.
2.1.2 The colonial period 1795 -1910

During this period administrators of the interior settlements and

later administrators of the British colonies to a greater or lesser extent
wanted to “civilise” the indigenous population and do away with
their so-called “barbarous” laws and customs.

GENERAL POLICY OF NON-RECOGNITION OF INDIGENOUS

LAW.
REPUGNANCY CLAUSE
There was generally a policy of non-recognition of
indigenous law. Where it was recognized, it was
subject to the strict application of a repugnancy
clause, which meant that it would apply only in as far as it
was not contrary to the Western notion of public
policy and natural justice.

1878 – Codification of Zulu Law in Natal

1883 – Codification adopted for Transkeian Territories
1899 – The Orange Free State formally recognized indigenous law.

The official founding policy towards indigenous law and the judicial
administration of the indigenous population in South Africa was set out
in colonial policies.

Change for the indigenous African people was brought about when
 South Africa became a Union in 1910
And
 In 1961 when South Africa became a Republic.
The indigenous population mostly ignored official law and
unofficial law and institutions grew in importance.
2.1.3 The post-colonial era 1910 –
(Discussion on external legal history that influenced the development of
indigenous law.)
 1905 Inter-Colonial Native Affairs Commission
recommended territorial segregation to safeguard white
interests. Segregation guaranteed white political and economic control
and shielded black majority rule.
 Policies of political, social and economic segregation led to the
promulgation of Acts that aimed at keeping blacks in a position of
subordination and also had an impact on the development of indigenous
law. The Black Administration Act 28 of 1927 was the most important
Act.

 The Black Administration Act 38 of 1927 - The

Act was promulgated to provide a uniform approach throughout South
Africa to the recognition and application of indigenous law.

The Act consolidated the colonial legislation. It provided for limited

recognition of Indigenous law throughout the Union of South
Africa subject to the repugnancy clause in s11(1).

The Act provided for the creation of a separate court system for
blacks.

Commissioners’ courts and courts of chiefs and headmen were

established as special courts of first instance where both parties
were black. Blacks were not allowed to approach the magistrates’ court of the
area if there was a commissioners court in the area.

Officials and chiefs who presided at special courts and who were
appointed in terms of the Act exercised their functions under state
control. This had an effect of indirect rule by the State.
 Commissioners’ courts eventually lost all credibility largely due to the
enforcement of pass laws, which was included in their criminal
jurisdiction. They were criticized for their lack of judicial independence in
criminal cases.

•Special Courts for Blacks Abolition Act 34 of

1986
This Act was promulgated as a result of the 1983 report of the Hoexter
Commission which found :
 that it was unrealistic and unreasonable to restrict urban blacks to
commissioners courts in the case of civil litigation.
 that separate criminal courts for separate groups of people were
unnecessary, humiliating and repugnant.

Changes introduced by the Act:

 The Act abolished Commissioners’ courts
 The Act repealed section 11 of the Black Administration Act (the
repugnancy clause). The repugnancy clause was taken up in section
54A(1) of the Magistrates Courts Act 32 of 1944, which was later repealed
and now is in the Law of Evidence Amendment Act 45 of
1988, which still applies. The Law of Evidence Amendment Act does not
require that parties to a suit must be black before indigenous law may be
applied.

The application of indigenous law was limited by the above Acts as

the Acts determined where, when and how indigenous law could
apply.
Indigenous law was adapted and distorted as a result of the implementation of
the Black Administration Act and other legislation.

Despite State intervention Chiefs’ courts adapted to the new circumstances

and overcame the stigma of colonisation, indirect rule and apartheid. Chiefs
courts still play an important role in indigenous communities.
After investigation the Law Reform Commission drafted the Traditional
Courts Bill, 2008. The Bill has been re-drafted several times. The latest draft
has not yet been put before Parliament.

2.1.4 The constitutional era

2.1.4 - The Constitutional era (1990s) –

 Indigenous law was recognised as a source of South

African law in s211(3) the Constitution of the Republic
of South Africa, 1996

 and the rights of a person to his culture and cultural

practices are protected in ss30 and 31 of the
Constitution.

The fact that Indigenous law is recognised as a source of South Africa

theoretically puts Indigenous law in the same position as Roman-Dutch
common law. All legislation which is against the Constitution is slowly being
abolished.

The application of indigenous law is subject to the Constitution and any

legislation that specially deals with indigenous law.

The fact that indigenous law is subject to the Constitution

means, inter alia, that:

 indigenous law should be examined carefully in order to see if it

complies with the equality clause and

 many indigenous law rules may be found to fall short of the standards set
in the equality clause. e.g.Bhe case 2005 the Constitutional Court held that
 the rule of male primogeniture as applied in indigenous law of succession
is unconstitutional as it discriminates unfairly against women and extra-
marital children and it should be abolished. As a result of this judgment
the indigenous law of succession was investigated by the Law Reform
Commission and its recommendations resulted in the promulgation of the
Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009 . The purpose of the Bill is:

- to give effect to the Judgment of the Bhe case

- to abolish the customary rule of male primogeniture in

indigenous law of succession in order that indigenous law of
succession will comply with the Constitution

The fact that in terms of s211(3) of the

ConstitutionIndigenous Law is also subject to “any
legislation that specifically deals with customary law”means
that the Law of Evidence Amendment Act that contains the repugnancy clause
still applies.

All legislation that is against the Constitution is slowly being amended or

abolished. e.g. the recent Repeal of the Black Administration Act and
Amendment of Certain Laws Act 28 of 2005. In the preamble to this Act the
reasons for the abolition of the Black Administration Act are set out as

 “it is repugnant to the values set out in the Constitution” and

 because it is a reminder of “past divisions and discrimination”.

Clearly Indigenous law will play an important role in the future development of our legal system

.
2.2 Islamic law
Islamic law is not officially recognised as part of
South African law
 Before the constitutional era

The first Muslims who reached the Cape in the 1650s were Soldiers from Ceylon
employed by the VOC to protect the Dutch settlement.

Personal laws of Muslims were not recognised from the earliest days when the Dutch
settled at the Cape. Spouses in Muslim marriages and also children from such
marriages were regarded as having been born out of wedlock and suffered greatly as a
result of this situation. Recent legislation has improved the position of Muslim
wives and children but Muslim marriages are still not officially recognised today.

The conflict between the underlying values of Islamic law and the values that
underlie Western common law are felt mostly in the fields of marriage and the
law of succession.

What are the conflicting values?

Originally it was the courts attitude that Muslim marriages were potentially
polygymous and therefore against public policy.

Students please study the finding of the Court in the case of Ismail v Ismail.

 The Constitutional era

During the 1990s the High Court showed its willingness to embrace a new
approach to Muslim marriages
This is clearly shown in the cases of In the 1997 case of Ryland v Edros
1997 (2) SA 690 (C0 and in the 1999 case of Amod v Multilateral
Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA).

In the 1997 case of Rylandv Edros 1997 (2) SA 690 (C) the court stated
that the values of human dignity, equality and freedom must always be
at the forefront when the Constitution is interpreted.

In the 1999 case of

Amod v Multilateral Motor Vehicle Accidents
Fund 1999 (4) SA 1319 (SCA).the Supreme Court of Appeal
recognised a Muslim widow's claim for loss of support as a result of
the unlawful death of her husband.

In the
2004 case of Daniels v Campbell NO 2004 (7) BCLR 735 (CC)
the Constitutional Court held that the natural interpretation of the word
``spouse'' in the Intestate Succession Act 81 of 1987 and the
Maintenance of Surviving Spouses Act 27 of 1990 should include
partners in a monoganous Muslim marriage (that is a marriage where
one man is married to one wife).

2009 in the case of Hassam v Jacobs and Others (2008) 4 All

In the

SA 350 (C) the Constitutional Court declared section 1 of the Intestate

Succession Act 81 of 1987 was constitutionally invalid because it
excluded widows in polygynous marriages from the benefits of the
Act.

The Court held that this defect should be remedied by reading in the words “or
spouses” after every use of the word “spouse”.
Spouses in a polygynous Muslim marriage should
be given the same benefits enjoyed by the surviving spouses in a de facto
monogamous Muslim marriage.

The Court further held that in cases where estates that had not been
finally wound up, the declaration would have retrospective effect to 27 April
1994.

In summary the court held that the exclusion of “spouses in

polygynous marriages” from the benefits of the Intestate
Succession Act is inconsistent with the foundational right to
equality before the law and equal protection of the law. This
discrimination against women in polygynous marriages is unjustifiable and
amounts to a violation of their right to equality and human
dignity.

Students please note that Islamic law is not recognised as a source

of law in South Africa, despite the above judgments.

The South African Law Reform Commission has recommended in a

proposed Bill on the Recognition of Islamic Marriages that
polygynous Muslim marriages be recognised.

The Bill also makes provision for among other things, the status and
capacity of the spouses and the dissolution of Muslim marriages.
Parliament has not yet approved the Bill.

Please complete Activities 2.1 and 2.2, compare your answers to Feedbacks 2.1
and 2.2. Please also answer the self-assessment questions and the “Learning
Outcomes” questions.