This suggests that official customary law depends on alien values for validity.44 The 41 Van Breda and Others Appellants v Jacobs and Others Respondents 1921 AD 330. South Africa 29 July 2019 - 12:49 By Unathi Nkanjeni A new law ends gender-based discrimination in monogamous and polygamous marriages entered into before 1998. South African customary law should be understood from the perspective of dissonance between the past and the present. and laws of the customary law of intestate succession prevailing in the Kingdom of Swaziland. While common law usually refers to judge-made law, it is used in the article to refer to the body of law that draws its values from Roman law, Roman-Dutch law and English law in the form of both legislation and precedent. Finally, chapter 6 brings the thesis to a meaningful end, by criticizing the approaches adopted by the countries of South Africa, Ghana and Swaziland in improving the rights of women as far as the customary law of intestate succession is concerned. What was once a mere separation and desertion to symbolise an irretrievable breakdown and dissolution of the marriage now has stringent legal requirements to abide by in … STELL LR, 2: 256-272. 2015. Customary law has been defined as. The position of customary law in the South African legal system has been much improved since the enactment of the new Constitution. I drew some key conclusions on the meaning and relevance of African customary law. Although customary law and indigenous law are used as synonyms in South African law, the first is preferred, since it is also the expression used in the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”). 2012. 1.3 Main features of customary law: chapter two of Customary Law and The New Millennium. Sources of South African Law . 3. The Recognition of Customary Marriages in South Africa: Law, policy and practice. Post-Apartheid and Living Law Perspectives by C. Himonga and T. Nhlapo, T., (eds.). 2019: Amendments to the Recognition of Customary Marriages Act are officially signed into law, giving women in monogamous or polygamous customary marriages in South Africa equal propriety rights over marital property. 2 Plot 10A, Jinja Road (Opposite NEMA House) P.O. CHARACTERISTICS OF AFRICAN CUSTOMARY LAW Unwritten: Their law was not recorded in written legal sources (i.e. As a constitutionally protected cultural heritage, customary law now enjoys a status equal to that of Roman-Dutch law. Studying IND2601 African Customary Law at University of South Africa? South African customary law refers to that usually uncodified legal system developed and practised by the indigenous communities of South Africa. 11 of 2009: Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009. South Africa No. South Africa. The South African Law Commission. Kenya’s section 2(5), on the other hand, is ambiguous as to whether customary international law applies and, if it does, whether it takes precedence over domestic statutes. Cases. The position of customary law in the South African legal system has been much improved since the enactment of the new Constitution. The text provides a structure for understanding the nature and overarching system of customary law, illustrating its distinctness in relation to other areas of law, and exploring the dynamic precepts and values of living customary law. My research indicates three categories of laws (excluding religious laws) in South Africa. (2017). 1.4 Place of customary law in our legal system (Mthembu, Alexkor and Bhe cases). The position of customary law in the South African legal system has been much improved since the enactment of the new Constitution. South Africa's law is sourced from (1) statutory law made by the legislative body (the most important of which is of course the Constitution), (2) common law (this includes the Roman-Dutch 'old authorities' and judicial precedent gleaned from case law), (3) African customary law, and (4) foreign and international law. Customary law is unofficial law in short. Department of Native Affairs, and The government. South African Journal on Human Rights: Vol. She explained that South Africa’s legal system is founded on the South African Constitution, 1996 and it includes customary law. South Africa’s constitution clearly lays out the role of customary international law in the domestic legal scheme. Category one is statutory laws, or state laws, which evolved from industrial European laws imposed by colonial officials. With the advent of colonialism in Africa in the middle of the nineteenth century, customary law gradually lost its primacy to the European-style legal systems and laws brought by the colonizing nations. It is the long-established customs (standards of community) of a particular place or locale that the general law regards as a lawful practice. Cape Town: Oxford University Press Southern Africa African customary law was the dominant legal system in much of pre-colonial sub-Saharan Africa. African customary wives in South Africa: Is there spousal equality after the commencement of the Recognition of Customary Marriages Act? This was the first time a South African court had to consider the extinguishment of indigenous or customary rights. legal systems, including the South African civil law, which, until very recently, perceived domestic violence as a 'private' issue between spouses which did not merit legal intervention.12 The aim of this study is therefore to survey the rules of customary law13 in See also Chuma Himonga “Taking Stock of changes to customary law in a New South Africa” in Dr G Glover (ed) Essays in Honour of AJ Kerr LexisNexis Butterworths (2006) 215. by Keith Gregory Logan | Feb 4, 2017 | Uncategorized. Customary divorces in South Africa: what women need to know Categories of law. The definition that was given to customary law by Western jurist is not the proper definition. The Constitutional Court held in Bhe that the Black Administration Act 38 of 1927 under which the Estates of Black South Africans were administered was discriminatory and therefore unconstitutional. South Africa is a mixed legal system comprising of Roman law, Roman-Dutch law, English law and African customary law. Legal pluralism is a key feature of African legal systems. Box 6198 Kampala, Uganda Phone: +256 41 255808 Fax: +256 41 347743 LawAfrica Publishing (K) Ltd Co-op Trust Plaza, 1st … As a constitutionally protected cultural heritage, customary law now enjoys a status equal to that of Roman-Dutch law. Customary law in South Africa does not emphasize on age as a primary requirement before the union, but RCMA needs the involved partners to have a minimum of 18 years. Tags: Customary law, South Africa--Transkei, South Africa. 1-24. The dissolution of customary marriages has been a hot topic of debate in South African law. Introduction. 5 Part 1: A History of Customary Law and Women’s Rights in Southern Africa 1.1 Introduction The Southern African Development Community (SADC)1 region was colonized by different colonial powers including Britain, Germany, Belgium and Portugal. statutes / law reports / textbooks) Court procedures were conducted orally Law was transmitted orally from one generation to the next Important legal principles were … Introduction. AFRICAN CUSTOMARY LAW: AN INTRODUCTION AFRICAN CUSTOMARY LAW: AN INTRODUCTION Dr. Peter Onyango (Dip, BA, BA, LIC, PHD) Published by LawAfrica Publishing (U) Ltd Office Suite No. According to customary law, no specific age requirement exists; however, the RCMA includes a minimum age requirement of 18. The official version of customary law is found in statutes, law reports, the South African Law Reform Commission, Textbooks, University lectures and other public documents. 33, No. It isn't subject to general legislation. South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans (often termed African Customary Law, of which there are many variations depending on the tribal origin). The quietly spoken Shibi is one of two women and two young girls who set South Africa's customary laws onto a new course when they decided to challenge being left out of inheritance. Customary law is only subject to the Constitution and to "legislation that specifically deals with customary law". Note that, the imposed colonial laws generally in Africa – Roman Dutch law in South Africa, Civil law in French Africa and Common law in Common law Africa are considered to be part of the problems in African … What’s more, children can now also inherit from their mother. African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives provides a clear introduction to indigenous law in South Africa. South Africa's Constitution protects customary law. Furthermore, there was an imposition of laws which were foreign at the exclusion of the laws of the indigenous people; this meant, in particular, that the local common law - which is the law that emanates from Roman-Dutch law and English law - was used at the expense and exclusion of African Customary law, which is the law that forms part and parcel of the indigenous people of South Africa. by communities indigenous to the country”. As a constitutionally protected cultural heritage, customary law now enjoys a status equal to that of Roman-Dutch law. Article: African Customary Law in South Africa. 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