An African Doctrine of Equity in South African Public Law

2013 ◽  
pp. 1-15
Author(s):  
Thomas W. Bennett
Keyword(s):  
South African ◽  
Common Law ◽  
A Priori ◽  
Full Range ◽  
Public Law ◽  
Customary Law ◽  
Range Of Functions ◽  
History Of ◽  
The Common ◽  
African Form

For the first time in the history of South African law, a typically African concept – Ubuntu – has been adopted into the common law of the land (which is a mixture of English and Roman-Dutch law). Ever since colonial conquest, the indigenous normative orders of Africa have been treated as inferior. While South Africa’s new constitutional dispensation had the effect of elevating customary law to the same status as that of the common law, the traffic of ideas between the two systems continued to favour the latter as the superior system. The reception of ubuntu into the common law reversed this process. This paper examines the function of ubuntu in its new environment. Most of the discussion about the concept has concentrated on its meaning, a question that has been concentrated on finding a suitable English translation. The most obvious have been the calques, ‘humanity’, ‘personhood’ or ‘humaneness’, but none have been especially helpful, for they cannot hope to convey the full range of functions now performed by ubuntu. It is argued in this paper that searches for a priori meanings are unhelpful: words are continually being exploited by users to serve their own particular ends. In this regard, it must be appreciated that ubuntu is a loanword, and thus especially susceptible to manipulation. The paper shows that the courts have used ubuntu to supply a peculiarly African form of equity that has been used to solve hard cases and conflicts between rules, notably in the area of public law.

Family Provision in South Africa

2020 ◽  
pp. 477-506
Author(s):  
Marius J de Waal
Keyword(s):  
South Africa ◽  
Seventeenth Century ◽  
South African ◽  
Common Law ◽  
The Other ◽  
Customary Law ◽  
Protection Measures ◽  
South Africans ◽  
The Common ◽  
Property Regime

At the time of the reception of Roman-Dutch law at the Cape in the seventeenth century, both children and the surviving spouse enjoyed sufficient protection at the death of the breadwinner (normally the father and husband): children by way of the civilian legitimate portion and the spouse by way of the matrimonial property regime of community of property prevalent in Roman-Dutch law of the time. However, after the English occupation of the Cape in the early nineteenth century this protection was slowly eroded. This happened, first, by the acceptance of the principle of freedom of testation under English influence and, secondly, by the growing popularity of ante-nuptial contracts excluding community of property. This chapter explains how family protection was gradually restored in South Africa. In the case of children, this happened by the courts awarding a maintenance claim against the deceased parent’s estate; and in the case of the surviving spouse it was by means of a statutory maintenance claim against the estate of the other spouse. South African law therefore chose the common law approach of discretionary maintenance over the civilian approach of fixed shares. The chapter sets out the respective histories of these two claims as well as their operation in modern South African law. It discusses other possible protection measures and potential avoidance mechanisms. Finally, the chapter contains a brief discussion of the position of South Africans living under African customary law and the importance of the customary law principle of ‘ubuntu’ in this context.

scholarly journals Sovereignty this Century - Maori and the Common Law Constitution

2000 ◽  
Vol 31 (1) ◽  
pp. 187 ◽  
Author(s):  
P G McHugh
Keyword(s):  
Common Law ◽  
Public Law ◽  
Capital City ◽  
Past Century ◽  
Quarter Century ◽  
Constitutional Order ◽  
The Past ◽  
The Status ◽  
History Of ◽  
The Common

This paper is an attempt to give a panorama of constitutional life in New Zealand this century as viewed through a particularly important window, the status of the aboriginal Maori people of these islands. Questions of Maori rights and their position in the constitutional order have become burning issues in this final quarter century and represent an immense challenge for the next. This exploration is particularly appropriate as we celebrate a century of law teaching in this capital city at a University which has produced many if not most of this country's distinguished and influential public lawyers. In many respects, the history we are about to review is also a history of common law constitutionalism in this country as well to a lesser extent as similar Anglophonic jurisdictions. We are looking not just at how that part of the common law we call "public law" has dealt with a particular ethnic group. Through this aboriginal window we are looking at the changing logic and reach of public law through the past century and at the nature and character of the common law itself.

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

2017 ◽  
Vol 20 ◽  
pp. 1 ◽  
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Court System ◽  
The Status ◽  
Customary Laws ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

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.

scholarly journals The Consequences of the Statutory Regulation of Customary Law: An Examination of the South African Customary Law of Succession and Marriage

2019 ◽  
Vol 22 ◽  
pp. 1-24
Author(s):  
Fatima Osman
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Successful Implementation ◽  
The South ◽  
Legal Context ◽  
The Common ◽  
Law Of Succession ◽  
Statutory Regulation

In pluralistic legal systems, the regulation of non-state law through statute carries the risks associated with codification; namely the ossification and distortion of law. This article examines the effects of statutory regulation on unwritten systems of law in the South African legal context. It argues that the constitutional recognition of customary law in South Africa has forced the state to legislate in this arena, the most notable enactments being the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The enactments' attempt to align customary law with constitutional values have imported significant portions of the common law to regulate the customary law of marriage and succession. This has resulted in a distortion of customary law to reflect common law values and rules. Furthermore, it is argued that significant lacunae in the enactments have necessitated litigation and resulted in the judiciary playing a significant role in shaping customary law. Finally, despite the incorporation of living customary law into the enactments, the implementation thereof by courts and in practice has – and perhaps inevitably so – ossified and distorted portions of the law. Nonetheless, the article argues that legislation is critical to regulate customary law. It advocates that the shortcomings identified in the article are addressed to ensure a more accurate portrayal of customary law in legislation and the successful implementation thereof.

scholarly journals Muslim personal law and the meaning of "law" in the South African and Indian constitutions

2017 ◽  
Vol 2 (2) ◽  
pp. 50
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Bill Of Rights ◽  
Muslim Population ◽  
The Common ◽  
The Republic ◽  
Law And Legislation ◽  
Personal Law

The Muslim population of South Africa follows a practice which may be referred to asMuslim personal law. Although section 15 of the Constitution of the Republic of South Africa 108 of 1996 recognises religious freedom and makes provision for the future recognition of other personal law systems, Muslim personal law is, at this stage, not formally recognised in terms of South African law. Since Muslim personal law receives no constitutional recognition the question may be asked whether the 1996 Constitution, and in particular the Bill of Rights as contained in chapter 2 of the 1996 Constitution, is applicable to "non-recognised" Muslim personal law. The answer to this question depends to a large extent on the meaning of "law" as contained in the 1996 Constitution.When the viewpoint of academic writers and the courts are evaluated it seems as if the meaning of law in South Africa is restricted to the common law, customary law and legislation. If such a viewpoint is to be followed, Muslim personal law is excluded from the scrutiny of the Bill of Rights. It is, however, inconceivable that there might be certain areas of "law" that are not subject to the scrutiny of the Bill of Rights. In this note it will be argued that Muslim personal law should be regarded as law in terms of the 1996 Constitution, or in the alternative, that Muslim personal law (or at least Muslim marriages) should be recognised in terms of section 15 of the 1996 Constitution.Due to the historical resemblance between South Africa and India the meaning of"law" as contained in the 1996 Constitution will be compared with the meaning of "law" as contained in the Constitution of India. Although the Constitution of India indirectly gives recognition to various personal laws in India, these personal laws are not subject to the provisions of the Constitution of India. Therefore, it would be argued that one should approach the Constitution of India with caution when its provisions are compared to those of the 1996 Constitution of South Africa.

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

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Gugulethu Nkosi
Keyword(s):  
South African ◽  
Legal System ◽  
Common Law ◽  
Customary Law ◽  
Bill Of Rights ◽  
Unmarried Fathers ◽  
Commission Report ◽  
The Common ◽  
State Of Affairs ◽  
Law Commission

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 Common Law in Australia: Its Nature and Constitutional Significance

2004 ◽  
Vol 32 (3) ◽  
pp. 337-355 ◽  
Author(s):  
Leslie Zines
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Public Law ◽  
Federal Law ◽  
Contemporary Debate ◽  
Policy Paper ◽  
Law And Policy ◽  
National University ◽  
The Subject ◽  
The Common

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

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