Ascertainment Of Customary Law: Case Note on MM v MN

Abstract Civilians who bring claims against powerful states or their officials, for harm resulting from the conduct of war, face challenges that no single legal procedure can possibly overcome. Certain codified international laws outline specific protections for civilians, but this protective infrastructure stands in the shadow of two creatures of uncodified international customary law: state sovereignty and the immunity of states and their officials. The subject of this case note is a civil claim before a Dutch domestic court, against powerful officials of the state of Israel. The claimant, a Palestinian Dutch national, is attempting to sue the officials for the unlawful killing of six members of his family in the intentional bombing of their home in Gaza in 2014. In January 2020, he set out to establish the Dutch court’s jurisdiction based on an exceptional provision of the Dutch Code of Civil Procedure. This contribution argues that the Dutch court erred in allowing the asserted ‘functional immunity’ of the foreign officials to counter its own jurisdiction.

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

Obiter ◽

10.17159/obiter.v40i3.11199 ◽

2019 ◽

Vol 40 (3) ◽

Author(s):

Nomthandazo Ntlama

Keyword(s):

South Africa ◽

Common Law ◽

Case Note ◽

Customary Law ◽

Legal Systems ◽

Case Discussion ◽

High Court ◽

The Past ◽

History Of ◽

The Republic

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.

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The Judgement of the International Criminal Tribunal for the former Yugoslavia in the Vasiljević Case

Leiden Journal of International Law ◽

10.1017/s092215650300116x ◽

2003 ◽

Vol 16 (2) ◽

pp. 321-330

Author(s):

ELENA MARTÍN SALGADO

Keyword(s):

International Law ◽

International Criminal ◽

International Criminal Tribunal ◽

Trial Chamber ◽

Case Note ◽

Customary Law ◽

Former Yugoslavia ◽

Customary International Law ◽

State Practice ◽

Key Aspects

This case note focuses on two key aspects of the Vasiljević Judgement. The first one is the accused's acquittal of the charge of ‘violence to life and person’ under common Article 3 for the reason that the trial chamber was not satisfied that it constituted a crime under customary international law. The second aspect is the trial chamber's analysis of state practice to identify the definition under customary law of extermination as a crime against humanity.

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The “Magda Maria” and Customary Law at Sea - a case note

Netherlands Yearbook of International Law ◽

10.1017/s0167676800003044 ◽

1982 ◽

Vol 13 ◽

pp. 143 ◽

Cited By ~ 1

Author(s):

H. Meijers ◽

R.C.R. Siekmann

Keyword(s):

Case Note ◽

Customary Law

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Takamore v Clarke: An Appropriate Approach to the Recognition of Maori Custom in New Zealand Law?

Victoria University of Wellington Law Review ◽

10.26686/vuwlr.v44i1.5006 ◽

2013 ◽

Vol 44 (1) ◽

pp. 141 ◽

Cited By ~ 1

Author(s):

Laura Lincoln

Keyword(s):

New Zealand ◽

Common Law ◽

Case Note ◽

Customary Law ◽

Modern Approach ◽

Majority Judgment ◽

The Common ◽

Appeal Decision ◽

Court Of Appeal

This article reads as an extended case note on the majority judgment of the 2011 Court of Appeal decision, Takamore v Clarke. This case highlighted the tension between the application of the common law relating to burial and the application of Māori custom, and presented the Court of Appeal with difficult questions regarding the recognition of Māori custom by the common law. The majority treated Māori custom as analogous to English local custom, calling for the custom to meet a list of requirements in order to be recognised as part of the New Zealand common law. The Court held that Tūhoe burial custom did not meet all of the requirements for recognition and so could not be recognised. Nevertheless, with the view that custom should still be taken into account, the Court proposed a "more modern" approach to customary law. This article begins by considering the appropriateness of the analogy drawn by the Court to English local custom, with reference to the historical judicial application of Māori custom in New Zealand. It then critically analyses the application of the authorities cited by the Court. Finally, this article explores the effect of the majority's "more modern" approach on the treatment of Māori custom in New Zealand law. The article contains a postscript pertaining to the Supreme Court's more recent decision.

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Integration of the Bride as a Requirement for a Valid Customary Marriage: Mkabe v Minister of Home Affairs 2016 ZAGPPHC 460

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad ◽

10.17159/1727-3781/2018/v21i0a1737 ◽

2018 ◽

Vol 21 ◽

pp. 1-15

Author(s):

Pieter Bakker

Keyword(s):

Case Note ◽

Customary Law ◽

Essential Requirement ◽

Daunting Task

Since the Recognition of Customary Marriages Act 120 of 1996 was promulgated in 15 November 2000 the courts are faced with the daunting task to determine whether a customary marriage is valid under the Act. The courts find it troublesome to determine exactly what the essential requirements under the living customary law are. One of the issues the courts have to deal with is the question whether the incorporation of a bride into her husband's family is an essential requirement for a valid customary marriage or can the families waive the requirement or condone non-compliance? The court in Mkabe v Minister of Home Affairs [2016] ZAGPPHC 460 found that the requirement can be waived or condoned. This case note criticises the Mkabe decision and illustrates why the incorporation of the bride is indeed an essential requirement for a valid customary marriage.

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