I. Good morning, everybody, and welcome back to the second session of the day.
The topic for the seminar this morning is what is living customary law and how should the courts identify and apply it?
The chair of the last session, I thought, was particularly well-informed, erudite, witty and had a very fashionable shirt.
I think I think variety is a very important thing. So I will be chairing the session in a rather different style.
We have three speakers and I think the first speaker is Professor Lucilla, not Professor different enough.
But thank you for the upgrade. It's a promotion to the public.
All right. So she's or I feel that we have probably been given one of the harder questions of the symposium,
which is to speak about what living customary law is and to think about or begin to speak about how it is that courts grapple with it.
Because the question is hard, I'm going to avoid it completely and speak, speak slightly more indirectly to the actual topic of the panel.
So to begin with, I wanted to start with some of the known terrain what it is that we currently know about how it is that we conceive of
living customary and really the bulk of what I are saying draws from the jurisprudence of the Constitutional Court.
So the just prudence of the Constitutional Court lays out for us quite clearly that the understanding of customary
law in a post about the South African context and the type of customary law that it that is protected under the
Constitution is one that espouses values of democracy as opposed to a more autocratic leaning conception of customary
law that it's law that's based on practise as it is determined by the people who live within those communities.
And this, of course, lends that then to being a system of law that is adaptive and responsive by its nature,
but is also qualified or classified as an evolving body of law.
So really, we're dealing with an understanding of customary law that quite heavily contrasted to official
customary law by foregrounding this idea of a dynamic system of law and for guidance,
this idea of a system of law that's responsive to people but is shaped by people themselves.
And that, of course, places a direct juxtaposition to official conceptions of customary law,
which were very much about being predetermined by the states and imposed in a top down kind of formulation.
And so our understanding of living customary law as sort of outlined in the ConCourt jurisprudence really
makes it very clear that we're breaking away from that former understanding of official customary law.
So here I sort of list a couple of the well-known dictum from a variety of the Constitutional Court cases.
I won't go through all of them,
but really just to pull out this idea that it's adaptive by its nature and to plot specifically the paragraph from there,
which is the third bullet point, which is that it's a dynamic system of law which is continually evolving to
meet the changing circumstances of the communities within which it operates. The question then becomes Can we say the same about common law?
And so what I'm interested in and sort of speaking about above today is what happens
when we get too wrapped up in defining customary law by putting it or putting it
in opposition to the common law system and the dangers that we can potentially fall
into when we try and take that kind of approach in defining living customary law.
And really, the stems from my own experiences of having taught customary law last year.
A. And really struggling with trying to make students understand a system that is structured in ways that are so fundamentally in opposition,
really to the rest of the curriculum, to the rest of their courses, which are all common law courses for lack of a better word.
So this is a diagram which I really like and find to be quite useful, but it's probably slightly above my intellectual capacity, so I drew it from.
It's taken from a physics article, so it's about trying to explain physical science, which I dropped immediately and about grade eight.
But the idea behind it, I thought, was really intriguing. So the sort of the concentric circles,
I think are useful in trying to outline and illustrate the kind of trap that I think
it can be easy to fall into when we're trying to define living customary law.
And so what it does is it sort of pulls apart why things can be and must be real from why they can't be an entree.
And so I have tried to apply that to customary law living customary law specifically.
Again, to illustrate that there is a danger in thinking about living customary law in opposition to the other system.
Because of course, what that does is it requires living customary law to respond to and to meet the standards of the other system,
namely the Common Law System. And so if you get trapped into that sort of dichotomy, what you end up doing is saying, OK, well,
customary law can't be real law or real system of law because it doesn't need this, this, this, this, this and this.
And those measures, I think, are often drawn from the common law system.
And that's what I found that my students struggled with was that they were pushing
customary law up against what they understood law to be as defined through a common
law legal system and found that customary law didn't meet the measures and therefore
were struggling to engage with it as a legal concept or as a system of law.
And so I thought that pulling the concentric circles of pot was a useful way to illustrate the danger of that kind of dichotomy.
So what I'm saying, then, is that I think that there are dynamics,
very dangerous dynamics that are set up by getting locked into a notion of journalism,
we set ourselves up for thinking about customary law then as almost be caught between these two systems, right?
So it finds itself sort of caught between the common law conception of law,
which has a particular conception of law and a particular understanding of law as being most rule bound, more rigid.
And you said, customary law up to almost begin to fall short.
But of course, the question is not.
The question of the assertion I would make is that it doesn't need to measure up to what we understand law to be through a common law lens.
It must be able to stand on its own two legs.
And so getting caught up in a more comparative, dualistic kind of conversation actually does a disservice to understanding love and customary law.
Of course, given the strength in the current privileging of the common law system,
putting them up against each other does always mean that customary law is going to have to be the system that gives rights.
It's going to be the system that is at least on the back foot. And so I think it's more useful to think of really customary law as pointing
to the shortcomings of getting locked into the idea of two closed systems.
So this idea that there's one system that's wholly rigid, particular bond,
and then there's this other system that's completely flexible and dynamic and difficult to determine.
To think of them as being completely separate from each other in that way is, I don't think, useful.
I think that it does lock us into a comparative engagement which doesn't really serve the purposes of working with and applying within customary law.
And so the jurisprudence of living customary law helps to elucidate the inadequacy
of this binary idea of two legal regimes that are insulated from one another.
And people, of course, in practise are living in ways that cut across the two systems.
So in rural Eastern Cape, for example, you find women making claims to land by drawing on both notions of democratic rights and the Constitution,
but also drawing on customary ideas of birthright and belonging.
And so people really live in a way that sits at the intersection and that draws across that intersection.
So nobody really certainly not in the communities that we work with live in ways that are so tightly boundary.
They don't just live under customary law or just live under common law, but rather live in a way that requires them to draw across both systems.
And so then I draw a bit on the work of Eugene O'Neill, who really, for me is very useful in helping to articulate that in thinking about living more,
which is the concept, the concept that he worked a lot on and is credited with having sort of pioneered.
He wasn't about setting up law as conceived of in the centre, up against law, as conceived of at the periphery.
Rather, what he was saying is that living law requires law conceived of as dissent at the centre,
so it requires state law to introspect and to self-reflect. And I think that living customary law makes the same call.
It asks state laws to think a little bit more carefully about its conception of law,
rather than having this thing of putting the customary law against common law.
And so Ellis central question was about what it is that people experience as law rather than being about how it is that people experience law.
And he distinguishes those as as different questions. And Ellis claim is that there are different sources of law that coexist in a society.
And so I would assert that living customary law prompts us to consider that common law is but one source of law within a society,
but not the source of law, not the sole determinant.
And I think that's really the element that my students struggle to wrap their head around was that there could be
multiple sources of law when effectively they're being taught in a very dominant stream and being well taught well.
They're being sort of taught and expertise in one particular source of law versus developing the expertise that interrogates that source of law one.
But two acknowledges that there are other sources of law. And so for its own survival, state law really needs to be living in again.
This is this is what comes across in earnest work that actually, for its own legitimacy and perhaps for its own ability to deliver real justice,
state law needs to be in contact and in touch with people's lived realities.
And that does require of it a dynamic nature of flexibility and a sense of
reflection so that it can continue to evolve and and respond as people need.
And so when it doesn't do that, it runs the risk of losing legitimacy, of stagnating and of becoming irrelevant to people's lives.
So what then of the future for customer living customer?
So we know that this idea of a binary bound approach of need separate systems is not an accurate reflection of the reality,
and it's not an accurate reflection of how people experience long stated needs to be relevant to people's lives.
And the dangers of putting customary law up against a common law is the same as putting laws
at the periphery up against a law developed at the centre and leads us into false dichotomies.
So rather than the future that living customary law is pushing us towards is one that was foreseen.
Buzzard K. Matthews and his later articulated by the Constitutional Court in the Alex Court case the future of native law, as he termed it.
That was outlined by David K. Mathews in his thesis is that you have three options.
The first is that it might disappear entirely, right? Nature's law disappears and it's replaced by European law.
So you have a complete erasure of native law as a system of law. The second, he says, is that native law develops as a separate substantive system.
So there you are, falling fully into this idea of duality and dichotomies, right?
So there you are.
You absolutely subscribe to the idea of two separate, neatly bound systems, which I would certainly assert is where we have come from.
If we think about it,
it's that idea that it was customary law for black South Africans and then there was a common law system for citizens and white South Africans.
And so having come from what it looks like to have that kind of separate development, I certainly wouldn't advocate for a return.
And the third, which is the one that appeals to me,
is the gradual assimilation of native law into European law so that it contributes its its portion to a body of South African law.
So really, this idea that what you're hoping to move towards is a system of law that is responsive to the reality of people drawing across systems.
So you're moving towards a system of law that isn't actually one or the other, but is rather an amalgamation of both.
And that's the articulation that came from the Constitutional Court and Alex also the bottom there.
So I blurred indigenous law, then feeds into nourishes fuses with and becomes part of the amalgam of South African law.
And this is the future.
I think that is certainly the best response to what it is that living customary law is really beginning to point out around how we work with law,
how we conceive of law and certainly an amalgam of South African law,
I would say, is perhaps the best response that we have to serving people who are living in ways
that actually don't fit neatly into boundary conceptions of two separate systems.
So is this future vision of an amalgam of South African law within reach in practise, I think it's a lot closer than we think it is.
As I've said, I think that people already living in ways that cut across and that don't hold to these bonded binary systems.
Of course, what they're finding then is that when they are trying to live out the practise of living across those systems,
the system that is most dominant is unable to respond to that.
And so people find that they struggle to access a form of justice that might feel more legitimate to them,
a form of justice that really responds to the types of challenges that they're facing.
Because of course, the dominant system is not structured in a way that acknowledges,
I would say, that people are living in ways that pull across boundaries.
And so it is not in and of itself naturally receptive to these kind of cross system claims.
I think that the lower level courts are probably having to be a lot more fluid and having to move
across these boundaries in ways that perhaps the high level courts are not yet having to do.
And I think that in trying to do that, there is the potential that it makes those lower level courts better able to offer a slightly more legitimate.
The question mark form of justice and to respond more appropriately to people's lived experiences.
I would certainly assert that at least in South Africa, I'll classrooms and I think some academic spaces need to play a game of catch up.
So as I alluded to earlier, I think the students that I was teaching really struggled to grapple with this idea that want
to grapple actually with the idea of what it really means to live out the other dictum,
which is about looking at the customary law system through the prism of the common law. And so I think in theory, it sounds great.
But when they're having to really grapple with the practical application of that,
it's something that that really tends to to sort of twist their brains into a bit of a knot.
And so I think that our classrooms and academic spaces do have to play a game of catch up.
And so if this future is not within reach, then I would say we risk being stuck in the space between the two.
We risk kind of being stuck in a limbo that neither serves either of the systems, I would say,
but certainly doesn't serve and respond to the lived realities of people in rural communities.
And I don't think that that's particularly helpful and that if we don't put in the work of trying to figure out a better way to be more cognisant,
mindful of the fact that people are living in ways that draw across systems,
and if we don't push the dominant system a little bit more to be more receptive to and accommodating of that lived reality,
then I think we'll end up doing a disservice to everybody involved. Thank you.
It. Well, thank you very much for a very interesting presentation.
Next up, it's professor. So I don't really want to be a spoilsport,
but having listened to and into this morning talking about how the Constitutional Court embraces living customary laws,
as you know, one of the bright lights on in the situation.
Although, of course, Tim Baker, in his traditional enigmatic fashion made of rather unimpressed view about fish and I,
I sort of also bearing in mind that it was Bismarck who said, You don't want to look too closely how sausages or laws are made.
It's probably a little bit the same one could say about Constitutional Court judgements.
I'm going to, I think, try and approach the problem of what is living customary law from the perspective of a judge.
And I think we all come at this question from our own particular perspectives.
We think about it in terms of our experiences of it, why we are engaging with it,
and I'm going to come at it from the perspective, particularly of a judge,
but also from the perspective of someone whose personal life has not actually been regulated by customary law in any way or of my family.
I have no idea what that actually means for how I understand customary law,
but I'm sure it's important to start out by acknowledging that that that's where are coming at it from.
And I start from a similar point to Lundy, which is that basically customary law, as we note in South Africa,
is part of a pluralist legal system which is unavoidably disruptive of what customary law was before.
And that disruption really commenced. The moment of the colonial state began, and frankly,
in all systems where there are two legal systems within overarching states will
probably a problem of modern state formation as much as a problem of colonialism.
I think that it's the intersection between a rooted system of norms with its own processes and institutions for solving community problems,
encountering a form of the modern state that creates the pluralism which is particularly characteristic of the South African pluralism.
And it is likely to continue unless we reach the kind of enormously attractive holy
grail that not only holds are to us of a kind of amalgamation of these systems.
It's likely to continue until we reach that stage. And so I thought it would be useful.
And again, partly, I think, for the same reason that Newlands did,
which is to start off with just talking briefly about three people because it reminds us that customary law
actually impacts on lives of real people and those people in some of you in the room probably know them.
And I don't judge you. Flora Milani Klinger, Annie Dyson, Mona, who's deceased, and in Marion Enyeama,
who were the three main dramatis personae in the Constitutional Court case of my.
This isn't going on, and the very short story that we know about them from the Constitutional Court judgement
is that majority Flora and Klinger Annie Dyson got married on the 1st of January 1984.
They they came from a small village in Manamela in Limpopo and Cavaney Voté village.
So this would have been the time of apartheid. This was actually, at the time, largely Tsonga speaking area.
And then we know that on the 26th of January 20, 2008,
Langone Dyson Lianna entered into a second marriage or purported to do so with intent to marry with you on that.
And then just over a year later, he died. And when he died and both his four wives were still living in the neighbourhood of many men in Limpopo.
So an Inca put up a graph a little while ago about poverty and this area the former guys included,
which is in the northern north eastern portion of South Africa, sort of roughly adjacent or close to the northern edge of the Kruger National Park.
For those you know that Zimbabwe is one of those very poor areas, former homeland states.
And one could speculate, perhaps more than you find information in the judgement about the circumstances in which they lived.
And you could speculate, too, because the judgement doesn't tell you as to why these two women were in dispute at that particular time.
But one could make probably what is an educated speculation,
which is that it would have been about property because many of these cases that end up before the courts are about property.
Now, the dispute was that both women approached after the death.
And there has been both women approached the Department of Home Affairs today, customary marriages registered belatedly something that they could do.
But Home Affairs said, Look, you've both sought to register your marriages, you can't both register your marriages and then the first wife.
As Melanie went to the court to get an order, first to register her marriage,
and second that a declaration that the second marriage that Mrs. Granuloma was asserting was in
fact invalid because she had never consented to that second marriage and that those were crispy.
The facts of the case. Now, one of the things one immediately sees about this is that when thinking about it
from a judge in the state system is this is a pretty bare bones set of facts.
This is how and basically state courts often decide things.
If you were to mediate this problem, you'd want to know lots more detail.
You'd want to know where they're children, where were they living, what were their financial circumstances, cetera, et cetera.
But you don't ask those questions as a judge and you can't because the record is set before
you and you have to work on the record because that's fairness between the parties.
And that's so there's a very different approach to thinking about the facts than
if you were in a customary law dispute resolution system or in a mediation.
And so with that start, so that you've just got three real people in mind, even I can't give you a lot of detail about them beyond speculation.
Let's turn to what the issues are, what how a judge begins to think about that.
And being a former Constitutional Court judge, of course, we start by thinking about the Constitution and the Constitution tells us in
Section 211 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.
Section 211, as I said, and then Section 39 of the Constitution says when developing customary law,
a court must promote the spirit, purported and objects of the Bill of Rights.
And that's more or less that. And from these two provisions, I think in almost every case, five questions will come up.
The first is what is customary law. The second is how do we determine what its contents are?
The third is, when is it applicable and to whom is it applicable?
The fourth is how do we determine whether it's consistent with the Constitution and any relevant legislation?
And the last one is if we decide that it is not consistent with the Constitution, what then?
Now, the first thing I want to say is that the first three of these questions,
and arguably all five of them of very little different from the questions that are native appeal court would have had to decide in 1931.
They would have had to have decided what is customary law. How do we determine what its contents are?
When is it applicable? Of course, in those days is somebody I think was sent back and pointed out this morning.
The question is how do we determine whether it is repugnant to the common law or not?
And then if we decide it is what then? And I want to suggest that that's not because of the waywardness of judges.
It is structurally built into the nature of a pluralist legal system.
If you are a pluralist legal system in which one set of courts is having to apply and implement another,
it is very difficult to see how you wouldn't start out by saying, Well, what does that legal system say?
Who does it apply to? How do we decide what its contents are, etc.?
So I just want to draw there for a moment on Martin Shannex notion, which is that it's the transformation of custom into customary law,
into something that the state courts will recognise, enforce and require that disrupts the continuity of the indigenous system.
It's that moment that is the moment of disruption.
Now I'm not going to be able to go through all of these questions as they've been approached by the Constitutional Court today.
But I just want to give you a little outline before I do whatever I want to quote from a case,
a 1918 case reflecting on the way in which the natal native code was made because it has,
I think, extraordinary current resonance and isn't Queenie versus Nysa, and it's in the in that, the judge noted.
I may say that the answers to some of the questions dealing with the native law of inheritance were very voluminous.
Sounds very familiar. The chairman, who was doing the draught code, boiled down all these voluminous answers into a few leading principles.
Now in the code, as it stands, all it was said about ancestral quote cross was swept away by him as only calculated to trouble and confuse the courts.
He can find himself declaring the supremacy of the Crown head, who had complete control so long as he lived over all the inmates.
It ruled over all the inmates of his cruel and all the property of all the houses.
He gave a clear definition to house property and simply declare that all property, which was not house property, was cruel property.
And I question that because it really has resonance, I think,
for the ways in which either legislatures or courts handle the voluminous mess of customary law in the modern era.
So the other very important bit of this picture is to realise that in the late 1980s and I think Tanya Buntu is a key driver here,
there was a movement in southern Africa, went tied to the title of Women and Law in Southern Africa project,
which began to analyse the way in which official customary law differed from how customary law worked in ordinary people's lives.
And in some ways, that is the that is the groundbreaking scholarly work which led to embrace an understanding of the idea that what was in the books,
what was in the textbooks, what was in the judgement of the Court of Appeal, what was in the natal code was customary law.
It was a form of customary law, which came to be called official customary law,
and it was recognised that this very often very little resemblance to the ways in
which norms and rules and customs and usages were applied in ordinary villages,
in towns and rural areas across South Africa. And that insight, I think,
has led has led to the development of the idea of the customary law in the post democratic in the post-apartheid era in the new democracy.
But as Deputy Chief Justice, Lamola said in his very straightforward and simple way in the Maligns Judgement Office, Sorry to Baker,
it was the difficulty lies not so much in the acceptance of the notion of living customary law,
but in determining its content and twisting it as the court should against the provisions of the Bill of Rights.
One short sentence, one enormously big problem. So what is living customary law?
Well, I don't know the answer to that precisely,
but I think that there are a range of questions that we have to ask when we're thinking about that question.
And the first one is should we and can we distinguish customs and usages that are part of law from those that are merely social practises?
Human communities make lots of rules all the time.
They are in Robert covers frame famous language, they are jurists generative.
We make rules about how we should greet people. Rules of diet and nutrition.
Rules of games and sports of workplaces. Of family rules.
We are jurists generative. And how do we know which of those rules are rules that are going to be rules of customary law?
Many legal theorists and here we are in Oxford. Could I have taught for 20 minutes without mentioning?
I don't think many legal theorists would say that we should add to our assessment of whether a practise or usage in a community is a rule.
By asking whether the community members think that they have a sense of obligation in that role, should they do it or do they do it?
And if they do, then you're much closer, probably to some idea of rules.
Now the interesting question is whether this is helpful.
It's very appealing because judges are desperately trying to get this, but is down to something that they can kind of manage.
But I noticed when I reread an event at Versus Letsoalo, which is the famous case about lobola in the 1980s and the evidence that Millie
Swallow gave when asked she was this was a couple that back to the people.
This is a couple living in Mamelodi in Pretoria Urban. She and her husband had approached her mother in order to negotiate lobola.
This is not the way the bowler was traditionally negotiated, and when this was put to her, she said, Well,
why did why didn't you do it according to the proper custom and get your your mail guardian to speak to the male guardians of your husband,
and then it would have been fine. And she said the customs just that it depends on an individual how she he wants to do it.
And anyway, we were doing this to please my mother.
Now this has an enormous amount of resonance, but where does the sense, the heart and sense of legal obligation fit in their pleasing manner?
Something I often think my children should think of a lot. So maybe it is an obligation,
but it shows you how hard it is to fit to determine answers to this question of what
are customs and usages that should be customary law and how should we approach them?
Another problem is in the definition and the Recognition Act, for example, which gives us one of the few statutory definitions of customary law.
It talks about customs and usages traditionally observed in community.
Well, that's all very well, and we now know that customs change really quickly traditionally observed has this sort of time immemorial.
This said, our grandfathers did it.
And generally, those of us who are fathers of grandfathers think it's very good that the next generation should do it.
But that's not how custom works. It changed very quickly. We know how woman rangers account of the invention of tradition, for example.
So how should a court approach the idea that actually we shouldn't be treating customers
something that is fixed in time and that's really what living customary law was all about doing?
Lots of other questions, what about multiplicity? What about variety?
How should we think about sources and I'm not going to spend a lot of time talking about them because that was going to break the 20 minute rule.
But the next question that arises is how should the court determine the content of customary law?
And of course, we've got section one of the Law Evidence Amendment Act,
which tells us that judges can take judicial notice of customary law insofar as it can be ascertained readily and with sufficient certainty.
But I can tell you that's not something that is very likely to arise.
And the court has said we can look at a range of things like writers on indigenous authorities and the evidence of witnesses, if necessary.
And that's probably where I want to finish, which is to go back to my add on it because in my life, the three people I mentioned at the outset,
what happened in the Constitutional Court was that the court decided they're going to call for evidence as to whether,
according to see stronger customary law,
it is necessary for a first wife to consent to the suggestion that there will be a second marriage and her husband will take a second wife.
And Liz Malani asserted that it was necessary and she was backed up in that by her brother in law.
But the majority in the court said No, that's not enough. We need evidence on that.
Now, the court is divided on whether they should have called for evidence at all.
But if you look through the evidence, nine pieces of evidence were laid before the court.
And again, I haven't looked at the original evidence that only looked at it as it was recorded, as it was recorded in the judgement.
But three witnesses thought the consent of the first wife was necessary.
At least three for the consent of the first wife was not necessary or that she'd be expected to agree to support.
The wife should be informed of the marriage, but that she had withholding of consent would not affect the validity of the marriage.
One thought she might be informed and two thought that if she withheld consent, the family would get involved to persuade her to consent.
This was a voluminous collection of norms about what is the rule relating to consent from the case.
Why the Constitutional Court, I thought, was almost breathtaking confidence,
said that the evidence was not contradictory but reflective of nuance and accommodation,
and went on to conclude basically that the that songer law is that Tsonga men decide to enter into a further marriage.
They must inform their first wife that their intention. And but of course,
there was a just a disagreement with the minority of the court who said that the evidence was overwhelming
in support of the conclusion that in fact customary law required the consent of a first wife.
That's on the same evidence, written evidence to fundamentally different conclusions as to what customary law is,
and I think it illustrates the difficulties of actually the application of living customary law in a very sharp and distinct way.
It seems to me in conclusion, then, that it's not possible for us to avoid having to ask these questions,
certainly as our Constitution is currently draughted and I am not sure and I've said this elsewhere in other whether
there is any possibility of having a kind of rule of law top down system with the system that is living customary law.
So I think that's something we really need to think about.
The questions I'm more interested in about is if jurisprudence is about the prudence of judges, at least in part,
what is it prudent for judges to do when faced with these extraordinarily difficult questions?
And I think that you beginning to see you saw that debate to some extent in bit and you certainly sought it, in my opinion.
And it seems to me that there are a couple of thoughts.
One is that we do have this jurist generative trend, and it does seem to me also and so somebody took an oath to the Constitution.
I'm still with it completely that one of the ways of thinking about that is the extent that these
different norms have different levels of constitutional compliance or some of them clearly aren't.
That's one of the ways courts can think about it.
But I remain a remain unapologetic about majority position in death because we do live in a democracy, and at the end of the day,
I don't know that there's a way out of this problem that courts are going to steer
us through safely and not got a lot of confidence in the Legislature either,
because I think it's a particularly difficult problem for the Legislature. Not unlike the Natal could quote I gave you.
But at least the democratically accountable in ways which courts are not.
So just to finish off with a thought from Robert Carver,
who I've been quoting on jurist generated just to perhaps discourage you a little bit more about litigation,
judges characteristically do not create create law. He said they cannot.
This is the jurist pathetic office confronting the luxurious growth of 100 legal traditions.
They assert that this one is the law and destroy or try to destroy the rest.
Thank you. Well, thank you very much, Kate.
The next speaker is Thunder Boots, who Natalie Nichols is English people.
Thank you. Good afternoon. I I asked to be put last so that these eminent colleagues could kick off this very difficult debate.
And I have in the Senate, which takes off my shoulders.
The need to talk about living customary law and the reason they're asked to be put at the end is because they do the given customary law.
I do the example and the example really is something taken from my speciality.
What I do, which is. African customary marriage and the paper that a prepared.
It is important to. To say this, it is Typekit applying live in customary law in South Africa,
dismantling and reconstructing the essentials for validity of the customary marriage.
So that's what I intend to talk about. It might actually be coincidence link with both what Monday and Kate have said,
because what it brings out with this study is the fact that it is very difficult to work out what's even customary.
Law is killing my seems. The irony of all of this is that difficult, though it is to decide.
What is meant by customary law and how to identify it?
Each was met with a ripple of applause across all legal fight, all the legal fraternity in South Africa.
When the courts, particularly the Constitutional Court, let us quite clearly down the paths,
which says the customary law that is recognised by the South African Constitution in section 211,
subsection three is leaving customary law, not an official customary law.
The reason that brought up a great deal of applause was because everybody who knows the South
African system will know some of the abuses and distortions that were brought into customary law.
By the official version, so it was something to celebrate that we were moving towards leaving customary law,
but by definition to say it is what people are doing now.
And that a court needs to decide what that law is and to decide why it is following the law and not just a habit of the people down the street.
It is, is, is difficult. And but we are happy that it is not the customary law of the Native Americans and the
books and the textbooks and the code that is now the ruling customary law in South Africa.
That is probably all I'm going to say about leaving customary law.
Just as that label to my people is what I'm going to say about the paper because it is a really bad leap that it is now saying this is that.
I am hoping that the presentation is going to be better than the people,
but that it has to do the paper because it showed me all the shortcomings I should have admitted to was there for a long time ago and it's
a very difficult subject and I'm going to raise a couple of points in the 20 minutes that I think will come out in the form of questions.
But let's get back to the decisions of customary marriage and what has gone wrong.
What's the problem? Well, your problem is and.
One has to take it step by step. First of all, the recognition formula in the Recognition of Customary Marriages Act,
which is an act that was passed in 1998 and came into it, was promulgated for 15 November 2000, when it came into effect.
The formula that recognised customary marriages in that act was that it said
all existing marriages that are valid under customary law are now recognised.
This was the first, but all marriages.
And then the second party says all marriages that come into effect after coming into effect of this act and that followed.
The rules set out in this act are recognised so that three 2000 marriages and post 2000 marriages,
the ones that were found existing at the time the act was written and were recognised as long as they were valid in the customary law of the time.
Official watch it, but if they were recognised in customary law, they were valid.
The problem is with the ones that came after the act because they were supposed to be valid if they complied with the act.
And what did they say? Would be a qualification?
What would compliance mean? Well, it's all down to a section called Section three labelled requirements for validity.
We take some time from my judgement to explain this slow requirements for validity.
And in fact, three in this sense one the parties must be 18.
And over to the parties must consent to remarried.
And three, the marriage itself.
Must have been negotiated and entered into or celebrated, according to customary law, and that is where the trouble started.
Let's take it back a step, OK? First requirement the parties must be 80.
Over no problem with that, in fact, there was a bit of a pat on the back for the low commission for having brought that in.
It is a better alignment with the Children's Act with the in the treaties.
The South Africa signed a vote if the child and naughty child Adrian was not a problem.
In fact, this was seen as an advance on the Marriage Act of 1961,
which still requires that some children at 15 with various permissions can get married, so ageing was good to the parties.
Must consent to be married. Well, I wish the. Low commission and parliament had stopped.
The parties must contend. They didn't, they said the parties must consent to be married to each other, according to customary law,
which is an unusual formulation and not only an eye towards this course that you see in customary
when students found it amusing to work out why it is very difficult to actually comply with it.
The parties must agree to be married to each other, according to customary law.
You can imagine that was not going to happen.
Is somebody dropping on one knee and saying, Oh Mildred, will you make me the happiest man in the world by marrying me?
You know? But is it possible?
According to Section three, subsection one B, two of the recognition of Customer Amenities Act number 128, 1998 is he's not going to help it.
But will the courts have not had a problem with it?
Because, of course, context it does tend to say these people would intending to marry under customary law.
There is a caveat that goes with that. Because black South Africans at home will do the lobotomy, even if they intend a civil marriage.
The courts have to be careful that this particular way of asking for the woman's hand in marriage was, in fact,
because they intended to marry under customary law and not because it was a precursor to receive marriage.
But that's a small part. Generally speaking, there hasn't been a problem. The problem has been with Section three 1B, which is the marriage.
And remember that Typekit must be negotiated. And entered into all celebrated in accordance with customary law.
Now that leads me to a point where we can safely list some of the things that have been tied up with the problem.
The problem is that there is a rising incidence at home of people denying the existence of a customary marriage,
and mostly it will be the family of a deceased man.
And.
Denying the widow of the deceased man daughter in law status, because this property involved, and so the vast majority of the cases are about that.
And so what the woman or the woman's people will try and prove is that there was some talk of the war and that she
was accepted into the family of the man as a wife and was known as a wife by the family and by society at large.
The men's people, on the other hand, will basically try and deny everything and frustrate every item of truth.
Let me just give you an example. And on Page Six in the paper that I said I would not quote, they at least get their.
The things that go wrong. Let me just I just said or related to the water level was not discussed.
Lovullo arrangements were not at the level of a page in full lobola was not trade.
In fact, no one was paid in cash. Instead of cash, lobola was paid to the wrong person.
The money was paid to the wrong recipient, like the mother in the truck and the wall, or the negotiating delegation was not properly constituted.
Liberal acceptance rituals were not done. Navarro negotiating team did not follow protocol.
Let's just have a level and the outline of who's there more in real life and then this idea of integrating the women into the husband's family.
We counted seven. There was no handover at all. The word handover is going to be important here.
There was no date set for the handover or the wedding celebration. The handover was to the wrong persons.
The handover was done by the wrong persons and the wrong venue.
Cohabitation does not constitute a local handover to not follow correct ceremonies.
Now we have said here that the nine plus seven there are more.
There was nine more in the case of more open.
If this, some of them, including the insistence on the use of the correct life to slaughter the correct priest to prove that lobola had taken place.
There was the case of Magica with residual requirements mentioned in the case,
which include a great deal of detail about the cuts of meat to the eaten to be shared after discovering the style of dance to be performed,
the mean, the dates, the functions to fall. No, and the reason this is a problem is because of the 39 cases.
I looked at the decision by the court as to what the essentials of a customary marriage in South Africa, where lives as.
With a fair sense of saying, right now, nobody knows.
And that is not good. It is going to lose the respect that we have been hoping for for customary law.
These people are not going to take seriously a system where you can't decide when the fact is married or not.
But because each individual I want to try something entirely different and
cut across all of this and say that the argument I have been trying to make,
I am not sure whether, in fact it is a good argument or a bad argument.
But if you start with the Section three itself.
The mischief starts with failure to understand a subsection B,
and what it means is that the marriage must be negotiated and entered into force in the future to within customary law.
You will find in the paper some examples of why that is a problem.
What has really? Exacerbated the the the problem has to do with the thinking that it appears the judges take into these cases, for instance.
Out of about five points that I had made,
I'd like to mention to the tendency of judges sitting on this issue to talk about true or authentic living law.
And it is ironic because you remember what we were trying out for all these years when the judges were all white and most of the litigants all black,
at least in these matters. And.
Now, one of the problems that we hadn't counted on is the fact that when there are now so many black judges doing customary law,
there is still the thing that happens that happens to us as teachers, which is to say.
Everybody knows that water is not expected to be paid in full for a marriage to take place.
We tend to accept that whether what judges or teachers who don't call for evidence because we think we know that.
So that is one and the other is default to common law, but defer to permanent official law.
I mentioned here, but I will skip it. Defaulting to a common law is actually quite problematic.
Each is different to common law. Each is seen in what I have said in the paper linguistic giveaways.
And it is where it is conceptual, where the judge just believes that the common law is a better option.
This distinguished linguistic giveaways are quite something.
And judge the funding here for insulting and faced with failure to understand this as a custom,
a total of all links with the affiliation of children in a marriage and basically hold it tough traffic, traffic trafficking in people.
He said that it was not possible to give a pittance to a rule where the mere exchange of cash and made you is somebody who is worthy to have custody.
So there are a lot of problems at home.
But I want to jump straight to the last two minutes to the plea I have been making of late, which is to raise the question.
And the question is. If you live in customary law, is this community to me?
Now today, and we do it because we consider that it is binding on us.
And if that is how we make a living testimony, we must persuade a court that this is the rule of the community.
Is there a way of saying when you get to the requirements for a marriage and you accept and they do accept what to my human
and Elaina Moore have written in their book and recognising it is a form of customer customer base that it must be the whole.
And it must be the integration of the woman into the man's family.
I'll tell you later if we have time where I agree with it.
How can we help the courts not listen to all kinds of inventions invented tradition in general and.
Sometimes. Deciding to tell lies to the court about what is your rules?
How do we do that? And my question is, is it possible then that at some point leaving customary law,
although it is very much now and here is also something that is linked to the past,
the rest of the people worries about whether it is justifiable to talk of even customary law by giving it a problem.
It goes back to the past about what the value that used to underlie that custom is and whether a value can vary across.
Even though the implementation of the practise is done under its umbrella to change, I do not know the answer to that question,
but I do suspect that if it were possible,
then one would be able to say we accept lobola negotiations because that is underlined by the value of Africans.
That marriage in customary law is a non individual thing.
The two people getting married are simply joining two huge groups together,
and Lolo is the pathway by which they make this happen and embed it because they have to form a friendship.
And if we say that's correct and you go to the Hindu, and the reason I said that was good stuff about gender as just as for me,
it's more is the fact that in the case of suicide and this a it's on the case.
It's all known as that of Whv the rapper and judgement most.
He has gone so far as to say that.
Although he will take the marriage, therefore he's a widow, was his wife and customary law,
and while the family said no, but she had not been handed over, she said he said hanging over is unconstitutional.
How would you hand another adjunct or to other people?
And it's totally problematic because one he is criticising as discriminatory
the English rendering of handing over even its cousin delivery of the bride.
I've always enjoyed those tips. But now they've come back to bite us.
Judge McClarkin says that handing over is unconstitutional because it's discriminatory.
I will live with this thought, and if it is possible that we can extract a value and is what it is,
I quote some anthropological work say, just to help the point that,
for instance, when it comes to integration and human and more talk of integration and not handing over or delivery, which I think is bad.
But if you look at why a woman needs to be introduced to the ancestors of the husband,
it makes very good sense that there was a value that was important here when we came to this idea of integration.
So maybe in fact, there is some merit in taking a time to look at what the underlying values might have been for a custom,
even though Google is largely about the here and now.