1 00:00:01,120 --> 00:00:20,860 I. Good morning, everybody, and welcome back to the second session of the day. 2 00:00:20,860 --> 00:00:31,390 The topic for the seminar this morning is what is living customary law and how should the courts identify and apply it? 3 00:00:31,390 --> 00:00:42,220 The chair of the last session, I thought, was particularly well-informed, erudite, witty and had a very fashionable shirt. 4 00:00:42,220 --> 00:00:50,680 I think I think variety is a very important thing. So I will be chairing the session in a rather different style. 5 00:00:50,680 --> 00:00:59,290 We have three speakers and I think the first speaker is Professor Lucilla, not Professor different enough. 6 00:00:59,290 --> 00:01:07,930 But thank you for the upgrade. It's a promotion to the public. 7 00:01:07,930 --> 00:01:17,770 All right. So she's or I feel that we have probably been given one of the harder questions of the symposium, 8 00:01:17,770 --> 00:01:24,730 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. 9 00:01:24,730 --> 00:01:33,760 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. 10 00:01:33,760 --> 00:01:40,220 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 11 00:01:40,220 --> 00:01:49,060 living customary and really the bulk of what I are saying draws from the jurisprudence of the Constitutional Court. 12 00:01:49,060 --> 00:01:54,970 So the just prudence of the Constitutional Court lays out for us quite clearly that the understanding of customary 13 00:01:54,970 --> 00:02:01,570 law in a post about the South African context and the type of customary law that it that is protected under the 14 00:02:01,570 --> 00:02:09,400 Constitution is one that espouses values of democracy as opposed to a more autocratic leaning conception of customary 15 00:02:09,400 --> 00:02:14,950 law that it's law that's based on practise as it is determined by the people who live within those communities. 16 00:02:14,950 --> 00:02:20,770 And this, of course, lends that then to being a system of law that is adaptive and responsive by its nature, 17 00:02:20,770 --> 00:02:24,910 but is also qualified or classified as an evolving body of law. 18 00:02:24,910 --> 00:02:30,670 So really, we're dealing with an understanding of customary law that quite heavily contrasted to official 19 00:02:30,670 --> 00:02:35,560 customary law by foregrounding this idea of a dynamic system of law and for guidance, 20 00:02:35,560 --> 00:02:40,210 this idea of a system of law that's responsive to people but is shaped by people themselves. 21 00:02:40,210 --> 00:02:44,680 And that, of course, places a direct juxtaposition to official conceptions of customary law, 22 00:02:44,680 --> 00:02:50,500 which were very much about being predetermined by the states and imposed in a top down kind of formulation. 23 00:02:50,500 --> 00:02:56,470 And so our understanding of living customary law as sort of outlined in the ConCourt jurisprudence really 24 00:02:56,470 --> 00:03:03,070 makes it very clear that we're breaking away from that former understanding of official customary law. 25 00:03:03,070 --> 00:03:08,290 So here I sort of list a couple of the well-known dictum from a variety of the Constitutional Court cases. 26 00:03:08,290 --> 00:03:09,730 I won't go through all of them, 27 00:03:09,730 --> 00:03:16,570 but really just to pull out this idea that it's adaptive by its nature and to plot specifically the paragraph from there, 28 00:03:16,570 --> 00:03:21,820 which is the third bullet point, which is that it's a dynamic system of law which is continually evolving to 29 00:03:21,820 --> 00:03:28,870 meet the changing circumstances of the communities within which it operates. The question then becomes Can we say the same about common law? 30 00:03:28,870 --> 00:03:33,490 And so what I'm interested in and sort of speaking about above today is what happens 31 00:03:33,490 --> 00:03:39,610 when we get too wrapped up in defining customary law by putting it or putting it 32 00:03:39,610 --> 00:03:43,960 in opposition to the common law system and the dangers that we can potentially fall 33 00:03:43,960 --> 00:03:48,340 into when we try and take that kind of approach in defining living customary law. 34 00:03:48,340 --> 00:03:52,640 And really, the stems from my own experiences of having taught customary law last year. 35 00:03:52,640 --> 00:04:01,810 A. And really struggling with trying to make students understand a system that is structured in ways that are so fundamentally in opposition, 36 00:04:01,810 --> 00:04:09,350 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. 37 00:04:09,350 --> 00:04:21,200 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. 38 00:04:21,200 --> 00:04:29,660 It's taken from a physics article, so it's about trying to explain physical science, which I dropped immediately and about grade eight. 39 00:04:29,660 --> 00:04:35,420 But the idea behind it, I thought, was really intriguing. So the sort of the concentric circles, 40 00:04:35,420 --> 00:04:40,760 I think are useful in trying to outline and illustrate the kind of trap that I think 41 00:04:40,760 --> 00:04:44,240 it can be easy to fall into when we're trying to define living customary law. 42 00:04:44,240 --> 00:04:53,120 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. 43 00:04:53,120 --> 00:04:58,490 And so I have tried to apply that to customary law living customary law specifically. 44 00:04:58,490 --> 00:05:05,330 Again, to illustrate that there is a danger in thinking about living customary law in opposition to the other system. 45 00:05:05,330 --> 00:05:12,560 Because of course, what that does is it requires living customary law to respond to and to meet the standards of the other system, 46 00:05:12,560 --> 00:05:19,190 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, 47 00:05:19,190 --> 00:05:25,340 customary law can't be real law or real system of law because it doesn't need this, this, this, this, this and this. 48 00:05:25,340 --> 00:05:29,640 And those measures, I think, are often drawn from the common law system. 49 00:05:29,640 --> 00:05:32,990 And that's what I found that my students struggled with was that they were pushing 50 00:05:32,990 --> 00:05:37,400 customary law up against what they understood law to be as defined through a common 51 00:05:37,400 --> 00:05:42,080 law legal system and found that customary law didn't meet the measures and therefore 52 00:05:42,080 --> 00:05:46,910 were struggling to engage with it as a legal concept or as a system of law. 53 00:05:46,910 --> 00:05:56,380 And so I thought that pulling the concentric circles of pot was a useful way to illustrate the danger of that kind of dichotomy. 54 00:05:56,380 --> 00:05:59,530 So what I'm saying, then, is that I think that there are dynamics, 55 00:05:59,530 --> 00:06:04,630 very dangerous dynamics that are set up by getting locked into a notion of journalism, 56 00:06:04,630 --> 00:06:10,300 we set ourselves up for thinking about customary law then as almost be caught between these two systems, right? 57 00:06:10,300 --> 00:06:14,440 So it finds itself sort of caught between the common law conception of law, 58 00:06:14,440 --> 00:06:21,130 which has a particular conception of law and a particular understanding of law as being most rule bound, more rigid. 59 00:06:21,130 --> 00:06:25,660 And you said, customary law up to almost begin to fall short. 60 00:06:25,660 --> 00:06:27,820 But of course, the question is not. 61 00:06:27,820 --> 00:06:34,930 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. 62 00:06:34,930 --> 00:06:37,030 It must be able to stand on its own two legs. 63 00:06:37,030 --> 00:06:44,950 And so getting caught up in a more comparative, dualistic kind of conversation actually does a disservice to understanding love and customary law. 64 00:06:44,950 --> 00:06:49,540 Of course, given the strength in the current privileging of the common law system, 65 00:06:49,540 --> 00:06:54,970 putting them up against each other does always mean that customary law is going to have to be the system that gives rights. 66 00:06:54,970 --> 00:07:01,810 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 67 00:07:01,810 --> 00:07:06,670 to the shortcomings of getting locked into the idea of two closed systems. 68 00:07:06,670 --> 00:07:11,680 So this idea that there's one system that's wholly rigid, particular bond, 69 00:07:11,680 --> 00:07:16,690 and then there's this other system that's completely flexible and dynamic and difficult to determine. 70 00:07:16,690 --> 00:07:21,100 To think of them as being completely separate from each other in that way is, I don't think, useful. 71 00:07:21,100 --> 00:07:31,750 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. 72 00:07:31,750 --> 00:07:36,070 And so the jurisprudence of living customary law helps to elucidate the inadequacy 73 00:07:36,070 --> 00:07:41,320 of this binary idea of two legal regimes that are insulated from one another. 74 00:07:41,320 --> 00:07:46,390 And people, of course, in practise are living in ways that cut across the two systems. 75 00:07:46,390 --> 00:07:55,630 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, 76 00:07:55,630 --> 00:08:00,580 but also drawing on customary ideas of birthright and belonging. 77 00:08:00,580 --> 00:08:06,610 And so people really live in a way that sits at the intersection and that draws across that intersection. 78 00:08:06,610 --> 00:08:13,660 So nobody really certainly not in the communities that we work with live in ways that are so tightly boundary. 79 00:08:13,660 --> 00:08:24,170 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. 80 00:08:24,170 --> 00:08:33,860 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, 81 00:08:33,860 --> 00:08:41,150 which is the concept, the concept that he worked a lot on and is credited with having sort of pioneered. 82 00:08:41,150 --> 00:08:48,200 He wasn't about setting up law as conceived of in the centre, up against law, as conceived of at the periphery. 83 00:08:48,200 --> 00:08:53,330 Rather, what he was saying is that living law requires law conceived of as dissent at the centre, 84 00:08:53,330 --> 00:09:00,470 so it requires state law to introspect and to self-reflect. And I think that living customary law makes the same call. 85 00:09:00,470 --> 00:09:05,900 It asks state laws to think a little bit more carefully about its conception of law, 86 00:09:05,900 --> 00:09:10,460 rather than having this thing of putting the customary law against common law. 87 00:09:10,460 --> 00:09:18,530 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. 88 00:09:18,530 --> 00:09:27,050 And he distinguishes those as as different questions. And Ellis claim is that there are different sources of law that coexist in a society. 89 00:09:27,050 --> 00:09:33,860 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, 90 00:09:33,860 --> 00:09:37,370 but not the source of law, not the sole determinant. 91 00:09:37,370 --> 00:09:43,160 And I think that's really the element that my students struggle to wrap their head around was that there could be 92 00:09:43,160 --> 00:09:50,240 multiple sources of law when effectively they're being taught in a very dominant stream and being well taught well. 93 00:09:50,240 --> 00:09:57,710 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. 94 00:09:57,710 --> 00:10:04,850 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. 95 00:10:04,850 --> 00:10:13,040 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, 96 00:10:13,040 --> 00:10:17,660 state law needs to be in contact and in touch with people's lived realities. 97 00:10:17,660 --> 00:10:22,490 And that does require of it a dynamic nature of flexibility and a sense of 98 00:10:22,490 --> 00:10:28,490 reflection so that it can continue to evolve and and respond as people need. 99 00:10:28,490 --> 00:10:37,250 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. 100 00:10:37,250 --> 00:10:41,360 So what then of the future for customer living customer? 101 00:10:41,360 --> 00:10:47,690 So we know that this idea of a binary bound approach of need separate systems is not an accurate reflection of the reality, 102 00:10:47,690 --> 00:10:53,540 and it's not an accurate reflection of how people experience long stated needs to be relevant to people's lives. 103 00:10:53,540 --> 00:11:00,610 And the dangers of putting customary law up against a common law is the same as putting laws 104 00:11:00,610 --> 00:11:05,870 at the periphery up against a law developed at the centre and leads us into false dichotomies. 105 00:11:05,870 --> 00:11:11,090 So rather than the future that living customary law is pushing us towards is one that was foreseen. 106 00:11:11,090 --> 00:11:20,390 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. 107 00:11:20,390 --> 00:11:25,790 That was outlined by David K. Mathews in his thesis is that you have three options. 108 00:11:25,790 --> 00:11:32,630 The first is that it might disappear entirely, right? Nature's law disappears and it's replaced by European law. 109 00:11:32,630 --> 00:11:40,950 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. 110 00:11:40,950 --> 00:11:45,050 So there you are, falling fully into this idea of duality and dichotomies, right? 111 00:11:45,050 --> 00:11:46,850 So there you are. 112 00:11:46,850 --> 00:11:53,810 You absolutely subscribe to the idea of two separate, neatly bound systems, which I would certainly assert is where we have come from. 113 00:11:53,810 --> 00:11:54,950 If we think about it, 114 00:11:54,950 --> 00:12:01,760 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. 115 00:12:01,760 --> 00:12:09,050 And so having come from what it looks like to have that kind of separate development, I certainly wouldn't advocate for a return. 116 00:12:09,050 --> 00:12:11,330 And the third, which is the one that appeals to me, 117 00:12:11,330 --> 00:12:19,580 is the gradual assimilation of native law into European law so that it contributes its its portion to a body of South African law. 118 00:12:19,580 --> 00:12:28,340 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. 119 00:12:28,340 --> 00:12:35,270 So you're moving towards a system of law that isn't actually one or the other, but is rather an amalgamation of both. 120 00:12:35,270 --> 00:12:39,910 And that's the articulation that came from the Constitutional Court and Alex also the bottom there. 121 00:12:39,910 --> 00:12:48,680 So I blurred indigenous law, then feeds into nourishes fuses with and becomes part of the amalgam of South African law. 122 00:12:48,680 --> 00:12:49,820 And this is the future. 123 00:12:49,820 --> 00:12:59,480 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, 124 00:12:59,480 --> 00:13:03,020 how we conceive of law and certainly an amalgam of South African law, 125 00:13:03,020 --> 00:13:07,670 I would say, is perhaps the best response that we have to serving people who are living in ways 126 00:13:07,670 --> 00:13:13,840 that actually don't fit neatly into boundary conceptions of two separate systems. 127 00:13:13,840 --> 00:13:20,920 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. 128 00:13:20,920 --> 00:13:28,180 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. 129 00:13:28,180 --> 00:13:34,960 Of course, what they're finding then is that when they are trying to live out the practise of living across those systems, 130 00:13:34,960 --> 00:13:38,500 the system that is most dominant is unable to respond to that. 131 00:13:38,500 --> 00:13:43,780 And so people find that they struggle to access a form of justice that might feel more legitimate to them, 132 00:13:43,780 --> 00:13:47,830 a form of justice that really responds to the types of challenges that they're facing. 133 00:13:47,830 --> 00:13:52,120 Because of course, the dominant system is not structured in a way that acknowledges, 134 00:13:52,120 --> 00:13:55,900 I would say, that people are living in ways that pull across boundaries. 135 00:13:55,900 --> 00:14:03,370 And so it is not in and of itself naturally receptive to these kind of cross system claims. 136 00:14:03,370 --> 00:14:08,200 I think that the lower level courts are probably having to be a lot more fluid and having to move 137 00:14:08,200 --> 00:14:12,730 across these boundaries in ways that perhaps the high level courts are not yet having to do. 138 00:14:12,730 --> 00:14:21,010 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. 139 00:14:21,010 --> 00:14:26,440 The question mark form of justice and to respond more appropriately to people's lived experiences. 140 00:14:26,440 --> 00:14:33,550 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. 141 00:14:33,550 --> 00:14:42,230 So as I alluded to earlier, I think the students that I was teaching really struggled to grapple with this idea that want 142 00:14:42,230 --> 00:14:47,320 to grapple actually with the idea of what it really means to live out the other dictum, 143 00:14:47,320 --> 00:14:53,200 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. 144 00:14:53,200 --> 00:14:56,830 But when they're having to really grapple with the practical application of that, 145 00:14:56,830 --> 00:15:01,240 it's something that that really tends to to sort of twist their brains into a bit of a knot. 146 00:15:01,240 --> 00:15:05,860 And so I think that our classrooms and academic spaces do have to play a game of catch up. 147 00:15:05,860 --> 00:15:11,920 And so if this future is not within reach, then I would say we risk being stuck in the space between the two. 148 00:15:11,920 --> 00:15:17,830 We risk kind of being stuck in a limbo that neither serves either of the systems, I would say, 149 00:15:17,830 --> 00:15:22,840 but certainly doesn't serve and respond to the lived realities of people in rural communities. 150 00:15:22,840 --> 00:15:31,630 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, 151 00:15:31,630 --> 00:15:35,110 mindful of the fact that people are living in ways that draw across systems, 152 00:15:35,110 --> 00:15:42,640 and if we don't push the dominant system a little bit more to be more receptive to and accommodating of that lived reality, 153 00:15:42,640 --> 00:16:01,590 then I think we'll end up doing a disservice to everybody involved. Thank you. 154 00:16:01,590 --> 00:16:07,170 It. Well, thank you very much for a very interesting presentation. 155 00:16:07,170 --> 00:16:14,520 Next up, it's professor. So I don't really want to be a spoilsport, 156 00:16:14,520 --> 00:16:20,790 but having listened to and into this morning talking about how the Constitutional Court embraces living customary laws, 157 00:16:20,790 --> 00:16:24,690 as you know, one of the bright lights on in the situation. 158 00:16:24,690 --> 00:16:33,310 Although, of course, Tim Baker, in his traditional enigmatic fashion made of rather unimpressed view about fish and I, 159 00:16:33,310 --> 00:16:42,510 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. 160 00:16:42,510 --> 00:16:47,400 It's probably a little bit the same one could say about Constitutional Court judgements. 161 00:16:47,400 --> 00:16:55,440 I'm going to, I think, try and approach the problem of what is living customary law from the perspective of a judge. 162 00:16:55,440 --> 00:17:00,210 And I think we all come at this question from our own particular perspectives. 163 00:17:00,210 --> 00:17:05,370 We think about it in terms of our experiences of it, why we are engaging with it, 164 00:17:05,370 --> 00:17:08,670 and I'm going to come at it from the perspective, particularly of a judge, 165 00:17:08,670 --> 00:17:16,740 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. 166 00:17:16,740 --> 00:17:20,070 I have no idea what that actually means for how I understand customary law, 167 00:17:20,070 --> 00:17:27,480 but I'm sure it's important to start out by acknowledging that that that's where are coming at it from. 168 00:17:27,480 --> 00:17:35,280 And I start from a similar point to Lundy, which is that basically customary law, as we note in South Africa, 169 00:17:35,280 --> 00:17:43,680 is part of a pluralist legal system which is unavoidably disruptive of what customary law was before. 170 00:17:43,680 --> 00:17:50,790 And that disruption really commenced. The moment of the colonial state began, and frankly, 171 00:17:50,790 --> 00:17:55,950 in all systems where there are two legal systems within overarching states will 172 00:17:55,950 --> 00:18:02,310 probably a problem of modern state formation as much as a problem of colonialism. 173 00:18:02,310 --> 00:18:11,760 I think that it's the intersection between a rooted system of norms with its own processes and institutions for solving community problems, 174 00:18:11,760 --> 00:18:20,580 encountering a form of the modern state that creates the pluralism which is particularly characteristic of the South African pluralism. 175 00:18:20,580 --> 00:18:27,210 And it is likely to continue unless we reach the kind of enormously attractive holy 176 00:18:27,210 --> 00:18:31,980 grail that not only holds are to us of a kind of amalgamation of these systems. 177 00:18:31,980 --> 00:18:39,150 It's likely to continue until we reach that stage. And so I thought it would be useful. 178 00:18:39,150 --> 00:18:43,080 And again, partly, I think, for the same reason that Newlands did, 179 00:18:43,080 --> 00:18:50,490 which is to start off with just talking briefly about three people because it reminds us that customary law 180 00:18:50,490 --> 00:18:55,320 actually impacts on lives of real people and those people in some of you in the room probably know them. 181 00:18:55,320 --> 00:19:03,630 And I don't judge you. Flora Milani Klinger, Annie Dyson, Mona, who's deceased, and in Marion Enyeama, 182 00:19:03,630 --> 00:19:09,600 who were the three main dramatis personae in the Constitutional Court case of my. 183 00:19:09,600 --> 00:19:18,060 This isn't going on, and the very short story that we know about them from the Constitutional Court judgement 184 00:19:18,060 --> 00:19:26,550 is that majority Flora and Klinger Annie Dyson got married on the 1st of January 1984. 185 00:19:26,550 --> 00:19:34,260 They they came from a small village in Manamela in Limpopo and Cavaney Voté village. 186 00:19:34,260 --> 00:19:42,780 So this would have been the time of apartheid. This was actually, at the time, largely Tsonga speaking area. 187 00:19:42,780 --> 00:19:49,320 And then we know that on the 26th of January 20, 2008, 188 00:19:49,320 --> 00:19:55,170 Langone Dyson Lianna entered into a second marriage or purported to do so with intent to marry with you on that. 189 00:19:55,170 --> 00:20:05,160 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. 190 00:20:05,160 --> 00:20:11,650 So an Inca put up a graph a little while ago about poverty and this area the former guys included, 191 00:20:11,650 --> 00:20:20,770 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. 192 00:20:20,770 --> 00:20:26,940 For those you know that Zimbabwe is one of those very poor areas, former homeland states. 193 00:20:26,940 --> 00:20:34,920 And one could speculate, perhaps more than you find information in the judgement about the circumstances in which they lived. 194 00:20:34,920 --> 00:20:42,900 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. 195 00:20:42,900 --> 00:20:47,280 But one could make probably what is an educated speculation, 196 00:20:47,280 --> 00:20:54,360 which is that it would have been about property because many of these cases that end up before the courts are about property. 197 00:20:54,360 --> 00:21:00,610 Now, the dispute was that both women approached after the death. 198 00:21:00,610 --> 00:21:08,740 And there has been both women approached the Department of Home Affairs today, customary marriages registered belatedly something that they could do. 199 00:21:08,740 --> 00:21:18,230 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. 200 00:21:18,230 --> 00:21:22,180 As Melanie went to the court to get an order, first to register her marriage, 201 00:21:22,180 --> 00:21:27,400 and second that a declaration that the second marriage that Mrs. Granuloma was asserting was in 202 00:21:27,400 --> 00:21:33,160 fact invalid because she had never consented to that second marriage and that those were crispy. 203 00:21:33,160 --> 00:21:38,620 The facts of the case. Now, one of the things one immediately sees about this is that when thinking about it 204 00:21:38,620 --> 00:21:42,880 from a judge in the state system is this is a pretty bare bones set of facts. 205 00:21:42,880 --> 00:21:48,280 This is how and basically state courts often decide things. 206 00:21:48,280 --> 00:21:51,640 If you were to mediate this problem, you'd want to know lots more detail. 207 00:21:51,640 --> 00:21:57,940 You'd want to know where they're children, where were they living, what were their financial circumstances, cetera, et cetera. 208 00:21:57,940 --> 00:22:02,230 But you don't ask those questions as a judge and you can't because the record is set before 209 00:22:02,230 --> 00:22:07,120 you and you have to work on the record because that's fairness between the parties. 210 00:22:07,120 --> 00:22:10,630 And that's so there's a very different approach to thinking about the facts than 211 00:22:10,630 --> 00:22:16,930 if you were in a customary law dispute resolution system or in a mediation. 212 00:22:16,930 --> 00:22:25,900 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. 213 00:22:25,900 --> 00:22:29,770 Let's turn to what the issues are, what how a judge begins to think about that. 214 00:22:29,770 --> 00:22:36,700 And being a former Constitutional Court judge, of course, we start by thinking about the Constitution and the Constitution tells us in 215 00:22:36,700 --> 00:22:42,580 Section 211 that the courts must apply customary law when that law is applicable, 216 00:22:42,580 --> 00:22:47,710 subject to the Constitution and any legislation that specifically deals with customary law. 217 00:22:47,710 --> 00:22:54,610 Section 211, as I said, and then Section 39 of the Constitution says when developing customary law, 218 00:22:54,610 --> 00:22:58,960 a court must promote the spirit, purported and objects of the Bill of Rights. 219 00:22:58,960 --> 00:23:08,680 And that's more or less that. And from these two provisions, I think in almost every case, five questions will come up. 220 00:23:08,680 --> 00:23:16,000 The first is what is customary law. The second is how do we determine what its contents are? 221 00:23:16,000 --> 00:23:20,410 The third is, when is it applicable and to whom is it applicable? 222 00:23:20,410 --> 00:23:26,620 The fourth is how do we determine whether it's consistent with the Constitution and any relevant legislation? 223 00:23:26,620 --> 00:23:34,240 And the last one is if we decide that it is not consistent with the Constitution, what then? 224 00:23:34,240 --> 00:23:37,690 Now, the first thing I want to say is that the first three of these questions, 225 00:23:37,690 --> 00:23:49,870 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. 226 00:23:49,870 --> 00:23:54,160 They would have had to have decided what is customary law. How do we determine what its contents are? 227 00:23:54,160 --> 00:23:59,620 When is it applicable? Of course, in those days is somebody I think was sent back and pointed out this morning. 228 00:23:59,620 --> 00:24:05,080 The question is how do we determine whether it is repugnant to the common law or not? 229 00:24:05,080 --> 00:24:15,070 And then if we decide it is what then? And I want to suggest that that's not because of the waywardness of judges. 230 00:24:15,070 --> 00:24:20,050 It is structurally built into the nature of a pluralist legal system. 231 00:24:20,050 --> 00:24:27,550 If you are a pluralist legal system in which one set of courts is having to apply and implement another, 232 00:24:27,550 --> 00:24:32,560 it is very difficult to see how you wouldn't start out by saying, Well, what does that legal system say? 233 00:24:32,560 --> 00:24:39,240 Who does it apply to? How do we decide what its contents are, etc.? 234 00:24:39,240 --> 00:24:48,660 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, 235 00:24:48,660 --> 00:24:56,370 into something that the state courts will recognise, enforce and require that disrupts the continuity of the indigenous system. 236 00:24:56,370 --> 00:25:01,020 It's that moment that is the moment of disruption. 237 00:25:01,020 --> 00:25:06,510 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. 238 00:25:06,510 --> 00:25:14,340 But I just want to give you a little outline before I do whatever I want to quote from a case, 239 00:25:14,340 --> 00:25:22,230 a 1918 case reflecting on the way in which the natal native code was made because it has, 240 00:25:22,230 --> 00:25:30,840 I think, extraordinary current resonance and isn't Queenie versus Nysa, and it's in the in that, the judge noted. 241 00:25:30,840 --> 00:25:37,920 I may say that the answers to some of the questions dealing with the native law of inheritance were very voluminous. 242 00:25:37,920 --> 00:25:48,120 Sounds very familiar. The chairman, who was doing the draught code, boiled down all these voluminous answers into a few leading principles. 243 00:25:48,120 --> 00:25:59,670 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. 244 00:25:59,670 --> 00:26:07,480 He can find himself declaring the supremacy of the Crown head, who had complete control so long as he lived over all the inmates. 245 00:26:07,480 --> 00:26:11,730 It ruled over all the inmates of his cruel and all the property of all the houses. 246 00:26:11,730 --> 00:26:18,810 He gave a clear definition to house property and simply declare that all property, which was not house property, was cruel property. 247 00:26:18,810 --> 00:26:22,680 And I question that because it really has resonance, I think, 248 00:26:22,680 --> 00:26:34,460 for the ways in which either legislatures or courts handle the voluminous mess of customary law in the modern era. 249 00:26:34,460 --> 00:26:41,330 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, 250 00:26:41,330 --> 00:26:46,910 there was a movement in southern Africa, went tied to the title of Women and Law in Southern Africa project, 251 00:26:46,910 --> 00:26:54,740 which began to analyse the way in which official customary law differed from how customary law worked in ordinary people's lives. 252 00:26:54,740 --> 00:27:04,700 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, 253 00:27:04,700 --> 00:27:12,020 what was in the textbooks, what was in the judgement of the Court of Appeal, what was in the natal code was customary law. 254 00:27:12,020 --> 00:27:16,430 It was a form of customary law, which came to be called official customary law, 255 00:27:16,430 --> 00:27:21,380 and it was recognised that this very often very little resemblance to the ways in 256 00:27:21,380 --> 00:27:26,210 which norms and rules and customs and usages were applied in ordinary villages, 257 00:27:26,210 --> 00:27:31,400 in towns and rural areas across South Africa. And that insight, I think, 258 00:27:31,400 --> 00:27:40,880 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. 259 00:27:40,880 --> 00:27:51,160 But as Deputy Chief Justice, Lamola said in his very straightforward and simple way in the Maligns Judgement Office, Sorry to Baker, 260 00:27:51,160 --> 00:27:57,800 it was the difficulty lies not so much in the acceptance of the notion of living customary law, 261 00:27:57,800 --> 00:28:03,800 but in determining its content and twisting it as the court should against the provisions of the Bill of Rights. 262 00:28:03,800 --> 00:28:11,600 One short sentence, one enormously big problem. So what is living customary law? 263 00:28:11,600 --> 00:28:14,300 Well, I don't know the answer to that precisely, 264 00:28:14,300 --> 00:28:19,640 but I think that there are a range of questions that we have to ask when we're thinking about that question. 265 00:28:19,640 --> 00:28:31,750 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? 266 00:28:31,750 --> 00:28:35,980 Human communities make lots of rules all the time. 267 00:28:35,980 --> 00:28:41,530 They are in Robert covers frame famous language, they are jurists generative. 268 00:28:41,530 --> 00:28:46,810 We make rules about how we should greet people. Rules of diet and nutrition. 269 00:28:46,810 --> 00:28:50,140 Rules of games and sports of workplaces. Of family rules. 270 00:28:50,140 --> 00:28:59,350 We are jurists generative. And how do we know which of those rules are rules that are going to be rules of customary law? 271 00:28:59,350 --> 00:29:04,990 Many legal theorists and here we are in Oxford. Could I have taught for 20 minutes without mentioning? 272 00:29:04,990 --> 00:29:17,200 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. 273 00:29:17,200 --> 00:29:26,620 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? 274 00:29:26,620 --> 00:29:32,080 And if they do, then you're much closer, probably to some idea of rules. 275 00:29:32,080 --> 00:29:34,150 Now the interesting question is whether this is helpful. 276 00:29:34,150 --> 00:29:40,000 It's very appealing because judges are desperately trying to get this, but is down to something that they can kind of manage. 277 00:29:40,000 --> 00:29:48,850 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 278 00:29:48,850 --> 00:29:53,530 Swallow gave when asked she was this was a couple that back to the people. 279 00:29:53,530 --> 00:30:02,030 This is a couple living in Mamelodi in Pretoria Urban. She and her husband had approached her mother in order to negotiate lobola. 280 00:30:02,030 --> 00:30:08,290 This is not the way the bowler was traditionally negotiated, and when this was put to her, she said, Well, 281 00:30:08,290 --> 00:30:16,660 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, 282 00:30:16,660 --> 00:30:24,040 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. 283 00:30:24,040 --> 00:30:26,920 And anyway, we were doing this to please my mother. 284 00:30:26,920 --> 00:30:35,830 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? 285 00:30:35,830 --> 00:30:39,970 Something I often think my children should think of a lot. So maybe it is an obligation, 286 00:30:39,970 --> 00:30:46,870 but it shows you how hard it is to fit to determine answers to this question of what 287 00:30:46,870 --> 00:30:52,270 are customs and usages that should be customary law and how should we approach them? 288 00:30:52,270 --> 00:30:59,650 Another problem is in the definition and the Recognition Act, for example, which gives us one of the few statutory definitions of customary law. 289 00:30:59,650 --> 00:31:05,680 It talks about customs and usages traditionally observed in community. 290 00:31:05,680 --> 00:31:15,430 Well, that's all very well, and we now know that customs change really quickly traditionally observed has this sort of time immemorial. 291 00:31:15,430 --> 00:31:17,020 This said, our grandfathers did it. 292 00:31:17,020 --> 00:31:21,760 And generally, those of us who are fathers of grandfathers think it's very good that the next generation should do it. 293 00:31:21,760 --> 00:31:29,080 But that's not how custom works. It changed very quickly. We know how woman rangers account of the invention of tradition, for example. 294 00:31:29,080 --> 00:31:34,720 So how should a court approach the idea that actually we shouldn't be treating customers 295 00:31:34,720 --> 00:31:41,280 something that is fixed in time and that's really what living customary law was all about doing? 296 00:31:41,280 --> 00:31:45,510 Lots of other questions, what about multiplicity? What about variety? 297 00:31:45,510 --> 00:31:52,320 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. 298 00:31:52,320 --> 00:31:58,920 But the next question that arises is how should the court determine the content of customary law? 299 00:31:58,920 --> 00:32:01,740 And of course, we've got section one of the Law Evidence Amendment Act, 300 00:32:01,740 --> 00:32:10,200 which tells us that judges can take judicial notice of customary law insofar as it can be ascertained readily and with sufficient certainty. 301 00:32:10,200 --> 00:32:15,480 But I can tell you that's not something that is very likely to arise. 302 00:32:15,480 --> 00:32:24,840 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. 303 00:32:24,840 --> 00:32:32,550 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, 304 00:32:32,550 --> 00:32:39,180 what happened in the Constitutional Court was that the court decided they're going to call for evidence as to whether, 305 00:32:39,180 --> 00:32:41,880 according to see stronger customary law, 306 00:32:41,880 --> 00:32:50,460 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. 307 00:32:50,460 --> 00:32:57,120 And Liz Malani asserted that it was necessary and she was backed up in that by her brother in law. 308 00:32:57,120 --> 00:33:01,710 But the majority in the court said No, that's not enough. We need evidence on that. 309 00:33:01,710 --> 00:33:08,370 Now, the court is divided on whether they should have called for evidence at all. 310 00:33:08,370 --> 00:33:12,390 But if you look through the evidence, nine pieces of evidence were laid before the court. 311 00:33:12,390 --> 00:33:21,390 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. 312 00:33:21,390 --> 00:33:25,830 But three witnesses thought the consent of the first wife was necessary. 313 00:33:25,830 --> 00:33:32,400 At least three for the consent of the first wife was not necessary or that she'd be expected to agree to support. 314 00:33:32,400 --> 00:33:38,360 The wife should be informed of the marriage, but that she had withholding of consent would not affect the validity of the marriage. 315 00:33:38,360 --> 00:33:45,930 One thought she might be informed and two thought that if she withheld consent, the family would get involved to persuade her to consent. 316 00:33:45,930 --> 00:33:54,630 This was a voluminous collection of norms about what is the rule relating to consent from the case. 317 00:33:54,630 --> 00:34:00,390 Why the Constitutional Court, I thought, was almost breathtaking confidence, 318 00:34:00,390 --> 00:34:08,850 said that the evidence was not contradictory but reflective of nuance and accommodation, 319 00:34:08,850 --> 00:34:15,990 and went on to conclude basically that the that songer law is that Tsonga men decide to enter into a further marriage. 320 00:34:15,990 --> 00:34:20,280 They must inform their first wife that their intention. And but of course, 321 00:34:20,280 --> 00:34:27,000 there was a just a disagreement with the minority of the court who said that the evidence was overwhelming 322 00:34:27,000 --> 00:34:32,890 in support of the conclusion that in fact customary law required the consent of a first wife. 323 00:34:32,890 --> 00:34:39,760 That's on the same evidence, written evidence to fundamentally different conclusions as to what customary law is, 324 00:34:39,760 --> 00:34:52,640 and I think it illustrates the difficulties of actually the application of living customary law in a very sharp and distinct way. 325 00:34:52,640 --> 00:35:01,520 It seems to me in conclusion, then, that it's not possible for us to avoid having to ask these questions, 326 00:35:01,520 --> 00:35:09,320 certainly as our Constitution is currently draughted and I am not sure and I've said this elsewhere in other whether 327 00:35:09,320 --> 00:35:15,920 there is any possibility of having a kind of rule of law top down system with the system that is living customary law. 328 00:35:15,920 --> 00:35:20,120 So I think that's something we really need to think about. 329 00:35:20,120 --> 00:35:28,520 The questions I'm more interested in about is if jurisprudence is about the prudence of judges, at least in part, 330 00:35:28,520 --> 00:35:35,390 what is it prudent for judges to do when faced with these extraordinarily difficult questions? 331 00:35:35,390 --> 00:35:44,930 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. 332 00:35:44,930 --> 00:35:49,670 And it seems to me that there are a couple of thoughts. 333 00:35:49,670 --> 00:35:59,370 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. 334 00:35:59,370 --> 00:36:05,360 I'm still with it completely that one of the ways of thinking about that is the extent that these 335 00:36:05,360 --> 00:36:10,490 different norms have different levels of constitutional compliance or some of them clearly aren't. 336 00:36:10,490 --> 00:36:13,940 That's one of the ways courts can think about it. 337 00:36:13,940 --> 00:36:22,880 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, 338 00:36:22,880 --> 00:36:26,750 I don't know that there's a way out of this problem that courts are going to steer 339 00:36:26,750 --> 00:36:31,460 us through safely and not got a lot of confidence in the Legislature either, 340 00:36:31,460 --> 00:36:38,000 because I think it's a particularly difficult problem for the Legislature. Not unlike the Natal could quote I gave you. 341 00:36:38,000 --> 00:36:42,380 But at least the democratically accountable in ways which courts are not. 342 00:36:42,380 --> 00:36:44,750 So just to finish off with a thought from Robert Carver, 343 00:36:44,750 --> 00:36:52,160 who I've been quoting on jurist generated just to perhaps discourage you a little bit more about litigation, 344 00:36:52,160 --> 00:36:58,370 judges characteristically do not create create law. He said they cannot. 345 00:36:58,370 --> 00:37:05,210 This is the jurist pathetic office confronting the luxurious growth of 100 legal traditions. 346 00:37:05,210 --> 00:37:11,120 They assert that this one is the law and destroy or try to destroy the rest. 347 00:37:11,120 --> 00:37:19,200 Thank you. Well, thank you very much, Kate. 348 00:37:19,200 --> 00:37:33,300 The next speaker is Thunder Boots, who Natalie Nichols is English people. 349 00:37:33,300 --> 00:37:51,150 Thank you. Good afternoon. I I asked to be put last so that these eminent colleagues could kick off this very difficult debate. 350 00:37:51,150 --> 00:37:57,510 And I have in the Senate, which takes off my shoulders. 351 00:37:57,510 --> 00:38:06,870 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. 352 00:38:06,870 --> 00:38:13,080 I do the example and the example really is something taken from my speciality. 353 00:38:13,080 --> 00:38:22,000 What I do, which is. African customary marriage and the paper that a prepared. 354 00:38:22,000 --> 00:38:33,200 It is important to. To say this, it is Typekit applying live in customary law in South Africa, 355 00:38:33,200 --> 00:38:40,220 dismantling and reconstructing the essentials for validity of the customary marriage. 356 00:38:40,220 --> 00:38:48,560 So that's what I intend to talk about. It might actually be coincidence link with both what Monday and Kate have said, 357 00:38:48,560 --> 00:38:58,970 because what it brings out with this study is the fact that it is very difficult to work out what's even customary. 358 00:38:58,970 --> 00:39:16,720 Law is killing my seems. The irony of all of this is that difficult, though it is to decide. 359 00:39:16,720 --> 00:39:21,500 What is meant by customary law and how to identify it? 360 00:39:21,500 --> 00:39:29,600 Each was met with a ripple of applause across all legal fight, all the legal fraternity in South Africa. 361 00:39:29,600 --> 00:39:36,890 When the courts, particularly the Constitutional Court, let us quite clearly down the paths, 362 00:39:36,890 --> 00:39:44,570 which says the customary law that is recognised by the South African Constitution in section 211, 363 00:39:44,570 --> 00:39:51,650 subsection three is leaving customary law, not an official customary law. 364 00:39:51,650 --> 00:39:58,160 The reason that brought up a great deal of applause was because everybody who knows the South 365 00:39:58,160 --> 00:40:08,020 African system will know some of the abuses and distortions that were brought into customary law. 366 00:40:08,020 --> 00:40:16,000 By the official version, so it was something to celebrate that we were moving towards leaving customary law, 367 00:40:16,000 --> 00:40:22,120 but by definition to say it is what people are doing now. 368 00:40:22,120 --> 00:40:33,730 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. 369 00:40:33,730 --> 00:40:43,660 It is, is, is difficult. And but we are happy that it is not the customary law of the Native Americans and the 370 00:40:43,660 --> 00:40:51,400 books and the textbooks and the code that is now the ruling customary law in South Africa. 371 00:40:51,400 --> 00:40:54,940 That is probably all I'm going to say about leaving customary law. 372 00:40:54,940 --> 00:41:09,670 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. 373 00:41:09,670 --> 00:41:13,360 I am hoping that the presentation is going to be better than the people, 374 00:41:13,360 --> 00:41:22,390 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 375 00:41:22,390 --> 00:41:31,030 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. 376 00:41:31,030 --> 00:41:37,060 But let's get back to the decisions of customary marriage and what has gone wrong. 377 00:41:37,060 --> 00:41:44,960 What's the problem? Well, your problem is and. 378 00:41:44,960 --> 00:41:52,130 One has to take it step by step. First of all, the recognition formula in the Recognition of Customary Marriages Act, 379 00:41:52,130 --> 00:42:06,950 which is an act that was passed in 1998 and came into it, was promulgated for 15 November 2000, when it came into effect. 380 00:42:06,950 --> 00:42:14,000 The formula that recognised customary marriages in that act was that it said 381 00:42:14,000 --> 00:42:20,660 all existing marriages that are valid under customary law are now recognised. 382 00:42:20,660 --> 00:42:25,160 This was the first, but all marriages. 383 00:42:25,160 --> 00:42:35,430 And then the second party says all marriages that come into effect after coming into effect of this act and that followed. 384 00:42:35,430 --> 00:42:44,790 The rules set out in this act are recognised so that three 2000 marriages and post 2000 marriages, 385 00:42:44,790 --> 00:42:58,280 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. 386 00:42:58,280 --> 00:43:04,340 Official watch it, but if they were recognised in customary law, they were valid. 387 00:43:04,340 --> 00:43:14,960 The problem is with the ones that came after the act because they were supposed to be valid if they complied with the act. 388 00:43:14,960 --> 00:43:20,750 And what did they say? Would be a qualification? 389 00:43:20,750 --> 00:43:33,990 What would compliance mean? Well, it's all down to a section called Section three labelled requirements for validity. 390 00:43:33,990 --> 00:43:41,600 We take some time from my judgement to explain this slow requirements for validity. 391 00:43:41,600 --> 00:43:53,490 And in fact, three in this sense one the parties must be 18. 392 00:43:53,490 --> 00:44:01,740 And over to the parties must consent to remarried. 393 00:44:01,740 --> 00:44:06,700 And three, the marriage itself. 394 00:44:06,700 --> 00:44:18,190 Must have been negotiated and entered into or celebrated, according to customary law, and that is where the trouble started. 395 00:44:18,190 --> 00:44:25,300 Let's take it back a step, OK? First requirement the parties must be 80. 396 00:44:25,300 --> 00:44:32,990 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. 397 00:44:32,990 --> 00:44:41,090 It is a better alignment with the Children's Act with the in the treaties. 398 00:44:41,090 --> 00:44:46,910 The South Africa signed a vote if the child and naughty child Adrian was not a problem. 399 00:44:46,910 --> 00:44:52,430 In fact, this was seen as an advance on the Marriage Act of 1961, 400 00:44:52,430 --> 00:45:01,820 which still requires that some children at 15 with various permissions can get married, so ageing was good to the parties. 401 00:45:01,820 --> 00:45:10,230 Must consent to be married. Well, I wish the. Low commission and parliament had stopped. 402 00:45:10,230 --> 00:45:19,170 The parties must contend. They didn't, they said the parties must consent to be married to each other, according to customary law, 403 00:45:19,170 --> 00:45:27,540 which is an unusual formulation and not only an eye towards this course that you see in customary 404 00:45:27,540 --> 00:45:37,470 when students found it amusing to work out why it is very difficult to actually comply with it. 405 00:45:37,470 --> 00:45:42,300 The parties must agree to be married to each other, according to customary law. 406 00:45:42,300 --> 00:45:44,850 You can imagine that was not going to happen. 407 00:45:44,850 --> 00:45:53,520 Is somebody dropping on one knee and saying, Oh Mildred, will you make me the happiest man in the world by marrying me? 408 00:45:53,520 --> 00:45:57,120 You know? But is it possible? 409 00:45:57,120 --> 00:46:10,890 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. 410 00:46:10,890 --> 00:46:14,040 But will the courts have not had a problem with it? 411 00:46:14,040 --> 00:46:21,900 Because, of course, context it does tend to say these people would intending to marry under customary law. 412 00:46:21,900 --> 00:46:34,110 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. 413 00:46:34,110 --> 00:46:42,270 The courts have to be careful that this particular way of asking for the woman's hand in marriage was, in fact, 414 00:46:42,270 --> 00:46:48,690 because they intended to marry under customary law and not because it was a precursor to receive marriage. 415 00:46:48,690 --> 00:46:56,850 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. 416 00:46:56,850 --> 00:47:08,660 And remember that Typekit must be negotiated. And entered into all celebrated in accordance with customary law. 417 00:47:08,660 --> 00:47:21,140 Now that leads me to a point where we can safely list some of the things that have been tied up with the problem. 418 00:47:21,140 --> 00:47:32,720 The problem is that there is a rising incidence at home of people denying the existence of a customary marriage, 419 00:47:32,720 --> 00:47:38,520 and mostly it will be the family of a deceased man. 420 00:47:38,520 --> 00:47:40,420 And. 421 00:47:40,420 --> 00:47:53,980 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. 422 00:47:53,980 --> 00:48:04,030 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 423 00:48:04,030 --> 00:48:14,140 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. 424 00:48:14,140 --> 00:48:22,870 The men's people, on the other hand, will basically try and deny everything and frustrate every item of truth. 425 00:48:22,870 --> 00:48:37,480 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. 426 00:48:37,480 --> 00:48:44,650 The things that go wrong. Let me just I just said or related to the water level was not discussed. 427 00:48:44,650 --> 00:48:49,360 Lovullo arrangements were not at the level of a page in full lobola was not trade. 428 00:48:49,360 --> 00:48:54,370 In fact, no one was paid in cash. Instead of cash, lobola was paid to the wrong person. 429 00:48:54,370 --> 00:49:04,480 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. 430 00:49:04,480 --> 00:49:09,730 Liberal acceptance rituals were not done. Navarro negotiating team did not follow protocol. 431 00:49:09,730 --> 00:49:20,140 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. 432 00:49:20,140 --> 00:49:26,350 We counted seven. There was no handover at all. The word handover is going to be important here. 433 00:49:26,350 --> 00:49:31,570 There was no date set for the handover or the wedding celebration. The handover was to the wrong persons. 434 00:49:31,570 --> 00:49:35,530 The handover was done by the wrong persons and the wrong venue. 435 00:49:35,530 --> 00:49:40,960 Cohabitation does not constitute a local handover to not follow correct ceremonies. 436 00:49:40,960 --> 00:49:48,130 Now we have said here that the nine plus seven there are more. 437 00:49:48,130 --> 00:49:52,210 There was nine more in the case of more open. 438 00:49:52,210 --> 00:50:03,130 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. 439 00:50:03,130 --> 00:50:07,840 There was the case of Magica with residual requirements mentioned in the case, 440 00:50:07,840 --> 00:50:14,890 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, 441 00:50:14,890 --> 00:50:23,350 the mean, the dates, the functions to fall. No, and the reason this is a problem is because of the 39 cases. 442 00:50:23,350 --> 00:50:34,660 I looked at the decision by the court as to what the essentials of a customary marriage in South Africa, where lives as. 443 00:50:34,660 --> 00:50:40,930 With a fair sense of saying, right now, nobody knows. 444 00:50:40,930 --> 00:50:49,520 And that is not good. It is going to lose the respect that we have been hoping for for customary law. 445 00:50:49,520 --> 00:50:57,730 These people are not going to take seriously a system where you can't decide when the fact is married or not. 446 00:50:57,730 --> 00:51:05,180 But because each individual I want to try something entirely different and 447 00:51:05,180 --> 00:51:12,730 cut across all of this and say that the argument I have been trying to make, 448 00:51:12,730 --> 00:51:20,830 I am not sure whether, in fact it is a good argument or a bad argument. 449 00:51:20,830 --> 00:51:25,950 But if you start with the Section three itself. 450 00:51:25,950 --> 00:51:33,300 The mischief starts with failure to understand a subsection B, 451 00:51:33,300 --> 00:51:40,530 and what it means is that the marriage must be negotiated and entered into force in the future to within customary law. 452 00:51:40,530 --> 00:51:47,160 You will find in the paper some examples of why that is a problem. 453 00:51:47,160 --> 00:52:04,290 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. 454 00:52:04,290 --> 00:52:07,290 Out of about five points that I had made, 455 00:52:07,290 --> 00:52:20,180 I'd like to mention to the tendency of judges sitting on this issue to talk about true or authentic living law. 456 00:52:20,180 --> 00:52:32,550 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, 457 00:52:32,550 --> 00:52:35,950 at least in these matters. And. 458 00:52:35,950 --> 00:52:45,400 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, 459 00:52:45,400 --> 00:52:51,150 there is still the thing that happens that happens to us as teachers, which is to say. 460 00:52:51,150 --> 00:53:01,320 Everybody knows that water is not expected to be paid in full for a marriage to take place. 461 00:53:01,320 --> 00:53:07,950 We tend to accept that whether what judges or teachers who don't call for evidence because we think we know that. 462 00:53:07,950 --> 00:53:17,700 So that is one and the other is default to common law, but defer to permanent official law. 463 00:53:17,700 --> 00:53:23,520 I mentioned here, but I will skip it. Defaulting to a common law is actually quite problematic. 464 00:53:23,520 --> 00:53:31,680 Each is different to common law. Each is seen in what I have said in the paper linguistic giveaways. 465 00:53:31,680 --> 00:53:38,880 And it is where it is conceptual, where the judge just believes that the common law is a better option. 466 00:53:38,880 --> 00:53:42,220 This distinguished linguistic giveaways are quite something. 467 00:53:42,220 --> 00:53:52,140 And judge the funding here for insulting and faced with failure to understand this as a custom, 468 00:53:52,140 --> 00:54:04,050 a total of all links with the affiliation of children in a marriage and basically hold it tough traffic, traffic trafficking in people. 469 00:54:04,050 --> 00:54:19,140 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. 470 00:54:19,140 --> 00:54:22,290 So there are a lot of problems at home. 471 00:54:22,290 --> 00:54:32,700 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. 472 00:54:32,700 --> 00:54:43,960 And the question is. If you live in customary law, is this community to me? 473 00:54:43,960 --> 00:54:54,010 Now today, and we do it because we consider that it is binding on us. 474 00:54:54,010 --> 00:55:03,180 And if that is how we make a living testimony, we must persuade a court that this is the rule of the community. 475 00:55:03,180 --> 00:55:15,540 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 476 00:55:15,540 --> 00:55:25,590 and Elaina Moore have written in their book and recognising it is a form of customer customer base that it must be the whole. 477 00:55:25,590 --> 00:55:30,480 And it must be the integration of the woman into the man's family. 478 00:55:30,480 --> 00:55:34,440 I'll tell you later if we have time where I agree with it. 479 00:55:34,440 --> 00:55:47,090 How can we help the courts not listen to all kinds of inventions invented tradition in general and. 480 00:55:47,090 --> 00:55:58,430 Sometimes. Deciding to tell lies to the court about what is your rules? 481 00:55:58,430 --> 00:56:04,880 How do we do that? And my question is, is it possible then that at some point leaving customary law, 482 00:56:04,880 --> 00:56:12,380 although it is very much now and here is also something that is linked to the past, 483 00:56:12,380 --> 00:56:22,100 the rest of the people worries about whether it is justifiable to talk of even customary law by giving it a problem. 484 00:56:22,100 --> 00:56:31,550 It goes back to the past about what the value that used to underlie that custom is and whether a value can vary across. 485 00:56:31,550 --> 00:56:40,160 Even though the implementation of the practise is done under its umbrella to change, I do not know the answer to that question, 486 00:56:40,160 --> 00:56:43,940 but I do suspect that if it were possible, 487 00:56:43,940 --> 00:56:52,580 then one would be able to say we accept lobola negotiations because that is underlined by the value of Africans. 488 00:56:52,580 --> 00:56:57,290 That marriage in customary law is a non individual thing. 489 00:56:57,290 --> 00:57:01,250 The two people getting married are simply joining two huge groups together, 490 00:57:01,250 --> 00:57:09,560 and Lolo is the pathway by which they make this happen and embed it because they have to form a friendship. 491 00:57:09,560 --> 00:57:17,660 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, 492 00:57:17,660 --> 00:57:24,710 it's more is the fact that in the case of suicide and this a it's on the case. 493 00:57:24,710 --> 00:57:30,380 It's all known as that of Whv the rapper and judgement most. 494 00:57:30,380 --> 00:57:37,080 He has gone so far as to say that. 495 00:57:37,080 --> 00:57:45,660 Although he will take the marriage, therefore he's a widow, was his wife and customary law, 496 00:57:45,660 --> 00:57:53,220 and while the family said no, but she had not been handed over, she said he said hanging over is unconstitutional. 497 00:57:53,220 --> 00:57:58,410 How would you hand another adjunct or to other people? 498 00:57:58,410 --> 00:58:07,440 And it's totally problematic because one he is criticising as discriminatory 499 00:58:07,440 --> 00:58:13,590 the English rendering of handing over even its cousin delivery of the bride. 500 00:58:13,590 --> 00:58:17,700 I've always enjoyed those tips. But now they've come back to bite us. 501 00:58:17,700 --> 00:58:25,500 Judge McClarkin says that handing over is unconstitutional because it's discriminatory. 502 00:58:25,500 --> 00:58:33,450 I will live with this thought, and if it is possible that we can extract a value and is what it is, 503 00:58:33,450 --> 00:58:38,100 I quote some anthropological work say, just to help the point that, 504 00:58:38,100 --> 00:58:48,180 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. 505 00:58:48,180 --> 00:58:56,190 But if you look at why a woman needs to be introduced to the ancestors of the husband, 506 00:58:56,190 --> 00:59:04,920 it makes very good sense that there was a value that was important here when we came to this idea of integration. 507 00:59:04,920 --> 00:59:18,840 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, 508 00:59:18,840 --> 00:59:28,213 even though Google is largely about the here and now.