Deber jurídico

The denial of philosophic status to the African thought system laid the ground for the domination of African law by Western law in South Africa. The various repugnancy provisos enacted by the pre-Union British colonies and Boer Republics, were consolidated in section 11(1) of the Black Administration Act (BAA), so that the policy40

could be applied universally and uniformly throughout South Africa as part of the decision to deprive the African population of the right to enjoy their own culture. Section 11(1) of the BAA reads:

Notwithstanding the provisions of any other law, it shall be in the discretion of the Commissioners’ Courts in all suits or proceedings between Blacks involving questions of customs followed by Blacks, to decide such questions according to the Black law applying to such customs except in so far [as] it shall have been repealed or modified: provided that such Black law shall not be opposed to the principles of public policy or natural justice: provided further that it shall not be lawful for any court to declare that the custom of lobolo or bogadi or other similar custom is repugnant to such principles.

The sub-text underlying the policy to exclude African values by subjecting them “to the principles of public policy or natural justice”, was that the only cultural and normative values that were worthy of consideration, were those with their roots in Western

Idem 262.

37

See Ruru op cit 264.

38

See Steward J “W hy I can’t teach custom ary law” in Eekelaar J and Nhlapo T (eds) The changing

39

family: International perspectives on the family and family law (1998) 18 at 18-28. See Act 38 of 1927.

jurisprudence. This was done in total disregard of the fact that received Western law and African law are two different legal systems, each with its own background rules and regulations for enforcing order in society. The imposition of the European metaphysical life-world on areas that ordinarily fell to be regulated by African culture proved that the true objective of colonial policy was the subjection of African law to the values of Roman-Dutch law.

The effect of the colonial and apartheid legal frameworks was that African law had to be consistent with the Western-oriented principles of public policy or natural justice, before it could be applied. This ensured the subordination of the indigenous value system to common law. In this regard, it is instructive that the BAA framework was known as the Black Administration Act; a suitable term for a law that consolidated colonial power to administer the Africans as colonial subjects and not to uphold the African value system.

Indeed what was opposed to the principles of public policy and natural justice was what Western jurisprudence classified as such; even when the practice concerned proved quite consistent with African standards of morality. In order to institutionalise and41

implement the exclusion of Africans from the mainstream justice system, the BAA established an exclusive statutory framework for a separate ministry, a separate administration and a separate court system that targeted black South Africans for the delivery of inferior justice.

The BAA established special Commissioners’ Courts manned by white officials with a discretion to apply African law to black South Africans. The real purpose of establishing these courts was the imposition of Western values on African people through the repugnancy clause. This is borne out by the fact that the stated objective of the clause was to confer a discretion on presiding commissioners to apply African law subject to the proviso that it was not opposed to the principles of public policy and natural justice. Consequently, an entire dispensation was created to promote the separate social, political and legal “needs” of black people by a parliament in which they were not represented.

See Nwabueze op cit 179.

In this way, the policy of racial exclusion ensured that Africans were not served by the courts which served the rest of the population. This predicament induced Deveaux to make the following observation:

Under apartheid, administrators had an interest in reinforcing the cultural differences of different African groups. Traditional African leaders were wooed by apartheid administrators, who in turn shored up and underwrote the chief’s power and authority in return for guarantees of loyalty. This system was made easy by the adoption of the Black Administration Act No 38 of 1927.42

In the following dictum, McLaughlin P also captures the history of the unequal treatment of Western and African law thus:

The attitude of the legislature towards natives and Native Law in the Transvaal is clearly shown by the survey of the history of legislation on the subject since the early Republican days. The natives were placed in a category separate from the Europeans and they were permitted no equality either in the system of law applied to them nor in regard to the courts to which they were accorded access in civil matters … It is the Shepstonian conception of legal segregation successfully adopted in Natal and imported into the Transvaal on annexation in 1877.43

It is gratifying that the presiding officer saw the colonial application of African law and the channelling of Africans to a separate system of customary law courts for what it was – a form of racial inequality. Of course, inequality did not flow from the application of African law to Africans; it resulted from entrusting cultural outsiders with the application of African law, and subjecting customary law to the repugnancy clause. The latter became so unpopular among Africans that parliament was forced to exempt the custom of lobolo or bogadi from the courts’ jurisdiction.

Dlamini exposes the paradox of exempting the custom of lobolo or bogadi from the courts’ repugnancy jurisdiction whilst leaving African marriage itself outside the exemption as a fallacy indeed. The policy’s anomaly arises from the possibility that a44

See Deveaux M “Liberal constitutions and traditional cultures: The South African law debate” (2003)

42

7/2 Citizenship Studies 161.

See Matsheng v Dhlamini and Another 1937 NAC (N&T) 89 at 91.

43

See Dlam ini CRM “The clash between custom ary law and universal hum an rights” (2002) 1/1

44

court could, in theory, declare a customary marriage to be contrary to the principles of public policy and natural justice, and strike it down, whilst upholding the lobolo/bogadi undergirding that very marriage. This policy exposes the prevailing legislative mind-set as so naive as to suggest that African law could be applied to certain African legal institutions – such as lobolo/bogadi – outside of their value system. This colonial complacency appears to have accepted that an African custom could survive in an alien environment regulated only by Western jurisprudential principles even after ruling the cultural context underpinning it repugnant to good morals.

By staffing the blacks-only Commissioners’ Courts with white presiding officials who were not tutored in African cultural practices, the BAA institutionalised this skewed interpretation of African law. Moreover, these were the only courts in the country which had first instance jurisdiction over African law apart from the courts of traditional leaders that had limited customary law jurisdiction. Through the repugnancy clause, the Commissioners’ Courts fulfilled a “cultural cleansing” role in that they ensured the striking down of genuine African law whenever it conflicted with Western conceptions of justice and morality. In Tshabalala v Estate Tunzi, Marsberg P endorsed this judicial policy in exercising the repugnancy jurisdiction in the following terms:

According to pure Native law no woman can own property, but the Native Appeal Court has held that the widow is entitled to retain in her own right to property earned by her after her husband's death; the Court was aware that this is in conflict with Native Custom, but when Native Custom is repugnant to justice and equity it must go.45

In the Tshabalala case, the court looked at African law through a Western lens as required by the repugnancy policy. Contrary to the African values of group solidarity and shared belonging, in terms of which the whole of the widow’s marital family has a collective interest in the land, the court treated her individual interest in property separately as if it were dealing with a common law matter. By individualising the widow’s interest and separating it from its communal cultural context, the court clearly arrived at a result that was acceptable to Western justice and equity.

1950 NAC 46 (C) at 48.

Moreover, the court was motivated purely by the Western concept of justice, which preferred the protection of the individual over the communal unity of the family. The outcome was the imposition of a value system that distorted African norms by setting the individual against the group which was the real guarantor of her property rights in indigenous law. Yet African law recognised widow’s interests in property, but unlike46

common law, it did so through the values of shared belonging and collective solidarity with other family members. Like everyone else in the family the widow’s property47

interest affected and was affected by the communal interest of the collective.

When the court treated the widow as an individual, it removed her from the scale of values espoused by her customary security system. It therefore distorted her cultural relations in her own community. This result exposes the objective of the repugnancy48

clause as seeking to subject African law to Western standards of morality. That the court was not referring to African justice and equity appears from its interpretation of the widow’s rights as though it was a right under common law.

The repugnancy clause as entrenched in section 230 of the Natal Code of Zulu Law presented itself as an instrument for trumping African values which conflicted with Western values in Tshiliza v Ntshongweni where the court held:

I quite agree that under unmodified Native Law such a transaction as the one alleged might have been allowed. But the Code [of Zulu law] attempts to elevate the standard of morality among the Natives and Section 230 was evidently framed with such an end in view … Even long established custom has to give way before statute law, and therefore this custom must give way before section 230.49

As can be observed the colonial/apartheid courts applied the repugnancy clause to trump African values by promoting Western moral standards; something that persisted until the end of apartheid. Moreover, the prevailing principle of legislative sovereignty, which placed statute law above custom, bolstered the administration of cultural imperialism for Africans.

See Ngcobo J in Bhe-Shibi par 173 where he explains the protection afforded by group rights.

46

Ibid.

47

See also MEC for Education: KwaZulu-Natal v Pillay 2006 (101) BC LR 1237 (N) par 53.

48

1908 NHC 10 at 11.

As Tshiliza’s case shows, any conflict between African law and statutory law had to be resolved in favour of the latter. This enhanced status given to colonial/apartheid statutes, also raises questions about their legitimacy as they were applied with a view to disenfranchising Africans and so preventing them from developing their own African system. African culture, however, recognised customary law-makers as the only authentic authors of this system.50

When the Hoexter Commission evaluated the application of African law in South Africa in 1986, it created a positive expectation that the period of full recognition for the African value system had eventually arrived. Subsequent to the report of the Hoexter51

Commission, the Magistrates Courts Amendment Act 32 of 1988 was enacted to implement its recommendations. Section 54A(1) of the Act abolished the Commissioners’ Courts which had previously enjoyed the monopoly in applying African law. The amendment extended the application of African law to all South African courts whenever the system was applicable. This provision was further amended in the same year by section 1(1) of the Law of Evidence Amendment Act 45 of 1988 which reads:

Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not be opposed to the principles of public policy and natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles.

The retention of the repugnancy clause and the equation of African law with foreign law are indications that the era of non-recognition of African values and cultural imperialism was not yet over. This much appears from the scathing remarks elicited by Hlophe JP when he held as follows in Mabuza v Mbatha:

In conclusion the test is not, in my view, whether or not African Customary Law is repugnant to the principles of public policy or natural justice in any given case ... The

Bennett TW “R e-introducing African custom ary law to the South African legal system ” (2009) 57 The

50

American Journal of Comparative Law 1 at 2 says: “Any question about the legitim acy of custom s can be laid to rest by an assum ption that all m em bers of the com m unity concerned participated in the creation”. See also Allott AN “W hat is to be done with African custom ary law? The experience of problem s and reform s in Anglophone Africa from 1950” (1984) 28/1-2 JAL 56 at 59-60.

See the Fifth Report of the Hoexter Com m ission of Inquiry into the Structure and Functioning of the

51

former approach which only recognises African law to the extent that it is not repugnant to the principles of public policy or natural justice is flawed. It is unconstitutional.52

The case of Sigcau v Sigcau is a classic example of the distortive application of53

African law by the colonial/apartheid judiciary. The dispute between two half-brothers, Nelson Sigcau, the plaintiff, and Botha Sigcau, the defendant, was triggered by the death of their father, King Marelane Sigcau of Eastern Pondoland in 1921, without an heir in the Great House. The parties contested the position of heir to the royal estate, generally known as Qaukeni Estate, the palace of the Kingdom of Eastern Pondoland.

The interference of cultural outsiders in African culture emerged when the Union government separated what were essentially inseparable issues by approaching the matter from the perspective of the Western concept of justice as an inheritance rather than a leadership contest. The dispute regarding the kingship position was handled separately as an administrative matter whilst the dispute about succession to the royal estate was handled judicially, although the two issues belonged together and should never have been separated.54

The potential for prejudice was apparent when the administrative dispute was resolved in favour of the defendant while the judicial contest was still pending before the courts. Counsel for the defendant was tempted to argue that the latter’s appointment as a traditional leader under section 23 of the BAA, served to settle the matter of the estate in his favour. This provoked the following retort from Chief Justice Watermeyer:

The Government in making an appointment is not bound to appoint the man who would be chief according to Native Custom, and it could not be seriously suggested that a

See Hlophe JP in Mabuza v Mbatha 2003 (7) BC LR 743 (C) par 32.

52

See Sigcau v Sigcau 1941 C PD 334 and Sigcau v Sigcau 1944 AD 67. The background facts to the

53

Sigcau cases are that a dispute arose between two princes, Botha Sigcau and Nelson Sigcau, both sons of the late King Marelane Sigcau of the Qaukeni Kingdom (Eastern Pondoland), who died in 1921. Each prince claim ed both the chieftainship and the property of the Qaukeni Estate, which was the palace for the kingdom . In his succession plan the king had left at least four wives:

• the Great W ife (indlovukazi), Mankosinani, who unfortunately had no surviving m ale child; • the Right Hand W ife, Mapakati, m other of Botha Sigcau (the defendant/respondent);

• the Qadi (supportive) W ife to the Great House, Mam tshibeni, m other of Nelson Sigcau (the plaintiff/appellant) and Maneli;

• and another Qadi W ife to the Great W ife Maqinebe, m other of Mandlonke, who was later adopted as the son of the Great W ife, and therefore the successor to his father’s position, in an effort to diffuse the divisive contest between Botha and Nelson.

See Mqhayi SEK Ityala lamawele (1914) 1-24 where the twins’ case was handled as a single dispute.

custom has grown since 1927 of giving the property of the man who would be Chief by Native Custom to the Chief appointed by the Government if they were not one and the same person.55

Hence the separation of the issues came close to prejudicing the matter in favour of the defendant before it had been finalised by the court because the latter was designated paramount chief (statutory king created by the BAA) even while the parties were still arguing the ownership of the royal estate in the courts. Under African law an appointment as the king would automatically settle the dispute as to succession to the royal estate. The latter procedure would be in line with the indigenous one followed in the twins' case where the succession dispute was handled as a seniority contest, the resolution of which would automatically settle both succession to the status of family headship and the position of the trustee of the family estate as these functions are inseparable.

Indeed the judges involved in the Sigcau case realised their ontological and epistemological shortcomings as Western trained lawyers who were not steeped in African culture. Evidence of lack of African cultural orientation appears from the following dictum of Davis J in the Cape Provincial Division:

I wish that the Court could decide [this question] now, yet as it involves native law and custom of which without evidence it necessarily knows nothing, it seems manifest that it cannot do so. Evidence must be led, for instance, as to exactly of what the Qaukeni Estate consists and what are the rights of the Chief in relation thereto, of how native law and custom bind it to the Chieftainship, whether there can be more than one Chief, what precisely is meant by the “Great House”, and so on.56

This was echoed on appeal by Watermeyer CJ who issued similar lamentations:

This Court is faced with a difficult problem. Pondo law and custom is a body of unwritten law save for certain decisions of the Native Appeal Court and statements as to Native Law and Custom made by native assessors which are recorded in the reports of the Native Appeal Court, and save for certain passages in books dealing with native custom. But even such records as there are little more than records of traditions, records of what someone at some time said the custom was. In the reported cases the

See Sigcau v Sigcau 1944 AD 67 at 75.

55

See Sigcau v Sigcau 1941 C PD 334 at 342.

recorded opinions of assessors naturally harden into law, and certain books are to