Indigenous Law in South Africa Lessons for Australia?
Bede ~ a r r i s *
The High Court's finding in Mabo v Queensland (No 2)' (hereafter Mabo)
that Aboriginal land rights had survived the reception of English common
law in Australia, implied that some rules of Australian law were to be
found in indigenous institutions, as the existence of indigenous rights
surely presupposes an indigenous legal system. However, the aftermath of
Mabo has not seen general recognition of Aboriginal law. In Walker v New
South wales2 for example, the court rejected the argument that a system of
Aboriginal criminal law had survived colonisation. The inconsistency
between Mabo and Walker highlights a major unresolved issue - that of
the status of indigenous law in Australia. The purpose of this paper is to
review the current position of customary law, to identify unresolved
questions, and to suggest a modus vivendi between indigenous and the
received law. In so doing, I will examine the way in which these issues
have been addressed in South Africa, where indigenous law has long been
recognised, and where the demise of apartheid has given new impetus to
the promotion of indigenous culture. South Africa is also a good source of
material as academic synthesis of and comment on indigenous law has
been prolific,3 and the enactment of a Bill of Rights has focused renewed
*
BA(Mod) (Dublin), LLB (Rhodes), DPhil (Waikato), Senior Lecturer,
School of Law, James Cook University. This research is the product of a
visit to the University of Natal (Durban), Murdoch University and Northern
Territory University, funded by an Australian Research Council grant. I
would like to express my appreciation to the Law Schools at all three
Universities for their hospitality, and to the ARC for the support provided
for the project. This article is dedicated to my mentor, A J K m , Emeritus
Professor of Law and Honourary Research Fellow, Rhodes University, who
first inspired my interest in customary law.
(1992) 175 CLR 1.
(1994)182CLR45.
JC Bekker "The influence of recent legislation and constitutional changes
on the application of African customary law" in A J G M Sanders (ed) The
5 JCULR
Indigenous Law in South Africa
71
attention on the status of indigenous law. Part I1 of the article surveys the
status of customary law in South Africa and the statutory provisions
governing its recognition. Part I11 examines the choice of law rules that
operate in South Africa. Part IV examines the potential for conflict
between customary law and South Africa's Bill of Rights. Particular
attention is given to those rules of customary law which are most likely to
come into conflict with the right to equality. Part V examines the status of
customary law in Australia. Part V1 discusses issues likely to arise if
customary law was accorded general recognition. A set of choice of law
rules is proposed, and problems associated with proof of indigenous law
are addressed. Finally, the author examines the issue of the compatibility
of indigenous law with international human rights documents ratified by
Australia.
It should be emphasised that this paper does not offer a general comparison
of indigenous law in South Africa and Australia. Rather it compares the
responses of the legal systems in each jurisdiction to customary law. Thus
although South African institutions such as polygyny and chieftaincy have
no counterparts in Australian indigenous law, their relevance for Australia
lies in the way in which the South African legal system resolves the
tensions between those institutions and fundamental human rights. This
may offer useful pointers to the Australian legal system as it addresses
issues such as whether, if indigenous law was accorded formal recognition
by the legal system, recognising corporal punishment under Aboriginal law
would be compatible with international human rights norms to which
Australia has subscribed.
The modern state of South Africa is the product of the amalgamation of
four colonies which formed the Union of South Africa in 1910. The status
of indigenous law hffered in each of what then became provinces of South
Africa (and, in the case of the Cape and Natal, between areas within them),
with the result that, in the words of the Transvaal Supreme Court, there
generally prevailed a "chaotic state of affair^".^ To address this problem
customary law was put on a uniform footing throughout South Africa by
the Native Administration Act No 37 of 1927 (the name of which was
subsequently amended to the Black Administration Act), parts of which
continue to apply today.
Internal Conflict of Laws in South Africa (Butterworths: Durban, 1990) 25,
32.
Roodt v Lake (1906) 23 SC 561,564.
The Black Administration Act 1927
It is important to note that it was implicit in the Black Administration Act as it had indeed been in all dealings with indigenous peoples since
settlement - that colonisation had involved an extinguishment of
indigenous sovereignty. Although under the principle in Campbell V ~ a l f
the laws of the inhabitants of lands which were not terra nullius remained
in force unless abrogated by the colonising power, the law operating at the
Cape upon assumption of British sovereignty in 1806 was assumed to be
~ o m a n - ~ u t c- h
that
~ is, the law of the previous colonising power, not the
law of the indigenous inhabitants. The subsequent recognition accorded
customary law was recognition of that law as part of the South African
legal system, not as the manifestation of any residual indigenous
sovereignty. Such authority as indigenous rulers (kings, chiefs and
headmen) continued to enjoy was delegated to them by colonial authorities
as part of a policy of "indirect rule" necessitated by the small number of
colonial administrators relative to the subject population.7 This remains
the position, as is most starkly illustrated by s 1 of the Black
Administration Act which vests the President of South Africa with the title
of "Supreme Chief' of all blacks, and by 2(7), which empowers him to
recognise and appoint chiefs of tribes and to make regulations prescribing
their duties, powers, privileges and conditions of service. Furthermore the
President may depose such chiefs as have been recognised or appointed.8
The power to appoint and depose - which is not constrained by customary
laws of succession to chieftainship9 - gives to the received legal system
control over the most fundamental institution of indigenous society, and
serves to emphasise the completeness of the loss of indigenous
sovereignty.
The Act confers jurisdiction on courts presided over by chiefs and
headmen, approximately 1500 of which have been officially recognised.''
Under s 20 criminal jurisdiction is conferred on chiefs and headmen in
respect of crimes at common, statutory and customary law, other than
(1 774) 1 Cowper 204.
R v Harrison & Dryburgh 1922 AD 320, 330. Roman-Dutch law was
brought to South Africa when the Cape of Good Hope was colonised by the
Netherlands in 1652.
T W Bennett A Sourcebook of African Customary Law for Southern Africa
g
l'
(Butterworths: Durban 1991) 55-56.
Section 2(7)bis.
Mathibe v Union Government 1925 AD 81, Minister of Native Affairs v
Buthelezi 1961 (1) SA 766 (D).
Bennett supra n. 7 at 63.
5 JCULR
Indigenous Law in South Africa
73
crimes listed in the Third Schedule of the Act (essentially serious crimes
such as murder, rape, culpable homicide, robbery and assault with intent to
do grievous bodily harm). Furthermore, chiefs' and headmen's courts may
only punish by imposing fines." Civil jurisdiction is governed by s 12(1)
and is limited to claims arising out of customary law (thus damages
claimed under the common law of delict may not be heard) and also
excludes matrimonial causes. A general limit on jurisdiction restricts the
courts to hearing civil cases between blacks and criminal cases in which
blacks are the accused. Who is a "Black" South African for the purposes of
the Act is defined by s 35 as "any person who is a member of any
aboriginal race or tribe of Africa". The impossibility of giving a racial
classification to artificial persons means that corporations and public
authorities cannot be sued in these courts.12 Chiefs' and headmen's courts
also operate according to indigenous procedure, which in general is
directed towards mediation and reconciliation as much as adjudication,13
and may involve input by the whole community, not just the judge,
litigants and witnesses.14
The recognition and application of indigenous law by the courts of the
received legal system was regulated by s 11 of the Act (now repealed)
which provided as follows:
What law to be applied in Commissioner's Courts
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 lobola or bogadi or other similar custom is
repugnant to such principles.
Several key points should be noted. Firstly, the application of customary
law was a matter of discretion, and this remains the case under the
11
l2
l3
l4
Section 20(2). Default in payment of a fine is punishable by imprisonment
imposed by a magistrate's court under s 20(5).
Bennett supra n. 7 at 67.
J F Holleman Issues in African Law (Mouton: The Hague, 1974) 16-18.
Bennett supra n. 7 at 70-77.
successor to S 11.l5 Thus, despite the apparent respect for legal pluralism
evinced by the legislation, it can be argued that the received law views
indigenous law as inferior in status. Secondly, by confining the
application of customary law to "suits or proceedings between Blacks" the
legislature restricted the discretion to civil cases.16 There was therefore no
possibility under the 1927 Act of customary law being applied in criminal
law cases in the general court system - its relevance to criminal law was
restricted to such cases as are heard by chiefs and headmen. Thirdly, the
operation of customary law was restricted to black South Africans, a
limitation which, given the racial divisions in South Africa, significantly
limited the scope of customary law - white South Africans could not
become bound by customary law even if they entered into a transaction
with a black South African.17
The 1986 amendment
Section 11 of the Black Administration Act 1927 was repealed in 1986 and
re-enacted as S 54A(1) of the Magistrates' Courts Act 1944 (the provisions
of the 1927 Act relating to indigenous courts being retained). This Act
abolished separate Commissioners Courts applying customary law, and
their jurisdiction was transferred to the ordinary Magistrates' courts.18
This created a situation in which magistrates who lacked the specialist
knowledge of Commissioners would be called upon to apply customary
law.'' Furthermore, the termination of a separate Commissioners Courts
and their Appeal Court, which were courts of record, and the transfer of
their jurisdiction to Magistrates' Courts which were not, meant that
developments in customary law are now traceable only in those rare cases
appealed from a magistrates court to one of the provincial High
15
16
l7
''
l9
20
Section 1 of the Law of Evidence Amendment Act 45 of 1988, discussed
below.
T W Bennett The Application of Customary Law in Southern Afn'ca (Juta &
CO: Cape Town, 1985) 69.
Ibid 67-8.
Special Courtsfor Blacks Abolition Act 34 of 1986.
Bennett supra n. 7 at 82, N J J Olivier Indigenous Law (Butterworths:
Durban, 1995) 202-203, Bekker supra n. 3 at 3 1.
Bennett, supra n. 7 at 140.
5 JCULR
Indigenous Law in South Africa
75
The new regime - the Law of Evidence Amendment Act 1988
Section 54A(1) of the Magistrates' Courts Act was repealed in 1988 and
replaced by S 1 of the Law of Evidence Amendment Act 45 of 1988, the
relevant section of which provides as follows:
1 Judicial notice of law of foreign states and of indigenous law
(1) Any court may take 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 or 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.
(2) The provisions of subsection (1) shall not preclude any party from
adducing evidence of the substance of a legal rule contemplated in
that subsection which is in issue in the proceedings concerned.. .
(3) In any suit or proceedings between Blacks who do not belong to
the same tribe, the court shall not in the absence of any agreement
between them with regard to the particular system of indigenous
law to be applied in such suit or proceedings, apply any system of
indigenous law other than that which is in operation at the place
where the defendant or respondent resides or carries on business or
is employed, or if two or more systems are in operation at that
place (not being within a tribal area), the court shall not apply any
such system unless it is the law of the tribe (if any) to which the
defendant or respondent belongs.
(4) For the purposes of this section 'indigenous law' means the Black
law or customs as applied by the Black tribes in the Republic.. .
This enactment enhanced the status of customary law in that whereas
previously only magistrates' courts had been able to take judicial notice of
customary law, all courts may now do so. Furthermore, the removal of the
restriction that customary law was applicable only in "suits or proceedings
between Blacks" means that it is in theory now possible for customary law
to be applied in cases involving whites and in criminal cases. In reality
however its application in such instances will be limited: Whites rarely
enter into transactions in circumstances which will lead a court to find that
indigenous law is applicable, and it is unlikely that State prosecutors will
ever bring criminal charges under customary law in the magistrates'
courts, infringements of such law being left to chiefs' and headmen's
courts which, as has been stated, have jurisdiction only over blacks.21
The 'repugnancy' clause
Section 11 of the 1927 Act subjected the application of customary law to a
repugnancy clause (appearing in the form of the "public policy or natural
justice" proviso), still present in the 1988 legislation. Given its blatant
ethnocentricity, it is perhaps surprising that the repugnancy clause has
been engaged by the courts in only a few c i r c ~ r n s t a n c e s .Debate
~~
over the
repugnancy clause has been largely overtaken by debate on the impact on
customary law of the newly enacted Bill of Rights.
Ascertainment of customary law
In discussing customary law it must be recognised that there is no such
thing as "South African customary law" - there are as many systems of
customary law as there are communities applying it. Furthermore, while
each of the major tribes forms a legal community, even this level of
differentiation is insufficient if one is to obtain an accurate picture of the
diversity of customary law systems: The "tribe" should be seen as a broad
construct, referring to an ethnic grouping located within a specific
geograplc area, within which there are a variety of sub-tribes, clans and
families, each of which may develop their own customary law.23 Indeed,
most modern scholars see the rigid tribal taxonomy produced by colonial
21
22
23
The application of customary law by the general courts must be
distinguished from the impact of customary law on the received law. An
example of this is where defendants charged with common law crimes such
as murder or assault plead self-defence on the ground that they believed the
person they killed or assaulted to be a witch who had cast a spell on them.
Where such defences have been accepted it has been on the basis that they
satisfy the requirements of the defence at common law, that is, a response
reasonably proportionate to the threat faced by the accused (the subjective
nature of mens rea in South AErican law making it irrelevant that belief in
witches is irrational from a Western perspective). There is no reported
instance of such a case being decided on the basis that the accused is
pleading a rule of indigenous law which conflicts with a rule of the
common law. If such a defence were raised the courts would be faced with
a choice of law issue.
For example, where marriages were contracted without the consent of both
parties, and where transactions involved prostitution, forced labour or the
sale of children. See Bennett supra n. 7 at 133.
Bennett supra n. 7 at 24-37
5 JCULR
Indigenous Law in South Africa
77
authorities as reflecting those authorities' perceptions and serving their
political and administrative convenience (and later, the policy of
apartheid, a fundamental element of which was the division of the black
population into separate "nations") rather than as reflecting the infinitely
more fluid reality of African society.24 Furthermore, the rapid urbanisation
that has occurred within South Africa during past decades, which has led
to the intermingling in urban areas of people from various tribes and the
subsequent creation of a population who lived their entire lives in urban
areas divorced from tribal roots, suggests that recognition should now be
accorded to what has been called "new custom" - that is, customary law
that has been developed by unofficial courts established by urban black
South Africans. 25 It is best therefore to recognise that particular
communities may develop their own variations of customary law, and that
such communities may derive from a relatively small area - in Mazibuko v
~ a z i b u k o , for
~ ~ example, a local variation was alleged (albeit
unsuccessfully) to apply among the indigenous inhabitants in the area of a
small town in rural Natal.
Much has been made of the dichotomy between "official" customary law
(which has been codified into legislation, confined by precedent and
subject to academic analysis) and "authentic" customary law (that which
exists as oral tradition within black communities)." The extent to which
written customary law fails to reflect authentic oral tradition is open to
debate. However, it would be a mistake to conclude that codification,
24
25
26
27
Ibid and the sources cited there.
R Suttner "Legal pluralism in South Africa: a reappraisal of policy" (1970)
19 International and Comparative Law Quarterly 134, 145. For a study of
unofficial urban Afkican courts see J Hund and M Kotu-Rammopu "Justice
in a South Afkican Township: the sociology of makgotla" (1983) 16
Comparative and International Law Journal of Southern Africa 179.
1930 NAC (N & T) 143.
See, for example, M L Chanock "Neo-traditionalism and the customary law
in Malawi" (1978) 16 African Law Studies 80; S Roberts "Introduction:
some notes on "African Customary Law" (1984) 28 Journal of African Law
1 ; M L Chanock Law, Custom and Social Order: the colonial experience in
Malawi and Zambia (Carnbridgc University Press: Cambridge, 1985) Ch
10-11; J Griffiths "What is legal pluralism?'(l986) 24 Journal of Legal
Pluralism 1; S E Merry (1988) 22 "Legal pluralism" Law & Society Review
869; B W Morse and G R Woodman (eds) Indigenous Law and the State
(Floris: Dordrecht 1987). On the debatc in South Africa see A J G M
Sanders "How customary is African customary law?'(1987) 20
Comparative and International Law Journal of Southern Africa 405; C R M
Dlamini "The future of African customary law" in Sanders supra n. 3 at 1,
4-5; Bennett supra n. 16 at 23; Bennett supra n. 7 at vi.
precedent-setting and text-writing are inherently incompatible with "true"
customary law. As Allott states, the formal, written rules of common law
marriage, for example, do not tell the whole story about that institution, yet
such rules are an indispensable part of it.28 SOtoo in the case of customary
law, the remedy for such discrepancies as may exist between "official" and
"real" customary law can be minimised by remedying the inefficiencies of
the former in keeping pace with contemporary developments.
The recognition of customary law by the received legal system raised the
problem of how its substance was to be ascertained. Such a problem did
not, of course, exist within indigenous communities themselves - as Allott
states, "[iln the [customary] African courts the customary law is supposed
to be in the breasts of the judges".29 By contrast, the application of
customary law by judicial officers who were not members of those
communities, required some method by which courts could be satisfied
that the oral rules of customary law that were alleged to be applicable truly
reflected the norms of indigenous c o r n m ~ n i t i e s .The
~ ~ result was that
customary law that was not already incorporated into formal sources (that
is, into a code or an existing case precedent) has always had to be proved
as a question of fact,31 usually by means of expert evidence32 by
anthropologists33and elders belonging the litigants' tribes.34
Although some have criticised the qualification in S l(1) of the Act that
customary law "is to be applied in so far as [it] can be ascertained" as
providing an avenue for the circumvention of customary law by those
judicial officers who have no knowledge of it,35 it was surely necessary,
given the unwritten, diverse and inherently variable nature of customary
law36 that the statute have contain some provision dealing with the
situation where a rule of customary law not already known to the formal
legal system is relied upon by a litigant (as litigants are entitled to do under
A N Allott "What is to be done with African customary law?'l984 Journal
of African Law 56, 68.
A N Allott (ed) Conference [on the] Future of Customaly Law in Africa
1959-60 (London) 14-15.
Bennett supra n. 7 at 137. For a general discussion of legal pluralism see
M B Hooker Legal pluralism :an introduction to colonial and neo-colonial
laws (Clarendon Press: Oxford, 1975).
Bennett supra n. 16 at 19.
Ibid 29-30
As in Sibasa v Ratsialingwa & Hartman NO 1947 (3) SA 369 (T).
Bennett supra n. 16 at 30.
Bekker supra n. 3 at 30.
Bennett supra n. 16 at 17.
5 JCULR
Indigenous Law in South Afn'ca
79
S l(2)). An unfortunate omission from the legislation was any provision
providing for the calling of black assessors with knowledge of customary
law to act as advisory members of the court - a measure which might
reduce the need for reliance on expert evidence,37 which in many cases
puts the law out of the financial reach of litigants.38
A common feature of the 1927, 1986 and 1988 statutory regimes has been
the fact that, with the exception of certain aspects of marriage and
succession, courts are not required to apply customary law, rather the
matter is one of discretion. Accordingly, precedents on the nature of the
discretion arising under the 1927 Act remain valid in respect of the 1988
legislation.39 Two separate exercises in choice of law are contemplated:
The first takes place when the court exercises its dscretion under S l(1) of
the Act whether to apply indigenous law or common law. The second,
governed by S 1(3), arises only if the court has decided to apply indigenous
law, and it appears that more than one system of indigenous law may be
applicable.
Choosing between indigenous and common law
The scope of the discretion to apply indigenous law and the way in which
the discretion should be exercised was considered by the Appellate
Division in Ex parte Minister of Native Affairs: In re Yako v ~ e ~in ?
which it was held that S 1l(1) of the Black Administration Act 1927 did not
require that a Commissioner consider either common law or customary law
as prima facie applicable,41but rather that the discretion was an open one,
and that a Commissioner should "determine which system of law it would
be fairest to apply in deciding the case between the parties"42and similarly
should bear in mind that "the dominant consideration is his own reasoned
view as to the best system of law to apply in order to reach a just decision
between the parties".43 Quite apart from its general vagueness,44 this
37
38
39
40
41
42
43
Bekker supra n. 3 at 30.
N J J Olivier in Sanders supra n. 3 at 51.
Ibid 39.
1948 (1) SA 388 (A).
Ibid 397.
Ibid.
Ibid 400-401.
formulation presents the fundamental problem in that, while inviting
presiding officers to answer the choice of law question in such a way as to
achieve what they conceive of as a "fair" or "just" outcome, it offers no
guidelines as to what "fairness" and "justice" means in this context.
Indeed, Shreiner JA expressly declined to lay down guidelines as to how
the discretion was to be applied,45although commenting that it would not
be inconsistent with the Act for a Commissioner to take into account the
extent to which the litigants were "urbanised or detribali~ed"~~
and that
justice might require that a court take into account "the whole personality
of the person injured, including his or her social standards".47
Bennett suggests that the choice of law discretion should be guided by the
fundamental principle underlying legal pluralism, which is that the
members of each community are entitled to have their own law applied to
them and that therefore "their expectations must be accommodated by
application of the system of law which they could reasonably have
anticipated [would apply] in the circumstances of the case".48 In this
process the techniques of private international law are useful, but only to a
limited extent, as they are employed in the context of choice of law
between jurisdictions whereas the issue at customary law is which of a
number of personal law systems within a jurisdiction is applicable.49
Furthermore, private international law technique involves the
characterisation of a legal issue followed by the use of the relevant
connecting factor - for example, if the validity of a marriage is the issue,
the connecting factor is the lex loci celebrationis, which will lead to
identification of the lex causa. By contrast, in the case of choice of law
between customary and the received law, the appropriate legal system is
indicated by factors associated with the parties themselves rather than by
reference to the branch of substantive law involved, and so a contractual
dispute, for example, might be decided under customary law between
litigants A and B, but under common law between litigants C and D
because of their differing personal circu~nstances.~~
44
45
46
47
48
49
Olivier supra n. 19 at 206, J D van der Vyver "Human rights aspects of the
dual system applying to Blacks in South Afi-ica" (1982) 15 Comparative
and International Law Journal of Southern Africa 306,312-314.
Supra n. 40 at 398.
Ibid.
Ibid 399.
Bennett supra n. 16 at 105.
A J G M Sanders "The role of comparative law in the internal conflict of
laws" in Sanders supra n.3 at 58.
Bennett supra n. 16 at 106-108.
5 JCULR
Indigenous Law in South Africa
81
According primacy to the intention of the parties is unproblematic where
the parties have entered into an express choice of law agreemenLS1
However, such cases are rare, and the courts are more usually confronted
with a situation where only one of the parties indicates which legal system
he or she expects to be applied - usually this is apparent from the way in
(or the defendant his or
which the plaintiff presents his or her s~rnrnons'~
her defen~e).'~In such instances it is clear that the court cannot allow an
expression of preference to be determinati~e,'~as the choice of law
question may be the very issue in dispute in cases where a litigant seeks to
have applied whichever system of law favours h m or her. Here too
precedent offers no firm guide - in Yako v Beyi, Schreiner JA stated that
while in some cases it would be fairest to apply whichever system gave the
plaintiff a right of action, in others fairness might require that the court
apply whichever system provided a defence to the action,55 a position
which he re-affirmed in Umvovo v ~ m v o v o ' ~where he stated that
"although the existence of a remedy under one legal system and not under
the other would be a major factor in the exercise of the discretion, it must
not be treated as if it were the only consideration, leading automatically to
the application of the system providing the remedy. In the circumstances
of a particular case justice may best be served by applying the legal system
which gives no remedy".57 In practice, the courts have, since Urnvovo,
ceased to base their choice of law determination on the existence of a
remedy, a development which is to be applauded in that, as Bennett points
52
53
54
55
56
57
Ibid 108-109. Mbonjiwa v Scellam 1957 NAC (S) 41. See also Sompetu v
Kolisi 1976 BAC 8 (S), where the applicable system was agreed at a pretrial conference. Note, however, that the court is still exercising its
discretion - it has been made clear that the parties do not by their agreement
oust the discretion of the court (Moima NO v Matladi 1937 NAC (N & T)
40, Lebona v Ramokone 19467 NAC (C & 0),Ciya v Malanda 1949 NAC
154 (S)).
See, for example, Mkize v Makatini 1950 NAC ( N E ) 207, Mvemve v
Mvemve 1950 NAC (NE) 284, Ngidi v Ciya 1965 BAC (NE) 50.
See, for example, Moima NO v Matladi 1937 NAC (N & T) 40.
Ciya v Malanda 1949 NAC 154 (S).
Supra n. 40 at 399-400. In Yako v Beyi the plaintiff had claimed damages
for seduction under South African common law, which conferred on her the
advantage firstly that under it she had locus standi to bring the claim
unassisted by her male guardian (who would have had to bring the case on
her behalf under customary law) and secondly that under the common law
she could be awarded greater damages than under customary law. In this
instance the court found that the common law claim should be allowed.
1953 ( 1 ) SA 195 (A).
Ibid201.
the fact that a legal system does not provide a remedy for conduct
which is alleged to be unlawful simply indicates that that legal system
regards the conduct as l a h l , not that such conduct is beyond its purview.
In the absence of an agreement between the parties, their expectation
should, Bennett suggests, be discovered by taking into account as many
connecting factors as are relevant in the circumstances of the case,59with
the courts basing their decisions on the aggregate impression thus
~reated.~' This is indeed what occurred in the decades following the
decision in Yako v Beyi, and it is instructive to survey the factors - none of
them conclusive - that have been taken into account by the courts in
determining which system of law to apply:
The broadest is the factor of "lifestyle",61 by which is meant the litigants'
cultural orientation, which is in turn indicated by a number of factors, such
as whether the person resides in a rural area and with the tribal community
or has left to pursue an independent life in an urban area (although here it
should be noted that urbanisation does not necessarily imply
detribalisation), and his or her occupation, religion, mode of habitation,
dress et cetera.62 This very broad criterion does however have its
limitations, primarily deriving from the fact that it is rarely possible to
conclude that a person's lifestyle is wholly "tribal" or wholly "Western",
and this has led some to reject the lifestyle criterion derived from the
circumstances of an individual's conduct in favour of formal registration
by a person as a member of a
Finally in this regard,
identification of lifestyle (however accomplished) is of no use in cases
where opposing litigants have different lifestyles, in which case this
59
60
62
63
Bennett supra n. 16 at 71.
Ibid 108.
Ibid.
Ibid 74-75, 109-110.
Tumana v Simayile 1 NAC 207 (1908), Mboniswa v Gasa 1 NAC 264
(1909), Ntikinca v Mzilikazi 3 NAC 250 (1916), Ntsabelle v Poolo 1930
NAC (N & T) 13, Monaheng v Konupi 1930 NAC (N & T) 89,
Magwentshu v Molete 1930 NAC (C & 0 ) 40, Nzalo v Maseko 1931 NAC
(N & T) 41, Ramothatha v Makhothe 1934 NAC (N & T) 74, Magadla v
Hams 1936 NAC (C & 0 ) 56, Yako v Beyi 1944 NAC (C & 0)72, Lebona
v Ramokopne 1946 NAC (C & 0 ) 14, Sibanda v Sitole 1951 NAC 347
(NE), Mbuli v Mehlomakulu 1961 NAC 68 (S), Mvubu v Chiliza 1972 BAC
66 (NE).
Sanders supra n. 49 at 59-60.
5 JCULR
Indigenous Law in South Africa
83
criterion brings one no closer to determining the applicable choice of
The nature of the transaction may provide a strong pointer in cases where
the transaction is known only to one system of law.65 Thus, for example, a
court would have no difficulty in concluding that a lobolo (bridewealth)
agreement will be governed by customary law,66 while a contract of
insurance, and other commercial transactions, will be subject to common
and statute law.67 On the other hand, this factor will be of limited use
where the transaction is of a type known to both legal systems,68in which
case the court will need to have recourse to the other connecting factors in
arriving at its decision.
The form a transaction takes may well signal which system of law the
parties expected to apply.69 Thus a marriage entered into by performance
of indigenous rites will be governed by customary law, while the execution
of a will according to the formalities of the received law will indicate that
indigenous law was excluded in favour of common and statute law.
Finally, the place in which an event occurs or in which property is located
may indicate the applicable law.70 However, caution is warranted here:
The very fact that in South Africa the duality of the legal system is based
on the concept of personal law - that is, that a person is entitled to the
application of his or her communal law irrespective of wherever he or she
is - suggests that geographic location should not figure prominently in
choice of law decisions. This is so because in some situations - for
example in respect of liability for civil wrongs or rights to movable
property - the place in which the transaction takes place or the property is
located may be wholly fortuitous.
Choosing between indigenous law systems
Section l(3) of the 1988 Act mandates that where litigants come from
different tribes, then in the absence of a choice of law agreement, the court
Bennett supra n. 16 at 75 and 110.
Ibid 74 and 110.
Gomani v Baqwa 3 NAC 71 (1917), Peme v Gwele 1941 NAC (C & 0 ) 3,
Fuzile v Ntloko 1944 NAC (C & 0 ) 2.
Maholo v Mate 1945 NAC (C & 0 ) 63, Dhlamini v Nhlapo 1942 NAC (N
& T) 62, Nhlanhla v Mokweno 1952 NAC 286 (NE).
Bennett supra n. 16 at 74.
Ibid 110.
Ibid. See also Mokoba v Langa 1952 NAC (S) 76.
must apply the law of the defendant. In Bennett's opinion the term
"agreement" is to be interpreted as covering implied as well as express
agreements. He therefore states that if, during the course of the prior
inquiry to determine whether indigenous law is applicable, it becomes
apparent that application of the choice of law factors (lifestyle, nature and
form of the transaction et cetera) raises the implication that the parties
expected a particular indigenous law system to apply, then the court should
give effect to that expectation.71 This suggestion is of merit - it is clearly
preferable to determine the applicable law by means of objective criteria,
rather than to apply an arbitrary rule which imports the obvious risk that a
party may seek to manipulate the choice of law proceedings, armed with
the knowledge that if customary law is shown to be applicable there is a
statutory signpost as to which particular indigenous system will operate.
IV
CUSTOMARY
LAWAND THE BILLOR RIGHTS
Contemporary attitrcdes to customary law
During the years of apartheid as well as subsequently, there has been
increasing debate among black South Africans over the role of customary
law. On the one hand, preservation of customary law is seen by some as
having provided the white minority government with a useful tool for the
promotion of segregation7' and the exclusion of blacks from the received
legal system which, in the opinion of most whites, and of some blacks,
meant relegation of blacks to a legal system which was less sophisticated
and inferior.73 Furthermore, as Bennett notes,74the fact that social change
was sweeping black society whereas many of the norms underpinning
customary law were inconsistent with such changes -- particularly in so far
as the status of women was concerned - meant that the preservation of
customary law to some extent strengthened the position of traditionalists
and conservatives - particularly the chiefs - within black society.75
Furthermore, the apartheid government considered that the status of chiefs
should be enhanced because many of the latter had little sympathy with the
revolutionary aspirations of the younger generation.76 The standing of
customary law courts (and thus, to some extent, of customary law itself)
was undermined in that the chiefs who presided over those courts
71
72
73
74
75
76
Bennett supra n. 7 at 134.
Bennett supra n. 16 at vii and 66.
This debate is canvassed by Dlarnini supra n. 27 at 2.
Bennett supra n. 16 at 66.
Bennett supra n. 7 at v-vi.
Bennett supra n. 16 at 47.
5 JCULR
Indigenous Law in South Africa
85
performed administrative functions on behalf of the government, and were
thus seen as collaborators with it, an association which became all the
more harmful during the apartheid era,77particularly when the government
began using its power to recognise and depose chiefs to replace its
opponents with compliant appointees.78 A contrary body of black opinion
however saw customary law as an important aspect of indigenous culture,
which needed to be protected from extinguishment by colonial culture,79
and indeed developed in order to advance indigenous self-determinati~n.~'
Furthermore, the institution of chieftainship, whatever the faults of some
incumbents, continues to enjoy popular support.81
Constitutional negotiations and the 1993 Interim Constitution
Controversies within the black community over the future status of
customary law reached new heights of rancour when the Multi-Party
Negotiating Process (MPNP), at which South Africa's first post-apartheid
constitution was negotiated, convened in 1993. Should the Interim
Constitution (which would be replaced by a final Constitution, to be
enacted by Parliament sitting as a Constituent Assembly) re-affirm African
customary law, even where inconsistent with what some might consider
the Western-oriented Bill of Rights, or should the Constitution permit the
invalidation of rules of customary law where, for example, that law
clashed with the right to equality, so long denied to indigenous South
Africans? The sensitivity of this issue becomes all the more apparent
when the position of black women is considered, as they had suffered from
double discrimination, as indigenous persons under apartheid, and as
women both under common law and customary law.
At the conference, representatives of South Africa's traditional leaders
argued not only for an affirmation of the status of customary law in the
Constitution, but also for the exemption of customary law from the
~ ~
ground that the subjection of
provisions of the Bill of ~ i ~ h tons ,the
77
78
79
80
82
Bennett supra n. 7 at 56-57 and 63-64.
J C Bekker 'Tribal government at the crossroads" (1991) 21 Africa Insight
126; T Quinlan "The perpetuation of myths: a case study on tribe and chief
in South Africa" (1988) 27 Journal of Legal Pluralism 79.
Bennett supra n. 16 at 14.
Bennett supra n. 7 at vi.
C R Cross "The land question in KwaZulu: is land reform necessary?"
(1987) 4 Development South Africa 428.
As one of the chiefs was reported to have said (sec C Albertyn "Women
and the transition to democracy in South Africa" 1994 Acta Juridica 39 at
58 n76) "my son can be successfully challenged for my throne by my
indigenous law to a Western-style Bill of Rights would constitute an act of
ethnocentricity far more egregious than the repugnancy clause. This
attracted vehement opposition from female representatives attending the
negotiations. The outcome was that the Interim constitutiong3recognised
the authority of traditional leadersg4and the status of customary law?'
However there was no exemption from the operation of Chapter 3 on
Fundamental Rights, and certain rules of indigenous law were tested by the
courts, as will be seen in the discussion of chieftaincy below.
The 1996 Constitution
The final Constitution of 1 9 9 6 , ~addressed
~
the status of traditional leaders
and of customary law in Chapter 12, which provides as follows:
Recognition
211 (1) The institution, status and role of traditional leadership,
according to customary law, are recognised, subject to the
Constitution.
(2) A traditional authority that observes a system of
customary law may function subject to any applicable
legislation and customs, which includes amendments to,
or repeal of, that legislation or those customs.
(3) The courts may apply customary law when that is
applicable, subject to the Constitution and any legislation
that specifically deals with customary law.
g3
84
daughter, because the Bill says that all forms of discrimination - and it is
emphatic on gender - should not be permitted".
Republic of South Afiica Constitution Act 200 of 1993.
Section 181(1) provided for the continued recognition of traditional
authorities, while and ss 183 and 184 provided for the establishment of
Houses of Traditional Leaders at provincial level and a Council of
Traditional Leaders at national level to which bills pertaining to the powers
of traditional leaders or to customary law would be referred.
Customary law was frequently referred to in the Constitution, and S 31
protected the right of people to participate in the cultural life of their choice,
the latter provision arguably included the right to have customary law
applied (see T W Bennett Human Rights and African Customary Law (Juta
& CO:Cape Town, 1995)) 23-27.
Constitution of the Republic of South Africa Act 108 of 1996.
5 JCULR
Indigenous Law in South Africa
87
Role of traditional leaders
212 (1) National legislation may provide for a role for traditional
leadership as an institution at local level on matters
affecting local communities.
Section 8(1) provides that the Bill of Rights binds all three branches of
government, thus establishing that its terms are of both "vertical" and
"horizontal" application, and that therefore rules of private customary law
as applied by the courts must be consistent with the Bill of Rights. The
subjection of customary law to the Bill of Rights by s 211(3) and s 8(1)
means that whether a rule of customary law which is inconsistent with the
Bill of Rights will survive judicial review depends upon whether the rule
can satisfy the general test laid down in s 36(1) for valid limitations of
rights - namely that the limitation "is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom".
The potential for conflict between customary law and the Bill of Rights is
significant. The right to equality is protected by s 9 of the Bill of Rights,
which provides as follows:
Equality
9
(1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights
and freedoms. To promote the achievement of equality,
legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair
discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate against anyone on one
or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5) Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination is fair.
Customary society is patriarchal,87 with inheritance to both chieftaincyg8
and property89passing to male heirs only in accordance with the rules of
primogeniture.g0 Under customary law women are regarded as lacking the
intellectual judgment of males and so have the status of perpetual minors,
lacking contractual capacity and locus ~ t a n d i . ~ A
' woman thus passes
from the guardianship of her father or nearest male relative to that of her
husband upon marriage, requiring their assistance when engaging in legal
transaction^.^' Customary law marriages are polygynous, and wives are
ranked within a household according to seniority.93The commitment of the
new legal order to gender equality is clear: South Africa is a signatory of
the international Convention on the Elimination of All Fonns of
~ Principle I11 appended to
Discrimination Against Women ( C E D A W ) , ~and
the 1993 Constitution required that the 1996 Constitution uphold gender
equality. The explicit protection accorded equality by S 9 of the Bill of
Rights indicates that the patriarchal nature of many of the rules of
indigenous law makes that system vulnerable to constitutional attack.
Bennett supra n. 7 at 301
Olivier supra n. 19 at 162. Note however that succession to chieftainship
is subject to the over-riding authority of the President of South AErica to
recognise and depose chiefs.
Madolo v Nornawu (1896) 1 NAC 12, Sekelini v Sekelini (1904) 21 SC 118,
Mbekushe v Dumiso 1941 NAC (C & 0) 57. See also Olivier supra n. 19
at 147-52 and M Chanock "A peculiar sharpness: an essay on property in
the history of customary law in colonial A£rica9' (1991) 32 Journal of
African History 65.
Sonti v Sonti 1929 NAC (C & 0)23. For a general discussion see A J Kerr
The Customary Law of Immovable Property and of Succession (3ed)
(Grocott & Sherry: Grahamstown, 1990) 99.
Olivier supra n. 19 at 4-5. See also I Schapera Married Life in an African
Tribe (Penguin: Harmondsworth, 1971) 9 1-5.
The only exception to this is provided by the codified customary law of
KwaZulu-Natal: Under the KwaZulu Law on the Code of Zulu Law (No.
16 of 1985 of the KwaZulu Assembly, KwaZulu GN 105 of 1986) and the
Natal Code of Zulu Law (Proc. R151 of 1987, Government Gazette 10966
of 9 October 1987), black women attain majority either at the age of 21
years or upon marriage.
Bennett supra n. 7 at 224-28.
G.A. Res. 341180 of 18 December 1979.
5 JCULR
Indinenous Law in South Africa
89
It would, however, be erroneous to characterise the interface between
customary law and the Bill of Rights as one involving a clash between
"low status", ordinary law, and "high status" rights which, as is the nature
of entrenched rights will, in Dworkinian terms, "trump" ordinary laws.
This is because customary law should itself be seen as an aspect of the
rights of minorities and of aboriginal communities to protection of their
culture and to self-determination, which rights are protected by various
international human rights document^,^' and by several provisions of South
Africa's Bill of Rights itself: Section 30 confers the right to participate in
cultural life, while s 31 confers on members of cultural, linguistic or
religious communities the right to enjoy their culture and practice their
religion, both rights subject to the restriction that they not be exercised in a
manner inconsistent with the Bill of Rights. Finally, s 15(3) permits
legislation recognising marriages contracted under systems of traditional or
religious family law, provided that such recognition is consistent with the
Constitution. The courts in South Africa will thus be required to engage in
a process requiring not only the balancing of constitutional rights against
limitations of those rights using the criteria of reasonableness and
proportionality found in S 36(1), but also the balancing of rights against
each other, as it may well arise that a limitation on a right derives from
another right, in which case the court will have to inquire to what extent it
is reasonable to permit the latter to limit the former.
95
Article 27 of the 1966 International Covenant on Civil and Political Rights
(G.A. Res. 2200 A (XXI), 16 December 1966) (hereafter the "ICCPR"),
confers upon minorities "the right, in community with other members of
their group, to enjoy their own culture, to profess and practise their own
religion, [and] to use their own language". This is now amplified by the
1992 Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities (G.A. Res 471135 of 18 December
1992), which confers upon people the right to enjoy their culture (Art. 2),
obliges States to protect cultures (Art. l), and requires States to create
favourable conditions for the development of such cultures (Art. 4(2)).
Articles l(1) of both the 1966 International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural
Rights (G.A. Res. 2200 A (XXI), 16 December 1966) (hereafter the
ICESR) protect the right to self-determination. Aboriginal rights received
recognition under the International Labour Organisation's Convention on
the Protection and Integration of Indigenous and other Tribal and Sernitribal Populations in Dependent Countries (Convention 107 of 1957), Art.
7(1) of which required signatories to encourage the institutions and
customary laws of indigenous populations. The 1957 Convention was
revised by the Convention on Indigenous and Tribal Peoples (I.L.O.
Convention 169 of 1989), Art. 8(1) of which requires that "due regard shall
be had to [ 1 customs or customary laws".
Key factors in determining which rules of customary law are likely to
survive constitutional review will be whether prima facie discriminatory
rules of customary law will be saved either because they are found to be
"fair" and thus not an infringement of S 9 or, even if discriminatory under S
9, they are found to constitute a reasonable limitation of rights under S
36(1). It may well be that these provisions overlap, in that what is fair
would surely be reasonable and vice versa,% however it is safe to say that
discriminatory law will survive only if the distinction is based on some
factual circumstance which, on an objective basis, can be shown to justify
the differential treatment. Subordination of women under customary law
was based on the presumption of intellectual inferiority for which there is
, ~ ~ so rules founded on that view are vulnerable
no rational f ~ u n d a t i o nand
to invalidation. It should however be noted that if a rule of customary law
is found to be inconsistent with the Bill of Rights, invalidation will not
necessarily be immediate. As Kerr cautions, the immediate invalidation of
swathes of customary law would leave an enormous legal vacuum which
the Constitution could not have been intended to cause, and so the courts
should take advantage of s 172(l)(b) of the Constitution, which permits
suspension of court orders pending reform of the inconsistent law.98
Space does not permit consideration of every potential area of conflict
between customary law and the Bill of Rights, and so the following
sections address two major features of indigenous law and their interface
with the Bill of Rights: the institution of chieftaincy and polygynous
marriage.
Traditional authorities
The recognition in sections 211 and 212 of the Constitution of the
institution of chiefly authority inherited through the male line appears
prima facie inconsistent both with democratic principles99 and gender
equality. Furthermore, although chiefs do not rule alone - their authority
is exercised in consultation with other male members of the tribe,
particularly elders'00 - it must be conceded that chiefs are not bound to
96
97
98
99
100
See Bennett supra n. 85 at 92 where this argument was advanced in respect
of similar provisions in the 1993 Constitution.
Ibid 80-81 and 92-93.
A J Kerr "The Bill of Rights in the New Constitution and Customary Law"
(1997) 114 South African Law Journal 346,352-355.
K B Motshabi and S G Volks 'Towards democratic chieftaincy: principles
and procedures" 1991Acta Juridica 104.
W D Hammond-Tooke Command or Consensus; the development of
Transkeian local government (David Philip: Cape Town 1975) 65.
5 JCULR
Indigenous Law in South Africa
91
follow advice thereby received, and so the remedy where a leader became
autocratic is thus ultimately political rather than legal.lO'
In his comment on the 1993 Constitution, Kerr stated that patrilineal
succession would not be invalidated by that document, arguing that as
~
for the preservation of
Constitutional Principle ~ 1 1 1 ' provided
"traditional" institutions,lo3 and that without patrilineal succession
traditional leadership would cease to be traditional, Parliament could not
have intended the Bill of Rights to over-ride this rule of customary law.
The re-ordering of traditional society that would occur should succession
be converted to simple primogeniture might well see the office of
chieftaincy lose its authority to the extent that it was an empty shell, in
which case the institution would effectively have been abolished, a result
which is hardly consistent with the desire to preserve customary law.
The issue of the inherited nature of chieftainship became relevant in
African National Congress v Minister of Local Government and Housing,
Kwa-Zulu ~ a t a l , "in~ which the Constitutional Court held that a provincial
Proclamation making traditional leaders ex oficio members of local
authorities within their areas105was compatible with s 182 of the 1993
Interim Constitution which referred to "elected" local governments. The
court held that the presence of hereditary chiefs as appointed members of
such governments was not incompatible with the elective nature of such
local governments. It should however be noted that the court confined its
ruling to the period of operation of the Local Government Transition
A C ~ , " ~ the purpose of which was to facilitate, on an interim basis, the
progressive harmonisation of local government structures (including that
of rule by chiefs) in South Africa. The court made no mention of what the
position would be once that Act was repealed. Furthermore it should be
noted that this decision was made during the currency of the 1993
Constitution. The case is however useful in that it indicates that the Court
might be prepared to adopt a flexible attitude towards chieftaincy should
the validity of this institution be litigated under the 1996 Constitution.
Certainly the court recognised that the importance of chieftaincy to a large
'01
102
lo3
lo4
'OS
lo6
Bennett supra n. 85 at 75.
Schedule 4 of the 1993 Constitution contained a set of Principles which
were to be used in interpreting that Constitution and which the final
Constitution had to comply with.
A J Kerr "Customary law, fundamental rights and the Constitution" (1994)
l l l South African Law Journal 720,727-8 and 731.
1998(4)BCLR399(CC).
Proc. 54 of 1996 (KZN).
NO.209 of 1993.
section of the population meant that the institution could not be rejected
out of hand, notwithstanding its undemocratic nature. It is also worthwhile
to note that recognition of chieftaincy would not mean that the power of
chiefs would be left wholly unregulated: Given that chiefs exercise public
power, it is clear that their executive acts are subject to challenge under s
33 of the Bill of Rights, which protects the right to administrative
justice. lo7
More problematic has been the issue of procedural rights in indigenous
courts. As Bennett noted, the fact that legal representation was not
permitted under the rules of such courts108exposed their proceedings to
attack under those provisions of the Bill of Rights guaranteeing the right to
legal representation.lo9 This issue was litigated in Bangindawo v Head of
the Nyanda Regional ~ u t h ~ n ' t in
y , which
~ ~ ~ the court considered the
validity of proceedings before indigenous courts established under s 7(1)
of the Regional Authority Courts ~ c t . " ' The court in Bangindawo firstly
rejected the appellant's claim that the courts (which were indigenous
courts with enhanced statutory jurisdiction) were invalid under s 96(2) of
the Interim Constitution, which required that courts be presided over by an
independent judiciary. This challenge was based upon the fact that the
courts did not adhere to the doctrine of separation of powers, being
presided over by chiefs who wielded legislative, executive and judicial
powers. The court held that to impose the Western concept of separation
of powers on indigenous courts would be to erode customary law in the
face of clear indications in the Constitution that it was to be preserved.
The court did, however, invalidate s 7(1) of the Act which denied legal
representation to persons appearing before indigenous courts, holding that
this infringed the rights to access to court and to a fair trial contained in ss
22 and 25(3) of the Interim Constitution respectively. The decision in
Bangindawo is important in that it indicates a promising avenue for the
reconciliation of indigenous law and the Bill of Rights - preserving the
essence of indigenous institutions while ensuring that those subject to their
authority enjoy fundamental rights.
Io7
108
Io9
"O
"l
Indced, even before the enactment of the 1993 Constitution it was argued
that chiefs were subject to common law rules of administrative law. See T
W Bennett "Administrative-law controls over chiefs' customary powers of
removal" (1993) 110 South African Law Journal 276,288
See for example GN R2082 Regulation Gazette 887 of 29 December 1967,
Rule 5.
Bcnnett supra n. 85 a1 78-79.
1998 (3) BCLR 314 (Tk).
No.l30f1992(Tk).
5 JCULR
Indinenous Law in South Africa
93
South African common law recognises only monogamous unions.l12
Customary unions are recognised as valid only under customary law. A
partner in a customary union may not enter into a common law union,l13
unless with the other party to the customary union, in which case the male
may not enter into further customary unions114. Does the fact that the
common law prohibits polygyny constitute a breach of the cultural and
religious rights guaranteed in sections 30 and 31 or, conversely, does
recognition of polygyny by customary law amount to a breach of the s 9
right to equality?'15 First, to address the question of the invalidity of
polygynous unions at common law, it is clear that the non-recognition of
such unions does disadvantage the partners thereof, as they have no
common law rights of support or maintenance, cannot claim against their
partners7estates on intestacy, and may be compelled to testify against each
other in criminal proceedings.116The legal system thus puts in an inferior
position those who belong to cultures where polygyny is the accepted form
of marriage, and thus the law as it stands prima facie breaches the cultural
rights guarantees. Proponents of polygyny argue that the institution better
accords with the reality of human behavior, in that by permitting males
several wives, it avoids marital infidelity and frequent divorces.'17 The
defects in this male-centred reasoning are apparent: Polyandry is not an
accepted institution among any community in South Africa, and so while
polygyny may provide a permissible avenue for males to have multiple
sexual partners, women are still expected to remain faithful to one partner
whether they are parties to monogamous or polygynous unions.
Although s 15(3)(a) encompasses the right to recognition of traditional
marriages, this is subject to the law's conformity with the rest of the
Constitution under s 15(3)(b).l18 Does polygyny breach the right to
112
113
114
115
"7
118
Seedat's Executors v The Master 1917 AD 302.
Section 22, Black Administration Act 38 of 1927.
Marriage and Matrimonial Law Property Amendment Act 3 of 1988.
For the latest comprehensive examination of this question see South
African Law Commission Project 90: The Harmonisation of the Common
Law and the Indigenous Law - Report on Customary Marriages (South
African Law Commission: Pretoria, 1998).
A Costa "Polygamy, other personal relationships and the Constitution"
December 1994 De Rebus 914,915.
Ibid 917.
For a discussion of S 15 see D Davis, H Cheadle and N Haysom
Fundamental Rights in the Constitution (Juta & CO: Kenwyn, 1997) 109110.
equality? Feminist scholars argue that polygyny amounts to discrimination
in that it degrades women,l19 and confers a right upon men that women do
not have. The latter point should, however, not be seen as suggesting that
recognition of polyandry solves the constitutional issue. Polyandry is
unknown in South Africa, and the real issue is whether the polygyny
demeans women.120 The extent to which polygyny subordinates women
depends, to some extent, on the ability of women to ensure that the union
they enter into is monogamous. In t h s regard it has been argued that only
a first wife is vulnerable to a potentially polygynous marriage becoming
one in fact, as second and subsequent wives will be fully aware that a
union is polygynous.'21 So far as the position of first wives is concerned,
the answer that has usually been given is that they can ensure that their
union remains monogamous by marrying under the common law rather
than customary law. However this answer does not address the case of the
woman who wishes to marry under customary law and to avoid polygyny.
The issue of customary unions was comprehensively addressed in a recent
Commission
~
report by the South African Law ~ o m r n i s s i o n . ' ~ The
recommended that customary unions be accorded the same legal status as
unions under the received law in order to give effect to the Constitution's
recognition of indigenous law.123 So far as the issue of polygyny is
concerned, the Commission adopted the stance that in view of the
substantial level of uncertainty over the question of whether polygyny
~
amounted to unfair discrimination under s 9 of the ~ o n s t i t u t i o n , it' ~would
not pre-empt any possible ruling on the issue by recommending abolition
of polygyny. Instead the Commission recommended that customary
unions remain potentially polygynous, noting that polygyny appeared in
any event to be obs~lescent.'~~
It should however be noted that the
Commission made numerous recommendations regarding the rights of
119
120
121
'22
'23
124
lZ5
These arguments arc canvassed in H J Simons Afi-ican women; their legal
status in South Africa (C Hurst: London, 1968) Ch 8; C R M Dlarnini
"Should we legalise or abolish polygamy?'(l989) 22 omparative and
International Law Journal of Southern Africa 330, C R M Dlarnini Human
Rights in Africa: Which Way South Africa? (Butterworths: Durban 1995)
1 16- 1 17; and F Kaganas and C Murray "Law, women and the family: the
question of polygyny in a new South Africa" 1994 Acta Juridica 11 6, 126
Bcnnett supra n. 85 at 120.
Ibid.
Supra n. 115.
lbid3.1.13.
lbid 6.1.23.
Ibid6.1.25.
5 JCULR
Indigenous Law in South Africa
95
women in customary unions,126and argued that, if implemented, these
would significantly equalise the position of such women.'" This suggests
that, as in the Bangindawo case on traditional authorities, the response of
the South African legal system to clashes between indigenous law and the
Bill of Rights is likely to be one of compromise achieved by retaining
indigenous institutions but protecting the basic rights of those subject to
them.
This part of the article presents an overview of the status of indigenous law
in Australia, following which part V1 contains suggestions as to what
issues would need to be addressed should general recognition be accorded,
along with tentative solutions drawn from the South African experience.
Aboriginal law as part of Australian law
The most comprehensive study of the status of indigenous law in Australia
is the Law Reform Commission's 1986 report on The Recognition of
Aboriginal Customary ~ a w s (hereafter
' ~ ~
referred to as the "LRC report").
The Commission's major recommendations were that recognition should
be extended to Aboriginal law,129but that no single method of recognition
would suit all circumstance^.'^^
Of the methods of incorporation
canvassed, the Commission favoured incorporation by reference,13'
functional recognition of indigenous institutions as the equivalent of
institutions in the received law,132and accommodation of indigenous law
126
127
'28
129
130
131
132
Ibid Ch 6.
Ibid 6.1.20.
The Law Reform Commission, Report No 31: The Recognition of
Aboriginal Customary Laws (AGPS: Canberra, 1986).
Ibid 194.
Ibid 199-207.
By which is meant the enactment of a statute which incorporates indigenous
law either generally or in relation to a specific issue without stating what
that law is, thus leaving it to the courts progressively to discover an apply
that law.
For example by recogising traditional Aboriginal marriages as amounting to
marriage for the purposes of the received law (one instance of this being s
7(1A) of the Family Provision Act 1979 (NT), which accords traditional
marriages the same status as marriages under the Marriage Act 1961 (Cth)
for purposes of claims for maintenance made against a deceased estate).
in the administration of the received law.133 The Commission
recommended against wholesale codification of indigenous law (because
of the danger that codification would be unable to accommodate variations
between Aboriginal communities and would also take development of the
law out of the hands of its owners), or the exclusion of the received law
from Aboriginal areas (because this would deprive Aboriginal people of
rights under the received law).134 An important assumption underlying the
Commission's recommendations was that recognition would of necessity
take the form of legislative or judicial action by the received legal system there was no suggestion that indigenous law would be recognised as the
product of a residual indigenous sovereignty, but rather that it would be
recognised "within the framework of the general lawv135 - that is, as a
component of the received legal system. Thus, if recognised, the
legitimacy of indigenous law would be traced back to a statutory grant of
recognition by the received legal system. This accords with the High
Court's affirmation in Coe v Comm~nwealth,'~~
Mabo (No 2),137Coe v
Commonwealth (No 2),138 Walker v New South
and, most
recently, in Thorpe v Commonwealth (No 3)14' of the Crown's acquisition
of sovereignty over Australia. Thus despite the Court's rejection in
Mabo(No 2) of terra nullius, the Court has not accepted as a general
principle that the rule of the English common law as laid down in
Campbell v ~ a 1 1 ' ~was
' applicable in Australia. The issue of sovereignty
lies beyond the scope of this paper. It suffices to note that even among
some Aboriginal commentators the quest for recognition of Aboriginal
sovereignty is seen as a strategically unrewarding.142
For example by interpreting statutes in such a way as to take account of
Aboriginal values (as was done in R v Bara Bara (1992) 2 NTLR 98), or by
the courts using their discretionary powers in relation to court procedures
and the rules of evidence to take account of Aboriginal sensibilities.
Supra n. 128 at 208.
lbid 195.
(1979) 53 ALJR 403,408 and 409.
(1992) 175 CLR 1,69.
(1993) 118 ALR 193, 199-200.
(1994) 182 CLR 45,47-50.
(1997) 71 ALJR 767.
Supra n. 5.
See for example N Pearson "Reconciliation: To Be or Not To Be:
Nationhood, Self-Determination or Self-Government?'(l993) 61
Aboriginal Law Bulletin 14.
5 JCULR
Indigenous Law in South Africa
97
Although twelve years have elapsed since the Commission's report, little
has been done to implement it, nor did the decision in Mabo (No 2) spur
legislative action to accord recognition to indigenous law in areas other
than native title.143 In 1994 the Commonwealth government published a
report on the extent to which steps had been taken to implement the
Commission's recommendation^.'^^ Lack of progress in implementing the
Commission's recommendations was a consistent theme adopted by
speakers at the 1995 Indigenous Customary Law oru urn.'^^
Criminal law
Despite the lack of formal recognition of Aboriginal law, some progress
has been made in the field of criminal law towards the implementation of
LRC recommendations.
The way in which prosecutorial discretion is exercised may provide an
avenue by which the received legal system permits the indigenous legal
system to operate de facto, as where a decision is taken not to prosecute an
act, or to prosecute on a lesser charge, either because the accused was
compelled to perform the act under indigenous law or, contrariwise,
performed an act which is prohibited under both systems and thus exposes
the accused to double jeopardy.'% The LRC gave qualified approval to
this practice, while noting that there is a risk of arbitrary or inconsistent
exercises of d i ~ c r e t i 0 n . l ~ ~
'43
144
14'
14'
147
For an overview of the potential offered by Mabo (No 2) for the recognition
of indigenous law see H A Amankwah "Post-Mabo: The Prospect of the
Recognition of a Regime of Customary (Indigenous) Law in Australia"
(1994) 18 University of Queensland Law Review 15.
Office of Indigenous Affairs, Department of the Prime Minister and
Cabinet Aboriginal Customary Law - Report on Commonwealth
Implementation of the Recommendations of the Australian Law Reform
Commission (AGPS: Canberra, 1994).
Commonwealth of Australia Indigenous Customary Law Forum, Canberra,
18 October 1995 (AGPS: Canberra, 1996).
See H McRae, G Nettheim and L Beacroft Indigenous Legal Issues Commentary and Materials (2 ed) (LBC: North Ryde, 1997) 364, and LBC
The Laws of Australia 1.5 [12]. See also B Debelle "Aboriginal Customary
Law and the Common Law" in E Johnston, M Hinton and D Rigney (eds)
Indigenous Australians and the Law (Cavendish: Sydney, 1997) 81 for a
list of factors to be taken into account in the exercise of prosecutorial
discretion.
LRC 472-478. See R v Burton (Unreported, Supreme Court of South
Australia, Duggan J, 18 July 1994), in which the accused had exceeded the
The courts have accepted that Aboriginal culture, including the fact that
acts were performed in order to comply with indigenous law, should be
taken into account in determining the availability of defences under the
received law. Such has been the case in relation to provocation,148
duress149and claim of right.150 A key point to note about such cases is that
Aboriginal law is treated only as a fact forming the basis of a defence
under the received law. However, it can equally be argued that such cases
could be characterised as true examples of conflicts of law, in which the
court would choose whether to apply Aboriginal law or the received law.
At present this more radical approach is not available, given the finding in
Walker v New South waleslsl that Aboriginal criminal law has been
extinguished by the passing of criminal law statutes, although some argue
14'
14'
150
lS1
bounds of retaliation permitted during a tribal fight, and where the
prosecution brought a charge of manslaughter rather than murder.
In Stingel v The Queen (1990) 171 CLR 312 the High Court distinguished
between the provocatory efSect of the victim's conduct, in relation to which
the defendant's race could be taken into account, and the reaction of the
accused, in respect of which age (and not race or any other factor) would be
the only subjective factor taken into account. However in Mungatopi v The
Queen (1993) 2 NTLR 1; 57 A Crim R 341 the Northern Territory Supreme
Court distinguished Stingel (on the ground that its ratio was specific to
provisions of the Tasmanian Criminal Code), holding that in cases
involving defendants living in remote areas, regard should be had to
cultural background both in regard to what constituted provocative
behaviour and what the ordinary person's reaction to it would be.
See R v Isobel Phillips (Unreported, Court of Summary Jurisdiction,
Northern Territory, Mr JM Murphy SM, 19 September 1983) and R v
Warren (1996) 185 LSJS 461 (CCA).
See for example R v Craigie (Unreported, New South Wales District Court,
November 1980 ), discussed at LRC 434-5. Most recently in R v Yunupingu
(Unreported, Magistrates Court, Darwin, Mr T Gillies, 11 February 1998)
an Aboriginal defendant, who had been charged with damage to property
after destroying the film of a photographer who had refused to pay a fee
when photographing members of the accused's tribe, was found not guilty
on the basis that, under the applicable Aboriginal law, the accused was
entitled to prevent photographs being taken if the fee was not paid. For a
press report of the case see C Ryan "Yunupingu victory for tribal law"
Sydney Morning Herald 21 February 1998 p 9. Of course this defence
applies only to offences involving property and, as was held by the High
Court in Walden v Hensler (1987) 163 CLR 561, the accused must born
fide believe that the right claimed under indigenous law is recognised under
the general law.
(1994) 182 CLR 45,49-50.
5 JCULR
Indigenous Law in South Africa
99
that where statutory defences of authorisation "by law" exist,lS2this should
be interpreted as including Aboriginal law.153 However, the Law
Commission was not prepared to go so far as to advocate a general defence
of compliance with Aboriginal law, choosing instead to recommend that
compliance with Aboriginal law be accepted as a partial defence which
would enable murder to be reduced to manslaughter.154 However the
Commission did not recommend that the partial defence be available on
charges of lesser offences, which obviously reduces its ~sefulness.'~~
Sentencing
The courts have, subject to a few exceptions,156taken into account the fact
that persons who commit offences under the received law may also be
subject to punishment under Aboriginal law.lS7 In Jadurin v R"' the
Federal Court upheld the legitimacy of taking into account in sentencing
the fact that payback might be imposed on the accused under Aboriginal
law, stating that acknowledgement of the fact of payback &d not amount
to condonation of the custom.159 Of particular interest are cases from the
a ' ~court
~ took
Northern Territory: In R V Charlie Limbiari ~ a ~ a r n a rthe
cognisance of the fact that the accused had already received severe
See for example Criminal Code (NT) s 26, Criminal Code (Qld) S 31 and
Criminal Code (WA) S 3 1.
Compare K Mulqueeny "Folk-law or Folklore: When a Law is Not a Law.
Or is it?' in M Stephenson and S Ratnapala ( 4 s ) Mabo: A Judicial
Revolution (University of Queensland Press: St Lucia, 1992) 165, 177-78,
and S Yeo "Native criminal jurisdiction after Mabo" (1994) 6 Current
Issues in Criminal Justice 9, 14-15.
LRC 442-453.
Yeo "The Recognition of Aboriginality in Australian Criminal Law" in G
Bird, G Martin and J Nielsen (eds) Majah - Indigenous Peoples and the
Law (Federation Press: Sydney, 1996) 258-9.
See R v Rankine (Unreported, Supreme Court of South Australia, Johnson
J, 24 September 1987). The case is noted in (1987) 28 ALB 11.
The issue of indigenous law and sentencing is addressed in detail in LRC
Chapter 21.
(1983) 44 ALR 424. The case is noted in (1982) 6ALB 11.
Ibid 429.
Unreported, Supreme Court of the Northern Territory, Muirhead J, 28 May
1984. The case is commented on in (1985) 12 ALB 11. See also R v Jacky
Jagamara (Unreported, Supreme Court of the Northern Territory, 0'Leary
J, 24 May 1984), commented on in (1985) ALB 12 (this case has no
connection with that of R v Charlie Limbiari Jagamara).
physical punishment under Aboriginal law, and imposed the sentence of
detention to the rising of the court. In R v ino or'^' the Northern Territory
Court of Appeal considered a case in which the trial judge had included an
early release order in his sentencing of the accused (who was convicted of
manslaughter) in light of the fact that he would be subject to spearing. The
prosecution appealed the sentence, arguing that payback ought not to have
been taken into account. In rejecting the appeal, the court held that a
sentencing court was obliged to take payback into account, as courts are
obliged to take all the circumstances of a case into account when
determining sentence, and that failure to take payback into account would
expose the convicted person to double punishment. On the question of the
lawfulness of the payback, Mildren J held162that payback should be taken
into account even if unlawful, as a court does not facilitate the unlawful act
merely by taking it into account in framing the sentence.163 However,
Mildren J went on to state that in any event it could not be stated, as a
general proposition that payback taking the form of spearing in the thigh
was unlawful, given that under s 26(3) of the Criminal Code Act (NT) an
assault which is consented to by the victim and which is not committed
with intent to murder or cause grievous bodily harm1@is not unlawful, and
that, as had been held in R v T r ~ n b y , a' ~spearing
~
in the thigh was not
automatically to be considered assault with intent to cause grievous bodily
harm. Subsequently, in R v
Martin CJ imposed a suspended
sentence on an accused convicted of manslaughter, taking into account the
fact that the accused would be speared, and requesting (although not
making the request part of his order) that the Director of Correctional
Services inform the court whether the sentence was carried out.
Significant public controversy was raised by the court's approach in
Walker, although it must be noted that this was largely founded on the
"l
163
164
166
(1992) 2 NTLR 183. The case is noted in (1992) 55 ALB 18.
lbid 195.
A similar course had been adopted in R v Jungarai (1981) 9 NTR 30
(commented on in (1981) 1 ALB 7) in which the court granted bail to an
accused who had been charged with murder, taking into account thc fact
that hostility would continue within the accused's community until he had
submitted to spearing, and that granting bail would provide an opportunity
for this to take place. The court was at pains to express no opinion on
spearing, but also said (at 202) that the question of whether the punishment
was itself unlawful was irrelevant to the bail decision
"Grievous bodily harm" being defined in s 1 of the Code as "injury likely to
endanger life or cause permanent injury to health".
(1991) 52 A Crim R 228.
Unreported, Supreme Court of the Northern Territory, Martin CJ, 10
February 1994.
5 JCULR
Indigenous Law in South Africa
101
misconception that the court had ordered that the Director supervise the
traditional punishment as part of its order.167
Aboriginal law recognises a variety of offences and punishments apart
from corporal punishment,168and corporal punishment may range from
merely symbolic assaults to spearing. Although such punishments are not
designed to cause death, they can do so, and may at least result in serious
injury. Although the courts have repeatedly emphasised that they are
simply taking account of traditional punishment rather than condoning or
facilitating it, the imposition of traditional punishment is nevertheless
taken by the court as satisfying part of the debt owed by the convicted
person to society. It is argued that in this area, impression is as important
as reality, and that it may well be in the courts' own interests to adopt a
new approach. One that might be followed would be to grasp the nettle of
determining what assault may lawfully be consented to,16' and then to
' ~ ~ the
adopt the approach taken by the court in R v Sydney W i l l i a m ~ , where
accused received a suspended sentence, subject to him taking such lawful
instructions from Aboriginal elders as were required for him to expiate his
crime.171 In other words, customary law punishment would be included as
part of the court's order, and would be subject to such limitations as are
required to bring it within the bounds of lawfulness under the received law.
Aboriginal courts
Courts with special jurisdiction with regard to Aboriginal offenders exist in
Queensland in terms of s 42 of the Community Services (Aborigines) Act
1984 (Qld) and s 40 Community Services (Torres Strait) Act 1984 (Qld).
These Acts authorise Aboriginal and Torres Strait Islander councils to
make by-laws applying to any person within their c~rnrnunities,'~~
and
provide for the establishment of courts presided over by indigenous
167
168
169
170
171
172
That this was not the case was pointed out in G Zdenkowski "Customary
punishment and pragmatism: some unresolved dilemmas" (1994) 68 ALB
26, and in W Kearney "Sentencing: taking Aboriginal customary law
sanctions and community attitudes into account (From a Northern Territory
perspective)", unpublished paper delivered at the Fifth International
Criminal Law Conference, Sydney, 25-30 September 1994.
These are conveniently summarised by Debelle supra n. 146 at 84-86.
This is no easy issue, as is show by the English case of R v Brown [l9931 2
All ER 75.
(1976) 14 SASR 1.
For a comment on this case see (1976) 50 ALJ 386.
Section 25 of the Community Services (Aborigines) Act, s 23 of the
Community Services (Torres Strait) Act.
justices of the peace to try breaches of by-laws and "disputes concerning
any matter. ..governed by the usages and customs of that
The operation of such courts has however been criticised. On the one hand
it has been argued that they are imposed by the received law rather than
being genuine indigenous institution^,'^^ while on the other it has been
noted that procedures adopted by the courts fall short of the requirements
of fundamental rights. 175
Indirect recognition
Indirect recognition of Aboriginal law occurs where relationships existing
under such law are recognised as the equivalent of relationships recognised
by the received law. Examples of such "functional recognition" (as it was
termed by the ~ o r n m i s s i o n ' ~ include
~)
recognition under legislation
dealing with matters such as entitlements of surviving dependants under
~ the
employee compensation schemes and adoption of ~ h i 1 d r e n . l ~In
Northern Territory Aboriginal
are accorded statutory
recognition for certain purposes.179Indirect recognition may occur through
statutory interpretation, as in R v Bara ~ a r a , where
' ~ ~ court interpreted the
term "likely to offend against public decency" in s 57 of the Evidence Act
1939 (NT) in accordance with what was offensive under indigenous law.
Finally in this regard, rules of indigenous law may be found to create
obligations under the received law. In the recent case of John Bulun Bulun
v R & T Textiles Pty ~ t d ' Von
~ ' Doussa J held obiter that in circumstances
where an Aboriginal copyright owner failed to take legal action to assert
Sections 42 and 43 Community Services (Aborigines) Act; ss 40 and 41
Community Services (Torres Strait) Act.
For this and other criticisms see LRC 741-745.
See F Brennan "Self-Determination: The Limits of Allowing Aboriginal
Courts to be a Law unto Themselves" (1993) 16 UNSWLJ 245,247.
See for example the Commission's discussion of traditional marriage at
LRC 256.
For a comprehensive explanation of Commonwealth and State legislation
conferring functional recognition see LBC The Laws of Australia 1.2 [7] 191.
For a discussion of the different types of relationship which can be
described as Aboriginal marriage see P Sutton "Aboriginal Customary
Marriage - Determination and Definition" (1985) 12 ALL3 13.
For detailed reference to statutory provisions see Butterworths Halsbury's
Laws of Australia [5-19701.
(1992) 87 NTR l .
[l9981 1082 FCA (3 September 1998).
S JCULR
indigenous Law in South Africa
103
copyright as required under Aboriginal law, the copyright owner's clan
would be permitted to take legal action against both the copyright owner
and infringer in order to enforce rights which equity would recognise as
flowing from the indigenous law obligation.
V1
RECOGNITION
OF INDIGENOUS
LAW- THEWAYFORWARD
The need for recognition
The LRC recommended that customary law be accorded some form of
recognition.lg2 Some Aborigines have become absorbed into nonindigenous culture, at least to the extent that for them customary law is of
little or no importance. However, this does not provide sufficient reason
for rejecting the Commission's view, or that of traditionalist Aborigines
who argue that those who no longer regard customary law as binding ipso
facto lose the right to comment on it.lg3Furthermore, although it is more
likely that a person living within his or her community will adhere to
customary law than would a person who has left the community,1g4where
a person lives is not necessarily determinative of whether he or she still
adheres to Aboriginal law. As in South Africa, indigenous law in Australia
is neither static nor confined to rural areas.'85
The choice of law issue
In view of the Commission's recommendation that even after recognition
of indigenous law, Aborigines should retain rights under the general law
. is
. clear
(for example, to enter into marriages under the received law), 186 it
that general recognition of indigenous law would require the development
of choice of law rules.lg7Here reference to the South African experience is
183
la4
la5
lX6
la7
K Maddock "Aboriginal customary law" in P Hanks and B Keon-Cohen
(eds) Aborigines and the Law ( ~ e o i Allen
~ e & Unwin: Sydney, 1984) 212,
215-17.
For a succinct summary on this point see Debelle supra n. 146 at 86-87.
D Weisbrot "Customary Law" (1981) 1 ALB 3.
LRC 157.
In some circumstances, the application of choice of law rules may depend
on determining whether a person is an Aborigine. In Commonwealth v
Tasmania (1983) 158 CLR 1, 274 Deane J, speaking in the context of the s
Sl(xxvi) power, stated that persons were Aboriginal if they were of
Aboriginal descent, identified themselves as Aboriginal and were accepted
as such by the Aboriginal community. This tri-partite test was recently reaffirmed in the Federal Court decision in Shaw v Wolf [l 9981 389 FCA (20
of particular relevance, given that there the case law has seen the
development of criteria to guide judicial officers in deciding whether to
apply customary law. The following suggestions are offered:
As a starting point, one can identify four factors which may help determine
whether indigenous or the received law is applicable - the intention of the
parties, the identity of the parties, the place where an event or transaction
occurs, and the nature of the event or transaction. Bearing these in mind,
the following principles are suggested:
As a primary rule, persons would be governed by whichever legal
system they intend to apply to them.
In light of the argument in favour of recognition presented in this
paper, there would be a rebuttable presumption that Aborigines
intend indigenous law to apply in cases arising between
Aborigines in Aboriginal reserves.
P Indigenous law would not apply between Aborigines in an
Aboriginal reserve where the intention of the parties displaces the
operation of indigenous law. This may be express, or may be
implied from the lifestyle of the parties or the form or subject
matter of the transaction.
h Indigenous law would not apply in cases involving Aborigines
arising outside Aboriginal reserves, or between non-Aboriginals
and Aborigines wherever they arise. Exceptions to this rule would
be where there is an express or implied intention that indigenous
law would apply, such intention again being inferred from the
lifestyle of the parties or the form or subject matter of the
transaction
The question of which criminal offences to include within the domain of
indigenous law would require detailed consideration. In some jurisdictions,
such as South Africa, more serious offences are governed by the received
law.lg8However, it is suggested that genuine recognition of indigenous law
means that the seriousness of the offence cannot in itself justify continued
application of the received law. There will of course be a body of criminal
law which remains governed by the received system simply because the
offences involved cannot be characterised as ones "between Aborigines" -
lg8
April 1998). The test prevents both spurious claims of Aboriginality (by
requiring that the claimant have been accepted by an Aboriginal
community) and involuntary ethnic classification (by requiring that persons
will be considered to be Aboriginal only if they claim that status).
Major crimes are excluded from indigenous court jurisdiction by Sch I11 of
the Black Administration Act 37 of 1927.
5 JCULR
Indigenous Law in South Africa
105
licensing, taxation and other offences where there is no individual
complainant or victim being obvious examples of these.
The courts and indigenous law
Comprehensive recognition of indigenous law implies recognition of
indigenous institutions which administer such law. As has already been
discussed in the context of South Africa, procedures used by indigenous
dispute resolution institutions are informal by comparison with the general
court system. However, if recognition of indigenous law by the Australian
legal system included the vesting in the general courts of appellate
jurisdiction from indigenous authorities, it might be necessary to formalise
procedures used by indigenous dispute resolution bodies, at least to the
extent of establishing a basic recording system. Furthermore, as the South
African experience has shown, it would be necessary to ensure that
indigenous courts operated in accordance with basic norms of procedural
fairness.
Aside from appeals from decisions of indigenous courts, there are other
situations in which the general courts would be called upon to apply
indigenous law. The choice of law rules posited above contemplate the
operation of indigenous law between Aborigines living outside an
Aboriginal area who wished for a relationship to be regulated by
indigenous law. In such circumstances, the absence of local indigenous
authorities would mean that courts of the general legal system would,
subject to satisfactory proof, be called upon to apply indigenous law. In
addition, rules of indigenous law might be applied by the general courts in
a range of circumstances, such as statutory interpretation and
administrative review.
Proof of Aboriginal law
The issue of proof of law was discussed in the LRC report.lg9 In general,
proof of Aboriginal law is provided by expert evidence by anthropologists
or by members of the Aboriginal community with knowledge of its laws.lgO
lg9
190
Chapter 24.
Milirrpum v Nabalco Pty Ltd (Gove Land Rights Case) (1971) 17 FLR 141.
For detailed discussions of the issue see LBC The Laws of Australia 1.5
[31] and Butterworths Halsbury 'SLaws of Australia [5-2280- 5-23051. An
example of the talung of testimony from members of an Aboriginal
community is provided by R v Isobel Phillips (Unreported, Court of
Summary Jurisdiction, Northern Territory, Mr JM Murphy SM, 19
A particular difficulty is posed by rules of indigenous law which are
secret,lgl or which may not be divulged to certain classes of person, as for
example in Kartinyeri v Commonwealth (Hindmarsh Island Bridge
case).lg2 Courts can avail themselves of a range of inherent and statutory
powers to prohibit or restrict publication of evidence in such
circu~nstances.'~~
Most recently, in Western Australia v wardlg4 the
Federal Court held that where knowledge of certain facts was restricted to
women under indigenous law, it was not inconsistent with Chapter I11 of
the Commonwealth Constitution for a judge to exercise the discretion,
contained in s 50 of the Federal Court of Australia Act 1976 (Cth), in such
a way as to restrict access to such evidence on the basis of gender.
Authenticity is an important issue relevant to the ascertainment of
indigenous law. In R v ats son'^^ the court rejected the accused's
submissions that the infliction of knife wounds was permitted as a
domestic discipline measure in his community, and that such wounds were
not regarded as serious within Aboriginal society. The court held that this
amounted to a spurious attempt to found a defence on conduct which was
not permitted under the indigenous law. As commentators have noted,
such attempts to misuse indigenous law - to adduce evidence of what is
termed "bullshit law" - are deprecated by Aboriginal c o m m ~ n i t i e s . ' ~ ~
Indigenous law and Australia's human rights obligations
Consideration of the compatibility or otherwise of Aboriginal law with
human rights is perhaps premature, given the limited recognition afforded
Aboriginal law, and the absence of a Bill of Rights. However, should
Australia ever enact a Bill of Rights, it is likely that such a document
would closely the provisions of international human rights documents.
191
lg2
lg3
lg4
lg5
'96
September 1983). Note however that in R v Bara Bara (1992) 2 NTLR 98
the court took judicial notice of Aboriginal law.
For a discussion of this issue see M Fisher "Secrecy, Secrecy - Secrecy,
Proof and Confidentiality of Aboriginal Customary Laws in the Legal
System" (1985) 17 ALB 12.
(1998) 152 ALR 540.
Butterworths Halsbury's Laws of Australia [5-19451. See also LRC 659656.
(1997) 76 FCR 492.
[l9871 1 Qd R 440. See also R v Bulmer (1986) 25 A Crim R 155, 158.
See S Payne "Aboriginal Women and the Law" in C Cunneen (ed)
Aboriginal Perspectives on Criminal Justice (Institute of Criminology:
Sydney, 1992) 3 1.
5 JCULR
Indigenous Law in South Africa
107
Furthermore, in common with indigenous peoples in other parts of the
world, Aboriginal claims to self-determination and cultural recognition are
frequently based on such international instrument^.'^^
These
considerations make relevant the issue what should happen should a
conflict arise between indigenous law and human rights.
The past half century has seen an increasing level of demand for selfdetermination by indigenous peoples. Such demands are frequently
founded upon the provisions of international human rights documents:
and of the ICESCR'~~
both recognise the right of
Article 1 of the ICCPR'~~
peoples to self-determination, while Article 27 of the ICCPR, which
protects the cultural rights of minorities, has also been seen by indigenous
peoples, who are often minorities as a matter of fact as bolstering their
right to cultural self-preservation. The United Nations' draft Declaration
~ ~of~ relevance to the
on the Rights of Indigenous ~ e o ~ l ise salso
recognition of indigenous law: Paragraph 1 affirms the right to selfdetermination, while paragraphs 28 and 33 expressly recognise the right of
indigenous peoples to retain and develop their customary laws and legal
systems.
The potential for conflict between these cultural rights and other
internationally protected rights was noted by the LRC in 1986~"and by the
Commonwealth in its 1994 report.202The Commission took the view that
Article 27 of the ICCPR was an individual right rather than a group right,
and that individuals were therefore entitled to elect whether to be governed
by indigenous law or the general law. Furthermore, although finding that
recognition of indigenous law involved some measure of acceptance of
cultural difference, the Commission also asserted that certain of the rights
protected by the ICCPR (the examples given by the Commission being the
right to life, the right not to be tortured and the right to an interpreter) were
of universal application. Furthermore, Article 1 of the Draft Declaration
on the Rights of Indigenous Peoples states that indigenous peoples have
the right to the enjoyment of all rights and freedoms protected by the
Charter, the Universal Declaration and international human rights law,
197
lg8
See for example C Cunneen and T Libesman Indigenous People and The
Law in Australia (Butterworths: Sydney, 1995) 227-240.
Supra n. 95.
199
Ibid.
200
The latest version of the text can be found at the following website:
http://ww~.unhchr.~h/html~menu4/subres/9445
.htm#draft.
LRC 179-193.
Supra n.144at7.
202
while Article 33 states that customary law must be developed "in
accordance with internationally recognised human rights standards".
The issue of the relationship between fundamental rights and indigenous
law assumes particular importance in respect of traditional punishments,
such as spearing. Would validation of such punishments be inconsistent
with respect for human rights? Article 7 of the ICCPR prohibits torture
and cruel, inhuman or degrading treatment or punishment. Torture is
similarly prohibited by Article 1 of the Convention Against Torture and
Other Inhuman or Degrading Treatment or ~unishrnent,'~~
while Article 2
of that Convention requires signatories to take appropriate legislative or
other measures to prevent torture within their jurisdictions, and Article 4
requires parties to make torture offences under their criminal law. In
addition, Article 16 obliges signatories to prevent "acts of cruel, inhuman
or degrading treatment or punishment which do not amount to torture"
taking place in territories under their jurisdiction
In his comment on the issue, zdenkowskiZo4 advances the tentative
suggestion that customary law punishments be granted statutory
recognition, thus shielding those who administer such punishments from
prosecution for assault (it being assumed that such punishment cannot be
consented to under the common law). Zdenkowski acknowledges, but
does not resolve, the issue of the conflict between such an approach and
human rights doctrines. Although noting that limits might be placed on
what customary punishments would be recognised, he also notes that such
restrictions would in turn raise the issue of paternalism. The only writers
to address the issue squarely are ~ c ~ a u ~ h land
i n '~~l ~a ~ who
, " ~reach
opposing conclusions. McLaughlin adopts an unambiguously universalist
approach, stating thatzo7
...it is unconscionable
to place indigenous rights under the banner
of human rights, but then to exclude the operation of those human
rights within customary law.
'03
G. A. Res. 39/46 of 10 December 1984.
204
G Zdenkowski "Customary punishment and pragmatism: some unresolved
dilemmas" (1994) 68 ALB 26.
R McLaughlin "Some problems and issues in the recognition of indigenous
customary law" (1996) 86 ALB 4.
S Blay "The International Covenant on Civil and Political Rights and the
recognition of customary law practices of indigenous tribes: the case of
Australian Aborigines" (1986) 19 Comparative and International Law
Journal of Southern Africa 199.
Supra n. 205 at 9.
'05
'06
'07
5 JCULR
Indigenous Law in South Africa
109
By contrast, Blay argues that whereas the principle contained in Article 7
of the ICCPR that no-one be subject to "torture, cruel, inhuman or
degrading treatment or punishment" may be universal, what amounts to
such punishments may be culturally-specific and that, for example,
imprisonment may be seen as more cruel by an Aborigine than would
spearing in the thigh.208 He further argues that the exclusion of "pain or
suffering arising only from, inherent in or incidental to lawful sanctions"
from the definition of torture in Article 1 of the Convention against Torture
can, because of the ambiguity inherent in the term "lawful sanctions", be
interpreted as excluding punishment which is lawful under indigenous law
from the definition of torture,209 and that therefore such punishments
should be granted recognition even in the light of the international
documents.210 It is suggested that this line of reasoning be rejected:
Reading the exclusion provision in the definition of torture such a way as
to exclude from "torture" whatever is lawful within a jurisdiction
undermines the entire purpose of the document; it is incompatible with
Articles 4 and 16, and amounts to a virtual invitation to parties to enact
legislation legalising torture. Such an interpretation is manifestly absurd.
Clearly sense can be made of the exclusion only if it is interpreted as
covering only such pain or suffering arising from lawful sanctions other
than torture - in other words, it is recognised that even lawful sanctions
falling short of torture might contain an element of pain or suffering,211but
that once such pain or suffering reaches a certain threshold, the punishment
becomes torture in itself and is thus prohibited by the Convention, even if
that punishment is valid the legal system of the jurisdiction. Seen in this
light, the Convention cannot possibly be seen as permitting punishments
which amount to torture (or, it follows, to cruel, inhuman or degrading
treatment or punishment).
How then do we resolve the conflict between the universalist's rejection of
indigenous punishments which offend international human rights
instruments, and the cultural relativist's acceptance of them as a
manifestation of Article 27 rights? In the first place, while disagreeing
with Blay's conclusions on the issue of "lawful sanctions", his point that
what constitutes "cruel and inhuman punishment" is to some extent
indeterminate is well made, and it may be that, taking into account both the
physical and psychological effects of punishments imposed under
indigenous and the received law, the former may, in fact, not be cruel and
209
210
'l1
Supra n. 206 at 207-208.
Ibid 209-210, 214-215.
Ibid 217-219.
For example, limited periods of solitary confinement used as a disciplinary
measure.
inhuman, notwithstanding its corporal nature. This is a question best
answered by criminologists and anthropologists. However, what does one
make of punishments which are found to impose physical or psychological
pain to an extraordinary degree - in other words where it is the severity of
the punishment rather than its type that is problematic? Once severity
becomes an issue, the question which must be addressed is what are the
limits of consent by a member of a culture to punishment imposed by that
culture? This is an issue which remains to be settled, as the decision in R v
~ r o w n shows.
~ ' ~ The answer must however depend on some test relating
to the seriousness of the injury inflicted, taking into account the risk it
poses to life, the permanence of its effects and whether it requires medical
attention.213 Assuming then that, assessed on some objective - probably
medical - standard, a particular punishment is found to be excessive, one
will then (and only then) finally have to make the choice between
conflicting rights posited at the beginning of this paragraph. The answer
one arrives at ultimately depends upon one's stance in relation to the
question of whether there are any rights that are universal. In this author's
opinion a negative answer to that proposition negates the entire concept of
human rights, and leads ultimately to the justification of any human rights
breach, no matter how egregious, on the basis of differing cultural values.
For that reason, the clash would have to be resolved in favour of
international human rights obligations.
It may however be found that the conflict on this issue is more apparent
than real: Indigenous law is not man-made and thus is not positivist, being
rather understood by Aborigines as a body of rules forming part of an
212
213
[l9931 2 All ER 75. For academic comment on the case highlighting the
court's failure to enunciate a clear rule on the question of what level of
injury may be consented to see B Thompson Sadomasochism (Cassell:
London, 1994); M Giles "R v Brown: Consensual Harm in the Public
Interest" (1994) 57 Modem Law Review 101 and B Bix "Assault, sadomasochism and consent" (1993) 109 Law Quanerly Review 540.
In the course of his dissenting judgment in Brown, Slynn LJ suggested that
seriousness of injury should be the criterion by which capacity to consent
was determined (at 121j - 122d), and in reaching a conclusion on the facts
of the case took into account the fact that the injuries were not of such a
nature as to require medical treatment (at 122j). In the wake of the Brown
decision, the United Kingdom's Law Commission recommended that
"serious injury" should mark the point beyond which consent should not be
permitted (see Law Commission Consent and Offences Against the Person
(Consultation paper No. 134) (HMSO: London, 1994) 32.5).
5 JCULR
Indigenous Law in South Africa
111
established moral order.'14 However, this does not mean that indigenous
law is static, as is shown by the fact that while death was reportedly
imposed as a punishment by some indigenous communities in the 19"
century and even into this century,'15 nowadays such is rarely, if ever, the
case.'I6 Although human modifications of a naturally-ordained order
would seem to be a contradiction in terms, evolution in indigenous law can
be explained as a new understanding by Aborigines of the rules ordained
by that natural order, just as a natural lawyer would argue that while
natural law is immutable, human understanding of that law is progressive.
It may therefore be that indigenous authorities themselves reach the
conclusion that such physical punishments that inflict serious injury are
inconsistent with human dignity.
Finally it is useful to return to the South African experience, which offers
hope on the question of accommodation between indigenous and received
law: The statement on National Unity and Reconciliation appended to
South Africa's 1993 Constitution referred to the African concept of ubuntu
as a value underling the ~ o n s t i t u t i o n . ' ~
In~her discussion of the concept in
S v ~ a k w a n ~ a nMokgoro
e , ~ ~ ~ J stated that "one shared value and ideal that
runs like a golden thread across cultural lines is ubuntu ....Generally
ubuntu translates as humaneness.. .Its spirit emphasises respect for human
dignity, marking a shift from confrontation to c~nciliation."~'~
Similarly in
the same case Langa J stated that "The dominant theme of the culture is
that the life of another person is at least as valuable as one's own".220
Clearly, then, indigenous society in South Africa recognises the existence
of a universal value of human dignity. The key to conflicts between rights
thus lies in recognising that the problem is not whether there is a universal
value, but rather in discovering the content of that value, and that whereas
214
'51
'l6
217
'l8
219
220
K Maddock "Aboriginal customary law" in P Hanks and B Keon-Cohen
(eds) Aborigines and the Law (George Allen & Unwin: Sydney, 1984) 212,
212-213.
lbid 224.
B Debelle "Aboriginal customary law: progress report" in G Nettheim (ed)
Human Rights for Aboriginal People in the 80s (Legal Books: Sydney,
1983) 63,68.
For a critical discussion of the concept of ubuntu see English "Ubuntu: The
quest for an indigenous jurisprudence" (1996) 12 South African Journal on
Human Rights 641.
1995 (6) BCLR 665 (CC). Ubuntu was also referred to in the case of
Azanian Peoples Organization (AZAPO) v President of the Republic of
South Africa 1996 (4) SA 67 1 (CC).
Ibid 77 1I-J.
Ibid 752C-D.
Western society may speak of "natural law" and South African society
may speak of ubuntu, both refer to the same concept. Identifying such a
concept within Aboriginal society would further this process in Australia.
A likely candidate might be that of djugaruru, identified by Meggitt in his
study of Walbiri society as meaning a holistic morally right order.221
Arguing over whether human dignity is recognised by all cultures is
redundant - the evidence indicates strongly that it is. The challenge lies in
recognising that no culture can claim infallibility in determining what
precise rules are mandated by human dignity, but that the chances of
ascertaining those rules increase in proportion to the willingness of various
cultures to learn from each other.
22 1
M J Meggitt Desert Peoples (Angus and Robertson: Sydney, 1962) 251-2.
The concept well illustrates the fusion in indigenous legal systems between
values which Western legal systems would classify separately as
"religious" and "legal" - for a discussion of this point see Amankwah supra
n. 143 at 34-36.