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11 Cards in this Set
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Courts which can apply AFRICAN CUSTOMARY LAW |
1. HC 2. CC 3.MC 4.Small claims court 5.Court of traditional leaders |
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Application at the magistrates court |
• The application of indigenous law in the magistrate’s court is regulated by section 1 of the Law of Evidence Amendment Act 45 of 1988• The Magistrate’s Court acts in two capacities1. the court of first instance, where the matter is first instituted in the magistrate’s court2. a court of appeal where a matter is first instituted in the court of the traditional leader and then referred to the magistrate’s court for appeal
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• The powers of the magistrate in respect of an appeal is governed by Section 29A of the Magistrate’s Court Act 32 of 1944 –
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1.Ifa party appeals to a magistrate’s court in terms of the provisions of section12 (4) of the Black Administration Act 1927, the court may confirm alter or setaside the judgment after hearing such evidence as may be tendered by theparties to the dispute, or as may be deemed desirable by the court
2. Aconfirmation, alteration or setting aside ito subsection (1) shall be deemed tobe a decision of a magistrate’s court for the purposes of the provisions ofChapter XI |
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Magistrate's Court |
• The Magistrate apparently has no power to review the decision of the court of the traditional leader which was being appealed against• The magistrate does have the power to review an administrative act of a traditional leader• When a case is instituted in the magistrate’s court as a court of the first instance, the magistrate has a choice to apply common law or indigenous law• When hearing an appeal from the court of the traditional leader, the magistrate must apply indigenous law• This rule applies regardless of whether the legal phenomenon is found in common law or indigenous law• The jurisdiction of the magistrate’s court and the jurisdiction of the court of a traditional leader may sometimes overlap• The implications of concurrent jurisdiction has not been property investigated• Although it has been held that whilst proceedings are underway in once court, the same action should be instituted in another court, there is no rule which actually prohibits it (Mdumane v Mtshakule 1948 NAH (C20) 28)• This appeal is not an appeal in the ordinary sense of the word, a this could involve a retrial (the case which was previously hear is heard as though it had not been hear din the past)• The overlapping of jurisdiction has at least two undesirable consequences :1) a party has the opportunity to chose his own settlement forum – the plaintiff is entitled to make use of a court which will provide him with the most effective remedy – regardless of the prejudice it may cause the defendant2) the possibility that an action instituted in the wrong court may have to be transferred to the correct forum which results in loss of time and money• Most legal systems in Southern Africa leave it to the clerk of the court to decide in which tribunal (court) the action should be instituted
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Application at the small claims court |
Small Claims Court Act 61 of 1984
• Small-claims courts operate in an informal manner – and should attempt to reconcile the parties • The jurisdiction of the courts is restricted to the hearing of small claims which do not exceed an amount determined by the Minister from time to time in the GG – currently R3000.00 • Matters are specifically excluded from the jurisdiction of small claims courts :1) dissolution of customary- law marriages2) actions for damages for seduction3) breach of promise to marry • The officers presiding over these courts are advocates, attorneys or magistrates and they act as commissioners • According to the inquisitorial procedure, the court takes an active part in the investigation before the court – similar to the indigenous-court procedure • There is no requirement in the Small Claims Act Act 61 of 1984 that the commissioners should be able to speak a Bantu language, or that they should be proficient in customary law |
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Courts of traditional learders |
• According to sections 12 and 20 of the Black Administration Act 38 of 1927 traditional leaders are empowered to adjudicate civil and criminal cases, provided the Minister (for traditional affairs) has granted them this power• It is unlikely that the courts of the traditional leaders will consistently draw the careful distinction between criminal and civil matters they are required to do by the Black Administration Act and by common law• Should they act in contravention of this act, and impose a criminal penalty, they will fall foul of the criminal prescription of common law and can be held liable for any consequences which may arise as a result• Only black people (described as “a member of an aboriginal race or tribe of Africa”) have access to the courts of the traditional leaders• An argument regarding unfair discrimination is misplaced- as it is general practice to limit institutions of a particular culture to the members of that cultural group• In Gerhardy v Brown (1985 159 CLR 70), the Australian High Court found a local Act to be valid although it discriminates on racial grounds, since it was a “special measure” to protect the cultural group concerned• Indigenous courts function for the benefit of black people who do not have access to the magistrate’s courts or the Supreme Court on account of financial and educational reasons• Indigenous courts provide them with a forum that is in harmony with their cultural expectations• Important differences between the indigenous courts and other courts :1) Indigenous courts can apply only indigenous law and not common lawOther courts can apply both indigenous law and common law2) No Legal representation is allowed in indigenous courtsThese differences are in agreement with cultural orientation• Black people have a choice as to which court to institute their action• They are not obliged to institute their action in the court of the traditional leader in the first instance
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Jurisdiction in civil matters |
• The Minister may ito Section 12 (1) of the Black Administration Act 38 of 1927, empower a traditional leader who is recognised or has been appointed, to hear and decide on civil claims between blacks• At the request of a traditional leader, such powers may be granted to a deputy• Ito Section 12 (2) – the Minister may withdraw the jurisdiction granted to such person at any time• A traditional leader who hears and decides civil claims, constituted a court and his findings are binding and becomes a res iudicata (the case is decided and thus closed) – subject to the right of appeal to the magistrate’s court• A traditional leader may hear and decide civil cases which :1) result from indigenous law2) are instituted by black people against black people residing in the area of jurisdiction• A traditional leader may not decide on any matter concerning nullity, divorce or separation iro a civil marriage between black people
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Case Gqada v Lepheana (1968 BAC (S) |
• In Gqada v Lepheana (1968 BAC (S)) it was decided
(a) that a claim concerning lobolo iro a civil marriage is a claim which originates from indigenous law (b) Bekker questions this decision (c) He argues that this decision assumes an expert knowledge of the general law of persons on part of traditional leaders iro civil marriages and their dissolution, and that lobolo iro a civil marriage is a matter sui generis (distinctive) in which indigenous law only serves as a directive, and that such a claim does not arise from inidigenous law (d) Unisa’s opinion is that this decision has merit – as at the stage of dissolution of the marriage as already been decided by the court, so that the lobolo issues does not arise from the dissolution of a civil marriage (???) (e) A traditional leader is empowered to decide on any lobolo claim arising from an indigenous marriage |
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Case Ex Parte Minister of Native Affairs
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• In Ex Parte Minister of Native Affairs – interpretation was given for the word “resident”
• The issue to decide is one of place of residence and not of domicilium • A person can be domiciled in one place and temporarily reside in another place • A person can have more than one place of residence but can live only in one place at a time – a person must prove to the court where he resides when summons was served • The court did not give a comprehensive description of the word “reside” – there must be evidence that there are good grounds to regard such place as his regular residence at the time when summons was served |
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Jurisdiction in criminal matters |
• The Minister can ito Section 20 (1) of the Black Administration Act 38 of 1927 empower traditional leaders and their deputies to try criminal offneces• The Minister can revoke this power at any time • According to Minister van Naturellesake v Monnakgotla (1959 (2) PH (k.70) such revocation must be done according to the audi alterem partem principle (hear the other side)• There is a rebuttle presumption that a traditinoal leader has the proper power to hear such a case (R v Dumezweni 1961 (2) SA 751 (a) at 755)• A traditional leader is competent to hear1) any crime in accordance with common law2) any crime in accordance with indigenous law3) any statutory crime referred to by the Minister
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• A traditional leader’s powers are limited in the following way
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1) his jurisdiction is limited to crimes committed between black people in an area which is under his control – extent of his power connected to residence and no group membership
2) his jurisdiction is limited to black people |
