Grahamstown • 6140 • South Africa

FACULTY OF LAW • Tel: (046) 603 8427/8 • Fax: (046) 6228960

Web Page: http://www.ru.ac.za/academic/faculties/law

CUSTOMARY LAW: 2010

1. Introduction

1.1 Overview

Customary law is a self standing course in the Faculty of Law in LLB 2 as well as
comprising one of the six component courses in the Legal Theory major in the
Faculties of Humanities, Commerce and Science. Students who pass
Customary law as part of the Legal Theory major are exempted from the course
in the LLB curriculum.

The purpose of the course is to introduce students to the history of recognition

and application of customary law as part of the national legal system. Students
are also introduced to the notion of legal and cultural pluralism and the impact of
the new Constitution on some aspects of Customary law. Since the advent of the
new constitutional dispensation there has been numerous legal challenges
regarding the constitutionality of some customary law rules and practices.

 To assist students to gain a better understanding of the application of choice

law rules in the resolution of civil disputes in the lower and superior courts in
terms of s 211(3) of the Constitution r/w 1(1) of the Law of Evidence
Amendment Act 45 of 1988.

Customary Law 2010 1

 To assist students in extracting legal principles from the law reports and
other source materials.

1.2 Credit values

1.3 Assumptions of prior learning
To enable students to know and benefit from this course, students should be able
to:
 Have the ability to read and research
 Know how and where to access resources such as articles in the various
law Journals, textbooks (old and new); statutes and law reports
 Be capable of independent reading
 Read, analyse and extract principles from law reports and other source
materials
 Understand the system of judicial precedent
 Understand the notion of judicial development of customary law to meet the
objectives of s 39(2) of the Constitution

2. Outcomes
2.1 Critical Outcomes
This course will assist students to attain the following critical outcomes:

2.1.1 Organise and manage themselves;

2.1.2 Identify and solve practical legal problems
2.1.3 Communicate effectively in class and written assignment;
2.1.4 To understand the nature of customary and how it is applied in courts;
2.1.5 To be culturally sensitive;

2.2 Intended specific outcomes

A. Knowledge Outcomes
 The Customary law course is designed to enable students, on the
completion of the course, to be conversant with the objects of section 39(2)
of the Bill of Rights and how the courts in practice use the section to

Customary Law 2010 2

 develop the outdated principles of Customary law in order to be in harmony
with the Bill of Rights.
 To understand the resolution of internal conflict problems
 To apply the knowledge acquired during the course in the resolution of legal
disputes arising in Customary law contexts.
 To understand the nature of customary law and how it is applied in courts.
 To deal with issues of diversity.

B. Skills Outcome
At the end of course students should be able to:

 Identify and understand the notion of legal pluralism and how it is given
effect to in the judgments of the courts.
 To understand the concept of the judicial development of customary law in
the context of s 39(3) of the new Constitution.
 To be able to apply legal principles of customary law to specific situations.
 To research and write case note on a case dealing with an aspect of
customary law.

C. Values Outcomes
 It is intended that students will demonstrate an appreciation of academic
integrity in acknowledging sources in research.
 Ethics of disclosing all relevant law, whether favourable or not, to a given
factual situation.
 Acknowledge the value of old authorities in dealing with the harmonization
of customary law principles with the values of the Bill of Rights.

3. TEACHING METHODS

The course will be presented by means of the discussions of the topics indicated
in the course outlines in the lecture periods. Students are only provided with a
synopsis covering the nature of the law, recognition and application. Students

Customary Law 2010 3

will also be referred to recent decisions of the superior courts dealing with the
judicial development of some aspects of customary law. Students will be
referred, from time to time, to recent publications dealing with some areas of
contestation. Students will be expected to participate in class discussions.
Tutorial attendance is compulsory. Non attendance will result in a student losing
the 5% component of the tutorial.

4. COURSE CONTENT

Sources of customary law; history and application of customary in South Africa

since 1927; Customary Law and the Constitution; Customary Law of Persons
and Family; Law of Property and Succession and Law of Obligations.

4.1 The place of customary law in the national legal system.

4.1.1 Definition, nature and the main features of customary law

4.1.2 Sources
4.1.2.1 Custom
4.1.2.2 Legislation (See the Traditional Leadership and Governance
Framework Legislation attached as Annexure II)
4.1.2.3 Precedent
4.1.2.4 Constitution

4.2 Recognition and application

4.2.1 Brief history of recognition of customary law in the Cape Province

4.2.2 Customary law under the New Constitution
4.2.3 Compatibility with human rights

4.3 Application of customary law in the courts

4.3.1 “Unofficial Courts”

Customary Law 2010 4

4.3.2 Customary courts
4.3.3 Magistrates‟ courts
4.3.4 High court

4.4 Law of persons and the family

4.4.1 General principles

4.4.2 Matters of status
4.4.3 Adoption
4.4.4 Disinheritance
4.4.5 Family law
4.4.5.1 Relationship within the family
4.4.6 Customary marriages
4.4.6.1 Statutory development (Recognition of Customary Marriages Act
120 of 1998)

5 Property and succession (on succession, read AJ Kerr “The

Constitution, The Bill of Rights and the law of succession” (2006) 20
Speculum Juris p1

5.1 Development affecting the law of property (Land reform process)

5.2 Customary law of property
5.3 Customary law of succession after Bhe
5.4 Administration and distribution of the estates of deceased Blacks

6· Customary law of obligations

6.1 Delict and procedural requirements

6.2 Specific delicts
6.3 Contracts
6.4 General principles and quasi contractual relations

7. Resources

Customary Law 2010 5

The core reading and study materials are textbooks (old and new), law reports,
statutes and the various articles published in the law Journals

The following books are recommended for further reading

1. The Law of South Africa – First Reissue, 32 Indigenous Law, Lexis Nexis
Butterworths (2004).
2. RB Mqeke Customary Law and The New Millenium, Lovedale Press (2003).
3. TW Bennett Customary Law in South Africa Juta (2004)
4. JC Bekker et al (eds) Introduction to Legal Pluralism in South Africa. Part 1
Customary Law Butterworths (2006).
5. AJ Kerr Customary Law of Immovable Property and of Succession, Grocott
& Sherry (1990).
I have included notes from the revised chapters of Customary Law and the New
Millennium. This book will be available in 2010. In the meantime I have revised
the contents of the old chapters 1, 2 and 5 which deal with the problem areas of
the course.

Customary Law 2010 6

STUDENT ASSESSMENT

Specific outcomes Assessment criteria Assessment tasks

(on completion of this What evidence must the The evidence will be
course the students will student provide to show gathered in the following
be able to: that they are competent? way. The student may
The student must be able be expected to:
to:
To understand the nature Describe the recognition Write an essay showing
of customary law and and application of how the courts have
how it is applied in the customary law. harmonized the rules of
courts. customary family law with
Describe how the courts the objects of the Bill of
develop customary law in Rights.
terms of s 39(2) of the
Constitution r/w s 1(1) of
the Law of Evidence
Amendment Act 45 of
1988.
To understand the notion Explain how the courts Setting problem question
of choice of law rules. resolve internal conflicts in which the student will
problem in terms of s be required to discuss
211(3) of the the choice of law factors
Constitution. in the light of the recent
court decisions
To have the ability to Describe the various Set a test in which the
resolve legal disputes stages of dispute problem type question
arising in customary law resolution in customary will be asked and which
contexts. law in matters involving requires the application
delictual and contractual of knowledge.
claims.

Customary Law 2010 7

Assessment Strategy
The final mark for the course is comprised of the following components:
Examination: out of 70 marks
Class work: out of 30 marks
Total: 100 marks

Test
There is one test for this course which is written in the fourth term. The test will
be out of 35 marks written during the lecture period. The test will contain
questions equivalent to that which may be found in the November examination.
The test counts 50% of the class work.

Assignment
There will be one assignment written in the third term. The length of the
assignment will not be more than 1 000 words. The students will be required to
follow the referencing conventions used in the Survival Guide. The assignment
will be out of 35 marks. Assignment and test will be 25% and tutorial will count
5%.

1. Customary Law 2009

1.1 Definition: See s 1 of the Recognition of Customary Marriages Act 120 of

1998 and s 1 of the Traditional Leadership and Governance Framework
Act 41 of 2003 and Mthembu v Letsela and Another 1997 (2) SA 936
(TPD)

1.2 Nature of Customary Law: See Alexkor and Another v Richterveld

Community others 2003 (12) BCLR 1301 (CC) paras 51 and 52 and, Bhe
and Others v the Magistrate Khayelitsha and Others 2005 (1) BCLR 1
(CC) Langa DCJ paras 41, 42, 43, 44, 45, 46, 89 and Ngcobo J at paras
148, 149,150,151,152,153

Customary Law 2010 8

 1.2.1 Customary law as part of African Culture: see the first Mthembu case
and Bhe (Supra)
1.2.2 Customary law as a living law: Bhe case and Mabena v Letsoala
1998 2 SA 1068 (T). The notion of the living law is often associated
with the Austrian jurist Eugen Ehrlich 1862-1922. See a good
commentary on Ehrlich‟s views on Comparative law in a global
context: The legal systems of Asia and Africa by Dr Werner Menski,
Platinum Publishing Limited, London. We have a copy in the library
pp 114-118; see again the analysis of this concept by Himonga and
Bosch 2000 SALJ 306.

1.3 Main features of customary law: chapter two of Customary Law and The
New Millennium.

1.4 Place of customary law in our legal system (Mthembu, Alexkor and Bhe
cases). See also Chuma Himonga “Taking Stock of changes to customary
law in a New South Africa” in Dr G Glover (ed) Essays in Honour of AJ
Kerr LexisNexis Butterworths (2006) 215.

N.B In both Alexkor and Another v Richtersverld Community and Others and
Bhe and Others v The Magistrate Khayelitsha and Others the
Constitutional Court referred to three meanings of Customary law. On the
notion of what the court called „academic law‟ see AJ Kerr “The
Constitution, The Bill of Rights and Law of Succession” (2005)19
Speculum Juris 181 at 194 et seq.

Customary Law 2010 9

This is also contained in chapter 1.

On the relevance of sources of Customary law see, inter alia, the Alexkor case,
below, and the judgment of Albie Sachs J S v Makwanyane and Another 1995
(3) SA 391 (CC).

1.1 Custom
See the books indicated in the reading list. Read Chapter 1 Customary
Law and the New Millennium and cases noted in R.B Mqeke Basic
Approaches to problem solving in Customary law Grocotts & Sherry
(1997) pp 155 and 197.

The following cases must be read: Alexkor and Another v Richtersveld

Community and others 2003 (12) BCLR 1301 (CC); Mabuza v Mbatha
2003 (4) SA 218 (C) and Sigcau v Sigcau 1944 AD 67. On the statutory
provisions entrenching customary practices. See Inter alia, The
Traditional Leadership and Governance Framework Act 41 of 2003 and
Recognition of Customary Marriages Act 120 of 1998.

1.2 Legislation as a source: Law of Evidence Amendment Act 45 of 1988 –

repugnancy clause interpreted in the Mabuza case, Supra.

1.3 Precedent: This refers to the judgment of the superior courts (High Court,
SCA and the Constitutional Court)

This includes the decisions of the Native Appeal Court

1.4 Commission Reports

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 Two such reports are important, namely, the 1883 Commission Report
(See AJ Kerr 1986 Transkei Law Journal) and South African Native Affairs
Commission 1903-5. The two commissions made specific
recommendations with regard to land tenure rules. See the relevance of
both commission reports in the area of intestate succession in AJ Kerr
2006 Speculum Juris.

1.5 Textbooks: See Comments in this regard in both the Bhe and Alexkor
cases.

1.6 Articles published in the South African Law Journals: Recent cases and
new legislation dealing with customary law will be commented upon in the
law journals. The following journals usually carry either full length articles
or case notes on customary law: De Jure; The Journal of the Faculty of
Law University of Pretoria appears twice a year and is published by
LexisNexis Butterworths; THRHR which stands for Tydskrif vir
Hedendaagse Romeins-Hollandse Reg (Journal of Contemporary Roman-
Dutch law) also published by LexisNexis Butterworths. OBITER, The
Journal of the Faculty of law, Nelson Mandela Metropolitan University,
appears twice a year; Acta Juridica, the Journal of the Faculty of law,
University of Cape Town, appears once a year; Speculum Juris, a Joint
publication of the Nelson Mandela School of law, Fort Hare and Faculty of
law Rhodes University also appears twice a year and South African Law
Journal (SALJ).

From time to time students will be referred to articles published in these

Journals all of which can be accessed in the Law Library. Quite often the
superior courts when dealing with customary law related problems rely on
articles published in the law journals.

Customary Law 2010 11

HISTORY OF RECOGNITION

1. Brief history of recognition and application of customary law in South

Africa since 1927. For a full account on the history of recognition and
Application see, inter alia, GMB Whitfield South African Native Law (1946)
and the sources listed in your course outline particularly TW Bennett 2004
Chapter 2.

1.1 Black Administration Act 38 of 1927 created a parallel system of

Special Courts, which functioned until they were abolished in terms of
the Special Courts for Blacks Abolition Act of 1986.

1.2 Civil and Criminal Jurisdiction of courts of traditional leaders: sections

12 and 20 of Act 38 of 1927. For the legal position in the former
independent homelands see J C Bekker Seymour‟s Customary Law
in Southern Africa (1989) pp. 18 – 28. These two sections still apply.

1.2.1 Civil Courts Rules G N R 2082 of 29 December 1967 were

promulgated in terms of the Black Administration Act 38 of
1927. These rules are still in force.

2. Customary law under the New Constitution: see chapter 12 of the

Constitution and comments thereon in the Bhe case. The Black
Administration Act received adverse comments in Moseneke v The Master
2001 2 SA 18 (CC) and in the Bhe case.

2.1 Constitutional challenges of some aspects of customary law: see the

cases Mhlekwa v Head of the Western Tembuland Regional
Authority 2000 9 BCLR 979 (TK); Mthembu and Bhe cases referred
to at page 7 above.

Customary Law 2010 12

 2.2 Compatibility of customary law with human rights: see again the
sources on page 2. See p 40 – 42 of Customary law and the New
Millennium.

Application of customary law in South Africa

This is also dealt with in chapter 5.
1. Community Courts

The application of customary law at the level of unofficial courts. In the

townships these tribunals are called community courts whereas in the
rural areas they are ward courts or courts of subhead men. In the post
apartheid era some community courts see, inter alia, Sanette Nel
“Community courts: official recognition and criminal jurisdiction – a
comparative analysis” 2001 CISA p 87 and Wilfred SCHäRF & Daniel
Nina (eds) The Other Law, Non-State Ordering in South Africa, Juta
(2001). The South African Law Commission Discussion Paper 87 Project
94 Community Dispute Resolutions Structures made certain proposals.
Again Professor Nel 2001: 89 expresses the view that community courts
should be retained as they fulfill a specific need in the community. How
does one reconcile this proposal with s 166 (e) read with s 170 of the new
Constitution. See also s 34 of the 1996 Constitution. These community
tribunals are examinable. Chapter 5 of Bennett 2004 is very important on
the court system.

2. Customary Courts1

These are the official courts of traditional leaders. On these see, inter alia,
Customary Law and the New Millennium Chapter 5; CRM Dlamini “The
effects of customs, religions and traditions on the right to a fair trial in
Africa” 2000 CILSA 318 at 324 et seq and Francios de Villiers Selected
South African Legislation on Customary Law and Traditional Authorities,

1
On momenclature see footnote 2 at page 11 below.

Customary Law 2010 13

 Konrad- Adenamer- Sliftung, on the current rules of chief‟s courts (Rules 1
to 12). These rules are also examinable.

3. Application of customary law in the Magistrate’s Courts: choice of

law rules

See 211 (3) of the new Constitution. Some choice of law rules were
formulated in Ex Parte Minister of Native Affairs: in re Yako v Beyi 1948 1
SA 388 (A); Maisela v Kgolane No 2000 2 SA 370 (TPD). See also
Makholiso and Others v Makholiso and Others 1997 4 SA 509 (TK).
Some of the choice of law factors identified under s 11 of the Black
Administration Act are noted in NJJ Olivier et el Indigenous law,
Butterworth (1995) pp 201 – 215. See also TW Bennett “Conflict of Laws”
in JC Bekker et al Introduction to legal Pluralism, LexisNexis Butterworths
(2006).

Customary Law 2010 14

4. Application in the High Court: Development of Customary Law

To achieve the objects of s 39 (2) of the Constitution, see the approach of

the Constitutional Court in Carmischele v Minister of Safety and Security
and Another 2001 4 SA 938 (CC) and Mabena v Letsoalo 1998 2 SA 1068
(TPD). Study the reasons why the Constitutional Court did not develop
the customary law principle of primogeniture in the Bhe case.

Procedure and Evidence

1. Introduction

Since the passing of the Black Administration Act2 1927 and the
regulations passed under it the procedure to be observed in connection
with the hearing of both civil and criminal matters in the traditional 3 courts
has always been in accordance with the laws and customs of the
traditional community in question. At the level of the unofficial4 courts the
procedure in connection with the notification of the date of trial and the
execution of judgment is still in accordance with the pre-colonial procedure
of using imisila yenkundla5 (court messengers). In the official Courts6

2
Act 38 of 1927. The current regulations were promulgated in G Notice R2082 of 29
December 1967. Rule 1 of the current regulations sanctions the observance of laws and
customs of the respetive tribes. The term “tribe” has been replaced in recent legislation by
the phrase traditional community. See the definition section of the Communal Land Rights
Act 11 of 2004. In Ex Parte Chairperson of the Constitutional Assembly : in Re Certification
of the Constitution of the Republic of South Africa, 1996, 1996 (4) SA 744 (CC) it was held
that traditional courts are included in S 166 (E) of the Constitution.
3
The South African Law Commission Report on traditional courts and The Judicial Function of
Traditional Leaders of 21 January 2003 refers to these Courts as Customary Courts. See p xi
This document will hereafter be referred to as the Commission Report (2003).
4
This refers to the courts of a sub headman (inkundla yenkosana (Nguni); induna (Zulu) and
kgosana (Sotho). See further RB Mqeke “Traditional and Modern Law of Procedure and
Evidence of the Cape Nguni – A Re-appraisal” (1982) 11 Speculum Juris 46 of 50 in N9.
Since the early days traditional court messengers are referred to as imisila and the summons
is known in the vernacular as Umsila wengwe (tigers tail)
5
Umsila literally means a tail. In the Eastern Cape a court messenger used to carry a tiger‟s
tail (umsila wengwe) as a badge of authority when he went to inform a defendant about the
date of trial. It would seem that what Africans thought to be a tiger was, in fact, a cheetah.
See in this connection the present writer in 1982 Speculum Juris in Note 3 above
6
Headmen and Chiefs‟ Courts. In the Commission Report 2003:43 there is a proposal for
these courts to be empowered to punish for contempt of court any person who without lawful
excuse disobeys an order given by customary court or who insults a customary court or any
of its members during a sitting of the court or who wilfully disturbs the peace or order of the
proceedings in the court (S 14)

Customary Law 2010 15

 messengers of the traditional Council (former tribal authorities) are issued
with subpoenas to be given to defendants or accused persons. From early
on till to date traditional courts have never had a clear distinction between
civil and criminal matters when hearing cases but deal with all aspects of
the case in the same proceedings by the simple expedient of imposing on
the defendant a fine which incorporates the compensation considered to
be due to the plaintiff. The only distinction which seems to be peculiar to
the Cape Nguni was in regard to the onus of proof in criminal matters
when there were very strong grounds of suspicion against the accused 7.
For example, if during a house to house search for a stolen animal some
meat was found concealed within the premises of the accused, the onus
would be on him to explain that the meat was not from the missing animal.
In the vernacular it will be said “gqithisa umkhondo”, that is, to explain the
spoor8.

2. Lodgement procedure

Perhaps another difference between criminal and civil matters lies in

connection with the initiation of legal proceedings. In civil matters as soon
as a civil wrong has been committed the plaintiff, accompanied by his or
her kin group, would proceed to the homestead of the wrongdoer to report
the matter and open negotiations9. This would invariably be the case in
seduction and pregnancy matters. A litigant‟s failure to comply with the
recognised customary procedure renders his or her evidence suspect10.
Our courts are reluctant to interfere with the procedure followed in the
traditional courts11. It is only when the traditional court has flouted the
prescribed procedure that the court proceedings would be set aside 12.

7
See Charles Brownlee “Notes by the Gaika Commissioner” GH8/23 March 19, 1863. This
was a Draft of an Ordinance to amend and declare the law relating to Natives. These were
handwritten notes which are kept at Government Archives, Cape Town. These are quoted in
full by the present writer in Customary law and the New Millennium, Lovedale Press (2003) at
26.
8
See AJ Kerr The Customary Law of Immovable Property and of Succession, Third Edition,
Grocotts & Sherry at p 82. The author states that the phrase “spoor law” came into being
because most of the cases in the nineteenth century concerned stolen stock. In Kerr‟s own
words, even in such cases, however, it is not necessary to find evidence of the “spoor” in the
sense of the imprint of a hoof. “Other satisfactory evidence, whether of previous presence of
an animal or of other goods, will suffice…” at 82
9
In criminal matters a charge will be laid at the Headman‟s or Chief‟s place. In the proposed
Traditional Courts Bill the distinction between civil and criminal matters will be delineated on
the record of proceedings.
10
See Bilitani v Kwini 1962 NAC (S) 8.
11
See Makapan v Khope 1923 AD 551 at 561
12
See Masenya v Seleka Tribal Authority And Another 1981 (1) SA S22 (T) cited by AJ Kerr
(1981) 98 SALJ 320.

Customary Law 2010 16

 The conclusion of the negotiation stage is seen as being an equivalent of
litis contestatio13.

If the negotiations do not produce any acceptable outcome the plaintiff

would proceed at once to institute his or her claim in the ward court and
from there to the court of the Headman or that of the senior traditional
leader. At the level of the official courts the procedure would be slightly
different as a traditional leader is expected to summon before it any
person who is a defendant in an action or is required to give evidence.
The Traditional Courts Bill is silent about the method of notification of a
defendant to attend a trial. This is regrettable as there is no indication of
whether a Traditional Court may give a default judgment and whether non
appearance by a party on a date set aside for the hearing of his or her
case may result in a court imposing a sanction for contempt of court.

3. Trial Procedure

3.1 Features of the traditional procedure.

3.1.1 Inquisitorial and arbitrational

The court procedure is court centred and the court and the
members in attendance take a leading role in the conduct of
trial. The primary aim of the traditional procedure is to obtain
reconciliation between the parties hence the use of arbitration.

3.1.2 Trial takes place in an open court and is informal. This means
that there is less emphasis on the mechanical rules of
exclusion.

3.1.3 Both parties must be present. Both features of the traditional

court procedure feature prominently in the proposed Bill. The
latter goes further and promotes full participation of all
interested parties without discrimination on grounds of race,
sex or gender.

3.1.4 Prohibition of legal representation. Litigant would, however,

be assisted by relatives. Again it would seem that this tradition
would be continued in the future if the proposed Traditional
Courts Bill becomes law. In terms of the relevant section of
the bill any person who is a party to a matter before a
Customary Court14 may be represented by any other person of
his or her choice in accordance with customary law.

13
See the present writer‟s Customary law and the New Millennium op cit at p 116 N11
14
The proposed Bill refers to Customary Courts. In this Chapter, traditional courts and
customary courts will be used interchangeably.

Customary Law 2010 17

The Traditional Courts Bill is attached here for your convenience. The Bill
covers, inter alia, designation of a king, queen, senior traditional leader,
headman or headwoman as the presiding officer of the traditional court,
procedure during the trial and the matters excluded from court‟s jurisdiction.

4 Evidence

4.1 Oral evidence. Evidence in traditional courts is given orally.

These courts may also receive documentary evidence.

4.2 Taking of oath. There is no taking of oath and as such no perjury

is punishable.

4.3 Exclusionary rules. Traditional Courts are not bound by any

mechanical rules of exclusion.

4.4 Opinion evidence

In the Eastern Cape15 the well-known case of Ityala lamawele (a

case of twins) provides precedent regarding the extent to which the
Xhosas made use of opinion evidence in intricate cases on some
obscure points of law where no precedent could be found. It seems
that one has to be an old sage of repute before one can be regarded
as an expert. Again in disputed paternity cases, opinion evidence
relating to the degree of physical resemblance of the child to the
alleged father was admitted.

7.1 Real evidence

Real evidence as well as evidence of an eye witness was very

important. In Maqutu v Sancizi16 it was held that the custom of taking
intlonze (exhibit in the nature of an article belonging to the wrongdoer
from the scene of crime) was not confined to adultery cases only and
that intlonze could be taken by force from any wrongdoer. In
Maqutu‟s case the defendant had taken plaintiff‟s blankets as intlonze
when he found him stealing in his (defendant‟s) garden.

7.2 Circumstantial evidence

15
See, inter alia, J.H Soga The AmaXhosa: Life and Customs Witwatersrand University Press,
(1932): 42 and S.E.K Mqhayi Ityala lamawele, Lovedale Press (1914)
16
1936 NAC (C & O) 86

Customary Law 2010 18

 In adultery cases the court would receive evidence of a “catch”17. The
Native Appeal Court later modified the rule relating to “catch” by
holding that “proof of a catch” which has no connection with any
alleged act of intercourse merely shows intimacy between the wife
and the alleged adulterer and as such may be accepted as evidence
aliunde in support of her testimony”18

8. Law of Persons and Family

8.1 Persons: see, inter alia, the following LAWSA Volume 32

“Indigenous law” paragraphs 97 – 103 and Customary law and the
New Millenium.

8.2 Family Law: See, inter alia, chapter 3 of Introduction to Legal

Pluralism and LAWSA Volume 32 paragraphs 104 – 157 and Bennett
2004 chapters 7 & 8.

9. Property and Succession

9.1 Property: see generally chapter 4 Introduction to Legal Pluralism,

AJ Kerr The Customary Law of Immovable Property and of
Succession (chapters 7, 8, 9, 11). These chapters are very short.
See also, Customary Law and the New Millennium; Ben Cousin
2005 Stellenbosch Law Review 488 and Annika Claasens 2005
Acta Juridica 42.

9.2 Succession: See AJ Kerr 2006 Speculum Juris p1 – 16; Chapter 7

of Introduction to legal Pluralism, LAWSA Volume 32 paragraphs

17
“Catch” referred to situations where a defendant was found in sexually compromising
circumstances with the plaintiff‟s wife. See also examples given in J.C Bekker (ed)
Seymour’s Customary Law in Southern Africa, Fifth Edition, Juta & Co (1989): 371 - 372
18
Myataza v Macasa 1952 NAC (S) 28, quoted with approval in Seymour’s Customary Law
opcit at 372

Customary Law 2010 19

 223 – 247. On succession to the position of a traditional leader see
the recent decision of the Constitutional Court dealing with the matter of
Tinyiko Phillia Namitwa Shukubana and Others v Sidwell Nwamitwa and
Others case CCT0

10. Law of Obligations

10.1 Delict: See generally JC Bekker Seymour‟s Customary Law in

Southern Africa and chapter 6 of Introduction to Legal Pluralism.

10.2 Contract: See JC Bekker Seymour‟s Customary Law in Southern

Africa.

Customary Law 2010 20