Browsing by Subject "Customary Law"

Now showing 1 - 4 of 4
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    A living customary law of commercial contracting in South Africa: some law related hypotheses
    (2017-10-01) Hutchison, Andrew; Sibanda, Nkanyiso
    Inspired by calls to ‘decolonise’ South African law and legal education, this paper will posit some hypotheses as to the nature of a living customary law of commercial contracting from the perspectives of two South African contract law teachers. An account of the commercial format of customary contracting is largely absent from the law reports and leading legal textbooks in this country. The dominant narrative in existing legal sources, however, (which may be stereotyped), is of African communalism prevailing in customary contract practice. This is reflected (for example) in the discourse on ‘ubuntu’, which is being used at present as a vehicle for the constitutional transformation of the South African common law of contract. Other existing empirical accounts from discourses such as economics and anthropology also suggest, however, that contracting in indigenous African communities rests on notions of trust and community. This is reinforced by the existence of informal township dispute resolution structures. We will thus posit a central hypothesis that customary commercial contracting is relational in nature, using an inter-disciplinary literature review and drawing on the lived experiences of the authors. Other related hypotheses will also be developed. Ultimate truth here is a matter for future empirical study.
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    The status, rights and treatment of persons with disabilities within customary legal frameworks in Uganda: A study of Mukono District
    (2017) Dennison, David Brian; Himonga, Chuma
    This thesis addresses the question: How do customary legal frameworks impact the status, rights and treatment of persons with disabilities? It is motivated by two underlying premises. First, customary legal frameworks are highly consequential in Sub-Saharan contexts. Second, human impairments are likely to impact status, rights and treatment in customary legal scenarios. In addition, the reality of deep legal pluralism and an anthropologically versed conception of customary law inform the research design. Customary legal content is rightly discerned by researching its substance and application within the lived environment. The researcher gathered input and stories of 63 persons with disabilities and conducted interviews of 23 community members with heightened knowledge of cultural matters in order to discern the experiences of persons with disabilities in non-formal legal contexts. In her semi-autonomous social field approach, Sally Falk Moore considers diverse and layered sources of law when determining the normative legal content in lived contexts. However, this research uncovered little in the way of normative principles specially pertaining to persons with disabilities within lived environments. Instead, legally consequential occurrences take place in customary scenarios that are largely autonomous from formal actors and institutions. The perceived normative substance of formal and customary law can influence the outcome of customary scenarios, but the decision makers' working knowledge of this legal content as it pertains to people with human impairments is limited and disparate. Decision-making family, clan and community members take various factors into consideration when determining rights, status and treatment in customary scenarios. Suppositions about the capacity and functionality of persons with disabilities are particularly influential. Thus, human impairments can be consequential factors in these decisions. This thesis demonstrates that customary scenarios are highly significant forums for establishing customary rights and status in the contexts of marital relations, clan leadership, customary guardianship, customary succession and land rights. Moreover, it indicates that effectual social and legal influences in these scenarios are multi-sourced, multi-layered and dynamic. Finally, the thesis offers practical change strategies suggested by the research for those seeking to improve the status, rights and treatment of persons with disabilities in Mukono District and similar settings.
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    Succession in woman-to-women marriages under customary law: a study of the Lobedu Kingdom
    (2017) Maphalle, Kagiso Annette; Himonga, Chuma; Diallo, Fatimata
    This study looks into the ways in which official customary law addresses succession complexities and legitimacy in woman-to-woman marriages. The social, political, cultural and legal background against which these marriages are concluded show the history of succession in woman-to-woman marriages and the position of women and children. The thesis highlights provisions of customary succession laws legislators sought to redress through the Reform of Customary Law of Succession and Related Matters Act 11 of 2009 and the Recognition of Customary Marriages Act 120 of 1998, which affect widowed spouses and certain children in customary marriages. The study uses literature review, case analysis and interviews to investigate the operation and legitimacy of woman-to-woman marriages, the benefits or harmful effects thereof, the background, context and history of the customary law of succession and acceptance of children in Bolobedu, and the application of living customary law. The study finds that woman-to-woman marriages are legitimate customary marriages under Lobedu customary law. It also finds that customary succession laws in such marriages have traces of patriarchy, although the community is under a matriarchal system of governance. It finds that the rule of male primogeniture is still applicable, and that women do not have a right to inherit from their deceased parents except at the discretion of the male heir. It finds that the acceptance of children in woman-to-woman marriages includes the performance of ceremonies symbolising the female husband's acceptance, and the child's use of her surname. It further finds that the application of official customary laws in Bolobedu is negligible, with the living customary law being the applicable law for all succession disputes. A further finding is the general lack of knowledge and understanding of succession rights under official customary laws by the community and their traditional leaders, who are aware only of provisions of the Lobedu living customary law which they readily provide. The study concludes that the legislators, judiciary and policy makers' lack of knowledge and understanding of woman-to-woman marriages and its accompanying succession laws inhibits and limits the adequacy of official customary law to regulate succession complexities. Rural communities' perceptions of their rights and knowledge of customary laws of succession, the practicality of provisions of official customary laws of succession, and their relatability to lived realities of rural communities further add to the inadequacy of official customary law.
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    The administration of customary law estates post the enactment of the reform of customary law of succession act: a case study from rural Eastern Cape, South Africa
    (2019) Osman, Fatima; Himonga, Chuma
    After years of deliberation and judicial activism, the South African legislature in September 2010 brought into force the Reform of Customary law of Succession and Regulation of Related Matters Act 11 of 2009 (the Reform Act). The Act regulates the devolution of property of individuals who live according to customary law and die intestate. The notorious customary law principle of male primogeniture, according to which males inherited to the exclusion of females, has been abolished and replaced with the common law system of intestate succession. It has been nine years since the enactment of the Reform Act. This thesis investigates the implementation of the Act to understand its application by officials and people’s experiences thereof. It is a qualitative study that draws upon doctrinal and empirical research to address its objectives. The theoretical concepts of deep legal pluralism and the semi-autonomous social field are employed as the analytical prism through which the administration of customary law estates is investigated. The findings are based on a comprehensive case study conducted in a rural village in the Eastern Cape of South Africa. Individuals, the traditional leader, the headman and state officials were interviewed to understand how estates are reported and the devolution of benefits. The interviews were augmented by an analysis of a sample of case files drawn from the Master’s Office responsible for the administration of estates. The findings revealed the resilience of living customary law in the administration of estates, particularly in respect of homes situated in rural areas. In this regard, living customary law has evolved to allow women and daughters greater rights to property but it still displays patriarchal overtones as males are considered the true owners of homes. The Reform Act regulates more effectively the devolution of assets found in the formal sector, such as financial assets. The case study found most estates were valued at less than R250 000, with the result that deceased’s surviving spouse and children were the primary beneficiaries of the estate. However, a statutory right of inheritance is no guarantee that beneficiaries enjoy their rights as there is a significant risk of property grabbing. While much has been done to reform the customary law of succession, there is room for improvement in securing the rights of dependents of the deceased, facilitating the reporting of estates and ensuring the implementation of mediated solutions in communities. The thesis thus offers practical recommendations to improve the system of administration. First, the thesis recommends a move towards a functional, fact-based approach to inheritance which extends inheritance rights to individuals supported by the deceased while alive, regardless of whether they constitute a spouse or a descendant as statutorily defined. This addresses the lack of protection for unmarried partners and the broader notions of family found in customary law. Second, it advocates for the greater leveraging of traditional institutions such as chiefs and families in the reporting of estates and resolution of disputes. Third, the dissemination of information through state and non-state institutions is promoted. Fourth, it advocates for the explicit condemnation of corrupt state practices which exploit vulnerable individuals. Finally, the thesis recommends further research into practices such as the existence of family property and administration of estates in urban areas. Understanding the nuanced manner in which administration is experienced is argued to be necessary for successful reform.