Customary Law

Over the last 400 years, before and during the arrival of the European settlers and their written legal systems, the indigenous peoples living on the land of Southern Africa lived by their own oral customs and traditions and systems of law.

It is well documented that during the so-called ‘age of discovery’, the Holy See authorised Christian monarchs to take possession of lands, displaced and cause untold suffering to indigenous peoples throughout Africa, the Americas and elsewhere without regard for their customs, laws and traditions.

The laws of the Vatican, the papal bulls, divided the entire world into two classes of human beings – Christians and heathens – the former being destined to rule over the latter, because they were homo animales, a baser, fallen form of human being. The legacy of these papal bulls continues to drive policies worldwide and is a monument to wrongful inequality.

As a result, countless indigenous peoples were enslaved under the guise of ‘uplifting them’ out of savagery and ‘saving their souls for God’. With it came whole sale destruction of tribal traditions and knowledge dating back to the times of prehistory. Read more at: https://giftoftruth.wordpress.com/age-of-discovery/  

This false belief and manufactured inequality is the wrong that we wish to right: the restoral of customs, customary courts and the customary laws to its proper place. 

By knowing the levels [hierarchy] of laws and the boundaries [jurisdiction] of each, one will discover that the laws of indigenous peoples around the world, is in fact the closest to natural law and natural justice; and, to which all peoples of the world ought to aspire for morals, ethics and values. Read more at: https://giftoftruth.wordpress.com/what-is-law/

 

Pre-colonial Southern Africa:

Before the arrival of colonial laws, the indigenous peoples of Southern Africa practised their own systems of customary laws:

“These territories were governed according to African law and custom through the kraalheads, headmen and chiefs. Whenever a major issue had to be decided upon, it would be debated first amongst a particular community. The kraalhead would then convey their decision to the other kraalheads and debate it with them.

Once they had reached a decision the headman or induna would be informed. All the headmen would then gather to discuss the matter and once agreement had been reached, the Chief would be informed. Thereafter all the chiefs would meet in a grand indaba and the final decision would be made, based as we have seen entirely on consensus.

At any stage anyone who disagreed or who had another view point would have been able to express his opinion freely. … Finally it may be noted that the word vote does not exist in any African vocabulary and that the only way consensus can be reached is as it has been detailed above.

In the words of a tribal Chief: “Now this is our custom. There is no such thing as one man one vote, casting your vote on a piece of paper. This is quite foreign to our way of life. By our custom, our method of voting is to discuss the matter openly as we are doing today in this hall. After a matter has been fully discussed anyone who has any objections is invited to stand up and give his reasons for objecting. This is our traditional way of reaching unanimity. We ask Government to respect our customs and our ways of life… How can anyone expect us to cast aside all our tradition and live like animals without any culture? European customs are unfamiliar to us. The European ways are very complicated when an African tries to adopt them…”

From the book Rhodesian Prime Minister Ian Smith, The Debunking Of A Myth by Stephen M Goodson, 2015.

 

1910 to 1993:

The 1910 Union of South Africa was under rule of HM as its head, as stated in the preamble of its constitution, until the 1961 Republic of South Africa. Since 1961 until 1993, the 1961 Constitution merely replaced ‘HM’ with ‘State President’, but was in essence a colonial monarchy, albeit an apartheid regime. The same sentiments are shared as in the following extract:

“The colonial state used customary law as a second-tier legal and administrative order focused on asserting power over and control of the African population…

This decentralized despotism informed how the post-independence state developed its urban-rural/common law-customary laws divide. If the traditional courts are to be reconstituted in a manner that truly seeks to uphold democracy, then any future bill must be organized in a way that clearly regards community participation and interests as paramount.”

[When Is the Past Not the Past? Reflections on Customary Law under South Africa’s Constitutional Dispensation, Sanele Sibanda, Human Rights Brief, Volume 17, Issue 3, Article 6, 2010]

 

1994 Constitutional transition:

On 27 April 1994, a new constitutional order came into existence with a commitment to equality, freedom and rights. The preamble of constitution is founded on peoples’ dignity, the achievement of peoples’ rights and freedoms. Its intent is to recognise the injustices of the past…. heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.

A requirement of section 35(3) of the interim Constitution was that the common law, customary law and other jurisdictions such as natural law and natural justice be applied and developed, with due regard to the spirit, purport and objects of the Bill of Rights.

A justiciable Bill of Rights is at centre stage of the 1996 Constitution of South Africa as the supreme law of the land. And, any action, case or rule found to be against the Bill of Rights is un-constitutional and as a result null and void, back to its beginning.

Section 34 of The Bill of Rights affirms the right to a fair trial by another independent and impartial tribunal.

  1. Access to courts – Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. 

Unfortunately our courts and parliamentary system has failed to advance these changes to Africanise our country and instead we have persisted with Roman-Dutch law. The time has come to give effect to the Africanisation of our society through educating our courts and government institutions to actively and systematically move towards the implementation of customary and common law.

We have been alienated from our identity with the African soil and instead have been turned into foreigners in our land of birth.

 

RESTORATIVE JUSTICE – the road to healing:

The Department of Justice and Constitutional development acknowledges that South Africa, as in most countries in the world, is still applying a retributive justice system whereby the accused is in the centre of interrogation and there is no or little concern regarding the victim of crime. The retributive Roman-Dutch law system is foreign to the reconciliatory African Indigenous Justice Philosophy. The post 1994 Truth and Reconciliation Commission (TRC) enabled the resurfacing of the restorative justice philosophy which has always been part of the African indigenous justice system. Punishing people for crimes committed seems to have only limited success, hence the need for a different approach and response. 

Restorative Justice aims to include everyone involved in a dispute and others affected by the harm (victims, offenders, families concerned and community members) in collectively identifying harms, needs and obligations through accepting responsibilities, making restitution, and taking measures to prevent a recurrence of the incident and promoting reconciliation.

Restorative Justice sees crime as an act against the victim and shifts the focus to repairing the harm that has been committed against the victim and community. It believes that the offender also needs assistance and seeks to identify what needs to change to prevent future re-offending. The victim and offender are part of the process/programme and the key decisions that are taken are influenced by them.

Restorative Justice Processes comply with the rule of law, human rights principles and the rights provided in the Bill of Rights, promoting the dignity of victims and offenders, and ensuring that there is no domination or discrimination. Read more at: https://giftoftruth.wordpress.com/restorative-justice/

 

What is African customary law?

Customary law is based on the collective will of the people. It recognises that Africa is diverse with many different cultures and practices. These cultures co-exist with each other.

Customary law allows problems to be addressed collectively in a communal environment through a process of dialogue, where everyone contributes and consents to the resolution. In this way, values and practices can be upheld.

The people respect the natural elements of life, their shared humanity, their obligation to the future and their oral tradition. They value the spirit of caring and sharing for and with each other, and for the land, which belongs to all the people.

In a customary society no one is treated as a criminal when dealing with conflict, instead the accused is made part of the solution to the problem. Everyone in society is treated and accepted as equals, young and old, male and female, whatever the position you may hold in society.

The people value humility; tolerance and appreciation of their diversity; respect towards one another; the discipline of knowing right from wrong – each community-village has its own way of living and the discipline is guided by the people. They value honesty and the open, spontaneous and upfront nature of engaging with each other, sharing individual problems and challenges so as to provide support systems. No physical or mental harm is done to another.

In the world today people have been influenced by negative behavior, where right seems to be wrong and wrong seems to be right. The people want to restore positive behavior such as the doing of good deeds.

Decision-making takes place at a community level in which people take ownership of the environment, society and community challenges with a hands-on approach that allows for problem solving instead of adjudication.

The principles and values espoused in the Freedom Charter were driven by the desire to build togetherness, a sense of belonging and reclamation of the African identity that resonates with the customary way of living.

So far, the Court holds that the difficulties lie not so much in the recognition of living customary law, but in the determination and testing of its content. Notwithstanding, Customary law must be accepted and developed as a constitutional obligation.

Customary law is the practices of the people who live according to it and who adapt it to their changing circumstances and needs.

It is time to develop an alternative new kind of Southern African law which reconciles and unifies the old. Advocate George Bizos, lifelong friend of Nelson Mandela and renowned human rights lawyer, stated in his address at the School of Practical Philosophy Plato week, Johannesburg, April 2013, that laws need to be the product of a fundamentally just society, quoting Socrates’ definition of Justice as “not preventing another from doing his job” or taking from him what was rightfully his.

“We South Africans stand at a crossroad… The one road, lined with securocrats, the plundering of the public purse and the attack on our democratic institutions, if taken, will create imbalance where law and justice cannot be reconciled with morality as our institutions and the very laws themselves will be perceived to be illegitimate.”

 

Foreign Justice v. Indigenous Justice Paradigms:

 

Foreign Justice Paradigm

Vertical

Communication is rehearsed

Legalese is used

Written statutory law derived from rules and procedure, written record

Separation of powers

Adversarial and conflict oriented

Argumentative

Isolated behavior, freeze-frame acts

Fragmented approach to process and solutions

Time-oriented process

Limits participants in the process and solutions

Represented by strangers

Focus on individual rights

Punitive and removes offender

Prescribes penalties by and for the state

Right of accused, especially against self-incrimination

Vindication to society

 

Indigenous Justice Paradigm

Holistic

Communication is fluid

Local language may be used

Oral customary law learned as a way of life by example

Law and justice are part of a whole

The spiritual realm may be invoked in ceremonies and prayer

Builds trusting relationships to promote resolution and healing

Talk and discussion is essential

Reviews problem in its entirety, contributing factors are examined

Comprehensive problem solving

No time limits on the process, long silences and patience are valued

Inclusive of all affected individuals in the process and solving problem

Representation by extended family members

Focus on victim and communal rights

Corrective, offenders are accountable and responsible for change

Customary sanctions used to restore victim-offender relationship

Obligation of accused to verbalize accountability

Reparative obligation to victims and community, apology and forgiveness

During his address on the future of Roman-Dutch law in Southern Africa (especially in Lesotho) Chief Justice Mahomed foresaw that the dualism of Roman-Dutch and customary law on Southern African soil might mix gradually into a more integrated system and declared, inter alia, that: … “Southern Africa will be poorer without the sound discipline, effectiveness and historical experience of Roman-Dutch law …[and] will also be poorer without the spiritualising, humanistic and bonding values of Customary law.”

[South African Common and Customary Law of Intestate Succession: A Question of Harmonisation, Integration or Abolition, Christa Rautenbach, Electronic Journal of Comparative Law, vol. 12.1 (May 2008), http://www.ejcl.org/ ]

 

Customary v. Statutory law:

Each law his distinct boundaries and jurisdictions; customary law and statutory law are in fact distinct and different in the following ways:

Customary law                                           

Not enacted – oral or written;

Judges – councils or tribunals of wise elders;

Courts – participation by the community; disputes heard based on facts; rulings made by wise elders or the people as the judge and jury and unanimous;

Jurisdiction – law of the land: living and tangible objects such as lands, people relationships, property etc.

Reconciliatory – restorative justice principles; addresses the harm and loss to the victim of a crime;

In fact a superior jurisdiction to enacted laws and closer to natural law and natural justice;

Statutory law

Enacted – acts, codes, statutes;

Judges – Bar members with letters patent;

Courts – bar association and law society members; disputes based on legislation; rulings made by judge;

Jurisdiction – law of the sea: commerce – commercial contracts between legal fictions such as corporations and governments;

Retributive – only addresses the rights of the claimant, not the victim;

In fact an inferior jurisdiction to customary laws as it relates only to imaginary things;

Enacted customary and tribal law is NOT customary law; it is still ‘law of the sea’ and like oil and water the two cannot mix.

The practice and way of life is the essence of upholding customary law.

Prisons – incarceration is un-dignified and was not a part of customary law and alternative methods to encourage positive behaviour in a constructive and dignified manner must be found.

Developing customary law is a work in progress and the views expressed are meant to stimulate engagement and critique so that the process is enriched.

The Right to Privacy:

The most basic right is the right to be left alone, now known as the ‘right to privacy’ and codified in the Bill of Rights. Section 14 states:

  1. Privacy – Everyone has the right to privacy, which includes the right not to have ­
  1. their person or home searched;
  2. their property searched;
  3. their possessions seized; or
  4. the privacy of their communications infringed.   

 

The theory of the legal fiction called ‘government’:

If our rights come from our humanity, then how can the government trample these rights? The theory of the government is that we have surrendered some of our rights to government in order for government to protect the rights that we have not surrendered. The fact is that government derives its powers from the consent of the governed. The fiction is that we have consented to the surrender of all our rights. The reality is that our rights have been stolen from us because the government monopolises force. It is a sad and terrible fact. Nevertheless, whatever rights were surrendered to government was limited to the powers in the constitution.

And, just because only some rights are listed in the Bill of Rights, it does not mean that there are not others. And, just because indigenous peoples have granted some powers to the government, it does not mean they have not kept the rest for themselves; they have;

That’s the concept of limited government: the government must stop when it wants to touch a people’s natural rights, whatever we think a people’s natural rights are because these are the things that all people yearn for: to be free from interference by government.

If, natural rights belong to a people as their fingers on their hands belong to them, then they cannot be taken away by majority vote; they cannot be taken away by legislation; they cannot be taken away by command of the executive; they can only be taken away if the people gives them up themselves.

Therefore, a people can voluntarily surrender their own natural rights, but no-one may surrender someone else’s rights for them because natural rights are owned by the people themselves. That is the theory of the founding fathers of natural law theory. 

The concept of limited government:

Sadly, today the government, to which none of the people are party to, claims it has authority by majority vote to trample peoples’ natural rights and assault those liberties that make up their humanity.

One does not have to believe in a God or Creator to believe that humanity is the highest and best virtuous good on earth and that each one is the source of their own rights.

Either way, the rights belong to the people and are not the government’s to be taken away. The constitution was written to prevent government from doing that except by due process. Due process means if anyone wants to take away a people’s rights then one has the right to a fair trial such as in a customary court and all the protections that come with it. 

The Presumption of Liberty:

Natural Rights can be summarized in four words: The presumption of liberty. This means that we are self-directed. We make our own choices. It is not our obligation to prove we are unworthy of incarceration. It is the government’s profound, unique obligation to prove that we are worthy of incarceration and it must do so in a court of our choosing such as before a tribunal of elders. The presumption of liberty is that the rights we did not surrender to the government are retained for ourselves. They cannot be taken away by popular vote or a majority in the legislature or a command by a governor or a president.

Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. . . .  Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 116 (1872).

Instead, people’s natural rights have been flipped. The presumption of liberty says that the rights that we did not surrender to government, we have retained for ourselves and can never be taken away by popular vote or majority vote or by command of the executive or president. 

Now, if the government recognised the concept of natural rights, it would know that virtually everything it has done since the last century has been other than the protection of natural rights.

Question: Is there any legitimate activity a government has in a free society?

Answer: Yes, to protect the natural rights of the people in that society; meaning, do not assault the freedoms, life, liberty and property of the people! Protect it! That is the purpose of the legal fiction called government. A government that believes in natural rights will limit itself to those behaviours.

The ideal for justice today is that government limits itself to only the protection of natural rights. That is the ideal.

Proverbs 29:2 When the righteous are in authority, the people rejoice: but when the wicked rule, the people mourn.

 

UN Declaration on the Rights of Indigenous Peoples:

Amongst others, the UNDRIP confirms the rights of indigenous people, and all people for that matter, to freely determine their political status and freely pursue their economic, social and cultural development. And, the lawful obligations of governments to assist indigenous peoples towards autonomy and self-determination, as well as finding ways and means for budgets to finance autonomous functions. And, for states to provide redress and restitution of cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs based on principles of justice, democracy, non-discrimination, good faith and respect for human rights. And, to bring to an end all forms of discrimination and oppression. The people shall govern.

61/295. United Nations Declaration on the Rights of Indigenous Peoples

Resolution adopted by the General Assembly

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources, 

Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights2 and the International Covenant on Civil and Political Rights,2 as well as the Vienna Declaration and Programme of Action,3 affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development,

Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur,

Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,

Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith,

Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned,

Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples,

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

 

Canada will implement UN Declaration on Rights of Indigenous Peoples:

By Joanna Smith; Ottawa Bureau reporter; Tues., Dec. 8, 2015

OTTAWA—Indigenous and Northern Affairs Minister Carolyn Bennett says the new Liberal government will rebuild the relationship with First Nations, Métis and Inuit peoples by including them in every decision that affects them and their land.

“That means starting out right, such that everything has been considered before a decision is taken so that you can find that win-win of ‘you can develop there but not there,’ ” Bennett said in an interview this week, when asked how the Liberals plan to make good on their promise to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Prime Minister Justin Trudeau gave that sentiment a boost when he told his new cabinet ministers in their mandate letters: “No relationship is more important to me and to Canada than the one with Indigenous Peoples.” The Crown already has a constitutionally protected “duty to consult” with aboriginal peoples on issues that might affect their interests, but the UN declaration goes much further and calls on governments to obtain “free, prior and informed consent,” including when it comes to natural resources development.

Refer to full article posted at the URL link: https://www.thestar.com/news/canada/2015/11/12/canada-will-implement-un-declaration-on-rights-of-indigenous-peoples-carolyn-bennett-says.html 

If Canada can do it then so can South Africa, especially with our history of liberation.

Read further at: https://giftoftruth.wordpress.com/age-of-discovery/

 

1955 Freedom Charter and 1994 RDP Policy Framework:

From the 1952 Defiance Campaign against the apartheid laws of the previous South African regime, the 1955 Freedom Charter was born and was adopted by many people of Southern Africa. On law it states:

ALL SHALL BE EQUAL BEFORE THE LAW! – No one shall be imprisoned, deported or restricted without a fair trial; No one shall be condemned by the order of any government official; The courts shall be representative of all the people;

The 1994 Reconstruction and Development Programme [RDP] policy framework was established which flowed from the Charter. Both the Freedom Charter and the RDP represent the law of the land and represents the will of the people.

The RDP states:

5.2.6 Democracy for ordinary citizens must not end with formal rights and periodic one-person, one-vote elections. Without undermining the authority and responsibilities of elected representative bodies (the national assembly, provincial legislatures, local government), the democratic order we envisage must foster a wide range of institutions of participatory democracy in partnership with civil society on the basis of informed and empowered citizens (e.g. the various sectoral forums like the National Economic Forum) and facilitate direct democracy (people’s forums, referenda where appropriate, and other consultation processes)

What happened to ‘direct democracy’? The development of people’s forums, referenda and other consultation processes operating in their own jurisdiction have yet to be implemented in order to be truly independent from the bar and to maintain jurisdiction. The Constitution must recognise the fundamental equality of customary law

5.3.2 …Consideration should be given to the implementation of a constitutional provision for the calling of a referendum in order to overturn unpopular laws, and to ensure that certain laws get passed.

Referendums by, for and of the people have yet to be developed in order to overturn unpopular laws.

5.7 THE ADMINISTRATION OF JUSTICE

5.7.1 The system of justice should be made accessible and affordable to all people. It must be credible and legitimate. The legal processes and institutions should be reformed by simplifying the language and procedures used in the court, recognising and regulating community and customary courts, and professionalising the Attorney-General’s office. The public defence system must be promoted and the prosecution system reformed. The pool of judicial officers should be increased through the promotion of lay officials, scrapping the divided bar and giving the right of appearance to paralegals.

The system of justice is becoming less accessible and more un-affordable as costs escalate. Court trials are not yet fair as language and procedures used in the court have yet to be simplified, the divided bar has yet to be scrapped and lay officials are yet to be promoted in order to be truly credible and legitimate.

5.13.4 Delivery or enforcement mechanisms for social and economic rights must not focus only on the Constitution, courts and judicial review, but must include agencies which have the involvement of members and organisations of civil society as means of enforcing social justice. In this regard, a revamped Human Rights Commission, with wider popular involvement, should have its mandate extended to ensure that social and economic rights are being met.

There is no agency as yet to ensure the enforcement of economic rights and social justice of the people.

 

The Bill of Rights:

Constitutional law of South Africa has its roots in English common law. Even the colonial common law recognised the immutable rights of the people. Those rights now belong to all peoples equally without distinction of race or colour. Sir William Blackstone, an authority on common law, confirms people’s immutable rights and liberties in his commentaries on the laws of England:

“The act of parliament itself recognizes all and singular the rights and liberties asserted and claimed in the said declaration to be the true ancient, and immutable rights of the “people of this kingdom.” Lastly, these liberties were again asserted at the commencement of the present century, in the act of settlement, whereby the crown was united to his present majesty’s illustrious house: and some new provisions were added, at the same fortunate era, for better securing our religion, laws, and liberties; which the statute declares to be “the birthright of the people of England,” according to the ancient doctrine of the common law.” – Commentaries on the Laws of England Volume 1

In addition, some of the rights of people are mentioned in the Bill of Rights;

  1. Rights
  1. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
  2. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

The above affirms the Bill of Rights enshrines the rights of all people as well as the obligations of state to respect, protect, promote and fulfil these rights. Since 1994, some of these rights are yet to be fulfilled.

  1. Application
  1. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

The Bill of Rights applies to all law, meaning customary law too.

  1. Equality
  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.

The refusal to develop customary law is contrary to Section 9(1), 9(2) and 9(3) when taking grounds of equality, conscience and culture into consideration.

  1. Human dignity – Everyone has inherent dignity and the right to have their dignity respected and protected.

It is un-dignified for a natural man or woman to be tried in a foreign jurisdiction, using a foreign language called legalese, in a retributive system of law that is contrary to the African indigenous justice philosophy which is reconciliatory in nature.

  1. Life – Everyone has the right to life.

A denial of a peoples’ customs and culture is inherently a denial of the right to life. Both human rights and the right to life are non-derogable rights.

  1. Slavery, servitude and forced labour – No one may be subjected to slavery, servitude or forced labour.

A denial of rights without a people’s consent is tantamount to slavery.

  1. Education
  1. Everyone has the right ­
    1. to a basic education, including adult basic education; and
    2. to further education, which the state, through reasonable measures, must make progressively available and accessible.

Adult Education on rights and customary law is a natural right and state subsidies are a constitutional obligation for the development of customary law systems.

  1. Language and culture – Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

The African indigenous justice philosophy based on principles of restorative justice is central to the cultural life of indigenous peoples and is a natural right.

  1. Cultural, religious and linguistic communities
  1. Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community ­
    1. to enjoy their culture, practise their religion and use their language; and
    2. to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

Customary courts are deemed other organs of indigenous society.

  1. Just administrative action
  1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
  2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

Thus far, the indigenous peoples are still denied the right to lawful, reasonable and procedurally fair administrative action in accordance with customary laws.

  1. Access to courts – Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

It is appropriate to exercise one’s right to a fair trial in another independent and impartial tribunal or forum at customary law according to principles of restorative justice.

35(2)(d). Arrested, detained and accused persons – Everyone who is detained, including every sentenced prisoner, has the right

d.­ to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;

Indigenous peoples have the right to challenge the lawfulness of their detention under a foreign retributive system and have the right to wish for the matter to be reviewed by a customary court in accordance with principles of restorative justice.

  1. Enforcement of rights – Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are –

          a. anyone acting in their own interest;

          b. anyone acting on behalf of another person who cannot act in their own name;

          c. anyone acting as a member of, or in the interest of, a group or class of persons;

          d. anyone acting in the public interest; and

           e. an association acting in the interest of its members.

Indigenous peoples must act in the interest of customary law and make a declaration of rights for review, redress and remedy according to customary laws;

  1. Interpretation of Bill of Rights
  1. When interpreting the Bill of Rights, a court, tribunal or forum ­                                          a. must promote the values that underlie an open and democratic society based on   human dignity, equality and freedom;                                                                                          b. must consider international law; and                                                                                        c. may consider foreign law.
  2. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

According to the interpretation of the Bill of Rights the Constitutional Court of South cannot deny the existence of any other right or freedom conferred by customary law or natural law as elaborated herein. The right to practice culture such as customary law is a natural right.

 

Customary courts:

Further reasons for establishing customary courts:

The development of customary law is a sensitive task. “Given the denigration of African culture in both the colonial period and subsequently under apartheid, it is entirely fallacious to imagine that living customary law has been able to develop without being tainted by this history.” (Human rights, cultural diversity and customary law in south Africa, Evadné Grant Journal of African Law, 50, 1 (2006), 2–23.)

The choice of law used must favour the protection of the rights of people: “In the absence of any agreement, it could be useful to ascertain which system of law would provide the stronger remedy in the circumstances of the case, and to apply that system unless it can be shown that to do so would have illogical or unjust consequences.” (M. Pieterse, “It’s a ‘black thing’: upholding culture and customary law in a society founded on non-racialism”, (2001) 17 South African Journal on Human Rights 364, 368–369.)

“What is required, in ensuring both the right to culture and the right to equality, is first an acknowledgment of the importance of both culture and equality and their interrelationship. Secondly, there is a need for training and research. Thirdly, a commitment to sensitive and sustained development of both customary and common law to serve the purposes of the Constitution is necessary. And finally, in the long term, creative ways must be found of reconciling the practical needs of a modern legal system, the cultural heritage of the society it serves and the observance of internationally recognized human rights norms.” [Human rights, cultural diversity and customary law in south Africa, Evadné Grant Journal of African Law, 50, 1 (2006), 2–23.)]

Justice:

True justice is seeking reconciliation and not retribution. Therefore, amongst other rights, indigenous peoples of Southern Africa have the right to:

  1. A fair trial before a tribunal of honorable and wise elders of their own peoples in full accordance with Section 34 of the Bill of Rights;
  2. A fair trial before a truly independent customary court in accordance with African indigenous justice philosophy and principles of restorative justice;
  3. Declare their rights; their political character and status; and their sovereignty;
  4. Waiver their right to ‘recognition as a person’ under enacted laws;
  5. Challenge the subject-matter-jurisdiction of statutory courts and laws;
  6. Not consent to the unlawful incarceration their body;
  7. Counterclaim any and all commercial claims levied against them that are odious, unlawful and illegitimate;
  8. Counterclaim unjust laws that infringe upon antecedent and natural rights such as equity, equality, freedom, happiness and life, amongst other rights;

 

Regarding Consent:

One is not obligated to consent to a foreign jurisdiction and neither to unjust laws:

Maxim: Consent makes the law. A contract is a law between the parties, which can acquire force only by consent.

“Jurisdiction once challenged cannot be assumed and must be decided”. Main v. Thiboutot,  100 S.Ct. 2502

Maxim: No one is obliged to accept a benefit against his consent. Dig. 50, 17, 69. But if he does not dissent he will be considered as assenting. Vide Assent.

He who errs does not consent. 1 Bouv. Inst. n. 581.

What is mine cannot be taken away without my consent. Jenk. Cent. 251. Sed vide Eminent Domain.

 

Regarding jurisdiction:

Everyone has the right to challenge the jurisdiction of a court as well as the subject-matter-jurisdiction of the law of the case when people rights are being infringed;

“Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if it acts without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers.” Elliott v Peirsol, 1 Pet. 328, 340, 26 U.S. 328, 340, 7L.Ed. 164 (1828)

Just as the un-enacted Bill of Rights is the law of the land, so too must customary law stand un-enacted with its own systems of keeping record; as long as it is in accordance with the objects, purport and spirit of the Bill of Rights.

 

Establishment of customary courts:

In order for customary courts to be truly autonomous and independent and stand in their own jurisdiction, it is recommended that the following must then be discussed, reviewed, endorsed and implemented by every indigenous community, kingdom and tribe; and, to create a uniformity in customary law; and, to be represented by ethical, moral, honorable and wise, hereditary leaders, elders and councilors; and, that are seen as such and chosen by their own peoples. Once complete, to then present it to government for review and implementation.

Steps to be taken:

  1. Firstly, to extend an invitation to the above to enter into dialogue and explore the herein;
  2. Determine the values of customary law and community courts;
  3. Determining the administration, autonomy, enforcement, procedures, rules, structures, etc. of customary courts;
  4. Establishing a hereditary council as jurists to review un-resolved disputes;
  5. Education and training of lay officials and customary court officials;
  6. Education of the peoples of each community in general as to customary law; the people shall govern;
  7. Research on archival, historical and oral customs and traditions and philosophy to revive and draw on in disputes;
  8. Drafting of Constitutions, Bills, Charters, Declarations, Treaties and the like;
  9. Record-keeping of customary court rulings as precedents;
  10. Establishment of express trusts as commercial transmitting utilities, revenue funds and the like;
  11. Identifying buildings, centres and or offices for purposes such as administration, archives, courts, records, education, research and training; from un-used offices or re-purposed without major economic expense and without inconveniencing the local community;
  12. Budgets – Identifying capital for development of customary courts in collaboration with government;
  13. Abolishment of statutory legislation on customary, indigenous and or tribal laws on grounds of subject-matter-jurisdiction;

 

Aims of customary law courts:

The following are suggested aims of customary courts:

  1. To truly restore the divisions of the past;
  2. To restore the dignity of the indigenous peoples;
  3. To return customary law to its proper place;
  4. To fill the vacuum that is the law of the land, natural law and natural justice;
  5. To strengthen the morals and ethics and values of indigenous peoples;
  6. To provide an alternative jurisdiction in which to address cases of rights infringements;
  7. To hold people accountable as equals for doing harm or causing loss in a constitutionally valid truth and reconciliation forum, hearing or tribunal;
  8. To pierce the corporate veil and hold those working for corporations accountable as equals for doing harm or causing loss;
  9. To seek reconciliation; and, address the rights of the victims; and, restore the dignity of the victims;
  10. Establish equity;
  11. Restore the dignity of the indigenous peoples and customary law as a whole;

 

Additional:

In addition, to address further aspects of autonomy such as:

  1. Administration;
  2. community courts;
  3. community banks;
  4. tribal lands and territories;
  5. establishing the authority as to the issue of mineral rights;
  6. establish budgets and funding mechanisms for the above;

 

Conclusion:

The above confirms the development of community courts by forum or public hearing or tribunal are a constitutional obligation. Customary courts are to function by their own procedures, rules with lay officials without interference by bar associations and law societies.

Since 1994, the courts of South Africa have yet to develop customary law and recognise its autonomy, independent jurisdiction and standing.

The Justices of the Constitutional Court of South Africa have been invited to develop customary law.

However, if this is the will of the indigenous peoples then they will have to work together and come to agreement on the herein.

 

 Further Reading:

CUSTOMARY AND COMMON LAW HARMONIZATION AND INTEGRATION

CUSTOMARY LAW IN A NEW SOUTH AFRICA – A PROPOSAL

GEORGE BIZOZ ON LAW, JUSTICE AND MORALITY

HUMAN RIGHTS CULTURAL DIVERSITY AND CUSTOMARY LAW IN SA

UBUNTU AS A MORAL THEORY

UBUNTU, PLURISM AND RESPONSIBILITY OF LEGAL ACADEMICS TO NEW SA

WHEN IS THE PAST NOT THE PAST