Customary Law Notes
Customary Law Notes
Customary Law Notes
MODULE
SPECIFICATI
Onyango defines customary law as, “ a human law entrenched in traditional and
psychological fabrics of human society; the oral aspect of customary law is linked
to a people’s beliefs in mysticism surrounding their nature and traditional social
world-view.”
There are two forms of customary law, i:e living customary law and official
customary law
Scholars regard official customary law as the version perceived by observers outside
the community in which the concerned norms are observed (Bennett 2009; Woodman
1969). This category embraces the customary law pronounced in court judgments,
textbooks, and codifications.
Living customary law is regarded as the norms that regulate people’s daily lives,
in
Living customary law consists of unwritten customary practices that regulate the
day to day life of the people
However, it does not mean that living customary law cannot be recorded in
writing. It is quite possible in principle to make written records of living customary
but provided there are no further developments to the recorded versions.
It is what people do , or what they believe ought to be done, rather than what
courts, legal experts ought to do or believe.
As pointed out by Hamnett, “ the ultimate test is not what does this judge say?
But rather what do the participants in the law regard as the rights and duties that
apply to them”
If we take into account the issue of power and gender relations, these affect the
definitions of accepted norms.
There is no single person or group of persons who can define customary law.
Hamnet argues that there are intermediate corporate and semi-independent
groups that defines custom
These intermediate groups varies from place to place depending on each case
e.g geography , particular aspects e.g kugova hembe every family is left to
decide
Custom – custom is separate from a daily practice. The difference lies in the
binding nature such that deviation from it carries sanction. Custom can be
defined as repetitive behavior or social habit motivated by a sense of obligation
among most members of the group.
Custom is different from customary law. Custom should meet the following
requirements for it to become a source of law ie custom must be long
established, reasonable , uniformly observed and certain.
Customary law evolves in the sense that its characteristics means that its rules
change in an unregulated manner with new rules emerging and old norms
ceasing to be observed. As pointed by Himonga and Nhlapo, the changes may
be gradual, rapid and instant depending on the economic and political changes in
the society e.g lobola payment.
Read CHAPEYAMA v MATENDE & ANOR 1999 (1) ZLR 534 (HC)
The purpose of the law is to serve the people and meet their expectations. The
need to adapt customary law to the changing social and economic conditions
either through legislation or through judicial law constantly presents itself. This
need has been recognized for quite some time. The role of the courts in adapting
customary law to take account of changing social and economic conditions has
been dealt with in a number of Zimbabwean cases. A correct balance must be
struck between judicial law-making and legislation. Where the law requires to be
revolutionized it is largely the function of Parliament to make such changes. But
where, within the framework and spirit of the existing law it is possible for the
courts to interpret it in a purposive manner and make it more appropriate to
changed circumstances, the courts will by such purposive and progressive
interpretation bring about necessary changes.
Shilubana case
Hosi Richard’s son was now claiming chieftainship. His argument being that he is
the eldest son to Hosi Richard so he is entitled to succeed
• consideration also focuses the enquiry on customary law in its own setting rather
than in terms of the common law paradigm
• If development happens within the community, the court must strive to recognize
and give effect to that development, to the extent consistent with adequately
upholding the protection of rights.
• The legal status of customary law norms cannot depend simply on their having
been consistently applied in the past, because that is a test which any new
development must necessarily fail. Development implies some departure from
past practice.
This is not to say that past practice is not relevant. Past practice and tradition
may well be of considerable importance in customary law, but as one important
factor to be considered with other important factors. It is also not to say that
customary law must in the ordinary course be proven before a court before it can
be relied upon.
The actions of the royal family reflected in the appointment of Ms Shilubana,
accordingly represent a development of customary law.
However, customary law is living law and will in future inevitably be interpreted,
applied and, when necessary, amended or developed by the community itself or
by the courts. This will be done in view of existing customs and traditions,
previous circumstances and practical needs, and of course the demands of the
Constitution as the supreme law.
Bhe Case
The Bhe case dealt with the issue of interstate succession of property by children
born out of wedlock
Shibi case dealt with the primogeniture rule- Ms shibi was the only surviving
sister of the deceased. The deceased was single, and had no children, parents
or grandparents. There were also cousins to the deceased,
Concept of primogeniture was explained in the Bhe case. The general rule is that
only a male who is related to the deceased qualifies as intestate heir. Women do
not participate in the intestate succession of deceased estates. In a
monogamous family, the eldest son of the family head is his heir. If the deceased
is not survived by any male descendants, his father succeeds him. If his father
also does not survive him, an heir is sought among the father’s male
descendants related to him through the male line
In Bhe case – the court explained the concept of primogeniture- the purpose that
it served, the living arrangements at the time, heir would have the common
intrests – now its not possible to stay at the same place due to urbanization
therefore that concept need to adapt to circumstances the Bhe case highlights
the problem of official customary law
He holds that while it would ordinarily be desirable for courts to develop new
rules of African customary law to reflect the living customary law and bring
customary law in line with the Constitution, that remedy is not feasible in this
matter, given the fact that the rule of male primogeniture is fundamental to
customary law and not replaceable on a case-by-case basis. However, he holds
that an interim regime to regulate the intestate succession of black persons is
necessary until the legislature is able to provide a lasting solution.
Main judgement – Langa He holds that while it would ordinarily be desirable for
courts to develop new rules of African customary law to reflect the living
customary law and bring customary law in line with the Constitution, that remedy
is not feasible in this matter, given the fact that the rule of male primogeniture is
fundamental to customary law and not replaceable on a case-by-case basis.
Dissenting judgement Ngcobo J, also held that courts have an obligation under
the Constitution to develop indigenous law so as to bring it in line with the rights
in the Bill of Rights, in particular, the right to equality. He holds therefore that the
principle of primogeniture should not be struck down but instead should be
developed so as to be brought in line with the right to equality, by allowing
women to succeed to the deceased as well.
Zimbabwean cases
Katekwe v Muchabaiwa
Another emphasis was on payment of lobola, the court held that a Zimbabwean
female who is a major can now contract a valid marriage without parental
consent. The emphasis is that if the father has lost his legal right to claim lobola
for a daughter upon attaining majority status, the whole purpose underlying the
action for seduction falls away. Consequently, there can be no impairment of a
non-existing right
The court held that the woman who has reached the age of majority can succeed
her father who has died intestate. Based its decision on the Zimbabwe legal age
of majority Act which it concliuded that it supersedes the customary law
prescribing that intestate inheritance is through the male line only.
Internal conflict refers to conflict within a country between two or more systems and
external conflict refers 2 disputes between two systems of two or more countries-
Private international law. Welshman Ncube covers it well and so does Dr Galen in the
Zimbabwe Law Review Vol 1 and 2 1983 - 4.
Legal pluralism it is a state of affairs where various legal system are observed e.g
common law and customary law. Legal pluralism has also been described as a
condition in which a population observes more than one body of law –Woodman “the
idea of legal Pluralism in Duepret, B, Berger, M, and Alzwaini, L (1999) et al legal
pluralism in the Arab World 3
N.B They should have sufficient authority to direct people’s behavior and make
them feel that they ought to do something in accordance with established norms
whether explicit or not.
a) Weak legal pluralism – this is the recognition and regulation by the state of a
plurality of legal orders or systems.
This legal pluralism supports state centralism because it still centralizes the role
of the state in legitimizing law. It consists of common law, legislation, judicial
precedent.
How then is state pluralism applied in case law- choice of law becomes relevant.
b) Deep legal pluralism – this legal pluralism recognizes the multiple normative
orders that coexist with the law. They can even emanate from different source of
authority
This deep pluralism has also been described by Moore as the semi-autonomous
fields. Moore places emphasis in law in society than law and society
The concept acknowledges that apart from state regulation, there are other
societal norms agencies that regulate human conduct.
The semi-autonomous fields regulate rules and customs but also it is also
vulnerable to rules and decisions and forces within. As pointed by Himonga and
Nhlapo while, weak legal pluralism is the formal rule, reality is more akin to
strong legal pluralism.
State laws are just another source of law among semi-autonomous social fields
that exert authority on individuals. Because of plurality of laws, there comes a
time when there is conflict of laws.
Conflict of laws refers to the rules of choosing an appropriate law. It does not
refer to conflict between legal systems. It is about the dispute on applicability of
either of two or more systems of law. The rules are called conflict of law rules –
they indicate the circumstances the rationale for using a legal system where the
dominant one is not the only applicable dominant one being general law.
Private international law in the sense that customary law is part of private law
Considerations in this case would be where cause of action arose, if its marriage
the domicile of the husband
c) Conflict between legal systems operating within a single national legal system.
The rules applicable in this case is the internal conflict of laws. This is the one
that we are more interested in under this course.
HISTORICAL CONTEXT
In public law areas like criminal and constitutional law, all people were subject to
the same laws. In private law however, the situation was different. Race became
the determining factor in the area of family law.
For a while, customary law was permitted to run side by side with general law based on
the race criteria. Problems arose however when the Africans became assimilated in the
European way of life, they contracted marriages in terms of civil rights e.t.c.
The Constitution of Zimbabwe makes statute law override common law. It also
makes the application of general law subject to any statute on the application of
customary law.
Provisions of section 3 of the Customary Law and Local Courts Act provide guidelines.
This act puts general law and customary law at par hence we have a dual system of law.
It abolished race as a criteria but uses social class and position of individual litigants.
This section came into effect on the 1st of November 1997 and repealed the customary
law application act in which the choice of law criteria was set out.
If a particular issue is dealt with in terms of any enactment / statute then the
statute takes precedent.
c) Justice of the case -In addition to the above factors the courts can assess if
the justice of the case dictates that customary law be applied– in Mautsa Case
Chitakunye J held that the court is also vested with the discretion to determine
whether or not the justice of the case demands that general law or customary law
should apply.
Section 3 of the Customary Law and Local Courts Act: came into effect from 1st
November 1997.
(b) the general law of Zimbabwe shall apply in all other cases.
1) the parties have expressly agreed that it should apply; if the parties fail to
agree the court then decide which law is applicable taking into account the
circumstances - According to Ncube, parties cannot agree to the application of
customary law where an applicable statutory provisions governs the dispute
since the agreement of the parties is subject to the existence to any enactment- (
child marriage yet section 70 prohibits sexual intercourse with a young person)
This happens in cases where plaintiff chooses a particular system of law and
defendant does not object- court need to enquire if Defendant is fully aware of
the choice of law by Plaintiff the determining factor would be the circumstances
of the parties or cases
3) where it appears just and proper that customary law should apply;
Burden of proof as to the non- applicability lies on the party claiming that general
law should govern the dispute so normally it’s the defendant
If it is at the lower courts eg. chiefs’ court, the dispute might be on jurisdiction so
the defendant can argue that customary law does not apply as chiefs do not have
jurisdiction to hear criminal cases.
See MATIBIRI v KUMIRE 2000 (1) ZLR 492 (HC) at if the application of
customary law does not conduce to the attainment of justice, the common law
should apply
See also the case MTUDA v NDUDZO 2000 (1) ZLR 710 (HC) –the court applied
general law principle of unjust enrichment despite the fact that the matter was based
on an unregistered customary law union
(a) the mode of life of the parties; this includes lifestyle, cultural habits, e.g
kurova guva, bira, (see the case of Mautsa vs Kurebgaseka HH 106-17 general
law should apply as the parties maintained a western lifestyle and were not
governed by African custom and practice. In that regard, the defendant
contended, inter alia, that:-
The defendant was a housewife who also worked at the family farm;
The parties were blessed with four children who all attend or attended private
schools where they are taught and live a western lifestyle;
The parties would go on holidays and shopping trips during the weekends and
holidays.
In addition to the above factors the courts can assess if the justice of the case –
in Mautsa Case Chitakunye J held that the court is also vested with the
discretion to determine whether or not the justice of the case demands that
general law or customary law should apply.
Conflicts between internal customary systems eg. ndebele and shona tribes
The customary law in which the parties have the closest connection
Customary law which the court considers to be just and fair section 8 of the
customary law and local courts Act
Section 16 of the Constitution state to promote and protect cultural values and
practices which enhance the dignity, well- being and equality of Zimbabweans
Section 63 right to participate in cultural life but subject to the provisions of the
constitution
SEDUCTION
Question = what is to seduce?
Leading astray of whom, by who to where?
Definition of seduction: When a man has sexual intercourse with an unmarried
woman WITH HER CONSENT. Woman parts with her virtue at the solicitation of a
man.
SEDUCTION UNDER CUSTOMARY LAW
Under customary law, the delict of seduction is committed not against the woman but
against the father or the guardian when the seducer has sexual intercourse with the
unmarried woman without consent of the father or the guardian. (Machokoto)
NB* (Does this mean that if father/guardian consents to the sexual intercourse of a
daughter who is say 17 years of age, then that is not rape even if the daughter does not
want?)
Virginity is not a requirement under customary law
Seducer still liable even if he offers to pay lobola. In the olden days there was
talk of DAMAGE so seducer must first pay the damages before lobola. These are
two different payments.
Damages are based on the assumption that seduction diminishes the woman's
chances of marriage and the amount of lobola that a man would pay (Is this
true?). The guardian/father is compensated for loss and any other loss he may
incur from the seducers act.(Katekwe)
THE LEGAL AGE OF MAJORITY ACT 15/82 (NOW PART OF THE GENERAL LAWS
AMENDMENT ACT)
If there was a relationship of trust between girl and seducer e.g. teacher / pupil
(Discuss the effect of Magaya vs. Magaya on seduction. See the article by Ellen Sithole
in the legal forum. The underlying issue is that views expressed by Muchechetere were
obiter dictum) Issue can be debated
LYING IN EXPENSES
During pregnancy and immediately after the birth of child, a woman may incur expenses
in respect of the pregnancy.
Under both general and customary law, a mother of a child born out of wedlock is
entitled to recover lying in expenses from the father of the child.
Can be included in seduction damages claim.
Lying in expenses can only be claimed after the birth of the child.
Maintenance of the woman can also fall under lying in expenses i.e. maintenance
during pregnancy.
Money need not be equivalent to the mother's loss of earnings during this period.
Lying in expenses can include:
maternity home expenses
medical expenses
maternity clothing
Section 14 of the G.L.A.Act, also applies to customary law situations... ” Where the
father or mother of an illegitimate person was married to a third person when the
illegitimate person was born and the parents of the illegitimate person marry or have
married one another after the birth of that person, the marriage shall render that person,
if living, legitimate from the date of that person's birth.”
Section 14 of the G.L.A.Act, also applies to customary law situations... ” Where the
father or mother of an illegitimate person was married to a third person when the
illegitimate person was born and the parents of the illegitimate person marry or have
married one another after the birth of that person, the marriage shall render that person,
if living, legitimate from the date of that person's birth.”
GUARDIANSHIP, CUSTODY AND ACCESS
Calculate what claims there are on that income by allocating two shares each to
each adult in the two households and one share to each child in each of the two
household.
Divide the total amount available each month by the total number of shares. One
share will be a child's share and two shares will represent an adult share.
Calculate how much money ( if any ) should be paid by the father to the mother
as maintenance in order to ensure that the child who is the subject matter of the
dispute receives a child's share.
Adjust the figures arrived at in step four up or down to allow for innumerable
variable factors and special features which may arise in the case under
consideration.
T The fault factor should not be taken into account. The Gwachiwa formula is only a
starting point and the maintenance can be adjusted upwards or downwards depending
on the circumstances . In some cases it may not even be suitable as a starting point.
Problem that courts face is that many respondents bring fake payslips or proof of
income and Magistrates do not invoke section 13 and 14. Some complainants also
exaggerate their claims in the belief that the court will reduce the figure anyway so why
not claim a higher figure in the first place.
MARRIAGE AND THE LAW
TYPES OF MARRIAGE IN ZIMBABWE
Monogamous marriage under the Marriage Act Chapter 5: 11
Governed by customary law unless there are compelling reasons to the contrary
Husband can now recover damages from his wife’s seducer through case law-
Carmichel vs Moyo case
Wife’s father cannot sue for lobola unless husband agreed to pay lobola and
defaulted .
EFFECTS OF LAMA ON CUSTOMARY MARRIAGES
Before LAMA came into force the requirements of a customary law union were as
follows:
Intending spouses must agree or consent to marry each other
the intending husband and the guardian of the woman must reach an agreement
as to lobola payments
COHABITING
Cohabiting is when a man and woman stay together without registering marriage or
without lobola having been paid.
Because of LAMA , three of the essentials of a customary law union have been done
away but the consent of the parties is still required. Does that mean that if two adults
governed by customary law who agree to stay together as man and wife qualify as an
unregistered customary law union ? ( What do the students think )
Public policy would seem to militate against such unions being declared valid. They are
just as good as kubika mapoto.
Regulations do not have force of law because they have not been promulgated
but parties intending to marry must comply with them.
Section 7 provides the circumstances under which marriage officer can marry a
couple. Section 7 ( 1 ) (a ) on marriage consideration ( lobola ) and section 7 ( 1)
( c ) on consent of the guardian have been done away with by implication due to
LAMA if woman is over 18 years.
ADULTERY UNDER A CUSTOMARY LAW UNION
Umai property , i.e. livestock and its increases accruing to a woman as a result
of her daughter's marriage or pregnancy
Mavoko property , that is property acquired by the woman through her personal
labour
The courts have used both the universal partnership concept and unjust
enrichment
Equity consideration
Can the courts use the criteria set out in section 7 of the Matrimonial causes act?
Property acquired automatically vested in the husband unless it fell into specific
categories : See Jenah vs Nyemba case
Urban woman rarely has mombe yeumai or mavoko and she walks away empty
handed- Customary law does not recognise her domestic contribution
Property acquired automatically vested in the husband unless it fell into specific
categories : See Jenah vs Nyemba case
African woman can also own both movable and immovable property. Colonialists
took view that the ownership of immovable property was unknown under
customary law so general law applied- See Matambo vs Matambo , Jirira vs
Jirira
Under customary law all meaningful property owned and controlled by husband.
Woman perceived as an object who has to work or the husband and at the end of
the day just leave with her mavoko property or mombe yeumai
Urban woman rarely has mombe yeumai or mavoko and she walks away empty
handed- Customary law does not recognise her domestic contribution
Traditional leadership
- Traditional leadership is central to the governance of communities in Zimbabwe.
The institution of traditional leadership comprises of chiefs, headman and village
heads. Prior to colonialism, traditional leaders were the sole governing body and
legitimacy to govern was derived from tradition and culture. Traditional leaders
had fused governmental powers and authority, ie they had judicial, administrative
and political power. This is different from the modern states where there is strict
adherence to the principles of separation of powers.
- After colonization in 1890, the colonial government dismantled, replaced and in
some cases, corrupted the institution of traditional leadership. Some powers of
chiefs were usurped by the Europeans for example power to allocate land.
Chiefs became salaried and were now accountable to the colonial government.
- Chapter 15 of the constitution of Zimbabwe deals with the traditional leaders and
their functions. Traditional leaders are custodians of customary law. They are a
path of the constitutional system and they command the same respect as the
general judicial system.
- Traditional leaders participate in the allocation of developmental resources and
determine the developmental priorities in their respective jurisdictions.there is
now transparency in the application of customary law. CASE Tsvangirayi v
Nyikadzino where the court held that traditional leaders should conduct
themselves in a manner reflective of the decorum of the justice system.
The institution of traditional leadership is regulated and monitored within the parameters
of the constitution.
Decisions which they make should be in accordance with the stipulations of the
constitution. This is done to safeguard the rights of the people.
- .
- The jurisdiction of traditional leaders is limited to civil cases involving parties who
reside within the area of the court’s authority.
- The content of the case must be suited to trial by customary law.
- Traditional leaders have authority over the communal land and the over persons
within those communal areas.
- Chiefs have a duty to supervise headmen and village heads. they also oversee
collection of levies, conserve the environment, notify government about the
occurrence of natural disasters, outbreaks of pandemic diseases, public order
and protect public property among other things. Thus, they are protectors of the
peoples’ rights.
It is important to note that their roles are being questioned in light of a number of factors;
PRACTICE QUESTIONS
1. Discuss how the “heady mix of legal pluralism, urbanization, commercialization,
and new religions, systems of administration, and cultural worldview contributed
to the emergence of another brand of customary law.”
5. Discuss the application of the concept of primogeniture before and after the
Administration of Estates Act was amended.
7. With reference to case law, discuss the assertion that women are only entitled to
umai and maoko property under customary law.
8. Critically interrogate the fact that customary justice offers a favourable outcome
than the formal court system.
10. Discuss the considerations that the courts take into account in determining
issues and guardianship of minors born in a registered customary marriage
11. Rudo is a 25 year old lady who is studying law at ZEGU. She gets impregnated
by a teacher at Chipadze High School. When Rudo discovered that she is
pregnant, she informs her boyfriend. The boyfriend does not even want to hear
about Rudo after the disclosure. He tells Rudo to see what he can do. Rudo later
gave birth to a baby boy. The boyfriend now wants the baby. He argues that it is
taboo in their culture to let a child grow up away from the father. He now wants
custody and guardianship of the child. Advise Rudo on the position of the law
pertaining to the guardianship and custody of minors in this case.
12. How are traditional leaders appointed? Is the appointment of traditional leaders
a violation of the right to equality?
14. Which aspects of customary law do you think is in violation with the bill of rights.
How can the conflict between customary law and human rights get solved.