DISCUSSING CUSTOMS, PRACTICE AND LAW
ALR Online will publish legislation and judgments of the superior courts of African Countries, and superior courts of other countries, on subjects of general interest to African legal scholars, as they are made available. These judgments will be reported in their entirety with short introductory notes, and can be found under the country name, in alphabetical order. Arrangements will be made with the Registrars of the superior courts concerned to submit selected judgments, especially on constitutional law, public law, international law (including humanitarian law), International Commercial Law, African Law and other areas of general legal interest to lawyers in Africa and abroad. This site will also provide references to other sites with complete reports of individual countries, which need not be duplicated.
AFRICAN CUSTOMARY LAW
- The Constitutional Court held in Bhe that the Black Administration Act 38 of 1927 under which the Estates of Black South Africans were administered was discriminatory and therefore unconstitutional. Until replaced estates shall be administered under the general Intestate Succession Act 81 of 1987, the effect of which is that “The rule of male primogeniture as it applies in customary law to inheritance of property is declared to be inconsistent with the Constitution and invalid to the extent that it excludes or hinders women and extramarital children from inheriting property.” In dissent, Judge Ngcobo pointed out that indigenous law or customary law is recognized under the Constitution. In addressing the devolution of property under customary law a distinction is drawn between succession and inheritance. The successor in title to the male spouse inherits the name and status and not the property and for continuation of the family name such successor is a male descendant. The fact that mistakenly these two roles have been confused should not lead to invalidation of the law, instead the court’s function is to clarify and confirm the proper application of the customary law. Nankululeko Letta Bhe and Others v. President of the Republic of South Africa and Others.
- An otherwise monogamous marriage concluded under Muslim rights in South Africa fulfills the requirements of the Maintenance of Surviving Act which provides for the survivor to have a claim against the estate of the deceased spouse. Contrary to earlier interpretations which considered the word “spouse” to exclude Muslim marriages even when monogamous on the ground that they were potentially polygamous, the court held that the ordinary meaning of the word “spouse” includes a Muslim marriage, and the intent and impact of the restricted interpretations was discriminatory, expressly exalting a particular concept of marriage, promoting a world view of marriage of one man and one woman, which discriminates against other forms of marriage contrary to the constitutional values of equality, tolerance and respect for diversity. Juleiga Daviels v. Minister of Justice and Constitutional Development
- The basis for the principle of male primogeniture under customary law was to preserve the family property, which a woman heir would ordinarily not be in a position to do upon marriage thus joining her husband’s family. The principle was separate and independent of the Roman-Dutch view of women as perpetual minors. Magaya v. Magaya
- The customary law in Tanzania which prohibited women from inheriting and freely disposing by sale of family land was discriminatory as men had such rights and not women and was thus contrary to the Bill of Rights under the Constitution. Ephrahim v. Pastory & Another
- The Customary laws of Tanzania have the same status in the courts as any other law subject only to the Constitution. Where the customary law provides, as in case of Kuria customary law, for the wife to inherit the property of her husband, as such successor she has the duty to meet all obligations of the late husband including, where he had accepted cattle as dowry for his sister, the return of the cattle upon breakdown of the marriage. Maagwi Kimito vo Gibeno Wereme
The Order in Council of 1907, after providing for power to set apart certain lands in Swaziland, the subject of concessions by the paramount chiefs, enabled the High Commissioner to acquire the remaining land and to deal with it. He had therefore full power to make the Crown Grant of March 16, 1917. The power of the Crown to enable him to do so was exercised either under the Foreign Jurisdiction Act, or as an act of State which cannot be questioned in a Court of law. The Crown could not, excepting by statute, deprive itself of freedom to make Orders in Council, even when these were inconsistent with previous Orders.
- The essential character of customary land law is that land belongs to the community, the village or the family. Individual ownership of land is a foreign concept. Under customary law, all members of the community, village or family have an equal right to the land. The Chief or administrator of the village of head of family has charge of the land and is only loosely called the owner. He is in in essence a trustee and as such holds the land in trust for the use of the community or family. Every member who wants to use it is entitled to be allocated an adequate piece for cultivation to satisfy his/her needs but cannot dispose of such land without the consent of the elders of the community. This legal status of land is in no way affected by the superimposed statutory regime of the colonial administration through the Crowns Land Act. The only meaning of such superimposition was to vest the root title to land in the Crown but only notionally as actual ownership was retained by the community and the individuals who worked the land. In effect the individual once allocated land enjoys all attributes of “owner” and in case of eminent domain, compensation paid goes to him/her.
- Customary rights in land, though by Statute called “deemed rights in land” and often regarded as mere usufructuary rights – that is pertaining to the right to occupy and use the land -are nevertheless real property protected under the Constitution of Tanzania against deprivation without compensation. Fair compensation for such rights is not confined to unexhausted improvements to the land Where there are no unexhausted improvements but some effort has been put into the land by the occupier, that occupier is entitled to fair compensation in case of eminent domain as required under the Constitution.
- Where land is family property and in the process of registration is registered in the name of the heir in the family, the other family members retain their customary interest in the land and may be enforced against the registered owner. In the case in question the father as the registered owner of family land could not evict his son who had occupied and used a portion of the land with the knowledge and consent of the father. In Mbui v. Mbui, the subject land was ancestral land which the Appellant had inherited from his father. The Respondent had been on the land since his birth and had occupied his potion and built a permanent house with the consent of Appellant. Such occupation and use is recognized and protected under customary law as equivalent to ownership and may be equated to a trust under common law to be protected under the exceptions to the rights of a proprietor in the Registered Land Act.
- In the case of a marriage contracted between a Ghanian woman and an Irish man both living in London, an English court accepted as evidence of a contract of marriage under customary law in Ghana, testimony from those present at the presentation of a bottle of Gin and one hundred British pounds sent by the man as dowry payable to the family of the woman. The ceremony conducted in Ghana even in the absence of the bride and groom satisfied the requirements under customary law for the formal celebration of marriage recognized under English law for purposes of determining whether a valid marriage had been contracted. The capacity of the man to contract a valid customary marriage under Ghanian law was not addressed but may as well have been presumed given the evidence of the existence of a valid marriage under the relevant customary law and evidence that the man and woman continued to live as husband and wife in England from 1984 raised two children of the marriage before separation in 1988.
- In a case where an African man dies intestate, his personal law governs the manner of his burial as may be determined by his clan rather than his spouse. The personal law of an African is the applicable customary law, even though he may have lived a modern lifestyle. “There is nothing repugnant or immoral about Luo customary law as a man cannot change his tribal origin the courts must be guided by that law in the case of Luos”.