Mahmood points out that Theophilus played a significant role in coming up with the indirect rule system, which in turn led to the creation of official customary laws. Landau, in his book Popular Politics in the History of South Africa talks about how the system was used there. The highest colonial officer in Natal, one of the provinces of South Africa, was known as Shepstone. He was tasked with all the native affairs of the region but was transferred to Transvaal in 1877.
Shepstone fused the local customs of the natives and the British legal laws to come up with what he referred to as native customary law. Through combining customary and British legal laws, Shepstone was able to allow colonialists use local chiefs and leaders back the legal legitimacy of colonialists in the region. The native customary law that was established by Shepstone exerted a system where the colonial masters ruled through the help of local leaders.
In 1847, Shepstone formed the Natal Commission which looked into African laws. All African laws which conflicted with Roman-Dutch laws had to be scraped off. The Natal Code of 1878 defined customary laws and stated that all women were under the control of men, all children were under the control of their fathers and established exclusive rights of inheritance for all firstborns.
Between 1879 and 1906, two major events influenced the customary law in South Africa. The first event was in 1879 when the Zulu fought with the British and were defeated. The second event was in 1906 when the Zulu rose again and rebelled against the British. Colonial masters fused customary laws with assimilation policies. First, slavery was abolished in the Cape Colony. Secondly, the government started analyzing native customs and practices so that they would come up with criminal and civil laws. It is, however, important to note that the locals were not used in the process and their suggestions were not put into consideration. Assimilation policies started to fail, and people objected the laws since some were going against customary practices such as polygamy and the issue of inheritance.
In 1910, South Africa was created, and it became a nation. All the different territories of the state had their customary laws. This resulted in a lot of chaos and confusion, and consequently, the colonial government came up with the Native Administration Act. The law gave full credence to customary law and stated that it would be recognized fully in all chiefly and commissioner courts. It was the sole responsibility and mandate of the commissioner to say when and where a particular customary law would be applied.
Following the introduction of the Apartheid system, the government came up with an administrative set up of tribal and territorial authorities for the locals. Chiefs and village headmen were the heads of these regional authorities. In the 1980s when the Apartheid system was coming to an end, the colonial government came up with several reforms. One such reform was The Law of Evidence Amendment Act of 45. The law required for the recognition and acceptance of customary laws although several repugnance clauses were still included in this act.
When South Africa gained independence, it established a new constitution in 1996 which established the status of customary law in the new legal system of the nation. Customary laws became a crucial element of the states legal system, and it would not be subject to any other law other than the constitution. It can be seen that in sanctifying the authoritarian version of custom as genuine, colonial powers in Africa sought to create native customs which were singular and fixed. Colonial rule played a significant role in creating what is now referred to as the African customary law.
Bennett, T.W. (2004). Customary Law in South Africa Landau, Paul. (2010). Popular Politics in the History of South Africa, 1400-1948. New York: Cambridge University Press, 2010
Mamdani, Mahmood. (2001). Beyond Settler and Native as Political Identities: Overcoming the Political Legacy of Colonialism. Comparative Studies in Society and History, Vol. 43, No. 4. (Oct., 2001), pp. 651-664
Wall, Devon (15 June 2015). "Customary Law in South Africa: Historical Development as a Legal System and its Relation to Womens Rights". South African History Online.
The South African Constitution. The Department of Justice and Constitutional Development.Retrieved 10/13/2017.
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