oa Comparative and International Law Journal of Southern Africa - Human rights aspects of the dual system applying to Blacks in South Africa

Volume 15, Issue 3
  • ISSN : 0010-4051



In the then Union of South Africa in the early 1940s a black man was killed in a motor accident caused by the employee of a white person driving negligently in circumstances that would in the ordinary course of events have rendered the employer liable. The widow of the deceased thereupon sued the white employer for the damages she had suffered through her loss of support. Her action was dismissed by the Witwatersrand Local Division of the Supreme Court of South Africa, which found that as the plaintiff's marriage to the deceased had been concluded under the customary law of a Basotho tribe which practised poligamy, the union was not recognised in South African law as a valid marriage, and the deceased had consequently not been under a legal duty to support the plaintiff. A situation therefore arose which vividly highlights a most unfortunate consequence of the so-called dual system in the administration of justice applying to blacks in South Africa.

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