oa Historia - Die erkenning van inheemse reg deur die Zuid-Afrikaansche Republiek



The recognition of customary law by the South African Republic Several authors have claimed that blacks in the South African Republic were governed according to Roman Dutch law, that customary law was not recognised before 1877, and that this legal system was only recognised for the first time after the British annexation of the Transvaal in 1877. Although the official policy of the Republic was that blacks should be governed according to the laws of the country also applying to whites, in actual fact customary law was applied in the Zoutpansberg district since the 1860's and in some respects throughout the Republic since 1876. That this was the case is apparent from a letter of President M W Pretorius to the Superintendent of Native Tribes in Zoutpansberg in 1865. The recommendations of a commission of 1871 appointed to investigate memorials pertaining to black servants and laws applying to blacks also confirm this. Furthermore, Law No 3 of 1876 seems to recognise indigenous law by implication by not prohibiting ""the buying of wives"" and poligamy, but by simply stating that these practices would not be recognised by the laws of the country. In this law, moreover, the Native commissioners were instructed to take cognisance of the customs of the blacks when acting as justices of the peace. Although there was therefore no law which accorded statutory recognition to customary law there can be little doubt that such law was indeed recognised in certain respects by the Republic by 1876.


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