n South African Journal of Criminal Justice - The spoor law : an anachronism or constitutional misfit?




The spoor law is a rule of African customary law that determines liability for stock theft. It provides that, if the tracks of lost or stolen livestock can be traced to a homestead or its immediate surrounds, the head of that establishment will be held liable. If the direction of the spoor do not point to a specific homestead, all those in the vicinity become jointly liable. As a convenient deterrent to the theft of livestock, the spoor law was incorporated into the laws of the Cape Province, Natal and the Transkeian Territories at the end of the nineteenth century, making it the only rule of customary law to be applicable without regard to race prior to the new Constitution. This article questions whether the spoor law still is, and should be, part of South African law. It has never been formally repealed, and still survives in the1983 Transkei Penal Code. Although the law has not been mentioned in a reported case for many years, it might play a valuable role in crime control, since stock theft remains a serious and pervasive crime in South Africa. The article argues, however, that it will probably not survive constitutional review, because it has the effect of imposing a reverse onus of proof.


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