Native Customary Law in the Union of South Africa
| DOI | http://doi.org/10.1002/j.1099-162X.1958.tb01160.x |
| Date | 01 April 1958 |
| Author | A. S. Welsh |
| Published date | 01 April 1958 |
Native
Customary
Law in
the
Union
of
South
Africa
by A. S.
WELSH,
Q..C.
Lecturer'in
Native
Administration
at
the
Jan H.
Hofmeyr
School
of
Social
Work,
Johannesburg
ｾａｔｉｖｅ
custom
operates}rithe
Union
of South Africa to the extent to which it
IS permitted by Statute,
and
in this
paper
an endeavour has been
made
to give
as clear apicture as possible of
the
part
played by native law
and
custom in the
law of
the
Union.
The
Native Administration Act, 1927 (Act No. 38
of
1927)
is the principal statute providing for the recognition of Native law
and
custom.
,r.
Recognition
or
Appointment
of
Persons
ds
Native
Chiefs
Sub-Section (7)
of
Section 2 of Act No. 38
of
1927 provides:
"The
Governor-General
may
recognize or
appoint
any
person as chief
of a Native tribe
and
may
make
regulations prescribing the duties, powers,
and
privileges
and
conditions of service of chiefs so recognized or appointed.
The
Governor-General
may
depose any chief so recognized or
appointed."
Sub-Sections (7) bis
and
7(ter) of Act 38 or 1927 provide:
(7) bis.
"When
recognizing or appointing aperson as a chief of a Native
tribe, or at
any
time thereafter, the Governor-General may, notwith-
standing anything in this Act or in any other law contained, after apublic
enquiry by such persons having aknowledge of the language, customs
and
laws of the Native tribe concerned as he
may
appoint
for
the
purpose,
make
an
order awarding to, or imposing upon, the person so recognised
or appointed as chief, such of the property, rights or obligations of the
previous chief, whether deceased or deposed, as in
the
opinion were
acquired or incurred by the previous chief by virtue of his office
and
as
he
may
deem fit."
(7)
ter.
"Any
person affected by an order
made
in terms of sub-section
7 (bis)
may
within one yearfrom the
date
thereof, petition
the
Governor-
General for
the
amplification, variation or interpretation of
the
pro-
visions of
the
order,
and
the Governor-General
may
make such
order
thereon as he
may
deem fit."
It
is legally competentfor
the
Governor-General to appoint as chiefof a tribe,
astranger to the family in which
the
hereditary chieftainship lies, or even
anon-member of
the
tribe.
ｾｩ｢｡ｳ｡
v. Ratsialingwa
and
Hartman,
N.O.
1947 (4) South African
Law
Reports 387:
II.
What
Law
to
be
applied
in
Native
Commissioners'
Courts
Section
II
of Act No. 38 or 1927 provides:
(1) "Notwithstanding
the
provisions of
any
other law, it shall be in
the
discretion of
the
courts of native commissioners in all suits or proceedings
between Natives involving questions of customs followed by Natives, to
decide such questions according to
the
Native law applying to such
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