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Unformatted text preview: THE INDIGENOUS LAW OF CONTRACT WITH PARTICULAR REFERENCE TO THE SWAZI IN THE KINGDOM OF SWAZILAND by ADELLE VAN SCHALKWYK submitted in accordance with the requirements for the degree of DOCTOR OF LAWS at the UNIVERSITY OF SOUTH AFRICA PROMOTER: PROF F P VAN R WHELPTON NOVEMBER 2006 1 TABLE OF CONTENTS Page Acknowledgements ii Summary iv Key terms v Contents 1 Map of the studied people 10 Chapter 1 11 1.1 1.2 1.3 1.4 ORIENTATION INTRODUCTION STATEMENT OF THE PROBLEM LEGAL PLURALISM IN THE KINGDOM OF SWAZILAND PREMISES, PRINCIPLES AND PARAMETERS OF THE RESEARCH 1.4.1 The universal principles of the Swaziland Constitution are non-negotiable 1.4.2 Swazi law and custom is protected in the Constitution 1.4.3 The legal system of Swaziland is characterised by pluralism 1.4.4 Swazi law and custom is the living law of thousands of Swazi people 1.4.5 The development and modernisation of Swazi law and custom must be addressed 1.4.6 Certain inequalities as experienced by people in view of the Constitution 1.4.7 Swazi law and custom is not necessarily incompatible with fundamental rights 1.4.8 Swazi law and custom does not comprise immutable rules 11 11 14 16 16 17 18 19 19 20 21 23 2 1.5 METHODOLOGY AND STRATEGY 23 1.5.1 Control techniques 26 1.5.1.1 1.5.1.2 1.5.1.3 1.5.1.4 1.5.1.5 1.5.1.6 1.5.1.7 The cross-checking of information gathered from various legal officials, experts and panels of key respondents The application of the emic and etic orientated approaches The attendance of court cases/hearings Legal maxims and proverbs Falsification as a test instrument Memoranda Local experts 26 27 27 28 29 30 31 1.6 THE FIELD RESEARCH 31 1.7 THE SWAZI IN THE KINGDOM OF SWAZILAND 32 1.7.1 The Kingdom of Swaziland 1.7.2 The Swazi people 1.7.3 What is Swazi law and custom? 32 33 35 1.7.3.1 1.7.3.2 1.8 Custom and law Enforcement of custom (lisiko) 36 38 CHARACTERISTICS OF SWAZI LAW AND CUSTOM 40 1.8.1 The unwritten nature of Swazi law and custom 1.8.2 The customary nature of Swazi law and custom 1.8.3 Swazi law and custom as an expression of community values 1.8.4 The influence of magico-religious conceptions and practices in Swazi law and custom 41 41 42 42 3 1.9 1.10 1.11 1.12 THE TRADITIONAL SWAZI SYSTEM OF GOVERNANCE THE SWAZI SOCIAL ORDER OUTLINE OF STUDY CONCLUSION Chapter 2 2.1 2.2 2.3 2.4 THE RECORDING AND CODIFICATION OF INDIGENOUS LEGAL INTRODUCTION THE NEED FOR RECORDING CODIFICATION OF INDIGENOUS LEGAL SYSTEMS CONCLUSION Chapter 3 CONTRACTS IN INDIGENOUS LEGAL SYSTEMS: A THEORETICAL PERSPECTIVE 3.1 3.2 INTRODUCTION CONTRACTS IN TERMS OF INDIGENOUS LEGAL SYSTEMS 3.3 THE NATURE OF AN INDIGENOUS CONTRACT 3.4 THE CLASSIFICATION OF CONTRACTS 3.5 THE ROLE OF INDIGENOUS CONTRACTS 3.6 THE SOCIAL DIMENSION OF INDIGENOUS CONTRACTS 3.7 DISPUTE SETTLEMENTS 3.8 THE PRIMARY FUNCTION OF INDIGENOUS CONTRACTS 3.9 THE EFFECT OF CHANGE ON THE INDIGENOUS LAW OF CONTRACT 3.10 A HOLISTIC PERSPECTIVE ON CULTURAL ASPECTS 3.11 CONCLUSION Chapter 4 4.1 4.2 43 44 46 47 THE REQUIREMENTS FOR ESTABLISHING A CONTRACT IN TERMS OF SWAZI LAW AND CUSTOM INTRODUCTION CONSENSUS 48 48 51 53 55 55 57 61 64 65 66 68 70 73 74 75 77 77 77 4 4.2.1 Consensus reached in an improper manner 4.2.1.1 4.2.1.2 4.2.1.3 4.3 4.4 4.5 4.6 4.7 4.8 4.9 Misrepresentation Force and intimidation Improper influencing 81 83 83 PERFORMANCE MUST BE POSSIBLE PERFORMANCE MUST BE DETERMINABLE THE TRANSACTION, PERFORMANCE AND PURPOSE MUST BE LAWFUL PERFORMANCE OR PARTIAL PERFORMANCE MUST BE DELIVERED THE PARTIES MUST HAVE CAPACITY FORMALITIES REQUIRED TO BE FULFILLED CONCLUSION 84 85 Chapter 5 5.1 5.2 5.3 5.4 BREACH OF CONTRACT 86 89 90 96 97 99 INTRODUCTION DIFFERENT FORMS OF BREACH OF CONTRACT 99 101 5.2.1 Non-performance 5.2.2 Repudiation 5.2.3 Impossibility of performance 101 104 105 REMEDIES FOR BREACH OF CONTRACT 106 5.3.1 5.3.2 5.3.3 5.3.4 106 107 108 109 Specific performance Damages Withdrawal (okuphuma esivumelwaneni) The right to withhold performance CONCLUSION Chapter 6 6.1 6.2 6.3 80 THE TERMINATION OF CONTRACTS INTRODUCTION PRESCRIPTION SET-OFF 109 111 111 111 113 5 6.4 6.5 6.6 6.7 6.8 6.9 PERFORMANCE RELEASE (kukuhulula) NOVATION SETTLEMENT MERGER (confusio) CONCLUSION Chapter 7 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 SPECIFIC CONTRACTS 114 116 117 119 120 122 123 PERMANENT EXCHANGE OF GOODS AND SERVICES 123 7.1.1 Introduction 123 THE SALE AGREEMENT 125 7.2.1 Terms of the exchange of contract (kuntjintjiselana) 7.2.2 Remedies for breach of contract 128 130 RENDERING OF SERVICES 132 7.3.1 Renting and letting of services 7.3.2 Acceptance of services 7.3.3 Specific services 132 137 141 THE EXCHANGE AGREEMENT GOODS GIVEN ON LOAN FOR CONSUMPTION DONATION MARRIAGE CONSIDERATION (emalobolo) • The significance of emalobolo • Time of delivery of emalobolo • The number of emalobolo • The source of emalobolo • Distribution of emalobolo • Return of emalobolo CONCLUSION 145 147 148 150 150 152 152 154 154 155 155 6 Chapter 8 8.1 157 NON-PERMANENT EXCHANGE OF GOODS, INCLUDING BAILMENT AND MANDATE 157 8.1.1 8.1.2 8.1.3 8.1.4 8.1.5 8.1.6 Introduction Loan agreement The lease agreement Farming out (kusisa) Bailment (kubambisa) CONCLUSION 157 157 160 162 168 169 SPECIFIC CONTRACTS 170 Chapter 9 9.1 SPECIFIC CONTRACTS CONTRACTS WHICH INFLUENCE THE STATUS OF PARTIES 9.1.1 Introduction 9.1.2 Status 9.1.3 Marital status 9.1.3.1 Rank (lizinga) 174 9.1.3.1.1 9.1.3.1.2 175 176 Family rank (lizinga lemuti) House rank (lizinga lendlu) 9.1.4 The engagement 9.1.4.1 9.1.4.2 9.1.4.3 To steal herself (kutiba) A form of betrothal (kuqabangula) Courtship (kujuma) 9.1.5 Contracting a marriage in terms of Swazi law and custom 9.1.5.1 9.1.5.2 170 170 170 172 Introduction To ask for a girl’s hand in marriage (kucela) 9.1.6 Features of an indigenous Swazi law of marriage 9.1.7 Impediments to marriage 177 178 178 179 180 180 181 181 182 7 9.1.7.1 9.1.7.2 9.1.7.3 9.1.7.4 9.1.7.5 9.1.7.6 9.1.7.7 9.1.7.8 9.1.7.9 Physical and mental defects Infertility and impotence Marital status Persons of the same gender Prohibited degrees of consanguinity Consanguinity in the direct line Consanguinity in the collateral line Relationship by affinity Other prohibited relationships 9.1.8 The Requirements of a marriage in terms of Swazi law and custom 9.1.8.1 9.1.8.2 9.1.8.3 9.1.8.4 Smearing with red ochre (libovu) Marriage consideration (emalobolo) known to the Swazi as emabheka The lugege beast must be slaughtered The insulamnyembeti beast must be delivered 9.1.9 Capacity to marry 9.1.10 Consent (kuvuma) 9.1.11 The coming into being of a marriage in terms of Swazi law and custom 9.1.11.1 9.1.11.2 Courtship (kugana) • Beads (kugana ngelicube lijuba/ingeje) Invitation of peers (kugana ngekuhlela) 9.1.12 The marriage ceremony (umtsimba) 9.1.12.1 182 182 183 183 183 183 184 184 184 185 185 187 188 190 190 191 192 192 193 193 195 The assembly of bridal goods (kulungisa umhlambiso) 195 • A beast which must be paid by the woman’s family (inkhomo yemgano) 195 • Skin skirt (sidwaba) 196 • A shawl made out of cattle tails (sigeja) 196 8 • 9.1.12.2 9.1.12.3 9.1.12.4 Gifts that the bride presents to some of her in-laws (umhlambiso) 196 The bridal party (ludvwendvwe/umtsimba) 197 The departure of the bridal party (kuphuma kwentsimba) 199 The groom’s party (bayeni) 200 9.1.13 Subsidiary wife (inhlanti) 9.1.13.1 201 A subsidiary wife (inhlanti) in the case of barrenness A subsidiary wife in the case of death 202 202 9.1.14 The consequences of a marriage in terms of Swazi law and custom 203 9.1.13.2 9.1.14.1 9.1.14.2 9.1.14.3 9.1.14.4 General consequences of marriage Personal consequences Relationships between husband and wife Patrimonial consequences 9.1.15 Dissolution of a Swazi marriage 9.1.16 Death 9.1.17 Separation 9.1.17.1 9.1.17.2 9.1.17.3 9.1.17.4 9.1.17.5 Adultery (kuphinga) Witchcraft (kutsakatsa) Refusal of conjugal rights Desertion (kwemuka) Gross disobedience or disrespect 9.1.18 Consequences of the separation of spouses 9.1.18.1 9.1.18.2 Vis-à-vis the families Vis-à-vis the spouses 9.1.19 CONCLUSION 203 204 205 206 206 208 209 210 210 211 212 212 213 213 213 214 9 Chapter 10 SUMMARY AND RECOMMENDATIONS 215 10.1 INTRODUCTION 10.2 THE ARTICULATION AND ENFORCEMENT OF A HUMAN RIGHTS CULTURE IN THE KINGDOM OF SWAZILAND 10.3 THE AFRICAN WAY OF ACKNOWLEDGING AND PROTECTING HUMAN RIGHTS 10.4 THE COMPATIBILITY OF SWAZI LAW AND CUSTOM WITH THE NORMS OF NATIONAL AND INTERNATIONAL LAW 10.5 THE HORIZONTAL APPLICATION OF FUNDAMENTAL RIGHTS BY THE COURTS 10.6 THE ROLE OF THE LEGISLATOR AND COURTS 10.7 THE FUTURE OF SWAZI LAW AND CUSTOM 10.8 LEGAL DOMAINS TO BE ADDRESSED: ILLUSTRATIVE EXAMPLES 10.9 CHANGE AND LEGAL VALUES 10.10 THE DISTINCTIVENESS OF THE LAW OF CONTRACT OF THE SWAZI IN THE KINGDOM OF SWAZILAND 10.11 LEGAL PRINCIPLES AND PARADIGM 10.12 INDIGENOUS CONTRACT AND INDIVIDUALISM 10.13 RECORDING AND CODIFICATION 215 215 217 221 222 223 225 225 227 228 230 232 234 BIBLIOGRAPHY 235 GLOSSARY OF SWAZI LEGAL MAXIMS AND PROVERBS 251 GLOSSARY OF SWAZI LEGAL TERMS 255 TABLE OF CASES 265 MEMORANDA: Annexure A - Swazi law of contract Annexure B – Swazi law of marriage 266 284 ii ACKNOWLEDGEMENTS I wish to express my deepest appreciation and gratitude to my promoter, Professor F P van R Whelpton, who shared his extensive knowledge and experience with me and guided me with such enthusiasm on the subject matter of the thesis and the people studied. I thank him for his valuable time and assistance especially with regard to the siSwati terminology. He inspired and guided me and instilled the belief in me that I could achieve and finalise this study. I would not have been successful in my endeavours without my promoter’s dedication. I also wish to express my appreciation: to His Royal Highness Prince Logcogco Mangaliso and the panel of experts, who were able and willing to share their knowledge with me; to Bernice O’Neill, for her editing which transformed my thesis into a professional document; to Joyce Ndaba, who took special care in typing this thesis; to Shaakirah Ahmed for her meticulous technical support and Feroza Alli for collating with special care, all the copies required for proof reading, editing purposes and my final thesis; to all my colleagues and friends who supported me throughout my studies and with whom I could share my frustrations and joy as I traveled the challenging road to complete this thesis; iii and, to the special man in my life who encouraged, believed in me and knew that I could achieve the highest level of academic achievement in law. A special thanks to him. This work is dedicated to my mother Estelle de Waal, who constantly encouraged and stimulated my thoughts. We shared a special understanding of academics as her late husband, Dr. Daan de Waal, was awarded a doctorate in spectro chemistry. iv SUMMARY This study was undertaken to establish whether the legal phenomenon known as a contract exist in indigenous legal systems and in particular, among the Swazi. As the underlying aims and consequences of indigenous contracts differ not only between indigenous peoples but is also affected by the degree of westernisation that has taken place, a micro study has been done in semi-rural areas in the Kingdom of Swaziland to establish if the existing value systems are altered or replaced when western legal institutions are introduced. Data was obtained by way of interviewing a panel of experts and compared with available literature. Through the process of gathering information, the legal principles were described and the functioning of social processes noted. Different indigenous contracts and general principles were identified. It must, however, be noted that a contract is more than a device for establishing the economic and legal implications of a transaction. Most contractual disputes are resolved outside the courts through negotiated settlements to restore harmony in the community. Although the Swazi law of contract is showing clear signs of adapting to new developments, there is proof that established legal principles and Swazi values are being retained. This study will not only be useful as a source of information for both Swazi courts and administration, but could also serve as a basis for codification v intended by the Swazi Government. For that purpose, a memorandum has been compiled for consideration by the Swazi authorities. The compatibility of Swazi law and custom with a Bill of Rights was also evaluated and suggestions were made for possible law reform in the Kingdom of Swaziland. Key terms: Bill of Rights; dispute settlements; holistic approach; harmonization, unification and integration; indigenous contract; indigenous marriage; legal reform; legal values; living law; recording and codification; Swazi law and custom. 11 Chapter 1 ORIENTATION 1.1 INTRODUCTION This research was a direct result of a number of Swazi Government initiatives which had as their main objective, striving for good governance and achieving sustainable development in the Kingdom of Swaziland. A recommendation articulated as a priority objective by the Political Review Commission established in 1992, was to investigate and consider ways in which customary institutions and processes could, or should, be accommodated in the political system of Swaziland in view of their important constitutional and social role in terms of Swazi law and custom. One of the central concerns raised by the people of Swaziland relates to the constraints impacting on the interface between the traditional and modern systems of governance. In this regard, the recording of Swazi law and custom and its integration into modern law became one of the major initiatives necessary to realise the transformation needed for the achievement of good governance. 1.2 STATEMENT OF THE PROBLEM Although Swazi law and custom has been recorded (cf Whelpton 2005), only certain aspects of the Swazi law of contract have been attended to. The 12 Government of Swaziland now intends to codify Swazi law and custom and harmonise it with the Bill of Rights in the Constitution of the Kingdom of Swaziland. This study was therefore undertaken in order to give a proper exposition of the Swazi law of contract and to make suggestions for the legal reform envisaged in the Kingdom of Swaziland. If law is an indispensable ingredient of organised society, it should be obvious that Swazi law and custom, too, stands to contribute to the future development of the Kingdom of Swaziland. The future of Swazi law and custom is important in the sense that a substantial part of it is still living law. The continued application thereof is also expressly guaranteed in the new Constitution (Sec. 252(2)). It is therefore important that the living law and judicial values of the Swazi people should be taken into account in the legal development of Swaziland. Many legal values and principles are reflected in the Swazi law of contract among the Swazi, as this is more than an instrument for participating in the economic and legal life of the community. The researcher conducted a micro study in semi-rural areas in the Kingdom of Swaziland (see map) to establish what these legal values and principles are and whether they are being retained in the changing economic and social environment of Swaziland. A large portion of African customary law has been recorded or codified. These recordings and codifications have been criticised in that they have intended to restate or codify traditional law rather than the living law of the people, and have created the impression that African customary law consists of immutable rules. Critics have, however, overlooked the fact that 13 customary law also consists of processes, and is quite capable of adapting to changing socio-economic circumstances (Dlamini 1990:84). Furthermore, a written exposition of those indigenous legal systems which are in accord with jurisprudence increase the status of indigenous law and promote certainty and consistency in its application and enforcement. While the continued application of Swazi law and custom has been guaranteed in the Constitution of Swaziland, it will, as has been the case in the past, continue to undergo constant change. There is sufficient evidence that Swazi law and custom has the capacity to adapt to economic, social and environmental changes. Yet this adaptation should be in harmony with its underlying postulates and should not be initiated by a Bill of Rights (cf Whelpton 1997:145-151). The legal reform envisaged in the Kingdom of Swaziland may include unification, integration and modernisation as experienced by other African countries. This should be done, however, with due regard to the values, norms, ideals and realities of the Swazi people which this study intends to emphasise (cf Spalding 1970:117). Finally, this research of the Swazi law of contract, containing trusted and cherished Swazi values, envisages not only enhancing the standing of Swazi law and custom, but also promoting certainty and consistency in upholding the laws of the Swazi nation. 14 1.3 LEGAL PLURALISM IN THE KINGDOM OF SWAZILAND Legal pluralism is generally found in countries of the Third World and also in quite a number of developed countries elsewhere on the globe (cf Prinsloo 1990:325). It often stems from the heterogeneous composition of the population of countries. Legal pluralism is also found in the Kingdom of Swaziland where both Roman Dutch Law, as the adopted colonial common law, and Swazi law and custom are officially recognised. Swazi law and custom apply predominantly to Swazi people and common law to Swazi citizens, including people of non-Swazi origin. The system of legal segregation furthermore resulted in a dual court system – Swazi law and custom may be applied only in Swazi courts and common law in magistrates’ courts and the High Court. Since both these legal systems consist of rules that regulate relations between public authorities and Swazi subjects on the one hand, and the mutual relations between these subjects on the other, there is an urgent need for harmonisation, reconciliation and ultimately even unification of these two legal systems (cf Bennett 2004:74). Unification of the different legal systems of a country is usually a gradual process to ensure legal certainty regarding the application of relevant legal values and rules, and is usually characterised by three phases, namely harmonisation, integration and unification (cf Prinsloo 1990:427). The unification of Swazi common law and Swazi law and custom by replacing them with a uniform legal system is currently not envisaged by the lawmakers. It should be kept in mind that greater legal certainty by means of unification in a country cannot be achieved without the assent and cooperation of the communities involved. Moreover, the connection between a 15 legal system, the economy and other aspects of culture of a society should always be taken into account in the process of legal reform. A legal system that is too advanced and does not bear reference to the economic and social order and other spheres of life of a society is as ineffective as one that has become obsolete (cf Prinsloo 1990:329). A new reformed legal system containing values and rules that are foreign to the existing and living law will lead to legal uncertainty and will not be observed. The following examples can be mentioned in this regard: • long after the acceptance of the Ethiopian Civil Code, the indigenous communities still adopt children in terms of the repealed indigenous law; • in the cities of Nigeria the indigenous population give precedence to the unofficial tribunals for the speedy, simple and effective solution of their problems; and • in certain indigenous communities of Ghana the administration of justice is still managed by traditional institutions, despite having been abolished by the central authority of the country (cf Prinsloo 1990:330). In terms of the new Constitution of the Kingdom of Swaziland, the common law and Swazi law ...
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