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In the absence of a party and sentence may be given

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In the absence of a party, andSentence may be given against such party in his absence “judgment bydefault”The party may not be punished for contempt of court as wellIf one of the parties is not satisfied with the decision of the headman’s courtthe dissatisfied party may ask that the case be referred to the chief’s courtA headman’s court may also refer a case to the chief’s court if it iscomplicatedA person who “receives” these cases sets a dateThe procedure in the chief’s court is the same as that in the headman’s courtIn criminal case, the general procedure is that the agnatic group of theharmed person reports the case to the local headmanThe headman investigates the matter and reports to the chiefIf the complaint is founded, the chief sets a date for trialEach party must see to it that its witnesses are present on the day of trialIn criminal cases the indigenous procedure applies, to the extent it is not inconflict with the public policy of natural justiceA person may not be sentenced in his absenceA chief may not administer justice in a case in which he himself is thecomplainant
b)Explain the principles behind evidential burden under civil and criminal cases(6)The principle is that the party must prove its claims in courtIn a civil action, the plaintiff’s group must submit evidence which proves itsclaim – otherwise judgment is given in favour of the defendantEqually, the defendant’s group must submit proof which rebuts the caseagainst it and shows the claim to be unfoundedA party is not required to prove an issue of fact conclusivelyThe court plays an active part in examining the parties and is in a position tojudge the rendering of the facts itself.In criminal cases, the principle is that a party must prove its claim in courtThe onus is on the accused to prove his or her innocenceThe accused is expected to submit evidence to the court that proves thecharge to be unfoundedThere is no prosecutor who submits evidence on behalf of the courtThe court plays an active role in the process of questioning and may even callwitnesses to give evidenceThe principle that the case against the accused must be proved beyondreasonable doubt as it exists in the general law of the land is unknown inindigenous lawIn indigenous law, no court case can end in an “absolute from the instance”(i.e. dismissal of the claim by the court because it cannot make a decision infavour of one of the parties on the evidence submitted)In indigenous law neither of the parties, nor both together, have the burden orproving their caseIt is the court who acquires proof by playing an active part in the process ofquestioning so as to be able to give judgment58)Q2 QUESTION (NOV 2011)a)Compare the legal requirements for a traditional customary marriage, acustomary union and a customary marriage(15)Traditional customary marriageThe man and the woman concerned must not be related to one another withinthe prohibited degrees of kinshipThere must be consensus between the two family groups concerned

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Term
Summer
Professor
N/A
Tags
Law, Reform of Customary Law of Succession, Customary Public Law, agnatic group, Indigenous court

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