Kaime, Thoko

English

Thoko Kaime

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T. W. Bennett,
                    Customary Law in South Africa

SOAS Research Online

Journal of African Law, 48, 2 (2004), 271–275 # School of Oriental and African Studies.DOI: 10.1017/S0021855304482084 Printed in the United Kingdom.BOOK REVIEWST. W. Bennett, Customary Law in South Africa, Lansdowne: Juta and CompanyLtd., ISBN 0-7021-6361-9, 462 pp.The advent of colonialism spelt bad news for indigenous customs and laws.The imposition of colonial administrative structures and institutions resultedin the subjugation of peoples and the subordination of indigenous institutions,customs and laws. Relying on an ethnocentric and racist conception of lawand society, the colonizers showed total disrespect for ‘‘primitive’’ local legalsystems which had evolved for years, supplanting them and replacing themwith ‘‘modern’’ Western legal systems.In the case of South Africa, years of subjugation and non-recognition werebrought to an end by the coming into force of the new constitutional dis-pensation in 1993. The new Constitution not only gave recognition to cus-tomary law but accorded it the same status as the imported Roman-Dutchand common law.1As the title of the book suggests, Bennett’s book deals with customary law inSouth Africa. It offers an exploratory but at the same time critical expositionof customary law and its relationship to the Constitution, statutory law as wellas the common law. Divided into 13 chapters, the book explores a diversenumber of salient issues which range from succession law to marriage law.The first chapter is introductory and deals with basic concepts and theoriesrelating to the nature of customary law. It traces the development of variousanthropological as well as legal perspectives which have impacted on therecognition or non-recognition of customary law. These perspectives includeevolutionism, structural-functionalism, Marxism, legal pluralism and genderstudies.In the next chapter, Bennett grapples with recognition, ascertainment andapplication of customary law. He traces the history of recognition from theearliest colonial settler administration in 1652, through the apartheid era tothe adoption of the new multiracial Constitution. In this regard, he notes that‘‘customary law is [now] a core element of the South African legal system, ona par with Roman-Dutch law’’.2 Since the courts now have discretion toapply customary law, the chapter is also devoted to a detailed discussion ofthe relevant choice of law rules.Since customary law is part of indigenous culture, chapter three is devoted toa discussion of culture as a right both under the South African Constitution aswell as under international law. Section four is the most notable part of thischapter. It deals with the legislative reform of customary law. Bennett observesthat ‘‘customary law has long been criticised for gender and age discrimina-tion.’’3 Consequently, the South African Law Commission has been mandatedwith the task of reviewing various elements of customary law that do notcomport well with the Constitution as well as international law.1 S. 211(3) of the South African Constitution. See Akiklso S v. Makwanyane & another 1995 SA391 (CC); 1995 (6) B.C.L.R. 665 (CC) paras. 365–383.2 Bennett, 2004, p. 43.3 Bennett, 2004, p. 97.The next three chapters are dedicated to the arbiters of customary law,namely traditional leaders and the courts and their procedure. Chapter fourfocuses on traditional rulers and maps out their status and functions under theConstitution. The chapter is a succinct, if somewhat brief, exposition of thetraditional rulers’ legislative, judicial, and executive functions. Bennett makesit clear that whilst the powers of traditional leaders are sourced from tradi-tion, their exercise is now regulated by the Constitution.4 Chapter five beginswith a brief history of the colonial court system and the status of the custom-ary court within those arrangements. The chapter then examines the func-tions and status of these courts under the new Constitution. In this regard,Bennett notes that the express constitutional retention of customary courts5 isrecognition of their ‘‘low cost, simplicity, geographic proximity . . . andfamiliar procedures’’.6 Chapter six discusses procedural matters and tackleswide-ranging issues such as fees, recusal, evidentiary rules, representation andothers.Chapters seven to eleven deal with matters related to family law. Chap-ter seven is intended to serve as background to the subsequent four chap-ters which deal with ‘‘domestic relationships’’.7 It therefore focuses on thefamily and discusses the various types: nuclear, extended, modern, and soon. Chapters eight to ten elaborate on the customary law relating toformation of marriage, the consequences of the union as well as dissolution.The analysis tackles various constitutional issues as well as efforts at lawreform in this area by the South African Law Commission. Chapter elevenfocuses on the customary law relating to children. It discusses matters suchas conceptions of childhood, legal personality, legitimacy and affiliation,adoption and foster care, capacity as well as issues relating to discipline.Again, Bennett tackles and suggests solutions to problems that may arise incases of conflict between customary law and the Constitution as well asinternational law.In chapter twelve, Bennett discusses the customary law applicable tosuccession. The issues covered include rules of succession, wills, administrationof estates as well as law reform. Under law reform, Bennett discusses variousconstitutional issues that mandate law reform in this area of customary law.In particular, Bennett criticizes the infamous decision in Mthembu v. Letsela8and suggests that the Court overlooked many factors that an analysis of unfairdiscrimination should have taken into account. He argues that the Courtshould have asked ‘‘whether customary-law differentiation on the basis ofgender and legitimacy was compatible with human dignity, which is theprinciple feature underlying the right to equality’’.9 More importantly,Bennett notes that the Court paid no attention to the best interests principlewhich must inform all matters relating to children’s rights. In this regard,one may only hope that efforts by the South African Law Commission inreforming this area of law will incorporate all the relevant constitutional aswell as international law principles.4 Bennett, 2004, p. 127.5 See s. 16(1) of Schedule 6 of Act 108 of 1996.6 Bennett, 2004, p. 142.7 Bennett, 2004, p. 178.8 2000 (3) SA 867 (SCA).9 Bennett, 2004, p. 361.272 Book Reviews [2004] J.A.L.The final chapter deals with the customary law relating to land tenure andconsiders issues such as customary tenure, transfer of rights, conflict of lawsand reforms under the Constitution. As in the rest of the book, the chapteradopts a comparative outlook: between customary law and common law aswell as the customary law of other jurisdictions. A considerable portion of thechapter is devoted to constitutionally sanctioned land law reform which isaimed at remedying years of racially motivated land policies. In this regardcustomary land law may come into prominence once more as persons orcommunities that had had their land disposed of under apartheid laws regaintheir proprietary entitlements.In conclusion, Bennett’s book deals with various issues relating to custom-ary law in a succinct and scholarly manner. It should prove a good startingpoint for researchers in the areas considered. It is also useful for law studentsand those interested in the development of customary law.C. Grant Bowman and A. Kuenyahia, Women and Law in sub-Saharan Africa,Accra, Sedco Publishing Ltd., ISBN 9-9647-2235-4, 652pp., £29.95. Avail-able from Africa Books Collective, Oxford.This book is a collection of excerpts dealing with various aspects of womenand law in sub-Saharan Africa. The material is arranged into eight chapters,dealing with family law, women’s access to land, inheritance law, women andreproduction, sexual violence against women, domestic violence, employmentdiscrimination and women in politics. The strength of the book lies in the factthat each chapter draws from wide-ranging perspectives and jurisdictionsacross Africa. For example, chapter three, which deals with women andinheritance law, proffers material and perspectives from Nigeria, Zambia,Tanzania, Kenya, Zimbabwe and Ghana, as well as discussions of mechan-isms under the African regional human rights system. This eclectic format isreflected in the rest of the chapters.The diversity of the sources of the material is also mirrored by the type ofmaterial as well as analysis, and includes statutes, court judgments andacademic commentary. This multiplicity of sources and perspectives servesto highlight the intersectionality of legal issues that affect women and otherdynamics that are operative within their communities, such as religion,culture, structure of legal systems, and politics, to name but a few. It demon-strates the many and often multi-faceted approaches relating to issues inwomen and law in Africa. Furthermore, the arrangement of the materialallows for a comparative overview of the legal issues, difficulties, analysesand solutions that affect women. The book should, therefore, prove an excel-lent teaching resource in the area of women and law in Africa and should be ofrelevance not only to those studying law but also anthropology, sociology,area studies or gender studies.THOKO KAIME** Ph.D. candidate, Department of Law, SOAS, University of LondonVol. 48, No. 2 Book Reviews 273Martha S. Tumnde, Motor Vehicle Insurance in Cameroon, Njikam DesignHouse, Limbe, Cameroon, 2003, xxxi þ 265 pp. þ appendices, ISBN9956-26-024-x.In 1916 France and the United Kingdom divided the former Germancolony of Cameroon into two parts and, as the author explains, this officiallymarked the beginning of ‘‘the duality of Western legal systems which thepeople of Cameroon have since experienced and to which they remain subjectto this day’’.Most of West Africa was colonized by the French and British although notby the dual control method seen in Cameroon. In Cameroon French law wasapplied to that part under French control and English law dominated theBritish territory. In 1961 the two territories re-united to form the FederalRepublic of Cameroon under which each territory (now federated state)maintained its system of law. In 1972 the United Republic of Camerooncame into being without abolishing the dual systems of law.The present book explains this background and the evolution of Camerooninsurance law in Chapter 1. The chapter finishes with an explanation andintroduction of what then becomes the heart of the book, namely CIMA.This refers to La Conference Interafricaine des Marches d’Assurances, whichin 1992 created an integrated organization of insurance markets. The 14member states of this organization are French-speaking former colonies ofBenin, Burkina Faso, Cameroon, Central African Republic, Chad, IvoryCoast, Congo-Brazzaville, Gabon, Mali, Niger, Senegal, Togo, EquatorialGuinea and the Comoros Islands. CIMA produced a Code (1995), the purposeof which was to provide a supranational organization with authority to executemeasures and issue binding decisions which individual states would not neces-sarily have the assets and motivation to carry out. The Code has two mainbodies of rules. One regulates the insurance contract while the other applies tothe conduct of insurance companies. It is clear from the wording of the varioussections set out in the text that advantage has been taken of using reforms seen inboth French and (to a much lesser extent English) insurance law and super-vision in recent years. However the author stresses that an effort has been madeto tailor the Code to what is seen as prevailing local conditions and realities.The Code had only been published in French at the time of writing the book.The book has 11 chapters. Seven chapters are concerned with core principlesof insurance law: Chapter 3 (Formation of the Contract of Motor Insurance);Chapter 5 (Insurable Interest); Chapter 6 (Principle of Utmost Good Faith);Chapter 7 (Insurance Intermediaries); Chapter 8 (Compulsory Motor Insur-ance); Chapter 9 (The Principle of Indemnity); and Chapter 10 (Settlement ofMotor Vehicle Insurance Claims). The remaining chapters provide the rele-vant background to the subject of motor insurance law and help to give acomprehensive picture of the state of the motor insurance market in Cameroon.One criticism would be that many references to English insurance law areeither outdated or not up to date. Thus reference to the Insurance Brokers(Registration) Act, 1977 (wrongly referred to as the Insurance Brokers (Inter-mediaries) Act) makes no reference to the fact that the Act was repealed bythe Financial Services and Markets Act, 2000. This 2000 Act is not mentionedat all when one might have expected, as part of the comparative approachthat runs throughout most of the book. It would have deserved inclusion in274 Book Reviews [2004] J.A.L.Chapter 11 entitled Government Control and Supervision of Insurance Com-panies. Similarly, in a book devoted to motor insurance, reference should bemade to the 1988 Road Traffic Act and not the 1972 Act. Important changes toroad traffic insurancehavebeenbrought about bya raft of EUdirectives none ofwhich receive mention. Some occurred after the date of this publication butthere are those that appeared earlier and could have been usefully included.Chapter 6 deals with the Good Faith requirement in insurance law. There isto be found in this topic a considerable divergence between English and Frenchlaw, with the latter providing a considerably more pro-insured stance. Camer-oon law follows French law (see pp. 98–105). However the House of Lordsdecisions in Pan Atlantic v. Pine Top (1994) and The Star Sea (2001), which intheir own ways made some inroad into the harshness of English law, receive nomention. Despite these inroads, this reviewer heartily agrees with the authorwhen it is stated that ‘‘if there is any area of the Common Law where Englishcase law must be adopted sparingly, that area is the law of insurance’’. Thatgeneral view is expressed in Chapter 7 dealing with insurance intermediaries.Here it is pointed out that in English-speaking Cameroon the English cases thatallow insurers to off-load their responsibility for the defaults of their agents ontothe shoulders of the unsuspecting customer are (unfortunately) followed. Theauthor stresses that in consumer motor insurance many insured are poorlyeducated, and even if educated then the product itself is not easy to compre-hend and may well be sold by those who are commission driven rather thanproviding the customer with the technical help that they often need.Chapter 8 deals with compulsory motor insurance in detail and provides acomprehensive review of the Motor Insurance Fund that provides similar coverto the work of the Motor Insurers Bureau in the United Kingdom. Facts andfigures provide a glimpse of the importance of the fund, but only up to 1986.Chapter 10 is concerned with the settlement of claims. This is an interestingchapter and compares the no-fault/fault arguments. Cameroon has decided togo along with the French no-fault approach. What is especially interesting tothose familiar with the costs and delays of English motor insurance law, despitethe Woolf reforms, is that CIMA Code has brought about massive improve-ments in this area, reducing the average period of settlement in one set ofexamples from 41 months down to 6 months. The chapter also provides inter-esting details of how the no-fault system works in the allocation of damagesunder the various headings. As the author explains, this new approach with itsstreamlining and use of scales, table and ceilings has warded off the excessiveawards of damages that threatened the survival of insurance companies.The author concludes that the introduction of the CIMA Code has donemuch to provide economic co-operation and integration and stability ininsurance in the geographical region covered by CIMA.The declared aim of this book ‘‘is to promote insurance knowledge andgeneral awareness in our community of motor vehicle insurance.’’ That aimhas been achieved. This is an interesting and well-written book (and wellproduced by the publishers). The, at times, strange time warps mentionedabove can easily be dealt with in a later edition.RAY HODGIN**University of BirminghamVol. 48, No. 2 Book Reviews 275

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