Customs are rules that become binding in the course of time through observance by the community in question. They are not necessarily written down. In other words, the community becomes accustomed to regulating its relationship in a particular way, with many of its members regarding that particular way of doing things as legally binding. There are two types of custom:
- General custom, which applies in such fields of law as banking, commercial law, international trade law and so on.
- African customary law, which regulates the life of indigenous Africans.
As regards general custom, a custom is legally binding if it satisfies four requirements:
- It is reasonable.
- It is long-binding, i.e., clearly established.
- It is uniformly observed.
- It is certain.
A good illustration of the use of custom as a source of law is the case of Van Breda v Jacobs. In this case, the court upheld a custom in the fishing trade whereby persons involved in fishing could lay a claim to fish in the sea not yet captured by their nets as long as they were in the line of their nets.
The onus is on the person who relies on the existence of a custom to prove each of the four requirements specified above. Problems are likely to arise with some of the requirements. For example, given the varying conceptions of reasonableness, different courts may come to opposite conclusions about whether or not an alleged custom is reasonable. According to Voet, a custom is not reasonable if it is contra bonos mores (contrary to public morality). Regarding the requirement that the custom be long binding, in the sense of having been observed for a long time, there is no minimum period except to say that ‘the custom must have existed for a sufficient length of time to have become generally known’. One such example is the custom of bankers charging interest on overdrawn accounts, a custom that has been given the force of law.
African Customary Law
African customary law is a specialized form of law in Zimbabwe. Zimbabwe has what is termed a dual legal system, being comprised of general law (Common Law in Zimbabwe and statute) and African customary law. This means that in certain matters, there is a potential application of two different systems of law with different legal consequences.
A person may or may not be governed by African customary law. Thus, X may be governed by customary law and thereby subjected to the consequences of that law while Y may be governed by general law with different consequences. This is what a dual legal system entails. There are also matters over which some questions are governed by customary law and not general law.
Section 89 of the Constitution of Zimbabwe sanctions the existence of this dual legal system. Whether or not customary law applies in a particular case is governed by the provisions of the Customary Law and Local Courts Act (Chapter 7:05). In terms of this Act, customary law applies under two circumstances, namely:
- Where the provisions of a relevant statute say so.
- In the absence of a relevant statute, by applying the ‘choice of law formula’ in Section 3 of the Act.
A statute may specifically provide that customary law shall apply in a given set of circumstances. The best example was the old Section 13 (now repealed) of the Customary Marriages Act (Chapter 5:07) that provided as follows: Marriage between Africans in terms of the Marriage Act shall not affect the property of the spouses, which shall be held and shall devolve according to customary law.
There are very few statutes that impose the application of customary law, thus in the majority of cases reliance has to be placed on applying the provisions of Section 3. An analysis of these provisions yields several interesting features.
First, customary law applies in civil matters only. It does not apply in criminal cases. In S v Matyenyika & Another, the High Court dealt with a case involving the crime of incest (prohibited sexual intercourse between persons in certain defined relationships). It set aside the conviction of the two cousins who, according to customary law, were prohibited from having sexual relations. There was no similar prohibition under the general law (common law). The Magistrates Court had convicted them on the basis of the prohibitions of customary law. In other words, it applied customary law to determine whether or not the crime of incest had been committed. The High Court set aside the conviction on the basis that customary law did not apply in criminal matters.
Malaba J (as he then was) said: Customary law is therefore not the appropriate test to apply in deciding whether the crime of incest has been committed or not …. Customary law should therefore not have influenced the prosecution in deciding whether to charge the accused with the crime of incest, nor should it have influenced the magistrates in deciding that the crime had been committed by the accused.
Second, customary law applies where the plaintiff(s) and defendant(s) agree that it should. The only point to note here is that the agreement must be genuine. The agreement may be either express or implied, i.e., where, with regard to the nature of the case and the surrounding circumstances, it is reasonable to assume that the parties are in agreement.
Third, where there is no agreement (whether expressly or by implication), the courts may impose the application of customary law, but only on the basis that it ‘is just and proper’. In deciding this, the Act requires the Court to consider the ‘surrounding circumstances’. These are defined as including (i) the mode of life of the parties, (ii) the subject matter of the case, (iii) the parties’ knowledge of customary law and/or general law, and (iv) the closeness of the case to general law or customary law. The court makes an overall judgment of whether or not it is ‘just and proper’ after weighing up these four aspects. In general, the decision is at the discretion of the trial court. An appeal court will not interfere with the decision, even where it might form a different opinion on the facts. It will only intervene and change the decision of the trial court if, having regard to the facts, the conclusion reached is one that no reasonable court should have come to.
A case that illustrates the application of customary law where there is no agreement between the parties and where the court imposes it on the basis that it is ‘just and proper’ is Lopez v Nxumalo. Here, the appellant was a white Portuguese man and the respondent was a black Zimbabwean woman. The appellant had seduced the respondent’s daughter and the respondent wished to sue him for seduction damages under customary law. The appellant contended that he knew no African custom and was not acquainted with African customary law. He thus sought to have the matter dealt with under general law and not customary law, arguing that the community court had no jurisdiction to hear the matter. The community court rejected his arguments and held that customary law applied and therefore that it had jurisdiction. The appellant then appealed to the Supreme Court but his appeal was thrown out. The Supreme Court noted that the fact that the appellant had no knowledge of African custom and customary law was merely one of the factors taken into account. That factor had been weighed against the fact that the respondent did not understand general law and that she and her daughter lived a life guided by customary law. It further noted that the community court had weighed up all these factors and come to the conclusion that it was just and proper for customary law to apply. Consequently, it found no basis for interfering with that conclusion.
Fourth, the choice of law formula in Section 3 applies ‘unless the justice of the case otherwise requires’. The expression ‘unless the justice of the case otherwise requires’ has significance. It means that where the choice of law process yields the application of customary law, but it has been established that the content of customary law would attain an unjust resolution of the matter, general law, not customary law, must be applied, even where the parties have agreed that customary law should apply. This position was clearly articulated by Chatikobo J in Matibiri v Kumire: In my view, the only logical construction to place on the phrase ‘unless the justice of the case otherwise requires’ is that if the application of customary law does not conduce to the attainment of justice then common law should apply…. The phrase, ‘unless the justice of the case otherwise requires’, has remained in all Acts passed by Parliament, including the current one …. What emerges is that for the one hundred years during which customary law has co-existed with Roman Dutch law, it has always been provided through legislation that where the customary choice of law rules were found to be inapplicable to the just decision of any matter in controversy, then in that event, resort should be had to common law principles.
A different type of issue where customary law is still relevant is the succession to chieftaincy. This is governed exclusively by customary law, which is recognized by the Constitution of Zimbabwe. Section 111 (2) requires the president, when appointing a chief, to ‘give due consideration to the customary principles of succession of the tribes people over which the chief will preside’. This notwithstanding, several disputes over customary law rules of succession have been heard in the courts.
Is customary law a bag of rules discovered as a matter of fact or is it a living body of rules that can be developed by the courts? The courts seem to have taken the view that customary law is a matter of fact. In Jengwa v Jengwa, Gillespie J had this observation to make: A judicial finding that customary law has changed to permit an equitable division of marital property may be unattainable, depending on the judicial status of customary law. If its exigencies are regarded as a question of fact, being immutable mores discovered by expert evidence, then a court cannot purport to develop customary law. If it be regarded as a living system of law, changing with the changing times, then judicial development of its principles may be appropriate. That, however, is beyond the scope of this judgment.
- Lovemore Madhuku, , Library, Published: 15 March, 2010, Accessed: 29 September, 2020