n a t iv e la w ,W W H ib » ■ — . . M M

Transkei Proclamation 145 of 1923_*

Seotion 104, Native Law may be applied in o&aea >etween 3at;>y&e In civil c;xart?at dlsoret.ixi

, . ofDourTT(1) Notwithstanding the previsioiB of the Annexation Acta

it ahall be in the discretion of the court in civil suit$ ot pro­

ceedings between natives involving questions of customs followed

by natives to decide such questions according to the native law

applying to such customs except in so far as it shall be repealed

or modified by Act of Parliament or Governor’s or Governor-

General Js Proclamations

(2) Where the parties to a suit reaida in areas inhere

different native law* are in operation the native law, if any,

to be applied by the court shall be that prevailing in the place

of residence of the defendant.

NATAL (l) The Code of Native Law as contained in the Schedule

to Law 19 - 1891.

(2) NATAL ACT 49 of 1898,

8ection 80,

All civil Native cases shall be tried aocorating to

Native Laws, customs, and usages, save so far as may be other­

wise specially provided by law, or as may be of a nature to work

some manifest injustice, or be repugnant to the settled princi­

ples and polioy of natural equity; except that all civil oases

arising cut ®f trade ^sansaoiiioan of a nature unknown to native

law shall be adjudicated upon according to the principles laid

down by the adin&ry Colonial law in such cases.

Transvaal law 4 of is85.

Section 2 ,

The laws, customs, or usages hitherto existing among

the nativse shall continue to remain in force in this Republic

as long as they have not appeared to be in conflict with the

general/

general prinoiplea of civilization reoognized in the oivilized

world.

SSCTION 4.

Every CoKmiaaioner or Sub-Conxiasioner for Natives, or

native Chief, appointed by the Government ahall have the power to

enquire into and decide all civil disputes between native and

native belonging to the tribe or to the neighbourhood over which

he ha3 been appointed, and also civil matters preferred before

him by white parsons against any native belonging to a large or

savage tribe within his district or division* In dealing with

this last-mentioned matter the Commissioner or Sub-Conmissioner

shall oonduct the »ame as .far as it is possible in accordance with

the laws of the land enacted for the oivilized population.

6B0TI0N 5.

tives shall be dealt with according to the provisions of this

law and not otherwise, and in acoordazioe with native laws at

present in use and for the time being in fcroe, in so far as

the same shall not oocasion manifest injustioe or be in oonfliot

with the accepted principles of natural equity.

criminal oases. He and the natives at STitzieshoek shall, like

all other inhabitants of the Orange Free State, be subject to

the Criminal Laws of the State,^ . \ n • t n M

SECTION 4.

the Chief appointed over the said tribe, who shall deoide thereon,

provided, however, that he ahall in no oase inflict corporal

punishment :*>*

All matters and dispute* of a oivil nature between na*-

ORANGE FREE STATE* Law 9 of 1898.

Tha Native Tribe tffltzieahoek.

SECTION 3.

The Chief shall have absolutely no jurisdiction in

The following disputes arising between the tribe of the

late Paulus Mopeli shall in the first instance be brought before

(a) All civil dispute* regarding family matters, disputes

with regard to land, cutting of reed grass, ploughing of land*

grazing of cattle, and all auoh matters appertaining to the

social life of the life of the natives, which are not in con­

flict with the general principles of civilisation.

(fc) All disputes of a oivil nature Where the amount in

dispute does not exceed the sum of £10 sterling, or where the

question in dispute can he estimated in money value at £10 sterling.

Parties not satisfied with the decision of the Chief shall

have the right to appeal to the Commandant, who shall hear the

oase again and shall decide thereon as a court of equity•

of

m i t t s ok * A ? m iro? u m it t r mmtm, i , « . ft«e to *■&!? 3 of 3*9?

70 Tf aay who ahall ao% durlt# His llfatlaa haw# ooil-

traotad a lawful starrlnga, or who,batng vra«orrlad, shall

not ba tha offat>rlttg of pureata lawfully m&jrrtatf, shall

dia int*«ts.ta. hi* «a:t*ta shall b* *id»ini«t**a<! aad Ata-

trlbu**-! -tcoordln*’ to the cuwtoaet »n<t u«a§ca* of the trlba

as* people to whiah ha beltvngedj and if any fcontroweralea or

craegtioa* afeall #ri4a *: n p hits *«l&Uwa.x of ^putad rel«

'titMi reres?rdin$ tha distribution af tha >5*af##rty laft

by hl«, m?h owitroysTslaa shill b? daterainad ia the apead-

< a fit and le*at awnan lwa *sann*rs aanaletfftt with real and

rtNtHRtial jugtloa Hasnrdtag to native ua&^ta »a4 ouatoaa

by the f&K&ftioaa? for ftatirtft of tha district in which

the d*e*ft«ed ordinarily raaidad at th* time of hi a death,

who shall eall or avv^a the partiea oonosrsiad before hl»,

*!vf talt# *%nd reo*>rd sfMiM# of ***oh rwtj.w* *t*a$#n a*ws

auatowft, ahloh «*vldflao# h# w r MRtlOMfct flfan M§ own

vaowladets **»<* m **T doal«tai of a GmHi*4km*r* for Natives

wndff tfcta aeetion shall b* rubjeat *0 an a:.*pa:>J to the

u*>sa»a Court at tha IffcgtftK&t of aay per can &1 laglng aa lot*

arati in the distributer of pfftgNNrty*

71. Letters of «ds»lnl?t**Uo« fro# tha vaster ahajl aot ba

o#*oaasary for nor shall tha Uaatar b«> ealUd tipaa to Inter­

fere la, tha Administration and distribution of tha estate

cf eey r»«fc unl*a* tha tifnrx.issioasr for natives

'’•hall rep?rt tfc*.t it le tha deaira of tha persons concern*

ad in tha estate, atocnrdiag to am va vsagat na4 eaatoas,

that a* ataoutor dative ^ a ld ba appointed.

112, *hs establishment of the *tkohlo« house and of ths section

of the kimal affiliated of junior to It, i« unusual *aong ooa-

aon^m, sad Is principally confined to tho kraals of Chisfs,

and others of position sad substance.

115. Kraal* my be coetpoeed of housss not known as tbs *qadi*

or *kohlo*. In such oass tho housss whara not affiliated aro

Independent of each other, «uid rank according to tho date of

tbalr astabllabraant by narriage. Tn kraals thus composed should

tbo chief wife die during her husband's Ilfs tins, tho wife nsxt

in rank to hsrt beconee the ohlsf wife, but without prejudice to

tho ohildrsn, if any, of tho dsooassd wifs; and ahrnld tbsrs bs

a failure of heirs In any junior house, tbo hoir of tho ohlsf

houws *> scones tho hoir of *ueh hsl rises house.

1^3. succession and inheritance In tho fanllles of hersditary

Chi of s in Charge of triboa, arc Asteralasd In Ilk* msmor as

with conaonere, aro opt as to tho house of tho chief*wife. Tho

ohlof wife of such Chi of s is ganerally taken later in llfo than

tho first or sseoad wivs* of tho chief. Ror •10bolat Is

usually nads up wholly or in part by tho tribe, and bar status

publicly announced. flhalf Wivss of Chi of s generally own and

hold property In Cnttls, tho rift of thslr fathers, and hold

it ind uao it at will In ths husbnud** kraal, with dssosnt

thoroof to the hoir of their house.

l?*v. tn ths event of a hereditary Chief of a tribe dying,

bsln$£ ths husband of ssraral wives, but not having taken bis

ohief wifs, it Is ths doty then of the elders of ths tribe,

to asasmbls end deoide upon and confer status up-m ths widows,

appoin in# the ohief wife, the*qadl$ the*kohlo%

and minor houses, or in other approved and lawful

manner firing the rank of eaoh house. The wives of a hared*

it iry Chief are not glvan statue until the assumption of a

chief wifs. Ths status of the wives or widows of hereditary

Chiefs having thus been declared, succession and inheritance

are upon the sane lines aof principles as in the case of

cosaoners*

- 1*5 -

125 with n&tivee other then hereditary Chiefs ie chart# tribaa,3k 1

the wife first serried If the chief wife, her haute ie the

•UKShXuakwlu* end her el&eet «ow 1« hoi*, not only to H f social

hwm® property of the "indhlsftkultt", bat to «U tHe kraal property*

126. fiY«« "worried eukeermnt to the firet wife, rank according'

to «&* fcr»&l status, pubnoly «jmou»e*d *» the d*y «f warringe.

129, Tn 3he *vowt of a wide* electing to folio* the cantos* of

Hto»*gfaiiP# th# ifiaue of atob & union remits la her house &9 if

bom (luring th# U lt tine of he* d«es*u**d ftuebnad for th* purpoeo

of inheritance and the likej £*prorided theit na gush union shall

he « U r «1 ex recognised, ehould any ttftle iesrae #* the deceased

husband be living at the ««a of hie dmt]j7 $

# proviso re p lie d by eeotion h ;t«t **o, i£3$*

IJ2. KTt&i m,f Include f-milie* nst related in th« 'ray of suoeeee-

ion i.e. *«t*tii#fi e* foreigners* These «m7 be fc#<? .ysedeted at the

entrants to the kr^al hut are <r*it* outsid* «n#o«»£i<au

143, Although sha nay w &tig& nad hold property for the use of

he* house, * lottal* oaa neither iaheri* or ba>,,**-*tN.

"Z.-BRITISK KAP^RAHIA:- ^

Ordinance 10 of 1364, ^ i t ih otill l-.a-a- tira force--of 0 ^

fLaxiy recognise^ for the purposes of succession to property by

native custom the validity of native marriagea not contracted

during the subsistence of a legal marriage; and where a man

die leaving a widow or issue of a legal marriage, and likewise

a widow or issue of a union contracted by native custom

•previous to the legal marriage, hid estate 4rs administered

according to native custom; the widow or issue of the legal

marriage being placed in respect to the property of the

deceased in the same position as the widow or issue of the

native marriage.

Property which descended to a deceased, or came into

his possession by virtue of the customs of his tribe, remain^X#■i

entirely unaffected by a legal marriage. So far as other

property concerned, the ordinary lk" y n plc2.ee only v.-iere

the deceased leniei* a widow or i ssue of a legal raarjriage,

____ . - 9 -

and not at the same time a widow or issue of a n a t i v e

marriage contracted previously to such a legal marriage.

Power of testamentary disposition exist$f''.rnere the

deceased haj^ left no widow or issue, but only in respect of

other property than that descend ed by tribal ..custom.

Except for the above prbyi;sions all property left

by a deceased person distributed in accordance with

native custom. „ 1

^ . x x r j

J o M u \ y

" y y• - 1 4 -

WILLS OF II AT IVES

2TATAL - Act 7 of 1895.

Sect. 3. A native subject to native Law may "by will dispose

of any immovable property he owns, subject to the pro­

visions following.

Sect. 4. Such will shall "be read over and explained to the

testator "by a Magistrate, in the presence of tT'o wit­

nesses, Such will shall "be signed "by the testator or

/by someone in his presence, and 3uch signature shall "be

made or acknowledged in the presence of two competent' /

witnesses present at the 3&me time; and such witnesses

shall in the presence of the testator affix their sig­

natures.

Sect. 5 . - The Magistrate jbhall record in writing upon some part

of the will a certificate that he has caused to be

explained in his presence, in the presence of the tes­

tator and the two witnesses, the will to the testator,

and that the testator appears to be fully capable of

understanding, and to understand and intend, the pro­

visions of the w ill.

Sect. 13. -If a native not exempted from native law shall die

intestate, his estate shall be dealt with under law, /

y 19 tof 1891, even though the heirs hold letters of

HEjSiaa 0? SUCCESS! PIT LAWS

1. Testate Succession.

Unknown to pure Native Law.

CAPS:- Under the Glen Grey Act, the allotment and othfty immov­

able property cannot be left by will.

S_H KAx:FRARIA:- A will is only possible as to property not

acquired by,native custom, and where the native leaves

no widow or issue.

- TRA1TSKEI -

t' ■ •• - 15 -

. fr/rr • •

Testate Succession

IRANSKBI:- LIovab 1 ea alloted under native custom oarmot be

devised will, nor can the allotment.

NATAL:- Immovable -property can be d e v is e d "^ -rill, and that

subject to Law 7 of 1895

TRAfR?frAAL & 0. S . See Proclamatio ns. a >j * -

2 . Intestate Succession.

C A P E Native La"r applies under Act 18 of 18S4. where the

deceased was domiciled in a proclaimed native location.

BRITISH KAFPRARIA:- Colonial Law only applies where there is

only a, widow or issue by Christian Marriage, and as

to property not coning by tribal custom.

GLS1T GREY ACT;- The allotment and other immovable property

descend according to the table set out; movables not

devised by will go according to Native Law.

NATAL:- Native Lav: applies.

T R A N S V A A L I n the case of persons not lawfully married, or

their chiIdren, native law applies.

O .F .S •- Ward Moroko:- If there is no will and no contracti n iTn ■ J L — J f c ■ ■ ■ ■■ ■ ' » " ........... 11 ■■

in native estates, o ne half goes to the husband1 ..a

heirs. and one half to the wives. By the Marriaget

Act of 1899, children of heathen parents not legally

married may inherit property lawfully acquired by

such parents.

28. Nothin, contained in this la-* shall prevent

children bom of heathen parents, though the litter may

not have beer, legally i£2,r~3ed, from t iding by "ay of

inheritance the laT'fullv ac^ui^ed properties of such

parentage, -he e it shall be proved th^t^such parents

regarded one another as husband ar4 fife , and lived 7?ith

one another as such. And nothing contained in this law

shall prevent unmarried heathen parents as above from

holding and exercising the/same jpLshts over their children

that they -ould have had, if such children had been born

in lawful -wedlock, provided always that in the event of

the mother bein? separate^ from or deserted by the father,

the mother shall alone have the risrht to dispose with re­

gard to her 0 to c\iild^:en, but should the mother have

deserted the father, the father shall retain the right of

control over his ora children.

to the same righto as heirs of their father or of relatives on

their father's aide, provided, however, that nothing herein

contained shall prevent any native from disposing by last will

over his estate or any portion thereof as he may think fit.

Unless excluded by lawful contract community of property

shall be considered to eziut in all the estates of natives,

and in cases of polygamy the community shall be so applied

x estate shall be distributed in • ©with.

b , Where the father has lived i?n a state of polygamy the

fact that one of the -7iveo was married to him with duo ob­

servance of the solemnities of the Chrictiau Church shall

give no preference to the children bom of such marriage

over the children begotten by him in cohabitation with other

wives according to native custom, as regards the inheritance

/of his estate.

5- In all cases of'.inheritance of estates of deceased

natives with regard tV which no provision has been made,

the High Court shall have the power to order a distribution

that one-half of the ejtate uha d to belong to

the husband and the other half ■ intly, each

being entitled to an equal port; e of decease the

in accordance with justice and equity.

*

*

NATAL INHERITANCE and SUCCESSION.

Native Law Code. Law 19 of 1891 Schedule.

•hip

living on the

in kraals or :

Section. 13. The words " Kraal Head" denote t%e head of a family,

and the posse)»sor or occupier of the kraal or kraals containing

such family, either in his own right or by the right of guardian-

The te;'m kraal head shall also include the heads of familiei

Mission Stations or private land^, whether living

n separate dwellings, t 1

Seotion 14, Ti e word "Kraal" denotes the itic establishmentthe dooaal

and ordinary jlace of residence o^J&tive»T It is subject to

and under the Icontrol of a "Kraal Head£*-and may consist of one

or more houses I For the purposes of /this Code, individual

dwellings occupied by Natives/on Mission Stations, or private

lands, or elsewhere, are id be .defied kraals.

15, The; word "Inmates* wjien used in connection with a

kraal, denotes the p&iVons usi&lly residing therein, and subject

to the kraal heaji.

16, Kie Word "House" denotes the family and property,

rights and statua* which commence with, attach to, and arise out

of, the marriage <>f each woman. It also includes the dwellings

used and occupied by the Natives, commonly called huts,

17, The words "Kraal Property" denote all the property

in a kraal or kraals being the absolute property of the

head. They do not denote property specially apportioned or

gifted to any of the houses of the kraal or kraals, nor to the

property of an inmate of the kraal, not related to or belonging

to the family of the kraal head.

18 , The words "House Property" denote all the property

vested in an pertaining speoially to the several houses in a

kraal. House property may be acquired by donations or apport­

ionments, and by the "lobolo" of the girls of the house,

19 The word " Indhlunkulu" tThe great house) denotes the

chief house in a kraal.

30 . The word ■iga/dU"1 denotes the chief house oa the

hand aide of the kraal, as viewed from the"IndhlucjfuJu" lockingtowards the gate,

31, The word "Ikohlo" deno+ea the chief house on the right

) r 3 -hand aide of the krafe.1, as viewed from the /indhlunkul/" looking

towards the gate, v—'

113. The establishment of the i!Ikohlo1' house and of the section

of the kraal affiliated or Junior, to it , is unusual among com­

moners, and is principally confined to the kraals of Chiefs, and

others cf position and substancea

115. kraals may be composed of houses not known as the "qadiB

or "Kohlo". In such cases the houses, -nfoere not affiliate'! are

independent of each other, and rank according to the date of

their establishment by marriage. In kraals thus) composed, should

the chief wife die during her husband's life time, the wife next

in rank to her, becomes the chief wife, but without prejudice to

the children, if any, of the deceased wife; and should there be

a failure of heirs in any junior hou3e, the heir of the chief

house, becomes the heir of such heirless house.

123. Succession and inheritance in the families of hereditary

Chiefs in charge of tribes, are determined in like manner as with

commoners, except as to the house of the chief wife. ?he chief

wife of such Chiefs id generally taken later in life than the

first or second wives of the Chief. Ilex nobolo" is usually made

up wholly or in part by the tribe, and her statu©' publicly

announced. Chief wives of Chiefs generally held and own pro­

perty in cattle, the gift of their fathers, and hold it and use it

at will in the husband’s kraal, with descent thereof to the heir

of their house.

134. In the event of a hereditary Chief in Charge erf a tribe

dying, being the husband of several wives, but not having taken

hi3 chief wife, it is the duty then of the elders of the tribe,

to assemble and decide upon and confer status upon the widows,

sppointing the chief wife, the "qadi", the kohlo",

and minor houses, or in other approved and lawful manner

fixing the rank of each house, Tho T«iveo of a hereditary Chief

are not given status until the assumption of a chief wife.

Natal Inheritance and Suoceaaion (Contd).

- 3 -

The status cf tre wiveb or vridc\.a or hereditary Chiefs having thua

been declared, succession and inlieritance are upon the aara© lines

and principles as in the case of CQKcionero „

125. With Natives other than hereditary Chiefs in charge of

tribes, the wife first married is the chief wife, her house is the

indhlunkulu" and her eldest son is heir, not only to any special

house property of the Hndlilunkulu", but to all the kraa^ property.

126. Wives married subsequent to the first wife, rank according

the kraal status publicly announced on the day of marriage,

132‘ Kraal may include families not related in the m y of

succession i .e retainers or foreigners. These may be accommodated

at the entrance to the kraal but are nuite outside succession.

^ 7 ----------------------------------------------------------

NATAL. ACT No. 1 of 1901.

S&CT. 1, Any question ^lich shall arise as to ^'.o shall be

deemed to be the general heir( as defined in Section 98 of the

Schedule to Law 19, 1891) of a deceased chief in charge of a

tribe, Aether hereditary or otherwise, shall be decided by the

Supreme Chief, whose decision shall be final,

3 , Before deciding any such question, the Supreme Chief shall

cause enquiry to be made by three advisers, to be appointed by the *

governor—in-Council, who shall report to the Supreme Chief through

the Secretary for Native Affairs, Such advisers 3hall be selected

for their knowledge of the customs, languages and laws of the

Natives of this Colony.

3 . No action shall be brought in any court for deciding any

question or dispute as to such heirship as aforesaid.

k i M , ~ l u Z fc

jvVW». ’*kAX

fcl/V

NATAL NATIVE LAW CODE* LAW 19 of 1891. Schedule.

Sect. 140. Some who refuse to be controlled by the kraal head,

or who have disgraced or are disgracing their family, or

for other sufficient cause, may be disinherited by the

kraal head, acting in 'conjunction with, and subject to the

sanction of, his Ciiie.". Notice of the inquiry to be held

before che Chiei must be given to the son, who may appeal

against any decision disinheriting him to the Administrator

of Native Lay ( i . e . Magistrate). Every case of disinherit­

ing must be notified to, and registered by the Administrator

of Native Law, and from the date of such registration, the

kraal head is relieved from all liability for any action

of the disinherited son, but without such registered notice

the kraal head remains liable in accordance with the pro­

visions of this Code in that behalf, for the son's acts,

engagements, and liabilities, Re—in3tatement of 'dis­

inherited 3on3 may take place upon the application of the

kraal head to the Chief.

141. Any son 3o disinherited becomes absolutely without

status, voice, or claim in regard to the family or property

of his house or father's kraal.

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Collection Number: AD1715

SOUTH AFRICAN INSTITUTE OF RACE RELATIONS (SAIRR), 1892-1974

PUBLISHER: Collection Funder:- Atlantic Philanthropies Foundation

Publisher:- Historical Papers Research Archive

Location:- Johannesburg

©2013

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