Study Unit 6 - Lecture 3 Flashcards
(28 cards)
What law governs trials in African customary courts?
African customary law of evidence, per section 20(2) of the Black Administration Act 38 of 1927 and Rule 1 of GN R2082 of 1967.
When does general South African law of evidence apply in customary cases?
On appeal to the magistrate’s court.
What are the two defining features of customary court procedure?
Inquisitorial procedure and free system of evidence.
What does the free system of evidence mean?
All evidence is admissible and judged on its merits, not on exclusion rules.
What does the inquisitorial system mean in customary courts?
The court actively questions parties and witnesses to determine the truth.
Is there a “burden of proof” in African customary law?
No, because the court may use traditional methods like consulting a diviner.
What happens if evidence is inconclusive in customary law?
The court continues to investigate; there is no “absolution from the instance.”
What standard of proof applies in customary courts?
There is no “beyond reasonable doubt” or “balance of probabilities” standard.
What is the most valued form of evidence in customary law?
Direct evidence, especially eyewitness testimony.
What is the ultimate goal of a customary court hearing?
To discover the truth and restore harmony within the community.
Is hearsay evidence admissible in customary law?
Yes, though it holds less weight and must be supported by other evidence.
What is circumstantial evidence, and when is it used?
Indirect evidence supporting guilt—especially useful in seduction or adultery cases.
Can the court generate its own evidence?
Yes, through questioning and inspections in loco.
Who may give evidence in court?
Anyone present, including the public, not just parties and witnesses.
Name a common presumption in customary law.
A child of a married woman is presumed to be her husband’s child.
What is judicial notice in customary courts?
Acceptance of commonly known facts without proof (e.g., local geography or customs).
How are admissions handled in civil cases?
Admitted facts are accepted as proven; cases start with informal resolution attempts.
What happens if an accused admits all facts in a criminal case?
Immediate punishment is imposed without further hearing.
What is extraordinary evidential material?
Evidence from traditional healers (inyanga/ngaka), using rituals to determine guilt.
Is the traditional healer’s testimony heard in court?
No, the finding is communicated through messengers and accepted as final.
Who is considered competent to testify in customary law?
Anyone, unless insane or intoxicated.
Can spouses testify against each other?
Yes, but such evidence usually requires corroboration.
Can chiefs and councillors testify?
Not formally, but they may share their knowledge with the court.
What if a party cannot attend court?
They must notify the court in advance; the trial may be postponed.
