Ours is ensuring and “making the common law more readily available”
- We will keep making that subtle irritating noise. In years to come, society will join us. Imagine saying to a guy who is a Professor in English that society shall move away from English. Perhaps, in a move away from English, we gravitate towards Swahili or a language, new, and developed from Afrikan languages of this Country. Would Prof Maoto agree? No, he will not.
- Professor Maoto (not a specific Professor) knows well that English is a colonizer’s language. However, he is rewarded for working hard to master and promote the said language. He will, I take it, want to keep to that English language.
- The same with many Afrikan law Practitioners, and many others in law. We would rather keep to what the Master tells us is good. What is good, including the common law, should not be disrupted.
- Please consider this. In 1973, a Commission was established to contribute to the development of the law. This was during constitutional sin, the apartheid era. Apartheid is a principle of apartness, mainly on the grounds of race. During that time, the envisaged law to be developed could not have been and was not Afrikan Law, such law being inferior. So, you may agree that the Commission, which was established under the South African Law Reform Commission Act 19 of 1973, was to develop non-Afrikan law. The oppressors would not have cared about developing Afrikan law.
- The Commission still exists. It is regulated by the same Act. The objectives of the Commission have not changed. Those objectives in 1973 are the same as those in 2023. They are in section 4.
- As per section 4, the work of the Commission was and is still to research, study and investigate branches of law. No branch of law, as practised in 1973, and now, is Afrikan, with exceptions. Think of Afrikan marriages, as one of those few exceptions. Even with such marriages, examples of undermining this branch of law are:
6.1. Lobola- it is not codified in the relevant Act, and yet it is, in the Afrikan sense, an essential requirement of marriage. In other people’s societies, it may be seen as the sale of women. Approaching Lobola from that lens, it was not to be codified as an essential requirement, and
6.2. adoption- a child married by the family of the husband when the mother of the child is married becomes a child of the husband’s family. The child is married along with the wife and therefore the husband’s child. In Setlokwa, we say- o e hapa le namane, translated in the colonizer’s language, as best we may- you take the cattle along with its baby. During the lobola negotiations, the family of the potential wife discloses to the family of the potential husband that the potential wife has a child, not born of the potential husband. When, in the end, the potential wife becomes a wife, the child is adopted, without any paper involved. Approaching adoption from the common law, codified in legislation, such an adoption is not recognized as an adoption. It is not legislated. Section 211 (3), demands, after all, that Afrikan law should be applied when legislated for.
- Back to the Commission, in the end, its work, during the apartheid regime, was to contribute to European law. An object of the Commission is that it must, amongst others, take steps aimed at making the common law more readily available, see section 4 (e) of the Act.
- Nothing has changed in so far as the mandate of the Commission is concerned. This is sourced from section 4 of the Act. The oppressors have designed what, during the constitutional democracy, should be the order of the day. The constitutional democracy has embraced the oppressor’s legislative design. Imagine what those who descend from the oppressors think of us! Walking cadavers. Shame, laughingly, they possibly say.
- Ours, of course, is a society whose absurdity is not difficult to point out. A commission, which contributes to the development of the law, must ensure that the common law is more readily available.
- It recognizes that the common law is readily available. It has been recorded in writing, after all. However, it must be made more readily available.
- What of section 173 of the Constitution? The section enjoins courts to develop the common law.
- The Commission is, therefore, established, amongst others, to make access to the common law more readily available, and the High Court and others should develop the common law.
- So, section 173 dedicates the resources of the Country to the development of the common law. Section 4(e), on the other hand, enjoins the commission to ensure that the common law is more readily available.
- And, we are supposed to pride ourselves, those of us who are, in being Afrikan lawyers. It does not matter who you are. A Chief Justice, who is the Chairperson of the Commission, is tasked with making the common law more readily available. Not Afrikan law.
- So, the oppressors have ensured that even beyond their regime, the Head of the Judiciary must make sure that the law of the Europeans is not difficult to find. It does not matter who the person is. Once you are in the Commission, yours is to do what the 1973 legislation desires. The common law, per the design of the oppressors, must be central to the legal system. It is, and the oppressors rejoice. We are, as Afrikan law Practitioners, on the other side, oblivious to this.
- It needs not be said, in this work, that the above is further evidence of the fact that we are, as Afrikan lawyers, agents of a system we did not design. A system which does not give respect to Afrikan law. Should one state that section 4 (e) evinces that Afrikan lawyers are captured? The answer needs not be stated.
- And you may imagine, even without stating the answer, that the answer may not please those elected into power. Perhaps, even those who benefit from the arrangement. Fortunately, what we believe to be the truth, we shall state. As recorded above, we do not state, in this work, that we are captured.
- Should we not request Commissioners to apply their minds to the statutorily provided for discriminatory orientation in the relevant Act? In applying their mind to section 4 of the Act, also do so in so far as section 173 of the Constitution is concerned. That discrimination, we may say to Afrikan Commissioners, is in the form of the development and promotion of the common law to the exclusion of the Afrikan law? Alive, as we do so, to the fact that what is good, including the common law, should not be disrupted; so our Afrikan brothers and sisters may hold.
- At some stage, we need to request Afrikan lawyers to start some work on:
19.1. causing Afrikan law to have a Commission dedicated to its development, and
19.2. causing the South Afrikan law Reform Afrikan Commissioners to give effect to paragraph 18, above.
- Some work on how we may contribute to causing Afrikan law to be developed is published under a Parliamentary website-
https://static.pmg.org.za/230331PRESENTATION_Afrikan_law_final.pdf
MATOME CHIDI
AJA CHAIPRESON