The question, “What is customary law?”, poses a number of different problems. It can (and no doubt it will) give rise to answers which stem from differing interpretations of the sort of discussion that it is attempting to stimulate. It is fair to suppose that some of these will deal with the jurisprudential aspects of customary law, and its relation to other branches of the law. Others may cover the purely procedural and administrative factors that govern the application of customary law in various countries. And yet others may choose to emphasize the changing nature of customary law and the doubts which surround the precise details of its future in many contemporary countries.
page 91 note 1 For a description of the powers and function of these courts, see W. T. McClain’s description in Allott, Judicial and Legal Systems in Africa, 203–206.
page 91 note 2 A partial list of these appears at the conclusion of this article, i.e., those relating to succession.
page 91 note 3 These have not been enumerated in any detail among the sources given on pp. 112–113, post, but are to be found in the comprehensive bibliography being compiled for the Project.
page 92 note 1 I.e., to those areas exclusively reserved for Swazi occupation. Land owned or occupied by Swazi in other areas would be subject to the Roman-Dutch law as amended by Swaziland Proclamations and Orders in Council.
page 93 note 1 Known as kukhonta, this involves a gift to the chief.
page 93 note 2 This process is known as iphakela, and will be dealt with infra, under lifetime dispositions. See pp. 106–107, Post.
page 93 note 3 He will, however, be permitted to reap any crops still under cultivation, i.e., those which have been sown, or planted.
page 93 note 4 There is a difference of opinion as to whether land may be kubeka’d to a non-relative; the better view seems to be that this can be done, but that such person, on assuming occupation will have to kukhonta the chief anew.
page 93 note 5 “Placing” is a literal translation of “kubeka”. As no other term seems appropriate here, it has been used in this form.
page 94 note 1 The process is known as kuvalelisa; the payment is approximately £1. On moving to the area of another Chief, such Chief may check as to whether the umnumzana has valelisa’d his former Chief and may refuse to accept anyone who has not done so.
page 94 note 2 Relatives of a person leaving under these circumstances may, according to Hughes, Swazi land tenure, claim a preferential right to re-occupy the land; but unless a relative has been kubeka’d (which cannot occur where departure takes place as a result of banishment), the exercise of such preferential right is entirely dependent on the Chief’s acquiescence in their doing so.
page 94 note 3 It may, however, result in a suggestion by the Chief that the land be allocated to another umnumzana. The original occupier is not obliged to consent to such re-allocation, but refusal to do so may give rise to allegations of bad faith, witchcraft, etc., against him; and these may, in turn, provide grounds for banishment.
page 94 note 4 Often these rights will be safeguarded—even in a case of voluntary departure from the area of one Chief for that of another—by a formal statement to the Chief that the departing umnumzana only contemplates a temporary absence. Such an announcement is recognized in the institution of “kubeka icempe” (literally, placing a root).
page 94 note 5 See, in particular, caps. 101 (Administration of Estates), 103 (Wills) and 104 (Intestate Succession) of the Laws of Swaziland, 1959 Edition, Vol. II.
page 94 note 6 1959 Edition, Vol. II, p. 1483.
page 94 note 7 Information supplied by the Master of the High Court of Swaziland orally to the writer.
page 94 note 8 Proclamation No. 3 of 1953 as amended; cap. 104, Laws of Swaziland, 1959 edition, Vol. II, pp. 1487–1488.
page 95 note 1 This is the only relevant section. It seems to have subsumed the earlier sections 70 and 71, which appeared in the 1951 Edition of the Laws of Swaziland. (Although the 1959 edition appears to have altered the sections in the process of embracing them in a single section, such alteration does not affect the matter under discussion here.)
page 95 note 2 It is difficult to see why the categories have been distinguished, unless the intention was to point to a difference between “lawful” marriage and other kinds of marriage. At one time this might have been taken to refer to Roman-Dutch Law marriages, but this form of legal discrimination no longer operates today. See Swazi Marriage Proclamation, 1964 and the note by the writer in  J.A.L. 60.
page 95 note 3 See p. 94, ante.
page 96 note 1 I.e., according to Christian rites, or by civil procedure.
page 96 note 2 The Marriage Proclamation of 1964 provides, inter alia, that all marriages by Swazi law and custom shall be deemed to be out of community of property unless the parties choose to be married in community of property by executing a contract to this effect, the terms of which must be reported to a District Commissioner. See  J.A.L. 60.
page 96 note 3 But see p. 94, n. 5, ante.
page 96 note 4 As defined in cap. 64 of Laws of Swaziland, Vol. II, pp. 916ff.
page 96 note 5 I.e., H.M. Commissioner for Swaziland.
page 96 note 6 Cap. 67, Laws of Swaziland (Control of African Land Purchases, Proclamation 2 of 1915), Laws of Swaziland (1959 Edition) Vol. II, p. 954, s. 3.
page 96 note 7 This view is based on the fact that such land would not be easily capable of inheritance under Swazi law; on the fact that the Swazi Courts may not deal with disputes involving such land; and the tendency of the High Court of Swaziland to treat such matters as falling under the general law.
page 97 note 1 Though descent is traced through women, i.e., in a polygynous household the rank and status of a wife are the most important factors in determining the person who is to be the main heir of the deceased; “Nkosi ngunina” (a ruler [is ruler] by his mother).
page 97 note 2 For the exceptional instance in which they can do so, see p. 98, post. And see also under iphakela (pp. 106–109, post).
page 97 note 3 This will only occur where the levirate is not resorted to. For a description of the effects of the levirate (ukungena) see p. 98, post. Clearly no levirate is possible where the surviving wife is beyond childbearing age; nor is it possible where she refuses her consent to the union. In all other circumstances, a levirate union may occur, and the male issue of such union may succeed to the deceased since they (and female children) are regarded as the children of deceased.
page 97 note 4 The term monogamous has not been used because Swazi marriages are potentially polygynous.
page 98 note 1 This presupposes that deceased left female children who have married and born sons.
page 98 note 2 I.e., the Ngwenyama or Paramount Chief.
page 98 note 3 For details, see p. 108, post.
page 98 note 4 Ibid.
page 98 note 5 See under iphakela.
page 98 note 6 For a description of the levirate see my Restatement of Swazi Marriage Law (in the Restatement of African Law series, to be published by Stevens & Co.); and see the remarks at p. 97, ante.
page 98 note 7 This occurs less usually; but where it does, it modifies the rule (stated on p. 97, ante) that in the absence of an heir to a minor house, the inheritance of that house descends to the main heir.
page 98 note 8 Since he is normally selected by the Lusendvo, however, he will probably have communicated his unwillingness in advance, and will not be appointed.
page 99 note 1 See pp. 97–98, ante.
page 99 note 2 I.e., an umntfwana weyise, see p. 110, post.
page 99 note 3 I.e., the inkosana, see pp. 110–111, post.
page 99 note 4 I.e., in so far as he is curator of the property in the estate.
page 99 note 5 Unless, of course, these are renewed; but then such rights were not created as a result of succession.
page 99 note 6 For a description of some of these, see p. 93, ante.
page 99 note 7 As to modern immovables, see E2, p. 96, ante.
page 99 note 8 Informants did not draw a distinction between penal and repersecutory claims; all were said to be transmissible.
page 99 note 9 Titles corresponding approximately to princes, regional authorities (governors) and chiefs.
page 99 note 10 E.g., the Bemanti who officiate at the Incwala ceremony.
page 101 note 1 This would include the provision of food, clothing, and paying for the education of children still at school.
page 101 note 2 See E.6, p. 106, post.
page 102 note 1 See under Levirate, p. 98, ante, and under Restatement of Swazi Marriage Law (forthcoming).
page 102 note 2 The effect is to make the appointment of an administrator unnecessary, though the male member of the levirate will be subject to the same rules as would the administrator, mutatus mutandis. In practise, this makes little difference since the man who ngena’d the wife is normally the same person who would act as administrator.
page 102 note 3 See under E.3, p. 97, ante.
page 102 note 4 If his wife survives him, too, she may, of course, be ngena’d, in which case the rules given under I(a) apply.
page 102 note 5 Until they marry, when they pass into the guardianship of their husband(s).
page 102 note 6 Sing, insulamnyembeti. This is one of the beasts paid to the father of the bride in respect of marriage. It is not part of the lobolo, and is provided specifically for the bride’s mother (literally “to wipe away the tears”). See under Restatement of Swazi Marriage Law, C.5. for the rules governing its payment.
page 102 note 7 See E.6, p. 106, post.
page 102 note 8 The generic term is tibuga. This includes furniture (gwembe); weapons (tikali); clothing (tichoko); agricultural implements (emakhuba); drinking pots (tindziwo)
page 102 note 9 Tilimo.
page 103 note 1 Normally only the main wife (as designated by the lusendvo), see post.
page 103 note 2 Pages 97–98, ante.
page 103 note 3 Page 102, ante.
page 103 note 4 If it is not followed, and the further rules referred to are not enforced, the intestate successor will be the person(s) enumerated.
page 103 note 5 I.e., his younger brother(s), uterine or otherwise.
page 103 note 6 Umntfwana weyise, see under (c). This is the singular of bantfwana weyise.
page 103 note 7 The term indlalifa is also used.
page 103 note 8 The identity of the heir is not known until this time, although it may be surmised if one of the deceased’s wives is obviously of such a rank as to make her selection as the main wife inevitable(q.v.).
page 103 note 9 See pp. 104–105, post, for the basis on which the selection is made.
page 103 note 10 Persons who must be present are widows, and at least one person from each of categories (2) and (3).
page 104 note 1 See p. 100, ante.
page 104 note 2 I.e., a member of the Dhlamini clan (the daughter of an umntfwana benkosi).
page 104 note 3 Tibongo.
page 104 note 4 I.e., an arranged marriage. See under Restatement of Swazi Marriage Law.
page 104 note 5 These are rough translations.
page 104 note 6 Informants claim that all wives are in any event considered simultaneously in relation to one another.
page 104 note 7 I.e., a substitute or subordinate co-wife. For a description of the rules relating to such a case, see Restatement of Swazi Marriage Law.
page 104 note 8 Known as the lisocankanti.
page 104 note 9 The form of words used is: “In this homestead we are placing the burden on … (name of widow, with prefix la).” The heir is also given the wristlet of deceased.
page 105 note 1 Unless, of course, some of these have been allocated prior to deceased’s death: this will frequently be the case with such objects as jewellery, drinking pots, etc.
page 105 note 2 The son may not dispose of such cattle without the consent of his mother.
page 105 note 3 See E.4, 4–6, pp. 100–101, ante.
page 105 note 4 E.3, P. 97. ante.
page 105 note 5 An unmarried woman would not normally own any property at all, since she is a minor. However the category is included here to embrace any estate which she might have acquired by iphakela (see infra or in respect of minor personal possessions, clothing, etc.).
page 105 note 6 See E.3, p. 97, ante, as to who such heir would be.
page 105 note 7 See p. 102, note 6, ante.
page 106 note 1 Such a disposition must have the consent of the lusendvo.
page 106 note 2 Including lobolo received for daughters other than her oldest daughter (these are not, strictly speaking, hers; but she has custody over and a lifetime usufructuary interest in them).
page 106 note 3 See p. 102, note 6, ante.
page 106 note 4 E.3, ante.
page 106 note 5 I.e., whether or not he is his father’s inkosana.
page 106 note 6 In practice, however, the consent of the guardian is sufficient, although the matter must be reported to the lusendvo.
page 106 note 7 This is the verb form. An allocation in this way is known as a liphakelo.
page 106 note 8 Note, however, that the rights of women in respect of land, land occupied and cultivated by them are preserved: see p. 104, ante.
page 107 note 1 In practice to the houses, not just the wives, i.e., it is intended for the use of the wife during her lifetime but will pass to the inkosana or bantfwana weyise when deceased dies.
page 107 note 2 This can, however, be done in a will: see p. 108, post.
page 107 note 3 See E.5, p. 105, ante, for rules as to which sons receive lobolo cattle. In practice this would probably mean a son other than the senior son in each house. This apparently conflicts with the rules stated above that no allocation may be made other than to a wife and must be treated as an exception to it.
page 107 note 4 See Restatement of Swazi Marriage Law on tinhlanti.
page 107 note 5 In theory.
page 107 note 6 See E.I, para. 3, p. 93, ante.
page 107 note 7 E.g., where the consent of some other person was required for the alienation and this had not been given. Such a case would be the cattle of which a wife has a lifetime usufructuary right as a result of liphakelo.
page 108 note 1 The literal translation of the term is “earmarking”.
page 108 note 2 All such property, unless it has been iphakela’d, becomes the property of the inkosana.
page 108 note 3 In other words, the categories listed may be grouped in twos: so that (a) and (b) are alternatives; and so are (c) and (d) and (e) and (f).
page 108 note 4 I.e., Princes. The singular is umntfwana benkosi.
page 108 note 5 E.g., through insanity or senility.
page 108 note 6 Known as lisocankanti.
page 109 note 1 Such a purported disposition would be void; or, perhaps, validable by the testator.
page 109 note 2 This, as well as the absence of the same limitation in regard to persons to be benefited, and the restriction as to the types of property which may be bequeathed, is a point of difference between luphawu and iphakela.
page 109 note 3 See E.4, p. 100, ante. The distribution would be deferred until the umpatseli had been appointed.
page 109 note 4 In such circumstances, the bequest operates in much the same way as a liphakelo except that persons other than wives may be benefited.
page 109 note 5 It is more probable that they would not be confirmed by the lusendvo in the first place.
page 109 note 6 E.g., by providing that a son other than the oldest son in each house may receive certain lobolo cattle, whether already received or yet to be received.
page 109 note 7 Even if this was done in such a way as to provide cattle for the oldest sons of each house, it would not amount to disinheritance of the inkosana though it may result in the disinheritance of the bantfwana weyise.
page 109 note 8 Only in extreme cases, e.g., treachery.
page 109 note 9 I.e., of both kinds. This may not be necessary in the case of minor heirs—See note 5, supra.
page 110 note 1 E.3, p. 97, ante.
page 110 note 2 See p. 98 ante, and Restatement of Swazi Marriage Law.
page 110 note 3 Her consent is essential to the formation of such union, see Marriage.
page 110 note 4 This may require her father (or his successor) to return all or part of the lobolo received for her: See Restatement of Swazi Marriage Law.
page 110 note 5 According to the procedure described supra.
page 110 note 6 With the results referred to above under (b).
page 110 note 7 Until such time the inkosana is her guardian.
page 110 note 8 E.5, para. 2, p. 103, ante.
page 110 note 9 I.e., the head of the household, or umnumzana.
page 110 note 10 The husband of such a widow becomes liable to payment of marriage consideration in the amount of one half that originally given for her by the deceased; this is known as ukujubisisu.
page 111 note 1 I.e., he may only retain lobolo for the oldest daughter in each house; see pp. 104–105, ante.
page 111 note 2 I.e., where such son wishes to transfer lobolo before he is married, and thus while he is still under the guardianship of the inkosana legally.
page 111 note 3 But he has no more than a moral obligation to provide such lobolo from his own resources.
page 111 note 4 This includes the provision of food, clothing, school fees, etc., where appropriate.
page 111 note 5 In which case, they become the wards of the person on whose behalf the lobolo was paid.
page 111 note 6 See Restatement of Swazi Marriage Law for a description of the nature of these fines.
page 111 note 7 These would include aunts, uncles and other (usually aged) relatives.
page 111 note 8 First fruits.
page 112 note 1 See E.I, p. 92, ante.
page 112 note 2 Such as those obtained by iphakela.
page 112 note 3 See E.5, para. 4, p. 105, ante.
page 112 note 4 E.g., alienating, exchanging, pledging or leasing (sisa-ing) them.
1 Lecturer in African Law (and formerly Research Officer, Restatement of African Law Project), School of Oriental and African Studies, University of London.
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