Topic 7B — Customary law of delict

Prescribed: Himonga & Nhlapo Ch 12 (+ recommended Knoetze on family-head liability; Ngema & Daba on seduction). Story arc: same elements as common law, communal liability, fixed cattle fines — all under constitutional revision.

Delict in 60 seconds

Same five elements as common law. The family head answers for members (revised for equality). Most delicts carry fixed fines; blood cases don’t. Know the four: defamation (witchcraft/chastity, restorative remedy), adultery (husband claims — now contested), seduction (beasts + act immediately), ukuthwala (custom unless consent is refused). Demand first, then sue; delay rots proof (Lequoa) but debts don’t prescribe (Moima).

1. Elements and liability

Five identical elements

Act (commission/omission) + wrongfulness (legally reprehensible) + fault (intent/negligence) + causation + harm. Customary law had no single word for "delict" but punished the wrong the same way. Use the five to test new wrongs (forced initiation, bullying, sterility-slurs, protocol violations).

Who answers? The family head — revised

Rule: the head is vicariously liable for members' delicts and sues for delicts against them. Codes s 102: father/guardian/head liable for a minor inmate of the same home — proceedings run against minor jointly with the head. Revision: adults are majors; patriarchs no longer "represent" — seniors now assist the vulnerable (equality, dignity, Children's Act; mothers in practice).

Fixed fines vs "blood" cases

Most delicts carry predetermined fines — prove the elements, skip quantified loss. Exception: blood cases (assault, theft, wrongs touching the leader) — no fixed scale; the offender could be "eaten up" and the beast is shared: "a man may not eat his own blood."

2. The four delicts

Defamation — narrow by design

s 93 Codes: every malicious allegation of evil conduct such as witchcraft is actionable — Mogale (SCA) confines customary defamation essentially to this. s 94 adds impeaching an unmarried woman's chastity. Defences: quarrel-words cured by prompt public apology; good-faith report to authority without malice. Remedy direction (CaseDikoko + ubuntu): restorative — apology and harmony over ruinous awards.

Adultery — and the equality attack

Traditional (s 99): only the husband claims (per-act fine; wife's remedy is divorce); covers wives in marriage and widows in ukungena unions or unsettled estates. Quantum: full fine per separate act; pregnancy may raise it (community-dependent); keep the marriage → capped damages; end it → sue for lobolo paid. Three defences: reasonable belief of abandonment; collusion/connivance (Mswala v Fleni — staged catch); desertion without return-intent. Procedure: immediate report at the adulterer's kraal + demand. Note: ignorance that she was married is no defence — and custom treats endless per-act claims as immoral, steering the husband to divorce plus lobolo return instead.

Exam tip: RCMA s 6 + ss 9/10 imply both spouses should now sue third parties (a husband with a non-wife commits adultery too) — and a community may prove that emerged delict (Shilubana method). State both sides.

Widows: who sues, who keeps?

The ukungena consort sues — but the fine belongs to the widow's house / deceased's estate (Mdoda v Skeyi), and only where she lives as a recognised ukungena wife. (amaXhosa: kin-widow intercourse is also incest.)

Seduction — beasts, scales, debate

Ngquthu (defloration — to the mother), mvimba (per pregnancy, even miscarried), umgezo (cleansing). Scales: Zulu 1+1+cleansing; Sotho/Tswana 2 for defloration, 4 for up to two pregnancies; Pedi max 3. Procedure: girl reports at once, parents act immediately (delay fatal). Death: claim dies with her (unless in related childbirth) — but an heir inherits the action. Debate: abolish as virginity-commodifying gender stereotyping (Bohler-Muller) vs defend as culture — argue both.

Ukuthwala — custom vs delict vs crime

Carrying-away to open marriage talks is custom (even agreed elopement). It becomes delict only where the guardian's consent is absent and the family refuses to negotiate (insult, bypassed consent) — damages merge into lobolo (Xhosa: 1 beast + seduction; Sotho: marry her or pay lobolo-value). Forcible "marriage" is void (Mfeketho) and may be kidnapping/rape — SALRC Project 138; Jezile marks the criminal line.

Recall: which beast goes to the mother? What makes ukuthwala delictual? Name the three adultery defences.

3. Procedure and prescription

Act now, demand first, heirs step in

Demand is compulsory (oral suffices): approach wrongdoer + family head jointly with prima-facie proof, then sue in the leader's (or other competent) court. Action begun before death binds the heir ("once instituted it does not die"); no prior action + death = lapse (Mgangabode). Prescription: none by time alone (Moima — a debt must be repaid), but delay rots proof: Lequoa demands immediate moves where denial is likely or timing fixes liability (seduction). Heirs inherit rights and locus standi.

Exam tip: choice of law where custom and common law overlap (nearly every delict): apply the system matching how the parties live (Bennett). One sentence, easy mark.

Final drill: five elements, s 102, blood-case remedy, Moima vs Lequoa — aloud, then verify above.

Drill delict cards → Practise essays →