I scraped together what I could, dated as it is. References have been removed (out of laziness, I guess!). Shaka, Dingaan and Silkaats probably deviate from the customary pattern but the historians are at logger-heads concerning the true nature of (for example) Shaka's regime (one Cobing daydreaming).
GM Retief: Social Disorganization, Crime and the Urban Bantu People of SA in Midgley et al: Crime and Punishment in SA, McGrawhill, 1975...
Apart from the informal social controls, taboos and other prohibitions
which restrain the individual from deviating from the tribal customs, there is a
formal system of tribal justice which must also be considered. The tribal
system of justice among the Bantu peoples is based on the principle of the
collective responsibility of the group for the misdeeds of the individual.
The
laws of the tribe are made by the chief—in—council and there is a distinction
between civil and criminal offences. Although the laws are not recorded they
are known to all because of the respect and veneration they are accorded. They
are also enacted at the wish of the tribal community and are nurtured as a very
real part of the social structure. The comprehensive knowledge that members
have of tribal law and custom is also due to the frequent opportunity and rights
of adults to attend court sittings. There is a well—defined, shared conception of
justice.
The social and political organization of the tribe is inherently sound. Strict
control is exercised over individuals and over collectivities such as the family,
the kinship group, the region and district and also over the tribe as a whole.
Every political and social unit of the tribe has a head with subordinates
responsible to him and this hierarchy functions well from the base to the apex
of the social structure. In addition to the immediate family, there is the sib or
class as well as age and sex groups which all function to maintain social ties
and a close organization in the community.While these factors are the most distinctive forces in the regulations of
behaviour and the social life of the tribal Bantu peoples, it is not suggested that
tribal life is so idealistic that deviance and offences against tribal authority do
not exist. Although there is a great difference between the nature and extent of
offences in the tribal communities and in the urban settings, each tribe has its
quota of offenders. But in the tribal areas, different systems of norms, values
and customs exist and many factors operate to influence the individual to
conform spontaneously.
...
49
CROWDER: ASSIMILATION AND ASSOCIATION
AND FRENCH COLONIAL RULE IN AFRICA
in
COLLINS:PROBLEMS IN THE HISTORY OF
COLONIAL AFRICA, PRENTICE HALL, 1970212
...
The British in Northern Nigeria,
which became the model for indirect
rule, believed that it was their task
to conserve what was good in indige-
nous institutions and assist them to
develop on their own lines. The re-
lation between the British political
officer and the chief was in general
that of an adviser who only in ex-
treme circumstances interfered With
the chief and the native authority
under him. However, where chiefs
governed small political units, and
in particular where their traditional
executive authority was question-
able, the political officer found him-
self interfering in native authority
affairs more frequently than ideally
he should. This was true in many
parts of East Africa and in parts of
Yorubaland, where the borderline
between 'advisory' and ‘supervisory'
in the activities of the political
officer was not always clear. Though
indirect rule reposed primarily on a
chief as executive, its aim was not to
preserve the institution of chief-
taincy as such, but to encourage
local self-government through indig-
enous pólítical institutions, whether
these were headed by a single execu-
tive authority, or by a council of
elders. In Northern Nigeria a policy
of minimal interference with the
chiefs and their traditional forms of
government was pursued. But
Lugard himself had insisted on a
reform of the indigenous taxation
system and of the administration of
native justice when he was Governor
of Northern Nigeria and believed
that, while the colonial government
should repose on the chiefs, their
administration should be progres-
sively modernized. And, though his
successors left them largely to them-
selves, Sir Donald Cameron, Gover-
nor of Nigeria from 1931 to 1935,
who had introduced indirect rule to
Tanganyika and held similar beliefs
to those of Lugard, was shocked by
the situation in Northern Nigeria,
where he felt the emirates were fast
developing into Indian-style native
states.
Indeed, in the earliest inter-war
period many emirs and chiefs ruled
as ‘sole native authorities’, a posi-
tion which gave them for practical
purposes more power than they had
in pre-colonial days, where they
were either subject to control by a
council or liable to deposition if
they became too unpopular. They
were permitted to administer tradi-
tional justice, which, in the case of
certain emirs, included trying cases
of murder for which the death sen-
213
tence, subject to confirmation by the
Governor, could be passed. They
administered political units that
corresponded to those they would
have administered before the arrival
of the colonial power. They were
elected to office by traditional meth-
ods of selection, and only in the case
of the election of a patently unsuit-
able candidate to office, would the
colonial power refuse recognition.
There was thus a minimal under-
mining of the traditional sources of
authority. The main change for the
Fulani Emirs of Northern Nigeria,
for instance, was that they now owed
allegiance to the British Govern-
ment rather than to the Sultan of
Sokoto, and collected taxes on its
behalf, though they retained, in
most cases, 70 per cent. of the
amount collected for the administra-
tion of their native authority.
This system of indirect rule was,
with modifications, practised wher-
ever possible in Britain’s colonies in
West Africa and in most of her other
African territories. There were no-
table exceptions, especially in East-
ern Nigeria, where the absence of
identifiable executive authority in
most communities made indirect
rule as practised in Northern Ni-
geria almost impossible to apply. In
such societies, British assiduity in
trying to discover chiefs, or invent
them, might lend colour to M. Des-
champs’s argument; but, in practice,
the goal of ruling through tradi-
tional political units on whom local
self-government could be devolved
was maintained, and after much
trial and error a system of demo-
cratically elected councils was for-
mulated as most closely correspond-
ing to the traditional methods of
delegating authority.
...
SEYMOUR: NATIVE LAW IN SA, JUTA, 2ND ED, 1960CHAPTER IV
THE KRAALHEAD AND THE FAMILY
I. -A GENERAL OUTLINEIn the Sotho- Tswana group, the people live in villages or hamlets, and
their kraals are not separately situated as in the Nguni group. A village
may consist of several families known to be descended through the male
line from a common ancestor, and may also include relatives of other
categories and perhaps even one or more unrelated families who have
attached themselves to the nuclear family group. In larger villages there
may be several of such family groups; the kraals of the families comprising
a single family group will be clustered together in the same part of the
village. All the known members of a family group do not necessarily live
in the Village occupied by the nuclear group; one or more of these closely
related kraalheads may have left the village and attached themselves to
a group in another village; in this way they tend to become out of touch
with the affairs of the nuclear group, but nevertheless legally the relation—
ship is unaffected by their change of residence.
There is also a wider kinship group called the clan. All the family
groups comprising a clan, and they may be numerous, have the same
sIbongo or clan name. By this fact it is known that they have descended
through many generations from a common ancestor, but in the majority
of cases, the relationship existing between family groups having the same
sebongo cannot be traced in living memory.
The Nguni tribes do not generally live in villages. The kraal of each
family is situated apart. If a kraalhead has more than one wife, he may
have them all living in one kraal, or he may establish a separate kraal or
kraals for one or more of them. The Nguni have the same kinship groupings
as the Sotho-Tswana group, namely, the family group comprising families
whose relationship can be traced through the male line to a common
ancestor, and the clan whose members have the same sibongo or clan
name but whose relationship cannot be traced in living memory.
In all tribes the most important unit is the family, consisting of the
kraalhead and his wife or wives and children. In true Native law the
only emancipated persons were kraalheads, but according to the law of
the land all persons over the age of 21 years have attained majority and
to some extent this affects the rights and liabilities of persons whose status
would otherwise be dealt with under Native law.
48 NATIVE LAW IN SOUTH AFRICA
An unemancipated member of a family has very few individual rights.
Each individual, to a certain extent, receives recognition as such in Native
law, but a family consisting of the kraalhead, one wife, and their children,
should be viewed as an involuntary group or association under the control
of the kraalhead. If he has more than one wife, then each wife creates
what is called a House, which is a group distinct from any other House.
The kraalheadship does not die with the death of the father of the
family, but the authority which he alone exercised over all his Houses is
divided but remains undiminished g the eldest son of each House becomes
the kraalhead of that House. Kraalheadship is a continuous exercise of
well-defined rights and liabilities passing from father to son without
change or interruption.
A kraalhead is by no means a despot in law, as is sometimes supposed;
he has control of each House, but its members have a collective interest
in its affairs and property.
Whenever a kraalhead deals with the property of a House, he should,
and usually does, consult the wife of that House, and also the eldest
son if he is old enough to take an interest in such matters. Legally it is
not imperative for him to discuss a matter with them, but he will do so to
create a record, and to avoid friction and discontent. In matters con-
cerning Houses other than his Great House, he will also bring into the
discussion his Great Wife and her eldest son; this is because the Great
House stands at the head of the kraal, and its heir is the highest-ranking
male; he must be placed in a position to settle disputes after the death of
the kraalhead, concerning things done during the latter’s lifetime.Normally a son becomes a kraalhead when he marries, being then
emancipated from the control of his father, who usually makes him build
his own kraal: he takes from the parent kraal any property which his
father may have allotted to him, and a new kraal springs into being.7
But emancipation does not affect the interest which a son has in his
father's kraal; on the contrary, a mutual interest exists between the two
kraals. Similarly there is a mutual interest between the kraals of emanci-
pated brothers, and between the kraals of their emancipated descendants.
This mutual interest is difficult to define, but it is most real; it is attribu-
table to the idea of collective right and responsibility which pervades
Native law. Its main effect is that while a kraalhead has no right to
interfere in the affairs of another kraal, he must consult the male members
of his family group in a matter affecting the status of an unemancipated
person, or the course of succession.
2.-THE KRAALHEAD’s RIGHTS AND RESPONSIBILITIES
A. THE PROPERTY OF THE FAMILY
Since a House is a separate unit of the kraal, having its own rights and
responsibilities, the kraalhead’s rights and responsibilities in respect of
THE KRAALHEAD AND THE FAMILY 49
each is the same; therefore his rights and responsibilities in respect of a
single House will be dealt with here; inter-House relations are dealt with
elsewhere.
In Native law all property whatever acquired by the kraalhead, or
by or through an unemancipated member of his family, belongs to the
kraalhead; no member of the family has an individual right to own
anything.10
A kraalhead may acquire property in the following ways:
(a) By his own efforts and labour;
(b) by the efforts and labour of his wife or any other unemancipated
member of the family;
(a) from fines and dowry received by him in respect of a daughter;
(d) from fines received as damages for adultery with his wife; and
(e) from inheritance.
Property of the classes (b), (c) and (d) belongs to the House; all other
property, provided it does not belong to a House to which he has
succeeded, belongs to the general estate, otherwise called the kraal
property, of the kraalhead, but he may allot some of it to a House, in
which case the portion allotted becomes House property.
Although the property of the House is commonly spoken of as
belonging to the kraalhead, because this is a brief and convenient way of
describing the matter, it belongs in law to his family as a unit, under his
supervision and control; it has also been described as belonging in com-
munal ownership to the family, which, of course, includes the kraalhead.
Some may find difficulty in reconciling the idea of communal owner-
ship of House property with the fact that the kraalhead has sole control
of it. If, legally, the sole and absolute ownership and interest in the
kraal, its property and affairs, vested in the kraalhead, the Native social
system would be one of frustration for everyone except himself, and it
would have collapsed long ago. Rather than dedicate their services or
make their contributions to a pool in which they had no defendable
interest, the young men of a tribe would no doubt quickly have evolved
another arrangement, lawful or unlawful, whereby they obtained some
fair return. As it has, in fact, evolved, every male member of the family
has an interest in the House and its property, but it is a collective, rather
than a personal, interest.
50 NATIVE LAW IN SOUTH AFRICA
From the House property the obligations of the kraalhead have to be
satisfied, and they are considerable. He must support his wife, her
children, and any children of her unmarried daughters; he is liable for
the misdeeds of an unemancipated member of the family; there is a
strong customary obligation on him to pay for the dowry for the first wife
of each son and to set him up in life, and normally he respects this
obligation; there is a similar obligation on him to supply a married
daughter With a wedding outfit. On his death the whole burden falls
on his heir. An obligation contracted by the kraalhead is never extin-
guished save by payment, for he burdens the position of kraalheadship
with it; whenever he gains anything for the House, it benefits, not he
himself.
This being so, whenever he wishes to burden the House with a debt,
or dispose of some of its property, it is the kraalhead’s duty to consult
his wife, as natural protector of her children’s interests against violation
by himself, and also if he is old enough, his eldest son as prospective heir
and kraalhead of the House. It is, however, a customary, not a legal, duty;
if it were a legal duty the system would no doubt have become too
unwieldy, as his neglect to discuss a matter with them might give rise to
litigation. As it is, when the kraalhead makes a contract with a third
party, he is bound by it; if, outside his neglect to have a consultation, a
disposition of property to a third party is not unreasonable, the only
possible consequence of his failure to consult might be a temporary
disruption of the peace within his family circle.
Also, the kraalhead may reasonably use House property for his own
benefit, or for the benefit of a member of the family of the House; for
example, he may make an allotment of one or two cattle to a son, or pay
the dowry for a son’s wife; to such expenditure no objection can be
raised. His dispositions become unreasonable when, without any
beneficial purpose, he dissipates the property of, or impoverishes, the
House; in such a case he may be restrained from his prodigality and, if
possible, compelled to restore the status quo, bearing in mind that his
contracts with third parties cannot be avoided.
In impoverishing the House or dissipating its property, a kraalhead is
doing no other than dissipating his family’s livelihood, his sons’ main
chance of obtaining wives, and the means whereby his heir is to carry
these obligations after his death. Small wonder then that if his
dispositions are excessive, the members of his family would raise an
outcry which, of itself, might bring him to a full stop; if this fails, it is
usual, but not imperative, for his wife to bring the matter to the notice
of the elders of the family group, who would advise the kraalhead to
THE KRAALHEAD AND THE FAMILY 51
restrain himself in a proper case; their advice has no legal force. If the
kraalhead fails to heed them, the matter may be taken to court; if the
children are minors, his wife brings the action on behalf of her House;
if the eldest son is a major, it is submitted that he may bring the action.
Thus the rights which the family have in the estate are in a sense
negative; it is the kraalhead who must bind the family to and assert and
defend its rights against, the outside world; once property is disposed of
to, or a binding contract made with, a third party, there is no action in
favour of the House against the kraalhead for damages; he must be
anticipated, if possible, or placed under future restraint. No member of
the family has any right to deal with the estate, save the kraalhead; any
contract the former might purport to make would be null and void ab
initio, and property so disposed of could be vindicated by the kraalhead.
Each wife is obliged to live at the place assigned to her by the kraal-
head; she has no right to live elsewhere if he forbids it. The stock of
each House should be kept at the kraal of that House, but the kraalhead
may remove it and keep it elsewhere, unless his action in doing so is
frivolous or unreasonable. When her eldest son has married and estab-
lished his own kraal, a wife is entitled to leave her husband’s kraal and go
to live with the former; it is quite clear that some, at least, of the property
of her House should be placed there for her support.
One wife of a kraalhead cannot, in any circumstances nor for any
cause, bring an action against another of his wives, for neither of them
can own property and, even if such an action were tenable, the judgment
debt would have to be paid by the kraalhead to himself, as it were; this
farcical position is not contemplated by Native law; the kraalhead should
settle disputes between his wives.
When a kraalhead becomes aged, his heir may seek to deprive him
of control of the estate of the House; this cannot be done, for, although it
is natural that an old man may come to rely on his son more and more
in the management of his affairs, the ultimate word remains with the
kraalhead until he dies.
...
54
...
C. THE CONTRACTUAL LIABILITIES OF THE FAMILY
Contracts, in Native law, may be divided into two classes, namely,
those affecting status, the most important of which is the dowry contract,
and commercial contracts.
The liability of a kraalhead for dowry contracts is dealt with in
another part of this book.
A kraalhead is bound by commercial contracts entered into by him-
self or his lawful representative.
An unemancipated inmate of a kraal (for convenience referred to as
a minor) has no right to enter into a contract concerning the property
of the House to which he belongs, and much less concerning that of
another House; any such purported contract would be void ab initio.
A minor may enter into a contract for his own benefit, for Native law
lays down that whatever a minor may earn or acquire belongs to his
kraalhead.
...
55
...
D. THE DELICTS OF THE FAMILYI. The liability of the kraalhead
The liability of a kraalhead for the delicts committed by inmates of
his kraal is more extensive than his liability for their contracts.
With certain exceptions, a kraalhead is responsible for the delicts of
all unemancipated persons staying at his kraal, whether they be members
of his family or otherwise, whether they be permanent inmates or merely
resident there, whether or not he was a party to a delict, and whether or
not he knew of it at the time of commission.It is essential to his liability that the delict for which it is sought to
hold him responsible must have been committed during the time the
tortfeasor was an inmate or resident at his kraal. If it was committed
before the tortfeasor became an inmate or resident, or after he had left
the kraal permanently, the kraalhead is not responsible.
...