11 Dec When Can a Court Take Judicial Notice of Customary Law
The ordinary courts deal with matters of customary law. South African courts with jurisdiction over customary law cases include the Constitutional Court, the Supreme Court of Appeal, the Supreme Court, the Regional Court, the courts of first instance and other courts established or recognised by an Act of Parliament. These other courts may have the same status as the High Court or the Magistrate`s Courts. The Law of Evidence (Amendment) Act (South Africa) provides that any court may have access to the common law, including courts falling within the latter category mentioned here.  Another statute governing judicial notice is the Civil Procedure Evidence Act, which applies equally to all statutes, including customary law, as it does not expressly exclude it. Section 5 (1) of the Act provides that foreign affairs disputes are generally settled by judicial notification, by obtaining the information directly from the Office of the Secretary of State (in the United States). For example, if a litigant tried to argue at an extradition hearing that Israel was not a sovereign state, a statement by the Secretary of State that the United States recognizes Israel as a sovereign state would solve the problem, and no evidence to the contrary could be provided. (In the U.K., one could also rely on information provided by the Foreign Secretary.) Second, in the light of section 1(1) of the Evidence Act, courts may rely on evidence other than judicial decisions to obtain ex officio knowledge of customary law, provided that such evidence “easily” establishes customary law and is available “with reasonable certainty”. This is not necessarily documentary evidence, but also oral evidence, allowing courts to establish and apply living customary law, despite the tendency to rely on written documents. Zeffertt et al. stated that Indigenous law “can only be easily established with sufficient certainty” if “the courts have access to authoritative sources.”  He referred to a number of cases, including Harnischfeger Corporation v. Appletory, in which the Supreme Court found that records on a particular foreign law were “neither readily accessible nor verifiable with such certainty” because the Court`s library and the library of a nearby university were deficient in them. Although it concerns foreign law, the same provision applies to customary law.
In Hlophe v. Mahlalela, the court could not establish Swazi law and custom regarding the custody of minor children after the death of the mother, whose lobola had not yet been paid in full, even after examining five pounds. “When a court or authority establishes facts concerning the direct parties – who did what, where, when, how and with what motive or intention – the court or authority exercises a judicial function, and the facts are conveniently referred to as judicial facts. * * * This provision leaves the courts a margin of appreciation as to the application of judicial notification, since it does not specify the precise circumstances of how it is to be made.  Bekker and van der Merwe explain that the provision of the Evidence Amendment Act gave the court discretion to apply judicial directives to establish customary law, and this was done on the basis of the “whims and fantasies of the judges as a whole.”   This provision may need to be amended to clearly exclude chiefs and chiefs courts from its application. See the Chiefs and Chiefs Tribunals Regulations, 1967 (GN R2028 in GG 1929 of December 29, 1967), which provides for the application of the usual rules in their decision. In Mel Mermelstein v. 1981, it is reasonable to expect a judge to take this into account before taking ex officio notice of a custom, but it is wrong to omit it from the provision of the act. It should be noted that this provision leaves the courts a considerable margin of appreciation in this matter, which can be wrongly exercised.