Mr. Brownlee's Notes

[Extracted from Maclean's A Compendium of Kafir Laws and Customs, pp. 107-24.]

1. CRIMES AGAINST THE PERSON.

MURDER PREMEDITATED.

Punished by fine, which is generally fixed at the same rate, under whatever circumstances the murder may have been committed. About forty years since, it was lawful to put a man to death for the act of adultery, when taken in the act; but Gaika abolished this law, and ever since, bloodshed, in a case of this nature, is punished as murder. The law makes no distinction between a murder from malice, or forethought, or from one committed on the impulse of the moment, or in revenge for the blood of a relative.

A man is punished for taking the law into his own hands; and in no case is he justified in doing so, even in a case of retaliation.

There is this to be observed, that the above remarks refer to people of one tribe; but if the case were between people of different tribes, and the injured person obtained no redress, he would retaliate on any one of the other tribe who came within his power, and in this would be supported by his chief, until redress was obtained; but there does not appear to be any law to sanction this custom.

[p.108]

ACCIDENTAL HOMICIDE.

The law acquits the homicide, but the chief not always.

JUSTIFIABLE HOMICIDE.

As in the above case. A man is fined for murder, if he kills an adulterer or adulteress in the act, although he be the husband of the adulteress.

ASSAULT-FACTION FIGHTS.

Assault is punished by fine, varying from one to five head of cattle, according to the nature of the injury, or the rank of the person injured. Fine goes to chief. In a faction fight, if blood is shed, each man concerned may be fined one head of cattle, which goes to the chief.

ADULTERY.

Fine of from one to ten head of cattle among private persons. If an adultery is committed with the wife of a chief, the fine is higher. The fine goes to the husband. The fine is heavier if the adulterer is uncircumcised, and heavier still if undergoing the rites attendant on circumcision.

If a woman procure abortion, with or without the will of her husband, he is fined; likewise the doctor who caused the abortion. Putting to death the child after birth is punishable as murder, the fine in both cases going to the chief. It is customary for chiefs to procure abortion, or to cause the death of supposititious children.

RAPE.

Heavy fine, but no fixed number of cattle. If committed on a married woman, fine goes to. husband; if [p.109] on an unmarried female, to her parents or guardians; though a portion is generally given to the chief.

SEDUCTION OF VIRGINS.

Fine of from three to four head of cattle to the parents of the virgin.

In the three preceding cases, the fine is heavier where pregnancy ensues.

FORNICATION, AS WITH AN IDIKAZI.

No fine, except pregnancy is the result; when one head of cattle is paid, and the father retains the child in this, as in the foregoing case.

UNNATURAL CRIMES.

A fine of from five to ten head of cattle; but I have never heard of a case.

2. CRIMES AGAINST PROPERTY.

THEFT.

Theft is punished by fine, amounting from five to ten head of cattle for one, when the stolen property is not recovered; when recovered, a lesser fine is imposed. In this, as in all cases, the amount of fine is fixed according to the rank of the person against whom the offence is committed, confiscation of property being the general punishment imposed for offences against chiefs. The fine is paid to owner of stolen property.

No case can he brought against a chief for theft, except it be committed on the property of a person of another tribe. Then the chief of the injured person may take up the case as his own.

[p.110]

The children of chiefs are permitted to steal from people of their own tribe, and the case can he brought against them. Should they be taken in the act, and the injured person should beat them, his property may be confiscated for assaulting a chief.

In Tyali's tribe, there are a number of offshoots of the Rarabe family, bearing the name but not the influence of chiefs. Among these were Tihla, Vinqo, Sani, and -----. Before the death of the Chief Tyali, the young sons of these petty chiefs stole cattle and goats, and robbed gardens, to such an extent that a remonstrance was brought before Tyali against the constant aggressions of these boys, against whom no proceedings could be instituted.

Tyali decided that in his tribe, for the future, the sons of petty chiefs should be amenable to the same laws as private individuals, and that only the family of the paramount chief should be free from punishment.

WILFUL INJURY TO PROPERTY

Punishable by a fine fully covering the injury.

ACCIDENTAL INJURY TO PROPERTY.

No penalty. Should a man intentionally set fire to grass, and thereby cause damage to crops or huts, he is liable for the damage; but he is not held liable for a purely accidental destruction of property.

TRESPASS OX GRAZING AND CULTIVATED LAND BY CATTLE.

There is no trespass on grazing land; neither does the Kafir law impose damages for trespass on cultivated lands; but there have been a few cases lately in which injured persons have received damages for injury to [p.111] their gardens by neighbours' cattle. The reason assigned for the law is, that all having cattle and gardens, all are alike liable to trespass, or to be trespassed on; things being thus equal, lawsuits are of no avail. Should the owner of the garden beat or ill-use trespassing cattle, their owners may obtain damages.

TRESPASS BY SOWING FALLOW LAND FORMERLY BROUGHT UNDER CULTIVATION BY ANOTHER.

No penalty. A man has a right to the land while he occupies it. When he leaves, though with the intent to return another may cultivate during his absence. On his return, he may eject the second occupier, but not until his crop is reaped.

3. LAWS RELATING TO SOCIAL STATE, &c.

Marriage is contracted by the payment of cattle to the parent or guardians of the female, the number paid being regulated by the rank or beauty of the woman. Generally, after the birth of the first child, an additional demand is made, and if not complied with, the woman is usually induced to return to her parents, where she remains until the husband sends the cattle demanded.

It may be decided by a chief, that the cattle paid are enough; but he does not compel the parents to give up their daughter. Should the parents refuse to allow the daughter to return until the demand is complied with, and the husband as obstinately refuse to comply with the demand of the parents, the cancelling of the marriage may be the result.

[p.112]

Should the woman leave her husband before bearing children to him, and refuse to return, he may recover the cattle paid for her.

Should a man repudiate his wife, and show cause for doing so, he may recover his cattle, if she have borne him no children; but should it be shown that the dissolution of the marriage was caused by misconduct on the part of the husband, it may be decided that he recover none of his cattle; or, in some cases, it may be adjudged that a portion of the cattle be restored to him; but misconduct on the part of the husband is seldom acknowledged by Kafir law.

Should a husband die before his wife bears children to him, the wife returns to her relatives, who may again marry her, and the heirs of the former husband recover the cattle given for her.

If only one child should have been borne, and the mother is still young, and likely to marry well, a portion of the cattle may be restored to the husband or his heirs; and in all cases the children remain with the husband or his family, except the cattle paid have been restored in full. This is called extinguishing the house, or dissolving the marriage.

INCESTUOUS MARRIAGES.

Incestuous marriages are dissolved, and a heavy penalty inflicted on the man. Any relationship which may be traced to whatever distance is considered as coming within the bounds of consanguinity; and intercourse is punished, whether it be by marriage, or by carnal connection without marriage.

To marry two sisters is not considered incestuous; but to marry the descendants of a man's ancestors is considered incest. Fine paid to chief.

[p.113]

DIVORCE.

There is no legal process for obtaining a divorce. A man may repudiate his wife for barrenness, for adultery, or simply because he dislikes her. A man may also repudiate his wife for taking milk out of the milk-sack. It is not necessary to obtain the sanction of the chief. A wife often leaves her husband on the ground of ill-usage, dislike, or jealousy; and if a reconciliation cannot be brought about, the husband can claim his cattle in the same way as the heirs of a deceased husband recover from the relatives of the widow. The children all remain with the father. According to law, the cattle and their progeny are recoverable; but it seldom happens that more than the number originally given are accounted for.

INHERITANCE

The son of the great wife inherits the property of the father, though he may be the youngest of the family. During the lifetime of the father, he apportions part of his property to the right hand house. This property is inherited by the right hand son. Should the father be a wealthy man, he may give a portion to the eldest sons of his other wives, but unless he does so, they have no claim after his death, the bulk of the property being inherited by the great son, and the right hand son inheriting the portion attached to his mother's house during the lifetime of his father. Should an undue preference have been shown to the minor sons, the son of the great house may recover the property after his father's death.

Should a man have two or more wives, and die without having named the great and minor wives, his [p.114] brother or near relatives may fix the great house, and the son of this house inherits all the property. Should the relatives not be able to arrange this point, it is settled by the chief.

When a man dies without issue, his brothers inherit his property; if he has no brother, the property goes to the chief. A daughter, or her issue, never inherits property.

Property is not inherited by will, but according to the law above quoted.

The uncles, or nearest relatives of the father, are the guardians of minor children; but it sometimes happens that, when the mother goes to her relatives, the children accompany her, and if the father's relatives approve of it, the mother and her relatives may be guardians to the minor children. Should a guardian abuse his trust, either by ill-using the children, or squandering their property, the chief appoints other guardians, who sometimes are no way related to the children.

If an orphan girl is left destitute, and her friends, from poverty or scarcity of food, cannot provide for her, the chief takes and brings her up. At her marriage, all the cattle are retained by the chief. But should the orphan girl be brought up by the relatives of the father, they get all the cattle paid.

POWER OF HUSBAND OVER WIFE.

A husband may beat his wife for misconduct; but if he should strike out her eye or a tooth, or otherwise maim her, he is fined at the discretion of the chief. If he puts her to death, he is punished as a murderer.

[p.115]

POWER OF PARENTS OVER CHILDREN.

The authority of a parent lasts over his children so long as they remain with him. He, may inflict corporal punishment, but has not the power of life and death, and is fined for inflicting permanent injuries to their persons, such as causing the loss of an eye or a tooth, or breaking a limb.

LIABILITY OF PARENTS FOR MISDEEDS OF CHILDREN.

A parent is liable for all the misdeeds of his children, as if committed by himself. Should a son, however, become an infamously bad character, and his father have often paid for his misdeeds, his father may obtain an outlawry against him; and if after this, he wholly casts off the son, he is no longer liable for his actions; and should he be killed in the perpetration of any misdeed, the person who killed him is held guiltless of murder. An outlawed man is designated a porcupine or wolf.

LIABILITY OF RELATIVES FOR MISDEEDS OF RELATIONS.

Near relatives are called on to pay any fines for which their relatives are liable, and which they are unable to pay. In cases of theft, however, the relatives are not so much looked to for payment, as those who may have been partakers with the thief, or to whose kraal the stolen property may have been taken by him; and in case these are not able to satisfy the demands of justice, the relatives are called on to pay.

DISOBEDIENCE OF ORDERS OF CHIEF.

A fine, varying according to the circumstances of the case, is inflicted on the party or parties guilty of this.

[p.116]

REFUSAL TO FOLLOW SPOOR.

When a spoor is traced to any locality, and the people of that locality refuse to trace it, they are held responsible, and must make restitution.

LAW RELATE TO REFUGEES.

There is no law; but the custom is that every chief receives and protects whoever comes to him, except he is guilty of some offence for which he has not yet made restitution; in which case a compromise is usually made with the chief from whom the man fled, the man becoming a subject of the chief to whom he fled. This custom has greatly kept in check any arbitrary and oppressive conduct which the chiefs might have felt disposed to exercise towards their people.

PRIVILEGES OF CHIEFS.

Principal chiefs and their sons are not liable for any action which they may commit; but minor chiefs and their sons may be tried for offences in the same way as private individuals, though there are few chiefs in Kafirland who will give a fair decision in a suit between another chief and a private individual.

LAWS OF USE AND CULTURE OF LAND.

Lands are not sold or permanently alienated, but any man may occupy an unoccupied piece of land in his tribe, and so long as he occupies and cultivates it, no one, except the chiefs can interfere with his right. Should the occupier quit, and another take possession, the first occupier may eject him, if he wishes to occupy the land, even after the lapse of years.

A chief may eject any of his people, taking their kraals, huts, cornfields, and corn in the pits, if required [p.117] for his own use; or he may eject for the chief of another tribe. But these cases seldom take place.

An individual coming into another tribe obtains permission to settle from the head of the kraal in which he settles; the head of a kraal obtains permission from the councillor or petty chief in whose location he settles; a petty chief with kraals under him, obtains the sanction of the chief of the tribe.

FALSE ACCUSERS, &C.

Any one bringing a false charge in legal form against another, as well as originators and spreaders of a public libel os scandal, render themselves liable to an action at law, and damages may be recovered.

4. LAWS RELATE TO RELIGION AND OTHER CUSTOMS.

INFRINGEMENT OF SEPARATION DURING CIRCUMCISION RITES.

No fine imposed. The men intrusted with the care of the youths during separation may inflict corporal punishment in case of the infraction of any rule.

SEPARATION OF RELATIONS AND DWELLERS AT KRAAL AFTER FATAL ILLNESS.

A husband is considered unclean for eight days after the death of his wife; a wife for twelve or fourteen days after the death of her husband; and until they have been purified by the doctor, they are liable to be fined if they enter any kraal, the fine going to the chief. None of the residents of a: kraal at which a person has died may go to the kraal of a chief for a few days after the death; but all may go to the kraal of a common man, with the exception of the parents, or husband, or widows, who must first be separated and purified.

[p.118]

When the head of a kraal dies, all the inhabitants of the kraal are considered unclean for a few days.

TOUCHING OR BURYING THE DEAD.

Though the Kafirs have a great repugnance to touch a dead body, particularly when disease has been the cause of death, those who touch or bury the body are not considered unclean, and undergo no purification. When lightning strikes a kraal, or an individual, or the property of any one, the inhabitants of the kraal are considered unclean, until a sacrifice has been offered, and purification has been performed, by a doctor. Should any one belonging to an unclean kraal enter any other kraal during the period of uncleanness, a heavy penalty is imposed. After uncleanness by lightning takes place, the inhabitants of the kraal approach to a short distance of the nearest kraal, and by shouting announce what has taken place, for the information of the chief, and inhabitants generally, none of whom are permitted to enter the kraal during the separation of its inhabitants. Cattle struck by lightning are not eaten, and all animals struck must be buried by the inhabitants of the land. Lightning is considered as the direct operation of the great or supreme spirit. Any object or person struck is considered as having been directly appropriated to himself, and instead of being mourned or lamented over, is made, after the purification, a cause of dancing and rejoicing. The fines paid for the non-observance of the customs in connexion with the striking of lightning go to the chief. The kraal is deserted, the huts are allowed to fall down, and the kraal may not be used for fuel, though a scarcity of wood may exist.

[p.119]

GRAVE WATCHERS.

The person and property of the watchers at the grave of a chief are considered inviolable, and they are not liable to actions so long as they are employed in watching the grave. They are selected from among councillors, and such men are appointed as may be relied on for faithfully discharging their duty. They may occasionally visit their own families during the day, but may not go to other kraals, and always sleep at the grave. There is no fine for infringing the rules, but the offenders are publicly reprimanded. Any person, whether consciously or unconsciously approaching the grave, may be plundered and beaten. The period of watching continues from one to two years.

WITCHCRAFT.

Witchcraft is supposed to be an influence for evil, possessed by one individual over another, or others. This influence is said to be exercised through the instrumentality of evil spirits, enchantments, supernatural and natural animals, such as baboons, wolves, or owls. By the above agencies, an influence is supposed to be exerted which may cause temporary, chronic, or fatal diseases, death or sickness among cattle, blight and disease among crops, and drought.

The punishment for a supposed wizard or witch is always confiscation of property, and often death. When a woman is accused, the fine is paid by her family, and not by the husband, or his family. The torture to which the accused are often subjected is not considered as a part of the punishment, but is resorted to in order to cause the accused to confess their guilt, and to produce the charms. On the confession of guilt, and the pro- [p.120] duction of any substance which may be named a charm, the victim is either at once liberated, or put to death by strangulation, or by being beaten with sticks, or is thrown over a precipice. The cattle taken for witchcraft are given to the chief, by whose approval alone a case of witchcraft can be carried out.

FEES OF DOCTORS.

Doctors are not entitled to fees, except a cure is performed, or the patient relieved.

5. MISCELLANEOUS MATTERS.

POWERS OF A COUNCILLOR.

A councillor is simply an arbitrator. He may give his judgment or decision, and may fix the amount of price or damage, but he cannot enforce his decision; and in case either of the litigants is dissatisfied, an appeal is made either to a higher councillor or to the chief.

DIFFERENCE OF PUNISHMENT.

There is no defined rule. Almost every offence against a chief may be punished by confiscation of property. Some chiefs exercise this power, but others do not.

GENERAL JUSTICE OF DECISIONS.

Though many cases of gross injustice occur, upon the whole it is the endeavour of the chiefs to decide justly and in accordance with Kafir law. In carrying oppression and injustice to the extent which some chiefs might desire, they are checked by the fact that their people would leave them, and obtain refuge with other chiefs.

[p.121]

SWEARING (UKUFUNGA).

Ukufunga, or swearing, is a mode of asseveration voluntarily and frequently made in the course of friendly and familiar conversation. A man is sometimes caused to swear in a law case, and his oath gives weight to his statement only inasmuch as he may be fined for taking a false oath. But as punishment for this offence is uncertain, and false swearers are not always punished, false oaths are not uncommon.

CASES OF APPEAL.

No chief except Khili demands a fee in cases not involving fine or eating up; but he causes the person in whose favour the case is decided to pay the costs.

APPROACHING PLACE OF CHIEF.

In former times, it was an offence against a chief for a man to approach the chief's kraal with his head covered by his kaross or blanket, and a fine was imposed for such; but Sandili has annulled the custom in his tribe.

BURNING GATE-POSTS.

To burn the gate-posts of the kraal of another is an actionable offence, and heavy damages may be obtained by the owner of the kraal.

EMPLOYMENT OF DOCTORS.

In all cases of serious illness a doctor must be employed. Should death ensue, and a doctor not have been called, the person whose duty it was to have done so is liable to a fine, paid to the chief.

[p.122]

DEATH REPORTED TO CHIEF.

In all cases of death a report must at once be made to the chief; otherwise a fine of from one to five head of cattle is imposed by the chief.

UNCLEANNESS AFTER CHILD-BIRTH.

Formerly a woman was not seen by her husband for about a month after the birth of a child, and the vessels which she used for food during this period were considered unclean, and cast away at the termination thereof. A husband may now see his wife and child two or three days after the birth, and the woman is now no longer regarded as unclean.

INFRINGEMENT OF CUSTOMS RELATING TO UNCLEANNESS OF WOMEN.

During menses, women may not partake of milk. Should this custom be infringed, the husband may be fined from one to three head of cattle, which are paid to the chief. Formerly the period of abstaining from milk, as it is termed, lasted for seven or eight days, but Eno recommended that it should last only during the flux, and his recommendation appears to have been generally adopted.

INDECENCY.

If a man wilfully exposes himself without the penis cover, he may be fined by the chief. Should a man maliciously, or otherwise, pull off the penis cover of another, a fine of from one to five head of cattle may be inflicted, payable to the complainant.

UNCLEANNESS.

Should a man relieve nature in the kraal of another, he is fined; the fine going to the chief.

[p.123]

UPUNDHLO.

Before the time of Gaika, a custom called upundhlo was in existence. By this custom the chief and people from the great place, occasionally went among the people, and forcibly carried off the virgins for the gratification of their sensual passions. This frequently gave rise to resistance and bloodshed, and Gaika finally abrogated the custom. From time to time immemorial it has been customary among the Kafirs, at the first appearance of menses with girls, to have feasting and dancing, at which the girls of the neighbourhood voluntarily assembled to take part. They are distributed to men who lie with them, but who are fined if any carnal connexion ensues.

About 1845, some young men in the Qailta district, at an occasion of this kind, sent about to the kraals in the neighbourhood to bring the girls who did not attend. Many of the old men were dissatisfied, saying it was an attempt to revive upundhlo; but the young men pleaded that they were only following "isiko," or the custom, and Sandili sanctioned and approved of it; since then the custom has been extensively followed.

Any man on these occasions seducing a virgin, or causing pregnancy, either marries her, or pays a fine to her relatives.

NOTE. The foregoing laws and customs refer to the Gaika tribe. They may be modified or changed in other tribes, in laws not involving the rights of individuals, but which refer to offences termed "sins" against the chief or state, and which it is at the chief's option either to pass over, to punish lightly, or to visit with heavy penalties. [p.124] It is also in the power of the chief wholly to suspend the operation of these laws in his tribe, though they may be revived by his successor.

(Signed) CHARLES BROWNLEE,
Gaika Commissioner.