The Settlement of Family Disputes in the Kgatla Customary Courts: Some New Approaches

A realistic assessment of the part customary law can be expected to play in the developing legal system of an African state must depend upon the availability of detailed information as to the way in which this body of law is now responding to the problems associated with changing social and economic conditions. Information of this kind can only be obtained through the study of actual disputes and the procedures followed in their settlement. Curiously, lawyers interested in customary law have on the whole neglected such an approach, concentrating their energies upon the discovery and systematic organisation of abstract rules purporting to constitute the legal norms of the society under investigation. Moreover, the method of research followed in most instances has been to question groups of informants assumed, to be knowledgeable about customary law, rather than to search for norms directly in the raw materials provided by the law in action, and this approach has inevitably insulated the investigator still further from actual disputes and the agencies involved in their settlement. Had the only means of finding out how disputes were actually settled been to sit and watch them in progress, lawyers might have been excused for leaving that to the anthropologists. But such information is widely available through other means: informants can be persuaded to reconstruct actual disputes from memory instead of racking their brains for abstract rules, and accounts of such disputes canbe found in the written records kept by many customary courts. This latter source, particularly, seems to merit more serious attention than lawyers have been prepared to give it in the past, and it is with it that this article is concerned. Drawing upon customary court records, it is hoped to illustrate both what this source consists of and the manner in which the customary family law of a single Tswana tribe is developing.