Isaac Schapera

Premarital Pregnancy and Native Opinion. A Note on Social Change

In his recent writings on the subject of marriage and kinship Malinowski has repeatedly emphasized what he terms the principle of legitimacy. By this he means the rule found in all human societies that a woman has to be married before she is allowed legitimately to conceive. Roughly speaking an unmarried mother is under a ban a fatherless child is a bastard. This is by no means only a European or Christian prejudice; it is the attitude found amongst most barbarous and savage peoples as well. Where prenuptial intercourse is regarded as illicit and immoral marriage is obviously the essential prelude to the birth of legitimate children i.e. children having full social status in the community. But even where prenuptial intercourse is tolerated this tolerance does not extend to liberty of conception. The unmarried boys and girls may indulge freely in sex but there must be no issue. An unmarried mother will be subjected to punishment and become the object of scorn her child possibly killed or aborted while often the putative farther is also penalized unless he marries the girls. Almost universally a child born out of wedlock has a different status from the legitimate offspring usually very much to his disadvantage. Facts such as these show that the group of mother and child is considered in the eyes of the community and that the sociological position of husband and father is felt to be indispensable. (excerpt)

Marriage of Near Kin among the Tswana

In order to ensure that the data for both are of the same order throughout the discussion will be confined to the marriages of their male members. In my earlier paper I included also the marriages of sisters and uterine descendants many of which were with people whose ancestry I did not ascertain in sufficient detail for my present purpose. Their omission will explain why despite the addition of new material the total number of marriages dealt with here is smaller than before. (excerpt)

Western civilization and the natives of South Africa : studies in culture contact

1. The Old Bantu Culture2. Present-Day Life in the Native Reserves3. Christianity and the Religious Life of the Bantu4. The Educated Native in Bantu Communal Life5. European Influences upon the Development of Bantu Language and Literature6. The Effect of Western Civilization on Bantu Music7. The Economic Condition of the Rural Natives8. Social and Economic condition of the Urban Native9. The Economic Position of the Bantu in South Africa10. Native Administration in South Africa11. Race-Mixture and Native Policy in South Africa12. Bantu Grievances

Notes on Some Herero Genealogies

Summary The material published in this paper may be regarded as a factual contribution to the study of Herero history and social organization. Except for the genealogies themselves, which are mainly of historical value, it does not add much that is new to our knowledge of the people, but it does provide some concrete data in the light of which we can examine various current assumptions or differences of opinion about social groupings and marriage regulations. The genealogies confirm the statements of previous writers that the Herero practise cross‐cousin marriage, but not marriage between parallel cousins. They show also that a man often takes additional wives from among the relatives of his first, notably younger sisters; and, what has hitherto received little attention, that the wives of closely‐related men are fairly often closely‐related too. Among the otuzo (patriclans) named by informants are three not mentioned by earlier writers. Reference is also made in Text I to what seem to be “fraternities” o...

Tswana Legal Maxims

Like many other peoples, the Tswana of Bechuanaland Protectorate often cite proverbs and similar sayings to specify rules of conduct. In this paper I discuss a number of those generally used in the context of litigation; some are statements of general principles, akin to the ‘maxims’ of Roman law, others relate more particularly to judicial procedure. Many were actually quoted at trials witnessed by myself or recorded by clerks of tribal courts, the rest were mentioned incidentally by informants when discussing points of Tswana law. The great majority are classed by the people themselves as ‘proverbs’ ( diane , sing. seane ), and some of these (though not all) are included in the collections of Tswana proverbs published by Plaatje and Seboni; others were introduced simply by some such phrase as Molao ware , ‘The law says’, or Kamokgwa waSetswana , ‘According to Tswana custom’. Since I am not here concerned with their linguistic aspects, I do not attempt to distinguish recognized proverbs from other kinds of maxim.

The Sources of Law In Tswana Tribal Courts: Legislation and Precedent

The Tswana peoples referred to in this paper inhabit the Bechuanaland Protectorate, where they number altogether about 270,000. In pre-European times they derived their subsistence mainly from animal husbandry and the cultivation of crops, each household producing its own food. Today they are still essentially small-scale subsistence farmers. But to satisfy the new wants developed by contact with Western civilisation over the past century, many persons also pursue new occupations, including above all temporary wage-labour for Europeans. In some areas more than half the able-bodied men are away every year working in the Union of South Africa. Their absence, often prolonged, has led to conspicuous changes in traditional customs and beliefs, and, as will be seen from some of the examples given below, has also given rise to new grounds for litigation.

Tswana Concepts of Custom and Law

When discussing rules or modes of conduct, Tswana generally referred to them collectively as mekgwa lemelao (plural forms respectively of mokgwa and molao; le - is a conjunctive formative). In the standard Tswana dictionary, mokgwa is defined as “a custom, a habit, a peculiarity”, and molao as “a law”; and when used together in a single phrase they were usually translated “custom(s) and law(s)” or, since the word order was flexible, “Law(s) and custom(s)”. The following are some examples, taken from written texts: In a Malete case (27.1938), a widow claimed and was awarded her late husbands cattle, but the judge told her that, kamokgwa lemolao waSeiswana , “according to Tswana custom and law”, she could not take them with away from her husbands ward.

Early European Influences on Tswana Law

In the closing paragraph of his inaugural lecture Law and Language , Professor Allott referred to what he termed “a daunting obstacle” to the intensive study of African legal systems. That obstacle is the rapid disappearance, before our very eyes, of the traditional systems that we have proposed to study. A generation ago there would not have been that difficulty; but today the traditional tribunals have vanished in many African countries where their place has been taken by statutory local courts. Even where the traditional courts appear to have survived, at least in name, they are usually affected by the impact of western law and institutions and of central government control. Those words were written in 1965. How true and necessary they were is shown by the fact that more than fifty years previously—even more than “a generation ago”—the impact of “western” influences upon the Tswana peoples of the Bechuanaland Protectorate (now the Republic of Botswana) had already led to many changes in the indigenous legal system, although, at that time, the “traditional courts” still survived virtually intact and not merely “in name”. The nature and extent of those changes can be readily ascertained by the fortunate chance that, there are still available the records of approximately 470 cases tried, over a period of six and a half years, in the highest traditional court of the Ngwaketse, a major Tswana chiefdom.