Op. Cit.

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Every Muvenda is ipso facto an advocate: all possess amazing powers of rhetoric and oratory and can speak for any length of time on any and all subjects, declaiming with forceful eloquence and convincing argument and appropriate gesticulations. From the time that they are quite young children they begin to acquire the necessary skill in debate, accepting victory or defeat in argument with equal impassivity of countenance; all give evidence when required, without a trace of embarrassment or self-consciousness. The judge generally adapts his verdict to the consensus of public opinion, knowing that in enforcing it he can always rely on the assistance of the majority of the people. Some men, such as Takalani, Tshivhase’s most important petty chief, achieve a high reputation for the order and equity of their court, and disputants may come from great distances, sometimes even from alien tribes, knowing that they will receive a fair hearing and honest judgment.

There is a sharp distinction made between criminal offenses which are noncompoundable and severely punished, in most cases by death, and civil cases which are compoundable by payment. In the latter category a large percentage of the cases arise out of questions in connection with lobola [marriage gifts] and are very complicated.

There is a highly centralized legal system, consisting of a hierarchy of courts, corresponding to the hierarchy of headmen. First there is a family gathering, in which an attempt is made to reach an amicable settlement before referring the matter to the khoro [courtyard] of the local headman. If, after the grievances have been aired in this court, satisfactory agreement cannot be arranged, the headman refers the complaints to the district petty chief. Here the case is considered in detail, both plaintiff and defendant being given a patient hearing; witnesses are brought and the matter thrashed out and often satisfactorily concluded. In cases where the judgment in the petty chief’s court is not acceptable to both parties, the case may be taken to the chief’s khoro. Here the khotsimunene has the full right of the chief and can act as judge. In order to bring a case before this supreme court a fee of three pounds or one ox must be paid to the chief, and any fine imposed by a lower court, whose judgment is upheld here, is always greatly increased after the findings of the supreme court. Certain cases, particularly non-compoundable crimes, are taken directly to the chief.

The procedure in these court cases is extremely interesting and instructive and throws a considerable light on the character and social life of the Bavenda. The most outstanding feature of the court is the orderliness of the procedure, combined with the untiring patience of the judge who listens, sometimes for hours on end, to impassioned eloquence, of which half the subject matter appears entirely unnecessary and irrelevant.

The case commences with the arrival of the disputants, accompanied by their witnesses and various other supporters, as well as members of their respective families. The parties are greeted at the khoro by the chief’s mukhoma. Most of the elders of the kraal gather together around the chief, who seats himself on a stone, usually under the shade of a tree in the middle of the khoro; the other people sit about him on the ground in no particular order. The plaintiff is asked to state his case, which he promptly proceeds to do with a great display of rhetoric, scarcely pausing to breathe until he has completed his evidence, when he suddenly stops as abruptly and unexpectedly as he started, saluting the judge and suffixing his oration with the word "Ndau!" (lion). During his speech nobody utters a word, except one important councilor, who keeps order. This man squats near the judge and interpolates the word "Mutavhatsinde!" or "Ndau!" in a high-pitched voice whenever the orator pauses for the fraction of a second. The word mutavhatsinde seems to be used in trials of commoners only, ndau being substituted for members of the royal family. As long as the speaker’s words are accompanied by these interpolations he has the attention of the court, and may not be interrupted by anyone. After the plaintiff has stated his case, the defendant addresses the court, and after his statement the witnesses are called to give their evidence. Any man may then ask questions, although most of such questioning is done by the old men living at the kraal, as they are experienced and have great social prestige. If the plaintiff and defendant wish to argue privately over any matter, the mutavhatsinde or ndau is omitted, automatically suspending the official nature of the discussion, until the argument is concluded and the attention of the court again solicited.

When the whole case has been thrashed out the chief or judge sums up with extreme efficiency, and it is unusual for the smallest detail of the proceedings to escape his vigilance. He declares the customary law and may administer sharp rebukes to offenders who have contravened this law too patently. Judgment is given, unless the case is postponed for further evidence, and the disputants depart to make way for the next case.

Sometimes, when the evidence is unsatisfactory, the defendant may, with the permission of the judge, challenge the plaintiff to consult a diviner as to whether he is guilty of the charge brought against him. The plaintiff dare not refuse, as his refusal would be taken by everybody as proof of the false nature of his charge. The plaintiff and defendant are then sent to consult a diviner, accompanied by an impartial messenger provided by the chief. The defendant pays the diviner a fee for opening his bag of magic dice and another fee for the consultation; if the divination upholds the charge against him the judge orders the defendant to pay the customary fine to the plaintiff; the defendant is also in danger of being branded a witch. On the other hand, if the defendant is pronounced innocent, the plaintiff must pay him an ox for defamation of character. In most cases where a charge fails the plaintiff is obliged to pay this fine for wrongful accusation; this acts as a check on unfair charges, as the price of discovery is too great. A charge is therefore seldom brought up to the court for judgment without good reason and a certain amount of convincing evidence.

All antisocial actions pollute the offender, and until he has been actually cleansed he is a danger to the society in which he lives and may bring the anger of the spirit world upon it. Certain crimes are so grave in their reaction on the group that the only method of purification is in the death or banishment of the offender; in this way only can the danger of contamination be removed and the normal equilibrium of the society restored. Other crimes have a less dangerous effect, and the offender may be cleansed by medicine and sacrifice or by compensating the injured party and then sharing in a ritual meal, in which one of the animals of the fine imposed upon him is eaten publicly in the khoro by all the people; the sharing in this meal is a symbol that the crime is expiated and that the criminal is readmitted into society.

All such offenses as assault, adultery, seduction, theft, damage to property, etc., are compoundable. The amount of the fine is only fixed in a few cases and generally varies according to the position of the offender, the enormity of the offense, and the culprit’s previous record and ability to pay.

Assault. The fine for assault is a sheep, a goat, or an ox. An assault in the chief’s capital is considered a serious offense and is more severely punished than if it had been committed on the veldt. In the same way an assault on any of the royal family, or on one of the chief’s officials, is treated as being only a degree less serious than an assault on the chief himself. Respect for the old men and superiors is so deeply rooted in the minds of the Bavenda that it is very unusual, and only in the face of great provocation, that an assault would be made upon a social superior or a person of authority. In all cases of assault one animal of the fine imposed is killed and eaten in the khoro.

Adultery. Adultery is compoundable by the payment of two head of cattle to the husband of the guilty woman; any child of the adulterous union is his property. Adultery committed with women living in the chief’s capital is compounded by three head of cattle. One animal of the fine is always killed and eaten in the khoro; the remainder, which the injured party receives, are killed and eaten by himself and his relations as soon as he returns home. There is a danger that the guilty woman might at a future date elope with the adulterer, and, if the increase of the fine had reached the number of animals that were in the original lobola paid by her husband, he would not be able to claim the return of his lobola from the adulterer; to avoid the possibility of this complication the animal or animals of the fine are eaten.

Damage to Property. This is usually caused by cattle straying into the lands and destroying crops. If this occurs in the daytime the herd boy is thrashed, and if at night the injured party is awarded one or more head of cattle according to the damage done. All injuries to animals are compoundable in the same way.

Arson. Deliberate arson is punished by a heavy fine; in the old days it was never less than ten head of cattle and ten goats. If the offender is poor his wife is returned to her parents and the lobola paid for her is given to the injured party. In the event of the offender having nothing he may be taken by the chief to be his slave. One animal of the fine for this offense is killed and eaten in the khoro.

Theft. For the theft of cattle the thief is liable for any claim the plaintiff likes to make. It is considered a very grave offense and, though the court may modify the plaintiff’s claim, the offender is generally heavily fined. The theft of goats, dogs, etc., is similarly compounded. For all other petty thefts, such as foodstuffs and cooking utensils, the fine is heavy, out of all proportion to the crime, as such petty thieving is considered entirely unnecessary and would never occur without an ulterior motive. A portion of the fine is given to the chief.

Theft of Weapons. For the theft of a spear or an ax the fine is an ox and a goat for the first offense and more for a subsequent one. The ox is paid to the injured party and the goat is killed and eaten in the khoro. It is believed that a man stealing the weapons of another is, in thus depriving him of his arms, endeavoring to bring about his death. . . .

The compoundable fines are usually paid at once, but in the rare cases where payment is delayed the headman sends a messenger to the home of the defaulter to remonstrate with him and explain that if he does not intend to fulfill the orders of the court he must go and live elsewhere. The defaulter pays the messenger a goat for his trouble, and if, after this warning, he still persists in ignoring the findings of the court, the chief may order some of his councilors to confiscate the necessary fine and remove any cattle or other property that he thinks fit as a punishment for contempt of court. In the past such an offender would be banished or his home would be burnt down, and he would stand a good chance of being killed by the angry elders.

A certain number of more serious crimes are uncompoundable. These include witchcraft, murder, homicide, incest, and abnormal sexual aberrations, all of which are considered to be crimes against society rather than against the individual and to necessitate the ritual cleansing of the society.

Witchcraft. Persons convicted of witchcraft, or believed to achieve nefarious ends by its practice, are driven out of the country, and their wives and children are confiscated by the chief. Sometimes the women’s relatives, objecting to their womenfolk being taken over by the chief in this arbitrary way, will offer him their equivalent in cattle; or sometimes a man may contrive to keep his wives and children by persuading one of his friends, with whom he has secretly left cattle, to lobole for them and then return them to him. Formerly witches and wizards were always killed, with all their family, by being thrown over a cliff.

Murder. Murder is punishable by death or banishment. The family of a murderer is taken by the chief and all his property confiscated as in the case of a man convicted of witchcraft. Occasionally a murderer who has no wives or property may be enslaved by the chief, who is thereafter responsible for him. If a young man without property, living at his father’s kraal, commits murder and escapes capture, the cattle and possessions of his father are confiscated by the chief, as the father is responsible for his son’s actions. Matricide, parricide, and fratricide are all considered as ordinary murder. In cases of infanticide, the murderer sometimes makes his peace with the chief by handing over to him one of his other children. In no case of murder is the family of the murdered man compensated, although occasionally one of his family may bring the murderer to summary justice by killing him outright.

Homicide. Little distinction is made between homicide and murder. If two or three influential persons swear to the dead man as having been the aggressor and to the absolutely accidental character of the crime, the culprit may be released with a fine.

Incest. Incest is a serious crime; the offender is considered to be a dog and is the subject of horror and scorn. He is tried in the chief’s court and is punished by death or banishment. Perverse sexual aberrations are similarly punished.

Planning or Conniving the Death of the Chief, if discovered, is always punished by death.

In cases punishable by the death sentence, if the offender tries to escape from justice, he may be followed into the bush by any man detailed by the chief for the purpose and there clubbed to death without a trial.1

1Staytn/an/an/an/an/an/a, , 218–224 (Oxford University Press. By permission).

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Chicago: "Op. Cit.," Op. Cit. in Primitive Behavior: An Introduction to the Social Sciences, ed. Thomas, William I. (New York: McGraw-Hill Book Company, Inc., 1937), Original Sources, accessed July 17, 2019, http://www.originalsources.com/Document.aspx?DocID=P985Y3EQ248EDM1.

MLA: . "Op. Cit." Op. Cit., in Primitive Behavior: An Introduction to the Social Sciences, edited by Thomas, William I., New York, McGraw-Hill Book Company, Inc., 1937, Original Sources. 17 Jul. 2019. www.originalsources.com/Document.aspx?DocID=P985Y3EQ248EDM1.

Harvard: , 'Op. Cit.' in Op. Cit.. cited in 1937, Primitive Behavior: An Introduction to the Social Sciences, ed. , McGraw-Hill Book Company, Inc., New York. Original Sources, retrieved 17 July 2019, from http://www.originalsources.com/Document.aspx?DocID=P985Y3EQ248EDM1.