Case Law and Legislation Flashcards
What does Section 1(1) of the Law of Evidence Amendment Act stipulate?
Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: provided that indigenous law shall not be opposed to the principles of public policy and natural justice provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi other similar custom is repugnant to such principles.
What does section 6 of the RCMA state and how is it significant for customary marriages?
A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, to including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.
What did the court rule as unconstitutional in Bhe v Khayelitsha Magistrate?
The rule of male primogeniture
What does section 2 of the Constitution state?
The Constitution is the supreme law of the Republic; any law or conduct that is inconsistent with it is invalid, and the obligations it imposes must be fulfilled.
What does section 39(2) of the Constitution state?
When interpreting legislation, or when developing common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
What does section 15(1) of the Constitution state?
Everyone has the right to freedom of conscience, religion, thought, belief and opinion
What does section 15 (3)((a)(ii) of the Constitution state?
“Recognise systems of personal and family law under any tradition or religion.”
What does section 211(3) of the Constitution state?
The courts must apply customary law whenever it is applicable, subject to the Constitution and any legislation that specifically deals with customary law.
What does section 212(2) of the Constitution state?
(a) National or provincial legislation may provide for the establishment of houses of traditional leaders
(b) National legislation may establish a council of traditional leaders.
What does section 172(1)(a) of the Constitution state?
A court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.
Explain the connection between section 2 and section 172(1)(a) and (1)(b) of the Constitution
Section 2 states that the Constitution is the supreme law of the Republic; any law or conduct that is inconsistent with it is invalid, and obligations it imposes must be fulfilled.
Section 172 (1)(a) states that when deciding a matter that’s within its power, a court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency and (b) make an order that is just and equitable.
Section 172 is an extention of section 2 whereby it states what the court is required to do once it has been identified that a law or conduct does not align with the principles of the Constitution.
What does section 4(9) of the RCMA state?
Failure to register a customary marriage does not affect that validity of the marriage
What does section 3(1) of the RCMA state regarding the requirements of a customary marriage
**clue: RCMA was enacted on 15 November 2000
- The prospective spouses must be or be above the age of 18
- Both parties must consent to be married under customary law
- The marriage must be negotiated, entered into or celebrated in accordance to customary law.
What did the court state in Maisela v Kgolane regarding law that must be applied to the case and how is it an issue?
The court stated that the appellant/respondent should have pled for the application of customary law which goes against s211(3) which states that the courts must apply customary law whenever it is applicable, subject to the Constitution and any legislation that specifically deals with customary law.
Indigenous law should be used if sale of asset occurred under those principles and is wrong to apply customary law if common law principles of sale are unknown in customary law.
What does the Traditional Leadership and Governance Framework state about women and being appointed into positions?
It states that women be appointed as queens, senior traditional leaders, and headwomen and also women may hold elected office.
