CH 11 Contractual Obligations in Customary Law

Question 1

Contractual obligations in
Customary law

Answer 1

1) Customary law recognises the ability of people to contract
2) Contract must be In line with Constitutional values
3) Traditionally family heads concluded contracts on behalf of their
families

Question 2

2) Contractual obligations in
Customary law

Answer 2

4) Family head liable for contracts by family member with his consent
5) Contractual liability because he was expected to exercise control over
whatever the family members acquired
6) Family head also had delictual co-liability

Question 3

Lobolo contract

Answer 3

1) Defined in s 1 of the RCMA
2) Contract is concluded during marriage negotiations
3) Husband or family head have an obligation to give lobolo

Question 4

Lobolo contract PT 2

Answer 4

4) Wife’s family head has a right to receive the lobolo
5) Receiving lobolo signifies consenting to the marriage
6) Lobolo distinguishes valid marriage from an informal relationship

Question 5

Lobolo

Answer 5

1) Lobolo amount various among communities
2) Non-payment amounts to a breach of contract
3) Outstanding lobolo may be claimed through a court action or the
ukutheleka custom

Question 6

Types of contract

Answer 6

1) Ukwethula contract
2) Isondlo contract
3) Sisa/Mafisa contract

Question 7

Ukwethula contract

Answer 7

1) Interhouse debt created where house property is used for the benefit of another house
2) Includes property taken from one house to establish another house

Question 8

Ukwethula:
Applies in polygamous marriages

Answer 8

1) Husband uses house property to provide lobolo for himself to marry
another wife
2) Family head lends property of one house to another in order to provide
lobolo for the marriage of a son from the last-mentioned house
3) Family head takes property from one house in order to pay a debt of
another house

Question 9

Isondlo contract

Answer 9

1) Payment by a natural guardian of a child to a person who takes care
of that child
2) Debt must be settled when the child’s natural guardian claims his or
her parental responsibilities
3) Must also be settled when the child’s natural guardian claims any right that may accrue as a result of the child
4) Questions regarding the role of the best interest of the child principle

Question 10

Sisa/Mafisa contract

Answer 10

1) Whereownerof livestock deposits with a third party for his benefit
2) Ownership of the livestock remains
with the depositor
3) Borrower uses and takes care of the livestock as if they were his
4) Progeny (increase) remains with the depositor
5)Borrower entitled to other products of the livestock

Question 11

What does Sisa contract symbolise?
What are its conditions

Answer 11

1) Sisa contract reflects the ubuntu philosophy that underlies customary law
2) Borrower may not attach the livestock in the payment of his debts
3) Depositor runs the risk of loss not caused through the sisa holder’s
negligence