CHAPTER 11 CUSTOMARY LAW OF DELICT Flashcards
- Siviwe the second born son of Atandwa entered into a contract with Taku.
Siviwe agreed to sale two bulls to Taku without his father’s consent. Critically
evaluate the validity of the contract under traditional customary law (4)
This is a matter dealing with contractual capacity under African Customary law.
According to traditional Customary law, only family heads have full capacity to enter
into contracts under customary law. (1). They can conclude contracts on behalf of their
families and individual members of the family. (1) Where family members contract
themselves, with the consent of the family head, the family head will be liable (1).
Under Customary law, family members cannot be sued alone but the family head
would be joined as a co-defendant. (1) Therefore, in the scenario above, the contract
is invalid because of the lack of consent by the family head (1).
- Minho decides to move to South Africa from Korea to conclude a customary
marriage with Kitty. However, Minho feels uneasy about the practice of lobolo
and does not pay it in full. Kitty’s father, the family head, is furious and blames
you for encouraging Minho to move South Africa and marry Kitty. What advice
would you give to him to claim the outstanding lobolo from Minho? (3)
Lobolo is defined in section 1 of the Recognition of Customary Marriages Act 120 of
1998 (1) as property in cash or in kind, which a prospective husband or the head of
his family undertakes to give to the head of the prospective wife’s family in
consideration of a customary marriage (1). Lobolo may be enforced through a court
action while other tribes may enforce outstanding lobolo through the ukutheleka
custom. (1) In terms of this custom, Kitty will return to her parental home to enable
Minho to exercise a phuthuma duty (1) that will require him to conclude negotiations
leading to paying the outstanding lobolo amount. (1)
- Distinguish between ukufakwa and ukwenzelela contract (4)
Ukufakwa is a custom whereby the father of a young woman requests from relatives,
contributions towards expenses to be incurred in respect of various traditional
ceremonies for the young woman, which creates a debt. (1) This debt is to be repaid
from the lobolo received for the young woman. (1) Ukwenzelela is in respect of a
request from friends or relatives to contribute to the lobolo of a son or any other
expenses relating to the son’s marriage ceremony. (1) This contribution is to be
refunded from the lobolo received for the first daughter of the recipient. (1)
- Bonelo a resident of Hammanskraal, Pretoria is the owner of a herd of cattle
and goats. Unfortunately, a cholera outbreak has broken out and Bonelo’s
grasslands are located within the risk area of the outbreak. The outbreak is
transmittable between humans and livestock. In an effort to protect his
livestock, Bonelo places his cattle and goats in Tanaka’s possession. Tanaka
has plentiful grazing which is located outside of the risk area. Whilst Bonelo’s
livestock is in Tanaka’s possession, their numbers double and milk is produced
on a daily basis.
4.1 What type of contract is described in the scenario above? (1)
A sisa/mafias contract.
4.2 Who can be held liable for cattle that is negligently lost while under Tanaka’s
possession? (2)
In terms of the sisa/mafisa contract, the borrower is to report any losses to the owner
immediately. (1) Where Tanaka neglects or fails to report the loss to the owner, Bonelo,
she has the duty of replacing them. unless he can show the livestock died naturally or
was stolen. (1)
4.3 Can Tanaka use the cattle in the scenario above to settle her own debts?
Give reasons for your answer (3)
Tanaka cannot use the cattle to settle her own debts (1) because Bonelo has a right
to reclaim possession even from a bona fide third party. (1) This is because the owner
retains ownership of the stock and therefore has a right of vindication against unlawful
possession. (1)
who is responsible for delictual liability?
the family head
true or false?
a family head liable for delicts committed by family members?
true
what are the main examples of delicts under customary law?
adultery, witchcraft, seduction, and ukuthwala
defamation under customary law applies to what?
witchcraft
what is Ukuthwala?
the custom to which a man
and a woman resort where they have agreed to marry each
other, but there is an obstacle to their marriage and that
becomes a delict when it does not result in a negotiated
marriage because of the refusal of the bride’s family to
consent to the marriage
Indicate instances where defamatory words would not amount to an actionable
an offense under customary law
Where someone apparently utters defamatory words during a heated quarrel, no action lies if shortly thereafter the wrongdoer gives a public apology. No action lies also if someone addresses defamatory
words in good faith and without malice to a person in authority.
Indicate the applicability of the principle of prescription in customary law disputes.
Prescription means a debt or a claim which applies to the type of debt in
question is extinguished after the lapse of time as contemplated in the
Prescription Act.
Although the claim or debt is valid, the plaintiff is prevented by law from recovering it after the time that applies to that debt or
claim has passed
Prescription of actions has never been part of customary law.
where does damages go to for Defloration of a virgin ?
go to the mother of the seduced woman.
what is a mvimba beast?
he beast claimable for each
pregnancy where seduction of an unmarried woman is followed by pregnancy
