Chapter 5 - introduction to customary law of persons

Question 1

Describe the law of persons

Answer 1

It is the division of private law that determines:

1. who and what are legal subjects?
2. what classes of legal subjects can be identified?
3. what is the legal status of of each class of legal subject?
4. when and how do legal subjects originate and lapse?

Question 2

What is a legal subject according to original customary law?

Answer 2

A natural person who is a bearer of rights, powers, and duties and not a juristic person. However, the individual human being has always shared his or her rights, powers, and duties with his or her agnatic group.

Question 3

What factors influence an individual’s status within the agnatic group?

Answer 3

1. age
2. sex
3. marital status
4. legitimacy or illegitimacy of birth
5. adoption
6. disinheritance
7. family and house rank
8. mental state

Question 4

What is patria potestas?

Answer 4

it is the authority of the father. In Roma law, this authority included authority over the life and death of member of the family. In customary law, the head of the agnatic group does not have this authority

Question 5

What is modern customary law?

Answer 5

It refers to the customary law of the traditional people after the enactment of the Black Administration Act 38 of 1927.

Question 6

In original customary law, at what age was a child not considered accountable?

Answer 6

6 years

Question 7

In modern customary law, what is the age of majority?

Answer 7

18 years

Question 8

In the Natal Code of Zulu law, what is the age of majority?

Answer 8

21 years

Question 9

In original customary law, what was the influence of sex on a person’s status?

Answer 9

Only males could succeed in positions of status. Women were not without status, however, although their powers were limited.

Question 10

In modern customary law, what is the status of the female influenced by?

Answer 10

It is influenced by the majority. This means that, today, the legal position of unmarried women compares favorably with that of males.

Question 11

What is family rank?

Answer 11

The hierarchy of family members within the family group

Question 12

What is house rank?

Answer 12

The hierarchy of various houses that make up a household.

Question 13

Explain in depth the principle of family rank.

Answer 13

Tebogo, Tlhalefo, and Mahlatse are the three bothers. Tebogo is the eldest, and Mahlatse is the youngest. The brothers are married, and they each have two sons. The sons of Tebogo, namely Tebogo Junior and Lethabo, hold a higher rank than those of Tlhalefo and Mahlatse, regardless of whether the sons of Tlhalefo and Mahlatse are older or younger than those of Tebogo. For instance, while Leano and Ontshiametse are older than Tebogo Junior, Tebogo Junior still has a higher rank than Leano and Ontshiametse on the grounds that the rank of his father, Tebogo, is higher than that of Tlhalefo and Mahlatse.

Question 14

Explain in depth the principle of house rank.

Answer 14

The household comprises three sections, namely A, B and C. Within each section, there are two houses in particular hierarchy. These are indicated as 1 and 2. Among some people, all the houses in section A have a higher ranks than those in sections B and C. And those in section B have a higher rank than those in section C. In order to determine the rank of a particular person, therefore, we must take into account his or her position within a specific section and within a specific house.

Question 15

In 1960, Thabo entered into a valid customary union with Zandi. Twin boys, namely Jabu and Zazu, were born of their marriage in 1969. In 1964, Thabo decided to enter into a customary marriage with Fikile. Fikile gave birth to a son named Senzo and a daughter named Lungile. In 1985 Thabo died. In the same year (1985), Zandi’s house (from now on referred to as house Z) concluded an agreement with Fikile’s house (from now on referred to as house F), in terms of which house Z had to provide five head of cattle to house F, which house F required as lobola for Senzo (21). House F appointed Lungile (19) as the source from which the debt was to be repaid. House Z delivered the five head of cattle, but when house F received lobola for Lungile in 1987, house F refused to transfer the lobolo to house Z because the debt had prescribed. As a result, house Z decided to take house F to court for the outstanding debt.

Question 16

Discuss the legality of the legal position of twins concerning succession as head of family

Answer 16

In some traditions, the eldest twin, which is Jabu in this case, is regarded as having a higher standing, therefore making him the successor. In other traditions, the youngest twin, which is Zazu in this case, is regarded as the eldest, therefore making him the successor.

Question 17

Discuss the legality of the agreement between house Z and house F and the defence of house F that the claim has prescribed.

Answer 17

The agreement between the houses is legal. The transfer of property between houses must be reasonable and just for the cause. Such transfer cannot take place arbitrarily. The family family head must consult the members of the house concerned. The claim that the debt has prescribed is invalid. There is no such thing as prescription in customary law.

Question 18

Discuss the legality of the decision of house Z to take house F to court.

Answer 18

House Z cannot take house F to court. This is because the family head, namely, Thabo, cannot simultaneously represent one house as plaintiff and the other house as defendant. The principle involved here is that a household cannot be divided against itself. In modern indigenous law, however, the woman belonging to the house with the claim can initiate the claim against the family head or the other house.