Intro to law cases

Question 1

What is the principle in Bhe case?

Answer 1

declared s23 of the BAA unconstitutional and the principle old male primogeniture unconstitutional. It declared certain aspects of the official customary law unconstitutional in relation to the law of succession

Question 2

What is the principle in Shilubana case?

Answer 2

The development of customary law by courts is distinct from the development in communities and must be mindful of s39(2) of the Constitution. The Van Brenda test cannot be applied to customary law where the development of the living law is the issue. Traditional leaders are empowered by section 211(2) of the Constitution to develop customary law

Question 3

What is the principle in Alexkor case?

Answer 3

Recognised that indigenous law is not fixed, it evolves to the people through its own lense, as stated in s39. Ehcih places common law and customary law on the same basis. States that when courts examine customary law they should be cautious of historical records but their content must be determined with reference to both the history and the usage of the community concerned

Question 4

What is the philosophical foundation stated in Y Mokgoro the influence of Ubuntu on SA Law?

Answer 4

Ubuntu embodies a philosophy that prioritises communal values, human dignity, mutual respect. It is expressed through a phrase that states a person is a person through other people

Question 5

What was the outcome of Bhe minority judgement?

Answer 5

Ngcobo found that the rule is discriminatory and violates the right to equality and dignity
guaranteed in the Constitution. He considered the importance of developing indigenous law to bring it in line with the rights in the Bill of Rights. It recognized that indigenous law is not static and has evolved over time. He held that the rule of male primogeniture must be adapted to allow eldest daughters to succeed to the deceased estate, ensuring that the benefits of the Constitution are not withheld from those who have been deprived of them for so long.

Question 6

What is the intersection of ubuntu and the Constitution as stated in Y Mokgoro the influence of Ubuntu on SA Law?

Answer 6

both the interim and final constitution established a new socio-political order based on human dignity, equality and unity. These constitutional values align with the key ubuntu principles such as human dignity, respect, inclusivity and collective unity. The Constitution also recognises Indigenous law and traditional leadership