Lecture 14 Shubilana

Question 1

Wat is de carmichele judgment?

Answer 1

obligation that law be developed
so as to bring it in line with the objective normative
order of the new South Africa.

Question 2

In welke zin had South Africa een mixed legal system?

Answer 2

• Civil law system inherited from the Dutch colonizers (Roman Dutch law)
• Common law system inherited from the British colonizers
• African customary law (NB: the law of most South Africans)

Question 3

Wat gebeurde er in Zuid Afrika na de afschaffing van apartheid?

Answer 3

a legal transfer of
power and a transformation of the current laws. Made a constitution, all lower laws were brought in
line with the constitution.

Question 4

Waarom vind Mr Nwamitwa dat hij recht heeft op de troon?

Answer 4

Volgens Customary (gewoonte) law heeft hij recht op de throne omdat hij de oudste zoon is

Question 5

Wat is de mening van customary law van Shilubana?

Answer 5

customary law is dynamic and adaptable; amend customs and traditions to reflect
changed circumstances (succession laws about gender equality)

Question 6

Wat is Mr Nwamitwa’s argument tegen Shilubana?

Answer 6

it’s not only about gender but also about lineage (traditional family line). Furthermore
not custom and not fair to choose a woman. Discrimination is justifiable. The Royal family doesn’t
have the authority to develop customs and traditions of the clan and restore the Hosi position which
was removed pre-constitutional.

Question 7

Wat zeggen rural women over customary law?

Answer 7

emphasise that customary law is a flexible, living system of law,
which develops over time to meet the changing needs of the community. Inheritence of Hosi was not
automatic and prescribed > Court agrees

Question 8

Wat is de final decision?

Answer 8

The arguments and expectations from Nwamitwa are not convincing and not outweighing the fact
that traditional authorities should adapt their customs in accordance with the values and rights of
our democracy as embodied in the Constitution.