LU1

Question 1

What provision accepted a separate legal system in South Africa

Answer 1

s211(3) of the Constitution

Question 2

Define Customary law in terms of the Law of Evidence Amendment Act 45 of 1988

Answer 2

the law of custom as applied by the Black tribes in South Africa

Question 3

Define Customary law in terms of the Recognition of Customary Marriages Act

Answer 3

customs and usages traditionally observed among the indigenous african peoples of South Africa and which form part of the culture of those peoples

Question 4

List the 8 key features of customary law

Answer 4

contract; family and marriages; groups as opposed to individuals as legal entities; constantly developing and changing; moment in time; concrete as opposed to abstract legal facts; african community government and administration; traditional authority courts and procedure

Question 5

List the sources of customary law

Answer 5

Customs and usages; legislation; scholarly and other writings; judicial precedent

Question 6

What are the requirements for proving a custom and usage?

Answer 6

• must have been in existence for a long period
• relevant community generally observes them
• must be consistent with or subject to the Constitution and other legislation

Question 7

True or False
Scholarly and other writings hold the same weight as other sources of customary law

Answer 7

False,
Scholarly and other writings carry less weight but the courts have emphasised the importance of research materials to determine how disputes were resolved and how punishment was done

Question 8

Define legal pluralism

Answer 8

Legal pluralism is the existence of multiple legal systems within one society and/or geographical area.

Question 9

Describe the narrow interpretation of legal pluralism (4 marks)

Answer 9

the coexistence of various officially recognised state laws
based on a dual systems theory of legal pluralism
where western forms of law and traditional forms of law operate in a single society and are officially recognised by the state
narrow legal pluralism is therefore the perception that the law consists of the norms and systems which the state officially recognise as basic rule

Question 10

Clarify what is meant by “state laws”

Answer 10

customary law - official customary law & living customary law

RD law, as influenced by English law, adapted + developed through judicial decisions and legislation

Question 11

What does SALRC mean?

Answer 11

the South African Law Reform Commission

Question 12

What is legal positivism?

Answer 12

law can only be found in tangible or empirically observable sources
(legislation, case law, or old authorities) if law is only found in tangible sources, it can’t be based on moral values

Question 13

Define legal centralism

Answer 13

idea that the law should be state sanctioned, uniform for everyone and other normative orderings are subordinate

Question 14

What case was brought on the grounds that the community used the land according to its indigenous customs, an assertion upheld in both the Supreme Court of Appeal (SCA) and the Constitutional Court, and on the basis whereof the land was returned to the community.

Answer 14

Alexkor Ltd and Another v Richtersveld Community and Others 2004 (5) SA 460 (CC)

the plaintiff, the community, brought the case forward - against the appellant, the mining company, which had an interest in the diamondiferous parts of the Richtersveld area - on the grounds that it used the land according to its indigenous customs

Question 15

What is the significance of Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of Republic of South Africa 2005 (1) BCLR 580 (CC) ?

Answer 15

These cases challenged the constitutionality of male primogeniture (eldest legitimate son being the only one who could inherit the deceased estate) and placed an interim rule of inheritance in accordance with the Intestate Succession Act. male primogeniture was subsequently declared unconstitutional

Question 16

Fill in the blank
…. was the case where the validity of the RCMA, KZN Act and Codes of Zulu Act were challenged as they, combined, had the effect of unfairly discriminating against wives of marriages entered into before the RCMA came into effect because it was in contrast to marriages entered into after the commencement of the Act where marriages were automatically in community of property.
certain sections were thus declared unconstitutional

Answer 16

Gumede (born Shange) v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC)

Question 17

ID the case referred to in the following statement:

This landmark judgement set precedent that the customary practice of ukuthwala cannot be utilised as a legitimate defence to criminal offences of rape, assault with intent to do grievous bodily harm (GBH) and human trafficking

Answer 17

Jezile v S and Others [2015] 3 All SA 201 (WCC)

Question 18

Set out the facts and legal rule of Monyepao v Ledwaba and Others [2020] ZASCA 54

Answer 18

both parties married ito customary law to the deceased

applicant brought an application for a court order stating that the customary marriage between the respondent and the deceased had been dissolved prior to the deceased’s death or she forfeit the marriage benefits

but the claim was dismissed cause the appellant didn’t prove the marriage had been dissolved by divorce → even though the respondent was in a civil marriage to the third party whilst the deceased was still alive the CIVIL MARRIAGE was invalid and not the customary marriage.

Question 19

How can customary law be decolonised?

Answer 19

Incorporating living customary law in legal education
The manipulation and distortion of living customary – power dynamics.
The endurance and social legitimacy of living customary law
Adopting measures of adhering to constitutional principle and international and regional human rights.
Universal application of human rights vis-à-vis cultural rights.
Different worldviews presented by living customary law and common and trying to marry them as one body of law.
Ascertainment change in the context of judicial decision-making.
Shift in the theoretical framework for customary law
The interdisciplinary teaching of customary law

Question 20

In terms of s 1(3) of the Law of Evidence Amendment Act how are conflicts between different systems of regional customary laws resolved?

Answer 20

a) If foreign law is an issue – private international law.
b) If 2 or more territorial systems of law are included:
The court must apply the choice of law from its own private international law.
The court must then ask whether the customary law or state law of the foreign country is applicable

Question 21

the Law of Evidence Amendment Act (sect. 1(3)) is used to resolve conflicts of customary law in what 3 ways?

Answer 21

Courts apply the law agreed by participants
Courts may infer tacit or implied agreements: prior conduct, nature or form of transaction and parties’ cultural orientation.
Choice of law rules: apply the law of the place defendant stays/works – one law exists in that place.

Question 22

List the 5 principles that the court has established for choice of law rules?

Answer 22

Express agreement between parties
implied agreement between parties
cause of action
way of life
distinctive cultural practices

Question 23

Briefly summarise the position, recognition and application of customary law prior to the Constitution?

Answer 23

Enjoyed only limited recognition
Could be applied by all courts
Could be amended or repealed by legislation
Could not be opposed to the principles of public policy and natural justice

Question 24

From s 211 (3) of the Constitution, the courts are to apply customary law under the following conditions:

Answer 24

a) It is compatible with the Constitution
b) If it is not amended by legislation
c) If it is applicable

Question 25

What are the implications of s211(3) of the Con?

Answer 25

1. All courts must apply and therefore also recognise customary law.
2. The recognition and application of customary law are subject to the Bill of Rights.
3. The recognition and application of customary law are subject to legislation that specifically deals with this matter. This implies that only legislation aimed at amending customary law is relevant and not legislation in general.
4. Courts, therefore, have the discretion to decide whether customary law is applicable in a particular case. This discretion should be exercised in agreement with the general principles of choice of law.

Question 26

Define customary law in terms of the Law of Evidence Amendment Act?

Answer 26

“law of custom as applied by the Black tribes in South Africa.”

Question 27

Discusss the third element of the definition of customary law in the Recognition of Customary Marriages Act?

Answer 27

The customs and usages of African people must form part of culture of those peoples.
Term culture.
Culture – collective of aesthetic expression (sculpture), intellectual or artistic;

Question 28

Discusss the first element of the definition of customary law in the Recognition of Customary Marriages Act?

Answer 28

Customary law is flexible and everchanging Bhe v Magistrate Khayelitsa 2005
Despite being ‘multiple’ customary law keep common characteristics: oral traditions, communalism, collective responsibility, symbolism, and non-separation between the law, religion, and morality.
Ubuntu is tied in African legal tradition.

Question 29

Discusss the second element of the definition of customary law in the Recognition of Customary Marriages Act?

Answer 29

Race issue
Black Africans are usually grouped on the basis of language and other cultural features and practices.
Black Africans from other countries do not qualify.
Customs and legal systems differ from group to group.

Question 30

What are the legal consequences for engagement gifts?

Answer 30

These gifts – symbol of engagement promise – clothing, blankets, household articles and cattle.
Ownership passes to the mother or father upon delivery.
Upon termination of engagement – blameworthiness is considered:
If the man is to blame – the gifts need not to be returned.
If the woman is to be blame – the gifts must be returned.
If terminated by agreement – gifts usually returned to giver, or parties reach a consensus on what happens.

Question 31

What are the legal consequences for lobolo handed over during the engagement?

Answer 31

A reasonable amount is usually hander over before marriage as per customary law.
Ownership of property and any accrual (livestock) remain vested in the giver until marriage is concluded – bears the risk.
After marriage is concluded, it becomes the recipient’s property (Outside KZN no accrual is added to the original number).
Upon termination of engagement – lobolo gifts, plus accrual must be returned regardless of fault.

Question 32

What are the legal consequences for KwaZulu-Natal -sisa cattle?

Answer 32

Section 58(1) of the Code of Zulu Law 16/1985 sisa is any cows given before marriage is concluded.
Upon termination of engagement – lobolo gifts, plus accrual must be returned regardless of fault.

Question 33

Discuss the requirements for a traditional customary marriage

Answer 33

The prospective spouses -
must both be above the age of 18 years; and
must both consent to be married to each other under customary law.
The marriage must be negotiated and entered into or celebrated in accordance with customary law.

Question 34

Explain the effect of registration of a customary marriage

Answer 34

Registration merely provides proof that a customary marriage does indeed exist. Failure to register a customary marriage does not affect the validity of the marriage

Question 35

Compare the status of a wife in a customary marriage a before and after the promulgation of the RCMA (section 6).

Answer 35

In terms of a polygamous marriage, the Constitutional Court in Gumede preserved the status quo regarding the application of customary law to the proprietary consequences of polygamous marriages entered into before the RCMA came into force while it changed the status quo in respect of monogamous marriages concluded in the same period

Question 36

Discuss dissolution by divorce

Answer 36

Since 15 November 2000, customary marriages – whether contracted before or after this date – may be dissolved only by a court order
A customary marriage can be dissolved only on the ground of the irretrievable breakdown of the marriage (section 8(1) of Act 120 of 1998).
a question of fact to be determined by reference to all the relevant facts and circumstances of the case.
In the light of all the available evidence, is there a reasonable prospect that the parties will be able to restore a normal marriage relationship

Question 37

What guidelines (or factors) are there for what happens to the marriage goods when the marital union dissolves

Answer 37

The amount of blame on either side
The number of children born of the marital union
The portion of marriage goods already delivered

Question 38

Section 30 of the Constitution shapes the basis for a new approach to customary law by providing:

Answer 38

“Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”