Past papers

Question 1

T/ F :The state policy during apartheid of refusing to recognise any application of customary law and applying Roman Dutch law as the only system of law is best described as indirect rule.

Answer 1

False

Question 2

T/F:Indigenous people welcomed the codification of customary law during colonialism as it provided a coherent and accurate account of customary law which was applied to provide certainty and uniformity in indigenous law

Answer 2

False

Question 3

T/F :As the South African Constitution recognises customary law as an independent system of law with an equivalent status as common law, individuals who voluntarily choose to live according to customary law cannot challenge the constitutionality of customary law rules.

Answer 3

False

Question 4

T/F:Himonga and Bosch argue that there is no real difference between the direct and indirect application of the Constitution to customary law and both result in the development of customary law in line with the spirit and objects of the Bill of Rights.

Answer 4

False

Question 5

T/F :If the South African Constitutional Court finds that customary law does not require the first wife to consent to her husband entering into another marriage but changes the customary law to require such consent, this would best be described as an active development of customary law

Answer 5

True

Question 6

Living customary law:

a.	Is dynamic and responds rapidly to 
        social change.
b.	Always accords with human rights.
c.	(a) and (b).
d.	None of the above.

Answer 6

The answer is D.

Question 7

Weak legal pluralism:

a. Is when the state recognises and
administers different legal orders and
therefore may be seen as diversity
within a single legal system.
b. Is when the state recognises and
administers different legal orders and
therefore is exactly the same as legal
centralism.
c. Is Austin’s notion that the law is the
command of the sovereign backed by
force of a sanction.
d. None of the above.

Answer 7

The answer is A.

Question 8

The universalist approach to human rights:
a. May be criticised for prioritising Western
interpretations of rights.
b. Is the idea that there is a universal
standard of rights which inhere to all
people and which all states are bound
to protect.
c. Risks striking down culture / custom on
the basis of applying a universal
standard of rights.
d. All of the above.

Answer 8

The answer is D.

Question 9

T/F:Individuals who voluntarily choose to live according to customary law cannot challenge the constitutionality of customary law rules as it may result in significant portions of customary law being struck down in conflict with the constitutional recognition of customary law

Answer 9

False

Question 10

T/F :Himonga and Bosch argue that the difference between the direct and indirect application of the Constitution to customary law is that the direct application ensures that customary law develops in line with the values and spirit of the Bill of Rights but the indirect approach may result in developments in conflict with the Constitution.

Answer 10

False

Question 11

T/F:Direct rule describes the situation in which the state recognised the application of customary law by traditional leaders but recognition was for the purposes of control and both traditional leaders and the application of customary law was subject to state oversight

Answer 11

False

Question 12

T/F: The codification of customary law during colonialism was often a distortion of living customary law, which allowed white magistrates to control the application of the law and limited the input of indigenous peoples as to their own law

Answer 12

true

Question 13

T/F:If the court finds that living customary law has changed to allow women to negotiate lobolo and gives effect to this change by recognising and allowing women to negotiate lobolo, this would best be described as an active development of customary law

Answer 13

false

Question 14

T/F:The relativist position on human rights, the idea that human rights derive from an individual’s humanity and therefore all states are bound to protect such standards of human rights, may be used to justify invasions of other cultures

Answer 14

false

Question 15

T/F:Living customary law does not have a clearly defined body of rules with clear categories and boundaries and is a completely uncertain system of law with no internal controls

Answer 15

false

Question 16

In Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC):
a) The Constitutional Court held that the
existence of customary law cannot be
ascertained by using the test for common
law custom as the common law test for
custom is unconstitutional and conflicts
with the values and objects in the Bill of
Rights.
b) The Constitutional Court held that the rule
that only males could succeed as a hosi
was unconstitutional as it conflicted with
the values in the Bill of Rights and struck
it down.
c) The Constitutional Court gave effect to the
community’s right to develop their law by
recognising that the community had
changed their law to allow a female to
succeed as a hosi.
d) All of the above.

Answer 16

The answer is C

Question 17

T/F:Courts may not develop customary law as section 8(3) of the Constitution only empowers courts to develop the common law in order to give effect to a
right in the Bill of Rights.

Answer 17

False

Question 18

T/F:The decision of Gumede v President of the Republic of South Africa may be
described as an active development of customary law because the Constitutional Court developed customary law by giving effect to living customary law.

Answer 18

False

Question 19

T/F:Indirect rule is explained as the process where customary law was substituted
with colonialist law in order to control the black population by establishing a
single legal order within which blacks were assimilated.

Answer 19

False

Question 20

T/F:In Shilubana v Nwamitwa the Constitutional Court declared the principle of male primogeniture in succession to traditional leadership unconstitutional
and allowed the appointment of Ms Shilubana as a hosi.

Answer 20

True

Question 21

T/F: Official customary law may overlap with and influence the evolution of living customary law.

Answer 21

true

Question 22

T/F: In Shilubana v Nwamitwa, the Constitutional Court decided whether the royal family, royal council and tribal council were empowered to appoint Ms Shilubana as chief by calling for further evidence on whether the community viewed these bodies as having such power.

Answer 22

False (check this when reading the case)

Question 23

T/F: In legal centralism the state recognises and administers different legal orders and is more akin to legal diversity and lack of uniformity in a single legal order.

Answer 23

False

Question 24

T/F: Section 211(3) of the Constitution provides that courts must apply customary law when that law is applicable, subject only to the Constitution.

Answer 24

False

Question 25

T/F: The Cape colony’s initial refusal to recognise customary law and application of Roman Dutch law as the only system of law in the Cape is best described as indirect rule.

Answer 25

False

Question 26

T/F: The universalist approach to human rights risks striking down culture / custom
on the basis of applying a universal standard of rights and may be criticised for prioritising Western interpretations of rights.

Answer 26

True

Question 27

T/F: If the court finds that living customary law has changed to allow women to negotiate lobolo and gives effect to this change by recognising and allowing women to negotiate lobolo, this would best be described as a passive development of customary law.

Answer 27

True (not making a new rule = active)

Question 28

T/F:According to Hart the difference between a habit and a rule is that rules have
a critical reflective attitude.

Answer 28

True

Question 29

T/F:In strong legal pluralism the state recognises and administers different legal
orders and is more akin to legal diversity and lack of uniformity in a single legal
order.

Answer 29

True

Question 30

T/F:In Shilubana v Nwamitwa the Constitutional Court declared the principle of
male primogeniture unconstitutional in succession to traditional leadership
and allowed the appointment of Ms Shilubana as a hosi.

Answer 30

True

Question 31

T/F: The decision of Gumede v President of the Republic of South Africa 2 may be
described as a combination of active and passive development of the law, as
the Constitutional Court developed customary law by looking at the practices
of a minority of people.

Answer 31

False

Question 32

T/F: The decision of Shilubana v Nwamitwa is best described as an active development of customary law by the court.

Answer 32

False

Question 33

T/F: The concept of the semi-autonomous social field positions state law as always
being subordinate to non-state law.

Answer 33

False