Topic 2

Question 1

why was ACL only partially recognized historically

Answer 1

for the purposes of control

Question 2

did the interim constitution provide directly for recognition of customary law

Answer 2

NO - its exact status was unclear

Question 3

what did the constitutional principles which guided the final constitution required the final constitution to recognize

Answer 3

recognize indigenous law like common law and guarantee the application of customary law in the courts , subject to the constitution and legislation

Question 4

what did the epilogue of the interim constitution contain reference to that was subsequently removed from the final constitution

Answer 4

ubuntu but S v Makwanyane confirmed it as a constitutional values

Question 5

what were references to indigenous law replaces with in the final constitution

Answer 5

customary law

Question 6

what sections protect customary law in the final constitution

Answer 6

S30, 31 and S211 (3)

Question 7

What is recognition of ACL subject to in the constitution

Answer 7

S39 (2)

Question 8

what are 3 approaches courts take to recognition

Answer 8

1. non-recognition
2. recognition of ACL subject to constitution
3. Recognition and exempt from the constitution

Question 9

in what ways do we see the subjection of indigenous law to the constitution

Answer 9

The Constitution can either be applied directly or indirectly

The courts can develop or uphold indigenous law

Question 10

what are the two interpretations of the courts approach that himonga and bosch offer

Answer 10

1. strong interpretation

2. second interpretation

Question 11

what is the himonga and bosch strong interpretation

Answer 11

Declare law / conduct inconsistent with the Constitution and invalid to the extent of inconsistency. So, in developing the law, courts strike down a rule

Question 12

what is the himonga and bosch second interpretation

Answer 12

Adapt a rule of indigenous law to bring it in conformity with the spirit, purport and objects of the Constitution’s Bill of Rights (BoR)

Question 13

what are the two interpretations lehnert offers of courts power to develop ACL

Answer 13

Active and Passive

Question 14

Lehnert active development

Answer 14

Create a new rule: either by re-formulating existing indigenous law or formulating altogether a new rule

Question 15

Lehnert passive development

Answer 15

Look at current practices of people and recognise them as binding rules