SCL1501 PRACTICE TEST: UPDATED
QUESTIONS AND ANSWERS FOR
ADVANCED SKILLS COURSE FOR
LAW STUDENTS
Subject Subtopic: African Customary Law, Legal Pluralism, Constitutional
Interplay, and Customary Law Indicators
1. In the landmark case of Shilubana v Nwamitwa, the Constitutional Court
established key principles regarding the evolution of customary law. Under
what condition can a traditional authority alter its traditional customary
norms to align with the Bill of Rights? A) Only with the explicit, prior
statutory approval of the Minister of Cooperative Governance and
Traditional Affairs. B) Merely by showing a unilateral declaration of change
by the reigning traditional leader. C) By demonstrating that the traditional
community has adaptively developed its law over time in a flexible manner
that reflects current social realities while maintaining structural lineage
legitimacy. D) Traditional authorities are completely barred from altering
core customary law, as this power is reserved exclusively for the legislature
under Section 39(2).
Rationale: The Constitutional Court in Shilubana v Nwamitwa affirmed that
customary law is a living system that develops dynamically. Traditional authorities
have the power to develop their law to align with constitutional imperatives,
provided the development reflects the evolving social practices and consensus of
the community, rather than a rigid or static interpretation of historical rules.
2. Section 211(3) of the Constitution of the Republic of South Africa, 1996,
dictates the application of customary law by the courts. Which of the
following best expresses the true operational hierarchy established by this
section? A) Customary law is completely subordinate to common law and
must only be applied when common law is silent. B) Customary law must
be applied in all matters involving indigenous African citizens, irrespective
of statutory interventions. C) Courts must apply customary law when that
law is applicable, subject to the Constitution and any legislation that
specifically deals with it. D) Customary law is automatically codified by the
,SCL1501 PRACTICE TEST: UPDATED
QUESTIONS AND ANSWERS FOR
ADVANCED SKILLS COURSE FOR
LAW STUDENTS
Law of Evidence Amendment Act 45 of 1988, rendering independent
community evidence obsolete.
Rationale: Section 211(3) establishes that customary law enjoys original
constitutional status as a distinct legal system, but its application is explicitly
limited by two factors: it must be consistent with the provisions of the
Constitution, and it must yield to specific statutory legislation enacted to govern
those matters.
3. When a South African court is faced with a conflict of laws involving deep
legal pluralism, what is the primary indicator used to determine whether
customary law or common law applies to a specific transaction or dispute?
A) The racial classification of the litigants under historical statutory
frameworks. B) The subjective and objective lifestyle, choices, cultural
orientation, and implicit intent of the parties to the dispute. C) The
geographic location of the property or the venue where the court sits. D)
The formal registration of the legal dispute at a local traditional council.
Rationale: Under modern legal pluralism, the choice of law is determined by
looking at the "center of gravity" of the transaction or dispute, which evaluates
both the subjective intentions of the parties and objective indicators such as their
lifestyle, nature of the agreement, and cultural practices.
4. Under Section 3(1) of the Recognition of Customary Marriages Act 120 of
1998 (RCMA), one of the essential requirements for a valid customary
marriage is that the marriage must be "negotiated and entered into or
celebrated." According to recent Supreme Court of Appeal jurisprudence,
how is the requirement of lobolo treated? A) Lobolo must be paid in full on
the day of celebration for the marriage to come into existence legally. B)
Lobolo has been entirely declared unconstitutional as it violates the
equality clause regarding gender relations. C) While lobolo negotiations are
a vital indicator of intent, the full payment is not strictly mandatory if the
, SCL1501 PRACTICE TEST: UPDATED
QUESTIONS AND ANSWERS FOR
ADVANCED SKILLS COURSE FOR
LAW STUDENTS
families have agreed to terms and the couple is structurally integrated
according to living customary practices. D) Lobolo is a purely financial
contract governed exclusively by the Prescribed Rate of Interest Act.
Rationale: Contemporary jurisprudence (such as Mbungela v Mkabi) emphasizes
that living customary law is flexible. If the families complete the core negotiations
and agree on terms, the non-completion of physical lobolo payments does not
invalidate the marriage if the foundational customs of entering into the union are
satisfied.
5. What is the fundamental difference between "official customary law" and
"living customary law" within the South African legal system? A) Official
customary law is written in indigenous languages, while living customary
law is written only in English or Afrikaans. B) Official customary law is valid
under the Constitution, whereas living customary law is considered
illegitimate by the high courts. C) Official customary law consists of rigid,
ossified rules found in old statutes, law reports, and textbooks, whereas
living customary law consists of the actual, fluid, day-to-day practices
observed by traditional communities. D) Official customary law applies only
to traditional leaders, while living customary law applies to urban
communities.
Rationale: Official customary law represents historical, often distorted versions
trapped in colonial and apartheid codifications. Living customary law is the
dynamic, adaptive system of rules actually observed by the community, which the
Constitutional Court recognizes as the primary law to be applied.
6. In a dispute regarding traditional leadership succession, an abstract legal
argument rests on whether the rules of primogeniture can be rigidly
applied to exclude a female heir. How must a legal practitioner approach
this problem in light of Section 39(2) of the Constitution? A) Argue that
primogeniture is an absolute right under custom that cannot be altered
QUESTIONS AND ANSWERS FOR
ADVANCED SKILLS COURSE FOR
LAW STUDENTS
Subject Subtopic: African Customary Law, Legal Pluralism, Constitutional
Interplay, and Customary Law Indicators
1. In the landmark case of Shilubana v Nwamitwa, the Constitutional Court
established key principles regarding the evolution of customary law. Under
what condition can a traditional authority alter its traditional customary
norms to align with the Bill of Rights? A) Only with the explicit, prior
statutory approval of the Minister of Cooperative Governance and
Traditional Affairs. B) Merely by showing a unilateral declaration of change
by the reigning traditional leader. C) By demonstrating that the traditional
community has adaptively developed its law over time in a flexible manner
that reflects current social realities while maintaining structural lineage
legitimacy. D) Traditional authorities are completely barred from altering
core customary law, as this power is reserved exclusively for the legislature
under Section 39(2).
Rationale: The Constitutional Court in Shilubana v Nwamitwa affirmed that
customary law is a living system that develops dynamically. Traditional authorities
have the power to develop their law to align with constitutional imperatives,
provided the development reflects the evolving social practices and consensus of
the community, rather than a rigid or static interpretation of historical rules.
2. Section 211(3) of the Constitution of the Republic of South Africa, 1996,
dictates the application of customary law by the courts. Which of the
following best expresses the true operational hierarchy established by this
section? A) Customary law is completely subordinate to common law and
must only be applied when common law is silent. B) Customary law must
be applied in all matters involving indigenous African citizens, irrespective
of statutory interventions. C) Courts must apply customary law when that
law is applicable, subject to the Constitution and any legislation that
specifically deals with it. D) Customary law is automatically codified by the
,SCL1501 PRACTICE TEST: UPDATED
QUESTIONS AND ANSWERS FOR
ADVANCED SKILLS COURSE FOR
LAW STUDENTS
Law of Evidence Amendment Act 45 of 1988, rendering independent
community evidence obsolete.
Rationale: Section 211(3) establishes that customary law enjoys original
constitutional status as a distinct legal system, but its application is explicitly
limited by two factors: it must be consistent with the provisions of the
Constitution, and it must yield to specific statutory legislation enacted to govern
those matters.
3. When a South African court is faced with a conflict of laws involving deep
legal pluralism, what is the primary indicator used to determine whether
customary law or common law applies to a specific transaction or dispute?
A) The racial classification of the litigants under historical statutory
frameworks. B) The subjective and objective lifestyle, choices, cultural
orientation, and implicit intent of the parties to the dispute. C) The
geographic location of the property or the venue where the court sits. D)
The formal registration of the legal dispute at a local traditional council.
Rationale: Under modern legal pluralism, the choice of law is determined by
looking at the "center of gravity" of the transaction or dispute, which evaluates
both the subjective intentions of the parties and objective indicators such as their
lifestyle, nature of the agreement, and cultural practices.
4. Under Section 3(1) of the Recognition of Customary Marriages Act 120 of
1998 (RCMA), one of the essential requirements for a valid customary
marriage is that the marriage must be "negotiated and entered into or
celebrated." According to recent Supreme Court of Appeal jurisprudence,
how is the requirement of lobolo treated? A) Lobolo must be paid in full on
the day of celebration for the marriage to come into existence legally. B)
Lobolo has been entirely declared unconstitutional as it violates the
equality clause regarding gender relations. C) While lobolo negotiations are
a vital indicator of intent, the full payment is not strictly mandatory if the
, SCL1501 PRACTICE TEST: UPDATED
QUESTIONS AND ANSWERS FOR
ADVANCED SKILLS COURSE FOR
LAW STUDENTS
families have agreed to terms and the couple is structurally integrated
according to living customary practices. D) Lobolo is a purely financial
contract governed exclusively by the Prescribed Rate of Interest Act.
Rationale: Contemporary jurisprudence (such as Mbungela v Mkabi) emphasizes
that living customary law is flexible. If the families complete the core negotiations
and agree on terms, the non-completion of physical lobolo payments does not
invalidate the marriage if the foundational customs of entering into the union are
satisfied.
5. What is the fundamental difference between "official customary law" and
"living customary law" within the South African legal system? A) Official
customary law is written in indigenous languages, while living customary
law is written only in English or Afrikaans. B) Official customary law is valid
under the Constitution, whereas living customary law is considered
illegitimate by the high courts. C) Official customary law consists of rigid,
ossified rules found in old statutes, law reports, and textbooks, whereas
living customary law consists of the actual, fluid, day-to-day practices
observed by traditional communities. D) Official customary law applies only
to traditional leaders, while living customary law applies to urban
communities.
Rationale: Official customary law represents historical, often distorted versions
trapped in colonial and apartheid codifications. Living customary law is the
dynamic, adaptive system of rules actually observed by the community, which the
Constitutional Court recognizes as the primary law to be applied.
6. In a dispute regarding traditional leadership succession, an abstract legal
argument rests on whether the rules of primogeniture can be rigidly
applied to exclude a female heir. How must a legal practitioner approach
this problem in light of Section 39(2) of the Constitution? A) Argue that
primogeniture is an absolute right under custom that cannot be altered
