LCP4804 2021 super semester
Assignment 2: 728068
Questions:
1. Critically evaluate the extent of the success of the courts, in their transformative efforts to
achieve the customary law that is envisioned by the Constitution, in Mabena v Letsoalo 1998 (2)
SA 1068 (T) and Mabuza v Mbatha 2003 (7) BCLR 43 (C)
2. With reference to the Covid 19 pandemic and how it is being handled by South Africans in
general, and by the authorities in particular, comment on whether and how the principle of
umuntu ngumuntu ngabantu has found expression, having regard to the handling of the
applicable attributes of ubuntu.
3. Suppose you are an Africanist legal academic analysing the judgments in Shilubana v Nwamitwa
2008 (9) BCLR 914 (CC) and Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR. With
reference to the facts and the legal issues that were raised in each case, examine what you
found to be novel developments, if any; and why you consider them to be either 8 compatible
or incompatible with the idea of decolonising the South African legal system
WARNING: DO NOT COPY AS YOU WILL GET 0 FOR PLAGARISM – THIS IS ANOTHER STUDENTS
ASSIGNMENT.
, WARNING: DO NOT COPY AS YOU WILL GET 0 FOR PLAGARISM – THIS IS ANOTHER
STUDENTS ASSIGNMENT.
Question 1
Mabuza v Mbatha 2003 (7) BCLR 43 (C) and Mabena v Letsoalo 1998 (2) SA 1068 (T) are two cases that
depict the manner in which courts have successfully contributed to the comprehension of living
customary law and the development law that must be in line with the Bill of Rights in our Constitution.
The following cases can demonstrate the degree of development in marriage law, particularly when it
comes to the question of validity.
In Mabuza v Mbatha 2003 (7) BCLR 43 (C) illustrates the shift from a society that established customary
marriage through the intricate ukumekeza tradition as set out by the Recognition of Customary
Marriages Act 120 of 1998. The ritual was suitable to the former rural setting whereas now it is no
longer necessary in the present urban environment. The legislation was modernized by the court, which
rejected an ancient custom it favoured new advances with regards to present practices in a community.
The legitimacy of marriage in customary law was challenged since the ukumekeza customs were not
observed. It was decided by the court that in the present urban and diverse settings, adherence of the
ukumekeza tradition is no longer required since it had been influenced by current socio-economic
changes.
Hlope JP had stated in the dictum that courts have a constitutional responsibility in developing African
customary law. Section 39(2) of the Constitution of the Republic of South Africa sets out that when
common low or customary law is being developed, the judiciary must promote the spirit, objectives, and
purpose of the Bill of Rights to ensure that the customary law in question does not conflict with
Constitutional principles and legislation.
In Mabena v Letsoalo 1998 (2) SA 1068 (T) The father of the deceased tried to cast doubt upon his son’s
and daughter in laws marriage with the claim that he had not consented to or personally negotiated the
customary marriage, which was legally required. Instead, the bride's mother approved of her daughter's
marriage and participated in the lobolo negotiations. It was held by the court that the marriage was
valid and the claim was rejected as the court was of the view that the son was an adult male with the
capacity to negotiate his own marriage, therefore the father did not have to negotiate the marriage.
The customary law was developed in terms of section 39(2) of the Constitution, to hold that the
participation of the father of an adult son in lobolo negotiations is not necessary. Furthermore, the
mother of the bride was found to be capable of effectively overseeing her daughter's affairs while her
spouse was absent, especially agreeing to the cultural marriage of her daughter and the negotiation of
the lobolo. The court recognized the equality and dignity of the young individuals and women to have
the full capacity to be marriage negotiators.
Mabena depicts that independent and adult youngsters have been given the power to arrange their
own customary marriages, without the need for their fathers' participation. The court had evaluated the
present environment in the country and confirmed that living law was followed in communities in
current times.
Assignment 2: 728068
Questions:
1. Critically evaluate the extent of the success of the courts, in their transformative efforts to
achieve the customary law that is envisioned by the Constitution, in Mabena v Letsoalo 1998 (2)
SA 1068 (T) and Mabuza v Mbatha 2003 (7) BCLR 43 (C)
2. With reference to the Covid 19 pandemic and how it is being handled by South Africans in
general, and by the authorities in particular, comment on whether and how the principle of
umuntu ngumuntu ngabantu has found expression, having regard to the handling of the
applicable attributes of ubuntu.
3. Suppose you are an Africanist legal academic analysing the judgments in Shilubana v Nwamitwa
2008 (9) BCLR 914 (CC) and Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR. With
reference to the facts and the legal issues that were raised in each case, examine what you
found to be novel developments, if any; and why you consider them to be either 8 compatible
or incompatible with the idea of decolonising the South African legal system
WARNING: DO NOT COPY AS YOU WILL GET 0 FOR PLAGARISM – THIS IS ANOTHER STUDENTS
ASSIGNMENT.
, WARNING: DO NOT COPY AS YOU WILL GET 0 FOR PLAGARISM – THIS IS ANOTHER
STUDENTS ASSIGNMENT.
Question 1
Mabuza v Mbatha 2003 (7) BCLR 43 (C) and Mabena v Letsoalo 1998 (2) SA 1068 (T) are two cases that
depict the manner in which courts have successfully contributed to the comprehension of living
customary law and the development law that must be in line with the Bill of Rights in our Constitution.
The following cases can demonstrate the degree of development in marriage law, particularly when it
comes to the question of validity.
In Mabuza v Mbatha 2003 (7) BCLR 43 (C) illustrates the shift from a society that established customary
marriage through the intricate ukumekeza tradition as set out by the Recognition of Customary
Marriages Act 120 of 1998. The ritual was suitable to the former rural setting whereas now it is no
longer necessary in the present urban environment. The legislation was modernized by the court, which
rejected an ancient custom it favoured new advances with regards to present practices in a community.
The legitimacy of marriage in customary law was challenged since the ukumekeza customs were not
observed. It was decided by the court that in the present urban and diverse settings, adherence of the
ukumekeza tradition is no longer required since it had been influenced by current socio-economic
changes.
Hlope JP had stated in the dictum that courts have a constitutional responsibility in developing African
customary law. Section 39(2) of the Constitution of the Republic of South Africa sets out that when
common low or customary law is being developed, the judiciary must promote the spirit, objectives, and
purpose of the Bill of Rights to ensure that the customary law in question does not conflict with
Constitutional principles and legislation.
In Mabena v Letsoalo 1998 (2) SA 1068 (T) The father of the deceased tried to cast doubt upon his son’s
and daughter in laws marriage with the claim that he had not consented to or personally negotiated the
customary marriage, which was legally required. Instead, the bride's mother approved of her daughter's
marriage and participated in the lobolo negotiations. It was held by the court that the marriage was
valid and the claim was rejected as the court was of the view that the son was an adult male with the
capacity to negotiate his own marriage, therefore the father did not have to negotiate the marriage.
The customary law was developed in terms of section 39(2) of the Constitution, to hold that the
participation of the father of an adult son in lobolo negotiations is not necessary. Furthermore, the
mother of the bride was found to be capable of effectively overseeing her daughter's affairs while her
spouse was absent, especially agreeing to the cultural marriage of her daughter and the negotiation of
the lobolo. The court recognized the equality and dignity of the young individuals and women to have
the full capacity to be marriage negotiators.
Mabena depicts that independent and adult youngsters have been given the power to arrange their
own customary marriages, without the need for their fathers' participation. The court had evaluated the
present environment in the country and confirmed that living law was followed in communities in
current times.
