IND2601 Semester 01 Assignment 01
1. Discuss the implications of section 211 of the constitution for the recognition
of customary law in South Africa. (8)
Section 211 the Constitution1 gives clear and unambiguous recognition to customary
law. This is more clearly illustrated in section 211(1) where it states that “the institution,
status and role of traditional leadership, according to customary law, are recognised,
subject to the Constitution.” The implication of this section is therefore that all courts
must recognize and apply customary law. 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. Where rights
have been derived from customary law, the courts are obliged to protect those rights,
assuming that both parties reasonably expect to be subject to customary law.
Furthermore, section 211(3) states that “the courts must apply customary law, when
that law is applicable, subject to the Constitution and any legislation that specifically
deals with customary law.” This means that the recognition and application of
customary laws are subject to legislation that specifically deals with it. In this case only
legislation aimed at amending customary law is relevant and not legislation in general.
This recognition is subject to the Bill of Rights, however.
2. Compare and contrast the legal requirements for a customary union and a
customary marriage. (12)
Similarities:
• The man and woman must concerned must not be related to one another within
the prohibited degrees of kinship;
• There must be consensus of the two-family groups concerned on the two
individuals to be united in marriage and that of the two individuals and the
1 The Constitution of the Republic of South Africa, 1996.
, marriage goods which must be delivered requirement is applicable in
Customary Union and Traditional customary (indigenous) marriage;
• The must be transfer of the bride by her family to the man’s family group,
requirement is applicable in Customary Union (both in and outside KZN) and
Traditional customary (indigenous) marriage.
• In case of woman there is a further requirement that she is not already involved
in a marital union in a Traditional customary (indigenous) marriage, Non-
existence of common-law(civil) marriage in Customary Union (outside KZN);
• There must be consent of the bride’s guardian, there must be consent of the
bride, consent of the bridegroom Customary Union (both in and outside KZN)
• Consent of the bridegrooms father in certain circumstances(where groom is a
minor) in and outside KZN2
Differences:
• Public declaration by the bride to the official witness that the union takes place
with her consent
• The prospective spouses must both be above the age of 18;
• They must both consent to be married to each other under customary law;
• Marriage must be entered into and celebrated in terms of customary law.3
3. Rori, a traditional leader, recently issued several determinations. One of these
determinations was conveyed by Tsepiso, the inner council’s messenger, and
was directed at Phephisi’s family, ordering the family to move their homestead
immediately to an area designated by Rori so that he can allocate the land they
occupied to his long- time friend Mutase. Mutase is interested in this land to
pursue his personal farming ambitions. When Phephisi refused to move his
homestead, Rori ordered that he and his family be banished from the traditional
area.
(a) Evaluate the validity of the traditional leader’s actions. (10)
A traditional administrative act refers to an action of an administrative organ, such as
the chief, the ward head, the traditional authority or an official land designator. An
2 N Dlamini-Ndwandwe African Customary Law: Only study guide for IND2601 (University of South
Africa 2017) 55.
3 Dlamini-Ndwandwe Customary Law 56.
1. Discuss the implications of section 211 of the constitution for the recognition
of customary law in South Africa. (8)
Section 211 the Constitution1 gives clear and unambiguous recognition to customary
law. This is more clearly illustrated in section 211(1) where it states that “the institution,
status and role of traditional leadership, according to customary law, are recognised,
subject to the Constitution.” The implication of this section is therefore that all courts
must recognize and apply customary law. 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. Where rights
have been derived from customary law, the courts are obliged to protect those rights,
assuming that both parties reasonably expect to be subject to customary law.
Furthermore, section 211(3) states that “the courts must apply customary law, when
that law is applicable, subject to the Constitution and any legislation that specifically
deals with customary law.” This means that the recognition and application of
customary laws are subject to legislation that specifically deals with it. In this case only
legislation aimed at amending customary law is relevant and not legislation in general.
This recognition is subject to the Bill of Rights, however.
2. Compare and contrast the legal requirements for a customary union and a
customary marriage. (12)
Similarities:
• The man and woman must concerned must not be related to one another within
the prohibited degrees of kinship;
• There must be consensus of the two-family groups concerned on the two
individuals to be united in marriage and that of the two individuals and the
1 The Constitution of the Republic of South Africa, 1996.
, marriage goods which must be delivered requirement is applicable in
Customary Union and Traditional customary (indigenous) marriage;
• The must be transfer of the bride by her family to the man’s family group,
requirement is applicable in Customary Union (both in and outside KZN) and
Traditional customary (indigenous) marriage.
• In case of woman there is a further requirement that she is not already involved
in a marital union in a Traditional customary (indigenous) marriage, Non-
existence of common-law(civil) marriage in Customary Union (outside KZN);
• There must be consent of the bride’s guardian, there must be consent of the
bride, consent of the bridegroom Customary Union (both in and outside KZN)
• Consent of the bridegrooms father in certain circumstances(where groom is a
minor) in and outside KZN2
Differences:
• Public declaration by the bride to the official witness that the union takes place
with her consent
• The prospective spouses must both be above the age of 18;
• They must both consent to be married to each other under customary law;
• Marriage must be entered into and celebrated in terms of customary law.3
3. Rori, a traditional leader, recently issued several determinations. One of these
determinations was conveyed by Tsepiso, the inner council’s messenger, and
was directed at Phephisi’s family, ordering the family to move their homestead
immediately to an area designated by Rori so that he can allocate the land they
occupied to his long- time friend Mutase. Mutase is interested in this land to
pursue his personal farming ambitions. When Phephisi refused to move his
homestead, Rori ordered that he and his family be banished from the traditional
area.
(a) Evaluate the validity of the traditional leader’s actions. (10)
A traditional administrative act refers to an action of an administrative organ, such as
the chief, the ward head, the traditional authority or an official land designator. An
2 N Dlamini-Ndwandwe African Customary Law: Only study guide for IND2601 (University of South
Africa 2017) 55.
3 Dlamini-Ndwandwe Customary Law 56.
