IND2601
Assignment
1.
, QUESTION 1
a) In accordance with section 38(1) of the Codes of Zulu Law these are the following
requirements for the conclusion of a valid customary union:
• The consent of the bride’s father or guardian if the bride is still a minor, and consent may not
be withheld without reason.
• The consent of the bridegroom’s father or the head of the bridegroom’s family is required if
the bridegroom is still a minor.
• The bride is required to make a public declaration that the union she is entering into takes
place with her consent and this declaration must be made to an official witness.
Furthermore, the code makes provision for the registration of a customary union however non-
registration doesn’t render the union invalid, null or void.
In comparison the legal requirements for a valid customary marriage in accordance with the
provisions found in section 3 of Act 120 of 1998 and are as follows:
The bride and bridegroom to be
– need to both be above the age of 18 years old.
– need to both consent to marriage to each other under customary law.
– lastly both spouses need to negotiate and enter into the marriage in accordance with
customary as well as celebrate in accordance to customary law.
b) The case of Shilubana v Nwamitwa 2009 (2) SA 66 (CC) raised a number of constitutional
issues with the customary law rules on succession to traditional leadership one being the
recognition and interpretation of the right to equality for everyone, as per the provisions of
section 9 of the Constitution. The constitutional validity of the principle that only males be
considered for succession to positions of traditional leadership (primogeniture), which
governed succession to chieftainship, was the issue of concern in the before mentioned
case. The Constitutional Court found that women can now also be considered for succession
on the grounds of gender equality and it therefore invalidated the principle of
primogeniture. The senior traditional leader of the Valoyi traditional community, Hosi Fofoza
died without a male heir. Due to the principle of male primogeniture that governed the
customary laws of succession at the time, his daughter and only child, Lwandhlamuni
Nwamitwa could not succeed to her father’s position. Instead the late traditional leader’s
brother, Hosi Richard succeeded him to the position. When Hosi Richard himself passed on,
the royal family and royal council passed resolutions to the effect that due to the new
constitutional dispensation and the right to equality for everyone as per the provisions of
section 9 of the Constitution, Hosi Fofoza’s daughter, Ms Nwamitwa, who after marriage
became Ms Shilubana, would succeed Hosi Richard and be installed as the leader and Hosi
Richard’s eldest son would not succeed his father. Hosi Rihard’s eldest son challenged the
installation in the High Court and the Supreme Court, who both ruled in his favour, citing
that as the eldest son of Hosi Richard he was entitled to succeed him despite the new
resolutions, traditions and customary law of the Valoyi. However, Ms Shilubana appealed to
the Constitutional Court which ruled in her favour, citing that the community had a right to
develop its own laws and customs. Therefore, the decision taken to install Ms Shilubana by
Assignment
1.
, QUESTION 1
a) In accordance with section 38(1) of the Codes of Zulu Law these are the following
requirements for the conclusion of a valid customary union:
• The consent of the bride’s father or guardian if the bride is still a minor, and consent may not
be withheld without reason.
• The consent of the bridegroom’s father or the head of the bridegroom’s family is required if
the bridegroom is still a minor.
• The bride is required to make a public declaration that the union she is entering into takes
place with her consent and this declaration must be made to an official witness.
Furthermore, the code makes provision for the registration of a customary union however non-
registration doesn’t render the union invalid, null or void.
In comparison the legal requirements for a valid customary marriage in accordance with the
provisions found in section 3 of Act 120 of 1998 and are as follows:
The bride and bridegroom to be
– need to both be above the age of 18 years old.
– need to both consent to marriage to each other under customary law.
– lastly both spouses need to negotiate and enter into the marriage in accordance with
customary as well as celebrate in accordance to customary law.
b) The case of Shilubana v Nwamitwa 2009 (2) SA 66 (CC) raised a number of constitutional
issues with the customary law rules on succession to traditional leadership one being the
recognition and interpretation of the right to equality for everyone, as per the provisions of
section 9 of the Constitution. The constitutional validity of the principle that only males be
considered for succession to positions of traditional leadership (primogeniture), which
governed succession to chieftainship, was the issue of concern in the before mentioned
case. The Constitutional Court found that women can now also be considered for succession
on the grounds of gender equality and it therefore invalidated the principle of
primogeniture. The senior traditional leader of the Valoyi traditional community, Hosi Fofoza
died without a male heir. Due to the principle of male primogeniture that governed the
customary laws of succession at the time, his daughter and only child, Lwandhlamuni
Nwamitwa could not succeed to her father’s position. Instead the late traditional leader’s
brother, Hosi Richard succeeded him to the position. When Hosi Richard himself passed on,
the royal family and royal council passed resolutions to the effect that due to the new
constitutional dispensation and the right to equality for everyone as per the provisions of
section 9 of the Constitution, Hosi Fofoza’s daughter, Ms Nwamitwa, who after marriage
became Ms Shilubana, would succeed Hosi Richard and be installed as the leader and Hosi
Richard’s eldest son would not succeed his father. Hosi Rihard’s eldest son challenged the
installation in the High Court and the Supreme Court, who both ruled in his favour, citing
that as the eldest son of Hosi Richard he was entitled to succeed him despite the new
resolutions, traditions and customary law of the Valoyi. However, Ms Shilubana appealed to
the Constitutional Court which ruled in her favour, citing that the community had a right to
develop its own laws and customs. Therefore, the decision taken to install Ms Shilubana by
