IND2601
ASSIGNMENT 1
DUE DATE: MARCH 2024
, Question 1
Discuss the Implications of section 211(3) of the Constitution Act 108 of 1996 for
the recognition of customary law
Section 211(3) of the Constitution Act 108 of 1996 has significant implications for the recognition
of customary law in South Africa. Let's break down these implications:
Application of Customary Law: The provision mandates that courts must apply customary law
when it is applicable. This means that customary law, which encompasses the customs and
usages traditionally observed among the indigenous African peoples of South Africa, should be
considered and applied by the courts in relevant cases.
Subject to the Constitution and Legislation: While customary law is recognized, its application is
subject to the overarching principles and provisions of the Constitution. This ensures that
customary law does not contravene fundamental rights and principles enshrined in the
Constitution, such as equality, dignity, and non-discrimination. Additionally, customary law is also
subject to any legislation specifically dealing with customary law, ensuring that it operates within
the legal framework established by the state.
Judicial Discretion: Although customary law must be applied when applicable, courts still have the
discretion to determine its applicability and to interpret it in line with constitutional principles and
legislative provisions. This allows for flexibility in applying customary law while ensuring that it
aligns with the broader legal framework of the country.
Recognition of Indigenous Legal Systems: By mandating the application of customary law, section
211(3) acknowledges the importance of indigenous legal systems and traditions in South Africa's
legal landscape. It recognizes the diversity of legal norms and practices within the country,
promoting cultural diversity and pluralism in the legal system.
Protection of Customary Law: Despite its recognition, customary law is not immune to scrutiny. It
must align with principles of public policy and natural justice, ensuring that it does not perpetuate
practices that are contrary to fundamental principles of fairness and justice.
Question 2
Liema married Lerato by customary law in January 1999. He later also married Palesa by
customary law rites on 10 December 2006. Three girls were born from the marriage with
Lerato, and two boys were born from the marriage with Palesa. At the time when he
married Palesa, Liema used the property allotted to L e r a t o ’ s house to provide lobolo
for P a l e s a . The lobolo received from the customary marriage for one of his daughters
with Lerato was also used to settle lobolo for one of Palesa’s sons.
Liema, Lerato and Palesa approach you for advice regarding the following.
ASSIGNMENT 1
DUE DATE: MARCH 2024
, Question 1
Discuss the Implications of section 211(3) of the Constitution Act 108 of 1996 for
the recognition of customary law
Section 211(3) of the Constitution Act 108 of 1996 has significant implications for the recognition
of customary law in South Africa. Let's break down these implications:
Application of Customary Law: The provision mandates that courts must apply customary law
when it is applicable. This means that customary law, which encompasses the customs and
usages traditionally observed among the indigenous African peoples of South Africa, should be
considered and applied by the courts in relevant cases.
Subject to the Constitution and Legislation: While customary law is recognized, its application is
subject to the overarching principles and provisions of the Constitution. This ensures that
customary law does not contravene fundamental rights and principles enshrined in the
Constitution, such as equality, dignity, and non-discrimination. Additionally, customary law is also
subject to any legislation specifically dealing with customary law, ensuring that it operates within
the legal framework established by the state.
Judicial Discretion: Although customary law must be applied when applicable, courts still have the
discretion to determine its applicability and to interpret it in line with constitutional principles and
legislative provisions. This allows for flexibility in applying customary law while ensuring that it
aligns with the broader legal framework of the country.
Recognition of Indigenous Legal Systems: By mandating the application of customary law, section
211(3) acknowledges the importance of indigenous legal systems and traditions in South Africa's
legal landscape. It recognizes the diversity of legal norms and practices within the country,
promoting cultural diversity and pluralism in the legal system.
Protection of Customary Law: Despite its recognition, customary law is not immune to scrutiny. It
must align with principles of public policy and natural justice, ensuring that it does not perpetuate
practices that are contrary to fundamental principles of fairness and justice.
Question 2
Liema married Lerato by customary law in January 1999. He later also married Palesa by
customary law rites on 10 December 2006. Three girls were born from the marriage with
Lerato, and two boys were born from the marriage with Palesa. At the time when he
married Palesa, Liema used the property allotted to L e r a t o ’ s house to provide lobolo
for P a l e s a . The lobolo received from the customary marriage for one of his daughters
with Lerato was also used to settle lobolo for one of Palesa’s sons.
Liema, Lerato and Palesa approach you for advice regarding the following.
