LCP4804 2018 ANSWERS
ADVANCED INDIGENOUS LAW
EXAM PREPARATION
2018 MAY/JUNE AND OCT/ NOV MEMOS
,OCTOBER/ NOVEMBER 2018
QUESTION 1
a) There is a valid customary marriage between Jabulani and Jabulile.
Statutory requirements for the formation of a customary marriage:
YOU MUST STUDY SECTION 3 OR THE RCMA
a. (i) the age of spouse (18 and above)
(ii) the consent to the marriage
b. Negotiated and entered into or celebrated according to customary law.
It must be noted that most problems are encountered during the application of
the requirements of section 3(b).
The most applicable case to the above set of facts is Mabena v Letsoalo
case.
- Where the role of the bride’s mother to negotiate her daughter’s marriage
and act as her guardian in the absence of her father was also approved.
- Also focus on how independent and adult youths have been empowered to
negotiate their own customary marriages; and that the involvement of their
fathers is no longer essential for this purpose.
b) It is not possible for Jabulan’s father to nullify this marriage on the basis of
invalidity. This is so because the marriage met the requirements of a
customary marriage as contemplated in sec 3 of the RCMA.
Take note of MABENA CASE:
-where the marriage was recognised and the court stated that the bride’s
mother is allowed to negotiate her daughter’s marriage and act as her
guardian in the absence of her father. Also the court approved that an
independent and adult youths have been empowered to negotiate their own
customary marriages; and that the involvement of their father is no longer
essential.
Jabulani, Nandi and Thabo constituted a proper negotiating customary panel.
c) This question deals with the validity of a customary marriage.
It must be noted that the binding version of post-apartheid customary law is
the living law of the community concerned, ie the binding legal principles that
regulate the affairs of that community.
, The applicable case law in the given set of facts is Maluleke v Minister of
Affairs. In this case the court stipulated that the imvume practise had fallen
into desuetude. It was no longer applicable in the modern communities (it was
no longer the living customary law of the Zulu culture).
In Maluleke the court also held that even though the intergration of the bride
might not have been observed, but the spouses themselves showed by the
way they related to each other that they accepted that they were husband and
wife. Therefore, in a difficult case, where, after the negotiations have been
completed, the requirements of “entered into or celebrated” cannot be proved,
the behaviour of the spouses towards each other becomes important.
The marriage is valid.
d) The answer will not be different:
This question also deals with the requirements for the validity of a customary
marriage.
The most applicable case law which deals with the ritual of Ukumekeza is
Mabuza v Mbatha. In this case the court demonstrates the transition from a
society that defined customary marriage with reference to the elaborate
ukumekeza tradition that was best suited to the previous rural set-up; and that
it is no longer necessary in the current urban conditions.
Even without the ukumekeza ritual, the marriage between Jabulani and
Jabulile will be valid, since all the other requirements for validity of customary
marriage were met.
e) Refer to the Recognition of Customary Marriage Act,
especially sections 6 & 7.
f) In terms of Tsonga living customary law, consent of the first wife is a
requirement for any further marriage by the husband in question. If the
required consent is not given by the first wife, the second marriage will be
invalid.
The binding version of post-apartheid customary law is the living law of the
community concerned, ie the binding legal principles that requires the affairs
of that community. In Mayelane v Ngwenyama and Another, the Constitutional
Court investigated the existence of the rule requiring the husband to obtain
the consent of the first wife for the validity of a further Xitsonga customary
marriage. Some witnesses confirmed the existence of the rule, others denied
it- saying she only needs to be informed. So the existence of the rule was not
proved, because of this conflict in evidence. Then the Constitutional Court
decided to develop the living Xitsonga customary law to require the husband
ADVANCED INDIGENOUS LAW
EXAM PREPARATION
2018 MAY/JUNE AND OCT/ NOV MEMOS
,OCTOBER/ NOVEMBER 2018
QUESTION 1
a) There is a valid customary marriage between Jabulani and Jabulile.
Statutory requirements for the formation of a customary marriage:
YOU MUST STUDY SECTION 3 OR THE RCMA
a. (i) the age of spouse (18 and above)
(ii) the consent to the marriage
b. Negotiated and entered into or celebrated according to customary law.
It must be noted that most problems are encountered during the application of
the requirements of section 3(b).
The most applicable case to the above set of facts is Mabena v Letsoalo
case.
- Where the role of the bride’s mother to negotiate her daughter’s marriage
and act as her guardian in the absence of her father was also approved.
- Also focus on how independent and adult youths have been empowered to
negotiate their own customary marriages; and that the involvement of their
fathers is no longer essential for this purpose.
b) It is not possible for Jabulan’s father to nullify this marriage on the basis of
invalidity. This is so because the marriage met the requirements of a
customary marriage as contemplated in sec 3 of the RCMA.
Take note of MABENA CASE:
-where the marriage was recognised and the court stated that the bride’s
mother is allowed to negotiate her daughter’s marriage and act as her
guardian in the absence of her father. Also the court approved that an
independent and adult youths have been empowered to negotiate their own
customary marriages; and that the involvement of their father is no longer
essential.
Jabulani, Nandi and Thabo constituted a proper negotiating customary panel.
c) This question deals with the validity of a customary marriage.
It must be noted that the binding version of post-apartheid customary law is
the living law of the community concerned, ie the binding legal principles that
regulate the affairs of that community.
, The applicable case law in the given set of facts is Maluleke v Minister of
Affairs. In this case the court stipulated that the imvume practise had fallen
into desuetude. It was no longer applicable in the modern communities (it was
no longer the living customary law of the Zulu culture).
In Maluleke the court also held that even though the intergration of the bride
might not have been observed, but the spouses themselves showed by the
way they related to each other that they accepted that they were husband and
wife. Therefore, in a difficult case, where, after the negotiations have been
completed, the requirements of “entered into or celebrated” cannot be proved,
the behaviour of the spouses towards each other becomes important.
The marriage is valid.
d) The answer will not be different:
This question also deals with the requirements for the validity of a customary
marriage.
The most applicable case law which deals with the ritual of Ukumekeza is
Mabuza v Mbatha. In this case the court demonstrates the transition from a
society that defined customary marriage with reference to the elaborate
ukumekeza tradition that was best suited to the previous rural set-up; and that
it is no longer necessary in the current urban conditions.
Even without the ukumekeza ritual, the marriage between Jabulani and
Jabulile will be valid, since all the other requirements for validity of customary
marriage were met.
e) Refer to the Recognition of Customary Marriage Act,
especially sections 6 & 7.
f) In terms of Tsonga living customary law, consent of the first wife is a
requirement for any further marriage by the husband in question. If the
required consent is not given by the first wife, the second marriage will be
invalid.
The binding version of post-apartheid customary law is the living law of the
community concerned, ie the binding legal principles that requires the affairs
of that community. In Mayelane v Ngwenyama and Another, the Constitutional
Court investigated the existence of the rule requiring the husband to obtain
the consent of the first wife for the validity of a further Xitsonga customary
marriage. Some witnesses confirmed the existence of the rule, others denied
it- saying she only needs to be informed. So the existence of the rule was not
proved, because of this conflict in evidence. Then the Constitutional Court
decided to develop the living Xitsonga customary law to require the husband
