LCP4804 - Advanced Indigenous Law
EXAM QUESTIONS AND CORRECT
ANSWERS LATEST EDITION.
Ukufakwa – ANS entails a situation where a relative of a woman's father (brother, uncle, cousin,
nephew), takes the responsibilities of the father and ensures that the customary traditions and
ceremonies related to the initiation and/or marriage of the father's daughter are carried out as
if the relative himself was the father. This entitles the relative to a pro rata portion of the value
of the lobolo goods, expected from the marriage goods deliverable when the daughter gets
married, or received as fines imposed as a result of delicts committed on that daughter
The relative thereby gets entitled to such portion as of right, directly from its source (that is, as
the goods are identified for delivery as lobolo goods, the relevant portion already at that stage,
belongs to the relative. This is to say, that portion never starts belonging to the father from the
beginning and the father does not have access to it. To the extent of this portion, the relative
becomes the father of the daughter in his own right. He does not have to claim the portion from
the property of the father since it already belongs to him.
Mabuza v Mbatha - ANSLegal q - Whether seSwati customary marriages canbe vaild without the
observance of the ukumekeza custom?
Reasons for judgement - a properly constituted customary marriage can stand where the
spouses waived the observance of the ukumekeza custom, particularly as the urban conditions
are not even suitable for the performance of such a custom, which was suitable for the rural
conditions of the past
, Decision of court - the validity of the customary marriage was upheld
Mabena v Letsoalo – ANS Legal q - whether a customary marriage is valud where a young man,
in the absence of his father, negociated his own customary marriage, togetther with his
prosepectice mother-in-law, who acted as the guardian of the prospective bride, in the absence
of her husband
reasons for judgement - an adult and indeptende man is qualified to negociate his own
customary marriage, in the absence of his father; and the mother of the bride as an adult
guardian of her daughter is equally qualified to negociate the customary marriage and to accept
deliviery of the marriage goods, in the absence of her hudband who has disserted the family.
decision of court - the validity of the customary marriage was upheld
Ngwenyama v Mayelane – ANS Legal q - the SCA was asekd whether the judgement of the High
Court is valid where it held that a customary marriage concluded without seeking court
approval for the section 7(6) of the RCMA application is invalid?
reasons for judgement - the SCA held: non observance of the section 7(6) of the RCMA
provsions cannot render a customary marriage invlaid as these are not requirements for validity.
The validity requirements are set out in section 7(6) of the RCMA and were properly complied
with. Non observance of the section 7(6) of the RCMA provisions can at most render the
customary marriage out of community of property.
Decsion of court - the SCA upheld the appeal
Mayelane v Ngwenyama - ANSLegal q - in an appeal, the Con Court was asked whether the SCA
was correct in holding that non-observance of the section 7(6) of the RCMA provisions cannot
render a customary marriage invalid as these are not requiremetns for validity; and that the
validity requirements as set out in section 3 of the RCMA had been properly complied with.
EXAM QUESTIONS AND CORRECT
ANSWERS LATEST EDITION.
Ukufakwa – ANS entails a situation where a relative of a woman's father (brother, uncle, cousin,
nephew), takes the responsibilities of the father and ensures that the customary traditions and
ceremonies related to the initiation and/or marriage of the father's daughter are carried out as
if the relative himself was the father. This entitles the relative to a pro rata portion of the value
of the lobolo goods, expected from the marriage goods deliverable when the daughter gets
married, or received as fines imposed as a result of delicts committed on that daughter
The relative thereby gets entitled to such portion as of right, directly from its source (that is, as
the goods are identified for delivery as lobolo goods, the relevant portion already at that stage,
belongs to the relative. This is to say, that portion never starts belonging to the father from the
beginning and the father does not have access to it. To the extent of this portion, the relative
becomes the father of the daughter in his own right. He does not have to claim the portion from
the property of the father since it already belongs to him.
Mabuza v Mbatha - ANSLegal q - Whether seSwati customary marriages canbe vaild without the
observance of the ukumekeza custom?
Reasons for judgement - a properly constituted customary marriage can stand where the
spouses waived the observance of the ukumekeza custom, particularly as the urban conditions
are not even suitable for the performance of such a custom, which was suitable for the rural
conditions of the past
, Decision of court - the validity of the customary marriage was upheld
Mabena v Letsoalo – ANS Legal q - whether a customary marriage is valud where a young man,
in the absence of his father, negociated his own customary marriage, togetther with his
prosepectice mother-in-law, who acted as the guardian of the prospective bride, in the absence
of her husband
reasons for judgement - an adult and indeptende man is qualified to negociate his own
customary marriage, in the absence of his father; and the mother of the bride as an adult
guardian of her daughter is equally qualified to negociate the customary marriage and to accept
deliviery of the marriage goods, in the absence of her hudband who has disserted the family.
decision of court - the validity of the customary marriage was upheld
Ngwenyama v Mayelane – ANS Legal q - the SCA was asekd whether the judgement of the High
Court is valid where it held that a customary marriage concluded without seeking court
approval for the section 7(6) of the RCMA application is invalid?
reasons for judgement - the SCA held: non observance of the section 7(6) of the RCMA
provsions cannot render a customary marriage invlaid as these are not requirements for validity.
The validity requirements are set out in section 7(6) of the RCMA and were properly complied
with. Non observance of the section 7(6) of the RCMA provisions can at most render the
customary marriage out of community of property.
Decsion of court - the SCA upheld the appeal
Mayelane v Ngwenyama - ANSLegal q - in an appeal, the Con Court was asked whether the SCA
was correct in holding that non-observance of the section 7(6) of the RCMA provisions cannot
render a customary marriage invalid as these are not requiremetns for validity; and that the
validity requirements as set out in section 3 of the RCMA had been properly complied with.
