A CRITICAL EVALUATION OF THE ROLE OF AFRICAN CUSTOMARY LAW IN
INFLUENCING BURIAL DISPUTES.
BY
Submitted in partial fulfillment of the requirements for the degree
BACHELOR OF LAWS
In the SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
SUPERVISOR:
ASSIGNMENT 02, SEMESTER 01
2021
,ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of
Unisa’s policies in this regard.
2. I declare that this assignment is my own, original work. Where I
have used someone else’s work, I have indicated this by using the
prescribed style of referencing. Every contribution to, and quotation
in, this assignment from the work or works of other people has been
referenced according to the prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with
the intention of passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my
own.
NAME: ______________________
SIGNATURE: _______________________
STUDENT NUMBER: __________________
MODULE CODE: RRLLB81
ASSIGNMENT 02
DATE : …………………………….
TOPIC SELECTED: A critical evaluation of the role of African customary
law in influencing burial disputes.
,KEYWORDS
African customary law: African Customary Law is further protected within the Bill of
Rights, most notably under the right to freedom, belief and opinion, the individual right to
language and culture as well as the collective right pertaining to cultural, religious and
linguistic communities.
Burial disputes: Burial disputes arise when one or more people are unable to agree
what should happen to a person's body after he or she die, including how or where to
bury the body.
,LIST OF ABBREVIATIONS AND ACRONYMS
ACL African Customary Law.
RCMA Recognition of Customary Marriage Act.
,TABLE OF CONTENTS
1.Prescribed cover page 1
2. Declaration form 2
3. Keywords 4
5. list of abbreviations and acronyms 5
4. Content page 6
6. Introduction 7
7. Body of research 7-13
8. conclusion 13
9. Bibliography 14
, 1. INTRODUCTION
The Constitutional court handed down its landmark judgement of the role of African
customary law in influencing burial disputes in the Thembisile case. The judgment
explained some of the key duties imposed by the State on the role of African
customary law (ACL) in influencing burial disputes. This ruling has helped to
transform African customary law and burial disputes in South Africa. In the case of
Thembisile v Thembisile,1 the court opted to settle the dispute based on the rule of
primogeniture, arguing that the heir of the deceased or the eldest son, makes the
decision as to burial rights. According to Constitution of Republic of South Africa, 2
customary law is protected but the rules of customary law must be in line with the
principles in the Bill of Rights. The Bill of Rights protects the right to culture . In some
cases, the legislation such as Recognition of Customary Marriage Act, 3 (RCMA) are
now recognized on the role of African customary law in generally. South African
Constitution protects African Customary Law within the Bill of Rights, most notably
under the right to freedom, belief and opinion, the individual right to language and
culture as well as the collective right pertaining to cultural, religious and linguistic
communities. It is for this reason that the legislature has enacted statutes such as
the Recognition of Customary Marriage Act 120 of 1998. Burial disputes are also
governed by the case of Sengadi v Tsambo 2019 4 SA 50 (GJ),4 where the nation
including the government of South Africa had an interest in Mr Jabulani Tsambo`s
burial because he was a public figure. In this scenario Recognition of Customary
Marriage Act made the recognition of customary law to a larger extent. The burial
disputes were mainly governed by the cases of Thembisile and Sengadi v Tsambo
by the constitutional court.
1
Thembisile v Thembisile 2002 (2) SA 269 (T).
2
Constitution of Republic of South Africa 108 of 1996.
3
Recognition of Customary Marriage Act 120 of 1998.
4
Sengadi v Tsambo 2019 4 SA 50 (GJ).
INFLUENCING BURIAL DISPUTES.
BY
Submitted in partial fulfillment of the requirements for the degree
BACHELOR OF LAWS
In the SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
SUPERVISOR:
ASSIGNMENT 02, SEMESTER 01
2021
,ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of
Unisa’s policies in this regard.
2. I declare that this assignment is my own, original work. Where I
have used someone else’s work, I have indicated this by using the
prescribed style of referencing. Every contribution to, and quotation
in, this assignment from the work or works of other people has been
referenced according to the prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with
the intention of passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my
own.
NAME: ______________________
SIGNATURE: _______________________
STUDENT NUMBER: __________________
MODULE CODE: RRLLB81
ASSIGNMENT 02
DATE : …………………………….
TOPIC SELECTED: A critical evaluation of the role of African customary
law in influencing burial disputes.
,KEYWORDS
African customary law: African Customary Law is further protected within the Bill of
Rights, most notably under the right to freedom, belief and opinion, the individual right to
language and culture as well as the collective right pertaining to cultural, religious and
linguistic communities.
Burial disputes: Burial disputes arise when one or more people are unable to agree
what should happen to a person's body after he or she die, including how or where to
bury the body.
,LIST OF ABBREVIATIONS AND ACRONYMS
ACL African Customary Law.
RCMA Recognition of Customary Marriage Act.
,TABLE OF CONTENTS
1.Prescribed cover page 1
2. Declaration form 2
3. Keywords 4
5. list of abbreviations and acronyms 5
4. Content page 6
6. Introduction 7
7. Body of research 7-13
8. conclusion 13
9. Bibliography 14
, 1. INTRODUCTION
The Constitutional court handed down its landmark judgement of the role of African
customary law in influencing burial disputes in the Thembisile case. The judgment
explained some of the key duties imposed by the State on the role of African
customary law (ACL) in influencing burial disputes. This ruling has helped to
transform African customary law and burial disputes in South Africa. In the case of
Thembisile v Thembisile,1 the court opted to settle the dispute based on the rule of
primogeniture, arguing that the heir of the deceased or the eldest son, makes the
decision as to burial rights. According to Constitution of Republic of South Africa, 2
customary law is protected but the rules of customary law must be in line with the
principles in the Bill of Rights. The Bill of Rights protects the right to culture . In some
cases, the legislation such as Recognition of Customary Marriage Act, 3 (RCMA) are
now recognized on the role of African customary law in generally. South African
Constitution protects African Customary Law within the Bill of Rights, most notably
under the right to freedom, belief and opinion, the individual right to language and
culture as well as the collective right pertaining to cultural, religious and linguistic
communities. It is for this reason that the legislature has enacted statutes such as
the Recognition of Customary Marriage Act 120 of 1998. Burial disputes are also
governed by the case of Sengadi v Tsambo 2019 4 SA 50 (GJ),4 where the nation
including the government of South Africa had an interest in Mr Jabulani Tsambo`s
burial because he was a public figure. In this scenario Recognition of Customary
Marriage Act made the recognition of customary law to a larger extent. The burial
disputes were mainly governed by the cases of Thembisile and Sengadi v Tsambo
by the constitutional court.
1
Thembisile v Thembisile 2002 (2) SA 269 (T).
2
Constitution of Republic of South Africa 108 of 1996.
3
Recognition of Customary Marriage Act 120 of 1998.
4
Sengadi v Tsambo 2019 4 SA 50 (GJ).
