QUESTION 1
(i) Critically evaluate the extent of the success of the courts, in their
transformative efforts to achieve the customary law that is envisioned by the
Constitution, in Mabena v Letsoalo 1998 (2) SA 1068 (T) and Mabuza v Mbatha
2003 (7) BCLR 43 (C) (5)
To ascertain a living customary law rule, one must study the particular tradition of the
relevant community until one discovers its past practice. Past practice is the applicable
customary law of that community, which must be applied until it is clear that a new
practice has developed and has taken over from the past practice. In that event the
applicable rule is the new practice. In Mabena v Letsoalo 1998 (2) SA 1068 (T), 1 the
validity of a customary marriage was disputed on the basis that the groom’s and bride’s
fathers neither consented to, nor participated in the customary marriage negotiations of
their children; and that the bride’s mother instead gave consent to her daughter’s
marriage and participated in the lobolo negotiations. The court found that the groom
was an adult man capable of handling his own affairs, including negotiating his
marriage. His father’s participation was therefore not essential. Similarly, the bride’s
mother was found to be capable of handling the affairs of her firmly whilst the husband
had absconded, including consenting to her daughter’s customary marriage and
accepting her lobolo. Furthermore, In Mabuza v Mbatha 2003 (7) BCLR 43 (C),2 the
validity of a properly negotiated customary marriage which was entered into as required
by the Recognition of Customary Marriages Act was disputed for lack of the ukumekeza
ritual. The court held that such a ritual was not required in terms today’s contemporary
customary law as it has been affected by current socio-economic developments that
have made it non-essential. This customary marriage was entered in terms of
Recognition of Customary Marriages Act 120 of 1998.3
1
Mabena v Letsoalo 1998 (2) SA 1068 (T).
2
Mabuza v Mbatha 2003 (7) BCLR 43 (C).
3
Recognition of Customary Marriages Act 120 of 1998.
, (ii) With reference to the Covid 19 pandemic and how it is being handled by South
Africans in general, and by the authorities in particular, comment on whether and
how the principle of umuntu ngumuntu ngabantu has found expression, having
regard to the handling of the applicable attributes of ubuntu. (5)
The principle of Umuntu ngumuntu ngabantu/motho ke motho ka batho states that a
human being derives his/her humanity from other humans. Himonga C and Nhlapo T
(2014),4 emphasized that shared sense of belonging is also revealed in the principle of
Umuntu ngumuntu ngabantu/motho ke motho ka batho. No one belongs alone, nor does
anyone enjoy wealth alone or suffer poverty alone. Life is shared. No child must suffer
because of the condition of their parents, but must experience the same upbringing as
other children. To be meaningful your prosperity must positively influence the condition
of your family. The latter must also use their abilities to enable you to assist them.
With reference to the Covid 19 pandemic, the principle of Umuntu ngumuntu
ngabantu/motho ke motho ka batho was affected in a negative way because the people
in the society were restricted in as far as interaction is concerned, sometimes people
were not allowed to interact total. In this regard, the principle of Umuntu ngumuntu
ngabantu/motho ke motho ka batho will be affectected in the negative way because of
less interactions. Furthermore, if a person is suffering from Covid 19, almost most all the
people will discriminate that person because of fear of the transmission of the disease,
therefore affecticting the principle of Umuntu ngumuntu ngabantu/motho ke motho ka
batho in a negative way.
QUESTION 2
Suppose you are an Africanist legal academic analysing the judgments in
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) and Bhe v Magistrate Khayelisha
and Others 2005 (1) BCLR. With reference to the facts and the legal issues that
were raised in each case, examine what you found to be novel developments, if
4
Himonga C and Nhlapo T, African Customary Law in South Africa: Post Apartheid and Living Law
Perspectives ( Oxford University Press 2014).
(i) Critically evaluate the extent of the success of the courts, in their
transformative efforts to achieve the customary law that is envisioned by the
Constitution, in Mabena v Letsoalo 1998 (2) SA 1068 (T) and Mabuza v Mbatha
2003 (7) BCLR 43 (C) (5)
To ascertain a living customary law rule, one must study the particular tradition of the
relevant community until one discovers its past practice. Past practice is the applicable
customary law of that community, which must be applied until it is clear that a new
practice has developed and has taken over from the past practice. In that event the
applicable rule is the new practice. In Mabena v Letsoalo 1998 (2) SA 1068 (T), 1 the
validity of a customary marriage was disputed on the basis that the groom’s and bride’s
fathers neither consented to, nor participated in the customary marriage negotiations of
their children; and that the bride’s mother instead gave consent to her daughter’s
marriage and participated in the lobolo negotiations. The court found that the groom
was an adult man capable of handling his own affairs, including negotiating his
marriage. His father’s participation was therefore not essential. Similarly, the bride’s
mother was found to be capable of handling the affairs of her firmly whilst the husband
had absconded, including consenting to her daughter’s customary marriage and
accepting her lobolo. Furthermore, In Mabuza v Mbatha 2003 (7) BCLR 43 (C),2 the
validity of a properly negotiated customary marriage which was entered into as required
by the Recognition of Customary Marriages Act was disputed for lack of the ukumekeza
ritual. The court held that such a ritual was not required in terms today’s contemporary
customary law as it has been affected by current socio-economic developments that
have made it non-essential. This customary marriage was entered in terms of
Recognition of Customary Marriages Act 120 of 1998.3
1
Mabena v Letsoalo 1998 (2) SA 1068 (T).
2
Mabuza v Mbatha 2003 (7) BCLR 43 (C).
3
Recognition of Customary Marriages Act 120 of 1998.
, (ii) With reference to the Covid 19 pandemic and how it is being handled by South
Africans in general, and by the authorities in particular, comment on whether and
how the principle of umuntu ngumuntu ngabantu has found expression, having
regard to the handling of the applicable attributes of ubuntu. (5)
The principle of Umuntu ngumuntu ngabantu/motho ke motho ka batho states that a
human being derives his/her humanity from other humans. Himonga C and Nhlapo T
(2014),4 emphasized that shared sense of belonging is also revealed in the principle of
Umuntu ngumuntu ngabantu/motho ke motho ka batho. No one belongs alone, nor does
anyone enjoy wealth alone or suffer poverty alone. Life is shared. No child must suffer
because of the condition of their parents, but must experience the same upbringing as
other children. To be meaningful your prosperity must positively influence the condition
of your family. The latter must also use their abilities to enable you to assist them.
With reference to the Covid 19 pandemic, the principle of Umuntu ngumuntu
ngabantu/motho ke motho ka batho was affected in a negative way because the people
in the society were restricted in as far as interaction is concerned, sometimes people
were not allowed to interact total. In this regard, the principle of Umuntu ngumuntu
ngabantu/motho ke motho ka batho will be affectected in the negative way because of
less interactions. Furthermore, if a person is suffering from Covid 19, almost most all the
people will discriminate that person because of fear of the transmission of the disease,
therefore affecticting the principle of Umuntu ngumuntu ngabantu/motho ke motho ka
batho in a negative way.
QUESTION 2
Suppose you are an Africanist legal academic analysing the judgments in
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) and Bhe v Magistrate Khayelisha
and Others 2005 (1) BCLR. With reference to the facts and the legal issues that
were raised in each case, examine what you found to be novel developments, if
4
Himonga C and Nhlapo T, African Customary Law in South Africa: Post Apartheid and Living Law
Perspectives ( Oxford University Press 2014).
