LCP4804 PAST EXAM PACK QUESTION & ANSWERS (2019 - 2014).
LCP4804 PAST EXAM PACK QUESTION & ANSWERS (2019 - 2014). LCP4804 - Advanced Indigenous Law. If the High Court insists on the constitutional jurisprudence as developed by the Constitutional Court, based on the values of human dignity, equality and freedom; The royal family must identify the eligible candidate who is not necessarily the first-born son or first-born daughter, but a suitably qualified candidate. Without any gender bias, their choice might have been based on merit, competence, leadership characteristics, qualifications, charisma and so on. They could have overlooked the senior princess (Y) because of her unstable temperament, incompetence, a lack of leadership characteristics, a lack of qualifications, a lack of charisma, cruelty, rudeness, alcoholism, racism, sexism or any other characteristic which is unbecoming to a traditional leader (after all, gender equality does not mean that women must be preferred at all costs). Therefore, it does not necessary follow that because one is the eldest child of the previous traditional leader, he or she will be appointed to succeed him or her. As Mahao puts it, the selection process is only the first step and is subject to the more rigorous step, the ratification process. The latter step decides whether the selection stands or falls, depending on whether the selected candidate passes or fails the leadership tests after selection. (iv) Would the situation be any different if this was a dispute about succession to an intestate family estate, instead of traditional leadership; Downloaded by: Rikus07 | Distribution of this document is illegal S - The study-notes marketplace 5 | P a g e The answer will not be different; this is so because in the Bhe v Magistrate Khayelitsha; Legal question: The ConCourt was asked to confirm a Western Cape High Court decision together with a North Gauteng High Court decision both of which had declared the male primogeniture rule which preferred senior males in the customary law of intestate succession unconstitutional and set it aside. Reasons for judgment: The ConCourt confirmed both judgments; declared the male primogeniture rule unconstitutional for violating the equality and the human dignity clauses of the Constitution; set aside section 23 of the BAA and section 1(4) of the Intestate Succession Act. The Intestate Succession Act was imported to customary law, to distribute equal child portions to all the widows, descendants of the deceased, male and female, legitimate and illegitimate. In conclusion: Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of Republic of South Africa 2005 (1) BCLR 580 (CC)) is authority for jettisoning the discredited apartheid rule entrenched in section 23 of the Black Administration Act (BAA), which preferred males to females in matters of succession. As a result, section 23 of the BAA, the principle of male primogeniture; the distinction between legitimate and illegitimate children were all declared unconstitutional and removed from customary law. The court went on to incorporate the provisions of the Intestate Succession Act, 81 of 1987, dealing with child portions. After making the necessary adjustments, all the children of the deceased, legitimate and illegitimate, together with all his widows/widowers must get child portions. (v) Your own critical appraisal of the recent developments in this field; Downloaded by: Rikus07 | Distribution of this document is illegal S - The study-notes marketplace 6 | P a g e The courts developed the customary law of succession to be in line with the ethos of the constitution that is; promoting equality in matters of succession. They jettisoned the principle of male primogeniture and declared it unconstitutional as it unfairly discriminated against women based on gender, since it favors male over females in matters of succession. QUESTION 2 a) Relating to the normalization of the relations among men, women and the youths in the handling of marriage negotiations; In Mabena v Letsoalo the court dealt with the following: Legal question: Whether a customary marriage is valid where a young man, in the absence of his father, negotiated his own customary marriage, together with his prospective mother-in-law, who acted as the guardian of the prospective bride, in the absence of her husband. Reasons for judgment: An adult and independent man is qualified to negotiate 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 negotiate the customary marriage and to accept delivery of the marriage goods, in the absence of her husband who has disserted the family. Decision of the court: The validity of the customary marriage was upheld. b) The resolution of the dispute around the interaction between the requirements of ancient customs of integration of the bride and the statutory requirement that the marriage be “negotiated or entered into or celebrated” according to customary law. Downloaded by: Rikus07 | Distribution of this document is illegal S - The study-notes marketplace 7 | P a g e Mabuza v Mbatha Legal question: Whether a seSwati customary marriage can be valid without the observance of the ukumekeza custom? Reasons for judgment: 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 the court: The validity of the customary marriage was upheld. In Maluleke v Minister of Home Affairs: Once it is clear that the negotiations have taken place, the next inquiry, applying the Act is whether there are any factors that show that the marriage was “entered into” or “celebrated”. The validity of a customary marriage was impuned on the basis that the traditional imvume ritual, the Zulu variation of ukumekeza (Swazi), for integrating the bride into the groom’s family, had not been observed before the death of the husband. Tshiqi J examined the requirements for a valid customary marriage as laid down in section 3 of the Recognition of Customary Marriages Act. On the basis of these requirements the judge concluded that customary marriage has evolved over the years, and that this evolution has been accepted by the South African courts. The judge then rejected the pretransformation “official” version of customary law which held that the nonobservance of the imvume ritual was fatal to the validity of a customary marriage. The judge accordingly approved the validity of the customary marriage, confirming the bride’s averment that the imvume practice was not an essential requirement for the validity of her customary marriage. Downloaded by: Rikus07 | Distribution of this document is illegal S - The study-notes marketplace 8 | P a g e QUESTION 3 Examine the nature and characteristics of the customary law of South Africa from: (a) The definition of customary law as can be found in legislation; Section 1 of the Recognition of Customary Marriages Act, 120 of 1998, which provides the following: “customary law means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people”. (b) The applicability of customary law and its limitations in terms of the constitution: The courts are obliged by section 211(3) of the Constitution to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law. In doing so the courts must have regard to the spirit, purport and objects of the Bill of Rights. Our Constitution does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill [of Rights]. (c) The characteristics of customary law as outlined by the Constitutional Court in the Alexkor judgment; Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC) is proof that customary law and common law are equal components of South African law and the time when customary law was viewed with reference to common law was over. The current status of customary law is that of an original and independent system that has its own values and norms. While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution. Its validity must now be Downloaded by: Rikus07 | Distribution of this document is illegal S - The study-notes marketplace 9 | P a g e determined by reference not to common law, but to the Constitution. The courts are obliged by section 211(3) of the Constitution to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law. In doing so the courts must have regard to the spirit, purport and objects of the Bill of Rights. Our Constitution does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill [of Rights]. It is clear, therefore that the Constitution acknowledges the originality and distinctiveness of indigenous law as an independent source of norms within the legal system. At the same time the Constitution, while giving force to indigenous law, makes it clear that such law is subject to the Constitution and has to be interpreted in the light of its values. Furthermore, like the common law, indigenous law is subject to any legislation, consistent with the Constitution that specifically deals with it. In the result, indigenous law feeds into, nourishes, fuses with and becomes part of the amalgam of South African law. (d) The identification of customary law as dynamic system as outlined in the Pilane judgment; It is well established that customary law is a vital component of our constitutional system, recognised and protected by the Constitution, while ultimately subject to its terms. The true nature of customary law is as a living body of law, active and dynamic, with an inherent capacity to evolve in keeping with the changing lives of the people whom it governs. Our history, however, is replete with instances in which customary law was not given the necessary space to evolve, but was instead fossilised and “stonewalled” through codification, which distorted its mutable nature and subverted its operation. The Constitution is designed to reverse this trend and to facilitate the preservation and evolution of customary law as a legal system that conforms with its provisions.” Downloaded by: Rikus07 | Distribution of this document is illegal S - The study-notes marketplace 10 | P a g e This was supported in Shilubana; The Court emphasised the fact that customary law is a living system of law. As such it was not bound by historical precedent. Its flexibility allowed it to evolve as its community changed. Once it was clear that the contemporary practices of the community have replaced its past practices, the latter no longer applied. Because of this, the Constitutional Court deviated from prior decisions that had served as a test for determining the content of customary law even though they indicated long-standing and historical practices. Instead the Court redefined customary law as a system that reflected the current practices of the particular community. Living customary law came to be defined with reference to the constantly evolving practices that indicate the current system of norms by which that community has chosen to live. (e) Your own appraisal of the judgments discussed above: QUESTION 4 UKUFUKWA The features of ubuntu in the ukufakwa institution must be noted. Ukufakwa means that any male relative of a deceased father such as his brother, uncle, cousin or nephew, takes on the responsibilities of the father and ensures that the customary traditions and ceremonies related to the initiation and/or marriage of the deceased’s daughter are carried out as if the relative was her own father. This entitles the relative to a pro rata portion of the value of the lobolo goods when the daughter marries. It also makes him liable for fines for delicts committed by the daughter. The relative is entitled to such a portion as of right, directly from its source; this means that as soon as goods are identified for delivery as lobolo goods, the relevant portion immediately belongs to the relative. He doesn’t need to claim the portion from the property of the father since it already belongs to him. If such goods are not delivered for whatever reason, the relative cannot bring a claim against the girl’s father. He wouldn’t have received the goods Downloaded by: Rikus07 | Distribution of this document is illegal S - The study-notes marketplace 11 | P a g e from him in the first place. In such a case, the relative has to suffer his share of the ‘nothing received’. Nevertheless, the relative remains entitled to a portion of the marriage goods of any subsequent daughter even if he does not contribute to her marriage ceremonies. These attributes include the following: Communal living means that relatives are one family and members of one home. They share the joys of unity and bear the burden that comes with it. Nobody should ever be seen naked nor should anyone be enriched at the expense of another. This is our home. These are our children. We must bring them up together for the common good. A shared sense of belonging is also evident. No one should stand alone, nor should anyone enjoy wealth alone or suffer poverty alone. Umuntu ngumuntu ngabantu/motho ke motho ka batho – a human being derives his/her humanity from other humans. Life is shared. No child must suffer because his or her parents are poor but must enjoy the same upbringing as other children. Your prosperity must positively influence the financial means of your family. They must also use their abilities to enable you to assist them. Group solidarity: Unity is strength (umanyano ngamandla/kopano ke matla. United we stand, divided we fall (ukwanda kwaliwa ngumthakathi – growth/prosperity ends where evil starts. An injury to one is an injury to all. It means that when you are with your brothers and sisters, no enemy will ever overcome you. The shame of your brothers and sisters is yours and your shame is theirs. If one of your brothers and sisters fails or is despised, it is as if all of you have failed or are despised. If your brother’s daughter behaves badly at her marriage home, she is a disgrace to her parents and all her relatives. If she is Ms Khumalo, no Khumalo relative can allow their name to fall into disrepute. An injury to one Khumalo is an injury to all Khumalos. Amandla!/Matla! Downloaded by: Rikus07 | Distribution of this document is illegal S - The study-notes marketplace 12 | P a g e Reciprocity. The good that you do to others will be done to you (izandla ziyahlambana – the one hand washes the other) or (inkomo ikhoth’eyikhothayo – cattle lick each other’s backs). There is no permanent loss. Whatever favour you do other people, they will return. One should never be reluctant to help others because, sometime in the future, they will reciprocate. A good deed is an investment. If you assist a niece, it may look as if you are getting the bad end of the stick, but when you receive your portion of the lobolo goods later on, the favour is returned. Ubuntu requires you to send your sister’s children to university. It also requires those children to assist you in old age. Collective ownership of assets. Brothers belong to a home which is the real owner of their productive activities. In the Khumalo home, every Khumalo must contribute to its growth and development After all; the cattle of one Khumalo are the cattle of all Khumalos. All Khumalos claim: ‘these are our cattle’ (zinkomo zakuthi ezi). The cattle are a collective Khumalo fund. What I pay in settlement of a debt is paid from the Khumalo fund (although it is administered by me), and what I receive is received by the Khumalo fund. Our individual and collective eff orts are directed at upholding our name, which is who we all are. The daughter’s ceremonies are fi nanced by the Khumalo home regardless of who the father or his brother is.