WELL STUCTURED LCP4804 ASSIGNMENT 2 (ANSWERS)
SEMESTER 2 2023 ()- DISTINCTION GUARANTEED
(DETAILED ANSWERS - DISTINCTION GUARANTEED!).
SUBMISSION DATE 11 SEPTEMBER 2023
QUESTION 1 Make a critical evaluation of the provisions of section 39(2) of
the Constitution of the Republic of South Africa, 1996 as they pertain to
customary law and provide an illustration of at least two cases where these
provisions (section 39(2)) were applied to develop customary law in the
courts. (15
ANSWER
Critical Evaluation of Section 39(2) of the
Constitution of the Republic of South Africa,
1996
Section 39(2) of the Constitution of the Republic of South Africa, 1996, plays a crucial role in
the development and application of customary law in the country. This provision states that when
interpreting legislation and developing the common law, courts must promote the spirit, purport,
, and objects of the Bill of Rights. Courts are also supposed to consider international law and the
customs of communities when interpreting legislation and developing the common law.
Evaluation of Section 39(2)
Section 39(2) is significant as it recognizes the importance of customary law in South Africa's
legal system by ensuring that customary law is not only respected but also evolves in line with
the principles of the Constitution and human rights. This provision promotes a more inclusive
and culturally sensitive legal framework by requiring courts to consider international law and
customs.
There are however some challenges associated with the application of section 39(2). One of the
challenges is the potential clash between customary law and constitutional rights. While
customary law is an integral part of many communities' identities, it may conflict with
constitutional principles such as equality and non-discrimination. Balancing these competing
interests can be complex and requires careful consideration by the courts.
Another challenge is the lack of clarity regarding the weight to be given to customary law in
specific cases. Section 39(2) does not provide clear guidelines on how courts should prioritize
customary law when it conflicts with other legal principles. This lack of clarity may lead to
inconsistent decisions and uncertainty in the application of customary law.
Illustation of Cases Applying Section 39(2)
1.Bhe v Magistrate, Khayelitsha: In this case, the Constitutional Court applied section 39(2) to
develop customary law regarding the inheritance rights of women in the context of African
customary law. The court held that the discriminatory aspects of customary law, which denied
women the right to inherit, were inconsistent with the Constitution's equality provisions. The
court used section 39(2) to develop the customary law by interpreting it in a manner that aligned
with constitutional principles.
2.Shilubana and Others v Nwamitwa: This case involved the interpretation of customary law
regarding the succession to traditional leadership positions. The Constitutional Court applied
section 39(2) to develop customary law by considering the customs and practices of the
community. The court held that the principle of primogeniture, which excluded women from
inheriting leadership positions, was inconsistent with the Constitution's equality provisions. The
court used section 39(2) to develop the customary law by interpreting it in a manner that
promoted gender equality.
In both cases, section 39(2) was applied to develop customary law in a manner that aligned with
constitutional principles, particularly equality and non-discrimination. These cases demonstrate
the importance of section 39(2) in ensuring that customary law evolves in a manner that respects
human rights and the Constitution.
SEMESTER 2 2023 ()- DISTINCTION GUARANTEED
(DETAILED ANSWERS - DISTINCTION GUARANTEED!).
SUBMISSION DATE 11 SEPTEMBER 2023
QUESTION 1 Make a critical evaluation of the provisions of section 39(2) of
the Constitution of the Republic of South Africa, 1996 as they pertain to
customary law and provide an illustration of at least two cases where these
provisions (section 39(2)) were applied to develop customary law in the
courts. (15
ANSWER
Critical Evaluation of Section 39(2) of the
Constitution of the Republic of South Africa,
1996
Section 39(2) of the Constitution of the Republic of South Africa, 1996, plays a crucial role in
the development and application of customary law in the country. This provision states that when
interpreting legislation and developing the common law, courts must promote the spirit, purport,
, and objects of the Bill of Rights. Courts are also supposed to consider international law and the
customs of communities when interpreting legislation and developing the common law.
Evaluation of Section 39(2)
Section 39(2) is significant as it recognizes the importance of customary law in South Africa's
legal system by ensuring that customary law is not only respected but also evolves in line with
the principles of the Constitution and human rights. This provision promotes a more inclusive
and culturally sensitive legal framework by requiring courts to consider international law and
customs.
There are however some challenges associated with the application of section 39(2). One of the
challenges is the potential clash between customary law and constitutional rights. While
customary law is an integral part of many communities' identities, it may conflict with
constitutional principles such as equality and non-discrimination. Balancing these competing
interests can be complex and requires careful consideration by the courts.
Another challenge is the lack of clarity regarding the weight to be given to customary law in
specific cases. Section 39(2) does not provide clear guidelines on how courts should prioritize
customary law when it conflicts with other legal principles. This lack of clarity may lead to
inconsistent decisions and uncertainty in the application of customary law.
Illustation of Cases Applying Section 39(2)
1.Bhe v Magistrate, Khayelitsha: In this case, the Constitutional Court applied section 39(2) to
develop customary law regarding the inheritance rights of women in the context of African
customary law. The court held that the discriminatory aspects of customary law, which denied
women the right to inherit, were inconsistent with the Constitution's equality provisions. The
court used section 39(2) to develop the customary law by interpreting it in a manner that aligned
with constitutional principles.
2.Shilubana and Others v Nwamitwa: This case involved the interpretation of customary law
regarding the succession to traditional leadership positions. The Constitutional Court applied
section 39(2) to develop customary law by considering the customs and practices of the
community. The court held that the principle of primogeniture, which excluded women from
inheriting leadership positions, was inconsistent with the Constitution's equality provisions. The
court used section 39(2) to develop the customary law by interpreting it in a manner that
promoted gender equality.
In both cases, section 39(2) was applied to develop customary law in a manner that aligned with
constitutional principles, particularly equality and non-discrimination. These cases demonstrate
the importance of section 39(2) in ensuring that customary law evolves in a manner that respects
human rights and the Constitution.
