MEMORANDUM IND2601 OCTOBER-NOVEMBER 2017 EXAMINATION
SECTION A
1. 4
2. 2
3. 2
4. 1
5. 3
6. 1
7. 2
8. 2
9. 2
10. 3
SECTION B
QUESTION 2
The main conflict is between customary law and the fundamental
rights in the Constitution.
(i) Give two examples of the potential conflict between the
Constitutional principles and principles of customary law.
(6)
Conflict between customary law and the Bill of Rights is unavoidable. The
principle of patriarchy in succession matters in terms of customary law,
ruling that only males are eligible to succeed or inherit deceased’s
person’s estates often conflict with fundamental rights provisions in the
constitution. [3 marks]
Customary law forms part of the South African legal system.
Customary law must therefore be interpreted in the light of fundamental
rights, and particularly in the light of the equality clause as contained in
section 9 of the Constitution.
Section 9(3) of the Constitution provides that –
“The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth
By recognizing customary law on the one hand and prohibiting
discrimination on the other, the Constitution gave rise to a conflict between
, two opposing principles; namely, the right of the individual to equal
treatment and the right of the group to adhere to the culture of its choice.
The Bill of Rights emphasizes individual rights, whereas in customary law the
emphasis is on the group, the community and the individual in the context of
the community.[3 marks]
(ii) Does the Constitution provide a clear solution to this problem?
(2)
The Constitution does not necessarily provide a clear solution to the
conflict between customary law and fundamental rights. However the
Constitution indicates that fundamental rights have priority over customary
law.[2 marks]
(iii) State and briefly discuss the provisions in the Constitution which
indicate how this conflict may be resolved.
(12)
Various sections in the Constitution points out the dominance or
supremacy of the Bill of Rights over customary law –
Section 2 – which indicates that the Constitution is the supreme law of
South Africa and any law or conduct inconsistent with it is invalid, and
the obligations imposed by it must be fulfilled. [2marks]
Section 8 (1) – which indicates that the Bill of Rights applies to all law,
and binds the legislature, the executive, the judiciary and all organs of
state. [2marks]
Section 36 (2) – which provides that no fundamental rights will be
limited by any law, except as provided for under section 36 (1) or any
other provision of the Constitution [2marks]
Section 39 (1) – which requires the courts to promote the values that
underlie an open and democratic society based on human dignity,
equality and freedom in interpreting the Bill of Rights [2marks]
Section 39 (2) – which provides that, in interpreting any law and
applying and developing common and customary law, the courts must
have due regard for the spirit, purport (purpose) and objects of the Bill
of Right [2marks]
Section 36 (1) – which allows the rights in the Bill of Rights to be
limited by “law of general application” (including customary law),
provided that such limitation is reasonable and justifiable in an open
and democratic society. [2marks]
,QUESTION 3
(a) Evaluate the following statements
(i) Section 3 of the RCMA 120 OF 1998 retrospectively recognizes all
customary marriages in South Africa.
(5)
The statement is false.
The Act came into operation on 15 November 200 and section 2 provides
for monogamous and polygamous customary marriages that were
concluded before as well as after the commencement of the Act. Therefore
the legislation does provide for the retrospective recognition of all validly
entered into customary marriages, but only in terms of section 2 but not
section 3.[Give full marks just for the recognition of the retrospective effect
of the marriages irrespective of whether they stated true or false here].[4
marks]
(ii) Section 10 of the RCMA 120 of 1998 allows parties married in terms
of customary law to enter into a civil marriage with other parties.
(5)
The statement is false.[ 1 mark]
According to section 3 of the RCMA a spouse in a customary marriage is
not competent to contract a civil marriage with another partner during the
subsistence of the customary marriage. However, in terms of section 10 of
the same Act, a man and a woman between whom a customary marriage
exists may contract a civil marriage with each other if neither of them is a
spouse in a subsisting customary marriage with another person.[4 marks]
(iii) In the case of Mayelane v Ngwenyama[2013]SA 4 SA 415 (CC), the
court ruled that the first wife’s consent is not necessary for her
husband to contract a valid polygamous marriage with another
woman. (5)
The statement is true. .[ 1 mark]
Whilst holding that the first wife has to give consent to a subsequent
marriage that her husband wishes to enter into, in the case of Mayelanev
Ngwenyama 2013 4 SA 415(CC) the court pointed out that the provisions
of section 7(6) dealt mainly with proprietary consequences and not the
capacity or competency of a male spouse to contract another customary
marriage. Thus failure to obtain the order envisaged under this section
does not have any effect on the new marriage, and it will be out of
community of property..[4 marks]
, (b) State the general principles of succession in original customary law and
discuss how succession differs from inheritance in a customary law
context. (10)( 8 MARKS SHOULD BE ALLOCATED FOR ANY
OF THE GENERAL PRINCIPLES)., and how succession differs from
inheritance in a customary law context (TWO MARKS FOR THE
DIFFERENCE) (10)
● Succession takes place only on the death of a predecessor; there is thus
no question of succession while the family head is still alive.
● In original indigenous law, succession was related solely to status, but
modern indigenous law does pay some acknowledgment to the notion of the
individual inheritance of property.
● In original indigenous law, there was no such thing as the total disposition
of property by means of a will. Today, however, it is not uncommon for
indigenous African people to dispose of their assets by means of a will.
● A distinction is made between general succession and special or house
succession.
● In original indigenous law, the successor succeeded to the deceased's
assets and liabilities; in modern indigenous law, the position differs between
groups. In KwaZulu-Natal, a successor succeeds to the assets of the estate
and only those debts that emanate from marriage contracts (the lobolo
debts). In the rest of the Republic of South Africa, a successor succeeds to
the assets and all the debts of his predecessor.
● Succession in status is limited largely to males, especially those of
the patrilineage; a man cannot be succeeded by a woman, except in
certain rare cases.
● Succession follows the principle of primogeniture. Primogeniture means
that, on his death, a man is succeeded by his firstborn son.
● Succession is a duty that cannot be relinquished or ceded.
● Male descendants enjoy preference over male ascendants; male
ascendants, in turn, enjoy preference over collateral male relatives in
other words, relatives in the lateral line. (“Ascendants” are ancestors, and
“collateral relatives” are relatives in the lateral line, such as brothers and
sisters.)
● Disposal among the living is possible, provided the usual formalities are
complied with.
● A successor may, on good grounds , be removed from the line of succession
(“disinherited”).
Succession differs from inheritance in a sense that, inheritance is mainly
concerned with the division of a deceased's assets among his or her heirs whereas
In the case of succession, there is, strictly speaking, no division of property. The
SECTION A
1. 4
2. 2
3. 2
4. 1
5. 3
6. 1
7. 2
8. 2
9. 2
10. 3
SECTION B
QUESTION 2
The main conflict is between customary law and the fundamental
rights in the Constitution.
(i) Give two examples of the potential conflict between the
Constitutional principles and principles of customary law.
(6)
Conflict between customary law and the Bill of Rights is unavoidable. The
principle of patriarchy in succession matters in terms of customary law,
ruling that only males are eligible to succeed or inherit deceased’s
person’s estates often conflict with fundamental rights provisions in the
constitution. [3 marks]
Customary law forms part of the South African legal system.
Customary law must therefore be interpreted in the light of fundamental
rights, and particularly in the light of the equality clause as contained in
section 9 of the Constitution.
Section 9(3) of the Constitution provides that –
“The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth
By recognizing customary law on the one hand and prohibiting
discrimination on the other, the Constitution gave rise to a conflict between
, two opposing principles; namely, the right of the individual to equal
treatment and the right of the group to adhere to the culture of its choice.
The Bill of Rights emphasizes individual rights, whereas in customary law the
emphasis is on the group, the community and the individual in the context of
the community.[3 marks]
(ii) Does the Constitution provide a clear solution to this problem?
(2)
The Constitution does not necessarily provide a clear solution to the
conflict between customary law and fundamental rights. However the
Constitution indicates that fundamental rights have priority over customary
law.[2 marks]
(iii) State and briefly discuss the provisions in the Constitution which
indicate how this conflict may be resolved.
(12)
Various sections in the Constitution points out the dominance or
supremacy of the Bill of Rights over customary law –
Section 2 – which indicates that the Constitution is the supreme law of
South Africa and any law or conduct inconsistent with it is invalid, and
the obligations imposed by it must be fulfilled. [2marks]
Section 8 (1) – which indicates that the Bill of Rights applies to all law,
and binds the legislature, the executive, the judiciary and all organs of
state. [2marks]
Section 36 (2) – which provides that no fundamental rights will be
limited by any law, except as provided for under section 36 (1) or any
other provision of the Constitution [2marks]
Section 39 (1) – which requires the courts to promote the values that
underlie an open and democratic society based on human dignity,
equality and freedom in interpreting the Bill of Rights [2marks]
Section 39 (2) – which provides that, in interpreting any law and
applying and developing common and customary law, the courts must
have due regard for the spirit, purport (purpose) and objects of the Bill
of Right [2marks]
Section 36 (1) – which allows the rights in the Bill of Rights to be
limited by “law of general application” (including customary law),
provided that such limitation is reasonable and justifiable in an open
and democratic society. [2marks]
,QUESTION 3
(a) Evaluate the following statements
(i) Section 3 of the RCMA 120 OF 1998 retrospectively recognizes all
customary marriages in South Africa.
(5)
The statement is false.
The Act came into operation on 15 November 200 and section 2 provides
for monogamous and polygamous customary marriages that were
concluded before as well as after the commencement of the Act. Therefore
the legislation does provide for the retrospective recognition of all validly
entered into customary marriages, but only in terms of section 2 but not
section 3.[Give full marks just for the recognition of the retrospective effect
of the marriages irrespective of whether they stated true or false here].[4
marks]
(ii) Section 10 of the RCMA 120 of 1998 allows parties married in terms
of customary law to enter into a civil marriage with other parties.
(5)
The statement is false.[ 1 mark]
According to section 3 of the RCMA a spouse in a customary marriage is
not competent to contract a civil marriage with another partner during the
subsistence of the customary marriage. However, in terms of section 10 of
the same Act, a man and a woman between whom a customary marriage
exists may contract a civil marriage with each other if neither of them is a
spouse in a subsisting customary marriage with another person.[4 marks]
(iii) In the case of Mayelane v Ngwenyama[2013]SA 4 SA 415 (CC), the
court ruled that the first wife’s consent is not necessary for her
husband to contract a valid polygamous marriage with another
woman. (5)
The statement is true. .[ 1 mark]
Whilst holding that the first wife has to give consent to a subsequent
marriage that her husband wishes to enter into, in the case of Mayelanev
Ngwenyama 2013 4 SA 415(CC) the court pointed out that the provisions
of section 7(6) dealt mainly with proprietary consequences and not the
capacity or competency of a male spouse to contract another customary
marriage. Thus failure to obtain the order envisaged under this section
does not have any effect on the new marriage, and it will be out of
community of property..[4 marks]
, (b) State the general principles of succession in original customary law and
discuss how succession differs from inheritance in a customary law
context. (10)( 8 MARKS SHOULD BE ALLOCATED FOR ANY
OF THE GENERAL PRINCIPLES)., and how succession differs from
inheritance in a customary law context (TWO MARKS FOR THE
DIFFERENCE) (10)
● Succession takes place only on the death of a predecessor; there is thus
no question of succession while the family head is still alive.
● In original indigenous law, succession was related solely to status, but
modern indigenous law does pay some acknowledgment to the notion of the
individual inheritance of property.
● In original indigenous law, there was no such thing as the total disposition
of property by means of a will. Today, however, it is not uncommon for
indigenous African people to dispose of their assets by means of a will.
● A distinction is made between general succession and special or house
succession.
● In original indigenous law, the successor succeeded to the deceased's
assets and liabilities; in modern indigenous law, the position differs between
groups. In KwaZulu-Natal, a successor succeeds to the assets of the estate
and only those debts that emanate from marriage contracts (the lobolo
debts). In the rest of the Republic of South Africa, a successor succeeds to
the assets and all the debts of his predecessor.
● Succession in status is limited largely to males, especially those of
the patrilineage; a man cannot be succeeded by a woman, except in
certain rare cases.
● Succession follows the principle of primogeniture. Primogeniture means
that, on his death, a man is succeeded by his firstborn son.
● Succession is a duty that cannot be relinquished or ceded.
● Male descendants enjoy preference over male ascendants; male
ascendants, in turn, enjoy preference over collateral male relatives in
other words, relatives in the lateral line. (“Ascendants” are ancestors, and
“collateral relatives” are relatives in the lateral line, such as brothers and
sisters.)
● Disposal among the living is possible, provided the usual formalities are
complied with.
● A successor may, on good grounds , be removed from the line of succession
(“disinherited”).
Succession differs from inheritance in a sense that, inheritance is mainly
concerned with the division of a deceased's assets among his or her heirs whereas
In the case of succession, there is, strictly speaking, no division of property. The
