LCP4804 PORTFOLIO MEMO OCTOBER 2021 (DETAILED ANSWERS) SUPER SEMESTER UNISA

QUESTION 1 Critically discuss the differences between living customary law and official customary law. [30] QUESTION 2 The Recognition of Customary Marriages Act (RCMA) 120 of 1998 which came into operation on 15 November 2000 brought significant changes to how customary marriages are recognised. Critically discuss the legal requirements for concluding a valid customary marriage before and after 15 November 2000. [20] QUESTION 3 (a) Write down the definition of customary law as it appears from section 1 of the Recognition of Customary Marriages Act 120 of 1998; and then use its wording to explain the nature, role and function of this component of the South African legal system as appears from case law. (10) (b) Apply extracts (i) and (ii) below to analyse the differences between the status, nature and characteristics of customary law under the pre- and the post- constitutional periods in South African law – (i) Section 11(1) of the Black Administration Act 38 of 1927 reads in part: “it shall be in the discretion of the Commissioners’ Courts in all suits or proceedings between Blacks involving questions of customs followed by Blacks, to decide such questions according to the Black law applying to such customs except in so far [as] it shall have been repealed or modified: provided that such Black law shall not be opposed to the principles of public policy or natural justice...” (pre-Constitutional law); and – (ii) Section 211(3) of the Constitution of the Republic of South Africa, 1996 reads: “The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.” (post-Constitutional law). QUESTION 4 4.1 Study the provisions of Traditional Leadership and Governance Framework Act 41 of 2003 as amended by Act 23 of 2009, as they relate to the appointment of a king or queen to that position thoroughly. You will notice that such appointment may be recommended by the Commission or by the royal family, as the case may be, as it happened in Sigcau v Minister of Cooperative Governance &Traditional Affairs 2018 (12) BCLR 1525 (CC).