Advanced Indigenous Law(LCP4804)
Name: Zandile Gumede
Student no. 63626624
Assignment 2 – 2021
Unique no. 626817
Question 1
i. In Mabena v Letsoalo, the issue that was raised before the High Court was
about the right of the mother of the brother to negotiate the lobolo and
consent to the marriage of her daughter. The court held that in certain
circumstances, such as in the absence of the father, the mother has the right
to negotiate lobolo and to consent to the marriage of her daughter. The court
further held that the concept of customary law in South Africa consists of two
forms of customary law; official customary law1 and living customary law2, and
applied living customary law in this case. Ultimately, the court successfully
promoted the Constitutional right to equality.
In Mabuza v Mbatha, the issued raised to the court dealt with emaSwati
customary law and requirements for a valid customary marriage. Mrs Mabuza
instituted a divorce action against but the defendant (Mr Mabuza) opposed the
1
C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and
Living Law Perspectives (Oxford University Press 2014) 77.
“Official Customary Law is the law applied by the courts and other state institutions. This
system of law rarely represents the customary law of the people whose customary law it
purports to be.”
2
C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and
Living Law Perspectives (Oxford University Press 2014) 69.
“Living customary Law consists of the actual practices or customs of the indigenous
community whose customary law is under consideration. It usually consists of the unwritten
customary practices that regulate the day-to-day life of people.”
, divorce action, contending that in terms of siSwati customary law, a valid
marriage between the parties did not exist because the custom of ukumekeza
(a formal integration of the bride into the bridegroom’s family usually by her
dancing in the cattle byre while ritual wailing)3 was not performed. The Court
found that the custom of ukumekeza had evolved and that it could be
practised differently,4 and held that there was a valid siSwati customary
marriage between the parties. Thus, successfully demonstrating a modern
and evolving approach in determining the validity of customary marriages.
ii. There are many attributes to Ubuntu such as humaneness, reciprocity,
compassion, selflessness, hospitality, kindness, generosity and respect for
others, just to name a few. Now with reference with to the Covid 19 pandemic
and how it is being handled, umuntu ngumuntu ngabantu gives expression in
the following attributes of Ubuntu:
Co-operation:
We see this by people working together by wearing masks, sanitizing and
social distancing, adhering to the restrictions passed by authorities as well as
taking all the necessary precautions to ensure that we don’t spread the virus.
Generosity:
There have been many acts of kindness and generosity that we have
witnessed such as the government providing unemployed persons with the
Covid Social Relief Grant, this was incredibly generous especially considering
the fact that due the pandemic, many people who are “breadwinners” and sole
providers of their households were retrenched from their jobs and the
economy was strained. There were also food parcels, water and sanitizers
that were being delivered to our less privileged communities and
disadvantaged areas in South Africa.
Group solidarity:
3
C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and
Living Law Perspectives (Oxford University Press 2014) 174.
4
Mabuza v Mbatha 2003 (7) BCLR 43(C) [para 25].
Name: Zandile Gumede
Student no. 63626624
Assignment 2 – 2021
Unique no. 626817
Question 1
i. In Mabena v Letsoalo, the issue that was raised before the High Court was
about the right of the mother of the brother to negotiate the lobolo and
consent to the marriage of her daughter. The court held that in certain
circumstances, such as in the absence of the father, the mother has the right
to negotiate lobolo and to consent to the marriage of her daughter. The court
further held that the concept of customary law in South Africa consists of two
forms of customary law; official customary law1 and living customary law2, and
applied living customary law in this case. Ultimately, the court successfully
promoted the Constitutional right to equality.
In Mabuza v Mbatha, the issued raised to the court dealt with emaSwati
customary law and requirements for a valid customary marriage. Mrs Mabuza
instituted a divorce action against but the defendant (Mr Mabuza) opposed the
1
C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and
Living Law Perspectives (Oxford University Press 2014) 77.
“Official Customary Law is the law applied by the courts and other state institutions. This
system of law rarely represents the customary law of the people whose customary law it
purports to be.”
2
C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and
Living Law Perspectives (Oxford University Press 2014) 69.
“Living customary Law consists of the actual practices or customs of the indigenous
community whose customary law is under consideration. It usually consists of the unwritten
customary practices that regulate the day-to-day life of people.”
, divorce action, contending that in terms of siSwati customary law, a valid
marriage between the parties did not exist because the custom of ukumekeza
(a formal integration of the bride into the bridegroom’s family usually by her
dancing in the cattle byre while ritual wailing)3 was not performed. The Court
found that the custom of ukumekeza had evolved and that it could be
practised differently,4 and held that there was a valid siSwati customary
marriage between the parties. Thus, successfully demonstrating a modern
and evolving approach in determining the validity of customary marriages.
ii. There are many attributes to Ubuntu such as humaneness, reciprocity,
compassion, selflessness, hospitality, kindness, generosity and respect for
others, just to name a few. Now with reference with to the Covid 19 pandemic
and how it is being handled, umuntu ngumuntu ngabantu gives expression in
the following attributes of Ubuntu:
Co-operation:
We see this by people working together by wearing masks, sanitizing and
social distancing, adhering to the restrictions passed by authorities as well as
taking all the necessary precautions to ensure that we don’t spread the virus.
Generosity:
There have been many acts of kindness and generosity that we have
witnessed such as the government providing unemployed persons with the
Covid Social Relief Grant, this was incredibly generous especially considering
the fact that due the pandemic, many people who are “breadwinners” and sole
providers of their households were retrenched from their jobs and the
economy was strained. There were also food parcels, water and sanitizers
that were being delivered to our less privileged communities and
disadvantaged areas in South Africa.
Group solidarity:
3
C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-Apartheid and
Living Law Perspectives (Oxford University Press 2014) 174.
4
Mabuza v Mbatha 2003 (7) BCLR 43(C) [para 25].
