LCP4804_Trial Exam Pack
1.1 Discuss marital rights in the context of polygamy within the South African
legislation pre-democracy. Use case law to show the emancipation of women in
the Constitutional Court.
In terms of the BAA (which was the national policy), alongside the Natal Code of Zulu Law,
the concept of marital rights declared that all black women were perpetual minors. Perpetual
minority demands the handing over of the woman from the guardian (her father) to guardian
(the husband) during marriage proceedings because of being considered a minor. The latter
code provides that the husband is the owner of matrimonial property and the wife owes him
the duty of respect. In the Gumede case, these provisions were found to be inconsistent
with the constitutional right to equality and are invalid. Other than these negative and
disruptive roles, there is no further role for these old order statutes.
With regards to the polygamous nature of customary marriages, the husband had all the
rights as well as the power to marry as many wives as he wanted, whereas women had no
competing rights since they were regarded as perpetual minors.
The Constitutional Court cases which are relevant here are:
Gumede Case which discussed property rights in the context of divorce.
The Recognition of Customary Marriages Act was unconstitutional as it excluded
customary marriages concluded pre-recognition from the marital regime of ICOP. This
meant that such women upon divorce were not entitled to any marital property.
This case was not explicitly brought before the court in a polygamous nature, however it
is important to take note that all customary marriages are potentially polygamous.
Mayelane Case Permission of first wife is a requirement
the court in this case set a precedent that in order for a man to marry more women
according to customary law, that he requires the permission of the first wife.
1. 2 How did the outlawed marital legislation hinder the status of indigenous
women?
The Black Administration Act declared that all black women were perpetual minors.
Perpetual minority demands the handing over of the woman from the guardian (her father) to
guardian (the husband) during marriage proceedings because of being considered a minor.
Section 23 Before the Act came into being customary marriage was not
recognised as a marriage in law. It was known as a customary union where spouses did not
enjoy marital rights. Black women were perpetual minors who could be discarded simply by
their husbands marrying other women by civil rites.
In terms of the Kwazulu Act on the Code of Zulu law and the Natal Code of Zulu Law, that
these statutes have no contribution to make in the development of post-apartheid customary
law. Without section 23 of the BAA, the male primogeniture problems in Mthebu, Shilubana
and Bhe would not have happened.
Prior to coming into operation of the Recognition of Customary Marriages Act 120 of 1998,
customary marriages were subject to limited recognition in South Africa as a result of their
potentially polygamous nature. Before to the Act coming into being customary marriage was
not recognised as a marriage in law. It was known as a customary union where spouses did
not enjoy marital rights. Black women were perpetual minors who could be discarded simply
by their husbands marrying other women by civil rites.
,set out in the case of Hyde v Hyde and Woodmansee was imported into South African law
in the case of . The Court felt that it could not
recognise customary marriages because, being potentially polygamous, they offended
against public policy. Failure to recognise customary marriages in the common law courts
had serious consequences for African family life.
Dlamini lists the kinds of hardship that were visited on African families by this exclusion:
a) Spouses married in terms of customary law were not considered to be husband and
wife. They therefore did not owe each other a duty of support.
b) Their children were considered to be illegitimate.
c) If the man married another woman by civil rites, the civil marriage extinguished the
customary marriage, leading to the discarding of the first wife and her children.
Limited recognition was introduced in the form of statutory enactments aimed at remedying
these glaring anomalies that resulted from non-recognition. Statutes were passed to afford
limited recognition of customary marriages to alleviate the plight of customary spouses in the
areas of tax,
breadwinner. It was largely to correct this situation that the South African Law Commission
(SALC) embarked on its investigation into customary marriages.
The Recognition of Customary Marriages Act 120 of 1998 has its origins in the recognition of
customary law by the Constitution. The advent of the Act brought legal recognition to this
institution, which became a customary marriage, instead of customary union, with full legal
recognition to the same level as the civil marriage. Under the Act husband and wife are
equal, multiple wives are recognised and the marriage can be registered; and can be
dissolved only by a court. Thus the South African family law became normalised, humanised,
modernised or improved as all marriage systems attained legal equality.
1. 3 Define inheritance according to S/African indigenous law with use of case law?
Prior to the Constitution, the senior male succeeded (usually the eldest son) took over from
the previous traditional leader. Post the Constitution, the Traditional leadership Act allowed
for new succession chances based on equality. Now both male and female can succeed the
previous traditional leader. The case of Shilubana was groundbreaking in this regard.
However, the case of Mthembu was instrumental in the defining of inheritance.
The case applied the Black Administration Act which designated two important
requirements for eligibility to inherit, being that the individual must be:
a) a senior (in terms of age) and
b) that the individual must be male.
According to these requirements this individual was then regarded as the head of the
family and the heir to all deceased estates.
Hence in the case of Mthembu, the widow and her daughters failed to inherit, as the
father of the deceased inherited everything.
Shilubana: uncertainty and unresolved issues
While the judgment in Shilubana provides good guidance on the ascertainment of customary
law, its impact has been to destroy certainty in the customary law of intestate succession to
traditional leadership. Prior to this judgment, the rule of living customary law of succession,
as established by both the High Court and the SCA, clearly stated that the next traditional
leader was the most senior son or male relative of the previous leader. This was a general
rule among the Africans in South Africa. For instance, Peires has this to say in this regard:
Wife.
, In Sigcau v Sigcau Prince Mandlonke Sigcau, the great son of the late King Marelane
Sigcau, succeeded his father in that position. Yet after the Shilubana judgment this was no
longer necessarily so. Van der Westhuisen J brought an end to this certainty by recognising
established by both the High Court and the SCA, clearly stated that the next traditional
leader was the most senior son or male relative of the previous leader.
1. 4 Do you think inheritance included women in their position as beneficiaries of
deceased estates and administrators of estates? Cite case law and show how
the court has transformed the position of women using legislation post
democracy.
Names of the parties: Bhe v Magistrate Khayelitsha
Legal question:
The Constitutional Court 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 Constitutional Court 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.
Decision of the court: Both decisions from the High Courts were confirmed.
Names of the parties: Shilubana v Nwamitwa
Legal question:
On appeal from the SCA, the Constitutional Court was asked whether the High Court and the
SCA were correct in holding that a woman could not be appointed as a traditional leader in
terms of the laws and traditions of Valoyi community; and whether the Valoyi Traditional
Authority had the competence to change their customary law to provide for the appointment
of a woman as a traditional leader.
Reasons for judgment:
The Constitutional Court answered the first question in the negative holding that in fact the
Valoyi Traditional Authority had the competence to appoint a woman as a traditional leader
since men and women are equal under the Constitution; and answered the second question
in the affirmative, holding that section 211(2) of the Constitution empowers traditional
authorities to make, repeal or amend their laws to bring them in line with the Constitution.
Decision of the court: The Constitutional Court upheld the appeal.
1. 5 Explain the concept of succession to a position of traditional leadership. Use
legislation to trace the advancement of women by referring to the rule of
primogeniture and how it impacted women from fully ascending to traditional
leadership heights.
a) Nwamitwa v Philia and Others 2005 (3) SA 536 (T)
b) Shilubana cases (Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)
c) Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC).
1.1 Discuss marital rights in the context of polygamy within the South African
legislation pre-democracy. Use case law to show the emancipation of women in
the Constitutional Court.
In terms of the BAA (which was the national policy), alongside the Natal Code of Zulu Law,
the concept of marital rights declared that all black women were perpetual minors. Perpetual
minority demands the handing over of the woman from the guardian (her father) to guardian
(the husband) during marriage proceedings because of being considered a minor. The latter
code provides that the husband is the owner of matrimonial property and the wife owes him
the duty of respect. In the Gumede case, these provisions were found to be inconsistent
with the constitutional right to equality and are invalid. Other than these negative and
disruptive roles, there is no further role for these old order statutes.
With regards to the polygamous nature of customary marriages, the husband had all the
rights as well as the power to marry as many wives as he wanted, whereas women had no
competing rights since they were regarded as perpetual minors.
The Constitutional Court cases which are relevant here are:
Gumede Case which discussed property rights in the context of divorce.
The Recognition of Customary Marriages Act was unconstitutional as it excluded
customary marriages concluded pre-recognition from the marital regime of ICOP. This
meant that such women upon divorce were not entitled to any marital property.
This case was not explicitly brought before the court in a polygamous nature, however it
is important to take note that all customary marriages are potentially polygamous.
Mayelane Case Permission of first wife is a requirement
the court in this case set a precedent that in order for a man to marry more women
according to customary law, that he requires the permission of the first wife.
1. 2 How did the outlawed marital legislation hinder the status of indigenous
women?
The Black Administration Act declared that all black women were perpetual minors.
Perpetual minority demands the handing over of the woman from the guardian (her father) to
guardian (the husband) during marriage proceedings because of being considered a minor.
Section 23 Before the Act came into being customary marriage was not
recognised as a marriage in law. It was known as a customary union where spouses did not
enjoy marital rights. Black women were perpetual minors who could be discarded simply by
their husbands marrying other women by civil rites.
In terms of the Kwazulu Act on the Code of Zulu law and the Natal Code of Zulu Law, that
these statutes have no contribution to make in the development of post-apartheid customary
law. Without section 23 of the BAA, the male primogeniture problems in Mthebu, Shilubana
and Bhe would not have happened.
Prior to coming into operation of the Recognition of Customary Marriages Act 120 of 1998,
customary marriages were subject to limited recognition in South Africa as a result of their
potentially polygamous nature. Before to the Act coming into being customary marriage was
not recognised as a marriage in law. It was known as a customary union where spouses did
not enjoy marital rights. Black women were perpetual minors who could be discarded simply
by their husbands marrying other women by civil rites.
,set out in the case of Hyde v Hyde and Woodmansee was imported into South African law
in the case of . The Court felt that it could not
recognise customary marriages because, being potentially polygamous, they offended
against public policy. Failure to recognise customary marriages in the common law courts
had serious consequences for African family life.
Dlamini lists the kinds of hardship that were visited on African families by this exclusion:
a) Spouses married in terms of customary law were not considered to be husband and
wife. They therefore did not owe each other a duty of support.
b) Their children were considered to be illegitimate.
c) If the man married another woman by civil rites, the civil marriage extinguished the
customary marriage, leading to the discarding of the first wife and her children.
Limited recognition was introduced in the form of statutory enactments aimed at remedying
these glaring anomalies that resulted from non-recognition. Statutes were passed to afford
limited recognition of customary marriages to alleviate the plight of customary spouses in the
areas of tax,
breadwinner. It was largely to correct this situation that the South African Law Commission
(SALC) embarked on its investigation into customary marriages.
The Recognition of Customary Marriages Act 120 of 1998 has its origins in the recognition of
customary law by the Constitution. The advent of the Act brought legal recognition to this
institution, which became a customary marriage, instead of customary union, with full legal
recognition to the same level as the civil marriage. Under the Act husband and wife are
equal, multiple wives are recognised and the marriage can be registered; and can be
dissolved only by a court. Thus the South African family law became normalised, humanised,
modernised or improved as all marriage systems attained legal equality.
1. 3 Define inheritance according to S/African indigenous law with use of case law?
Prior to the Constitution, the senior male succeeded (usually the eldest son) took over from
the previous traditional leader. Post the Constitution, the Traditional leadership Act allowed
for new succession chances based on equality. Now both male and female can succeed the
previous traditional leader. The case of Shilubana was groundbreaking in this regard.
However, the case of Mthembu was instrumental in the defining of inheritance.
The case applied the Black Administration Act which designated two important
requirements for eligibility to inherit, being that the individual must be:
a) a senior (in terms of age) and
b) that the individual must be male.
According to these requirements this individual was then regarded as the head of the
family and the heir to all deceased estates.
Hence in the case of Mthembu, the widow and her daughters failed to inherit, as the
father of the deceased inherited everything.
Shilubana: uncertainty and unresolved issues
While the judgment in Shilubana provides good guidance on the ascertainment of customary
law, its impact has been to destroy certainty in the customary law of intestate succession to
traditional leadership. Prior to this judgment, the rule of living customary law of succession,
as established by both the High Court and the SCA, clearly stated that the next traditional
leader was the most senior son or male relative of the previous leader. This was a general
rule among the Africans in South Africa. For instance, Peires has this to say in this regard:
Wife.
, In Sigcau v Sigcau Prince Mandlonke Sigcau, the great son of the late King Marelane
Sigcau, succeeded his father in that position. Yet after the Shilubana judgment this was no
longer necessarily so. Van der Westhuisen J brought an end to this certainty by recognising
established by both the High Court and the SCA, clearly stated that the next traditional
leader was the most senior son or male relative of the previous leader.
1. 4 Do you think inheritance included women in their position as beneficiaries of
deceased estates and administrators of estates? Cite case law and show how
the court has transformed the position of women using legislation post
democracy.
Names of the parties: Bhe v Magistrate Khayelitsha
Legal question:
The Constitutional Court 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 Constitutional Court 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.
Decision of the court: Both decisions from the High Courts were confirmed.
Names of the parties: Shilubana v Nwamitwa
Legal question:
On appeal from the SCA, the Constitutional Court was asked whether the High Court and the
SCA were correct in holding that a woman could not be appointed as a traditional leader in
terms of the laws and traditions of Valoyi community; and whether the Valoyi Traditional
Authority had the competence to change their customary law to provide for the appointment
of a woman as a traditional leader.
Reasons for judgment:
The Constitutional Court answered the first question in the negative holding that in fact the
Valoyi Traditional Authority had the competence to appoint a woman as a traditional leader
since men and women are equal under the Constitution; and answered the second question
in the affirmative, holding that section 211(2) of the Constitution empowers traditional
authorities to make, repeal or amend their laws to bring them in line with the Constitution.
Decision of the court: The Constitutional Court upheld the appeal.
1. 5 Explain the concept of succession to a position of traditional leadership. Use
legislation to trace the advancement of women by referring to the rule of
primogeniture and how it impacted women from fully ascending to traditional
leadership heights.
a) Nwamitwa v Philia and Others 2005 (3) SA 536 (T)
b) Shilubana cases (Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)
c) Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC).
