IND2601 Assignment 1
(COMPLETE ANSWERS)
Semester 2 2025 - DUE 10
September 2025
FOR FURTHER CLARIFICATION PLEASE
CONTACT
, Customary Law Problem Questions
Question 1.1: The proprietary consequences of the customary marriage between
Sello and Mapule (5 marks)
Sello and Mapule concluded a valid customary marriage in January 1999. At that time, the
Recognition of Customary Marriages Act 120 of 1998 had already come into force (the Act
commenced on 15 November 2000, but marriages entered before its commencement are still
recognised as valid). The Act recognises all customary marriages that meet the requirements of
section 3, namely:
1. Both spouses must be above 18 years,
2. Both must consent to the marriage, and
3. The marriage must be negotiated and entered into in accordance with customary law.
Once these requirements are satisfied, the marriage is legally valid.
In terms of section 7(2) of the Act, monogamous customary marriages concluded after the
commencement of the Act are automatically in community of property and of profit and loss,
unless the spouses enter into an antenuptial contract. This means that the property of both
spouses is pooled into a joint estate, and each has an undivided half share.
However, there is an important nuance here: Sello married Mapule in 1999, which was before
section 7(2) became applicable in practice (since it was not yet operational). Marriages entered
into before the Act are governed by the customary law proprietary system, unless the parties
opted otherwise. Under customary law, property is generally allotted to different “houses” (the
household of each wife in a polygynous marriage). Each wife’s house has its own property,
while the husband retains overarching control as family head. This system is often described as
the house property system.
Therefore, the proprietary consequences of Sello and Mapule’s marriage are that:
Their marriage is recognised as valid under the Act.
The property regime is not automatically in community of property but instead subject to
customary law allocation rules.
Property given to Mapule’s house belongs primarily to her house and her children. It
should not be unilaterally diverted to another house without consideration of fairness.
(COMPLETE ANSWERS)
Semester 2 2025 - DUE 10
September 2025
FOR FURTHER CLARIFICATION PLEASE
CONTACT
, Customary Law Problem Questions
Question 1.1: The proprietary consequences of the customary marriage between
Sello and Mapule (5 marks)
Sello and Mapule concluded a valid customary marriage in January 1999. At that time, the
Recognition of Customary Marriages Act 120 of 1998 had already come into force (the Act
commenced on 15 November 2000, but marriages entered before its commencement are still
recognised as valid). The Act recognises all customary marriages that meet the requirements of
section 3, namely:
1. Both spouses must be above 18 years,
2. Both must consent to the marriage, and
3. The marriage must be negotiated and entered into in accordance with customary law.
Once these requirements are satisfied, the marriage is legally valid.
In terms of section 7(2) of the Act, monogamous customary marriages concluded after the
commencement of the Act are automatically in community of property and of profit and loss,
unless the spouses enter into an antenuptial contract. This means that the property of both
spouses is pooled into a joint estate, and each has an undivided half share.
However, there is an important nuance here: Sello married Mapule in 1999, which was before
section 7(2) became applicable in practice (since it was not yet operational). Marriages entered
into before the Act are governed by the customary law proprietary system, unless the parties
opted otherwise. Under customary law, property is generally allotted to different “houses” (the
household of each wife in a polygynous marriage). Each wife’s house has its own property,
while the husband retains overarching control as family head. This system is often described as
the house property system.
Therefore, the proprietary consequences of Sello and Mapule’s marriage are that:
Their marriage is recognised as valid under the Act.
The property regime is not automatically in community of property but instead subject to
customary law allocation rules.
Property given to Mapule’s house belongs primarily to her house and her children. It
should not be unilaterally diverted to another house without consideration of fairness.
