2021
LCP4804 ADVANCED
INDIGENOUS LAW
ASSIGNMENT 2 2021
MELLISSA
, LCP4804 ADVANCED INDIGENOUS LAW
ASSIGNMENT 2 2021
QUESTION 1
i. The courts are obliged by section 211(3) of the Constitution to apply customary
law when it is applicable, subject to the Constitution and any legislation that deals
with customary law. It must then be noted that in doing so the courts must have
regard to the spirit, purport and objects of the Bill of Rights.
In terms of section 39(2) of the constitution, when interpreting customary law customary
law, the courts must develop it in accordance with the spirit, purport and objects of the
Bill of rights. This suggests that the courts are expected to more than simply consider
the Bill of Rights to trump customary rules that are incompatible with it. Therefore, any
conflict between customary law and fundamental rights must be resolved by some
nuanced balancing process.
In terms of the Mabena case the father of the deceased tried to impune his diseased
son’s marriage with the daughter-in-law on the basis that he did not negotiate the
customary marriage as required by law. The court rejected this ground and upheld the
marriage as valid, holding that he did not even have to negotiate the customary
marriage of his adult and independent son. In other words, as developed under section
39(2) of the constitution, the involvement of a father of an adult and independent son is
no longer a requirement.
In the Mabena case, the court also held that a woman, that is, the mother of the
daughter can negotiate lobolo or can receive the lobolo goods without the father being
present. In this case the court declared the male primogeniture rule unconstitutional as
it preferred males over women; hence unfairly discriminating against women. The court
1|P ag e
LCP4804 ADVANCED
INDIGENOUS LAW
ASSIGNMENT 2 2021
MELLISSA
, LCP4804 ADVANCED INDIGENOUS LAW
ASSIGNMENT 2 2021
QUESTION 1
i. The courts are obliged by section 211(3) of the Constitution to apply customary
law when it is applicable, subject to the Constitution and any legislation that deals
with customary law. It must then be noted that in doing so the courts must have
regard to the spirit, purport and objects of the Bill of Rights.
In terms of section 39(2) of the constitution, when interpreting customary law customary
law, the courts must develop it in accordance with the spirit, purport and objects of the
Bill of rights. This suggests that the courts are expected to more than simply consider
the Bill of Rights to trump customary rules that are incompatible with it. Therefore, any
conflict between customary law and fundamental rights must be resolved by some
nuanced balancing process.
In terms of the Mabena case the father of the deceased tried to impune his diseased
son’s marriage with the daughter-in-law on the basis that he did not negotiate the
customary marriage as required by law. The court rejected this ground and upheld the
marriage as valid, holding that he did not even have to negotiate the customary
marriage of his adult and independent son. In other words, as developed under section
39(2) of the constitution, the involvement of a father of an adult and independent son is
no longer a requirement.
In the Mabena case, the court also held that a woman, that is, the mother of the
daughter can negotiate lobolo or can receive the lobolo goods without the father being
present. In this case the court declared the male primogeniture rule unconstitutional as
it preferred males over women; hence unfairly discriminating against women. The court
1|P ag e
