LCP4804 EXAM PREP 2022

LCP4804 EXAM PREP 2022. 1. The case law on customary marriages and it’s legislation Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC) Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC) Fanti v Boto and Others 2008 (5) SA 405 (C) Mabuza v Mbatha 2003 (7) BCLR 43 (C) Mabena v Letsoalo 1998 (2) SA 1068 (T) Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) 2. The case law on succession and its legislation Mthembu v Letsela and Another 1997 (2) SA 936 (T) Mthembu v Letsela and Another 1998 (2) SA 675 (T) Mthembu v Letsela and Another 2000 (3) SA 867 (SCA) Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC) Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) Nwamitwa v Philia and Others 2005 (3) SA 536 (T) Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA) 3. The case law on traditional leadership and its legislation Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) Nwamitwa v Philia and Others 2005 (3) SA 536 (T) Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA) Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC) This would be adequate for the preparation of the upcoming exam. If you require any further assistance, then please send me an email. All the best! Downloaded by Adeella Ally () lOMoARcPSD| P a g e 2 | 39 LCP4804 – Advanced Indigenous Law The structure of the May/June 2018 examination paper 1. The examination paper is a 2 hour paper of a total of 100 marks. 2. It consists of five questions. Three questions of 20 marks each, one question of 25 marks, and one question of 15 marks. 3. All 5 questions are compulsory – there are no choice questions. 4. Each question consists of sub-questions of 5 or 10 marks. 5. There are no multiple –choice questions Summary to polish your preparation for the May/June 2018 A.THE CONSTITUTION Sections 9(equality), 30/31 (culture), 39 (legal development) and 211 (recognition of customary law and its institutions) deal directly with the constitutional application of customary law. Which one of the above sections did the Constitutional Court apply in the Nwamitwa v Shilubana judgment to indicate that traditional authorities are authorised to change their customary laws to align them with the Constitution? How did the Constitutional Court then apply any or all these sections in normalising the selection of traditional leaders and empowering traditional communities to review their customs. Section 9(1) of the Constitution guarantees equality of treatment before the law. It states that ‘[e]veryone is equal before the law and has the right to equal protection and benefit of the law’. Section 9(3) and (4) spells out instances where unfair discrimination is prohibited. Section 10 provides that ‘everyone has inherent dignity and the right to have their dignity respected and protected’. Examples of customary law that are often cited as practices that may be found to conflict with one or more of these rights include lobolo, polygamy, ukuthwala, the principle of male primogeniture and succession to traditional status or office. The courts have dealt with some of these issues. For example, in Bhe, the Constitutional Court invalidated the principle of male primogeniture on the ground that it discriminated against women with regard to inheritance. In Shilubana, the Court endorsed a rule of customary law in the form of a royal resolution which allowed a woman to succeed to the position of hosi as this rule promoted gender equality. The Court thereby implicitly prohibited any principle of succession that countenances discrimination. Furthermore, section 39(2) of the Constitution provides an important mechanism for dealing with customary law conflicts with the Bill of Rights. This section enjoins the courts to ‘promote the spirit, purport and objects of the Bill of Rights’. Downloaded by Adeella Ally () lOMoARcPSD| P a g e 3 | 39 The certification of the final Constitution To be certified by the Constitutional Court, the final Constitution had to comply with Constitutional Principles XI and XIII mentioned above. Therefore, the final Constitution of 1996 included the following provisions: •Section 9(3) on the protection of equality includes among its listed grounds ethnic or social origin and culture. According to Bennett, culture includes ‘a people’s entire store of knowledge and artefacts, especially the languages, systems of belief, and laws, that give social groups their unique characters’. Therefore, this section gives people the right to be governed by the law applying to their particular cultural group. •Section 15 expands on section 14 of the interim Constitution, declaring that nothing in the section prevents legislative recognition of marriages concluded under any tradition or religious, personal or family law systems. •Section 30 entrenches the individual’s right to participate in a culture of his or her choice and section 31 protects a group’s right to participate in cultural activities of their choosing. Distinguishing these two provisions from all others in the Bill of Rights, the Constitution specifically qualifies these provisions by stating that neither the rights in section 30 nor 31 can be exercised in a way contrary to the provisions of the Bill of Rights. •Section 39 treats customary law and its development as equal to the common law. Section 39(2) states that ‘[w]hen interpreting any legislation and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’. Section 39(3) provides that ‘[t]he Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill’. •Chapter 12 provides for a role for traditional leaders both locally and nationally, subject to the customs and usages of their communities, legislation and the Constitution. In Chapter 12, section 211(3) specifically states that ‘[t]he courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law’. •Section 235 articulates the right to self-determination of any community sharing a common cultural and linguistic heritage, and provides a foundation on which the state may legislate for cultural and linguistic communities to express this international law right. a) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases (Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA) and Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC). The legal question that was answered by the court Philia Shilubana, of the Valoyi traditional community, in the Limpopo Province of South Africa, was not appointed as a traditional leader (hosi) of her people when her father died in 1968. As a woman she could not be appointed due to the laws of unfair discrimination at the time. Instead her father’s brother, Richard Nwamitwa, was appointed as the traditional leader (hosi). When the latter died in 2001, the Valoyi Downloaded by Adeella Ally () lOMoARcPSD| P a g e 4 | 39 Traditional Authority took a resolution to appoint Philia Shilubana as the traditional leader (hosi) relying on the constitutional provision for gender equality which motivated the community to adapt its rules. This resolution amended the past practice of the community which indicated the eldest son of the previous hosi as the successor to his father as the new traditional leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s son, sought to dispute Philia Shilubana's appointment, relying on past practice based on his purported right as the eldest son of the previous hosi. The decision of the court The matter was decided in favour of Sidwell Nwamitwa in both the High Court and the SCA, in terms of the community’s past practice. Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) The legal question that was answered by the court The case was eventually taken on appeal to the Constitutional Court. . The decision of the court and reasons for judgment In a unanimous judgment, the Court decided that Ms Shilubana was legally appointed as the legitimate traditional leader (hosi) of the Valoyi people. The Court emphasised the fact that customary law is a living system of law. As such it was not bound by historical precedent. Its flexibility allowed it to evolve as its community changed. Once it was clear that the contemporary practices of the community have replaced its past practices, the latter no longer applied. Because of this, the Constitutional Court deviated from prior decisions that had served as a test for determining the content of customary law even though they indicated longstanding and historical practices. Instead the Court redefined customary law as a system that reflected the current practices of the particular community. Living customary law came to be defined with reference to the constantly evolving practices that indicate the current system of norms by which that community has chosen to live. The Constitutional Court held that the customary law regarding the appointment of a traditional leader (hosi) had legitimately evolved to allow for the appointment of a woman as a traditional leader (hosi) and that this development was consistent with the Constitution. After finding that Philia Shilubana had been validly appointed the Constitutional Court upheld the appeal, thus confirming her appointment as a traditional leader (hosi) of her Valoyi community. Bear in mind that this was after this particular community (Valoyi community) had decided to adapt its laws consistently with the Constitution. Other communities will be judged according to their own contemporary practices. Own comment on customary law values and the Constitution The Constitutional Court very well endorsed the community’s right to develop their law, thus protecting their right to develop their culture. In doing so the court unfortunately destroyed the rule regulating the customary law of succession from one generation to another. The Constitutional Court ignored that according to customary law, lineage is important and that the position of successor must be held by someone capable of Downloaded by Adeella Ally () lOMoARcPSD| P a g e 5 | 39 producing a future Nwamitwa heir. In appointing Philia, the court should not have left future succession hanging. It should have made it clear that it was doing so because of her status as a princess, and add that in order to uphold lineage of the Nwamitwa royal line, after her death the position would revert to a qualifying Nwamitwa prince/princess. Therefore, the court did a good thing (promoting gender equality) and (not so good as it failed to promote culture). (B). STATUTE LAW List the statutes dealing with the REFORMS to: Customary marriages Customary law of succession Traditional leadership AND in each case detail the reforms that were brought about and indicate their quality to the lives of the people. The transformative role of the following post-apartheid statutes in the development of customary law: (a)Recognition of Customary Marriages Act 120 of 1998 Before the Act came into being customary marriage was not recognized 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. 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. The Recognition of Customary Marriages Act (RCMA) came into operation on 5 November 2000. This legislation made significant changes in customary law while simultaneously attempting to preserve some aspects of this law. Many of these changes were direct attacks on patriarchy and the lowly status of women and children in customary marriages. Provisions of the RCMA effected these changes by recognising the equal status of the spouses, reconfiguring the matrimonial property system and introducing court-granted divorces. The RCMA also affirms the best interests of the child as a guiding principle in matters relating to the welfare of children during the marriage and at its dissolution. Other provisions, such as the requirement of registration, attempt to improve the administrative governance of customary marriages. Downloaded by Adeella Ally () lOMoARcPSD| P a g e 6 | 39 (b) Traditional Leadership and Governance Framework Act 41 of 2003 as amended by Act 23 of 2009. Again, the Traditional Leadership and Governance Framework Act 41 of 2003 has its origins in the recognition of customary law by the Constitution. Prior to the constitutional changes the traditional leaders were not given their proper status. They were called chiefs, not Traditional Leaders and were given functions to do as apartheid stooges, who were paid to enforce oppressive statutes against their own people in exchange for some stipend. The advent of Traditional Leadership and Governance Framework Act 41 of 2003 ushered in an era of democratic traditions for the appointment of traditional leaders, who are now free to be addressed by their traditional titles (iNkosi Buthelezi, Nkosi Holomisa, Kgosi Pilane), and no longer insulted as ‘chief’. The Act provides for the appointment of women as traditional leaders where necessary to enhance gender representativity. Traditional Leaders are no longer chosen by the ‘State president as the Supreme Chief of all natives’, but are now identified by the royal family for appointment by the government, to reduce the danger of appointing government stooges. (c) The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The recognition of customary law by the Constitution meant that the Bill of Right had to be respected in the sphere of succession. The discredited principle of male primogeniture, which preferred senior males over women and junior males, had to go. The Act implemented the judgment of Bhe v Magistrate Khayelitsha, which abolished discrimination on the basis of race, gender, marital status, birth, age etc for the purposes of succession. The Act imported The Intestate Succession Act into customary law to introduce inheritance by child portions for sharing by the deceases wife or wives, children, legitimate or not etc. Downloaded by Adeella Ally () lOMoARcPSD| P a g e 7 | 39 (C) CASE LAW customary law of succession and traditional leadership As it decolonised the customary law of succession the Constitutional Court had occasion to rid that law of the surge of male primogeniture in the administration of estates and in the appointment of traditional leaders. List those cases and detail the reforms brought about by the court in each case regarding the achievement of equality of races, persons, women, genders, children (legitimate or not) as well as in the appointability of women to positions of power, so as to normalise society. Evaluate these reforms with reference to their potential to alleviate social hardships. 1.Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another 1998 (2) SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867 (SCA). 2.Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27 (C), Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of Republic of South Africa 2005 (1) BCLR 580 (CC)), 3.Nwamitwa v Philia and Others 2005 (3) SA 536 (T) ; Shilubana cases (Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA) and Shilubana and Others v Nwamitwa 2008(9) BCLR 914 (CC). The current constitutional dispensation, which was adopted in South Africa on 27 April 1994, recognises customary law as a legal system on the same basis as the common law. In this respect, the Constitution of 1996 provides that: The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. The Constitution further provides that in the interpretation of ‘any legislation, and when developing the common law and customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’. South African courts are therefore obliged to interpret and develop any provision of customary law, including the law of succession, in line with the Bill of Rights. These provisions have attracted disputes in which the customary law of succession conflicts with the Bill of Rights. As was to be expected, one of the major issues to find its way into the courts in the new constitutional dispensation was the principle of male primogeniture. The rule of male primogeniture was used in the customary law of succession to determine who an heir (successor) was to the intestate estate of deceased black people. The result was that the heir was the eldest surviving male relative of the deceased to the exclusion of other children, wife or wives and other relatives or dependants of the deceased. The heir acquired both the property and assumed the status of the deceased and had an Downloaded by Adeella Ally () lOMoARcPSD| P a g e 8 | 39 obligation to maintain the other dependants of the deceased, namely his children and wife or wives. The rule of male primogeniture was challenged in Mthembu v Letsela where the Supreme Court of Appeal (SCA) held that this rule did not unfairly discriminate on the grounds of age and gender as the heir was under a duty to maintain all the dependants of the deceased. The SCA, however, indicated that if the rule of male primogeniture was applied in an urban setting, there was a possibility that its application may be discriminatory on the basis of age and gender. The SCA also pointed out that this rule of customary law could not be developed by the SCA as it was ill-equipped to do so but that such development should be left to the legislature after a process of full investigation and consultation. The SCA noted the investigation which was already underway by the South African Law Reform Commission (SALRC) relating to the reform of the customary law of marriage. COUNTER POINT Mthembu v Letsela : creating more problems than it solved The decision of the SCA in Mthembu v Letsela created more problems than it solved. The first problem is that it upheld the official rule of male primogeniture which was clearly discriminatory. The second problem is the Court’s suggestion that if the rule of male primogeniture was applied in an urban setting, there was a possibility that its application may be discriminatory on the basis of age and gender. The third problem is the Court’s ruling that the principle of male primogeniture could not be developed by the Court as it was ill-equipped to do so but that such development should be left to the legislature after a process of full investigation. This was also the position taken in Bhe. These last two issues are controversial and continue to be points of debate. The most important case in respect of the challenge to the principle of male primogeniture was Bhe. At the time when the case was heard, the SALRC had already made certain proposals relating to the customary law of succession. A customary marriage at that time was recognised for all legal purposes as a valid marriage and the Commission had proposed that wives of these marriages be regarded as intestate heirs on the same basis as wives of civil marriages. The children of such marriages, irrespective of sex and age, also had to be recognized on the same footing as children of civil marriages for purposes of intestate succession. According to these proposals, the Intestate Succession Act had to be amended to include a spouse or spouses of a customary marriage and all children as intestate heirs. The Maintenance of Surviving Spouses Act also had to be amended to extend the meaning of the term ‘spouse’ to include a spouse or spouses of a customary marriage. Bhe followed a decision by the Magistrate of Khayelitsha and, on appeal, that of the Cape High Court. The Cape High Court declared the provisions of the BAA which dealt with male primogeniture unconstitutional and invalid. The Court also declared Downloaded by Adeella Ally () lOMoARcPSD| P a g e 9 | 39 unconstitutional provisions of the Intestate Succession Act in so far as they excluded from their operation people whose estates devolved in terms of the BAA. Another case which declared male primogeniture unconstitutional was Shibi v Sithole. Here also section 23 of the BAA and regulation 2(c) of the Regulations for the Administration and Distribution of Intestate Estates of Blacks were declared unconstitutional. In both cases, the Courts ordered that the distribution of intestate estates of black people had to be governed by the Intestate Succession Act. The judgments in Bhe and Shibi were placed before the Constitutional Court for confirmation. The Constitutional Court heard these cases at the same time because they concerned the application of the rule of male primogeniture in the customary law of succession. The case of Bhe therefore concerned an application for the confirmation of an order of the constitutional invalidity relating to the application of the rule of male primogeniture and the relevant provisions of the BAA as well as those of the Intestate Succession Act. The Constitutional Court held that section 23 of the BAA and its regulations were manifestly discriminatory in that they violated the right to equality, the right to dignity and children’s rights. The Court held that the customary law rule of male primogeniture was unfairly discriminatory against women, children of the deceased as well as extramarital children and declared the rule unconstitutional. The Court thus found that the discrimination brought about by the application of this rule could not be justified in terms of section 36 of the Constitution. Consequently, the Court ordered that intestate estates that had previously devolved in accordance with customary law had now to devolve in terms of the rules provided for in the Intestate Succession Act (as amended by the Court). In this regard, the wife or wives in a customary marriage as well as all their children, irrespective of age and sex, would all be intestate heirs. The Court thus declared section 23 of the BAA, regulation 2 of the Regulations for the Administration and Distribution of Estates of Deceased Blacks as well as section 1(4)(b) of the Intestate Succession Act, in as so far as it excluded from its application any estate or part thereof which is governed by customary law, unconstitutional. The order was in force until the matter was corrected by appropriate legislation. The order of the Constitutional Court was made retrospective to 27 April 1994, that is, the date of the coming into operation of the interim Constitution with two exceptions. First, the declaration of invalidity did not apply to any completed transfer of ownership to an heir who had had no notice of the challenge to the validity of section 23 of the BAA and the rule of male primogeniture. Second, the order did not apply to ‘anything done pursuant to the winding-up of an estate in terms of the [BAA], other than the identification of heirs in a manner inconsistent with this judgment.’ PAUSE FOR REFLECTION Bhe: opens the space for the development of living customary law In addition to invalidating the principle of male primogeniture, the Constitutional Court in Bhe ruled that its order to apply the Intestate Succession Act to estates previously governed by customary law did not mean that the relevant provisions of the Intestate