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Exam (elaborations) IND 2601 Oct Nov MEMORANDUM IND2601 OCTOBE1
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Exam (elaborations) IND 2601 Oct Nov MEMORANDUM IND2601 OCTOBE1
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MEMORANDUM IND2601 OCTOBER-NOVEMBER 2017 EXAMINATIONSECTION A
1. 4
2. 2
3. 2
4. 1
5. 3
6. 1
7. 2
8. 2
9. 2
10. 3
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SECTION B
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QUESTION 2
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The main conflict is between customary law and the fundamental
rights in the Constitution.
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aC s
(i) Give two examples of the potential conflict between the
v i y re
Constitutional principles and principles of customary law.
(6)
Conflict between customary law and the Bill of Rights is unavoidable. The
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principle of patriarchy in succession matters in terms of customary law,
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ruling that only males are eligible to succeed or inherit deceased’s
person’s estates often conflict with fundamental rights provisions in the
constitution. [3 marks]
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Customary law forms part of the South African legal system.
Customary law must therefore be interpreted in the light of fundamental
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rights, and particularly in the light of the equality clause as contained in
section 9 of the Constitution.
Section 9(3) of the Constitution provides that –
“The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth
By recognizing customary law on the one hand and prohibiting
discrimination on the other, the Constitution gave rise to a conflict between
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, two opposing principles; namely, the right of the individual to equal
treatment and the right of the group to adhere to the culture of its choice.
The Bill of Rights emphasizes individual rights, whereas in customary law the
emphasis is on the group, the community and the individual in the context of
the community.[3 marks]
(ii) Does the Constitution provide a clear solution to this problem?
(2)
The Constitution does not necessarily provide a clear solution to the
conflict between customary law and fundamental rights. However the
Constitution indicates that fundamental rights have priority over customary
law.[2 marks]
(iii) State and briefly discuss the provisions in the Constitution which
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indicate how this conflict may be resolved.
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(12)
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Various sections in the Constitution points out the dominance or
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supremacy of the Bill of Rights over customary law –
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Section 2 – which indicates that the Constitution is the supreme law of
South Africa and any law or conduct inconsistent with it is invalid, and
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the obligations imposed by it must be fulfilled. [2marks]
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Section 8 (1) – which indicates that the Bill of Rights applies to all law,
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and binds the legislature, the executive, the judiciary and all organs of
state. [2marks]
Section 36 (2) – which provides that no fundamental rights will be
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limited by any law, except as provided for under section 36 (1) or any
other provision of the Constitution [2marks]
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Section 39 (1) – which requires the courts to promote the values that
underlie an open and democratic society based on human dignity,
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equality and freedom in interpreting the Bill of Rights [2marks]
Section 39 (2) – which provides that, in interpreting any law and
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applying and developing common and customary law, the courts must
have due regard for the spirit, purport (purpose) and objects of the Bill
of Right [2marks]
Section 36 (1) – which allows the rights in the Bill of Rights to be
limited by “law of general application” (including customary law),
provided that such limitation is reasonable and justifiable in an open
and democratic society. [2marks]
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