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LCP4804 - Summarised NOtes
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LCP4804 PORTFOLIO MEMO - SEMESTER 2 - 2024 - OCTOBER/NOVEMBER - UNISA - DUE DATE :- 7 NOVEMBER 2024 (FULLY REFERENCED! DISTINCTION GUARANTEED!)
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LCP4804 ASSIGNMENT 1 QUIZ MEMO - SEMESTER 2 - 2024 - UNISA - DUE : 30 AUGUST 2024 - UNIQUE NUMBER:- (DISTINCTION GUARANTEED)
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lcp4804NOtes
Summarised
ADVANCED INDIGENOUS
Revision Pack
, 1
AFRICAN CUSTOMARY LAW - (LCP405M) NOTES
• STUDY UNIT ONE: AFRICAN CUSTOMARY LAW OF PERSONS
• STUDY UNIT TWO: FAMILY LAW IN AFRICAN CUSTOMARY LAW
• STUDY UNIT THREE: AFRICAN CUSTOMARY MARRIAGE LAW
• STUDY UNIT FOUR: AFRICAN CUSTOMARY LAW OF OBLIGATIONS
• SECTION A: DELICTS
• SECTION B: CONTRACTS
• STUDY UNIT FIVE: AFRICAN CUSTOMARY LAW OF SUCCESSION AND
INHERITANCE
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, 2
STUDY UNIT 1: AFRICAN CUSTOMARY LAW OF PERSONS
LECTURE 1 - LEGAL STATUS AND THE CHOICE OF LAW
LEGAL STATUS
Status refers to the legal position of a person as a member of a specific class. The
legal position of a person is related to his or her powers, rights and duties.
In terms of indigenous law, people belong to different classes or categories due to
factors such as age, sex, rank within the family, legitimacy or illegitimacy of birth,
adoption, disinheritance, mental capacity, order of birth within the family, marital
status, and kinship.
The juristic person as known to modern legal systems was foreign to original
indigenous law. The person was considered to be an individual human being. The
individual always shared his or her rights, powers and duties with his or her
agnatic group. There was no question of absolute majority or minority.
The principle of shared rights and duties: Every member of the agnatic group
shared in the rights of the group. The "share" of every member differed from that
of the other members since no two persons within the group had the same rank.
While the head of the agnatic group had the largest "share" in the rights of the
group, he did not have a "majority share". He could not act arbitrarily nor without
the co-operation of the group.
The emphasis in modern indigenous law falls strongly on the individual. This
emphasis on the individual frequently occurs at the expense of the other
members of the group. A marital union under original indigenous law was thus a
matter between the family groups of the man and the woman. In modern
indigenous law the emphasis is rather on the man, the woman and the woman's
father (or his successor) as individuals.
- In original indigenous law the family head controlled the family property on
behalf of and for the benefit of the family. In modern indigenous law the
tendency is to regard the family head as owner and to disregard the rights of
the other members of the family in respect of family property.
- In modern indigenous law the status of a person is related to his or her powers
to act and to appear in court as well as the power to acquire property and to
dispose of it. Status thus has an influence on a person's capacity to act, as
well as on his or her capacity to appear in court and to acquire property.
In indigenous law a person's status is influenced by several factors with the
result that no two persons had the same status.
CHOICE OF LAW
In indigenous law the legal capacity, as well as the capacity of a person to act or
to appear in court, was determined either according to the rules of:
statutory law, common law and case law; or
indigenous law
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, 3
Bekker believes that there is only one legal system, namely the law of the land. –
his opinion was formed prior to the recognition of indigenous law in terms of the
current Constitution, when indigenous law was not recognised as a concurrent
legal system of the Republic of South Africa.
In Ex parte Minister of Native Affairs: In re Yako v Beyi it was decided that no basic
or primary legal system was applicable. There are, however, circumstances under
which indigenous law may be enforced by the courts. Section 1 of the Law of
Evidence Amendment Act 45 of 1988, empowered all courts of law to take judicial
note of indigenous law in so far as such law can be ascertained readily and with
sufficient certainty. Indigenous law may not be opposed to the principles of public
policy or natural justice, subject however, to the provision that lobolo, bogadi and
similar customs may not be regarded as opposed to such principles.
This position has been amended drastically by the Constitution.
Indigenous law and the Constitution:
Section 211(3) provides that courts must apply customary law when it is
applicable, subject to the Constitution and any legislation that specifically deals
with customary law. This provision amends s 1 of Act 45 of
1988 in that court MUST now apply customary law and cannot merely take
judicial notice of it. The court has to determine whether customary law is
applicable if it is found to be applicable the court has to apply it. Otherwise the
court is not compelled to apply customary law.
It is not clear whether the principles of public policy and natural justice still
apply. The fact that indigenous law is subject to the Constitution, makes these
principles redundant. Moreover, it can be asked whether these principles are not
in conflict with the right to culture?
Section 9(3) rules that the state may not unfairly discriminate, directly or
indirectly, against any person on, among others, the grounds of age or gender.
Section 9(4) provides for legislation to prevent and prohibit unfair
discrimination. In this regard the Promotion of Equality and Prevention of Unfair
Discrimination Act had been promulgated.
By recognising indigenous law on the one hand and prohibiting unfair
discrimination on the other, the opposing principles, namely the right of the
individual to equal treatment and the right of a group to adhere to the culture of
its choice (s 30).
PATRIARCHY:
There is no accepted definition of patriarchy but the concept refers to a type of
social system that is dominated by the principle of paternal authority and "father-
right". This authority applies to the private (domestic) and public domains.
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