Tutorial letter 201/1/2023 Advanced Indigenous Law LCP4804 Super-semester Department of Public, Constitutional & International Law
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Course
LCP 4804
Institution
LCP 4804
Tutorial letter 201/1/2023
Advanced Indigenous Law
LCP4804
Super-semester
Department of Public, Constitutional & International Law
IMPORTANT INFORMATION:
This tutorial letter contains important information about your module.
Dear Student,
Read this...
tutorial letter 20112023 advanced indigenous law lcp4804 super semester department of public
tutorial letter 20112023 advanced indigenous law lcp4804 super semester department of public
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LCP4804/201/1/20
23
Tutorial letter 201/1/2023
Advanced Indigenous Law
LCP4804
Super-semester
Department of Public, Constitutional & International
Law
PLEASE READ THIS TUTORIAL LETTER IMMEDIATELY
IMPORTANT INFORMATION:
This tutorial letter contains important
information about your
module.
,Dear Student,
Read this tutorial letter carefully. It contains suggested answers for Assignment 01 and
Assignment 02 for the “Super Semester” of 2023. We hope that the feedback on
Assignments will provide an insight into what is expected of you in the examination. We
trust that you have found the assignments stimulating, and that you are coping with the
workload.
THIS IS YOUR FINAL TUTORIAL LETTER FOR THE SEMESTER OF 2023. It contains the following:
3 THE EXAMINATION: FORMAT, PREPARATION AND WRITING
The Study Guide
The only Study Guide for LCP4804 must be used together with the prescribed textbook and
contains most of the prescribed cases and statutes that are topical to this module. In order
to understand the important issues discussed in the assignments and relevant to the
examination this Study Guide is the starting point. You must pay particular attention to
Activities/Feedbacks and Self-Assessments, which together with cases and statutes are
more instructive for the purpose of answering assessment questions.
FEEDBACK ON ASSIGNMENT 01: MULTIPLE CHOICE ASSIGNMENT
Assignment 01 was relatively simple and should not have given you too much trouble. This
was a compulsory assignment, consisting of multiple choice questions. You had to choose
either options (1) (2)
(3) & (4) for each of the questions as the correct answer. You did not have to give reasons
for your answers.
, You must make sure that you study the cases listed in these questions so that you can
discuss them in the examination, giving the legal question that was answered by the court;
The decision of the court and reasons for judgment.
FEEDBACK ON ASSIGNMENT 02: WRITTEN ASSIGNMENT
Question 1
(i)
The Constitution envisions the customary law of South Africa that is free of the distortions
that were brought into the system through the application of the repugnancy jurisprudence
(must be Africanised) and (must conform to constitutional precepts).
Firstly, the courts are therefore required to free customary law of the domination by the
common law so that customary law could be viewed in the light of its own values and
norms (Alexkor vs Richtersveld Community), subject to constitutional constraints. The courts
overlooked this requirement in both the above cases – which resulted in the failure of
Africanisation.
Secondly, the courts have to transform customary law in line with section 39(2) of the
Constitution to develop customary law to make sure that its purport and objects conform
with the Bill of Rights. This would be in line with the Bill of Rights – i.e constitutionalisation.
Both courts in Mabena and Mabuza failed to Africanise the law, they only managed to
constitutionalise it. For instance, in Mabena the father of the deceased husband relied on his
understanding of customary law rights as head of the family as protected by the
Constitution. He urged the court to Africanise the law in line with the first requirement
above. However, the court rejected this request and applied the second requirement in
terms of which his wife relied on the Constitution as allowing her, as an equal member of
society, to consent to the marriage of her daughter in the absence of her husband. Her
action was accordingly affirmed. The court developed customary law to allow her to act as
she did in terms of her equality with her absent husband. At the same time the court also
approved the deceased husband’s decision to negotiate his own marriage without
assistance from his father – affirming the right of an independent adult young man to act as
equal in law. The court constitutionalized the law, however, it refused to affirm African
culture i.e to insist on the participation of elders.
If the woman’s mother had seen herself as equal to her husband, and therefore able to
represent her marital family – in the same way as her husband would do, she would have
contributed to Africanisation. As an African her culture requires her to act as a member of
her group – ie to represent her marital family. But she saw herself as a constitutional being,
and acted as an individual who had a personal right to equality. The court agreed with her
and emphasized her own equality as an individual – thus defining equality in the Western
sense - which downplayed her African cultural background as a communal being. In the
same case the participation of the deceased husband was not seen as an act of someone
who represented his family in the negotiations, in terms of African culture, but as affirming
his own equality in terms of the Constitution. Therefore, equality was interpreted in the
Western sense – no Africanisation was achieved in Mabena.
With reference to Mabuza a similar approach was followed. Whilst the husband insisted on
the observance of African culture, insisting on the performance of ukumekeza, the wife relied
on the development of African law by the Bill of Rights (again African culture vs
Constitution). The court agreed with her and the role of ukumekeza was rejected. Similarly,
no Africanisation was achieved in Mabuza.
4
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