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ASSIGNMENT 01 IND261 African customary Law
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- University Of South Africa (Unisa)
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IND2601ASSIGNMENT O1 2021
QUESTION 1
The implications of sections 30 and 31 of the Constitution for the recognition
of customary law:
Sections 30 provides as follows:
Everyone has the right to use the language and to participate in the cultural
life of their choice 1 and the recognition is given to customary law. Persons
belonging to a cultural, religious or linguistic community may not be denied
the right, with other members of that community. The rights are as follow:
(a) To enjoy their culture, practise their religion and use their language; and
(b) To form, join and maintain cultural, religious or linguistic associations
and other organs of civil society2.
The concept of culture does not have a single meaning, as it may be
interpreted to include systems of personal law; no matter where the person
may be, that are associated with specific cultures. And they may be
interpreted to include only the non-legal aspects of social life. The concept of
culture mentioned in section 30 may well be interpreted to include customary
law as well.
Section 31 provides two duties to the state, namely”
(a) Not to interfere with the rights of the individual
(b) To allow the existence of institutions that would be necessary to
maintain the culture concerned
The recognition given to customary law in section 30 is derived from the right
to participate in the culture of one’s own choice. Section 31 contains the right
to culture, the right of a group of people and to have a specific group identity
and to maintain it3. Group and individual rights are thus symbiotic in nature,
meaning they depend on each other. A community must first exists in order
for an individual to have rights which adhere to a culture of choice.
1
s30 of the Bill of Rights
2
African customary law study guide
3
Section 31(1)
, It may be argued that a person’s right to the application of customary law in
a certain instances is vested in membership of a group. The group must be
recognised by the state before the individual may enforce their right.
Another implication of sections 30 and 31 is the conversion of a freedom into
a constitutional right4. The above sections refer expressly to a “right. This
raises the following questions:
- What is the differences between a constitutional right and constitutional
freedom?
Freedom means that there is no regulation by law. An individual may act
according to his or her own choice and will as they think fits. Meaning,
freedom is subject to a right, because the bearer of the right may enforce
that right. Rights demand a specific conduct, while freedom allows choices.
QUESTION 2
Prescription of a debt or a claim is unknown in customary law.
- The legal maxim for this prescription is “molato ga o bole”, this means
that the prescription of a debt or a claim is unknown i.e. a debt or a
case does not become invalid or unenforceable through lapse of time. A
plaintiff is, however, compelled to submit his claim without delay,
because a delay may make it difficult for a plaintiff to prove the facts
or he may harm the other party through his delay. The plaintiff in
other instances may die before an action is instituted and if they wait
longer to instituted action, the court may refuse to hear the case
because damage/ facts can longer be established with certainty.
QUESTION 3
The case of Gumede v President of the Republic of South Africa & others
(CCT 50/08 [2008] ZACC 23, 2009(3) BCLR 243
The facts of the case
In this case, the applicant Elizabeth Gumede (‘Mrs Gumede’) sought
confirmation from the Constitutional Court of South Africa, pursuant to s167(5)
of the Constitution, of an order of constitutional invalidity made by the High
Court. The application was for confirmation of an order of invalidity made by
the Durban High Court declaring certain sectins of the Recognition of
Customary Marriages Act,1998, the KwaZulu Natal Act on the CODE of Zulu
Law Act, 1985 and the Natal Code of Zulu Law Proclamation of 1987
unconsitutional.
4
African customary law study guide
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