lcp4804
EXAM pack
Questions +
Answers
ADVANCED INDIGENOUS
REVISION PACK
, Question 1
Critically discuss the differences between living customary law and
official customary law. (30 marks)
ANSWER
The concept of customary law in South Africa consists of two forms of customary law: living
customary law and official customary law. The courts have recognised the co-existence of the
concepts of living customary law and official customary law. For instance, in Bhe v
Khayelitsha Magistrate, the majority judgement acknowledged the difference between these
forms of customary law as follows:
The official rules of customary law are sometimes contrasted with what is referred to as
‘living customary law’. Which is an acknowledgement of the rules that are adapted to fit
in with changed circumstances. The problem with the adaptations is that they are hoc
and not uniform. However, magistrates and the courts responsible for the administration
of intestate estates continue to adhere to the rules of official customary law, with the
consequent anomalies and hardships as a result of changes which have occurred in
society.
The High court also differentiated between living and official customary law in Mabena v
Letsoalo 1998 (2) SA 1068 (T). The court held that there are two forms of customary law:
living customary law and official customary law. The court noted that it had to recognise the
principle of living (actually observed law), as this would constitute a development in
accordance with the spirit, purport and object of the Bill of Rights.
The two major statutes dealing with customary law post-1994 also recognise the concept of
living customary law by implication. In this respect, the Recognition of Customary Marriages
Act (RCMA) 120 of 1998 and the Reform of Customary Law of Succession and Regulation
of Related Matters Act (RCLSA) 11 of 2009.
There is a clear distinction between official customary law and ‘living’ customary law. The
former refers to the law applied in our courts as found in statutes, books and case law etc.
On the other hand, ‘living’ customary law refers to the social experiences of those living
according to customary law (that is a customary law practised on the ground). Curran and
Bonthuys (2004) argue that while there are statutes that seek to empower women married
according to customary law, ‘living’ customary law continues to oppress them. That is,
official law and social practice are not always compatible and may, in some instances, clash
with one another.
,Question 2
Critically evaluate the extent of the success of the courts, in their
transformative efforts to achieve the customary law that is envisioned by the
Constitution, in Mabena v Letsoalo 1998 (2) SA 1068 (T) and Mabuza v Mbatha
2003 (7) BCLR 43 (C)
(5 marks)
ANSWER
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.
Question 4
With reference to the Covid 19 pandemic and how it is being handled by
South Africans in general, and by the authorities in particular, comment
on whether and how the principle of umuntu ngumuntu ngabantu has
found expression, having regard to the handling of the applicable
attributes of ubuntu.
(5 marks)
ANSWER
Covid-19 is a very dangerous pandemic that spreads through social interaction – to
control it people must wear masks, sanitise, avoid contact through social distancing and
constant washing of hands and cleaning of surfaces. As all this is being observed
people need to ensure that the principle of ubuntu revolves around the expression
umuntu ngumuntu ngabantu – the people are the reason for one’s personhood. This
means that without the other people an individual is nothing. Togetherness is the
cornerstone of African social solidarity.
One of the basic principles of ubuntu is communal living – no one lives alone. As
everyone has to survive during Covid 19 we have to ensure that we are safe all the time
- also ensuring that everyone is safe. This is an act of ubuntu to avoid shaking your
brother’s/sister’s hand – in order to protect yourself and your brother/sister. The
seemingly anti-social behavior imposed by Covid 19 is necessary in order to ensure our
social solidarity more – in the interests of a shared existence and reciprocity, one
another’s safety must be ensured. For future solidarity to exist we must avoid infecting
one another. In order to be together more in future, we must keep social distance – so
that other people can be people because of us.
, Question 5
Suppose you are an Africanist legal academic analysing the judgments in
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) and Bhe v Magistrate
Khayelisha and Others 2005 (1) BCLR. With reference to the facts and the
legal issues that were raised in each case, examine what you found to be
novel developments, if any; and why you consider them to be either
compatible or incompatible with the idea of decolonising the South
African legal system
(10 marks)
ANSWER
In Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC) the court developed
customary law to promote the spirit, purport and objects of the Bill of Rights, by
removing the rule of male primogeniture, so as to treat men, women and children
equally in matters of intestate succession. The court held that the common law-based
child portion principle should be imported from Roman-Dutch law to trump the male
primogeniture principle of indigenous law so that all the deceased’s descendants could
receive child portions.
The issue of the primogeniture rule also came to the fore in Shilubana v Nwamitwa 2008
(9) BCLR 914 (CC), where this rule was considered in the context of traditional
leadership. The judgment in this case allowed the people of Valoyi traditional
community in Limpopo to move away from any previously existing rule that a woman
could never be appointed to a traditional leadership position. The court endorsed the
community’s right to develop their customary law in line with constitutional values.
With regard to whether the above judgments are either compatible or incompatible with
the idea of decolonising the South African legal system, the decision in Bhe case can
be seen as irreconcilable with this idea. The Constitutional Court held against its own
previous judgment in Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC)
re-introducing the defunct (in terms of Alexkor) colonial/apartheid culture of trumping
African customary law through Dutch customary in Africa. On the other hand, the
Constitutional Court in Shilubana case restored the indigenous power traditional
authorities had to legislate, maintain, repeal or amend their customs, which is consistent
with the idea of of decolonising the post-apartheid South African law
