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LCP MAY JUNE EXAM
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- University Of South Africa (Unisa)
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LCP4804May June 2022 exam
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Question 1
According to section one of the Recognition of Customary Marriages Act customary law means
“the customs and usages traditionally observed amongst the indigenous African people of South
Africa and form part of the culture of those people.” In Alexkor v The Richtersveld Community &
Others the Constitutional court defined the nature and concept of customary law as: The nature
and the content of the rights that the Richtersveld Community held in the subject land prior to
annexation must be determined with reference to indigenous law. That is the law which governed
its rights. The privy Council has held that the dispute between indigenous people such as the right
to occupy a piece of land has to be determined according to indigenous law without importing
, English conceptions of property law. Indigenous law used to be seen as part of the common law,
now it is seen as an integral part of our law. Its validity depends upon the Constitution and not the
common law. The courts are obliged by section 211(3) of the Constitution to apply indigenous law
wherever it is applicable. The Constitution recognizes the originality and distinctiveness of
indigenous law as an independent source of norms within the legal system. Indigenous law is not
affixed body of formally classified and easily ascertainable rules. Its very nature suggests that it
evolves as the people who live by its norms change their patterns of life. Unlike common law,
indigenous law is not written. It is a system of law that was passed from one generation to another.
It has evolved throughout history and developed to meet the changing needs of the community. It
will continue to evolve within the context of its values and norms consistently with the Constitution.
b) i) Section 11 of the Black Administrations Act was interpreted in the same way as its
predecessors. In Natal, this meant that customary law applied to all the Natives in all possible
transactions, including some economic transactions and common law in foreign transactions or
those with non-Africans. The Cape followed the Transkei and applied customary law only to
mattrers of personal law where ther was no Roman-Dutch law. In Bhe vs Magistrate Khayalitsha;
Human Rights Commission v The President of The Republic of South African & Shubi v Sithole the
following was held: The Native Administration Act 38 of 1927 appointed the governor general as
“supreme chief of all Africans”. It gave him the power to govern all Africans by proclamation. The
powers given to him were virtually absolute. He could order the removal of an entire African
community from one place to another. The National Administration Act became the most powerful
tool in the implementation of forced removals of Africans from the so called white areas into areas
reserved for the. These removals resulted in untold suffering. In Ex parte; Minister of Native Affairs-
In Re Yako v Beyi, it was held that it found no support in the language of act 38 (NAA) that Native
law should be treated as prima facie applicable in cases between Natives. He stated on the
contrary, that the indications are rather that common law was to be followed unless the native
commissioner in his discretion saw fit in a proper case to apply native law. The court suggested
that the subsection assumes that the native commissioner should in general apply common law
and on the assumption that empowers in a proper case to apply native law.
ii) In Alexkor v The Richtersveld Community, the court held that in the past indigenous law was
seen through the common law lens, it must now be seen as an integral part of our law. Like all law,
its ultimate force and validity depends upon the Constitution. Therefore, its validity is determined
with reference to the Constitution and not the common law. The constitution acknowledges the
originality and distinctiveness of indigenous law as an independent source of norms within the
legal system. Indigenous law, like common law, is subject to any legislation, consistent with the
Constitution that specifically deals with the matter at hand. In the result Indigenous law fuses with
and becomes a part of the amalgam of South African law. The courts are obliged by section 211(3)
of the Constitution to apply customary law when its applicable, subject to the Constitution and any
legislation that deals with Customary law.
2
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