[Date]
LCP4804 EXAM
PACK 2024
QUESTIONS AND ANSWERS
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1
LCP4804 EXAM PACK 2024
QUESTION1
Write a critical evaluation of the extracts from (a) and (b) below, taking into account the
context of the development of African customary law in which they were uttered and the
effect to which each one was addressed:
(a)“once it is clear that the negotiations have taken place, the next inquiry, applying the
Act is whether there are any factors that show that the marriage was “entered into” or
“celebrated.” (from the judgment of Tshiqi J in Maluleke v Minister of Home
Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008) (unreported) (15) and
(b) “the primary purpose of the rule is to preserve the family unit and ensure that upon
the death of the family head, someone takes over the responsibilities of the family
head” (from the minority judgment of Ngcobo J in Bhe v Magistrate Khayelisha
BCLR (1) (CC) (15)
[30]
QUESTION 2
In Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC) the Constitutional
Court emphasised the need for the courts to treat indigenous law as a distinct and
independent component of the South African legal system, with its own values and norms
– and should no longer be looked at through the eyes of the common law – and that the
two components (indigenous law and common law) have the equal force of law under the
Constitution. By this the court meant to say that courts can no longer continue to use one
of these components to trump the other, as apartheid courts did.
Before the ink was dry on this judgment, the Constitutional Court held in Bhe v Magistrate
Khayelisha and Others 2005 (1) BCLR (1) (CC) 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.
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2
Thus, in essence, the Constitutional Court held against its own previous judgment in Alexkor
by re-introducing the defunct (in terms of Alexkor) colonial/apartheid culture of trumping
African customary law through Dutch customary in Africa.
Bearing this in mind, make a jurisprudential analysis of these two cases (making reference
to the legal principles involved but avoiding a detailed fact discussion) – pointing out the
respects and extents to which each one of them is responsive (or not responsive) to the
crucial matter of decolonising the post-apartheid South African law.
[35]
QUESTION 3
Write critical comments on each of the following judgments (excluding details on facts) with
reference to the pressing transformation and women’s empowerment agenda in
customary law:
(a) Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) (10)
(b) Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC) (15)
(c) Mabena v Letsoalo 1998 (2) SA 1068 (T) (10)
[35] TOTAL:
{100}
©
UNISA 2020
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SEMETER 02
YEAR 2020
MODULE LCP 4804
Downloaded by: Rufaro |
Distribution of this document is illegal
QUESTION 1
Question 1(a)
Names of the parties involved in Extract:
Maluleke v Minister of Home Affairs and Radebe
Facts
The validity of a customary marriage was disputed on the basis that the traditional
imvume ritual, for integrating the bride into the groom’s family, had not been
observed before the death of the husband. The Grooms mother and the Children
from previous marriage thus challenged the validity of the registered marriage.
The deceased and Radebe had been conducting a love relationship, which lead to
lobola negotiations between their respective families. The first amount of the
agreed lobola was paid in December 2000. A further amount was paid on 30 June 2001,
on this day the lobola negotiations were finalised and the families agreed that an
“imvume” would be held in October 2001.
The deceased passed away on 16 September 2001, before the imvume was held.
On 21 September 2001, after the death of the deceased, a marriage certificate
was issued indicating that the decease and Radebe were married to each other on
30 June 2001, the date on which the last payment of lobola was made.
The marriage certificate was issued as a consequence of an application lodged
after the deceased’s death by Radebe.
The deceased family and children from a previous marriage disputed the
existence of the marriage as the imvume was never held
Legal Question
Validity of customary Law marriage in context of section 3(1)(b)
LCP4804 EXAM
PACK 2024
QUESTIONS AND ANSWERS
, Stuvia.com - The study-notes marketplace
1
LCP4804 EXAM PACK 2024
QUESTION1
Write a critical evaluation of the extracts from (a) and (b) below, taking into account the
context of the development of African customary law in which they were uttered and the
effect to which each one was addressed:
(a)“once it is clear that the negotiations have taken place, the next inquiry, applying the
Act is whether there are any factors that show that the marriage was “entered into” or
“celebrated.” (from the judgment of Tshiqi J in Maluleke v Minister of Home
Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008) (unreported) (15) and
(b) “the primary purpose of the rule is to preserve the family unit and ensure that upon
the death of the family head, someone takes over the responsibilities of the family
head” (from the minority judgment of Ngcobo J in Bhe v Magistrate Khayelisha
BCLR (1) (CC) (15)
[30]
QUESTION 2
In Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC) the Constitutional
Court emphasised the need for the courts to treat indigenous law as a distinct and
independent component of the South African legal system, with its own values and norms
– and should no longer be looked at through the eyes of the common law – and that the
two components (indigenous law and common law) have the equal force of law under the
Constitution. By this the court meant to say that courts can no longer continue to use one
of these components to trump the other, as apartheid courts did.
Before the ink was dry on this judgment, the Constitutional Court held in Bhe v Magistrate
Khayelisha and Others 2005 (1) BCLR (1) (CC) 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.
This study source was downloaded by 100000799301222 from CourseHero.com on 10-12-2021 02:50:05 GMT -05:00
https://www.coursehero.com/file/74496729/ADVANCED-IND-EXAMPDF/
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2
Thus, in essence, the Constitutional Court held against its own previous judgment in Alexkor
by re-introducing the defunct (in terms of Alexkor) colonial/apartheid culture of trumping
African customary law through Dutch customary in Africa.
Bearing this in mind, make a jurisprudential analysis of these two cases (making reference
to the legal principles involved but avoiding a detailed fact discussion) – pointing out the
respects and extents to which each one of them is responsive (or not responsive) to the
crucial matter of decolonising the post-apartheid South African law.
[35]
QUESTION 3
Write critical comments on each of the following judgments (excluding details on facts) with
reference to the pressing transformation and women’s empowerment agenda in
customary law:
(a) Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) (10)
(b) Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC) (15)
(c) Mabena v Letsoalo 1998 (2) SA 1068 (T) (10)
[35] TOTAL:
{100}
©
UNISA 2020
This study source was downloaded by 100000799301222 from CourseHero.com on 10-12-2021 02:50:05 GMT -05:00
https://www.coursehero.com/file/74496729/ADVANCED-IND-EXAMPDF/
, Stuvia.com - The study-notes marketplace
SEMETER 02
YEAR 2020
MODULE LCP 4804
Downloaded by: Rufaro |
Distribution of this document is illegal
QUESTION 1
Question 1(a)
Names of the parties involved in Extract:
Maluleke v Minister of Home Affairs and Radebe
Facts
The validity of a customary marriage was disputed on the basis that the traditional
imvume ritual, for integrating the bride into the groom’s family, had not been
observed before the death of the husband. The Grooms mother and the Children
from previous marriage thus challenged the validity of the registered marriage.
The deceased and Radebe had been conducting a love relationship, which lead to
lobola negotiations between their respective families. The first amount of the
agreed lobola was paid in December 2000. A further amount was paid on 30 June 2001,
on this day the lobola negotiations were finalised and the families agreed that an
“imvume” would be held in October 2001.
The deceased passed away on 16 September 2001, before the imvume was held.
On 21 September 2001, after the death of the deceased, a marriage certificate
was issued indicating that the decease and Radebe were married to each other on
30 June 2001, the date on which the last payment of lobola was made.
The marriage certificate was issued as a consequence of an application lodged
after the deceased’s death by Radebe.
The deceased family and children from a previous marriage disputed the
existence of the marriage as the imvume was never held
Legal Question
Validity of customary Law marriage in context of section 3(1)(b)
