Exam (elaborations)
LCP4804 REVISION STUDY PACK 2019
- Institution
- University Of South Africa (Unisa)
LCP4804 REVISION STUDY PACK 2019
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By: lean47 • 3 year ago
By: Kgaogel • 4 year ago
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LCP4804 EXAM PREPIn addition to focusing on assignment 1, 2 and 3 which is the self-assessment, the following areas are
of crucial for the exam.
1. The case law on customary marriages and it’s legislation
Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC)
Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA)
Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC)
Fanti v Boto and Others 2008 (5) SA 405 (C)
Mabuza v Mbatha 2003 (7) BCLR 43 (C)
Mabena v Letsoalo 1998 (2) SA 1068 (T)
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)
2. The case law on succession and its legislation
Mthembu v Letsela and Another 1997 (2) SA 936 (T)
Mthembu v Letsela and Another 1998 (2) SA 675 (T)
Mthembu v Letsela and Another 2000 (3) SA 867 (SCA)
Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC)
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)
Nwamitwa v Philia and Others 2005 (3) SA 536 (T)
Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)
3. The case law on traditional leadership and its legislation
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)
Nwamitwa v Philia and Others 2005 (3) SA 536 (T)
Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)
,Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC)
This would be adequate for the preparation of the upcoming exam. If you require any further
assistance, then please send me an email. All the best!
LCP4804 – Advanced Indigenous Law
1. The examination paper is a 2 hour paper of a total of 100 marks.
2. It consists of five questions. Three questions of 20 marks each, one question of 25 marks, and
one question of 15 marks.
3. All 5 questions are compulsory – there are no choice questions.
4. Each question consists of sub-questions of 5 or 10 marks.
5. There are no multiple –choice questions
A.THE CONSTITUTION
Sections 9(equality), 30/31 (culture), 39 (legal development) and 211 (recognition of customary
law and its institutions) deal directly with the constitutional application of customary law.
Which one of the above sections did the Constitutional Court apply in the Nwamitwa v
Shilubana judgment to indicate that traditional authorities are authorised to change their
customary laws to align them with the Constitution?
How did the Constitutional Court then apply any or all these sections in normalizing the
selection of traditional leaders and empowering traditional communities to review their customs.
Section 9(1) of the Constitution guarantees equality of treatment before the law. It states that
‘[e]veryone is equal before the law and has the right to equal protection and benefit of the law’.
Section 9(3) and (4) spells out instances where unfair discrimination is prohibited. Section 10
provides that ‘everyone has inherent dignity and the right to have their dignity respected and
protected’. Examples of customary law that are often cited as practices that may be found to
conflict with one or more of these rights include lobolo, polygamy, ukuthwala, the principle of
male primogeniture and succession to traditional status or office. The courts have dealt with
some of these issues. For example, in Bhe, the Constitutional Court invalidated the principle of
male primogeniture on the ground that it discriminated against women with regard to inheritance.
,In Shilubana, the Court endorsed a rule of customary law in the form of a royal resolution which
allowed a woman to succeed to the position of hosi as this rule promoted gender equality. The
Court thereby implicitly prohibited any principle of succession that countenances discrimination.
Furthermore, section 39(2) of the Constitution provides an important mechanism for dealing with
customary law conflicts with the Bill of Rights. This section enjoins the courts to ‘promote the
spirit, purport and objects of the Bill of Rights’.
The certification of the final Constitution To be certified by the Constitutional Court, the final
Constitution had to comply with Constitutional Principles XI and XIII mentioned above.
Therefore, the final Constitution of 1996 included the following provisions:
•Section 9(3) on the protection of equality includes among its listed grounds ethnic or social
origin and culture. According to Bennett, culture includes ‘a people’s entire store of knowledge
and artefacts, especially the languages, systems of belief, and laws, that give social groups their
unique characters’. Therefore, this section gives people the right to be governed by the law
applying to their particular cultural group.
•Section 15 expands on section 14 of the interim Constitution, declaring that nothing in the
section prevents legislative recognition of marriages concluded under any tradition or religious,
personal or family law systems.
•Section 30 entrenches the individual’s right to participate in a culture of his or her choice and
section 31 protects a group’s right to participate in cultural activities of their choosing.
Distinguishing these two provisions from all others in the Bill of Rights, the Constitution
specifically qualifies these provisions by stating that neither the rights in section 30 nor 31 can be
exercised in a way contrary to the provisions of the Bill of Rights.
•Section 39 treats customary law and its development as equal to the common law. Section 39(2)
states that ‘[w]hen interpreting any legislation and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and objects of the
Bill of Rights’. Section 39(3) provides that ‘[t]he Bill of Rights does not deny the existence of
any other rights or freedoms that are recognised or conferred by common law, customary law or
legislation, to the extent that they are consistent with the Bill’.
, •Chapter 12 provides for a role for traditional leaders both locally and nationally, subject to the
customs and usages of their communities, legislation and the Constitution. In Chapter 12, section
211(3) specifically states that ‘[t]he courts must apply customary law when that law is
applicable, subject to the Constitution and any legislation that specifically deals with customary
law’.
•Section 235 articulates the right to self-determination of any community sharing a common
cultural and linguistic heritage, and provides a foundation on which the state may legislate for
cultural and linguistic communities to express this international law right.
a) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases (Shilubana and Others v
Nwamitwa 2007 (2) SA 432 (SCA) and Shilubana and Others v Nwamitwa 2008 (9) BCLR 914
(CC).
The legal question that was answered by the court Philia Shilubana, of the Valoyi traditional
community, in the Limpopo Province of South Africa, was not appointed as a traditional leader
(hosi) of her people when her father died in 1968. As a woman she could not be appointed due to
the laws of unfair discrimination at the time. Instead her father’s brother, Richard Nwamitwa,
was appointed as the traditional leader (hosi). When the latter died in 2001, the Valoyi
Traditional Authority took a resolution to appoint Philia Shilubana as the traditional leader (hosi)
relying on the constitutional provision for gender equality which motivated the community to
adapt its rules. This resolution amended the past practice of the community which indicated the
eldest son of the previous hosi as the successor to his father as the new traditional leader (hosi).
Sidwell Nwamitwa, Richard Nwamitwa’s son, sought to dispute Philia Shilubana's appointment,
relying on past practice based on his purported right as the eldest son of the previous hosi. The
decision of the court The matter was decided in favour of Sidwell Nwamitwa in both the High
Court and the SCA, in terms of the community’s past practice. Shilubana v Nwamitwa 2008 (9)
BCLR 914 (CC) The legal question that was answered by the court
The case was eventually taken on appeal to the Constitutional Court. The decision of the court
and reasons for judgment In a unanimous judgment, the Court decided that Ms Shilubana was
legally appointed as the legitimate traditional leader (hosi) of the Valoyi people. The Court
emphasised the fact that customary law is a living system of law. As such it was not bound by
historical precedent. Its flexibility allowed it to evolve as its community changed. Once it was
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