Exam (elaborations)
LCP4804 EXAM PACK 2024/2025
- Course
- LCP4804 (LCP4804)
- Institution
- University Of South Africa (Unisa)
LCP4804 EXAM PACK 2024/2025 QUESTIONS WITH WELL OUTLINED ANSWERS FOR EXAM PREPARATION.
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lOMoAR cPSD| 42036583, lOMoAR cPSD| 42036583
LCP4804
May exam 2023
Question 1
With reference to the relevant African customary law authorities, and while providing
practical examples, critically discuss how South African courts have dealt with the
application of the principle of male primogeniture. [20] SG 36
The male primogeniture principle which prioritised the firstborn son as the primary heir has
been a tradition in African customary law systems. Section 23 of the Black Administration Act
gave rise to problems of male primogeniture in Mthembu,
Shilubana and Bhe. The KwaZulu Natal Act on the Code of Zulu Law and the Natal Code of
Zulu Law provided that the wife owed the duty of respect to the husband and the husband
was considered the owner of the matrimonial property. However, South African courts
engaged in a close fight with the application by considering the constitutional values of gender
neutrality and equality.1
The Mthembu v Letsela and Another (71/98) [2000] ZASCA 181; [2000] 3 All SA 219 (A) (30
May 2000) case was played an instrumental role in defining inheritance. The case applied
the Black Administration Act which had two essential requirements to be eligible to inherit. 2
These requirements were being senior in terms of age and that the person must be male.
The requirements suggested that the person eligible to inherit was regarded as the head of
the family and the heir to all the deceased estates. It is for that reason that the widow and her
daughters failed to inherit and the father of the deceased inherited everything. 3
The Constitutional Court held that the principle of male primogeniture was inconsistent with
the Constitution's equality clause and could not be applied to disinherit a daughter in favour
of a son. The court emphasised that customary law must be interpreted in line with
constitutional values.2
In Shilubana and Others v Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC);
2009 (2) SA 66 (CC) (4 June 2008), the Constitutional Court was asked whether the High
Court and the Supreme Court of Appeal were correct in holding that a woman could not be
appointed as a traditional leader in terms of the laws and traditions of Valoyi community and
whether the Valoyi Traditional Authority had the competence to change their customary law
to provide for the appointment of a woman as a traditional leader.3
The Constitutional Court answered the first question in the negative holding that in fact the
Valoyi Traditional Authority had the competence to appoint a woman as a traditional leader
since men and women are equal under the Constitution,4 and answered the second question
in the affirmative, holding that section 211(2) of the Constitution empowers traditional
1 Ndima, D.D. Advanced Indigenous Law: Only Study guide for LCP4804 (University of South Africa 2018) 36. 2
Mthembu v Letsela and Another (71/98) [2000] ZASCA 181: [2000] 3 All SA 219 (A) (30 May 2000), para 3. 3
Mthembu v Letsela and Another, para 8.
2 Mthembu v Letsela and Another, para 46.
3 Shilubana and Others v Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June
2008), para 1.
4 Shilubana and Others v Nwamitwa, para 67.
, lOMoAR cPSD| 42036583
authorities to make, repeal or amend their laws to bring them in line with the Constitution.
The Constitutional Court upheld the appeal.5
In Bhe and Others v Khayelitsha Magistrate and Other (CCT 49/03) [2004] ZACC 17;
2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004), the Constitutional
Court was asked to confirm a Western Cape High Court decision together with a North
Gauteng High Court decision both of which had declared the male primogeniture rule which
preferred senior males in the customary law of intestate succession unconstitutional and set
it aside.6
The Constitutional Court confirmed both judgments; declared the male primogeniture rule
unconstitutional for violating the equality and the human dignity clauses of the Constitution;
set aside section 23 of the BAA and section 1(4) of the Intestate Succession Act. 7 The
Intestate Succession Act was imported to customary law, to distribute equal child portions to
all the widows, descendants of the deceased, male and female, legitimate and illegitimate.
Both decisions from the High Courts were confirmed.8
In Gumede (born Shange) v President of the Republic of South Africa and Others
(CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC) ; 2009 (3) SA 152 (CC) (8
December 2008) case, the provisions of the KwaZulu Natal Act on the Code of Zulu Law and
the Natal Code of Zulu Law were found to be inconsistent with the constitutional right to
equality and they were declared invalid.9
However, the courts still applied the principle of male primogeniture in some cases. In Mabuza
v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4
March 2003), the High Court held that a son had a greater claim to inheritance than a
daughter under customary law.10
In Tshabalala v Tshabalala, the High Court considered the cultural context and the deceased
person's wishes, ultimately ruling in favour of a daughter's inheritance claim. 11
The courts have started to adopt a comprehensive approach which considers factors such
as the specific cultural context and the traditions of the community as well as the wishes and
interests of all the parties (including daughters and other female relatives).
In closing, the courts have engaged in a close fight with the application of male primogeniture
by balancing cultural traditions with constitutional values. With all the inconsistencies, the
5 Shilubana and Others v Nwamitwa, para 27.
6 Bhe and Others v Khayelitsha Magistrate and Other (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1
(CC) (15 October 2004), para 6.
7 Bhe and Others v Khayelitsha Magistrate and Other, para 31.
8 Bhe and Others v Khayelitsha Magistrate and Other, para 241.
9 Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23; 2009 (3)
BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008), para 3.
10 Mabuza v Mbatha (1939/01) [2002] ZAWCHC 11; 2003 (4) SA 218 (C); 2003 (7) BCLR 743 (C) (4 March 2003), para 29.
11 Tshabalala v Tshabalala case.
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courts are however adopting comprehensive approach at fast speed to prioritise adaptability
in the interpretation of customary law and flexibility.
Question 2
Critically discuss the differences between living customary law and official customary
law. [15] SG 13
Living customary law refers to the dynamic, evolving, and unwritten norms and practices of a
community, shaped by their social, cultural, and historical context. It is flexible and adaptable,
changing over time through a process of negotiation and consensus among community
members.12
Official customary law, on the other hand, refers to the codified and formalized version of
customary law, often recorded in writing and enforced by the state or legal authorities. It is
static, rigid, and sometimes outdated, failing to reflect the changing needs and values of the
community.15
The differences between living and official customary law include:
The flexibility: Living customary law is adaptable and evolving, while official customary law
is rigid and inflexible.16
Source: Living customary law emerges from community practices and norms, while official
customary law is often imposed by external authorities.17
Enforcement: Living customary law is enforced through social pressure and community
norms, while official customary law relies on state coercion and legal sanctions. 18
Representation: Living customary law represents the diverse voices and perspectives of
community members, while official customary law often prioritizes the interests of dominant
groups.19
Context: Living customary law is deeply rooted in the specific cultural, social, and historical
context of the community, while official customary law may be disconnected from these
contextual factors.20
Power dynamics: Living customary law is shaped by power relations within the community,
while official customary law can perpetuate existing power imbalances and reinforce
dominant narratives.13
12Pilane v Pilane 2013 (4) BCLR 431 (CC), para 34. 15 Pilane
v Pilane, para 35. 16 Pilane v Pilane, para 34 and 35. 17
Pilane v Pilane, para 34 and 35. 18 Pilane v Pilane, para 34
and 35. 19 Pilane v Pilane, para 34 and 35. 20 Pilane v
Pilane, para 34 and 35.
13 Pilane v Pilane, para 34 and 35.
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