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Summary IND 2601 IND2601 exam questions (deeply elaborated)
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1African Customary Law
Q&A 2009 to 2014 Exams
Setwork 1: Evaluate the following statements
Disclaimer: These activities were compiled by Pierre Louw from UNISA study material, the prescribed book and legislation.
They in no way claim to be 100% correct and you are advised to compare your answers & notes to check for correctness before
applying these answers.
In a traditional court evidence is given under oath? 5x
In a traditional court, evidence is not given under oath.
Therefore, perjury (willfully giving false evidence under oath) is unknown.
No action is taken against a party or a witness who tells lies; if they do tell lies, it will
merely harm their case.
_________________________________________________________________________
A traditional leader is empowered to punish anyone? 5x
Limitations pertaining to Race:
▫ In offences where:
» any of the accused or victims are not blacks, or where
» the property involved does not belong to a black person…
such offences may not be tried by a traditional leader.
However….
▫ A traditional leader is, however, empowered to punish any person, including a non-
black, for contempt of his court in facie curiae (in the face of the court): see Makapan
v Khope 1923 AD 551; R v Vass 1945 GWPD 34; against Prinsloo & Myburgh 248.
_________________________________________________________________________
In African customary law there are certain crimes that can defile (pollute) the
community? Discuss briefly. (5)
Crimes that defile the community…
, 2
▫ In African customary law infringement of communal interests sometimes takes the
form of defilement (pollution) of the community.
▫ Examples of polluting crimes are ‘offences of the blood’ eg: assault and homicide.
• It is also believed that infanticide & abortion generate a ritual heat that keeps
away the rain.
• Incest – and in some communities contempt of the ruler as well - is considered
defiling.
The Effect & Consequence of defilement or pollution of the community:
▫ In such cases - not only is punishment imposed, but a meal of lustration (purification)
and conciliation is ordered as well.
▫ The cattle paid as a fine are generally slaughtered at the court.
» All those present, and particularly the members of the court council and the
persons involved in the act of defilement, must join in the meal.
» In this way the offenders are visibly (in a concrete manner) reconciled with the
community.
_________________________________________________________________________
Indigenous law is an expression of community values. 3x
True.
African customary law gives expression to the values of the community.
In many instances, these values are based on conceptions of the supernatural
world.
_________________________________________________________________________
, 3
The family head's control over house property does not give him the authority to
allocate marriage goods for daughters in one house to another house. 2x
▫ House property is controlled by the head of the house, namely the husband. In
most cases, the husband is the head of various houses at the same time.
▫ In his disposal of house property he is morally, but not legally, obliged to consult
the wife of the house and the house successor, if this person is already an adult.
▫ The wife has a reasonable degree of control over house property as far as daily
household affairs are concerned. She decides, for instance, on what groceries to buy
and is not expected to consult her husband about this.
▫ When property from one house is used to the benefit of another house, a debt
relationship is created between the houses concerned.
▫ Such a debt has to be repaid at some time, although no action for repayment can be
instituted in an indigenous court. The principle involved here is the one we referred
to earlier on: “an agnatic group cannot be divided against itself”.
_________________________________________________________________________
Status determines the powers derived from objective law. Rank is just one factor that
may influence a persons’ status. 2x
(2) Distinguish between ‘status’ and ‘rank’ in customary law. (5)
‘Status’ - refers to a person’s legal position in general, while
‘Rank’ - is only one factor influencing status.
In indigenous customary law, a distinction must be drawn between status and rank.
Status - determines the powers derived from objective law.
, 4
In original indigenous law
the individual shared his or her rights with the other members of the agnatic group
which depended on his or her status within the group.
status was influenced by factors such as family rank, house rank, age, sex and marital
status.
the principle of shared rights meant that there was no question of absolute majority
or minority.
the idea of a fixed age at which a person attained majority was unknown.
The higher a person’s status, the more powers he or she obtained, but never where
he or she could act independently from the agnatic group.
In modern indigenous law
a person’s status is influenced strongly by the specific age (18) at which majority is
attained, as prescribed in s 17 of the Children’s Act 38 of 2005.
Rank:
Rank is 1 factor which may influence person’s status & plays a significant role in
customary law.
Thus, the wives of a polygamist (a man with two or more wives) each have a
particular rank, as does each of their houses.
At times this rank is also affected by the specific division in the house-hold.
The members of the agnatic group also have a particular rank, i.t.o their order of
seniority in the group.
_________________________________________________________________________
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