LCP4804 EXAM PREPARATION 2022.
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 ...
In 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!
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LCP4804 – Advanced Indigenous Law
The structure of the May/June 2018 examination paper
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
Summary to polish your preparation for the May/June 2018
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 normalising
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’.
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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
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