LCP4804 - Advanced Indigenous Law Summary Notes Trial Exam and Answers
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Course
LAW LCP4804 (LAWLCP4804)
Institution
University Of South Africa
LCP4804 - Advanced Indigenous Law Summary Notes Trial Exam and Answers
LPB ACCOM Student Number LCP4804 Advanced Customary Law Semester 2 - Trial exam questions 2018
1.1 Discuss marital rights in the context of polygamy within the South African
legislation...
LCP4804 - Advanced Indigenous Law
Summary Notes Trial Exam and
Answers
, LPB ACCOM Student Number 48264385 LCP4804
Advanced Customary Law Semester 2 - Trial exam questions
2018
1.1 Discuss marital rights in the context of polygamy within the South African
legislation pre-democracy. Use case law to show the emancipation of women in
the Constitutional Court.
In terms of the BAA (which was the national policy), alongside the Natal Code of
Zulu Law, the concept of marital rights declared that all black women were
perpetual minors. Perpetual minority demands the handing over of the woman
from the guardian (her father) to guardian (the husband) during marriage
proceedings because of being considered a minor. The latter code provides that
the husband is the owner of matrimonial property and the wife owes him the
duty of respect. In the Gumede case, these provisions were found to be
inconsistent with the constitutional right to equality and are invalid. Other than
these negative and disruptive roles, there is no further role for these old order
statutes.
With regards to the polygamous nature of customary marriages, the husband
had all the rights as well as the power to marry as many wives as he wanted,
whereas women had no competing rights since they were regarded as perpetual
minors.
The Constitutional Court cases which are relevant here are:
Gumede Case which discussed property rights in the context of divorce.
The Recognition of Customary Marriages Act was unconstitutional as it
excluded customary marriages concluded pre-recognition from the marital
regime of ICOP. This meant that such women upon divorce were not entitled
to any marital property.
This case was not explicitly brought before the court in a polygamous nature,
however it is important to take note that all customary marriages are
potentially polygamous.
Mayelane Case Permission of first wife is a requirement
the court in this case set a precedent that in order for a man to marry more
women according to customary law, that he requires the permission of the
first wife.
1. 2 How did the outlawed marital legislation hinder the status of indigenous
women?
The Black Administration Act declared that all black women were perpetual
minors. Perpetual minority demands the handing over of the woman from the
guardian (her father) to guardian (the husband) during marriage proceedings
because of being considered a minor.
Section 23 Before the Act came into being customary marriage
was not recognised as a marriage in law. It was known as a customary union
where spouses did not enjoy marital rights. Black women were perpetual minors
who could be discarded simply by their husbands marrying other women by civil
rites.
In terms of the Kwazulu Act on the Code of Zulu law and the Natal Code of Zulu
Law, that these statutes have no contribution to make in the development of
post-apartheid customary law. Without section 23 of the BAA, the male
primogeniture problems in Mthebu, Shilubana and Bhe would not have
happened.
,Prior to coming into operation of the Recognition of Customary Marriages Act 120
of 1998, customary marriages were subject to limited recognition in South Africa
as a result of their potentially polygamous nature. Before to the Act coming into
being customary marriage was not recognised as a marriage in law. It was known
as a customary union where spouses did not enjoy marital rights. Black women
were perpetual minors who could be discarded simply by their husbands
marrying other women by civil rites.
, set out in the case of Hyde v Hyde and Woodmansee was imported into South
African law in the case of . The Court felt that it could
not recognise customary marriages because, being potentially polygamous, they
offended against public policy. Failure to recognise customary marriages in the
common law courts had serious consequences for African family life.
Dlamini lists the kinds of hardship that were visited on African families by this
exclusion:
a) Spouses married in terms of customary law were not considered to be
husband and wife. They therefore did not owe each other a duty of
support.
b) Their children were considered to be illegitimate.
c) If the man married another woman by civil rites, the civil marriage
extinguished the customary marriage, leading to the discarding of the
first wife and her children.
Limited recognition was introduced in the form of statutory enactments aimed at
remedying these glaring anomalies that resulted from non-recognition. Statutes
were passed to afford limited recognition of customary marriages to alleviate the
plight of customary spouses in the areas of tax,
breadwinner. It was largely to correct this situation that the South African Law
Commission (SALC) embarked on its investigation into customary marriages.
The Recognition of Customary Marriages Act 120 of 1998 has its origins in the
recognition of customary law by the Constitution. The advent of the Act brought
legal recognition to this institution, which became a customary marriage, instead
of customary union, with full legal recognition to the same level as the civil
marriage. Under the Act husband and wife are equal, multiple wives are
recognised and the marriage can be registered; and can be dissolved only by a
court. Thus the South African family law became normalised, humanised,
modernised or improved as all marriage systems attained legal equality.
1. 3 Define inheritance according to S/African indigenous law with use of case law?
Prior to the Constitution, the senior male succeeded (usually the eldest son) took
over from the previous traditional leader. Post the Constitution, the Traditional
leadership Act allowed for new succession chances based on equality. Now both
male and female can succeed the previous traditional leader. The case of
Shilubana was groundbreaking in this regard. However, the case of Mthembu was
instrumental in the defining of inheritance.
The case applied the Black Administration Act which designated two
important requirements for eligibility to inherit, being that the individual
must be:
a) a senior (in terms of age) and
b) that the individual must be male.
According to these requirements this individual was then regarded as the
head of the family and the heir to all deceased estates.
Hence in the case of Mthembu, the widow and her daughters failed to
inherit, as the father of the deceased inherited everything.
Shilubana: uncertainty and unresolved issues
While the judgment in Shilubana provides good guidance on the ascertainment of
customary law, its impact has been to destroy certainty in the customary law of
intestate succession to traditional leadership. Prior to this judgment, the rule of
living customary law of succession, as established by both the High Court and
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