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Lcp4804 Exam preparation test bankNwamita v Shilubana
Development of customer law of Succession
Philia not appointed traditional leader in 1968 when father died.
Due to laws of unfair discrimination.
Fathers brother Richard appointed.
Died 2001 - Valoyi Traditional Authority : appoint Philia on constitutional
provision of gender equality.
Amended past practice - eldest son successor.
Sidwell (son) dispute appointment relying on past practices.
HC and SCA decided in favor of Sidwell I.t.o. community past practices.
SHILUBANA v NWAMITWA
Appeal to CC
Unanimous judgment - Ms. Shilubana appointed legitimately.
Emphasized customary law living system of law.
Not bound by historical precedents.
Flexibility allowed to evolve as community changes.
CC deviated from past decisions.
Redefine customary law as system that reflect current practices of community.
Customary law regarding appointment of traditional leader legitimately evolved to
allow appointment of woman.
Consistent with Constitution.
cC upheld appeal.
Particular community adapted laws.
Other communities judged according to own practices.
Development of living customary law under Constitution
MABUZA v MBATHA
MABENA v LETSOALO
Courts negotiated transition from old order to present.
MABUZA transition from society defined customary marriage with reference to
elaborate ukumekeza best suited to rural setup and no longer required in current
,urban conditions.
MABENA independent and adult youths empowered to negotiate own customary
marriages and involvement of fathers no longer essential.
Also illustrate extent of transformation in law of marriage especially issue of
validity.
MALULEKE integration of bride not observed spouses themselves showed they
related to each other that they accepted they were husband and wife.
In difficult cases where entered into or celebrated cannot be proved, behavior of
spouses becomes important.
ALEXKOR v RICHTERSVELD COMMUNITY
Customary law and common law equal components of SA law.
Current status of customary law that of an original and independent system with
own values and norms.
SHILUBANA v NWAMITWA authority for ascertaining applicable customary law.
Past practice applies until it is clear that such practice is changed.
Look at current social practice to find applicable customary law.
S 211(2) of Constitution empowers communities to make and amend laws.
Shilubana done by amendment aligning law with Constitution- females equal to
males - traditional leadership positions.
BHE v MAGISTRATE KHAYELITSA
SHIBI v SITHOLE
HR COMMISSION v PRESIDENT of SA
Authority for jettisoning discredited apartheid rule in S23 BAA preferring males to
females in matters of succession.
S23 BAA , male primogeniture, legitimate VS illegitimate children all declared
unconstitutional and removed from customary law.
Understanding customary law in post-transformation state and contrast with
pre-transformation state
PILANE v PILANE
Court held traditional authority cannot deny constitutional rights to members of
, community who wish to enjoy them.
S1 of Law of Evidence Amendment Act states any court may take judicial notice of
law of foreign state or indigenous law.
In PILANE customary law recognized and protected by Constitution is
emphasized.
Living, active and dynamic and part of lives of people.
LEAA merely refers to taking of judicial notice.
Puts customary law at level of foreign law as opposed to vital component of
constitutional system.
Requires customary law to be proved before being used.
Pre-recognition customary law was used provides that it does not oppose principles
of public policy or natural justice.
Transformative role of post-apartheid statutes: RCMA
Before Act - customary marriage not recognized as marriage in law.
Knows as customary union - spouses didn't enjoy marital rights.
Black women perpetual minors who could be discarded simply by husband
marrying other women by civil rights.
RCMA origin in recognition of customary law by the Constitution.
Act brought legal recognition to his institution which became customary marriage
instead of customary union with full recognition to same level as civil marriage.
Husband and wife are equal, multiple wives recognized and marriage can be
registered and dissolved by a court.
SA family law became normalized, humanized, modernized or improved as all
marriage systems attained legal equality.
Transformative role of post-apartheid statutes: Traditional Leadership and
Governance Framework Act
TLGFA has origins in recognition of customary law by the Constitution.
Prior to constitutional changes traditional leaders were not given proper status.
Called chiefs and given functions to do as apartheid stooges who were paid to
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