LCP4804 ADVANCED INDIGENOUS LAW COMPLETE STUDY GUIDE
VERIFIED QUESTIONS AND ANSWERS EXAM PREP
Ukufakwa- ANSWER refers to a situation in which a woman's father's brother,
uncle, cousin, or nephew assumes the role of the father and makes sure that the
traditional customs and ceremonies surrounding the father's daughter's initiation
and/or marriage are performed as though the relative were the father. This gives
the relative a pro rata share of the lobolo products' worth, which is supposed to
be delivered with the daughter's marriage, or it can be received as fines for the
daughter's transgressions.
Thus, the relative is entitled to the share that is rightfully theirs, straight from
the source (that is, since the items are classified as lobolo commodities for
delivery, the relative already owns the relevant portion at that point). In other
words, the father does not have access to that part and it never becomes his
property from the start. The relative becomes the daughter's legal father to the
extent of this section. Since the part already belongs to him, he is not required to
claim it from the father's property.
Mabuza v. Mbatha - ANSWER Legal question: Can traditional marriages in
Swati be performed without adhering to the ukumekeza custom?
Reasons for judgment: a legally recognized customary marriage can continue
even if the couple chooses not to observe the Ukumekeza custom, especially
when urban settings are not even conducive to carrying out a custom that was
appropriate for earlier rural settings.
The court's ruling confirmed the legality of the traditional marriage.
In Mabena v. Letsoalo, the legal question is whether a customary marriage is
valued when a young man, without his father, arranged his own customary
marriage with his future mother-in-law, who served as the prospective bride's
guardian while her husband was away.
Reasons for judgment: As an adult guardian of her daughter, the bride's mother
is equally qualified to negotiate the customary marriage and accept delivery of
the marriage goods in the absence of her husband, who has left the family.
Similarly, an adult and incompetent man is qualified to negotiate his own
customary marriage in the absence of his father.
, The court's ruling confirmed the legality of the traditional marriage.
In the case of Ngwenyama v. Mayelane - ANSWER Legal q., the SCA asked
whether the High Court's ruling that a customary marriage consummated
without obtaining judicial approval for section 7(6) of the RCMA application is
unlawful is valid.
Reasons for ruling: The SCA determined that a customary marriage cannot be
deemed invalid due to noncompliance with section 7(6) of the RCMA
provisions, as they are not prerequisites for legality. Section 7(6) of the RCMA
outlines the validity conditions, which were appropriately met. The customary
marriage can be rendered out of community of property at most if section 7(6)
of the RCMA regulations is not followed.
Court decision: the appeal was upheld by the SCA.
In the case of Mayelane v. Ngwenyama - ANSWER Legal q., the Con Court
was asked in an appeal if the SCA was correct in concluding that the validity
requirements outlined in section 3 of the RCMA had been appropriately met and
that a customary marriage could not be declared invalid due to non-observance
of section 7(6) of the RCMA provisions, as these are not requirements for
validity.
The ConCourt supported the SCA's ruling that a customary marriage cannot be
deemed invalid due to noncompliance with section 7(6) of the RCMA
regulations, as they are not prerequisites for legality.
Court ruling: The ConCourt upheld the SCA's ruling and denied the appeal.
In Bhe v. Magistrate Khayelitsha - ANSWER Legal q, the ConCourt was
asked to uphold two high court rulings from the Western Cape and North
Gaueng that had ruled that the male primogenitire rule, which gave preference
to senior males in the customary law of intestate succession, was
unconstitutional and should be abolished.
Section 23 of the BAA and Section 1(4) of the Interstate Succesion Act were set
aside by the ConCourt, which also confirmed both rulings and declared the male
primogeniture norm unconstitutional for violating the Constitution's equality
and human dignity clauses. In order to provide equitable child benefits to all
widows, descendants of the deceased, male and female, legislative and
illegitimate, the Interstate Succession Act was introduced into customary law.
Court decision: both of the high courts' rulings were upheld.
VERIFIED QUESTIONS AND ANSWERS EXAM PREP
Ukufakwa- ANSWER refers to a situation in which a woman's father's brother,
uncle, cousin, or nephew assumes the role of the father and makes sure that the
traditional customs and ceremonies surrounding the father's daughter's initiation
and/or marriage are performed as though the relative were the father. This gives
the relative a pro rata share of the lobolo products' worth, which is supposed to
be delivered with the daughter's marriage, or it can be received as fines for the
daughter's transgressions.
Thus, the relative is entitled to the share that is rightfully theirs, straight from
the source (that is, since the items are classified as lobolo commodities for
delivery, the relative already owns the relevant portion at that point). In other
words, the father does not have access to that part and it never becomes his
property from the start. The relative becomes the daughter's legal father to the
extent of this section. Since the part already belongs to him, he is not required to
claim it from the father's property.
Mabuza v. Mbatha - ANSWER Legal question: Can traditional marriages in
Swati be performed without adhering to the ukumekeza custom?
Reasons for judgment: a legally recognized customary marriage can continue
even if the couple chooses not to observe the Ukumekeza custom, especially
when urban settings are not even conducive to carrying out a custom that was
appropriate for earlier rural settings.
The court's ruling confirmed the legality of the traditional marriage.
In Mabena v. Letsoalo, the legal question is whether a customary marriage is
valued when a young man, without his father, arranged his own customary
marriage with his future mother-in-law, who served as the prospective bride's
guardian while her husband was away.
Reasons for judgment: As an adult guardian of her daughter, the bride's mother
is equally qualified to negotiate the customary marriage and accept delivery of
the marriage goods in the absence of her husband, who has left the family.
Similarly, an adult and incompetent man is qualified to negotiate his own
customary marriage in the absence of his father.
, The court's ruling confirmed the legality of the traditional marriage.
In the case of Ngwenyama v. Mayelane - ANSWER Legal q., the SCA asked
whether the High Court's ruling that a customary marriage consummated
without obtaining judicial approval for section 7(6) of the RCMA application is
unlawful is valid.
Reasons for ruling: The SCA determined that a customary marriage cannot be
deemed invalid due to noncompliance with section 7(6) of the RCMA
provisions, as they are not prerequisites for legality. Section 7(6) of the RCMA
outlines the validity conditions, which were appropriately met. The customary
marriage can be rendered out of community of property at most if section 7(6)
of the RCMA regulations is not followed.
Court decision: the appeal was upheld by the SCA.
In the case of Mayelane v. Ngwenyama - ANSWER Legal q., the Con Court
was asked in an appeal if the SCA was correct in concluding that the validity
requirements outlined in section 3 of the RCMA had been appropriately met and
that a customary marriage could not be declared invalid due to non-observance
of section 7(6) of the RCMA provisions, as these are not requirements for
validity.
The ConCourt supported the SCA's ruling that a customary marriage cannot be
deemed invalid due to noncompliance with section 7(6) of the RCMA
regulations, as they are not prerequisites for legality.
Court ruling: The ConCourt upheld the SCA's ruling and denied the appeal.
In Bhe v. Magistrate Khayelitsha - ANSWER Legal q, the ConCourt was
asked to uphold two high court rulings from the Western Cape and North
Gaueng that had ruled that the male primogenitire rule, which gave preference
to senior males in the customary law of intestate succession, was
unconstitutional and should be abolished.
Section 23 of the BAA and Section 1(4) of the Interstate Succesion Act were set
aside by the ConCourt, which also confirmed both rulings and declared the male
primogeniture norm unconstitutional for violating the Constitution's equality
and human dignity clauses. In order to provide equitable child benefits to all
widows, descendants of the deceased, male and female, legislative and
illegitimate, the Interstate Succession Act was introduced into customary law.
Court decision: both of the high courts' rulings were upheld.
