LCP4804 EXAM PACK 2021

QUESTION1 Write a critical evaluation of the extracts from (a) and (b) below, taking into account the context of the development of African customary law in which they were uttered and the effect to which each one was addressed: (a)“once it is clear that the negotiations have taken place, the next inquiry, applying the Act is whether there are any factors that show that the marriage was “entered into” or “celebrated.” (from the judgment of Tshiqi J in Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008) (unreported) (15) and (b) “the primary purpose of the rule is to preserve the family unit and ensure that upon the death of the family head, someone takes over the responsibilities of the family head” (from the minority judgment of Ngcobo J in Bhe v Magistrate Khayelisha BCLR (1) (CC) (15) [30] QUESTION 2 In Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC) the Constitutional Court emphasised the need for the courts to treat indigenous law as a distinct and independent component of the South African legal system, with its own values and norms – and should no longer be looked at through the eyes of the common law – and that the two components (indigenous law and common law) have the equal force of law under the Constitution. By this the court meant to say that courts can no longer continue to use one of these components to trump the other, as apartheid courts did. Before the ink was dry on this judgment, the Constitutional Court held in Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC) that the common law-based child portion principle should be imported from Roman-Dutch law to trump the male primogeniture principle of indigenous law so that all the deceased’s descendants could receive child portions. This study source was downloaded by from CourseH on :50:05 GMT -05:00 S - The study-notes marketplace S - The study-notes marketplace 6 Thus, in essence, the Constitutional Court held against its own previous judgment in Alexkor by re-introducing the defunct (in terms of Alexkor) colonial/apartheid culture of trumping African customary law through Dutch customary in Africa. Bearing this in mind, make a jurisprudential analysis of these two cases (making reference to the legal principles involved but avoiding a detailed fact discussion) – pointing out the respects and extents to which each one of them is responsive (or not responsive) to the crucial matter of decolonising the post-apartheid South African law.