LCP4804 - Summary Notes & Past Exam With Answers

LCP4804 - Summary Notes & Past Exam With Answers. 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. S - The study-notes marketplace Downloaded by: veruschkamarx | Distribution of this document is illegal S - The study-notes marketplace 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 the SCA, clearly stated that the next traditional leader was the most senior son or male relative of the previous leader. This was a general rule among the Africans in South Africa. For instance, Peires has this to say in this regard: Wife. S - The study-notes marketplace Downloaded by: veruschkamarx | Distribution of this document is illegal S - The study-notes marketplace In Sigcau v Sigcau Prince Mandlonke Sigcau, the great son of the late King Marelane Sigcau, succeeded his father in that position. Yet after the Shilubana judgment this was no longer necessarily so. Van der Westhuisen J brought an end to this certainty by recognising established by both the High Court and the SCA, clearly stated that the next traditional leader was the most senior son or male relative of the previous leader. 1. 4 Do you think inheritance included women in their position as beneficiaries of deceased estates and administrators of estates? Cite case law and show how the court has transformed the position of women using legislation post democracy. Names of the parties: Bhe v Magistrate Khayelitsha Legal question: The Constitutional Court was asked to confirm a Western Cape High Court decision together with a North Gauteng High Court decision both of which had declared the male primogeniture rule which preferred senior males in the customary law of intestate succession unconstitutional and set it aside. Reasons for judgment: The Constitutional Court confirmed both judgments; declared the male primogeniture rule unconstitutional for violating the equality and the human dignity clauses of the Constitution; set aside section 23 of the BAA and section 1(4) of the Intestate Succession Act. The Intestate Succession Act was imported to customary law, to distribute equal child portions to all the widows, descendants of the deceased, male and female, legitimate and illegitimate. Decision of the court: Both decisions from the High Courts were confirmed. Names of the parties: Shilubana v Nwamitwa Legal question: On appeal from the SCA, the Constitutional Court was asked whether the High Court and the SCA were correct in holding that a woman could not be appointed as a traditional leader in terms of the laws and traditions of Valoyi community; and whether the Valoyi Traditional Authority had the competence to change their customary law to provide for the appointment of a woman as a traditional leader. Reasons for judgment: The Constitutional Court answered the first question in the negative holding that in fact the Valoyi Traditional Authority had the competence to appoint a woman as a traditional leader since men and women are equal under the Constitution; and answered the second question in the affirmative, holding that section 211(2) of the Constitution empowers traditional authorities to make, repeal or amend their laws to bring them in line with the Constitution. Decision of the court: The Constitutional Court upheld the appeal. 1. 5 Explain the concept of succession to a position of traditional leadership. Use legislation to trace the advancement of women by referring to the rule of primogeniture and how it impacted women from fully ascending to traditional leadership heights. a) Nwamitwa v Philia and Others 2005 (3) SA 536 (T) b) Shilubana cases (Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA) c) Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC). S - The study-notes marketplace Downloaded by: veruschkamarx | Distribution of this document is illegal S - The study-notes marketplace 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 (hosi). When the latter died in 2001, the Valoyi Traditional Authority took a resolution to appoint Philia Shilubana as the traditional leader (hosi) relying on the constitutional provision for gender equality which motivated the community to adapt its rules. This resolution amended the past practice of the community which indicated the eldest son of the previous hosi as the successor to his father as the new traditional leader (hosi). appointment, relying on past practice based on his purported right as the eldest son of the previous hosi. The decision of the court The matter was decided in favour of Sidwell Nwamitwa in both the High Court and the SCA, The legal question that was answered by the court The case was eventually taken on appeal to the Constitutional Court. The decision of the court and reasons for judgment In a unanimous judgment, the Court decided that Ms Shilubana was legally appointed as the legitimate traditional leader (hosi) of the Valoyi people. The Court emphasised the fact that customary law is a living system of law. As such it was not bound by historical precedent. Its flexibility allowed it to evolve as its community changed. Once it was clear that the contemporary practices of the community have replaced its past practices, the latter no longer applied. Therefore, the Constitutional Court deviated from prior decisions that had served as a test for determining the content of customary law even though they indicated long-standing and historical practices. Instead the Court redefined customary law as a system that reflected the current practices of the particular community. Living customary law came to be defined with reference to the constantly evolving practices that indicate the current system of norms by which that community has chosen to live. The Constitutional Court held that the customary law regarding the appointment of a traditional leader (hosi) had legitimately evolved to allow for the appointment of a woman as a traditional leader (hosi) and that this development was consistent with the Constitution. After finding that Philia Shilubana had been validly appointed the Constitutional Court upheld the appeal, thus confirming her appointment as a traditional leader (hosi) of her Valoyi community. Bear in mind that this was after this particular community (Valoyi community) had decided to adapt its laws consistently with the Constitution. Other communities will be judged according to their own contemporary practices. Own comment on customary law values and the Constitution The Constitutional Court prudently protecting their right to develop their culture. In doing so the court unfortunately destroyed the rule regulating the customary law of succession from one generation to another. The Constitutional Court ignored, according to customary law, lineage is important and position of successor must be held by someone capable of producing a future Nwamitwa heir. In appointing Philia, the court should not have left future succession hanging. S - The study-notes marketplace Downloaded by: veruschkamarx | Distribution of this document is illegal S - The study-notes marketplace It should have made it clear that it was doing so because of her status as a princess and add that in order to uphold lineage of the Nwamitwa royal line, after her death the position would revert to a qualifying Nwamitwa prince/princess. Therefore, the court did a good thing (promoting gender equality) and (not so good as it failed to promote culture). OTHER CASES Mabuza v Mbatha 2003 (7) BCLR 43 (C) Mabena v Letsoalo 1998 (2) SA 1068 (T) These two cases have set the precedent as to how the courts have negotiated the transition from the old order to the present. Mabuza demonstrates the transition from a society that defined customary marriage with reference to the elaborate ukumekeza tradition that was best suited to the previous rural set-up which is no longer necessary in the current urban conditions. Mabena is about how independent and adult youths have been empowered to negotiate their own customary marriages which mean that the involvement of their fathers is no longer essential for this negotiation purposes. As the law lived by communities in actual current social practice, living law was endorsed after the court looked at the current situation in the country. The Mabuza v Mbatha 2003 (7) BCLR 43 (C) and the Mabena v Letsoalo 1998 (2) SA 1068 (T) cases can also illustrate the extent of transformation in the law of marriage as well, especially the issue of validity. In the case of Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008) (unreported) the court held that even though the integration of the bride might not have been observed, but the spouses themselves showed by the way they related to each other that they accepted that they were husband and wife. Therefore, in a difficult case, even after the negotiations have been completed, the requirements of "entered into or celebrated" cannot be proved, the behaviour and/or conduct of the spouses towards each other becomes important. The Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC) is proof that customary law and common law are equal components of South African law. Therefore, the time when customary law was viewed with reference to common law, was over. The current status of customary law is that of an original and independent system that has its own values and norms. Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) is an authority for ascertaining the applicable customary law. This is established when by looking at the community's past practice, which is their customary law. Past practice continues to apply until it is clear that such practice has changed. Therefore, one must look at the current social practice to find the applicable customary law. It is also important to note that section 211(2) of the Constitution empowers communities to make and amend their laws. In Shilubana this was done by an amendment in which the community aligned their law with Constitution, making females equal to males for the purposes of appointment to traditional leadership positions. Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of Republic of South Africa 2005 (1) BCLR 580 (CC)) is authority for jettisoning the discredited apartheid rule entrenched in section 23 of the Black Administration Act (BAA), which preferred males to females in matters of succession. Resulting from section 23 of the BAA, the principle of male primogeniture, the distinction between legitimate and illegitimate children, were all declared unconstitutional and removed from customary law. The court went on to incorporate the provisions of the Intestate Succession Act, 81 of 1987, dealing with child portions. After making the necessary adjustments, all the children of the deceased, legitimate and illegitimate, together with all his widows/widowers must get child portions.