LCP4804 EXAM PACK 2021

LCP4804 EXAM PACK 2021. 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. [35] QUESTION 3 Write critical comments on each of the following judgments (excluding details on facts) with reference to the pressing transformation and women’s empowerment agenda in customary law: (a) Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) (10) (b) Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC) (15) (c) Mabena v Letsoalo 1998 (2) SA 1068 (T) (10) [35] TOTAL: {100} © UNISA 2020 This study source was downloaded by from CourseH on :50:05 GMT -05:00 S - The study-notes marketplace S - The study-notes marketplace Downloaded by: Rufaro | Distribution of this document is illegal SEMETER 02 YEAR 2020 MODULE LCP 4804 QUESTION 1 Question 1(a) Names of the parties involved in Extract: Maluleke v Minister of Home Affairs and Radebe Facts The validity of a customary marriage was disputed on the basis that the traditional imvume ritual, for integrating the bride into the groom’s family, had not been observed before the death of the husband. The Grooms mother and the Children from previous marriage thus challenged the validity of the registered marriage. The deceased and Radebe had been conducting a love relationship, which lead to lobola negotiations between their respective families. The first amount of the agreed lobola was paid in December 2000. A further amount was paid on 30 June 2001, on this day the lobola negotiations were finalised and the families agreed that an “imvume” would be held in October 2001. The deceased passed away on 16 September 2001, before the imvume was held. On 21 September 2001, after the death of the deceased, a marriage certificate was issued indicating that the decease and Radebe were married to each other on 30 June 2001, the date on which the last payment of lobola was made. The marriage certificate was issued as a consequence of an application lodged after the deceased’s death by Radebe. The deceased family and children from a previous marriage disputed the existence of the marriage as the imvume was never held Legal Question Validity of customary Law marriage in context of section 3(1)(b) Ratio decidendi The court examined the requirements for a valid customary marriage as laid down in section 3 of the Recognition of Customary Marriages Act. What had to be determined was whether the issue of “entered into or “celebrated” occurred in line with customary law. Based on the requirements, the court concluded that customary marriage has evolved over the years, and that this evolution has been accepted by the South African courts. Page 2 of 15 The court rejected the pre-transformation “official” version of customary law which held that the non-observance of the Imvume ritual was fatal to the validity of a customary marriage. The judge accordingly approved the validity of the customary marriage, confirming the bride’s position that the imvume practice was not an essential requirement for the validity of her customary marriage. Courts decision The Court accordingly approved the validity of the customary marriage, confirming the bride’s position that the imvume practice was not an essential requirement for the validity of her customary marriage. Evaluation of extract from above case In terms of Section 3 (1) (b) of the Recognition of Customary Marriages Act, 1 the marriage must be negotiated and entered into or celebrated in accordance with customary law. Customary law being “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form port of the culture of those peoples.”2 Living customary law was endorsed as current social and cultural practices prevailing over previous practices. This development was done without assistance of western common law. Given that this case was heard in the context of a constitutional democracy .The relevant values in bill of rights had to be given due consideration .This living customary law was to support the Constitutional values of Dignity Freedom and Equality in terms of the endorsement of current practices. Current practices as considered by the Court Due to the new urban setup, the context of celebrated is not always possible and thus the court needs to examine other ways to show that a marriage existed. In this case the now deceased and his wife stayed together as Husband and Wife. Effect to which statement was addressed by the court The court integrated new practices as indications that a marriage was entered into. Celebration alone cannot be seen as the only sign that a marriage was entered into. As with any contract, the entered into aspect can be tacit or implied. 1 Recognition of Customary Marriages Act, 120 of 1998 2 Recognition of Customary Marriages Act, 120 of 1998 , Section 1 In its analysis and consideration of living customary Law the court allowed for the exploration of how the existence of the marriage could be explored and improved in an evolving environment. The courts approach advocate the use of living customary law versus static “official” codified customary Law. Question 1(b) Names of the parties involved in Extract : Bhe v Magistrate Khayelitsha Facts The Bhe case came as one of three cases relating to a constitutional challenge to the rule of male primogeniture as it applies in the African customary law of succession, as well as constitutional challenges to section 23 of the Black Administration Act,3 , regulations promulgated in terms of that section and section 1(4)(b) of the Intestate Succession Act, 81 of 1987. The application in the Bhe case was made on behalf of the two minor daughters of Ms Nontupheko Bhe and her deceased partner. It was contended that the statutory provisions in relation to section 23 of the Black Administration Act, regulations promulgated in terms of that section and section 1(4)(b) of the Intestate Succession Act, 81 of 1987 and the customary law rule of male primogeniture unfairly discriminated against the two children in that they prevented the children from inheriting the deceased estate of their late father. Legal question: The Constitutional court was asked to confirm a Western Cape High Court (Bhe) decision together with a North Gauteng High Court (Shibi) 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 declared the male primogeniture rule unconstitutional for violating the equality and the human dignity clauses of the Constitution; It set aside section 23 of the Black Administration Act 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