IND2601 EXAM QUESTIONS 2022- African Customary Law

IND2601 EXAM QUESTIONS 2022- African Customary Law. In a traditional court, evidence is not given under oath. Therefore, perjury (willfully giving false evidence under oath) is unknown. No action is taken against a party or a witness who tells lies; if they do tell lies, it will merely harm their case. _________________________________________________________________________ A traditional leader is empowered to punish anyone? 5x Limitations pertaining to Race: ▫ In offences where: » any of the accused or victims are not blacks, or where » the property involved does not belong to a black person… such offences may not be tried by a traditional leader. However…. ▫ A traditional leader is, however, empowered to punish any person, including a nonblack, for contempt of his court in facie curiae (in the face of the court): see Makapan v Khope 1923 AD 551; R v Vass 1945 GWPD 34; against Prinsloo & Myburgh 248. _________________________________________________________________________ In African customary law there are certain crimes that can defile (pollute) the community? Discuss briefly. (5) Crimes that defile the community… 2 ▫ In African customary law infringement of communal interests sometimes takes the form of defilement (pollution) of the community. ▫ Examples of polluting crimes are ‘offences of the blood’ eg: assault and homicide. • It is also believed that infanticide & abortion generate a ritual heat that keeps away the rain. • Incest – and in some communities contempt of the ruler as well - is considered defiling. The Effect & Consequence of defilement or pollution of the community: ▫ In such cases - not only is punishment imposed, but a meal of lustration (purification) and conciliation is ordered as well. ▫ The cattle paid as a fine are generally slaughtered at the court. » All those present, and particularly the members of the court council and the persons involved in the act of defilement, must join in the meal. » In this way the offenders are visibly (in a concrete manner) reconciled with the community. _________________________________________________________________________ Indigenous law is an expression of community values. 3x True.  African customary law gives expression to the values of the community.  In many instances, these values are based on conceptions of the supernatural world. _________________________________________________________________________ 3 The family head's control over house property does not give him the authority to allocate marriage goods for daughters in one house to another house. 2x ▫ House property is controlled by the head of the house, namely the husband. In most cases, the husband is the head of various houses at the same time. ▫ In his disposal of house property he is morally, but not legally, obliged to consult the wife of the house and the house successor, if this person is already an adult. ▫ The wife has a reasonable degree of control over house property as far as daily household affairs are concerned. She decides, for instance, on what groceries to buy and is not expected to consult her husband about this. ▫ When property from one house is used to the benefit of another house, a debt relationship is created between the houses concerned. ▫ Such a debt has to be repaid at some time, although no action for repayment can be instituted in an indigenous court. The principle involved here is the one we referred to earlier on: “an agnatic group cannot be divided against itself”. _________________________________________________________________________ Status determines the powers derived from objective law. Rank is just one factor that may influence a persons’ status. 2x (2) Distinguish between ‘status’ and ‘rank’ in customary law. (5) ‘Status’ - refers to a person’s legal position in general, while ‘Rank’ - is only one factor influencing status. In indigenous customary law, a distinction must be drawn between status and rank. Status - determines the powers derived from objective law. 4 In original indigenous law  the individual shared his or her rights with the other members of the agnatic group which depended on his or her status within the group.  status was influenced by factors such as family rank, house rank, age, sex and marital status.  the principle of shared rights meant that there was no question of absolute majority or minority.  the idea of a fixed age at which a person attained majority was unknown.  The higher a person’s status, the more powers he or she obtained, but never where he or she could act independently from the agnatic group. In modern indigenous law  a person’s status is influenced strongly by the specific age (18) at which majority is attained, as prescribed in s 17 of the Children’s Act 38 of 2005. Rank:  Rank is 1 factor which may influence person’s status & plays a significant role in customary law.  Thus, the wives of a polygamist (a man with two or more wives) each have a particular rank, as does each of their houses.  At times this rank is also affected by the specific division in the house-hold.  The members of the agnatic group also have a particular rank, i.t.o their order of seniority in the group. _________________________________________________________________________ 5 The ilobolo contract is an example of a real contract. True, lobolo is probably the most important contract in customary law. This contract can be described as an agreement between the parties concerned, by which one party undertakes to deliver a certain female person as a bride for a certain male person in return for the delivery of cattle or other property. The following are the most important requirements for the lobolo contract: (i) Consent of the father or guardian of the bride to be (ii) Consent of the bride (iii) Consent of the bridegroom (iv) Transfer of the bride (v) Transfer of the lobolo _________________________________________________________________________ In original indigenous law, ownership of land was not subject to any limitations. True, originally the only real right known to customary law was ownership, which is the most comprehensive real right which can be acquired over material things.  All other categories of real rights are limited. _________________________________________________________________________ 6 African Customary Law Q&A 2009 to 2014 Exams Setwork 2: Marriage & Betrothal Identify the absolute legal requirements for a traditional indigenous marriage ? ▫ The man and the woman concerned must not be related within the prohibited degrees of kinship. ▫ There must be consensus between the two family groups i.r.o the following: » the two individuals to be united in marriage » the marriage goods which must be delivered ▫ The bride must be transferred by her family group to the man’s family group. ▫ The woman may not be already involved in a marital union. ▫ Polygynous nature of indigenous marriages, men may be already married to another _________________________________________________________________________ Traditional customary (indigenous) marriage:  Kinship: The man and woman concerned must not be related to one another within the prohibited degrees of kinship;  Consensus: There must be consensus of the two family groups concerned on the two individuals to be united in marriage and the marriage goods which must be delivered;  Transfer: There must be transfer of the bride by her family to the man’s family group - or –  Woman – no other marital union: In case of woman there is a further requirement that she is not already involved in a marital union. 7 Customary Union The legal requirements for a Customary Union is that they are not uniform for all the areas in RSA the position in KZN differs from that in the rest of South Africa Outside KZN requirements are the following: * Consent of the bride’s father or guardian; * Consent of the groom - or – his father if minor); * An agreement that lobolo will be delivered; * There must be consent of the bride; * Payment of (or delivery) of marriage goods; * Transfer of the bride * Handing over of the bride to the groom or the groom’s family. * Non-existence of common-law civil marriage Requirements of customary union in KZN:  The consent of bride’s father or guardian is required if she is still a minor, which consent not be necessarily withheld;  Consent of the groom’s father or father head, if the groom is still a minor  Public declaration by the bride to the official witness that the union takes place with her consent. _________________________________________________________________________ Customary Marriage  The prospective spouses must both be above the age of 18;  They must both consent to be married to each other under customary law; 8  Marriage must be entered into and celebrated in terms of customary law;  Prospective spouses must not be related to one another within the prohibited degrees of kinship; _________________________________________________________________________ Similarities:  The man and woman must concerned must not be related to one another within the prohibited degrees of kinship; This requirement applies to the Traditional customary (indigenous) marriage and Customary Marriage;  There must be consensus of the two family groups concerned on the two individuals to be united in marriage and that of the two individuals and the marriage goods which must be delivered requirement is applicable in Customary Union and Traditional customary (indigenous) marriage;  The must be transfer of the bride by her family to the man’s family group, requirement is applicable in Customary Union (both in and outside KZN) and Traditional customary (indigenous) marriage  In case of woman there is a further requirement that she is not already involved in a marital union in a Traditional customary (indigenous) marriage,  Non-existence of common-law(civil) marriage in Customary Union (outside KZN);  There must be consent of:  the bride’s father or guardian,  the bride,  the groom 9 Customary Union (both in and outside KZN)  the grooms father in certain circumstances(where groom is a minor) in and outside KZN Differences:  Public declaration by the bride to the official witness that the union takes place with her consent customary union in KZN  The prospective spouses must both be above the age of 18;  They must both consent to be married to each other under customary law;  Marriage must be entered into and celebrated in terms of customary law; _________________________________________________________________________ Discuss the indigenous prescriptions regarding competence to enter into a traditional indigenous marriage? (8) The competence to enter into a traditional marriage: The powers of the spouses Age:  There were no fixed age requirements