LCP4804 - Advanced Indigenous Law_activties_feedback_2020.

LCP4804 - Advanced Indigenous Law_activties_feedback_2020.ADVANCED INDIGENOUS AFRICAN LAW – LCP4804 STUDY UNIT ACTIVITIES & FEEDBACK STUDY UNIT ONE 1 3. According to your interpretation of the above extract from the judgment of Schreiner JA, what used to be the relationship between customary law and common law in the South African legal system? Schreiner JA interpreted section 11(1) of the Black Administration Act (BAA), which reads: it shall be in the discretion of the Commissioners’ Courts in all suits or proceedings between Blacks involving questions of customs followed by Blacks, to decide such questions according to the Black law applying to such customs except in so far [as] it shall have been repealed or modified: provided that such Black law shall not be opposed to the principles of public policy or natural justice ... Hence, the judge insists that the president of the Appeal Court for Commissioners’ Courts was given the discretion to apply customary law in proper cases that called for such special treatment; otherwise he was mandated to apply the common law to cases involving Africans. This means that the BAA did not give customary law the status of a law to be applied in cases between Africans. Instead, it gave the Commissioners’ Courts the discretion to apply customary law only in special cases where the interests of justice called for it. Therefore, the president of the Appeal Court for Commissioners’ Courts erred in holding that such courts were mandated to apply primarily customary law instead of common law, which was the law of the land. 4. Study the extract from Ngcobo J’s judgment in the Bhe case and write a reasoned opinion as to who caused black people’s poverty in South Africa and how they did it. (in study guide – pg 4) As the extract makes it clear, the union government promulgated the BAA as a tool to establish a separate administration for blacks and to create instruments to ensure the systematic impoverishment of black people. It established the office of the Governor- General as the “supreme chief of all Africans” in the country and gave him absolute power to drive them off their land without compensation and to resettle them on unproductive and barren land. This administration created false geographical divisions called “white areas” from which black people were forcibly removed. This colossal social experiment called segregation had the desired results: it caused untold suffering for the back people and impoverished them. 5. What is the importance of the transitional period in South African history? Downloaded by Litshani Tshuma () lOMoARcPSD| For the first time in more than 350 years, South Africans experienced the participation of all races in public affairs when formerly imprisoned and exiled leaders met with former apartheid leaders to map out the path to a new South Africa. When the interim Constitution took effect on 27 April 1994, customary law ceased to be a sub-system of common law and once again was applied according to its value system. Like any other law, was subject to only the Constitution. 6. How does one distinguish between apartheid customary law and its democratic counterpart? Apartheid customary law is described by Schreigner JA in in Ex parte: Minister of Native Affairs – In re Yako v Beyi 1948 (1) 388 (A). See Feedback 1.3 above where the customary law of the democratic South Africa is described by the Constitutional Court in Alexkor v The Richtersveld Community & Others 2004(5) SA 460 (CC) paragraphs 50–53. See learning unit 2, lecture 2 below. STUDY UNIT TWO 1. What does the definition in section 1 of the Recognition of Customary Marriages Act, Act 120 of 1998, mean? “Customary law means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people.” It means that the customary law of a community is its living law in the sense that it must “form part of the culture of those people”. As the culture of the Tsonga people differ from that of the Tswana people, so do their customary laws. This has an impact on the application of the doctrine of judicial precedent in customary law. For example, the decision in Mayelane v Ngwenyama and another 2013 (8) BCLR 918 (CC), which is based on the Xitsonga custom that requires the consent of the main wife before her husband can contract a further marriage. The consent of the main wife “form(s) part of the culture of those people”. It does not necessarily “form part of the culture of the Tswana, Zulu, Sotho, Xhosa or Khoisan people”. But even if none of the latter cultures endow the main wife with the right to consent to her husband’s contracting a further marriage, in terms of the equality and dignity clauses of the Constitution as expounded in the Mayelane principle, in future no husband will be able to contract another marriage without the consent of the main wife. Because of the Mayelane judgment, the consent requirement is now part of customary law jurisprudence in South Africa as a whole. Downloaded by Litshani Tshuma () lOMoARcPSD| 2. Write a critical evaluation of the manner in which the constitutionally envisioned customary law of the 21st century is realised in Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC). The judge in the case of Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC) gave a landmark definition of the customary law of the 21st century when he unequivocally stated the jurisprudential equality of customary law and common law. He finally jettisoned the repugnancy clause by decrying the previous practice of viewing the former through the lens of the latter. Henceforth customary law must be conceptualised according to its own normative values and epistemological underpinnings, unlike the previous practice of evaluating it against Western standards of propriety by avoiding repugnancy to so-called “public policy and natural justice”, which is a euphemism for Western moral standards. The present position was explicitly laid down by Hlope JP in Mabuza v Mbatha 2003 (7) BC LR 743 (C) par 32: In conclusion, the test is not, in my view, whether or not African Customary Law is repugnant to the principles of public policy or natural justice in any given case ... The former approach which only recognises African law to the extent that it is not repugnant to the principles of public policy or natural justice is flawed. It is unconstitutional