LCP4804 PORTFOLIO EXAM MEMO 2021/2022

LCP4804 PORTFOLIO EXAM MEMO 2021/2022.Critically discuss the differences between living customary law and official customary law. [30] Official Customary Law In general, the official customary law reflects state interests and is part of state law. The official version of customary law is found in statutes, law reports, the South African Law Reform Commission reports, text books, university lectures and other public documents. According to Ndima, the official version of customary law depends on alien values for validity. Mogoro J, in Du Plessis v De Klerk 1 , points out that customary law "has lamentably been marginalised and allowed to degenerate into a vitrified set of norms alienated from its roots in the community". Costa puts it thus:Customary law as it stands is corrupted, inauthentic and lacking authority. It is a foreign imposition, a stranger in Africa.2 In Fosi v Road Accident Fund,3 the court put it as follows: Indigenous African customary law has occupied an unfortunate position in the legal history of our country. The fact is that it was hardly recognized by the law-makers and was accordingly scarcely applied in the South African courts. It enjoyed the status of being known that it existed and its continued existence was merely tolerated as a necessary evil. In Sigcau v Sigcau, 4 the Appellate Division held that the individual person was the owner of the royal family home and not merely the controller of the property. Ndima5 puts it thus: MEMO CONTINUES ON THE NEXT PAGE……️⬇️⬇️⬇️ 1Van Niekerk 2001 CILSA 480. 2 Costa 1998 SAJHR 525, 534. 3 Fosi v Road Accident Fund 2008 3 SA 560 (CPD) 567. 4 Sigcau v Sigcau 1944 AD 67 79. 5 Ndima 2007 Speculum Juris 83-84. However, the learned Chief Justice refused to vacate his common law comfort zone, although he was dealing with an African customary law problem. He continued to use the same institution, which his experience of common law made him use, to describe the rights of the defendant, in an African matter. By doing this he unwittingly committed an unforgivable comparative law mistake, namely, looking at foreign law (African customary law) with the eyes of his own system (common law). Living Customary Law Living customary law is the "law actually observed by African communities". 6 It is the unwritten law that is passed on from generation to generation and is part of the culture and tradition of the community. 7 It evolves as the circumstances of society change. 8 However, a change of legislation, in particular, and written law, in general, often if not always requires legislative intervention. Ndima9 puts it as follows: When it comes to the pervasive problem of developing African customary law, the judiciary faces the additional challenge of determining the living version of customary law for the community concerned. One of the injustices of the past, which our constitutional interpreters must reject in striving to heal our historical divisions, is the distortion caused to African law by the application of the interpretive technique of repugnancy. This method removed the philosophical underpinnings (which the colonial officials perceived to be in conflict with Western morality) from African customary law. The development of the law is not only a catholic but is also an age-old world- wide phenomenon. For instance, according to Hahlo,10 western European marriage law developed in three stages. During the first stage, marriage was a private matter between spouses and their families. During the second stage, marriage was under the jurisdiction of the church. During the last stage, marriage passed under the control of the state. The court, in Rolfes, Nebel and Co v Zweigenhaft,11 said: 6 Mabena v Letsoalo 1998 2 SA 1068 (T) 1074. 7 Du Plessis Introduction to Law 67. 8 Koyana Customary Law 157. 9 Ndima 2007 Speculum Juris 81-82. 10 Hahlo Law of Husband and Wife 1. 11 Rolfes, Nebel and Co v Zweigenhaft 1903 TS 185 206. This court would be loath to upset a [contemporary] practice that had become a general custom of South Africa, even if it were somewhat different from the Roman-Dutch [legal] practice. In the case under discussion, 12 a principle of Roman-Dutch law in question had fallen into disuse and an indigenous "customary" legal principle had come into effect. The court accepted that the law had developed and that the established contemporary legal custom overrode the Roman-Dutch legal practice which had fallen into disuse. The legal development was not legislated but had evolved in response to the changing circumstances of society. In Henderson v Hanekom,13 Sir Henry de Villiers CJ put it thus: There must, in the ordinary course, be progressive development of the law keeping pace with modern requirements. In MM v MN and Another,14 the Constitutional Court said: Paradoxically, the strength of customary law – its adaptive inherent flexibility – is also potentially difficult when it comes to its application and enforcement in a court of law.15 The Constitution imposes a duty upon a competent court to develop customary law consistent with its provisions.16 "It follows implicitly that, wherever common law or customary law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing the deviation."17 In other words, the courts in carrying out their section 39(2) developmental function must have regard to the spirit, purport and objects of the Bill of Rights. Section 39(2) provides:18 When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. Customary law, essentially the customs of indigenous communities, is also subject to change and may be developed by the court and the legislature. In a minority judgment 12 Rolfes, Nebel and Co v Zweigenhaft 1903 TS 185 206. 13 Henderson v Hanekom 1903 20 SC 513 519. Hereafter the Henderson case. 14 MM v MN and Another 2013 4 SA 415 (CC) para 25. 15 S 39(2) of the Constitution. 16 S 39(2) of the Constitution. 17 Carmichele v Minister of Safety and Security 2001 10 BCLR 995 (CC). 18 S 39(2) of the Constitution. Ngcobo J, in Bhe, pointed out that there are two instances in which customary law should be developed. Mabena v Letsoalo19 is a typical "daughter-in-law" and "parents-in-law" dispute. The respondent and her husband married in accordance with the rules of the living customary law of marriage. Traditionally, such a marriage required the consent of both family groups in addition to those of the bridegroom and bride. On both sides, family heads would represent their respective family groups. Over the years, as the living customary law evolved in response to the "changing circumstances" of the traditional communities, the consent of the fathers of the bridegroom and bride was substituted for that of the family groups as represented by family heads. In the matter under discussion, the fathers of both the bridegroom and bride did not give their consent. On the one hand, the father of the bridegroom refused to give his consent and, on the other, the father of the bride had deserted their family. Her mother was "the family head". Living customary law accepts the family headship of women. The court held that the mother could give consent to the customary marriage and receive magadi in respect of the customary marriage of her daughter. In 2004, Ngwenya J, in Bhe and Others v The Magistrate Khayelitsha, 20 declared the provisions of the BAA regarding the principle of male primogeniture unconstitutional and invalid. In Shibi v Sithole and Others, 21 Maluleke J held that intestate succession rules that discriminate on the grounds of sex or gender were unconstitutional and invalid. The decisions in both Bhe and Others v The Magistrate Khayelitsha 22 and Shibi v Sithole and Others23 were confirmed by the Constitutional Court in Bhe.24 The facts of Bhe and Other v Magistrate, Khayelitsha, 25 are as follows. Ms Nontupheko Maretha Bhe cohabited with one Vuyo Elius Mgolombane. They were poor and lived in a temporary informal shelter in Khayelitsha, Cape Town. He was a carpenter and she was a domestic worker. The liaison produced two daughters, namely Nonkululeko Bhe, born in 1994, and Anelisa Bhe, born in 2001. Vuyo obtained a state housing subsidy to build a family house on the site. Unfortunately, he died intestate in October 2002 before he could build the house. The magistrate of Khayelitsha appointed Vuyo's father, Maboyisi Nelson 19 Mabena v Letsoalo 1998 2 SA 1068 (T). 20 Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (C). 21 Shibi v Sithole Case No 7292/01 (TPD) November 2003 (unreported). 22 Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (C). 23 Shibi v Sithole Case No 7292/01 (TPD) November 2003 (unreported). 24 Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (C). 25 Bhe v Magistrate, Khayelitsha 2004 2 SA 544 (C). Mgolombane, as the representative of the deceased's estate in terms of the official version of the indigenous customary law. Nontupheko and her two daughters were excluded by operation of the law from being appointed as the representatives of the intestate estate of Vuyo Mgolombane on the grounds that they were women and, therefore, perpetual minors in terms of the indigenous customary law. The relationship between Mr Mgolombane, the deceased's father, and Nontupheko broke down. Mgolombane intended to sell the residential property and building material to defray the funeral expenses of the deceased, Vuyo. The applicants challenged the appointment of Mgolombane as heir and representative of the estate. The interpretation of the magistrate was, to all intents and purposes, ex facie the BAA and its accompanying regulations correct. However, the magistrate disregarded the fact that the relevant provisions of the BAA and its regulations were inconsistent with the Constitution, in particular section 9 in the Bill of Rights. The Constitutional Court had to determine whether such an apparent inconsistency and, therefore, contravention of section 9 were unconstitutional and invalid.