LCP4804 - Advanced Indigenous Law_lcp4804_exam_pack_2021.

LCP4804 - Advanced Indigenous Law_lcp4804_exam_pack_2021. QUESTION1 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. 3 Black Administration Act, 38 of 1927 Page 4 of 15 Judgement The Constitutional Court confirmed both judgments; declared the male primogeniture rule unconstitutional for violating the equality and the human dignity clauses of the Constitution Evaluation of extract from above case The “Rule” referred to in the extract relates to the rule of male primogeniture in terms of Succession and inheritance in African customary Law. The words were uttered in the context of the minority Judgement. Primogeniture The court noted that Central to the customary law of succession was the rule of primogeniture. The general rule is that only a male who is related to the deceased qualifies as intestate heir. Women do not participate in the intestate succession of deceased estates. In a monogamous Family, the eldest son of the family head is his heir. If the deceased is not survived by any male descendants, his father succeeds him. If his father also does not survive him, an heir is sought among the father’s male descendants related to him through the male line. This rule served to protect the family of the deceased as the successor also had the duty to look after the family and takeover the obligations of the deceased. The effect of changing circumstances on Primogeniture The court held that the way modern urban communities and families are structured and organised is now different and no longer purely along traditional lines. The customary law rules of succession simply determine succession to the deceased’s estate without the accompanying social implications which they traditionally had.4 Nuclear families have largely replaced traditional extended families. The heir does not necessarily live together with the whole extended family which would include the spouse of the deceased as well as other dependants and descendants. He often simply acquires the estate without assuming, or even being in a position to assume, any of the deceased’s responsibilities as previously envisaged.5 In the current modern setup the succession of the heir to the assets of the deceased does not necessarily correspond in practice with an enforceable responsibility to provide support and maintenance to the family and dependants of the deceased.6 4 Bhe v Magistrate Khayelisha BCLR (1) (CC)Para 80 5 Bhe v Magistrate Khayelisha BCLR (1) (CC)Para 80 6 Bhe v Magistrate Khayelisha BCLR (1) (CC)Para 80 Failure of Customary law to keep pace In Richtersveld,7 the Constitutional Court noted that “indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life. It has throughout history evolved and developed to meet the changing needs of the community.8 The court noted that the rules of succession in customary law have not been given the space to adapt and to keep pace with changing social conditions and values. One reason for this is the fact that they were captured in legislation, in text books, in the writings of experts and in court decisions without allowing for the dynamism of customary law in the face of changing circumstances. Instead, they have over time become increasingly out of step with the real values and circumstances of the societies they are meant to serve and particularly the people who live in urban areas.9 It is clear that the application of the customary law rules of succession in circumstances vastly different from their traditional setting causes much hardship.10 This can be seen in a situation when the successor uses the inheritance to his own benefit and evicts the surviving spouse and children from their Home. This is described in the report of the South African Law Reform Commission, 11 which cites three reasons for the plight in which African widows find themselves in the changed circumstances: (a) The fact that social conditions frequently do not make living with the heir a realistic or even a tolerable proposition; (b) The fact, frequently pointed out by the courts, that the African woman “does not have a right of ownership”; and (c) The prerequisite of a good working relationship with the heir for the effectiveness of the widow’s right to maintenance. In this regard, the report concludes that: “Unfortunately, circumstances do not favour this relationship. Widows are all too often kept on at the deceased’s homestead on sufferance or they are simply evicted. They then face the prospect of having to rear their children with no support from the deceased’s family.”12 7 Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC) 8 Bhe v Magistrate Khayelisha BCLR (1) (CC)Para 81 9 Bhe v Magistrate Khayelisha BCLR (1) (CC)Para 82 10 Bhe v Magistrate Khayelisha BCLR (1) (CC)Para 83 11 South African Law Reform Commission, The Harmonisation of the Common Law and the Indigenous Law: Succession in Customary Law, Issue Paper 12, Project 90 (April 1998) 6-9 12 The Harmonisation of the Common Law and the Indigenous Law page 9. Page 6 of 15 Due to the difficulties that the surviving family faces there is need to prioritise the surviving family unit than to push for the adherence of the primogeniture rule.13 The report of the Law Reform Commission makes the point that the rule of primogeniture is evolving to meet the needs of changing social patterns. It states that the order of succession is the theory and that in reality different rules may well be developing, such as the replacement of the eldest son with the youngest for purposes of inheritance, and the fact that widows often take over their husbands’ lands and other assets, especially when they have young children to raise.14 What needs to be emphasised is that, because of the dynamic nature of society, official customary law as it exists in the text books and in the Act is generally a poor reflection, if not a distortion of the true customary law. True customary law will be that which recognises and acknowledges the changes which continually take place.15 Conclusion The rule of primogeniture as understood in terms of living customary law is meant to assist the surviving family unit .In the current urban context if implemented as it was it would create great problems and suffering. Thus the court’s decision to determine that it was unconstitutional. Despite this declaration there is still room for it development in terms of living customary law to cater for the need of society. 13 Bhe v Magistrate Khayelisha BCLR (1) (CC) Para 84 14 Para 85 15 Para 86 QUESTION 2 2(a) Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC) Names of the parties: Alexkor v Richersveld Community Legal question: The Constitutional Court was asked whether the claim of indigenous people to their title on indigenous land endures and remains valid after the land had been placed under corporate ownership by a colonial statute; and whether indigenous law should continue being viewed through the lens of the common law. Reasons for judgment: Indigenous people retain their indigenous title over indigenous land and colonial legislation cannot extinguish that title. The rights of indigenous people over their land must be determined with reference to indigenous law and not by common law. Indigenous law is recognised by the Constitution as a distinct legal system which should be viewed with its own lens, not that of the common law. Decision of the court: The indigenous title of the Richersveld Community over their indigenous land was confirmed and the appeal by Alexkor was dismissed. How land restitution can be reclaimed The relevant provisions of the restitution Act are to be found in section 2(1) of the Restitution of Land Rights Act 22 of 1994.16 It provides that: “A person shall be entitled to restitution of a right in land if – . . . . (d) It is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and (e) The claim for such restitution is lodged not later than 31 December 1998.” Termination of rights by Annexation Alexkor and the government contend that any rights in the subject land which the Richtersveld Community might have held prior to the annexation of that land by the British Crown were terminated by reason of such annexation.17 16 Restitution of Land Rights Act 22 of 1994 17 Alexkor Ltd v Richtersveld Community 2003 (12) BCLR 1301 (CC) Para 10 Page 8 of 15 Dispossession of land rights by discrimination They contend further that, in any event, the dispossession of the subject land after 19 June 1913 was not the consequence of racially discriminatory laws or practices.18 “Right in land” means: “any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question;” “Racially discriminatory practices” means: “racially discriminatory practices, acts or omissions, direct or indirect, by – (a) any department of state or administration in the national, provincial or local sphere of government; (b) any other functionary or institution which exercised a public power or performed a public function in terms of any legislation.” Issues of common law vs African customary law had to be examined to determine if the land rights existed Nature and content of land Right [47] The Richtersveld Community contended that, as at 19 June 1913, it possessed (a) a right of ownership; (b) the right to exclusive beneficial occupation and use; or (c) the right to use the subject land for certain specified purposes, including exploitation of natural resources. The Community contended that it possessed these rights under indigenous law and, after annexation, under the common law of the Cape Colon19 or international which protected the rights acquired under indigenous law. In the alternative, it was contended that the rights which the Community held in the subject land under its own indigenous law constituted a customary law interest in. The court held that the nature and the content of the rights that the Richtersveld Community held in the subject land prior to annexation must be determined by reference to indigenous law. That is the law which governed its land rights. Those rights cannot be determined by reference to common law.