LCP4804 - Advanced Indigenous Law PORTFOLIO EXAM MEMO 2021/2022.

LCP4804 - Advanced Indigenous Law PORTFOLIO EXAM MEMO 2021/2022. QUESTION 1 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. In the second case, Shibi v Sithole, Daniel Solomon Sithole died intestate in Pretoria in 1995. He was neither married nor a partner to a customary union. He was not survived by descendants or ascendants. He was survived only by his sister, Ms Charlotte Shibi. His nearest male blood relations were his two cousins, namely Mantabeni Sithole and Jerry Sithole. In terms of the indigenous customary-law rule of male primogeniture, section 23 of the Black Administration Act, read together with its regulations as well as the Intestate Succession Act, Ms Shibi was disqualified as an heir of her uterine brother's intestate estate. Her cousins were the only competent heirs. This position was confirmed in Mthembu v Letsela. The Bhe case followed the Mthembu case and appointed the cousins, one after the other. Ms Shibi challenged the decision of the magistrate. Conclusion Customary law has two versions, namely the official customary law and the living customary law. The official version is customary law that is found in statutes, textbooks, publications and other scholarly writings. It leans towards common law and is not in keeping with the changing or changed circumstances of society. On the other hand, the living version is the lived law. It reflects the actual goings-on in society and changes commensurate with the changing circumstances of society. Since the advent of constitutional democracy, the living version has been growing in prominence. 26 However, the living version is not in a better condition, either. The courts have recourse to it subject to the Constitution. The court, 26 Mabena v Letsoalo 1998 2 SA 1068 (T) tribunal or forum may develop customary law consistent with the Constitution. 27 The most cardinal distinction between the two versions is the dynamic nature of living customary law as against the vitrified nature of the official version of customary law.28 QUESTION 2 The Recognition of Customary Marriages Act (RCMA) 120 of 1998 which came into operation on 15 November 2000 brought significant changes to how customary marriages are recognised. Critically discuss the legal requirements for concluding a valid customary marriage before and after 15 November 2000. [20] In the past, African women in KwaZulu-Natal did not have the right to own property or perform any legal actions without the assistance of a male guardian. According to the law, these women had the legal status of children, no matter how old they were. The hardship of women was made worse by marriage laws that put women under the power of their husbands and made husbands the sole owners and controllers of property in the marriage. Since the transition to democracy in South Africa, the new Constitution and Bill of Rights requires equality between men and women and between people of all races in South Africa. This means that discriminatory laws are unconstitutional – in other words, against the law. It is for this reason that a new law on customary marriages was passed by Parliament. The new law attempts to recognise custom and also protect the rights of women. The Recognition of Customary Marriages Act 120 of 1998 29 is a law of Parliament that came into force on 15 November 2000. This law tries to correct the past discrimination against African women by officially recognising all African customary marriages in South Africa. It gives women in customary law marriages the same 27 S 39(3) of the Constitution. 28 Du Plessis v De Klerk 1996 5 BCLR 658 (CC) 29 Recognition of Customary Marriages Act 120 of 1998. status and protection as women in civil law marriages. The Act also introduces equality between husband and wife into the marriage relationship. Both monogamous and polygynous customary marriages are recognised as legal under the Act.30 A customary marriage is a marriage that is entered into according to the customs and traditions of indigenous African people in South Africa. Marriages before 15 November 2000 The Act 31 gives recognition to marriages that were concluded before the Act was promulgated. All customary marriages concluded were recognised, including polygamous marriages and every ‘wife’ was given the status of a ‘spouse’. Section 7(1)32 of the Act indicates that the proprietary consequences of a customary marriage entered into before the commencement of the Act would continue to be governed by customary law, and s 7(2) 33 provides that a monogamous marriage entered into after the commencement of the Act will be classified as a marriage in community of property and the parties to the marriage will have the option to have their marriage governed by an antenuptial contract. The Gumede case34 , a Constitutional Court judgment, dealt with monogamous customary marriages. It was decided in this case that with regards to the proprietary consequences relating thereto, all monogamous customary marriages are in community of property, irrespective of when the marriage was entered into (i.e. before or after the coming into operation of the RCMA), unless the parties have entered into and registered an antenuptial contract before the date of marriage. Therefore, Section 7(1) of the RCMA was declared inconsistent with the Constitution and unconstitutional insofar as it stated that a customary marriage entered into before 15 November 2000 was governed by customary law. 30Recognition of Customary Marriages Act 120 of 1998. 31 Recognition of Customary Marriages Act 120 of 1998. 32 Recognition of Customary Marriages Act 120 of 1998. 33 Recognition of Customary Marriages Act 120 of 1998. 34 Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC) The Gumede case however, did not address the question of polygamous customary marriages. The Constitutional Court therefore addressed polygamous customary marriages in the Ramuhovhi case (Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41). In this case the Court confirmed the declaration of constitutional invalidity of section 7(1) of the RCMA. This therefore means that the provision that customary marriages are governed by customary law has been declared unconstitutional regardless whether the customary marriage is monogamous or polygamous. The Constitutional Court has however suspended the declaration of constitutional invalidity of section 7(1) of the RCMA in the Ramuhovhi case for a period of 24 months, in order to give Parliament time to address the defect in the law. During this suspension period, the Court has put in place an interim regime which provides that wives and husbands in a polygamous customary marriage will have joint and equal ownership, and joint and equal rights of management and control over marital property. When this legislation was enforced, a window period was implemented to allow everyone who entered into a customary union – monogamously or polygamously – to have their marriages registered in terms of the Act. The window period spanned a period of ten years and ended on 31 December 2010. Any attempt to have a customary marriage recognised after this date would have to be accompanied by an application for the condonation of the late filing from the High Court of South Africa. While the recognition of marriages was given by the Act, implementation on certain events, such as death, maintenance and property rights were impossible as existing legislation had not been amended. If the customary marriage was entered into before 15 November 2000, then it is valid if it meets the customary law requirements for a valid marriage. The law recognises that these requirements vary in different parts of South Africa.