LCP4804 - EXAM PREP QUESTIONS AND ANSWERS WITH
COMPLETE SOLUTIONS
Nwamita v Shilubana
Development of customer law of Succession
Philia not appointed traditional leader in 1968 when father died.
Due to laws of unfair discrimination.
Fathers brother Richard appointed.
Died 2001 - Valoyi Traditional Authority : appoint Philia on constitutional provision of
gender equality.
Amended past practice - eldest son successor.
Sidwell (son) dispute appointment relying on past practices.
HC and SCA decided in favor of Sidwell I.t.o. community past practices.
SHILUBANA v NWAMITWA
Appeal to CC
Unanimous judgment - Ms Shilubana appointed legitimately.
Emphasized customary law living system of law.
Not bound by historical precedents.
,Flexibility allowed to evolve as community changes.
CC deviated from past decisions.
Redefine customary law as system that reflect current practices of community.
Customary law regarding appointment of traditional leader legitimately evolved to allow
appointment of woman.
Consistent with Constitution.
cC upheld appeal.
Particular community adapted laws.
Other communities judged according to own practices.
Development of living customary law under Constitution
MABUZA v MBATHA
MABENA v LETSOALO
Courts negotiated transition from old order to present.
MABUZA transition from society defined customary marriage with reference to elaborate
ukumekeza best suited to rural setup and no longer required in current urban
conditions.
MABENA independent and adult youths empowered to negotiate own customary
marriages and involvement of fathers no longer essential.
Also illustrate extent of transformation in law of marriage especially issue of validity.
MALULEKE integration of bride not observed spouses themselves showed they related
, to each other that they accepted they were husband and wife.
In difficult cases where entered into or celebrated cannot be proved, behavior of
spouses becomes important.
ALEXKOR v RICHTERSVELD COMMUNITY
Customary law and common law equal components of SA law.
Current status of customary law that of an original and independent system with own
values and norms.
SHILUBANA v NWAMITWA authority for ascertaining applicable customary law.
Past practice applies until it is clear that such practice is changed.
Look at current social practice to find applicable customary law.
S 211(2) of Constitution empowers communities to make and amend laws.
Shilubana done by amendment aligning law with Constitution- females equal to males -
traditional leadership positions.
BHE v MAGISTRATE KHAYELITSA
SHIBI v SITHOLE
HR COMMISSION v PRESIDENT of SA
Aiuthority for jettisoning discredited apartheid rule in S23 BAA preferring males to
females in matters of succession.
S23 BAA , male primogeniture, legitimate VS illegitimate children all declared
unconstitutional and removed from customary law.
COMPLETE SOLUTIONS
Nwamita v Shilubana
Development of customer law of Succession
Philia not appointed traditional leader in 1968 when father died.
Due to laws of unfair discrimination.
Fathers brother Richard appointed.
Died 2001 - Valoyi Traditional Authority : appoint Philia on constitutional provision of
gender equality.
Amended past practice - eldest son successor.
Sidwell (son) dispute appointment relying on past practices.
HC and SCA decided in favor of Sidwell I.t.o. community past practices.
SHILUBANA v NWAMITWA
Appeal to CC
Unanimous judgment - Ms Shilubana appointed legitimately.
Emphasized customary law living system of law.
Not bound by historical precedents.
,Flexibility allowed to evolve as community changes.
CC deviated from past decisions.
Redefine customary law as system that reflect current practices of community.
Customary law regarding appointment of traditional leader legitimately evolved to allow
appointment of woman.
Consistent with Constitution.
cC upheld appeal.
Particular community adapted laws.
Other communities judged according to own practices.
Development of living customary law under Constitution
MABUZA v MBATHA
MABENA v LETSOALO
Courts negotiated transition from old order to present.
MABUZA transition from society defined customary marriage with reference to elaborate
ukumekeza best suited to rural setup and no longer required in current urban
conditions.
MABENA independent and adult youths empowered to negotiate own customary
marriages and involvement of fathers no longer essential.
Also illustrate extent of transformation in law of marriage especially issue of validity.
MALULEKE integration of bride not observed spouses themselves showed they related
, to each other that they accepted they were husband and wife.
In difficult cases where entered into or celebrated cannot be proved, behavior of
spouses becomes important.
ALEXKOR v RICHTERSVELD COMMUNITY
Customary law and common law equal components of SA law.
Current status of customary law that of an original and independent system with own
values and norms.
SHILUBANA v NWAMITWA authority for ascertaining applicable customary law.
Past practice applies until it is clear that such practice is changed.
Look at current social practice to find applicable customary law.
S 211(2) of Constitution empowers communities to make and amend laws.
Shilubana done by amendment aligning law with Constitution- females equal to males -
traditional leadership positions.
BHE v MAGISTRATE KHAYELITSA
SHIBI v SITHOLE
HR COMMISSION v PRESIDENT of SA
Aiuthority for jettisoning discredited apartheid rule in S23 BAA preferring males to
females in matters of succession.
S23 BAA , male primogeniture, legitimate VS illegitimate children all declared
unconstitutional and removed from customary law.
