LCP 4804 Past exam questions only.

LCP4804 – ADVANCED INDIGENOUS LAW OCT / NOV 2017 QUESTION 1 How the judicial recognition of living law has promoted the convergence of African customary law and the Constitution in post-apartheid South Africa? a) Mabuza v Mbatha 2003 in so far as the court modernized the law by discarding ancient custom in favour of new developments in current community practices. [10] b) Mabena v Letsoalo 1998 in so far as the court humanized the law by affirming the dignity and equality of women and young people as fully fledged marriage negotiators. [10] QUESTION 2 The impact of the CC judgments in decolonizing the law as it jettisoned (abandoned) the discredited male primogeniture principle entrenched in s23 of the BAA 1 . a) Bhe v The Magistrate Khayelitsha, Shibi v Sithole, Human Rights Commission v President of Republic of South Africa 2005. [15] b) Shilubana v Nwamitwa 2008 [15] QUESTION 3 Critical analysis on the following 2 extracts (A and B) which reveal the epistemological (the way of knowing) differences inherent in the understanding of the meaning and nature of customary law during these historical periods. Refer to the extracts to support your view. Extract A (post-apartheid case) Pilane and Another v Pilane and Others 2013 para 34-35 [it is well established that customary law is a vital component of our constitutional system, recognized and 1 Black Administration Act 38 of 1927. protected by the Constitution, while ultimately subject to its terms. The true nature of customary law as a living body of law, active and dynamic, with an inherent capacity to evolve in keeping with the changing lives of people whom it governs], and Extract B (apartheid legislation) Section 1(1) of the Law of Evidence Amendment Act 45 of 1988 [any court may take judicial notice of the law of a foreign state and indigenous law in so far as such law can be ascertained and with sufficient certainty. Provided that indigenous law shall not be opposed to the principles of public policy or natural justice.] [15] QUESTION 4 a) Unpack the elements of the indigenous institution of ukufakwa to demonstrate its role in fostering good neighborliness in society. [15] b) Apply the attributes of Ubuntu found in ukufakwa such as communal living, shared belonging, co-operation, collective ownership, inclusiveness, reciprocity and group solidarity to illustrate how this institution can enhance a culture of human rights. [15] QUESTION 5 Choose any 2 post-apartheid statutes that specifically deal with customary law to demonstrate how the legislature has normalized a previously patriarchal society through social engineering in South Africa. [10] MAY / JUN 2017 QUESTION 1 X is the most senior son of B, a deceased traditional leader of one of the most prominent kingdoms in South Africa. He hopes to succeed his father as a traditional leader and head of the relevant traditional authority in terms of the legislation and customs presently practiced by the jural community. The royal family has identified X as the person qualified for appointment to those roles and presented his particulars to the government for that purpose in terms of s11 of the Traditional Leadership and Governance Framework Act 41 of 2003 (TLGF).