LCP4804 - Advanced Indigenous Law Summary Notes Trial Exam and Answers

LCP4804 - Advanced Indigenous Law Summary Notes Trial Exam and Answers. 1.1 Discuss marital rights in the context of polygamy within the South African legislation pre-democracy. Use case law to show the emancipation of women in the Constitutional Court. In terms of the BAA (which was the national policy), alongside the Natal Code of Zulu Law, the concept of marital rights declared that all black women were perpetual minors. Perpetual minority demands the handing over of the woman from the guardian (her father) to guardian (the husband) during marriage proceedings because of being considered a minor. The latter code provides that the husband is the owner of matrimonial property and the wife owes him the duty of respect. In the Gumede case, these provisions were found to be inconsistent with the constitutional right to equality and are invalid. Other than these negative and disruptive roles, there is no further role for these old order statutes. With regards to the polygamous nature of customary marriages, the husband had all the rights as well as the power to marry as many wives as he wanted, whereas women had no competing rights since they were regarded as perpetual minors. The Constitutional Court cases which are relevant here are: Gumede Case which discussed property rights in the context of divorce. The Recognition of Customary Marriages Act was unconstitutional as it excluded customary marriages concluded pre-recognition from the marital regime of ICOP. This meant that such women upon divorce were not entitled to any marital property. This case was not explicitly brought before the court in a polygamous nature, however it is important to take note that all customary marriages are potentially polygamous. Mayelane Case Permission of first wife is a requirement the court in this case set a precedent that in order for a man to marry more women according to customary law, that he requires the permission of the first wife. 1. 2 How did the outlawed marital legislation hinder the status of indigenous women? The Black Administration Act declared that all black women were perpetual minors. Perpetual minority demands the handing over of the woman from the guardian (her father) to guardian (the husband) during marriage proceedings because of being considered a minor. Section 23 Before the Act came into being customary marriage was not recognised as a marriage in law. It was known as a customary union where spouses did not enjoy marital rights. Black women were perpetual minors who could be discarded simply by their husbands marrying other women by civil rites. In terms of the Kwazulu Act on the Code of Zulu law and the Natal Code of Zulu Law, that these statutes have no contribution to make in the development of post-apartheid customary law. Without section 23 of the BAA, the male primogeniture problems in Mthebu, Shilubana and Bhe would not have happened. Prior to coming into operation of the Recognition of Customary Marriages Act 120 of 1998, customary marriages were subject to limited recognition in South Africa as a result of their potentially polygamous nature. Before to the Act coming into being customary marriage was not recognised as a marriage in law. It was known as a customary union where spouses did not enjoy marital rights. Black women were perpetual minors who could be discarded simply by their husbands marrying other women by civil rites. S - The study-notes marketplace Downloaded by: veruschkamarx | Distribution of this document is illegal S - The study-notes marketplace set out in the case of Hyde v Hyde and Woodmansee was imported into South African law in the case of . The Court felt that it could not recognise customary marriages because, being potentially polygamous, they offended against public policy. Failure to recognise customary marriages in the common law courts had serious consequences for African family life. Dlamini lists the kinds of hardship that were visited on African families by this exclusion: a) Spouses married in terms of customary law were not considered to be husband and wife. They therefore did not owe each other a duty of support. b) Their children were considered to be illegitimate. c) If the man married another woman by civil rites, the civil marriage extinguished the customary marriage, leading to the discarding of the first wife and her children. Limited recognition was introduced in the form of statutory enactments aimed at remedying these glaring anomalies that resulted from non-recognition. Statutes were passed to afford limited recognition of customary marriages to alleviate the plight of customary spouses in the areas of tax, breadwinner. It was largely to correct this situation that the South African Law Commission (SALC) embarked on its investigation into customary marriages. The Recognition of Customary Marriages Act 120 of 1998 has its origins in the recognition of customary law by the Constitution. The advent of the Act brought legal recognition to this institution, which became a customary marriage, instead of customary union, with full legal recognition to the same level as the civil marriage. Under the Act husband and wife are equal, multiple wives are recognised and the marriage can be registered; and can be dissolved only by a court. Thus the South African family law became normalised, humanised, modernised or improved as all marriage systems attained legal equality. 1. 3 Define inheritance according to S/African indigenous law with use of case law? Prior to the Constitution, the senior male succeeded (usually the eldest son) took over from the previous traditional leader. Post the Constitution, the Traditional leadership Act allowed for new succession chances based on equality. Now both male and female can succeed the previous traditional leader. The case of Shilubana was groundbreaking in this regard. However, the case of Mthembu was instrumental in the defining of inheritance. The case applied the Black Administration Act which designated two important requirements for eligibility to inherit, being that the individual must be: a) a senior (in terms of age) and b) that the individual must be male. According to these requirements this individual was then regarded as the head of the family and the heir to all deceased estates. Hence in the case of Mthembu, the widow and her daughters failed to inherit, as the father of the deceased inherited everything. Shilubana: uncertainty and unresolved issues While the judgment in Shilubana provides good guidance on the ascertainment of customary law, its impact has been to destroy certainty in the customary law of intestate succession to traditional leadership. Prior to this judgment, the rule of living customary law of succession, as established by both the High Court and the SCA, clearly stated that the next traditional leader was the most senior son or male relative of the previous leader. This was a general rule among the Africans in South Africa. For instance, Peires has this to say in this regard: Wife. S - The study-notes marketplace Downloaded by: veruschkamarx | Distribution of this document is illegal S - The study-notes marketplace In Sigcau v Sigcau Prince Mandlonke Sigcau, the great son of the late King Marelane Sigcau, succeeded his father in that position. Yet after the Shilubana judgment this was no longer necessarily so. Van der Westhuisen J brought an end to this certainty by recognising established by both the High Court and the SCA, clearly stated that the next traditional leader was the most senior son or male relative of the previous leader. 1. 4 Do you think inheritance included women in their position as beneficiaries of deceased estates and administrators of estates? Cite case law and show how the court has transformed the position of women using legislation post democracy. Names of the parties: Bhe v Magistrate Khayelitsha Legal question: The Constitutional Court was asked to confirm a Western Cape High Court decision together with a North Gauteng High Court 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 confirmed both judgments; declared the male primogeniture rule unconstitutional for violating the equality and the human dignity clauses of the Constitution; set aside section 23 of the BAA 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. Decision of the court: Both decisions from the High Courts were confirmed.