LCP4804 201 Merged

LCP4804/201/1/2017
Tutorial Letter 201/01/2017
Advanced African Customary Law

LCP4804
Semester 1
Department of Public, Constitutional and

International Law
IMPORTANT INFORMATION
This tutorial letter contains important
information
about your module
Open Rubric
LCP4804/201
CONTENTS
Page
1. FEEDBACK ON ASSIGNMENT 01 .................................................................................. 3

3. FORMAT OF THE MAY/ JUNE EXAMINATION ............................................................ 14
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Dear Students
Read this tutorial letter carefully. It contains commentary on Assignment 01 and Assignment 02
for the first semester of 2017. It further contains information on the forthcoming May/June 2017
examinations. We hope that the feedback on Assignments will provide an insight into what is
expected of you in the examinations. We trust that you found the assignments exciting, and that
you are coping well with the workload.
The Study guide
From your assignments you will have noticed that your Study Guide did not play a major role in
your questions and and answers. The reason for this is that the Study Guide is under review. It
was compiled long before most of the prescribed cases and statutes that are topical in
customary law were issued. A lot has changed since then. Its importance has therefore since
waned over time. It is still a good guide to show you how to understand the module in general,
and in particular, study unit 2, (marriage) study unit 3, particularly contracts where (ukufakwa)
can be found and lastly study unit 5 for the troubled (primogeniture) principle. In order to
understand the important issues discussed in the assignments and examination the Study
Guide is the starting point. However, cases and statutes are more important in answering
questions.
1. FEEDBACK ON ASSIGNMENT 01
Assignment 01 was relatively simple and should not have given you too much trouble. This was
a compulsory assignment, consisting of MULTIPLE choice questions. You had to mark either
(1), (2), (3) or (4) for each of the questions on the Unisa Mark-reading sheet. You did not have
to give reasons for your answers.
The feedback on Assignment 01 follows:

QUESTION CORRECT ANSWER
1 2
2 1
3 2
4 1
5 3
6 3
7 2
8 2
9 2
10 2
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You must make sure that you study the above cases so that you can indicate in the
examinations the cases from which all the extracts were quoted and the circumstances under
which the statements were uttered.
Question 1
Set A: The Shilubana set of cases.
The names of the parties
Nwamitwa v Philia and Others 2005 (3) SA 536 (T)

Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)
Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)
The legal question that was answered by the court
Philia Shilubana, of the Valoyi traditional community, in the Limpopo Province of South Africa,
was not appointed as a traditional leader (hosi) of her people when her father died in 1968. As a
woman she could not be appointed due to the laws of unfair discrimination at the time. Instead
her father’s brother, Richard Nwamitwa, was appointed as the traditional leader (hosi). When
the latter died in 2001, the Valoyi Traditional Authority took a resolution to appoint Philia
Shilubana as the traditional leader (hosi) relying on the constitutional provision for gender
equality which motivated the community to adapt its rules. This resolution amended the past
practice of the community which indicated the eldest son of the previous hosi as the successor
to his father as the new traditional leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s son,
sought to dispute Philia Shilubana's appointment, relying on past practice based on his
purported right as the eldest son of the previous hosi.
The decision of the court
The matter was decided in favour of Sidwell Nwamitwa in both the High Court and the SCA, in
terms of the community’s past practice.
The case was eventually taken on appeal to the Constitutional Court.
The decision of the court and reasons for judgment
In a unanimous judgment, the Court decided that Ms Shilubana was legally appointed as the
legitimate traditional leader (hosi) of the Valoyi people. The Court emphasised the fact that
customary law is a living system of law. As such it was not bound by historical precedent. Its
flexibility allowed it to evolve as its community changed. Once it was clear that the
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contemporary practices of the community have replaced its past practices, the latter no longer
applied.
Because of this, the Constitutional Court deviated from prior decisions that had served as a test
for determining the content of customary law even though they indicated long-standing and
historical practices. Instead the Court redefined customary law as a system that reflected the
current practices of the particular community. Living customary law came to be defined with
reference to the constantly evolving practices that indicate the current system of norms by which
that community has chosen to live.
The Constitutional Court held that the customary law regarding the appointment of a traditional
leader (hosi) had legitimately evolved to allow for the appointment of a woman as a traditional
leader (hosi) and that this development was consistent with the Constitution. After finding that
Philia Shilubana had been validly appointed the Constitutional Court upheld the appeal, thus
confirming her appointment as a traditional leader (hosi) of her Valoyi community.
Bear in mind that this was after this particular community (Valoyi community) had decided to
adapt its laws consistently with the Constitution. Other communities will be judged according to
their own contemporary practices.
Own comment on customary values and the Constitution
The Constitutional Court very well endorsed the community’s right to develop their law, thus
protecting their right to develop their culture. In doing so the court unfortunately destroyed the
rule regulating the customary law of succession from one generation to another. The
Constitutional Court ignored that according to customary law, lineage is important and that the
position of successor must be held by someone capable of producing a future Nwamitwa heir.
In appointing Philia, the court should not have left future succession hanging. It should have
made it clear that it was doing so because of her status as a princess, and add that in order to
uphold lineage of the Nwamitwa royal line, after her death the position would revert to a
qualifying Nwamitwa prince/princess. Therefore the court did a good thing (promoting gender
equality) badly (disrespecting culture).
Set B: The Mthembu set of cases
The names of the parties
Mthembu v Letsela and Another 1997 (2) SA 936 (T)

Mthembu v Letsela and Another 2000 (3) SA 867 (SCA
Introduction
In November 1996, Le Roux J heard an application by the applicant, Mildred Hleziphi Mthembu,
who approached the court for relief in a matter of succession to the estate of her deceased
husband, one Tebalo Watson Letsela, to whom she claimed to have been married by customary
law.
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The applicant sought the following relief:
1. An order declaring
1.1. that the rule of African customary law which generally excludes African women
from intestate succession ("the customary law rule") is inconsistent with the
Constitution and consequently invalid;
1.2. that s 23 of the Black Administration Act 38 of 1927 ("the Act") and s 2 of the
Regulations for the Administration and Distribution of the Estates of Deceased
Blacks made under s 23(10) of the Act [and published] by Government Notice
R200 of 6 February 1987 ("the regulations") are invalid insofar as they demand
the application of the customary law rule;
1.3. that the administration and distribution of the estate of her late husband,
Tebalo Watson Letsela ("the deceased") is governed by the common law of
intestate succession; and
1.4. that Tembi Mtembu is the deceased's only intestate heir.
Before his death Letsela (the deceased) was employed in Boksburg and owned a house at 822
Ditopi Street, Vosloorus, in which he had lived with the applicant (the widow) since 1990,
together with their daughter, Tembi, who was born on 7 April 1988. In the same house also lived
Letsela's parents, his sister and her daughter.
The deceased died on 13 August 1993 and the first respondent, Henry K Letsela, (father of the
deceased) was appointed by the second respondent (the Magistrate, Boksburg) to administer
and wind up the estate. He claims that the house in Ditopi Street devolves upon him according
to the rules of customary law. The rules are recognized by s 23 of the Black Administration Act
38 of 1927 and the regulations made under the authority of the Act, especially reg 2 of 6
February 1987 promulgated in Government Gazette 10601 as Government Notice (5) R200.
This regulation provides for customary law to apply to the devolution of the estate of a black
person who dies intestate. The most important customary law rule is the one of male
primogeniture in the customary law of succession in terms of which only first-born or precedent
males may inherit in cases of intestacy, to the exclusion of females and junior males.
First respondent claimed that he has no responsibilities toward applicant, either to house her or
to maintain her and her daughter; denied the existence of a customary marriage between the
applicant and his son and rejected any suggestion that the applicant and her daughter were part
of his family. In her reply, the applicant produced witnesses and documents to prove the
existence of a valid customary marriage between herself and the deceased, including the
information that lobolo was formally fixed at R2,000 and that by the time of his death, her
deceased husband had paid R900 towards this sum.
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The first respondent relied mainly on the argument that there was no valid customary marriage
between his son and the applicant and that consequently she neither has any rights as a wife in
this matter nor does he owe her and her daughter any obligations.
The decision and reasons for judgment
The court found that the customary law rule excluding women from inheritance is prima facie
discriminatory on the grounds of sex or gender but not unfairly so because of the concomitant
duty of support. Mindful that the constitutional issue (unfairly discriminatory on the grounds of
sex or gender) might assume a different complexion if the facts revealed that there had been no
customary marriage between applicant and deceased, Le Roux J realized that the concomitant
duty of support would cease to be a consideration and the investigation into the constitutionality
of the rule would have to take different factors into account. The court accordingly referred the
matter for the hearing of oral evidence on: (a) whether there was a valid customary marriage
between the applicant and the deceased; or (b) whether a putative marriage under customary
law existed between them.
Mthembu v. Letsela and Another 1998 (2) SA675 (T)
The legal question that was answered by the court:
Whether a customary marriage existed between Mthembu (applicant) and Letsela (deceased)
and whether Tembi (daughter) was a legitimate child
The hearing of oral evidence took place in August 1997 in a case presided over by Mynhardt J.
Neither the applicant nor the first respondent adduced any evidence and the application was
accordingly determined on the basis that no customary marriage existed between Mthembu and
the deceased and that Tembi was therefore illegitimate.
On the question of the court 'developing' customary law in line with the spirit, purport and
objects of the Bill of Right, applicant's counsel made a strong case for customary law to be
coaxed towards equality, which is a value fundamental to the Constitution.
Arguing that the issue of discrimination on the grounds of sex or gender is ‘academic’ in this
case because the real reason for Tembi’s disqualification from inheritance is her illegitimacy, the
Court refused to ‘develop’ customary law in the direction suggested.
The reasons for judgment
“In the present case I therefore decline the invitation to develop the customary law of
succession which excludes women from participating in intestacy and which also
excludes children who are not the oldest male child. In any event, because the
development of that rule, as proposed by Mr Trengrove, would affect not only the
customary law of succession but also the customary family law rules, I think that such
development should rather be undertaken by Parliament.
The Court dismisses the application with costs, and grants leave to appeal.
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An appeal against the decision of Mynhart J who dismissed the application to declare that a
customary marriage existed between applicant and the deceased and declared that Tembi was
a legitimate child
Justices of Appeal Smalberger, Marais, Zulman and Mpati, and Acting Justice of Appeal
Mthiyane heard the appeal on 4 May 2000 in the Supreme Court of Appeal. Counsel for the
appellant raised the same four grounds of attack against the customary law rule of male
primogeniture which had been dismissed by Mynhardt J in the court a quo. He stated, however,
that he would not advance oral argument in respect of the first two grounds and would instead
concentrate on the last two grounds which were based on the proposition that:
1. Tembi would have succeeded by intestate succession at customary law to her deceased
father's estate but for the fact that she is female, and that
2. the customary law rule of primogeniture is offensive to public policy or natural justice
(within the meaning of s 1(1) of the Law Evidence Amendment Act, 1988).
The Court dismissed both arguments and went on to consider the invitation to develop
customary law according to the ‘spirit, purport and objects’ of the Bill of Rights. On this point,
counsel for the appellant had argued that the customary law rule was based on ‘inequity,
arbitrariness, intolerance and inequality,’ all of which are repugnant to the new constitutional
order. The Court was urged to develop the rule so that it sheds its discriminatory elements and
allows male and females, legitimate and illegitimate, descendants to inherit.
The court was not convinced, arguing that Tembi was excluded by illegitimacy not gender and
that it was undesirable to pronounce on such an important constitutional question in a case in
which the issue was academic.
The appeal was dismissed on all four grounds.
The place of this case in history is assured for the simple reason that it fielded the first salvo in
what was to become a sustained battle against the primogeniture rule which was to culminate in
the case of Bhe. Several points about the Mthembu cases are worth noting.
i. Some of the earliest criticisms of the outcome in Mthembu were based on concerns
that the court did not give enough weight to the distinction between official customary
law, on the one hand, and day-to-day community practice, on the other. At the time,
under attack was the conclusion of Le Roux J that the concomitant duty of support
attaching to the heir’s right to take all the property to the exclusion of girls and
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women had the effect of ‘saving’ the customary law rule from constitutional attack.
This was because the duty of support rendered the discrimination not to be unfair.
This criticism is justified but the point usually overlooked is the impact of the
approach of the court. In deciding to assess an African customary practice on its own
merits without assuming its inferiority to some other “mainstream” notions of
propriety, the court sent a strong signal about the future of customary law in a
constitutional dispensation.
ii. The failure to recognise the existence of a marriage between Hleziphi Mthembu and
the deceased was another lost opportunity – this time to force the issue of the
existence of a marriage so as to ensure the centrality of the real constitutional issue,
sex and gender, as opposed to illegitimacy. The point could have been canvassed
more forcefully, with a fair chance of success.
iii.
One must always be mindful of that important truism in customary law: ‘African
customary marriage is a process, not an event’. According to many systems of
customary law a relationship between a man and a woman ‘ripens’ towards marriage
on the occurrence of a number of events, formal and informal, intended or
inadvertent, and the reaction of the couple’s families to those events. Among the
events and occurrences are: discussions about lobolo, delivery of marriage goods,
cohabitation, pregnancy or the birth of a child.
All these fundamentals exist in the case of the applicant and the deceased. The crisp
legal question then becomes: “what is the applicable legal system and, according to
that legal system, do these fundamentals constitute a valid customary marriage?”
The judgement in the first Mthembu hearing reveals that the applicant is Zulu and the
deceased was of South Sotho stock. It would have been worth exploring the rules in
these two systems to see whether a valid customary marriage comes into existence,
in either system, in the circumstances set out above, despite the protestations of the
first respondent. As things have turned out, a feeling persists that a potentially fruitful
avenue in inquiry has been blocked by (or surrendered to) the first respondent, who
had the clearest material motive for denying the existence of the marriage.
Set C: The Ngwenyama/Mayelane set of cases
The names of the parties:

Ngwenyama v Mayelane 2012(10)BCLR 1071(SCA)
Mayelane v Ngwenyama and Another2013 (8) BCLR 918 (CC)
Introduction
This case turned in part on the interpretation of sections of the RCMA.
i. whether Section 7(6) of the RCMA did indeed introduce a new requirement of
validity by requiring the husband to seek his first wife’s consent;
ii. if not, whether such consent was required in Xitsonga customary law; and
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iii. whether, if such consent had not been furnished, the court ought to develop the
customary law to insert this requirement.
The issue was the interpretation of section 7(6) of the RCMA: whether, in requiring a husband
who wants to marry another wife to make certain proprietary arrangements it introduces (by the
back door, as it were) another requirement for the validity of a customary marriage.
Ms Mayelane and Ms Ngwenyama both claimed to be married by Xitsonga customary law to

one Mr Moyana, now deceased. After Mr Moyana’s death Ms Mayelane, the first wife,
challenged the validity of Ms Ngwenyama’s marriage on the ground that the RCMA required a
husband to obtain the consent of his first wife to contract a valid further customary marriage,
and that Mr Moyana had not obtained such consent.
The High Court found the Mr Moyana’s further marriage to Ngwenyama to be invalid for not
complying with section 7(6) of the Recognition Act. It left the matter of the requirement of the
first wife’s consent undecided. Ngwenyama appealed to the SCA.
Ngwenyama v Mayelane 2012 (10) BCLR 1071 (SCA)

The court heard an appeal from the decision of the high court that declared Ngwenyama’s
marriage to her deceased husband invalid because the latter did not apply to court to get its
approval for the contract regulating the matrimonial property of the spouses before marrying her
as the second wife in terms of section 7(6) of the Recognition of Customary Marriages Act 120
of 1998.
The SCA looked at the question before court as to whether a further marriage such as
Ngwenyama’s that was negotiated, entered into or celebrated without a prior court approval of a
section 7(6) contract was valid or not.
The SCA’ approach was to examine the provisions of section 7(6) of the Recognition of
Customary Marriages Act 120 of 1998 to establish whether their non-observance could have
had a bearing on the validity of a customary marriage at all. This was in view of the fact that
ordinarily the validity of the customary marriage is regulated by section 3 of the Act; and section
7(6) regulates regimes of matrimonial property only.
The SCA, per Ndita AJA, concluded that section 7(6) of the Recognition Act was only
concerned with matters of matrimonial property, and had nothing to do with the validity of the
customary marriage which was regulated by section 3 of the Act. The SCA held accordingly that
the non-observance of the section 7(6) did not affect the validity of the customary marriage. At
most, such non-observance left the customary marriage out of community of property.
According to the SCA the purpose of the Recognition Act is to protect all women, not just a
particular woman. The SCA did not find it necessary to determine whether the consent of
Mayelane, as the deceased’s first wife was required for the validity of Ngwenyama’s marriage to
the same husband.
The court upheld the appeal.
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The SCA’s determination that the non-observance of the provisions of section 7(6) of the
Recognition Act does not affect the validity of the customary marriage is to be commended as
such matters are clearly dealt with by the provisions of section 3. Consequently it held that the
marriage of Ngwenyama to her deceased husband was valid despite the non-observance of the
provisions of section 7(6) Recognition Act. It emphasised that the purpose of the Recognition
Act is to protect all wives, not just the first wife. As there was no suggestion that section 3
Recognition Act which deals with issues of validity was not complied with, there was no basis for
invalidating the marriage.
However, the SCA’s refusal to inquire into the impact of the lack of the first wife’s consent to her
husband’s further marriage to another woman is to be lamented because the high court had
already found that lack of such consent was problematic. The SCA therefore erred in holding
that because the validity of Ngwenyama’s marriage was not invalidated by the deceased’s
failure to comply with the section 7(6) provisions, it was therefore not necessary to investigate
the role of the first wife’s consent.
Mayelane v Ngwenyama 2013 (8) BCLR 918 (CC)

Mayelane appealed to the Constitutional Court against the decision of the SCA.
The Constitutional Court found it necessary to investigate whether the relevant Xitsonga custom
allowed the deceased to marry Ngwenyama as a second wife without first obtaining the consent
of his first wife, Mayelane. The court’s approach was to collect affidavits from the community
about the need for the husband to obtain his first wife’s consent to her husband’s further
marriage to another woman. The court’s majority held that the Recognition Act did not contain a
requirement for the first wife’s consent and that Xitsonga customary law did not have a uniform
rule in this regard. The court decided in these circumstances to develop Xitsonga customary law
to include the rule that the first wife’s consent to her husband’s further marriage to another
woman is a requirement for the validity of a further marriage. The consequence was that non-
compliance with the rule would result in the attempted subsequent marriage being invalid.
Unfortunately the court, in the absence of a uniform customary law rule on consent, chose the
one requiring consent, not the other. Having done that the Constitutional Court developed the
version of Xitsonga customary law it favoured and gave it the stamp of the Constitution.

Accordingly, the Constitutional Court, per Fronemann J, upheld the appeal, concluding that
Ngwenyama’s marriage to her deceased husband was invalid since it was irregularly entered
into without the necessary consent of the first wife.
The minority judgments of Zondo J and Jafta J are instructive in assessing the performance of
the Constitutional Court’s majority decision in this matter. Both justices take issue with
Foremann J’s approach in taking a lot pains collecting evidence to prove what was already
clearly established on record. According to Jafta J Mayelane’s evidence that her deceased
husband never sought and obtained consent to marry Ngwenyama was never refuted by the
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latter. Foremann J should therefore have accepted this fact as established, instead of calling for
further evidence. Lacking consent, which is necessary according to the particular community’s
tradition in terms of the unrefuted evidence, means that the subsequent marriage was not
negotiated and entered into or celebrated in the manner required by custom.
Question 2
The features of ubuntu in the ukufakwa institution

Ukufakwa entails a situation where a relative of a woman’s father, namely, brother, uncle,
cousin, nephew, you name it, takes the responsibilities of the father and ensures that the
customary traditions and ceremonies related to the initiation and/or marriage of the father’s
daughter are carried out as if the relative himself was the father. This entitles the relative to a
pro rata portion of the value of the lobolo goods expected from the marriage goods deliverable
when the daughter gets married, or received as fines imposed as a result of delicts committed
on that daughter.
The relative thereby gets entitled to such portion as of right, directly from its source (that is, as
the goods are identified for delivery as lobolo goods the relevant portion already belongs to the
relative. This is to say, that portion never starts belonging to the father from the beginning and
the father does not have access to it. To the extent of this portion (ukufakwa contribution), the
relative assumes the rights of the father of the daughter in his own right. He does not have to
claim the portion from the property of the father as it already belongs to him from the source.
That is why if such goods are never delivered for whatever reason the relative does not have a
claim against the father. (In any event the goods were never going to be received from the
father. In such a case the relative also suffers his share of the nothing received. However, the
relative remains entitled to such portion if the goods are eventually received from the marriage
goods of any subsequent daughter even if he never contributed to the ceremonies of that
particular one.
The features of ubuntu involved in ukufakwa are:
Communal living is revealed in that relatives are a family and members of one corporate
home. They share the joys of unity as well as the pains that go with it. Nobody’s nakedness
should be exposed. In the same vain no one should be enriched at the expense of another. It is
our home, these are our children. We must bring them up for better or for worse. Whoever can
help in times of need must please do so, because this family will always be there for him/her
too.
Shared sense of belonging is also revealed. No one belongs alone, nor does anyone enjoy
wealth alone or suffer poverty alone. Umuntu ngumuntu ngabantu/motho ke motho ka batho - a
human being derives his/her humanity from other humans. Life is shared. No child must suffer
because of the condition of their birth, but must experience the same upbringing as other family
children. To be meaningful your prosperity must positively influence the condition of the other
members of your family. Hence the one relative who has means now must take over the burden
of the family.
Group solidarity :Your brother’s/sister’s problem is your problem. His/her shame is your
shame. If (s)he fails and gets despised, you are also associated with that failure. If your
brother’s/sister’s daughter gets disgraced at her marriage home for falling short of what was
expected, her father and his relatives get disgraced more than her. If she is Ms Khumalo, all her
relatives are Khumalo. Nobody from this clan can afford to let that name go down. An injury to
one Khumalo is an injury to all Khumalos. All Khumalos cannot rest until this Khumalo child is
successful. That is why there are those meetings, allocation of work and contributions of money
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when preparing for a family party (umsebenzi), such as umemulo, initiation into manhood,
wedding, or unveiling of a tombstone. The Khumalo family party (umgidi wakwa Khumalo) will
be a success when the members divide the duties of bringing a cow, liquor, groceries, the tent,
chairs etc. to the occasion. Family members have unity of purpose on group issues.
Reciprocity. The good that you do will be done to you (izandla ziyahlambana – the hands wash
each other). There is no permanent loss. What is paid out will be paid back. One hand washes
the other. Nobody should be reluctant to help others because the others will also be pleased to
help them in future. A good deed is an investment. Hence the one relative who takes the
ukufakwa responsibility does so hoping to recover his/her expenses when payment becomes
available
Collective ownership of assets. Brothers belong to a home which is the real owner of their
productive activities. This is a Khumalo home to whose growth and development all the
Khumalos can and must contribute because this is the home that produced and nurtured them
to be what they are. After all, Khumalo’s cattle, are the property of the Khumalos regardless of
who actually bought them. All Khumalos claim them as ‘our cattle’ (zinkomo zakuthi). Ownership
is always expressed in collective terms because cattle are a collective Khumalo fund from which
customary payments such as ukulobola are drawn. When I lobola what I pay out is paid out
from the Khumalos’ fund (albeit administered by me). Similarly when I receive lobola goods I
receive them into the Khumalo fund. Our individual and collective efforts are directed at
upholding this name, which is who we are. The daughter’s ceremonies including her wedding
dress and other goods for the bride are financed by me as the father in the name of the
Khumalo home, not mine. Even when my brother/sister takes over this function, he does so as a
Khumalo, not as him/herself. Hence the world will know her as maKhumalo. She must carry
herself very well at her marriage home because her conduct reflects on all the Khumalos, not
just herself.
All the fore-going features and many more attributes of the ukufakwa institution urge relatives,
and by extension, humans, in the true spirit of ubuntu to maintain brotherhood/sisterhood
through the sharing of joys and pains for their collective good. This is what ubuntu is all about –
to live your life selflessly, with others and for others, who similarly live theirs selflessly for you,
and for the world. In ubuntu we see the indigenous African rules of good living which have
survived the colonial and apartheid onslaught on the system.
See Study Guide Study Unit 3, Lecture 6 pages 83-84; Rautenbach Introduction to Legal
Pluralism, 4th (ed) page 153-154; Himonga C & Nhlapo T African Customary Law In South
Africa Post-Apartheid and Living Law Perspectives (2014) pages 192 and 196.
Isondlo is a similar concept. From the understanding of ukufakwa you can easily understand
isondlo on your own by studying from the Study Guide Study Unit 2, Lecture 3 pages 41-47;
Rautenbach Introduction to Legal Pluralism, 4th (ed) page 153; Himonga C & Nhlapo T African
Customary Law In South Africa Post-Apartheid and Living Law Perspectives (2014) pages 193-
194 and 196.
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Self Assessment: Assignment 3:

You must approach this part in the same way as the solution on sections A, B and C for
Assignment 02 above
Section A: The requirements for a valid customary marriage:

Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another 1998 (2)
SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867 (SCA)
Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and Mayelane v Ngwenyama and
Another 2013 (8) BCLR 918 (CC)
Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008)
(unreported),
Motsoatsoa v Roro All SA 324 (GSJ),
Fanti v Boto and Others 2008 (5) SA 405 (C)
Mabuza v Mbatha 2003 (7) BCLR 43 (C)
Mabena v Letsoalo 1998 (2) SA 1068 (T)
Section B The primogeniture rule and gender equality (the problem of primogeniture)
SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867 (SCA).
Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of
Republic of South Africa 2005 (1) BCLR 580 (CC)),
Nwamitwa v Philia and Others 2005 (3) SA 536 (T) ; Shilubana cases (Shilubana and Others v
Nwamitwa 2007 (2) SA 432 (SCA) and Shilubana and Others v Nwamitwa 2008 (9) BCLR 914
(CC).
Section C The nature and development of customary law under the Constitution
Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC)
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC).
Republic of South Africa 2005 (1) BCLR 580 (CC)),
Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC)
Section D The indigenous normative values of customary law found in concepts such as
ukufakwa, isondlo and others that indicate the centrality of ubuntu in the African
tradition
The elements of the concept of ukufakwa See solution to Assignment 02 above
3. FORMAT OF THE MAY/ JUNE EXAMINATION

The 2017 May/June examination will be a Two-hour examination paper. The paper consists of
four questions for a total of 100 marks.
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NOTE: PREPARING FOR THE EXAMINATION
Study all the prescribed tutorial matter and do not “spot”. Therefore you must study all
sections of the work. Note the following:
In order to pass the Examinations:

1. Study the Recognition of Customary Marriages SAct, 120 of 1998; Traditional
Leadership and Governance Framework Act, 41 of 2003; Reform of customary
Law of Succession and Regulation of Related Matters Act 11of 2009.
2. Find the cases/sources from which all the extraxts quotes in Assignment come
from, not just those that were chosen as the right answers for the assignment.
3. Study Tutorial Letter 201 of 2017 and Revise your assignments, especially the
above solutions on Assignment 02.
4. Use Assignment 02 as a model for answering Assignment 03.
5. Make sure that you understand the following cases thoroughly!!!
The requirements for a valid customary marriage

SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867 (SCA) Ngwenyama v
Mayelane 2012(10) BCLR 1071 (SCA) and Mayelane v Ngwenyama and Another 2013 (8)
BCLR 918 (CC).
Mabuza v Mbatha 2003 (7) BCLR 43 (C) Mabena v Letsoalo 1998 (2) SA 1068 (T) Maluleke v
Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008) (unreported),
Motsoatsoa v Roro All SA 324 (GSJ), and Fanti v Boto and Others 2008 (5) SA 405 (C).
The requirement of gender equality

Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27 (C), Bhe v The
Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of
Republic of South Africa 2005 (1) BCLR 580 (CC)),Nwamitwa v Philia and Others 2005
(3) SA 536 (T) ; Shilubana cases (Shilubana and Others v Nwamitwa 2007 (2) SA 432
(SCA) and Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC). Shilubana and
Others v Nwamitwa 2008 (9) BCLR 914 (CC).
The nature of post-apartheid customary law

Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301
(CC)Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC)
Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v

President of Republic of South Africa 2005 (1) BCLR 580 (CC))
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ukufakwa that indicate the centrality of ubuntu in the African tradition
Study the solution in respect of Assignment 02 above.
On writing the Examinations

It is very important that you manage your time in the examination properly to give yourself
enough time to answer all the questions. Your answers must be well structured and appropriate
to the marks allocated to each question. It is imperative that you read the examination paper
thoroughly and make sure that you understand what is required of you before you start
answering the questions. When discussing cases - REMEMBER to always allow your mind to
flow by identifying the parties, the legal question, the decision and the reasons given for it
and your opinion.
4. CONCLUDING REMARKS
We hope that the above commentary will help you to understand what is expected of you in this
module. This is the last tutorial letter of the semester.
Good luck with your studies!!!
Your Lecturers
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LCP4804/201/2/2017
Advanced indigenous law

LCP4804
Semester 2

International law
This tutorial letter contains important information
about your module.
BARCODE
CONTENTS
Page

2. FEEDBACK ON ASSIGNMENTS 02 & 03………………………………………………… ... 4
3. FORMAT OF THE OCTOBER/ NOVEMBER EXAMINATION ......................................... 9
Dear Students
Read this tutorial letter carefully. It contains commentary on Assignment 01, Assignment 02 and
Assignment 03 for the second semester of 2017. It further contains information on the
forthcoming October/November 2017 examinations. We hope that the feedback on
Assignments will provide an insight into what is expected of you in the examinations. We trust
that you found the assignments exciting, and that you are coping well with the workload.
The Study guide
From your assignments you will have noticed that your Study Guide did not play a major role in
your questions and answers. The reason for this is that the Study Guide is under review. It was
compiled long before the developments the gave rise to most of the prescribed cases and
statutes that are topical in customary law. A lot has changed since then. Its importance has
therefore since waned over time. Yet it is still a good guide to show you how to understand the
module in general, and in particular, study unit 2, (marriage) study unit 3, particularly contracts
where (ukufakwa and other indigenous institutions) can be found and lastly study unit 5 for the
troubled (primogeniture) principle. In order to understand the important issues discussed in the
assignments and examination the Study Guide is the starting point. However, cases and
statutes are more important in answering questions.
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Assignment 01 was relatively simple and should not have given you too much trouble. This was
a compulsory assignment, consisting of MULTIPLE choice questions. You had to mark either (1)
(2) (3) or (4) for each of the questions on the Unisa Mark-reading sheet. You did not have to
give reasons for your answers.
1 2
2 3
3 1
4 4
5 2
6 4
7 3
8 4
9 2
10 3
You must make sure that you study the cases listed in these questions so that you can discuss
them in the examination. Experience has shown that some students get the answers right but
fail the examination requiring them to discuss the same cases. It does not help to pass an
assignment if you fail the examination. Those who never deserved to pass the assignment will
be exposed one day. And that will come!
3
Question 1
Answering this question requires commitment to the values of customary law, the Constitution
and applicable legislation. That is to say, in answering the question you must bear in mind that
customary law is an independent source of law (as stated in Alexkor Ltd and Another v
Richtersveld Community and Others 2003 (12) BCLR 1301 (CC); that the Constitution is the
supreme law (as stated in section 2 of the Constitution) and that the Act (TLGFA 41 of 2003) is
the specifically applicable legislation (see section 211(3) of the Constitution. See Textbook
241-246.
(i) If section 11 of the Traditional Leadership and Governance Framework Act, 41 of 2003 is
applied (see the role of the royal family). This section requires the royal family (of which both X
and N are members) to identify the candidate for appointment. In considering their candidates’
suitability for the position section 9 of the Constitution requires them to treat them with equality.
Therefore, the reason why the royal family is not supporting N cannot be because she is a
woman. At the same time the only way in which N can be appointed is by being identified by the
royal family as required by the Act. Accordingly, X has more chances of success.
(ii) If section 211(3) of the South African Constitution, 1996 is applied (which system of law must
be applied). This section enjoins the courts to apply customary law when it is the legal system
indicated by the occasion, as is the case at present. Customary law identifies a particular
clan/lineage for traditional leadership. Hence after B’s death, the royal family must look for a
successor from within the family. Like all law customary law’s application is subject to the
Constitution and specifically applicable legislation. Therefore, the appointment process must
comply, not only with customary law, but also with the Constitution and legislation. Therefore, N
cannot be overlooked simply because she is a woman (i.t.o the Constitution). If she loses it will
be because she was not identified for the position by the royal family, using its own criteria for
the position as required by the Act (the specifically applicable legislation is). Accordingly, X, as
the identified candidate, has more chances of success (i.t.o. customary law, the Constitution
and the Act.
(iii) If customary law is applied in terms of the principle developed in Alexkor Ltd and Another v
Richtersveld Community and Others 2003 (12) BCLR 1301 (CC) (the application of customary
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law freely from common law lens). According to this case customary law as recognised by the
Constitution no longer has to be viewed with the lens of the common law. So, customary law
must be viewed from the perspective of its own value system, which requires the maintenance
of the lineage of the previous traditional leader in the appointment process. Hence the Act
places the responsibility to identify the successor on the shoulders of the royal family. As the
royal family has acted, X will most likely succeed.
(iv) If past practice has not changed because the amaQwathi Traditional Authority has not acted
to change that practice (Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)). (the right
to make, amend and repeal customary law i.t.o. section 211(2) of the Constitution). Prior to the
present constitutional era, customary law preferred senior male descendants of the previous
traditional leader. According to Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)
past practice prevails until amended by the traditional authority or a new practice has emerged
in social practice, or the court aligns customary law with the Constitution. Under the Constitution
the traditional authority can no longer prefer X simply because he is a senior male. X and N
must compete on an equal basis. Whoever is identified by the royal family on the basis of
meeting the customary criteria for a suitable traditional leader will be appointed. Applying such
criteria N was not so identified as required by the Act. X will most likely get the position.
(v) If contemporary practice had taken over from past practice; and the royal family and the
amaQwathi Traditional Authority were consequently not bound by custom to favour any of the
candidates (Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)). The tradition of
preferring males in the past will not favour X today, as males and females are equal. Under the
new social practice both candidates will compete on an equal basis. Because no-one has
advantage, the traditional authority will accept whoever is identified, by the royal family, male or
female, as the suitable candidate. X, as the identified candidate, will most likely get the position.
(vi) If in (iv) above the characteristics of living customary law (described in Pilane and Another v
Pilane and Others 2013 (4) BCLR 431 (CC) were relied upon by the court to justify its deviation
from past practice in order to assist N to overcome her civic disabilities. At para 34-35 the court
held:
The true nature of customary law is as a living body of law, active and dynamic, with an
inherent capacity to evolve in keeping with the changing lives of the people whom it
governs. Our history, however, is replete with instances in which customary law was not
given the necessary space to evolve, but was instead fossilised and “stone-walled”3
5
through codification, which distorted its mutable nature and subverted its operation. The
Constitution is designed to reverse this trend and to facilitate the preservation and
evolution of customary law as a legal system that conforms with its provisions.
Indeed, the legislature has recognised the dynamic nature of customary law and the need to let
it evolve in keeping with the changing lives of the people. Hence it has restored the power to
identify royal candidates to the royal family who can treat it as a living and active body of law. In
their exercise of this power the royal family looked at its members, unhindered by the legal
disabilities of the past, and after disabusing themselves of the patriarchal prejudices of yester-
year, identified the candidate with the requisite qualifications as required by the Act. As the
identified candidate X will most likely get the position.
Therefore, the candidate must satisfy the customary requirements for identification for the
position; that selection must be consistent with constitutional requirements as well as applicable
legislation. That is why X won the contest. In other words, a candidate for traditional leadership
can only succeed if his/her community sees potential for the position as the community knows it.
You must remember that succession to traditional leadership is a local government issue. It is
not enough for the candidate to be favoured by lineage. It must also be identified by the royal
family, which is a council of the closest relatives of the previous traditional leader. This
identification must be endorsed by the traditional authority, so that the Premier can accept it. In
this way the Premier has the assurance that the candidate has local support which is vital for
governance purposes. On the other hand, no such support is necessary in the case of
succession to an ordinary family position. Hence lineage is sufficient.
Question 2
Before his death Z married his wife R by customary rites. After Z's death R went to register their
customary marriage at the Home Affairs Department, only to be told, to her consternation, that P
had already been to that office to register hers with the deceased (Z). R knew that P did what
she did in order to claim Z's estate. Textbook pages 98-104, 116-121.
(i) comment on whether Z could possibly have had two valid customary marriages, referring to
any law/legislation recognising it. Yes. See section 2(3) and (4) of the Recognition of Customary
Marriages Act, 120 of 1998 which refers to ‘more than one spouse’, Thus the Act recognises
that the concept of customary marriage is compatible with multiple customary marriages of one
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man with two or more wives. Customary marriage does not belong to the family of civil
marriages of the Western tradition, which recognise a marriage of one man and one wife.
(ii) what would your comment be if R says Z never told her about his customary marriage with P
and that R and Z subscribed to Tsonga customary law which does not recognise Z's further
customary marriage, contracted without her consent as Z's senior wife. This is what Mayelane v
Ngwenyama 2013 (8) BCLR 918 (CC) is all about. According to this judgment, without R’s
consent, a Xitsonga further customary marriage is invalid. However, the courts are not
unanimous on this matter as it was held in Ngwenyama v Mayelane 2012(10) BCLR 1071(SCA)
that a Xitsonga further customary marriage that complies with the Act is valid despite the lack of
the first wife’s consent, (since the Act protects all women, not just one woman).
(iii) what would be the position if K, being Z's father, says he does not recognise both R and P
as his son's (Z's) widows as he never negotiated their customary marriages. (See Mthembu v.
Letsela and Another 1998 (2) SA675 (T), Mabena v Letsoalo 1998 (2) SA 1068 (T) and Bhe v
Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC) for fathers who claimed their son’s
estates for themselves).
Except for the Mthembu case where the deceased’s father succeeded because it was decided
under section 23 of the old Black Administration Act (BAA), which favoured senior males
(Remember that the BAA applied before the advent of the Constitution).
On the other hand, the Mabena and the Bhe fathers failed because they were decided under
the 1996 Constitution which focuses on the value of equality. To succeed in their claims against
K the daughters-in-law, R and P, must still prove the validity of their customary marriages in
terms of section 3(1) of the Recognition of Customary Marriages Act, 120 of 1998. Such
marriages never depended on K’s participation.
In terms of Mabena the father of the deceased tried to impune his deceased son’s marriage with
the daughter-in-law on the basis that he did not negotiate the customary marriage as required
by law. The court rejected this ground and upheld the marriage as valid, holding that he did not
even have to negotiate the customary marriage of his adult and independent son. In other
words, as developed under section 39(2) of the Constitution, the involvement of a father of an
adult and independent son is no longer a requirement.
7
In terms of Bhe a woman who had children by the deceased did not have to prove her
customary marriage but successfully claimed the estate for her two minor children fathered by
the deceased. Again, illegitimacy was no longer a bar to the children’s claims.
(iv) Would R's and P's situation be any different if K's problem with their customary marriages
was that they were invalid for no-observance of the necessary imvume/ukumekeza traditions. In
terms of Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April
2008) (unreported)( imvume) and Mabuza v Mbatha 2003 (7) BCLR 43 (C) (ukumekeza) the
observance of these customs is no longer essential in the urban and different environments in
which today’s conditions obtain. Transformation means that once the requirements of section
3(1) of the Act are observed the customary marriage will be valid. Thus the enjoyment of the
relevant traditions has been reduced to the level of nice festivities to grace the wedding, but no
longer essential requirements for a valid customary marriage. You must note that proof of these
festivities may still help the court in a difficult case where evidence is needed to define the
occasion as a customary marriage. In such a case it would be difficult for a party who admit
imvume/ukumekeza were held, to then dispute that the occasion was a customary marriage
wedding.
(v) what would be the position if Q appeared claiming to be the only descendant of Z by an
earlier relationship. Q does this by discrediting R's customary marriage because her lobolo was
never paid in full; and P's one because she was never delivered to the groom's family.
Neither full lobolo nor delivery are listed in section 3(1) of the Act as requirements for a valid
customary marriage. As long as the customary marriage has been negotiated and entered into
or celebrated under customary law, the marriage is valid. (see (iv) above for the value of the
evidence of these customary traditions in proving a difficult case) As stated above, once one
admits that the occasion was lobolo/delivery, then it becomes impossible to deny that the
occasion was not a customary marriage. To aggravate Q’s woes, the Bhe judgment adopts the
Intestate Succession Act and lists all the deceased’s descendants and spouses for the
purposes of receiving equal child portions from the estate. This situation has been endorsed by
the legislature through the Reform of the Customary Law of Succession and the Regulation of
Related Matters Act, 11of 2009. Q must just acquaint himself/herself with the reality that he will
share child portions with the rest of the other recipients.
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3. FORMAT OF THE OCT/NOV 2017 EXAMINATION
The 2017 Oct/Nov examination will be a Two-hour examination paper. The paper consists of a
total of 100 marks.
Study all the prescribed tutorial matter and do not “spot”. Therefore you must study
all sections of the work.Note the following:

1 Study the Recognition of Customary Marriages SAct, 120 of 1998; Traditional Leadership
and Governance Framework Act, 41 of 2003; and the Reform of customary Law of
Succession and Regulation of Related Matters Act 11of 2009. What is important is to be
able to demonstrate the transformation these Acts brought about in the sphere of
customary law.
2 Find the cases/sources from which all the extracts/quotes in Assignment 1 come from,
not just those that were chosen as the right answers for the assignment.
3 Study Tutorial Letter 201 of 2017 and Revise your assignments, especially the solutions
to Assignment 02 (above) and Assignment 03 (below).
4 Use Assignments 02 and 03 as models for answering the examination questions
5 When preparing for the examination please make sure that you take particular note of the
feedback to Assignments 02 and 03.
Assignment 03 is a self-evaluation assignment. It is a prepartory exercise for the examination

When you join the legal profession, you will have to evaluate your own arguments and
submissions and you should, therefore, acquire this skill as soon as possible.
1. The questions in the assignment cover all the study units in the study guide. Since the
questions are similar to the kinds of questions you may expect in the examination, you
should view this assignment as a valuable revision exercise in your examination
preparation.
2. After you have answered the assignment questions, please evaluate your own
answers by using the commentary that follows below
9
3. In this commentary, we give you the answers to the questions The purpose of this is to
show you how to approach and answer a question. The knowledge obtained in this way
can thus then be applied when answering the questions in the examination.
NOTE: Please do not submit this assignment to us for marking. We repeat: this
assignment is a self-evaluation assignment and should not be handed in for marking. If
you have any difficulties with any of the questions in the assignment, and our
commentary does not assist you, please contact us.
SELF-EVALUATION QUESTIONS
Answer the following questions as seriously as possible. The exam will consist of longer
and shorter questions which total up to 100 marks. Your mark will be converted to a mark
out of 80 because your two assignments amount to a mark out of 20.
Each of the following sections are important for your preparation for the examination.
Assignment 03
Section A The requirements for a valid customary marriage:
Apply the provisions of the Recognition of Customary Marriages Act 120 of 1998 regarding the
requirements for a valid customary marriage to test the validity of the following judgments.
(Remember to start case discussion properly by giving the names of the parties; the legal
question that was answered by the court, the reasons for judgment (ratio decidendi) given by
the court and the decision of the court).
(a) The names of the parties
Introduction
Textbook pages 173-174.
In November 1996, Le Roux J heard an application by the applicant, Mildred Hleziphi Mthembu,
who approached the court for relief in a matter of succession to the estate of her deceased
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husband, one Tebalo Watson Letsela, to whom she claimed to have been married by customary
law.
1.1. that the rule of African customary law which generally excludes African women from
intestate succession ("the customary law rule") is inconsistent with the Constitution
and consequently invalid;
1.2. that s 23 of the Black Administration Act 38 of 1927 ("the Act") and s 2 of the
Regulations for the Administration and Distribution of the Estates of Deceased Blacks
made under s 23(10) of the Act [and published] by Government Notice R200 of 6
February 1987 ("the regulations") are invalid insofar as they demand the application
of the customary law rule;
1.3. that the administration and distribution of the estate of her late husband, Tebalo
Watson Letsela ("the deceased") is governed by the common law of intestate
succession; and
Before his death Letsela (the deceased) was employed in Boksburg and owned a house at 822
Ditopi Street, Vosloorus, in which he had lived with the applicant (the widow) since 1990,
together with their daughter, Tembi, who was born on 7 April 1988. In the same house also lived
Letsela's parents, his sister and her daughter.
The deceased died on 13 August 1993 and the first respondent, Henry K Letsela, (father of the
deceased) was appointed by the second respondent (the Magistrate, Boksburg) to administer
and wind up the estate. He claims that the house in Ditopi Street devolves upon him according
to the rules of customary law. The rules are recognized by s 23 of the Black Administration Act
38 of 1927 and the regulations made under the authority of the Act, especially reg 2 of 6
February 1987 promulgated in Government Gazette 10601 as Government Notice (5) R200.
This regulation provides for customary law to apply to the devolution of the estate of a black
11
person who dies intestate. The most important customary law rule is the one of male
primogeniture in the customary law of succession in terms of which only first-born or precedent
males may inherit in cases of intestacy, to the exclusion of females and junior males.
First respondent claimed that he has no responsibilities toward applicant, either to house her or
to maintain her and her daughter; denied the existence of a customary marriage between the
applicant and his son and rejected any suggestion that the applicant and her daughter were part
of his family. In her reply, the applicant produced witnesses and documents to prove the
existence of a valid customary marriage between herself and the deceased, including the
information that lobolo was formally fixed at R2,000 and that by the time of his death, her
deceased husband had paid R900 towards this sum.
The first respondent relied mainly on the argument that there was no valid customary marriage
between his son and the applicant and that consequently she neither has any rights as a wife in
this matter nor does he owe her and her daughter any obligations.
The court found that the customary law rule excluding women from inheritance is prima facie
discriminatory on the grounds of sex or gender but not unfairly so because of the concomitant
duty of support. Mindful that the constitutional issue (unfairly discriminatory on the grounds of
sex or gender) might assume a different complexion if the facts revealed that there had been no
customary marriage between applicant and deceased, Le Roux J realized that the concomitant
duty of support would cease to be a consideration and the investigation into the constitutionality
of the rule would have to take different factors into account. The court accordingly referred the
matter for the hearing of oral evidence on: (a) whether there was a valid customary marriage
between the applicant and the deceased; or (b) whether a putative marriage under customary
law existed between them.
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Whether a customary marriage existed between Mthembu (applicant) and Letsela (deceased)
and whether Tembi (daughter) was a legitimate child
The hearing of oral evidence took place in August 1997 in a case presided over by Mynhardt J.
Neither the applicant nor the first respondent adduced any evidence and the application was
accordingly determined on the basis that no customary marriage existed between Mthembu and
the deceased and that Tembi was therefore illegitimate.
On the question of the court 'developing' customary law in line with the spirit, purport and
objects of the Bill of Right, applicant's counsel made a strong case for customary law to be
coaxed towards equality, which is a value fundamental to the Constitution.
Arguing that the issue of discrimination on the grounds of sex or gender is ‘academic’ in this
case because the real reason for Tembi’s disqualification from inheritance is her illegitimacy, the
Court refused to ‘develop’ customary law in the direction suggested.
13
An appeal against the decision of Mynhart J who dismissed the application to declare that a
customary marriage existed between applicant and the deceased and declared that Tembi was
a legitimate child
Justices of Appeal Smalberger, Marais, Zulman and Mpati, and Acting Justice of Appeal
Mthiyane heard the appeal on 4 May 2000 in the Supreme Court of Appeal. Counsel for the
appellant raised the same four grounds of attack against the customary law rule of male
primogeniture which had been dismissed by Mynhardt J in the court a quo. He stated, however,
that he would not advance oral argument in respect of the first two grounds and would instead
concentrate on the last two grounds which were based on the proposition that:
1. Tembi would have succeeded by intestate succession at customary law to her deceased
father's estate but for the fact that she is female, and that
2. the customary law rule of primogeniture is offensive to public policy or natural justice
(within the meaning of s 1(1) of the Law Evidence Amendment Act, 1988).
customary law according to the ‘spirit, purport and objects’ of the Bill of Rights. On this point,
counsel for the appellant had argued that the customary law rule was based on ‘inequity,
arbitrariness, intolerance and inequality,’ all of which are repugnant to the new constitutional
order. The Court was urged to develop the rule so that it sheds its discriminatory elements and
allows male and females, legitimate and illegitimate, descendants to inherit.
The court was not convinced, arguing that Tembi was excluded by illegitimacy not gender and
that it was undesirable to pronounce on such an important constitutional question in a case in
which the issue was academic.

The place of this case in history is assured for the simple reason that it fielded the first salvo in
what was to become a sustained battle against the primogeniture rule which was to culminate in
the case of Bhe. Several points about the Mthembu cases are worth noting.
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i. Some of the earliest criticisms of the outcome in Mthembu were based on concerns
that the court did not give enough weight to the distinction between official customary
law, on the one hand, and day-to-day community practice, on the other. At the time,
under attack was the conclusion of Le Roux J that the concomitant duty of support
attaching to the heir’s right to take all the property to the exclusion of girls and women
had the effect of ‘saving’ the customary law rule from constitutional attack. This was
because the duty of support rendered the discrimination not to be unfair.
This criticism is justified but the point usually overlooked is the impact of the approach
of the court. In deciding to assess an African customary practice on its own merits
without assuming its inferiority to some other “mainstream” notions of propriety, the
court sent a strong signal about the future of customary law in a constitutional
dispensation.
ii. The failure to recognise the existence of a marriage between Hleziphi Mthembu and the
deceased was another lost opportunity – this time to force the issue of the existence of
a marriage so as to ensure the centrality of the real constitutional issue, sex and
gender, as opposed to illegitimacy. The point could have been canvassed more
forcefully, with a fair chance of success.
One must always be mindful of that important truism in customary law: ‘African
customary marriage is a process, not an event’. According to many systems of
customary law a relationship between a man and a woman ‘ripens’ towards marriage
on the occurrence of a number of events, formal and informal, intended or inadvertent,
and the reaction of the couple’s families to those events. Among the events and
occurrences are: discussions about lobolo, delivery of marriage goods, cohabitation,
pregnancy or the birth of a child.
All these fundamentals exist in the case of the applicant and the deceased. The crisp
legal question then becomes: “what is the applicable legal system and, according to
that legal system, do these fundamentals constitute a valid customary marriage?” The
judgement in the first Mthembu hearing reveals that the applicant is Zulu and the
deceased was of South Sotho stock. It would have been worth exploring the rules in
these two systems to see whether a valid customary marriage comes into existence, in
either system, in the circumstances set out above, despite the protestations of the first
15
respondent. As things have turned out, a feeling persists that a potentially fruitful
avenue in inquiry has been blocked by (or surrendered to) the first respondent, who
had the clearest material motive for denying the existence of the marriage.
(b) Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April
2008) (unreported), The court held:
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”.
The validity of a customary marriage was impuned on the basis that the traditional imvume
ritual, the Zulu variation of ukumekeza (Swazi), for integrating the bride into the groom’s family,
had not been observed before the death of the husband. Tshiqi J examined the requirements
for a valid customary marriage as laid down in section 3 of the Recognition of Customary
Marriages Act.
On the basis of these requirements the judge concluded that customary marriage has evolved
over the years, and that this evolution has been accepted by the South African courts. The
judge then 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
averment that the imvume practice was not an essential requirement for the validity of her
customary marriage.
The case of Motsoatsoa v Roro All SA 324 (GSJ) is important for emphasising the value of
integration of the bride to mark the transfer from one family to another. The case is important for
understanding the meaning of 'entered into' or celebrated in section 3(1)(b) of the Act. What was
in issue here was lack of handing over of the bride. The question was: can the woman hand
herself over? Fanti v Boto and Others 2008 (5) SA 405 (C) also does the same thing but
focuses on the importance of involvement of the two families in the formation of the customary
marriage. The question was: can the husband decide, without the involvement of his in-laws,
that their daughter is now his wife?
©Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and Mayelane v Ngwenyama

and Another 2013 (8) BCLR 918 (CC)
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i. whether Section 7(6) of the RCMA did indeed introduce a new requirement of
validity by requiring the husband to seek his first wife’s consent;
iii. whether, if such consent had not been furnished, the court ought to develop the
The issue was the interpretation of section 7(6) of the RCMA: whether, in requiring a husband
who wants to marry another wife to make certain proprietary arrangements it introduces (by the
back door, as it were) another requirement for the validity of a customary marriage.
Ms Mayelane and Ms Ngwenyama both claimed to be married by Xitsonga customary law to
one Mr Moyana, now deceased. After Mr Moyana’s death Ms Mayelane, the first wife,
challenged the validity of Ms Ngwenyama’s marriage on the ground that the RCMA required a
husband to obtain the consent of his first wife to contract a valid further customary marriage,
and that Mr Moyana had not obtained such consent.
The High Court found the Mr Moyana’s further marriage to Ngwenyama to be invalid for not
complying with section 7(6) of the Recognition Act. It left the matter of the requirement of the
first wife’s consent undecided. Ngwenyama appealed to the SCA.
The court heard an appeal from the decision of the high court that declared Ngwenyama’s
marriage to her deceased husband invalid because the latter did not apply to court to get its
approval for the contract regulating the matrimonial property of the spouses before marrying her
as the second wife in terms of section 7(6) of the Recognition of Customary Marriages Act 120
of 1998.
Ngwenyama’s that was negotiated, entered into or celebrated without a prior court approval of a
section 7(6) contract was valid or not.
The SCA’ approach was to examine the provisions of section 7(6) of the Recognition of
Customary Marriages Act 120 of 1998 to establish whether their non-observance could have
had a bearing on the validity of a customary marriage at all. This was in view of the fact that
17
ordinarily the validity of the customary marriage is regulated by section 3 of the Act; and section
7(6) regulates regimes of matrimonial property only.
concerned with matters of matrimonial property, and had nothing to do with the validity of the
customary marriage which was regulated by section 3 of the Act. The SCA held accordingly that
the non-observance of the section 7(6) did not affect the validity of the customary marriage. At
most, such non-observance left the customary marriage out of community of property.
According to the SCA the purpose of the Recognition Act is to protect all women, not just a
particular woman. The SCA did not find it necessary to determine whether the consent of
Mayelane, as the deceased’s first wife was required for the validity of Ngwenyama’s marriage to
the same husband.
The SCA’s determination that the non-observance of the provisions of section 7(6) of the
Recognition Act does not affect the validity of the customary marriage is to be commended as
such matters are clearly dealt with by the provisions of section 3. Consequently it held that the
marriage of Ngwenyama to her deceased husband was valid despite the non-observance of the
provisions of section 7(6) Recognition Act. It emphasised that the purpose of the Recognition
Act is to protect all wives, not just the first wife. As there was no suggestion that section 3
Recognition Act which deals with issues of validity was not complied with, there was no basis for
invalidating the marriage.
However, the SCA’s refusal to inquire into the impact of the lack of the first wife’s consent to her
husband’s further marriage to another woman is to be lamented because the high court had
already found that lack of such consent was problematic. The SCA therefore erred in holding
that because the validity of Ngwenyama’s marriage was not invalidated by the deceased’s
failure to comply with the section 7(6) provisions, it was therefore not necessary to investigate
the role of the first wife’s consent.
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The Constitutional Court found it necessary to investigate whether the relevant Xitsonga custom
allowed the deceased to marry Ngwenyama as a second wife without first obtaining the consent
of his first wife, Mayelane. The court’s approach was to collect affidavits from the community
about the need for the husband to obtain his first wife’s consent to her husband’s further
marriage to another woman. The court’s majority held that the Recognition Act did not contain a
requirement for the first wife’s consent and that Xitsonga customary law did not have a uniform
rule in this regard. The court decided in these circumstances to develop Xitsonga customary law
to include the rule that the first wife’s consent to her husband’s further marriage to another
woman is a requirement for the validity of a further marriage. The consequence was that non-
compliance with the rule would result in the attempted subsequent marriage being invalid.
Unfortunately the court, in the absence of a uniform customary law rule on consent, chose the
one requiring consent, not the other. Having done that the Constitutional Court developed the
version of Xitsonga customary law it favoured and gave it the stamp of the Constitution.
Accordingly, the Constitutional Court, per Fronemann J, upheld the appeal, concluding that
Ngwenyama’s marriage to her deceased husband was invalid since it was irregularly entered
into without the necessary consent of the first wife.
The minority judgments of Zondo J and Jafta J are instructive in assessing the performance of
the Constitutional Court’s majority decision in this matter. Both justices take issue with
Foremann J’s approach in taking a lot pains collecting evidence to prove what was already
clearly established on record. According to Jafta J Mayelane’s evidence that her deceased
husband never sought and obtained consent to marry Ngwenyama was never refuted by the
latter. Foremann J should therefore have accepted this fact as established, instead of calling for
further evidence. Lacking consent, which is necessary according to the particular community’s
19
tradition in terms of the unrefuted evidence, means that the subsequent marriage was not
negotiated and entered into or celebrated in the manner required by custom.
Section B The development of the Customary law of Succession
Apply the provisions of the Reform of the Customary Law of Succession and Regulation
of Related Matters Act 11 of 2009 to test the validity of the following judgments
(Remember to start case discussions properly by giving the names of the parties; the legal
(a) Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and
Another 1998 (2) SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867
(SCA).See section A above.
(b) Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27 (C), Bhe v
The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President
of Republic of South Africa 2005 (1) BCLR 580 (CC), See section C below.
(c) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases (Shilubana and
Others v Nwamitwa 2007 (2) SA 432 (SCA) and Shilubana and Others v Nwamitwa
2008 (9) BCLR 914 (CC).
Philia Shilubana, of the Valoyi traditional community, in the Limpopo Province of South
Africa, was not appointed as a traditional leader (hosi) of her people when her father died
in 1968. As a woman she could not be appointed due to the laws of unfair discrimination
at the time. Instead her father’s brother, Richard Nwamitwa, was appointed as the
traditional leader (hosi). When the latter died in 2001, the Valoyi Traditional Authority
took a resolution to appoint Philia Shilubana as the traditional leader (hosi) relying on the
constitutional provision for gender equality which motivated the community to adapt its
rules. This resolution amended the past practice of the community which indicated the
eldest son of the previous hosi as the successor to his father as the new traditional
leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s son, sought to dispute Philia
Shilubana's appointment, relying on past practice based on his purported right as the
eldest son of the previous hosi.
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The matter was decided in favour of Sidwell Nwamitwa in both the High Court and the
SCA, in terms of the community’s past practice.
In a unanimous judgment, the Court decided that Ms Shilubana was legally appointed as
the legitimate traditional leader (hosi) of the Valoyi people. The Court emphasised the
fact that customary law is a living system of law. As such it was not bound by historical
precedent. Its flexibility allowed it to evolve as its community changed. Once it was clear
that the contemporary practices of the community have replaced its past practices, the
latter no longer applied.
Because of this, the Constitutional Court deviated from prior decisions that had served as
a test for determining the content of customary law even though they indicated long-
standing and historical practices. Instead the Court redefined customary law as a system
that reflected the current practices of the particular community. Living customary law
came to be defined with reference to the constantly evolving practices that indicate the
current system of norms by which that community has chosen to live.
The Constitutional Court held that the customary law regarding the appointment of a
traditional leader (hosi) had legitimately evolved to allow for the appointment of a woman
as a traditional leader (hosi) and that this development was consistent with the
Constitution. After finding that Philia Shilubana had been validly appointed the
Constitutional Court upheld the appeal, thus confirming her appointment as a traditional
leader (hosi) of her Valoyi community.
Bear in mind that this was after this particular community (Valoyi community) had
decided to adapt its laws consistently with the Constitution. Other communities will be
judged according to their own contemporary practices.
21
Own comment on customary law values and the Constitution
The Constitutional Court very well endorsed the community’s right to develop their law,
thus protecting their right to develop their culture. In doing so the court unfortunately
destroyed the rule regulating the customary law of succession from one generation to
another. The Constitutional Court ignored that according to customary law, lineage is
important and that the position of successor must be held by someone capable of
producing a future Nwamitwa heir. In appointing Philia, the court should not have left
future succession hanging. It should have made it clear that it was doing so because of
her status as a princess, and add that in order to uphold lineage of the Nwamitwa royal
line, after her death the position would revert to a qualifying Nwamitwa prince/princess.
Therefore, the court did a good thing (promoting gender equality) and (not so good as it
failed to promote culture).
Section C The development of living customary law under the Constitution

Apply the evolving principles in post-apartheid customary law
(Remember to start case discussion properly by giving the names of the parties; the legal
Mabuza v Mbatha 2003 (7) BCLR 43 (C) Mabena v Letsoalo 1998 (2) SA 1068 (T)
These two cases are about how the courts have negotiated the transition from the old order to
the present. Mabuza demonstrates the transition from a society that defined customary
marriage with reference with reference to the elaborate ukumekeza tradition that was best
suited to the previous rural set-up, and that it is no longer necessary in the current urban
conditions. Mabena is about how independent and adult youths have been empowered to
negotiate their own customary marriages; and that the involvement of their fathers is no longer
essential for this purpose. As the law lived by communities in actual current social practice,
living law endorsed after the court looked at the current situation in the country. These cases
can also illustrate the extent of transformation in the law of marriage as well, especially the
issue of validity. See also Maluleke v Minister of Home Affairs Case no 02/24921 [2008]
ZAGPHC 129 (9 April 2008) (unreported) where the court held that even though the integration
of the bride might not have been observed, but the spouses themselves showed by the way
they related to each other that they accepted that they were husband and wife. Therefore, in a
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difficult case, where, after the negotiations have been completed, the requirements of "entered
into or celebrated" cannot be proved, the behaviour of the spouses towards each other
becomes important.
Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC) is
proof that customary law and common law are equal components of South African law and the
time when customary law was viewed with reference to common law was over. The current
status of customary law is that of an original and independent system that has its own values
and norms.
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) is authority for ascertaining the
applicable customary law. You find it by looking at the community's past practice, which is their
customary law. Past practice continues to apply until it is clear that such practice has changed.
In the latter event one must look at the current social practice to find the applicable customary
law. It is also important to note that section 211(2) of the Constitution empowers communities to
make and amend their laws. In Shilubana this was done by an amendment in which the
community aligned their law with Constitution, making females equal to males for the purposes
of appointment to traditional leadership positions.
Republic of South Africa 2005 (1) BCLR 580 (CC)) is authority for jettisoning the discredited
apartheid rule entrenched in section 23 of the Black Administration Act (BAA), which preferred
males to females in matters of succession. As a result, section 23 of the BAA, the principle of
male primogeniture; the distinction between legitimate and illegitimate children were all declared
unconstitutional and removed from customary law. The court went on to incorporate the
provisions of the Intestate Succession Act, 81 of 1987, dealing with child portions. After making
the necessary adjustments, all the children of the deceased, legitimate and illegitimate, together
with all his widows/widowers must get child portions. Textbook pages 173-182
Understanding customary law in its post-transformation state and contrast it with its pre-
transformation state.
23
The following quotation shows you how to describe post-apartheid customary law:
Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC) paras 34-35
it is well established that customary law is a vital component of our constitutional system,
recognised and protected by the Constitution, while ultimately subject to its terms. The
true nature of customary law is as a living body of law, active and dynamic, with an
inherent capacity to evolve in keeping with the changing lives of the people whom it
governs,
On this basis the court held that the traditional authority cannot deny constitutional
rights/freedoms to members of the community who wish to enjoy/ exercise them
You must compare the above with the following quotation from pre-recognition
customary law:
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 of indigenous law in so
far as such law can be ascertained readily and with sufficient certainty: Provided that
indigenous law shall not be opposed to the principles of public policy or natural justice.
What is the difference? – the first quotation emphasises a customary law that is
recognised and protected by the Constitution – that is living, active and dynamic, and
part of the lives of the people; and - the second quotation merely refers to taking of
judicial notice, not recognition; it puts customary law at the level of foreign law, as
opposed to a vital component of our constitutional system; it requires customary law
to be proved before being used (ie ascertained readily and with sufficient certainty), as
opposed to being applies as in section 211(3) of the Constitution. Lastly, and most
importantly, pre-recognition customary law was used, not as of right, but subject to a
condition, namely: Provided that indigenous law shall not be opposed to the principles of
public policy or natural justice. In other words, there was a suspicion that indigenous law
might be contrary to good morals if used unchecked. When you notice that the italicised
phrases were never used in describing the common law you will realise that these two
components of South African law were never treated with equality in the past.
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ukufakwa, isondlo and others that indicate the centrality of ubuntu in African traditions,
See Textbook pages 188-194; the study guide pages 81-84;
1 Study the elements of concepts ukufakwa, isondlo and others to determine the operation of
such features of ubuntu such as communal living, group solidarity, shared belonging, collective
ownership, the ethos of co-operation and the ethic of reciprocity.
Ukufakwa entails a situation where a relative of a woman’s father, namely, brother, uncle,
cousin, nephew, you name it, takes the responsibilities of the father and ensures that the
customary traditions and ceremonies related to the initiation and/or marriage of the father’s
daughter are carried out as if the relative himself was the father. This entitles the relative to a
pro rata portion of the value of the lobolo goods expected from the marriage goods deliverable
when the daughter gets married, or received as fines imposed as a result of delicts committed
on that daughter.
The relative thereby gets entitled to such portion as of right, directly from its source (that is, as
the goods are identified for delivery as lobolo goods the relevant portion already at that stage,
belongs to the relative. This is to say, that portion never starts belonging to the father from the
beginning and the father does not have access to it. To the extent of this portion, the relative
becomes the father of the daughter in his own right. He does not have to claim the portion from
the property of the father since it already belongs to him.
That is why if such goods are never delivered for whatever reason the relative does not have a
claim against the father. He was never going to receive the goods from the father anyway. In
such a case the relative also suffers his share of the 'nothing received'. However, the relative
remains entitled to the portion if the goods are eventually received from the marriage goods of
any subsequent daughter even if he never contributed to the ceremonies of the latter.
The attributes ubuntu as found in ukufakwa include the following:
Communal living is revealed in that relatives are a family and members of one home. They
share the joys of unity as well as the pains that go with it. Nobody’s nakedness should be
exposed. In the same vain no one should be enriched at the expense of another. This is our
home, these are our children. We must bring them up together for our collective betterment.
25
Shared sense of belonging is also revealed. No one belongs alone, nor does anyone enjoy
wealth alone or suffer poverty alone. Umuntu ngumuntu ngabantu/motho ke motho ka batho - a
human being derives his/her humanity from other humans. Life is shared. No child must suffer
because of the condition of their parents, but must experience the same upbringing as other
children. To be meaningful your prosperity must positively influence the condition of your family.
The latter must also use their abilities to assist you to assist them.
Group solidarity: Your brother’s problem is your problem. His shame is your shame. If he fails
and gets despised, you are also associated with that failure. If your brother’s daughter gets
disgraced at her marriage home for falling short of what was expected, her father and his
relatives get disgraced more. If she is Ms Khumalo, all her relatives are Khumalo. Nobody can
afford to let that name go down. An injury to one Khumalo is an injury to all Khumalos.
Reciprocity. The good that you do will be done to you (izandla ziyahlambana – the hands wash
each other). There is no permanent loss. What is paid out will be paid back. One hand washes
the other. Nobody should be reluctant to help others because the others will also be pleased to
reciprocate in future. A good deed is an investment. When you assist the niece it looks like you
are losing, but you receive the goods later the favour is returned. Ubuntu requires you to send
your sister's children to university. It also requires those children to assist you in old age.
Collective ownership of assets. Brothers belong to a home which is the real owner of their
productive activities. This is a Khumalo home to whose growth and development all the
Khumalos can and must contribute. After all, one Khumalo’s cattle, are the cattle of all the
Khumalos. All Khumalos clai: 'these are our cattle' (zinkomo zakuthi ezi).The cattle are a
collective Khumalo fund. What I pay out is paid out from the Khumalos’ fund (albeit
administered by me), and what I receive is received by me into the Khumalos' fund. Our
individual and collective efforts are directed at upholding this name, which is who we all are.
The daughter’s ceremonies are still financed by the Khumalo home, regardless of the particular
individual who is the father or his brother.
This list is not exhaustive. You may also add the attributes of generosity, respect, responsibility,
accountability, trust, honesty etc. All these features and many more can be found in the attribute
of good living found in the institution of ukufakwa institution which urges humans (particularly
relatives), to extend a hand of brother/sisterhood through the sharing of joys and pains for their
collective good. This is what ubuntu is all about – to live your life selflessly and for others, who
also live theirs selflessly for you, and for the world. In ubuntu we see rules of good living.
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LCP4804/201
The family head's liability
Evaluate the concept of communal legal personality in terms of which the corporate family home
as represented by the family head is liable for individual family members’ delictual and
contractual obligations and the impact of the notion of majority age as entrenched in the
Children’s Act 38 of 2005 on this liability since the indigenous principle of primogeniture and the
constitutional right to equality co-exist in our law.
2. In answering this question, you must display knowledge of the position occupied by the family
head in relation to the other members of the family and how this affects everyone’s legal
personality. This must be understood in the context of the notion of collective ownership of
property, which circumscribes the family head’s dealings with the family estate and its assets.
This background must feature in the analysis in family relations governing liabilities against and
claims for damages in the event of delicts committed and contracts breached by members of the
family as well as similar wrongs committed against them. Higher marks will be earned if the
application reflects an appreciation of the values that underpin this relationship such as
communal living, a shared sense of belonging and fraternal solidarity. You must point out that
the Children’s Act 38 of 2005 makes everyone a major at 18 years. Whilst this is so, a lot of
such teenagers still live with their parents and are subject to family orders and discipline.
See you there!!!
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LCP4804/101/3/2017

LCP4804
Semester 1
Public, Constitutional and International law
about your module.
module code/101
BARCODE
BARCODE
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CONTENTS
Page
Page
1. FEEDBACK ON ASSIGNMENT 01 ............................................... 4

2. FEEDBACK ON ASSIGNMENTS 02 & 03………………………
Error! Bookmark not defined.
3. FORMAT OF THE OCTOBER/ NOVEMBER EXAMINATION .... 13
Dear Students
Read this tutorial letter carefully. It contains commentary on Assignment
01, Assignment 02 and Assignment 03 for the first semester of 2018. It
further contains information on the forthcoming May/June 2018
examinations. We hope that the feedback on Assignments will provide an
insight into what is expected of you in the examinations. We trust that you
found the assignments exciting, and that you are coping well with the
workload.
The Study guide
From your assignments you will have noticed that your Study Guide did
not play a major role in your questions and answers. The reason for this
is that the Study Guide is under review. It was compiled long before the
developments that gave rise to most of the prescribed cases and statutes
that are topical in customary law. A lot has changed since then. Its
importance has therefore since waned over time. Yet it is still a good guide
to show you how to understand the module in general, and in particular,
study unit 2, (marriage) study unit 3, particularly contracts where
(ukufakwa and other indigenous institutions) can be found and lastly study
unit 5 for the troubled (primogeniture) principle. In order to understand the
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module code/101
important issues discussed in the assignments and examination the Study

Guide is the starting point. However, cases and statutes are more
important in answering questions.
Assignment 01 was relatively simple and should not have given you too much trouble.
This was a compulsory assignment, consisting of MULTIPLE choice questions. You
had to mark either (1) (2) & (3) for each of the questions on the Unisa Mark-
reading sheet. You did not have to give reasons for your answers.
1 1
2 1
3 2
4 2
5 3
6 2
7 2
8 2
9 1
10 3
You must make sure that you study the cases listed in these questions so
that you can discuss them in the examination. Experience has shown that
some students get the answers right but fail the examination requiring
them to discuss the same cases. It does not help to pass an assignment
if you fail the examination. Those who never deserved to pass the
assignment will be exposed one day. And that day will come!
FEEDBACK ON ASSIGNMENT 02
Question 1
The indigenous normative values of customary law found in
concepts such as ukufakwa, isondlo and others that indicate the
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centrality of ubuntu in African traditions, See Textbook pages 188-

194; the study guide pages 81-84;
1 Study the elements of concepts such as ukufakwa, isondlo and others
to determine the operation of such features of ubuntu such as communal
living, group solidarity, shared belonging, collective ownership, the ethos
of co-operation and the ethic of reciprocity.
Ukufakwa entails a situation where a relative of a woman’s father, namely,

brother, uncle, cousin, nephew, you name it, takes the responsibilities of
the father and ensures that the customary traditions and ceremonies
related to the initiation and/or marriage of the father’s daughter are carried
out as if the relative himself was the father. This entitles the relative to a
pro rata portion of the value of the lobolo goods expected from the
marriage goods deliverable when the daughter gets married, or received
as fines imposed as a result of delicts committed on that daughter.
The relative thereby gets entitled to such portion as of right, directly from
its source (that is, as the goods are identified for delivery as lobolo goods
the relevant portion already at that stage, belongs to the relative. This is
to say, that portion never starts belonging to the father from the beginning
and the father does not have access to it. To the extent of this portion, the
relative becomes the father of the daughter in his own right. He does not
have to claim the portion from the property of the father since it already
belongs to him.
That is why if such goods are never delivered for whatever reason the
relative does not have a claim against the father. He was never going to
receive the goods from the father anyway. In such a case the relative also
suffers his share of the 'nothing received'. However, the relative remains
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entitled to the portion if the goods are eventually received from the
marriage goods of any subsequent daughter even if he never contributed
to the ceremonies of the latter.
The attributes of ubuntu as found in ukufakwa include the following:
Communal living is revealed in that relatives are a family and members

of one home. They share the joys of unity as well as the pains that go with
it. Nobody’s nakedness should be exposed. In the same vain, no one
should be enriched at the expense of another. This is our home, and the
young woman is our child. We must bring them up together for our
collective betterment.
Shared sense of belonging is also revealed. No one belongs alone, nor

does anyone enjoy wealth alone or suffer poverty alone. Umuntu
ngumuntu ngabantu/motho ke motho ka batho - a human being derives
his/her humanity from other humans. Life is shared. No child must suffer
because of the condition of their parents, but must experience the same
upbringing as other children. Brotherhood is about sharing both your
prosperity and your misery as family members so that the young woman
can succeed.
Group solidarity: Your brother’s problem is your problem. His shame is

your shame. If he fails and gets despised, you are also associated with
that failure. If your brother’s daughter gets disgraced at her marriage
home for falling short of what was expected, her father and his relatives
get disgraced more. If she is Ms Khumalo, all her relatives are Khumalo.
Nobody can afford to let that name go down. An injury to one Khumalo is
an injury to all Khumalos. The strength of that unity lies in their ability to
convert their misery to prosperity. Together the Khumalos must succeed
in lifting the young woman to success.
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Reciprocity. The good that you do will be done to you (izandla

ziyahlambana – the hands wash each other). There is no permanent loss.
What is paid out will be paid back. One hand washes the other. Nobody
should be reluctant to help others because the others will also be pleased
to reciprocate in future. A good deed is an investment. When you assist
the niece it looks like you are losing, but when you receive the goods later
the favour is returned. Ubuntu requires you to help your sister's child to
success. It also requires such a child to assist you in old age. That is why
the relative does not have to be paid where there are no goods.
Collective ownership of assets. Brothers belong to a home which is the

real owner of their productive activities. This is a Khumalo home to whose
growth and development all the Khumalos can and must contribute. After
all, one Khumalo’s cattle, are in fact, the cattle of all the Khumalos. All
Khumalos claim: 'these are our cattle' (zinkomo zakuthi ezi). The cattle
are a collective Khumalo fund. What I pay out is paid out from the
Khumalos’ fund (albeit administered by me), and what I receive is received
by me into the Khumalos' fund. Our individual and collective efforts are
directed at upholding this name, which is who we all are. The daughter’s
ceremonies are still financed by the Khumalo home, regardless of the
particular individual who is the father or his brother.
This list is not exhaustive. You may also add the attributes of generosity,
co-operation, respect, responsibility, accountability, trust, honesty etc. All
these features and many more can be found in the attribute of good living
found in the institution of ukufakwa institution which urges humans
(particularly relatives), to extend a hand of brother/sisterhood through the
sharing of joys and pains for their collective good. This is what ubuntu is
all about – to live your life selflessly and for others, who also live theirs
selflessly for you, and for the world. In ubuntu we see rules of good living.
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Question 2
(a) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana
cases (Shilubana and Others v Nwamitwa 2007 (2) SA 432
(SCA) and Shilubana and Others v Nwamitwa 2008 (9) BCLR
914 (CC).
Philia Shilubana, of the Valoyi traditional community, in the Limpopo

Province of South Africa, was not appointed as a traditional leader
(hosi) of her people when her father died in 1968. As a woman she
could not be appointed due to the laws of unfair discrimination at the
time. Instead her father’s brother, Richard Nwamitwa, was
appointed as the traditional leader (hosi). When the latter died in
2001, the Valoyi Traditional Authority took a resolution to appoint
Philia Shilubana as the traditional leader (hosi) relying on the
constitutional provision for gender equality which motivated the
community to adapt its rules. This resolution amended the past
practice of the community which indicated the eldest son of the
previous hosi as the successor to his father as the new traditional
leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s son, sought
to dispute Philia Shilubana's appointment, relying on past practice
based on his purported right as the eldest son of the previous hosi.
The matter was decided in favour of Sidwell Nwamitwa in both the

High Court and the SCA, in terms of the community’s past practice.
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The case was eventually taken on appeal to the Constitutional

Court.
In a unanimous judgment, the Court decided that Ms Shilubana was

legally appointed as the legitimate traditional leader (hosi) of the
Valoyi people. The Court emphasised the fact that customary law is
a living system of law. As such it was not bound by historical
precedent. Its flexibility allowed it to evolve as its community
changed. Once it was clear that the contemporary practices of the
community have replaced its past practices, the latter no longer
applied.
Because of this, the Constitutional Court deviated from prior

decisions that had served as a test for determining the content of
customary law even though they indicated long-standing and
historical practices. Instead the Court redefined customary law as
a system that reflected the current practices of the particular
community. Living customary law came to be defined with
reference to the constantly evolving practices that indicate the
current system of norms by which that community has chosen to
live.
The Constitutional Court held that the customary law regarding the
appointment of a traditional leader (hosi) had legitimately evolved
to allow for the appointment of a woman as a traditional leader
(hosi) and that this development was consistent with the
Constitution. After finding that Philia Shilubana had been validly
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appointed the Constitutional Court upheld the appeal, thus

confirming her appointment as a traditional leader (hosi) of her
Valoyi community.
Bear in mind that this was after this particular community (Valoyi
community) had decided to adapt its laws consistently with the
Constitution. Other communities will be judged according to their
own contemporary practices.
The Constitutional Court very well endorsed the community’s right

to develop their law, thus protecting their right to develop their
culture. In doing so the court unfortunately destroyed the rule
regulating the customary law of succession from one generation to
another. The Constitutional Court ignored that according to
customary law, lineage is important and that the position of
successor must be held by someone capable of producing a future
Nwamitwa heir. In appointing Philia, the court should not have left
future succession hanging. It should have made it clear that it was
doing so because of her status as a princess, and add that in order
to uphold lineage of the Nwamitwa royal line, after her death the
position would revert to a qualifying Nwamitwa prince/princess.
Therefore, the court did a good thing (promoting gender equality)
and (not so good as it failed to promote culture).
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Question 3
The transformative role of the following post-apartheid statutes in the

development of customary law:
(a)Recognition of Customary Marriages Act 120 of 1998
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.
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.
(b) Traditional Leadership and Governance Framework Act 41 of

2003 as amended by Act 23 of 2009.
Again the Traditional Leadership and Governance Framework Act

41 of 2003 has its origins in the recognition of customary law by the
Constitution. Prior to the constitutional changes the traditional
leaders were not given their proper status. They were called chiefs,
not Traditional Leaders and were given functions to do as apartheid
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stooges, who were paid to enforce oppressive statutes against their

own people in exchange for some stipend.
The advent of Traditional Leadership and Governance Framework

Act 41 of 2003 ushered in an era of democratic traditions for the
appointment of traditional leaders, who are now free to be
addressed by their traditional titles (iNkosi Buthelezi, Nkosi
Holomisa, Kgosi Pilane), and no longer insulted as ‘chief’. The Act
provides for the appointment of women as traditional leaders where
necessary to enhance gender representativity. Traditional Leaders
are no longer chosen by the ‘State president as the Supreme Chief
of all natives’, but are identified by the royal family for appointment
by the government, to reduce the danger of appointing government
stooges.
©The Reform of Customary Law of Succession and Regulation of

Related Matters Act 11 of 2009.
The recognition of customary law by the Constitution meant that the Bill of
Right had to be respected in the sphere of succession. The discredited
principle of male primogeniture, which preferred senior males over women
and junior males, had to go. The Act implemented the judgment of Bhe v
Magistrate Khayelitsha, which abolished discrimination on the basis of
race, gender, marital status, birth, age etc for the purposes of succession.
The Act imported The Intestate Succession Act into customary law to
introduce inheritance by child portions for sharing by the deceases wife or
wives, children, legitimate or not etc.
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The 2017 Oct/Nov examination will be a Two-hour examination paper. The

paper consists of a total of 100 marks.

Study all the prescribed tutorial matter and do not “spot”.
Therefore you must study all sections of the work.Note the
following:

1 Study the Recognition of Customary Marriages SAct, 120 of 1998;
Traditional Leadership and Governance Framework Act, 41 of 2003;
and the Reform of customary Law of Succession and Regulation of
Related Matters Act 11of 2009. What is important is to be able to
demonstrate the transformation these Acts brought about in the
sphere of customary law.
2 Find the cases/sources from which all the extracts/quotes in
Assignment 1 come from, not just those that were chosen as the
right answers for the assignment.
3 Study Tutorial Letter 201 of 2017 and Revise your assignments,
especially the solutions to Assignment 02 (above) and Assignment
03 (below).
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4 Use Assignments 02 and 03 as models for answering the

examination questions
5 When preparing for the examination please make sure that you take
particular note of the feedback to Assignments 02 and 03.
Assignment 03 is a self-evaluation assignment. It is a prepartory exercise

for the examination When you join the legal profession, you will have
to evaluate your own arguments and submissions and you should,
therefore, acquire this skill as soon as possible.
1. The questions in the assignment cover all the study units in the study
guide. Since the questions are similar to the kinds of questions you
may expect in the examination, you should view this assignment as
a valuable revision exercise in your examination preparation.
2. After you have answered the assignment questions, please

evaluate your own answers by using the commentary that
follows below
3. In this commentary, we give you the answers to the questions The

purpose of this is to show you how to approach and answer a
question. The knowledge obtained in this way can thus then be
applied when answering the questions in the examination.
NOTE: Please do not submit this assignment to us for marking. We

repeat: this assignment is a self-evaluation assignment and should
not be handed in for marking. If you have any difficulties with any of
the questions in the assignment, and our commentary does not
assist you, please contact us.
Answer the following questions as seriously as possible. The exam
will consist of longer and shorter questions which total up to 100
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marks. Your mark will be converted to a mark out of 80 because your

two assignments amount to a mark out of 20.
Each of the following sections are important for your preparation for
the examination.
Assignment 03
Apply the provisions of the Recognition of Customary Marriages Act 120

of 1998 regarding the requirements for a valid customary marriage to test
the validity of the following judgments.
(Remember to start case discussion properly by giving the names of the

parties; the legal question that was answered by the court, the reasons
for judgment (ratio decidendi) given by the court and the decision of the
court).
Introduction
In November 1996, Le Roux J heard an application by the applicant,

Mildred Hleziphi Mthembu, who approached the court for relief in a matter
of succession to the estate of her deceased husband, one Tebalo Watson
Letsela, to whom she claimed to have been married by customary law.
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1.1. that the rule of African customary law which generally
excludes African women from intestate succession ("the
customary law rule") is inconsistent with the Constitution
1.2. that s 23 of the Black Administration Act 38 of 1927 ("the
Act") and s 2 of the Regulations for the Administration
and Distribution of the Estates of Deceased Blacks made
under s 23(10) of the Act [and published] by Government
Notice R200 of 6 February 1987 ("the regulations") are
invalid insofar as they demand the application of the
customary law rule;
1.3. that the administration and distribution of the estate of her
late husband, Tebalo Watson Letsela ("the deceased") is
governed by the common law of intestate succession;
and
Before his death Letsela (the deceased) was employed in Boksburg and
owned a house at 822 Ditopi Street, Vosloorus, in which he had lived with
the applicant (the widow) since 1990, together with their daughter, Tembi,
who was born on 7 April 1988. In the same house also lived Letsela's
parents, his sister and her daughter.
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The deceased died on 13 August 1993 and the first respondent, Henry K
Letsela, (father of the deceased) was appointed by the second respondent
(the Magistrate, Boksburg) to administer and wind up the estate. He
claims that the house in Ditopi Street devolves upon him according to the
rules of customary law. The rules are recognized by s 23 of the Black
Administration Act 38 of 1927 and the regulations made under the
authority of the Act, especially reg 2 of 6 February 1987 promulgated in
Government Gazette 10601 as Government Notice (5) R200. This
regulation provides for customary law to apply to the devolution of the
estate of a black person who dies intestate. The most important customary
law rule is the one of male primogeniture in the customary law of
succession in terms of which only first-born or precedent males may
inherit in cases of intestacy, to the exclusion of females and junior males.
First respondent claimed that he has no responsibilities toward applicant,
either to house her or to maintain her and her daughter; denied the
existence of a customary marriage between the applicant and his son and
rejected any suggestion that the applicant and her daughter were part of
his family. In her reply, the applicant produced witnesses and documents
to prove the existence of a valid customary marriage between herself and
the deceased, including the information that lobolo was formally fixed at
R2,000 and that by the time of his death, her deceased husband had paid
R900 towards this sum.
The first respondent relied mainly on the argument that there was no valid
customary marriage between his son and the applicant and that
consequently she neither has any rights as a wife in this matter nor does
he owe her and her daughter any obligations.
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The court found that the customary law rule excluding women from
inheritance is prima facie discriminatory on the grounds of sex or gender
but not unfairly so because of the concomitant duty of support. Mindful
that the constitutional issue (unfairly discriminatory on the grounds of sex
or gender) might assume a different complexion if the facts revealed that
there had been no customary marriage between applicant and deceased,
Le Roux J realized that the concomitant duty of support would cease to
be a consideration and the investigation into the constitutionality of the
rule would have to take different factors into account. The court
accordingly referred the matter for the hearing of oral evidence on: (a)
whether there was a valid customary marriage between the applicant and
the deceased; or (b) whether a putative marriage under customary law
existed between them.
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Whether a customary marriage existed between Mthembu (applicant) and

Letsela (deceased) and whether Tembi (daughter) was a legitimate child
The hearing of oral evidence took place in August 1997 in a case presided
over by Mynhardt J. Neither the applicant nor the first respondent adduced
any evidence and the application was accordingly determined on the basis
that no customary marriage existed between Mthembu and the deceased
and that Tembi was therefore illegitimate.
On the question of the court 'developing' customary law in line with the
spirit, purport and objects of the Bill of Right, applicant's counsel made a
strong case for customary law to be coaxed towards equality, which is a
value fundamental to the Constitution.
Arguing that the issue of discrimination on the grounds of sex or gender

is ‘academic’ in this case because the real reason for Tembi’s
disqualification from inheritance is her illegitimacy, the Court refused to
‘develop’ customary law in the direction suggested.
“In the present case I therefore decline the invitation to develop the
customary law of succession which excludes women from
participating in intestacy and which also excludes children who are
not the oldest male child. In any event, because the development of
that rule, as proposed by Mr Trengrove, would affect not only the
customary law of succession but also the customary family law
rules, I think that such development should rather be undertaken by
Parliament.
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The Court dismisses the application with costs, and grants leave to
appeal.
An appeal against the decision of Mynhart J who dismissed the application

to declare that a customary marriage existed between applicant and the
deceased and declared that Tembi was a legitimate child
Justices of Appeal Smalberger, Marais, Zulman and Mpati, and Acting

Justice of Appeal Mthiyane heard the appeal on 4 May 2000 in the
Supreme Court of Appeal. Counsel for the appellant raised the same four
grounds of attack against the customary law rule of male primogeniture
which had been dismissed by Mynhardt J in the court a quo. He stated,
however, that he would not advance oral argument in respect of the first
two grounds and would instead concentrate on the last two grounds which
were based on the proposition that:
1. Tembi would have succeeded by intestate succession at customary

law to her deceased father's estate but for the fact that she is
female, and that
2. the customary law rule of primogeniture is offensive to public policy

or natural justice (within the meaning of s 1(1) of the Law Evidence
Amendment Act, 1988).
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The Court dismissed both arguments and went on to consider the

invitation to develop customary law according to the ‘spirit, purport and
objects’ of the Bill of Rights. On this point, counsel for the appellant had
argued that the customary law rule was based on ‘inequity, arbitrariness,
intolerance and inequality,’ all of which are repugnant to the new
constitutional order. The Court was urged to develop the rule so that it
sheds its discriminatory elements and allows male and females, legitimate
and illegitimate, descendants to inherit.
The court was not convinced, arguing that Tembi was excluded by
illegitimacy not gender and that it was undesirable to pronounce on such
an important constitutional question in a case in which the issue was
academic.

The place of this case in history is assured for the simple reason that it
fielded the first salvo in what was to become a sustained battle against
the primogeniture rule which was to culminate in the case of Bhe. Several
points about the Mthembu cases are worth noting.
i. Some of the earliest criticisms of the outcome in Mthembu
were based on concerns that the court did not give enough
weight to the distinction between official customary law, on the
one hand, and day-to-day community practice, on the other. At
the time, under attack was the conclusion of Le Roux J that the
concomitant duty of support attaching to the heir’s right to take
all the property to the exclusion of girls and women had the
effect of ‘saving’ the customary law rule from constitutional
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attack. This was because the duty of support rendered the

discrimination not to be unfair.
This criticism is justified but the point usually overlooked is the
impact of the approach of the court. In deciding to assess an
African customary practice on its own merits without assuming
its inferiority to some other “mainstream” notions of propriety,
the court sent a strong signal about the future of customary law
in a constitutional dispensation.
ii. The failure to recognise the existence of a marriage between

Hleziphi Mthembu and the deceased was another lost
opportunity – this time to force the issue of the existence of a
marriage so as to ensure the centrality of the real constitutional
issue, sex and gender, as opposed to illegitimacy. The point
could have been canvassed more forcefully, with a fair chance
of success.
One must always be mindful of that important truism in

customary law: ‘African customary marriage is a process, not an
event’. According to many systems of customary law a
relationship between a man and a woman ‘ripens’ towards
marriage on the occurrence of a number of events, formal and
informal, intended or inadvertent, and the reaction of the
couple’s families to those events. Among the events and
occurrences are: discussions about lobolo, delivery of marriage
goods, cohabitation, pregnancy or the birth of a child.
All these fundamentals exist in the case of the applicant and the
deceased. The crisp legal question then becomes: “what is the
applicable legal system and, according to that legal system, do
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these fundamentals constitute a valid customary marriage?” The

judgement in the first Mthembu hearing reveals that the applicant
is Zulu and the deceased was of South Sotho stock. It would
have been worth exploring the rules in these two systems to see
whether a valid customary marriage comes into existence, in
either system, in the circumstances set out above, despite the
protestations of the first respondent. As things have turned out,
a feeling persists that a potentially fruitful avenue in inquiry has
been blocked by (or surrendered to) the first respondent, who
had the clearest material motive for denying the existence of the
marriage.
(b)Maluleke v Minister of Home Affairs Case no 02/24921 [2008]

ZAGPHC 129 (9 April 2008) (unreported), The court held:
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”.
The validity of a customary marriage was impuned on the basis that the
traditional imvume ritual, the Zulu variation of ukumekeza (Swazi), for
integrating the bride into the groom’s family, had not been observed
before the death of the husband. Tshiqi J examined the requirements for
a valid customary marriage as laid down in section 3 of the Recognition
of Customary Marriages Act.
On the basis of these requirements the judge concluded that customary

marriage has evolved over the years, and that this evolution has been
accepted by the South African courts. The judge then rejected the pre-
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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 averment that the imvume practice was
not an essential requirement for the validity of her customary marriage.
The case of Motsoatsoa v Roro All SA 324 (GSJ) is important for
emphasising the value of integration of the bride to mark the transfer from
one family to another. The case is important for understanding the
meaning of 'entered into' or celebrated in section 3(1)(b) of the Act. What
was in issue here was lack of handing over of the bride. The question was:
can the woman hand herself over? Fanti v Boto and Others 2008 (5) SA
405 (C) also does the same thing but focuses on the importance of
involvement of the two families in the formation of the customary marriage.
The question was: can the husband decide, without the involvement of his
in-laws, that their daughter is now his wife?
©Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and

Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC)
i. whether Section 7(6) of the RCMA did indeed introduce a new

requirement of validity by requiring the husband to seek his
first wife’s consent;
ii. if not, whether such consent was required in Xitsonga
customary law; and
iii. whether, if such consent had not been furnished, the court
ought to develop the customary law to insert this requirement.
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The issue was the interpretation of section 7(6) of the RCMA: whether, in
requiring a husband who wants to marry another wife to make certain
proprietary arrangements it introduces (by the back door, as it were)
another requirement for the validity of a customary marriage.
Ms Mayelane and Ms Ngwenyama both claimed to be married by Xitsonga
customary law to one Mr Moyana, now deceased. After Mr Moyana’s
death Ms Mayelane, the first wife, challenged the validity of Ms
Ngwenyama’s marriage on the ground that the RCMA required a husband
to obtain the consent of his first wife to contract a valid further customary
marriage, and that Mr Moyana had not obtained such consent.
The High Court found the Mr Moyana’s further marriage to Ngwenyama

to be invalid for not complying with section 7(6) of the Recognition Act. It
left the matter of the requirement of the first wife’s consent undecided.
Ngwenyama appealed to the SCA.
The court heard an appeal from the decision of the high court that declared
Ngwenyama’s marriage to her deceased husband invalid because the
latter did not apply to court to get its approval for the contract regulating
the matrimonial property of the spouses before marrying her as the
second wife in terms of section 7(6) of the Recognition of Customary
Marriages Act 120 of 1998.
The SCA looked at the question before court as to whether a further

marriage such as Ngwenyama’s that was negotiated, entered into or
celebrated without a prior court approval of a section 7(6) contract was
valid or not.
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The SCA’ approach was to examine the provisions of section 7(6) of the
Recognition of Customary Marriages Act 120 of 1998 to establish whether
their non-observance could have had a bearing on the validity of a
customary marriage at all. This was in view of the fact that ordinarily the
validity of the customary marriage is regulated by section 3 of the Act; and
section 7(6) regulates regimes of matrimonial property only.
The SCA, per Ndita AJA, concluded that section 7(6) of the Recognition
Act was only concerned with matters of matrimonial property, and had
nothing to do with the validity of the customary marriage which was
regulated by section 3 of the Act. The SCA held accordingly that the non-
observance of the section 7(6) did not affect the validity of the customary
marriage. At most, such non-observance left the customary marriage out
of community of property. According to the SCA the purpose of the
Recognition Act is to protect all women, not just a particular woman. The
SCA did not find it necessary to determine whether the consent of
Mayelane, as the deceased’s first wife was required for the validity of
Ngwenyama’s marriage to the same husband.
The SCA’s determination that the non-observance of the provisions of

section 7(6) of the Recognition Act does not affect the validity of the
customary marriage is to be commended as such matters are clearly dealt
with by the provisions of section 3. Consequently it held that the marriage
of Ngwenyama to her deceased husband was valid despite the non-
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observance of the provisions of section 7(6) Recognition Act. It

emphasised that the purpose of the Recognition Act is to protect all wives,
not just the first wife. As there was no suggestion that section 3
Recognition Act which deals with issues of validity was not complied with,
there was no basis for invalidating the marriage.
However, the SCA’s refusal to inquire into the impact of the lack of the
first wife’s consent to her husband’s further marriage to another woman is
to be lamented because the high court had already found that lack of such
consent was problematic. The SCA therefore erred in holding that
because the validity of Ngwenyama’s marriage was not invalidated by the
deceased’s failure to comply with the section 7(6) provisions, it was
therefore not necessary to investigate the role of the first wife’s consent.
Mayelane appealed to the Constitutional Court against the decision of the

SCA.
The Constitutional Court found it necessary to investigate whether the

relevant Xitsonga custom allowed the deceased to marry Ngwenyama as
a second wife without first obtaining the consent of his first wife, Mayelane.
The court’s approach was to collect affidavits from the community about
the need for the husband to obtain his first wife’s consent to her husband’s
further marriage to another woman. The court’s majority held that the
Recognition Act did not contain a requirement for the first wife’s consent
and that Xitsonga customary law did not have a uniform rule in this regard.
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The court decided in these circumstances to develop Xitsonga customary

law to include the rule that the first wife’s consent to her husband’s further
marriage to another woman is a requirement for the validity of a further
marriage. The consequence was that non-compliance with the rule would
result in the attempted subsequent marriage being invalid. Unfortunately
the court, in the absence of a uniform customary law rule on consent,
chose the one requiring consent, not the other. Having done that the
Constitutional Court developed the version of Xitsonga customary law it
favoured and gave it the stamp of the Constitution.
Accordingly, the Constitutional Court, per Fronemann J, upheld the

appeal, concluding that Ngwenyama’s marriage to her deceased husband
was invalid since it was irregularly entered into without the necessary
consent of the first wife.
The minority judgments of Zondo J and Jafta J are instructive in assessing

the performance of the Constitutional Court’s majority decision in this
matter. Both justices take issue with Foremann J’s approach in taking a
lot pains collecting evidence to prove what was already clearly established
on record. According to Jafta J Mayelane’s evidence that her deceased
husband never sought and obtained consent to marry Ngwenyama was
never refuted by the latter. Foremann J should therefore have accepted
this fact as established, instead of calling for further evidence. Lacking
consent, which is necessary according to the particular community’s
tradition in terms of the unrefuted evidence, means that the subsequent
marriage was not negotiated and entered into or celebrated in the manner
required by custom.
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Apply the provisions of the Reform of the Customary Law of

Succession and Regulation of Related Matters Act 11 of 2009 to test
the validity of the following judgments
(Remember to start case discussions properly by giving the names of the

court).
(c) Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu
v Letsela and Another 1998 (2) SA 675 (T) and Mthembu v
Letsela and Another 2000 (3) SA 867 (SCA).See section A
above.
(d) Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1)
BCLR 27 (C), Bhe v The Magistrate Khayelitsha; Shibi v Sithole;
Human Rights Commission v President of Republic of South
Africa 2005 (1) BCLR 580 (CC), See section C below.
(e) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana
914 (CC).

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Court.

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applied.

live.
Valoyi community.

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Section C The development of living customary law under the

Constitution
court).
Mabuza v Mbatha 2003 (7) BCLR 43 (C) Mabena v Letsoalo 1998 (2) SA
1068 (T)
These two cases are about how the courts have negotiated the transition
from the old order to the present. Mabuza demonstrates the transition
from a society that defined customary marriage with reference with
reference to the elaborate ukumekeza tradition that was best suited to the
previous rural set-up, and that it is no longer necessary in the current
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urban conditions. Mabena is about how independent and adult youths

have been empowered to negotiate their own customary marriages; and
that the involvement of their fathers is no longer essential for this purpose.
As the law lived by communities in actual current social practice, living law
endorsed after the court looked at the current situation in the country.
These cases can also illustrate the extent of transformation in the law of
marriage as well, especially the issue of validity. See also Maluleke v
Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April
2008) (unreported) where the court held that even though the integration
of the bride might not have been observed, but the spouses themselves
showed by the way they related to each other that they accepted that they
were husband and wife. Therefore, in a difficult case, where, after the
negotiations have been completed, the requirements of "entered into or
celebrated" cannot be proved, the behaviour of the spouses towards each
other becomes important.
Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12)
BCLR 1301 (CC) is proof that customary law and common law are equal
components of South African law and the time when customary law was
viewed with reference to common law was over. The current status of
customary law is that of an original and independent system that has its
own values and norms.
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) is authority
for ascertaining the applicable customary law. You find it by looking at the
community's past practice, which is their customary law. Past practice
continues to apply until it is clear that such practice has changed. In the
latter event one must look at the current social practice to find the
applicable customary law. It is also important to note that section 211(2)
of the Constitution empowers communities to make and amend their laws.
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In Shilubana this was done by an amendment in which the community

aligned their law with Constitution, making females equal to males for the
purposes of appointment to traditional leadership positions.
Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights

Commission v President of Republic of South Africa 2005 (1) BCLR 580
(CC)) is authority for jettisoning the discredited apartheid rule entrenched
in section 23 of the Black Administration Act (BAA), which preferred males
to females in matters of succession. As a result, section 23 of the BAA,
the principle of male primogeniture; the distinction between legitimate and
illegitimate children were all declared unconstitutional and removed from
customary law. The court went on to incorporate the provisions of the
Intestate Succession Act, 81 of 1987, dealing with child portions. After
making the necessary adjustments, all the children of the deceased,
legitimate and illegitimate, together with all his widows/widowers must get
child portions. Textbook pages 173-182
Understanding customary law in its post-transformation state and

contrast it with its pre-transformation state.
The following quotation shows you how to describe post-apartheid customary

law:
it is well established that customary law is a vital component of our constitutional

system, recognised and protected by the Constitution, while ultimately subject to its
terms. The true nature of customary law is as a living body of law, active and dynamic,
with an inherent capacity to evolve in keeping with the changing lives of the people
whom it governs,
On this basis the court held that the traditional authority cannot deny
constitutional rights/freedoms to members of the community who wish to
enjoy/ exercise them
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You must compare the above with the following quotation from pre-
recognition customary law:
any court may take judicial notice of the law of a foreign state and of indigenous
law in so far as such law can be ascertained readily and with sufficient certainty:
Provided that indigenous law shall not be opposed to the principles of public
policy or natural justice.
What is the difference? – the first quotation emphasises a

customary law that is recognised and protected by the Constitution
– that is living, active and dynamic, and part of the lives of the
people; and - the second quotation merely refers to taking of judicial
notice, not recognition; it puts customary law at the level of foreign
law, as opposed to a vital component of our constitutional
system; it requires customary law to be proved before being used
(ie ascertained readily and with sufficient certainty), as opposed to
being applies as in section 211(3) of the Constitution. Lastly, and
most importantly, pre-recognition customary law was used, not as
of right, but subject to a condition, namely: Provided that indigenous
law shall not be opposed to the principles of public policy or natural
justice. In other words, there was a suspicion that indigenous law
might be contrary to good morals if used unchecked. When you
notice that the italicised phrases were never used in describing the
common law you will realise that these two components of South
African law were never treated with equality in the past.
Section D The indigenous normative values of customary law found

in concepts such as ukufakwa, isondlo and others that indicate the
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194; the study guide pages 81-84;
1 Study the elements of concepts ukufakwa, isondlo and others to
determine the operation of such features of ubuntu such as communal
living, group solidarity, shared belonging, collective ownership, the ethos
Ukufakwa entails a situation where a relative of a woman’s father, namely,

brother, uncle, cousin, nephew, you name it, takes the responsibilities of
the father and ensures that the customary traditions and ceremonies
related to the initiation and/or marriage of the father’s daughter are carried
out as if the relative himself was the father. This entitles the relative to a
pro rata portion of the value of the lobolo goods expected from the
marriage goods deliverable when the daughter gets married, or received
as fines imposed as a result of delicts committed on that daughter.
The relative thereby gets entitled to such portion as of right, directly from
its source (that is, as the goods are identified for delivery as lobolo goods
the relevant portion already at that stage, belongs to the relative. This is
to say, that portion never starts belonging to the father from the beginning
and the father does not have access to it. To the extent of this portion, the
relative becomes the father of the daughter in his own right. He does not
have to claim the portion from the property of the father since it already
belongs to him.
That is why if such goods are never delivered for whatever reason the
relative does not have a claim against the father. He was never going to
receive the goods from the father anyway. In such a case the relative also
suffers his share of the 'nothing received'. However, the relative remains
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entitled to the portion if the goods are eventually received from the
marriage goods of any subsequent daughter even if he never contributed
to the ceremonies of the latter.
The attributes ubuntu as found in ukufakwa include the following:
Communal living is revealed in that relatives are a family and members

of one home. They share the joys of unity as well as the pains that go with
it. Nobody’s nakedness should be exposed. In the same vain no one
should be enriched at the expense of another. This is our home, these are
our children. We must bring them up together for our collective betterment.
Shared sense of belonging is also revealed. No one belongs alone, nor

does anyone enjoy wealth alone or suffer poverty alone. Umuntu
ngumuntu ngabantu/motho ke motho ka batho - a human being derives
his/her humanity from other humans. Life is shared. No child must suffer
because of the condition of their parents, but must experience the same
upbringing as other children. To be meaningful your prosperity must
positively influence the condition of your family. The latter must also use
their abilities to assist you to assist them.
Group solidarity: Your brother’s problem is your problem. His shame is

your shame. If he fails and gets despised, you are also associated with
that failure. If your brother’s daughter gets disgraced at her marriage
home for falling short of what was expected, her father and his relatives
get disgraced more. If she is Ms Khumalo, all her relatives are Khumalo.
Nobody can afford to let that name go down. An injury to one Khumalo is
an injury to all Khumalos.
Reciprocity. The good that you do will be done to you (izandla

ziyahlambana – the hands wash each other). There is no permanent loss.
What is paid out will be paid back. One hand washes the other. Nobody
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should be reluctant to help others because the others will also be pleased
to reciprocate in future. A good deed is an investment. When you assist
the niece it looks like you are losing, but you receive the goods later the
favour is returned. Ubuntu requires you to send your sister's children to
university. It also requires those children to assist you in old age.
Collective ownership of assets. Brothers belong to a home which is the

real owner of their productive activities. This is a Khumalo home to whose
growth and development all the Khumalos can and must contribute. After
all, one Khumalo’s cattle, are the cattle of all the Khumalos. All Khumalos
clai: 'these are our cattle' (zinkomo zakuthi ezi). The cattle are a collective
Khumalo fund. What I pay out is paid out from the Khumalos’ fund (albeit
administered by me), and what I receive is received by me into the
Khumalos' fund. Our individual and collective efforts are directed at
upholding this name, which is who we all are. The daughter’s ceremonies
are still financed by the Khumalo home, regardless of the particular
individual who is the father or his brother.
This list is not exhaustive. You may also add the attributes of generosity,
respect, responsibility, accountability, trust, honesty etc. All these features
and many more can be found in the attribute of good living found in the
institution of ukufakwa institution which urges humans (particularly
relatives), to extend a hand of brother/sisterhood through the sharing of
joys and pains for their collective good. This is what ubuntu is all about –
to live your life selflessly and for others, who also live theirs selflessly for
you, and for the world. In ubuntu we see rules of good living.
The family head's liability

Evaluate the concept of communal legal personality in terms of which the
corporate family home as represented by the family head is liable for
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individual family members’ delictual and contractual obligations and the

impact of the notion of majority age as entrenched in the Children’s Act
38 of 2005 on this liability since the indigenous principle of primogeniture
and the constitutional right to equality co-exist in our law.
2. In answering this question, you must display knowledge of the position
occupied by the family head in relation to the other members of the family
and how this affects everyone’s legal personality. This must be
understood in the context of the notion of collective ownership of property,
which circumscribes the family head’s dealings with the family estate and
its assets. This background must feature in the analysis in family relations
governing liabilities against and claims for damages in the event of delicts
committed and contracts breached by members of the family as well as
similar wrongs committed against them. Higher marks will be earned if the
application reflects an appreciation of the values that underpin this
relationship such as communal living, a shared sense of belonging and
fraternal solidarity. You must point out that the Children’s Act 38 of 2005
makes everyone a major at 18 years. Whilst this is so, a lot of such
teenagers still live with their parents and are subject to family orders and
discipline.
See you there!
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LCP4804
Semester 2
about your module.
BARCODE
LCP4804/201/2/2018
CONTENTS
1. FEEDBACK ON ASSIGNMENT 01............................................................ 4

2. FEEDBACK ON ASSIGNMENTS 02 & 03 …………………… ................ 5
3. FORMAT OF THE OCTOBER/ NOVEMBER EXAMINATION…. .. 32
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LCP4804/201/2/2018
Dear Students
Read this tutorial letter carefully. It contains commentary on Assignment 01,

Assignment 02 and Assignment 03 for the second semester of 2018. It further contains
information on the forthcoming October/November 2018 examination. We hope that
the feedback on Assignments will provide an insight into what is expected of you in
the examinations. We trust that you found the assignments exciting, and that you are
coping well with the workload.
The Study guide

The only Study Guide for LCP4804 is Tutorial Letter 102/2/2018 that was posted to
MyUnisa at the beginning of Semester 2. It is a draft Study Guide that hopefully will be
issued as a fully-fledges Study Guide at the beginning of next semester. It must be
used together with the prescribed textbook, and contains most of the prescribed cases
and statutes that are topical to this module. In order to understand the important issues
discussed in the assignments and examination the Study Guide (Tutorial Letter
102/2/2018) is the starting point. However, cases and statutes are more important in
answering assessment questions.
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This was a compulsory assignment, consisting of MULTIPLE choice questions.
You had to mark either (1) (2) & (3) for each of the questions on the Unisa Mark-

CORRECT
QUESTION
ANSWER
1 3
2 3
3 3
4 4
5 2
6 3
7 3
8 4
9 2
10 4
You must make sure that you study the cases listed in these questions so that you can
discuss them in the examination, giving the legal question that was answered by
the court; The decision of the court and reasons for judgment.
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2. FEEDBACK ON ASSIGNMENT 02 & 03

Question 1
Examine the transformation of post-apartheid customary law of marriage
Names of the parties: Mabuza v Mbatha
Legal question: Whether a seSwati customary marriage can be valid without the
observance of the ukumekeza custom?
Reasons for judgment: A properly constituted customary marriage can stand where
the spouses waived the observance of the ukumekeza custom, particularly as the
urban conditions are not even suitable for the performance of such a custom, which
was suitable for the rural conditions of the past.
Decision of the court: The validity of the customary marriage was upheld.
Names of the parties: Mabena v Letsoalo
Legal question: Whether a customary marriage is valid where a young man, in the
absence of his father, negotiated his own customary marriage, together with his
prospective mother-in-law, who acted as the guardian of the prospective bride, in the
absence of her husband.
Reasons for judgment: An adult and independent man is qualified to negotiate his own
customary marriage, in the absence of his father; and the mother of the bride as an
adult guardian of her daughter is equally qualified to negotiate the customary marriage
and to accept delivery of the marriage goods, in the absence of her husband who has
disserted the family.
Decision of the court: The validity of the customary marriage was upheld.
Names of the parties: Ngwenyama v Mayelane
Legal question: The SCA was asked whether the judgment of the High Court is valid
where it held that a customary marriage concluded without seeking court approval for
the section 7(6) of the RCMA application is invalid?
Reasons for judgment: The SCA held: non-observance of the section 7(6) of the
RCMA provisions cannot render a customary marriage invalid as these are not
requirements for validity. The validity requirements are set out in section 3 of the
RCMA and were properly complied with. Non-observance of the section 7(6) of the
RCMA provisions can at most render the customary marriage out of community of
property.
Decision of the court: The SCA upheld the appeal.
Names of the parties: Mayelane v Ngwenyama
Legal question: In an appeal, the ConCourt was asked whether the SCA was correct
in holding that non-observance of the section 7(6) of the RCMA provisions cannot
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render a customary marriage invalid as these are not requirements for validity; and
that the validity requirements as set out in section 3 of the RCMA had been properly
complied with?
Reasons for judgment: The ConCourt endorsed the SCA’s decision that the non-
observance of the section 7(6) of the RCMA provisions cannot render a customary
marriage invalid as these are not requirements for validity.
Decision of the court: The ConCourt dismissed the appeal and confirmed the decision
of the SCA.
Further legal question: The ConCourt was further asked whether the High Court was
entitled to leave unanswered the claim of the appellant that the further customary
marriage of her husband and respondent was invalid because her consent as the first
wife had not been obtained when the marriage was contracted?
Reasons for judgment: The ConCourt found that the views of the community were
conflicting: some witnesses saying the consent of the first wife was a requirement;
whilst others said she merely needs to be informed about the further customary
marriage. The ConCourt decided to develop the Tsonga customary law, in line with
the values of equality and human dignity, to include the requirement that the consent
of the first wife needs to be obtained before a further marriage of her husband and
another woman can be contracted.
Decision of the court: The ConCourt held that since the consent of the first wife was
not obtained the further customary marriage between her husband and respondent
was invalid, and set it aside.
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Question 2
Examine the transformation of post-apartheid customary law of succession
Names of the parties: Bhe v Magistrate Khayelitsha
Legal question: The ConCourt 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 ConCourt 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.
Names of the parties: Shilubana v Nwamitwa
Legal question: On appeal from the SCA, the ConCourt was asked whether the High
Court and the SCA were correct in holding that a woman could not be appointed as a
traditional leader in terms of the laws and traditions of Valoyi community; and whether
the Valoyi Traditional Authority had the competence to change their customary law to
provide for the appointment of a woman as a traditional leader.
Reasons for judgment: The ConCourt answered the first question in the negative
holding that in fact the Valoyi Traditional Authority had the competence to appoint a
woman as a traditional leader since men and women are equal under the Constitution;
and answered the second question in the affirmative, holding that section 211(2) of
the Constitution empowers traditional authorities to make, repeal or amend their laws
to bring them in line with the Constitution.
Decision of the court: The ConCourt upheld the appeal.
Question 3
Names of the parties: Alexkor v Richersveld Community
Legal question: The ConCourt 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; not common law. Indigenous law is recognised by the Constitution as
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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.
Names of the parties: Pilane v Pilane

Legal question: The ConCourt was asked whether the High Court interdicts against
the efforts of a traditional secessionist group denying them their rights to hold meetings
to discuss their planned secession from the main traditional authority.
Reasons for judgment: The ConCourt held that the interdicts were unlawfully issued
as the traditional secessionist group had the constitutional right to freedom of
expression and to assemble under the Constitution.
Decision of the court: The appeal by the traditional secessionist group was upheld and
the interdicts were set aside.
Question 4
A brief discussion of one of the following indigenous law institution: isondlo,ukungena,
ukwethula, ukufakwa, followed by the application of the attributes of Ubuntu. See
In isondlo a family brings up a child of another who had no means of survival on its
own. The child grows up like all other children as if her parents had the means to bring
it up. Once grown up the biological family regain their guardianship by delivering a cow
as a gesture of gratitude. Ubuntu is manifested in the following attributes as reflected
in the ukufakwa institution below: communal living, group solidarity, responsibility,
accountability, generosity, shared belonging, the ethos of co-operation, and the ethic
of reciprocity. As in the case of ukufakwa, apply these attributes on isondlo.
In ukungena the family of a deceased husband appoints a male relative from among
the deceased’s brothers/cousins to take over the latter’s duties of caring for the widow
and assisting her to bear more children for the deceased. The widow and her children
continue to experience normal life as if the deceased was still alive because the void
created by his death has been filled. Ubuntu is manifested in the following attributes
as reflected in the ukufakwa institution below: communal living, group solidarity,
responsibility, accountability, generosity, shared belonging, the ethos of co-operation,
and the ethic of reciprocity. As in the case of ukufakwa, apply these attributes on
ukungena
In ukwethula a husband obtains a loan from his senior house with which to establish
a minor house. The loan is repaid once the daughter to be born from the minor house
gets married and marriage are received. To the extent of the amount of the loan, such
marriage goes are used to repay the loan to the senior house. Ubuntu is manifested
in the following attributes as reflected in the ukufakwa institution below: communal
living, group solidarity, responsibility, accountability, generosity, shared belonging, the
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ethos of co-operation, and the ethic of reciprocity. As in the case of ukufakwa, apply
these attributes on ukwethula.
In ukufakwa a relative of the father of a young woman assists the woman by acting as
her father in providing for the necessaries required for her maidenly ceremonies eg
intonjane, umemulo etc. The relative covers all the expenses that would normally have
been covered by the father so that the maiden is in the same position as other maidens
in the community. The relative recovers his expenses from the maiden’s marriage
goods eg ikhazi, lobolo, should there be any. If no marriage goods are received, the
expenses are never recovered. The relative also shares in the “nothing received”.
Ubuntu is manifested in communal living, group solidarity, responsibility,
accountability, generosity, shared belonging, the ethos of co-operation, and the ethic
of reciprocity. The operation of these attributes can be explained as follows:
Ukufakwa entails a situation where a relative of a woman’s father, namely, brother,
uncle, cousin, nephew, you name it, takes the responsibilities of the father and ensures
that the customary traditions and ceremonies related to the initiation and/or marriage
of the father’s daughter are carried out as if the relative himself was the father. This
entitles the relative to a pro rata portion of the value of the lobolo goods expected from
the marriage goods deliverable when the daughter gets married, or received as fines
imposed as a result of delicts committed on that daughter.
The relative thereby gets entitled to such portion as of right, directly from its source
(that is, as the goods are identified for delivery as lobolo goods the relevant portion
already at that stage, belongs to the relative. This is to say, that portion never starts
belonging to the father from the beginning and the father does not have access to it.
To the extent of this portion, the relative becomes the father of the daughter in his own
right. He does not have to claim the portion from the property of the father since it
already belongs to him.
That is why if such goods are never delivered for whatever reason the relative does
not have a claim against the father. He was never going to receive the goods from the
father anyway. In such a case the relative also suffers his share of the 'nothing
received'. However, the relative remains entitled to the portion if the goods are
eventually received from the marriage goods of any subsequent daughter even if he
never contributed to the ceremonies of the latter.
The attributes of ubuntu as found in ukufakwa include the following:
Communal living is revealed in that relatives are a family and members of one home.
They share the joys of unity as well as the pains that go with it. Nobody’s nakedness
should be exposed. In the same vain, no one should be enriched at the expense of
another. This is our home, and the young woman is our child. We must bring them up
together for our collective betterment.
Shared sense of belonging is also revealed. No one belongs alone, nor does anyone
enjoy wealth alone or suffer poverty alone. Umuntu ngumuntu ngabantu/motho ke
motho ka batho - a human being derives his/her humanity from other humans. Life is
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shared. No child must suffer because of the condition of their parents, but must
experience the same upbringing as other children. Brotherhood is about sharing both
your prosperity and your misery as family members so that the young woman can
succeed.
Group solidarity: Your brother’s problem is your problem. His shame is your shame.
If he fails and gets despised, you are also associated with that failure. If your brother’s
daughter gets disgraced at her marriage home for falling short of what was expected,
her father and his relatives get disgraced more. If she is Ms Khumalo, all her relatives
are Khumalo. Nobody can afford to let that name go down. An injury to one Khumalo
is an injury to all Khumalos. The strength of that unity lies in their ability to convert their
misery to prosperity. Together the Khumalos must succeed in lifting the young woman
to success.
Reciprocity. The good that you do will be done to you (izandla ziyahlambana – the
hands wash each other). There is no permanent loss. What is paid out will be paid
back. One hand washes the other. Nobody should be reluctant to help others because
the others will also be pleased to reciprocate in future. A good deed is an investment.
When you assist the niece it looks like you are losing, but when you receive the goods
later the favour is returned. Ubuntu requires you to help your sister's child to success.
It also requires such a child to assist you in old age. That is why the relative does not
have to be paid where there are no goods.
Collective ownership of assets. Brothers belong to a home which is the real owner
of their productive activities. This is a Khumalo home to whose growth and
development all the Khumalos can and must contribute. After all, one Khumalo’s cattle,
are in fact, the cattle of all the Khumalos. All Khumalos claim: 'these are our cattle'
(zinkomo zakuthi ezi). The cattle are a collective Khumalo fund. What I pay out is paid
out from the Khumalos’ fund (albeit administered by me), and what I receive is received
by me into the Khumalos' fund. Our individual and collective efforts are directed at
upholding this name, which is who we all are. The daughter’s ceremonies are still
financed by the Khumalo home, regardless of the particular individual who is the father
or his brother.
This list is not exhaustive. You may also add the attributes of generosity, co-operation,
respect, responsibility, accountability, trust, honesty etc. All these features and many
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more can be found in the attribute of good living found in the institution of ukufakwa
institution which urges humans (particularly relatives), to extend a hand of
brother/sisterhood through the sharing of joys and pains for their collective good. This
is what ubuntu is all about – to live your life selflessly and for others, who also live
theirs selflessly for you, and for the world. In ubuntu we see rules of good living. Apply
them also in respect of isondlo,ukungena, ukwethula, mafisa/sisa/ nqoma.
Assignment 03
Apply the provisions of the Recognition of Customary Marriages Act 120 of 1998
regarding the requirements for a valid customary marriage to test the validity of the
following judgments.
(Remember to start case discussion properly by giving the names of the parties; the
legal question that was answered by the court, the reasons for judgment (ratio
decidendi) given by the court and the decision of the court).
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Introduction
In November 1996, Le Roux J heard an application by the applicant, Mildred Hleziphi

Mthembu, who approached the court for relief in a matter of succession to the estate
of her deceased husband, one Tebalo Watson Letsela, to whom she claimed to have
been married by customary law.
1.1. that the rule of African customary law which generally excludes
African women from intestate succession ("the customary law rule")
is inconsistent with the Constitution and consequently invalid;
1.2. that s 23 of the Black Administration Act 38 of 1927 ("the Act") and
s 2 of the Regulations for the Administration and Distribution of the
Estates of Deceased Blacks made under s 23(10) of the Act [and
published] by Government Notice R200 of 6 February 1987 ("the
regulations") are invalid insofar as they demand the application of
the customary law rule;
1.3. that the administration and distribution of the estate of her late
husband, Tebalo Watson Letsela ("the deceased") is governed by
the common law of intestate succession; and
Before his death Letsela (the deceased) was employed in Boksburg and owned a
house at 822 Ditopi Street, Vosloorus, in which he had lived with the applicant (the
widow) since 1990, together with their daughter, Tembi, who was born on 7 April 1988.
In the same house also lived Letsela's parents, his sister and her daughter.
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The deceased died on 13 August 1993 and the first respondent, Henry K Letsela,
(father of the deceased) was appointed by the second respondent (the Magistrate,
Boksburg) to administer and wind up the estate. He claims that the house in Ditopi
Street devolves upon him according to the rules of customary law. The rules are
recognized by s 23 of the Black Administration Act 38 of 1927 and the regulations
made under the authority of the Act, especially reg 2 of 6 February 1987 promulgated
in Government Gazette 10601 as Government Notice (5) R200. This regulation
provides for customary law to apply to the devolution of the estate of a black person
who dies intestate. The most important customary law rule is the one of male
primogeniture in the customary law of succession in terms of which only first-born or
precedent males may inherit in cases of intestacy, to the exclusion of females and
junior males.
First respondent claimed that he has no responsibilities toward applicant, either to
house her or to maintain her and her daughter; denied the existence of a customary
marriage between the applicant and his son and rejected any suggestion that the
applicant and her daughter were part of his family. In her reply, the applicant produced
witnesses and documents to prove the existence of a valid customary marriage
between herself and the deceased, including the information that lobolo was formally
fixed at R2,000 and that by the time of his death, her deceased husband had paid
The first respondent relied mainly on the argument that there was no valid customary
marriage between his son and the applicant and that consequently she neither has
any rights as a wife in this matter nor does he owe her and her daughter any
obligations.
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The court found that the customary law rule excluding women from inheritance is prima
facie discriminatory on the grounds of sex or gender but not unfairly so because of the
concomitant duty of support. Mindful that the constitutional issue (unfairly
discriminatory on the grounds of sex or gender) might assume a different complexion
if the facts revealed that there had been no customary marriage between applicant
and deceased, Le Roux J realized that the concomitant duty of support would cease
to be a consideration and the investigation into the constitutionality of the rule would
have to take different factors into account. The court accordingly referred the matter
for the hearing of oral evidence on: (a) whether there was a valid customary marriage
between the applicant and the deceased; or (b) whether a putative marriage under
customary law existed between them.
Whether a customary marriage existed between Mthembu (applicant) and Letsela

(deceased) and whether Tembi (daughter) was a legitimate child
The hearing of oral evidence took place in August 1997 in a case presided over by
Mynhardt J. Neither the applicant nor the first respondent adduced any evidence and
the application was accordingly determined on the basis that no customary marriage
existed between Mthembu and the deceased and that Tembi was therefore
illegitimate.
On the question of the court 'developing' customary law in line with the spirit, purport
and objects of the Bill of Right, applicant's counsel made a strong case for customary
law to be coaxed towards equality, which is a value fundamental to the Constitution.
Arguing that the issue of discrimination on the grounds of sex or gender is ‘academic’
in this case because the real reason for Tembi’s disqualification from inheritance is
her illegitimacy, the Court refused to ‘develop’ customary law in the direction
suggested.
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An appeal against the decision of Mynhart J who dismissed the application to declare
that a customary marriage existed between applicant and the deceased and declared
that Tembi was a legitimate child
Justices of Appeal Smalberger, Marais, Zulman and Mpati, and Acting Justice of
Appeal Mthiyane heard the appeal on 4 May 2000 in the Supreme Court of Appeal.
Counsel for the appellant raised the same four grounds of attack against the
customary law rule of male primogeniture which had been dismissed by Mynhardt J in
the court a quo. He stated, however, that he would not advance oral argument in
respect of the first two grounds and would instead concentrate on the last two grounds
which were based on the proposition that:
1. Tembi would have succeeded by intestate succession at customary law to her

deceased father's estate but for the fact that she is female, and that
2. the customary law rule of primogeniture is offensive to public policy or natural

justice (within the meaning of s 1(1) of the Law Evidence Amendment Act,
1988).
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customary law according to the ‘spirit, purport and objects’ of the Bill of Rights. On this
point, counsel for the appellant had argued that the customary law rule was based on
‘inequity, arbitrariness, intolerance and inequality,’ all of which are repugnant to the
new constitutional order. The Court was urged to develop the rule so that it sheds its
discriminatory elements and allows male and females, legitimate and illegitimate,
descendants to inherit.
The court was not convinced, arguing that Tembi was excluded by illegitimacy not
gender and that it was undesirable to pronounce on such an important constitutional
question in a case in which the issue was academic.

The place of this case in history is assured for the simple reason that it fielded the first
salvo in what was to become a sustained battle against the primogeniture rule which
was to culminate in the case of Bhe. Several points about the Mthembu cases are
worth noting.
i. Some of the earliest criticisms of the outcome in Mthembu were based on
concerns that the court did not give enough weight to the distinction
between official customary law, on the one hand, and day-to-day
community practice, on the other. At the time, under attack was the
conclusion of Le Roux J that the concomitant duty of support attaching to
the heir’s right to take all the property to the exclusion of girls and women
had the effect of ‘saving’ the customary law rule from constitutional attack.
This was because the duty of support rendered the discrimination not to be
unfair.
This criticism is justified but the point usually overlooked is the impact of
the approach of the court. In deciding to assess an African customary
practice on its own merits without assuming its inferiority to some other
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“mainstream” notions of propriety, the court sent a strong signal about the
future of customary law in a constitutional dispensation.
ii. The failure to recognise the existence of a marriage between Hleziphi

Mthembu and the deceased was another lost opportunity – this time to
force the issue of the existence of a marriage so as to ensure the
centrality of the real constitutional issue, sex and gender, as opposed to
illegitimacy. The point could have been canvassed more forcefully, with a
fair chance of success.
One must always be mindful of that important truism in customary law:

‘African customary marriage is a process, not an event’. According to many
systems of customary law a relationship between a man and a woman
‘ripens’ towards marriage on the occurrence of a number of events, formal
and informal, intended or inadvertent, and the reaction of the couple’s
families to those events. Among the events and occurrences are:
discussions about lobolo, delivery of marriage goods, cohabitation,
All these fundamentals exist in the case of the applicant and the deceased.
The crisp legal question then becomes: “what is the applicable legal system
and, according to that legal system, do these fundamentals constitute a
valid customary marriage?” The judgement in the first Mthembu hearing
reveals that the applicant is Zulu and the deceased was of South Sotho
stock. It would have been worth exploring the rules in these two systems to
see whether a valid customary marriage comes into existence, in either
system, in the circumstances set out above, despite the protestations of the
first respondent. As things have turned out, a feeling persists that a
potentially fruitful avenue in inquiry has been blocked by (or surrendered
to) the first respondent, who had the clearest material motive for denying
the existence of the marriage.
iii. Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC

129 (9 April 2008) (unreported), The court held:
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The validity of a customary marriage was impuned on the basis that the traditional
imvume ritual, the Zulu variation of ukumekeza (Swazi), for integrating the bride into
the groom’s family, had not been observed before the death of the husband. Tshiqi J
examined the requirements for a valid customary marriage as laid down in section 3
of the Recognition of Customary Marriages Act.
On the basis of these requirements the judge concluded that customary marriage has
evolved over the years, and that this evolution has been accepted by the South African
courts. The judge then 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 averment that the imvume practice was not an
essential requirement for the validity of her customary marriage.
The case of Motsoatsoa v Roro All SA 324 (GSJ) is important for emphasising the
value of integration of the bride to mark the transfer from one family to another. The
case is important for understanding the meaning of 'entered into' or celebrated in
section 3(1)(b) of the Act. What was in issue here was lack of handing over of the
bride. The question was: can the woman hand herself over? Fanti v Boto and Others
2008 (5) SA 405 (C) also does the same thing but focuses on the importance of
involvement of the two families in the formation of the customary marriage. The
question was: can the husband decide, without the involvement of his in-laws, that
their daughter is now his wife?
Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and Mayelane v

Ngwenyama and Another 2013 (8) BCLR 918 (CC)
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requirement of validity by requiring the husband to seek his first wife’s
consent;
ii. if not, whether such consent was required in Xitsonga customary law;
and
iii. whether, if such consent had not been furnished, the court ought to
develop the customary law to insert this requirement.
The issue was the interpretation of section 7(6) of the RCMA: whether, in requiring a
husband who wants to marry another wife to make certain proprietary arrangements
it introduces (by the back door, as it were) another requirement for the validity of a
customary marriage.
Ms Mayelane and Ms Ngwenyama both claimed to be married by Xitsonga customary
law to one Mr Moyana, now deceased. After Mr Moyana’s death Ms Mayelane, the
first wife, challenged the validity of Ms Ngwenyama’s marriage on the ground that the
RCMA required a husband to obtain the consent of his first wife to contract a valid
further customary marriage, and that Mr Moyana had not obtained such consent.
The High Court found the Mr Moyana’s further marriage to Ngwenyama to be invalid
for not complying with section 7(6) of the Recognition Act. It left the matter of the
requirement of the first wife’s consent undecided. Ngwenyama appealed to the SCA.
Ngwenyama’s marriage to her deceased husband invalid because the latter did not
apply to court to get its approval for the contract regulating the matrimonial property of
the spouses before marrying her as the second wife in terms of section 7(6) of the
Recognition of Customary Marriages Act 120 of 1998.
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Ngwenyama’s that was negotiated, entered into or celebrated without a prior court
approval of a section 7(6) contract was valid or not.
The SCA’ approach was to examine the provisions of section 7(6) of the Recognition
of Customary Marriages Act 120 of 1998 to establish whether their non-observance
could have had a bearing on the validity of a customary marriage at all. This was in
view of the fact that ordinarily the validity of the customary marriage is regulated by
section 3 of the Act; and section 7(6) regulates regimes of matrimonial property only.
concerned with matters of matrimonial property, and had nothing to do with the validity
of the customary marriage which was regulated by section 3 of the Act. The SCA held
accordingly that the non-observance of the section 7(6) did not affect the validity of the
customary marriage. At most, such non-observance left the customary marriage out
of community of property. According to the SCA the purpose of the Recognition Act is
to protect all women, not just a particular woman. The SCA did not find it necessary to
determine whether the consent of Mayelane, as the deceased’s first wife was required
for the validity of Ngwenyama’s marriage to the same husband.
The SCA’s determination that the non-observance of the provisions of section 7(6) of
the Recognition Act does not affect the validity of the customary marriage is to be
commended as such matters are clearly dealt with by the provisions of section 3.
Consequently it held that the marriage of Ngwenyama to her deceased husband was
valid despite the non-observance of the provisions of section 7(6) Recognition Act. It
emphasised that the purpose of the Recognition Act is to protect all wives, not just the
first wife. As there was no suggestion that section 3 Recognition Act which deals with
issues of validity was not complied with, there was no basis for invalidating the
marriage.
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However, the SCA’s refusal to inquire into the impact of the lack of the first wife’s
consent to her husband’s further marriage to another woman is to be lamented
because the high court had already found that lack of such consent was problematic.
The SCA therefore erred in holding that because the validity of Ngwenyama’s marriage
was not invalidated by the deceased’s failure to comply with the section 7(6)
provisions, it was therefore not necessary to investigate the role of the first wife’s
consent.
The Constitutional Court found it necessary to investigate whether the relevant

Xitsonga custom allowed the deceased to marry Ngwenyama as a second wife without
first obtaining the consent of his first wife, Mayelane. The court’s approach was to
collect affidavits from the community about the need for the husband to obtain his first
wife’s consent to her husband’s further marriage to another woman. The court’s
majority held that the Recognition Act did not contain a requirement for the first wife’s
consent and that Xitsonga customary law did not have a uniform rule in this regard.
The court decided in these circumstances to develop Xitsonga customary law to
include the rule that the first wife’s consent to her husband’s further marriage to
another woman is a requirement for the validity of a further marriage. The
consequence was that non-compliance with the rule would result in the attempted
subsequent marriage being invalid. Unfortunately the court, in the absence of a
uniform customary law rule on consent, chose the one requiring consent, not the
other. Having done that the Constitutional Court developed the version of Xitsonga
customary law it favoured and gave it the stamp of the Constitution.
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Accordingly, the Constitutional Court, per Fronemann J, upheld the appeal, concluding
that Ngwenyama’s marriage to her deceased husband was invalid since it was
irregularly entered into without the necessary consent of the first wife.
The minority judgments of Zondo J and Jafta J are instructive in assessing the
performance of the Constitutional Court’s majority decision in this matter. Both justices
take issue with Foremann J’s approach in taking a lot pains collecting evidence to
prove what was already clearly established on record. According to Jafta J Mayelane’s
evidence that her deceased husband never sought and obtained consent to marry
Ngwenyama was never refuted by the latter. Foremann J should therefore have
accepted this fact as established, instead of calling for further evidence. Lacking
consent, which is necessary according to the particular community’s tradition in terms
of the unrefuted evidence, means that the subsequent marriage was not negotiated
and entered into or celebrated in the manner required by custom.
Apply the provisions of the Reform of the Customary Law of Succession and
Regulation of Related Matters Act 11 of 2009 to test the validity of the following
judgments
(Remember to start case discussions properly by giving the names of the parties; the
(a) Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela
and Another 1998 (2) SA 675 (T) and Mthembu v Letsela and Another 2000
(3) SA 867 (SCA).See section A above.
(b) Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27
(C), Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights
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(CC), See section C below.
(c) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases
(Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA) and Shilubana
and Others v Nwamitwa 2008 (9) BCLR 914 (CC).

Africa, was not appointed as a traditional leader (hosi) of her people when her father
died in 1968. As a woman she could not be appointed due to the laws of unfair
discrimination at the time. Instead her father’s brother, Richard Nwamitwa, was
appointed as the traditional leader (hosi). When the latter died in 2001, the Valoyi
Traditional Authority took a resolution to appoint Philia Shilubana as the traditional
leader (hosi) relying on the constitutional provision for gender equality which motivated
the community to adapt its rules. This resolution amended the past practice of the
community which indicated the eldest son of the previous hosi as the successor to his
father as the new traditional leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s
son, sought to dispute Philia Shilubana's appointment, relying on past practice based
on his purported right as the eldest son of the previous hosi.
In a unanimous judgment, the Court decided that Ms Shilubana was legally appointed
as the legitimate traditional leader (hosi) of the Valoyi people. The Court emphasised
the fact that customary law is a living system of law. As such it was not bound by
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historical precedent. Its flexibility allowed it to evolve as its community changed. Once
it was clear that the contemporary practices of the community have replaced its past
practices, the latter no longer applied.
Because of this, the Constitutional Court deviated from prior decisions that had
served as a test for determining the content of customary law even though they
indicated long-standing and historical practices. Instead the Court redefined
customary law as a system that reflected the current practices of the particular
community. Living customary law came to be defined with reference to the constantly
evolving practices that indicate the current system of norms by which that community
has chosen to live.
traditional leader (hosi) had legitimately evolved to allow for the appointment of a
woman as a traditional leader (hosi) and that this development was consistent with
the Constitution. After finding that Philia Shilubana had been validly appointed the
Constitutional Court upheld the appeal, thus confirming her appointment as a
traditional leader (hosi) of her Valoyi community.
decided to adapt its laws consistently with the Constitution. Other communities will
be judged according to their own contemporary practices.
future succession hanging. It should have made it clear that it was doing so because
of her status as a princess, and add that in order to uphold lineage of the Nwamitwa
royal line, after her death the position would revert to a qualifying Nwamitwa
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prince/princess. Therefore, the court did a good thing (promoting gender equality) and
(not so good as it failed to promote culture).

These two cases are about how the courts have negotiated the transition from the old
order to the present. Mabuza demonstrates the transition from a society that defined
customary marriage with reference to the elaborate ukumekeza tradition that was best
suited to the previous rural set-up, and that it is no longer necessary in the current
urban conditions. Mabena is about how independent and adult youths have been
empowered to negotiate their own customary marriages; and that the involvement of
their fathers is no longer essential for this purpose. As the law lived by communities in
actual current social practice, living law endorsed after the court looked at the current
situation in the country. These cases can also illustrate the extent of transformation in
the law of marriage as well, especially the issue of validity. See also Maluleke v
Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008)
(unreported) where the court held that even though the integration of the bride might
not have been observed, but the spouses themselves showed by the way they related
to each other that they accepted that they were husband and wife. Therefore, in a
difficult case, where, after the negotiations have been completed, the requirements of
"entered into or celebrated" cannot be proved, the behaviour of the spouses towards
each other becomes important.
(CC) is proof that customary law and common law are equal components of South
African law and the time when customary law was viewed with reference to common
law was over. The current status of customary law is that of an original and
independent system that has its own values and norms.
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) is authority for
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ascertaining the applicable customary law. You find it by looking at the community's
past practice, which is their customary law. Past practice continues to apply until it is
clear that such practice has changed. In the latter event one must look at the current
social practice to find the applicable customary law. It is also important to note that
section 211(2) of the Constitution empowers communities to make and amend their
laws. In Shilubana this was done by an amendment in which the community aligned
their law with Constitution, making females equal to males for the purposes of
appointment to traditional leadership positions.

President of Republic of South Africa 2005 (1) BCLR 580 (CC)) is authority for
jettisoning the discredited apartheid rule entrenched in section 23 of the Black
Administration Act (BAA), which preferred males to females in matters of succession.
As a result, section 23 of the BAA, the principle of male primogeniture; the distinction
between legitimate and illegitimate children were all declared unconstitutional and
removed from customary law. The court went on to incorporate the provisions of the
Intestate Succession Act, 81 of 1987, dealing with child portions. After making the
necessary adjustments, all the children of the deceased, legitimate and illegitimate,
together with all his widows/widowers must get child portions. Textbook pages 173-
182
Understanding customary law in its post-transformation state and contrast it

with its pre-transformation state.

law:
it is well established that customary law is a vital component of our

constitutional system, recognised and protected by the Constitution, while
ultimately subject to its terms. The true nature of customary law is as a living
body of law, active and dynamic, with an inherent capacity to evolve in keeping
with the changing lives of the people whom it governs,
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customary law:
What is the difference? – the first quotation emphasises a customary law that
is recognised and protected by the Constitution – that is living, active and
dynamic, and part of the lives of the people; and - the second quotation
merely refers to taking of judicial notice, not recognition; it puts customary law
at the level of foreign law, as opposed to a vital component of our
constitutional system; it requires customary law to be proved before being
used (ie ascertained readily and with sufficient certainty), as opposed to being
applies as in section 211(3) of the Constitution. Lastly, and most importantly,
pre-recognition customary law was used, not as of right, but subject to a
condition, namely: Provided that indigenous law shall not be opposed to the
principles of public policy or natural justice. In other words, there was a
suspicion that indigenous law might be contrary to good morals if used
unchecked. When you notice that the italicised phrases were never used in
describing the common law you will realise that these two components of South
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Section D The indigenous normative values of customary law found in concepts

such as ukufakwa, isondlo and others that indicate the centrality of ubuntu in
African traditions, See Textbook pages 188-194; the study guide pages 81-84;
For model answers see question 4 of assignment 2 above.
Question 2
(d) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases
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has chosen to live.
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Question 3
The transformative role of the following post-apartheid statutes in the development of
customary law:
(a) Recognition of Customary Marriages Act 120 of 1998

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.
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.
(b) Traditional Leadership and Governance Framework Act 41 of 2003 as

amended by Act 23 of 2009.
Again the Traditional Leadership and Governance Framework Act 41 of 2003 has its
origins in the recognition of customary law by the Constitution. Prior to the
constitutional changes the traditional leaders were not given their proper status. They
were called chiefs, not Traditional Leaders and were given functions to do as apartheid
stooges, who were paid to enforce oppressive statutes against their own people in
exchange for some stipend.
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The advent of Traditional Leadership and Governance Framework Act 41 of 2003

ushered in an era of democratic traditions for the appointment of traditional leaders,
who are now free to be addressed by their traditional titles (iNkosi Buthelezi, Nkosi
Holomisa, Kgosi Pilane), and no longer insulted as ‘chief’. The Act provides for the
appointment of women as traditional leaders where necessary to enhance gender
representativity. Traditional Leaders are no longer chosen by the ‘State president as
the Supreme Chief of all natives’, but are identified by the royal family for appointment
by the government, to reduce the danger of appointing government stooges.
(c) The Reform of Customary Law of Succession and Regulation of Related

Matters Act 11 of 2009.
The recognition of customary law by the Constitution meant that the Bill of Right had
to be respected in the sphere of succession. The discredited principle of male
primogeniture, which preferred senior males over women and junior males, had to go.
The Act implemented the judgment of Bhe v Magistrate Khayelitsha, which abolished
discrimination on the basis of race, gender, marital status, birth, age etc for the
purposes of succession. The Act imported The Intestate Succession Act into
customary law to introduce inheritance by child portions for sharing by the deceases
wife or wives, children, legitimate or not etc.
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The 2018 Oct/Nov examination will be a Two-hour examination paper. The paper
consists of a total of 100 marks.

following:

1 Study the Recognition of Customary Marriages Act, 120 of 1998; Traditional
Leadership and Governance Framework Act, 41 of 2003; and the Reform of
customary Law of Succession and Regulation of Related Matters Act 11of
2009. What is important is to be able to demonstrate the transformation these
Acts brought about in the sphere of customary law.
2 Find the cases/sources from which all the extracts/quotes in Assignment 1
come from, not just those that were chosen as the right answers for the
assignment.
3 Study Tutorial Letter 201/2/2012 and Revise your assignments, especially the
solutions to Assignment 02 (above) and Assignment 03 (below).
4 Use Assignments 02 and 03 as models for answering the examination
questions
5 When preparing for the examination please make sure that you take particular
note of the feedback to Assignments 02 and 03 above.
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LCP4804
Semester 1

about your module.
module code/101
BARCODE
BARCODE
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CONTENTS
Page
Page
1. FEEDBACK ON ASSIGNMENT 01 ................................................ 3

2. FEEDBACK ON ASSIGNMENTS 02 & 03……………………4- 37
3. FORMAT OF THE OCTOBER/ NOVEMBER
EXAMINATION….358
Dear Students
further contains information on the forthcoming October/November 2019
examination. We hope that this feedback on Assignments will provide an
found the assignments quite exciting, and that you are coping well with
the workload.
The Study guide
The only Study Guide for LCP4804 must be used together with the
prescribed textbook, and contains most of the prescribed cases and
statutes that are topical to this module. In order to understand the
important issues discussed in the assignments and relevant to the
examination this Study Guide is the starting point. However, cases and
statutes are more instructive for the purpose of answering assessment
questions.
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1 1
2 1
3 2
4 2
5 3
6 2
7 2
8 2
9 1
10 3
You must make sure that you study the cases listed in these
questions so that you can discuss them in the examination, giving
the legal question that was answered by the court; The
decision of the court and reasons for judgment.
Question 1
Evaluate the operation of ubuntu as a measure of the propriety of human conduct in
South Africa before it was interrupted by colonial intervention, applying at least 3
of the attributes of ubuntu to illustrate how the institutions of ukufakwa,

isondlo/dikotlo and inqoma/mafisa/sisa were used to save a situation of
potential destitution to normal socio-economic relations within a
community……………………………………[10]
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ukufakwa
Communal living is revealed in the ukufakwa institution in terms of which family

members function as one home. So brothers share the joys of unity as well as the
pains that go with it, so that the prosperity of the strongest brother is used to cover the
misery of his weakest brother. This is ubuntu because every family member’s
personhood is affirmed by the personhood of other family members. Thus, a brother’s
child is the child of the family, which makes her a family child. A communal life places
humanity at the centre, and selfishness has no place.
Shared sense of belonging as revealed in the ubuntu institution of ukufakwa means

that no family member belongs alone, nor does any family member enjoy wealth alone
or suffer poverty alone. Umuntu ngumuntu ngabantu/motho ke motho ka batho - a
human being derives his/her humanity from the humanity of other humans. Life is
shared as every child of the family is afforded the same experiences as other family
children, regardless of the condition of her own biological parents. Ubuntu lies in the
spirit of selflessness that gears brothers to share their prosperity and misery so that
the young woman’s humanity can affirmed.
Group solidarity: An injury to one family member is an injury to all members. Your
brother’s problem is your problem. His shame is your shame. If the father’s poverty
threatens to deny his daughter access to her maidenly ceremonies, his brother’s
prosperity must be used to rescue the situation. Ubuntu lies in the spirit of humanity
that drives the brothers to stand and fall together to affirm a vulnerable family member,
so that the daughter of the weakest brother gets the outfit as descent as that of the
other family daughters.
isondlo/dikotlo
This institution of ubuntu works pretty the same as ukufakwa because it also places
the betterment of a vulnerable young person at its centre. Empathy is visible since a
stronger member of the community accepts a vulnerable young person who has no
chance of survival in life because of poverty or other social vulnerability, brings him/her
up freely without any expectation of compensation, until he/she is strong enough to
join his/her biological family as a dignifies human being. In a show of reciprocity, the
latter family then offers a cow as a gesture of gratitude to the good community member
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to show appreciation (not compensation). The animal is a female so that its produce
would be a constant reminder to the community that a good deed deserves another.
Because of the good deed the person who was assisted continues work with his former
‘parents’, helping them in difficult times in the spirit of co-operation.
inqoma/mafisa/sisa
These terms represent the same institution in the isiXhosa, Sesotho and isiZulu
cultures. Other cultures have their own terms as well. Typically, of the spirit of
generosity in the philosophy of ubuntu a disadvantaged member of the community is
identified by a stronger member of the community by reason of his skills, talents,
diligence and resourcefulness as an investment opportunity. A certain number of
livestock is then advanced to the identified disadvantaged member, to give him/her a
chance to grow them until he/she can be allocated some of his/her own share from the
profits – so that he/she can have a dignified start in life. Supervision by the owner is
such that the beneficiary he/she must always be on the look out to ensure the best
treatment for the livestock. The expression – inkomo yenqoma yintsengwebheka –
one who milks a nqoma beast must turn his head towards the gate – sums it all. In the
spirit of communal living, co-operation and reciprocity the poor person co-operates
with the stock owner in increasing the progeny of the stock, is integrated into the
community of stock farmers when he gets his share of the profits, and reciprocates by
returning an increased flock of stock to the owner at the end of the project.
Question 2
(a) Examine the Constitutional Court's decision in (Mayelane v Ngwenyama and

Another 2013 (8) BCLR 918 (CC)) to make the consent of the first wife a
requirement for the validity of a further Xitsonga customary marriage, with
reference to the principle that the binding customary law is the living law of the
community concerned; and explain whether, this judgment, being a
Constitutional Court's judgment, is binding on say, Zulu, Swazi or Tswana or
other communities in South Africa, that do not subscribe to Xitsonga customary
law; …………………………………………………………………………………(5)
The binding version of post-apartheid customary law is the living law of the
community concerned, ie the binding legal principles that regulate the affairs of
that community. In (Mayelane v Ngwenyama and Another 2013 (8) BCLR 918
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(CC) the Constitutional Court investigated the existence of the rule requiring
the husband to obtain the consent of the first wife for the validity of a further
Xitsonga customary marriage. Some witnesses confirmed the existence of the
rule, others denied it – saying she only needs to be informed. So the existence
of the rule was not proved, because of this conflict in evidence. Then the
Constitutional Court decided to develop the living Xitsonga customary law to
require the husband to obtain the consent of the first wife for the validity of a
further Xitsonga customary marriage. This decision was taken after the
Constitutional Court’s investigation of the living Xitsonga customary law, not
Zulu, Swazi or Tswana or other communities’ customary law – where this
question has not arisen. So the communities which did not have the custom
requiring the husband to obtain the consent of the first wife for the validity of a
further customary marriage before Mayelane possibly still do not have that
custom. The Constitutional Court does not create customs for communities, but
develops customary laws for those affected by them; that is why only Xitsonga
witnesses were examined. Zulu, Swazi or Tswana or other communities’
witnesses were not called – so the Constitutional Court did not have their
customary laws in mind when formulating its judgment.
(a) if not - could those communities whose living law does not require the husband
to obtain the consent of the first wife for the validity of a further customary
marriage - avoid such a requirement, when demanded by the first wife?
Remember that the Constitutional Court, in Mayelane, aligned the consent
requirement with the constitutional values of equality and human dignity of the
spouses…………………………………………………………………………..(5)
Suppose Zulu, Swazi or Tswana or other communities’ customary laws don’t require
the husband to obtain the consent of the first wife for the validity of a further customary
marriage. They are therefore not bound by the living Xitsonga customary law as
developed by the Constitutional Court in Mayelane; can these husbands proceed on
a further customary marriage without obtaining the consent of the first wife?
The answer is no. Sure, all those cultures that do not have the consent requirement,
are not bound by the living Xitsonga customary law as developed by the Constitutional
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Court in Mayelane. What then prevents these husbands from proceeding on a further
customary marriage without obtaining the consent of the first wife?
Remember that the Constitutional Court, in Mayelane, aligned the consent

requirement with the constitutional values of equality and human dignity of the
spouses. These husbands are bound by South Africa’s constitutional jurisprudence
as developed in that case, not Xitsonga customary law as developed by the
Constitutional Court in Mayelane. Such a constitutional jurisprudence says the
obligation to obtain the consent of the first wife is a sequel to her human dignity and
equality to her husband. Therefore, all husbands, including those from Zulu, Swazi or
Tswana or other community are bound by this constitutional requirement (human
dignity and equality) – the values of human dignity and equality, which bind all
communities in South Africa. They are not bound by the living Xitsonga customary law
as developed, which binds only its community…………………………… [10]
Question 2
(a) Examine the Constitutional Court's decision to make the consent of the first wife a
requirement for the validity of a further Xitsonga customary marriage, with reference
to the principle that the binding customary law is the living law of the community
concerned; and explain whether, this judgment, being a Constitutional Court's
judgment, is binding on say, Zulu, Swazi or Tswana or other communities in South
Africa, that do not subscribe to Xitsonga customary law;
and…………………………………………………………………………………………(5)
(b) if not - could those communities whose living law does not require the husband to
obtain the consent of the first wife for the validity of a further customary marriage -
avoid such a requirement, when demanded? Remember that the Constitutional Court,
in Mayelane, aligned the consent requirement with the constitutional values of equality
and human dignity of the spouses……………………………………………………(5)
8
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Assignment 03


court).
Introduction

9
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customary law rule;
and
10
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11
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12
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Parliament.
13
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appeal.



female, and that

14
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academic.

15
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of success.

16
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marriage.


17
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customary law; and
18
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valid or not.
19
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20
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SCA.

21
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required by custom.
22
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court).
(a) Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu
above.
(b) Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1)
(c) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana
914 (CC).

23
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Court.

24
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applied.

live.
Valoyi community.

25
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Constitution
court).
1068 (T)
from a society that defined customary marriage with reference to the
elaborate ukumekeza tradition that was best suited to the previous rural
set-up, and that it is no longer necessary in the current urban conditions.
26
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Mabena is about how independent and adult youths have been

empowered to negotiate their own customary marriages; and that the
involvement of their fathers is no longer essential for this purpose. As the
law lived by communities in actual current social practice, living law
27
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law:

whom it governs,
28
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29
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194; the study guide pages 81-84; For model answers see question
4 of assignment 2 above.
Question 2
(d) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana
914 (CC).

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Court.

applied.

live.
31
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Valoyi community.

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Question 3

civil rites.
(e) Traditional Leadership and Governance Framework Act 41

of 2003 as amended by Act 23 of 2009.

33
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stooges.

34
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The 2019 Oct/Nov examination will be a Two-hour examination paper.

The paper consists of a total of 100 marks.

following:

1 Study the Recognition of Customary Marriages Act, 120 of 1998;
2 In studying the Constitutional Court cases, you must pay particular
attention to dissenting judgments (eg in Bhe and in Mayelane) Find
out why the other judges dissented, and compare the reasoning of
the judges.
4 Study the Only Study Guide and the prescribed textbook and Revise
your assignments, especially the solutions to Assignment 02
(above) and Assignment 03 (below).
35
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examination questions.
particular note of the feedback to Assignments 02 and 03 above.
Cheers!!!
36
LCP4804/101/3/2017

LCP4804
Semester 2
about your module.
module code/101
BARCODE
BARCODE
2
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CONTENTS
Page
1. FEEDBACK ON ASSIGNMENT 01 ................................................ 4

2. FEEDBACK ON ASSIGNMENTS 02 & 03……………………...4- 36
3. FORMAT OF THE OCTOBER/ NOVEMBER
EXAMINATION….335
Dear Students
01, Assignment 02 and Assignment 03 for the first semester of 2019.
This feedback plus all the Activities and Feedbacks in the Study Guide
is all you need to do well in the forthcoming October/November 2019
examination. Therefore, this tutorial letter contains vital information on
the forthcoming October/November 2019 examination. We hope that this
feedback on Assignments will provide an insight into what is expected of
you in the examinations. We trust that you found the assignments quite
exciting, and that you are coping well with the workload.
The Study guide
examination this Feedback read together with the Study Guide is the
starting point through which to see the cases and statutes which are so
instructive for the purpose of answering assessment questions.
3
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1 3
2 3
3 3
4 4
5 2
6 3
7 3
8 4
9 2
10 4
You must make sure that you study the cases listed in these
questions so that you can discuss them in the examination, giving
the names of the parties, the legal question that was answered
by the court; The decision of the court and reasons for
judgment; and, most importantly, whether in your view, the
decision is line with indigenous norms and constitutional
values.
Question 1
(i) if section 11 of the Traditional Leadership and Governance Framework Act, 41 of 2003
(the Act) is applied (the role of the royal family).
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In terms of section 11 of the Traditional Leadership and Governance Framework

Act, 41 of 2003, the royal family will identify the suitable candidate (X) and forward
the recommended name to the Bafokeng Traditional Authority for appointment by
government. However, N, as a senior princess, is also appointable. Therefore, to be
valid, the identification of X by the royal family will have to include full motivation
based on those merits that suggested preference for X over the other candidate, N;
accompanied by those demerits that disqualified N.
(ii) if section 211(3) of the South African Constitution, 1996 is applied (which is the system
of law that must be applied).
In terms of section 211(3) of the South African Constitution, 1996, customary law must
be applied when that law is applicable, subject to the Constitution and applicable
legislation. Customary law requires that succession to the Bafokeng traditional
leadership position and headship of the Bafokeng Traditional Authority should be done
according to lineage. This means that the most senior qualifying child of the previous
traditional leader must be appointed (the word child is used advisedly because of
section 9 of the Constitution and the Shilubana judgment, the word son is no longer
appropriate). Provided the identification of X by the royal family under section 11 of the
Act is valid (motivation), X, as an identified candidate, will take the position.
(iii) if customary law is applied in terms of the principle developed in Alexkor Ltd and
Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC) (the
relationship between customary law and common law).
In terms of Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12)
BCLR 1301 (CC) the application of customary law is no longer subject to the common
law values. This means, whatever the pre-constitutional precedent says about
customary law’s requirement of non-repugnancy with common law, today’s
customary law must be underpinned by indigenous values (ie must observe the
lineage rule – right to culture), subject only to section 9 of the Constitution, the
Shilubana judgment and section 11 of the Act. Provided that the identification of X
by the royal family under section 11 of the Act is valid (motivation), X will take the
position.
(iv) if past practice has not changed and the Bafokeng Traditional Authority has not
acted to change that practice (Shilubana and Others v Nwamitwa 2008 (9) BCLR
914 (CC)), (in terms of the right to make, amend and repeal customary law).
5
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If past practice has not changed and the Bafokeng Traditional Authority has not acted
to change that practice, it means that the Bafokeng customary law is unconstitutional
and cannot be applied. It must therefore be developed in terms of section 39(2) of the
Constitution, in line with the Shilubana judgment and section 11 of the Act. Provided
the identification of X by the royal family under section 11 of the Act is valid
(motivation), X will take the position.
(v) if contemporary practice had taken over from past practice; and the royal family and the
Bafokeng Traditional Authority were consequently not bound by custom to favour
any of the candidates (Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC)).
If contemporary practice had taken over from past practice; and the royal
family and the Bafokeng Traditional Authority are consequently not bound by
custom to favour any of the candidates, it means patriarchy has been
abandoned in favour of post-constitutional customary law which conforms to
section 9 of the Constitution, the Shilubana judgment and section 11 of the
Act. Provided the identification of X by the royal family under section 11 of
the Act is valid (motivation), X will take the position.
From this question we learn that the selection of a traditional leader must be made
by royal family, for presentation to the traditional authority, for transmission to the
provincial government in terms of customary law, legislation and the Constitution.
This means that the right candidate, male or female, with the correct leadership
qualities, must be selected. The identification process must be accompanied by a
motivation containing all the candidates’ leadership qualities.
Question 2
(i) The Recognition of Customary Marriages Act, 120 of 1998 allows multiple
customary marriages. (refer to the relevant section).
(ii) P’s customary marriage would be invalid in terms of the Mayelane judgment which
developed Tsonga customary marriage to require consent of the first wife in terms
of the constitutional values of equality and human dignity.
6
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(iii) K would lose the case in terms of the Mabena judgment which affirms the equality of
women and youths; and recognises their right to participate in customary law
negotiations.
(iv) K would still lose the case according of the Mabuza and Maluleke judgments in terms
of which non-observance of ancient customs which are no longer universally
practicable cannot invalidate an otherwise valid customary marriage.
(v) Q would lose the case –
- The RCMA (Act 120 of 1998) does not require payment of lobolo either in full or at
all; it only requires customary marriages to be negotiated and entered into or
celebrated according to customary law. In fact, even the amount agreed upon by
the negotiating parties is seldom, if ever, paid in full, therefore this can never be
an invalidating factor. In practice, non-payment of lobolo either in full or in part
merely affects the relations between the marital families, eg the wife’s family
may regard the husband’s family as dishonest – that’s all.
Q would also lose the case –
- It is no longer proper to require a delivery of the wife. The RCMA provides that
both parties should be at least 18 years old. P was therefore a major and as such
did not have a guardian to hand her over. Gone are the days when black women
were perpetual minors. Instead, they are equal to everyone. Therefore, who is
going to deliver who, to whom? P can take her own decision; and no patriarch,
no matter how arrogant, can deliver her!
Assignment 03

7
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court).
Introduction
customary law rule;
8
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and

9
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10
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11
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Parliament.
appeal.



female, and that
12
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academic.

13
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of success.

14
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marriage.

15
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16
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customary law; and

17
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valid or not.
18
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SCA.
19
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20
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required by custom.


court).
(a) Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu
above.
(b) Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1)
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(c) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana
914 (CC).


22
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Court.

applied.

live.
23
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Valoyi community.


Constitution
24
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court).
1068 (T)
from a society that defined customary marriage with reference to the
elaborate ukumekeza tradition that was best suited to the previous rural
set-up, and that it is no longer necessary in the current urban conditions.
Mabena is about how independent and adult youths have been
empowered to negotiate their own customary marriages; and that the
involvement of their fathers is no longer essential for this purpose. As the
law lived by communities in actual current social practice, living law
25
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26
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law:

whom it governs, (The nature of customary law under the
Constitution)
policy or natural justice. (The nature of customary law under
apartheid).

27
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194; the study guide pages 81-84; For model answers see question
4 of assignment 2 above.
Question 2
(d) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana
914 (CC).

28
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Court.

29
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applied.

live.
Valoyi community.
30
module code/101

Question 3

civil rites.
31
module code/101
(e) Traditional Leadership and Governance Framework Act 41

of 2003 as amended by Act 23 of 2009.


32
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stooges.

The 2019 Oct/Nov examination will be a Two-hour examination paper.

The paper consists of a total of 100 marks.

following:

1 Study the Recognition of Customary Marriages Act, 120 of 1998;
33
module code/101

2 In studying the Constitutional Court cases, you must pay particular
attention to dissenting judgments (eg in Bhe and in Mayelane) Find
out why the other judges dissented, and compare the reasoning of
the judges.
4 Study the Only Study Guide and the prescribed textbook and Revise
your assignments, especially the solutions to Assignment 02
(above) and Assignment 03 (below).
examination questions.
particular note of the feedback to Assignments 02 and 03 above.
7 I repeat: This feedback plus all the Activities and Feedbacks in the
Study Guide is all you need to do well in the forthcoming
October/November 2019 examination.
Cheers!!!
34
LCP4804/201/1/2020
Advanced Indigenous Law

LCP4804
Semester 1

International law
about your module.
BARCODE
1
LCP4804/201/1/2020
CONTENTS
Page
1. FEEDBACK ON ASSIGNMENT 01................................................ 3

2. FEEDBACK ON ASSIGNMENTS 02 & 03……………………...4- 32
3. FORMAT OF THE MAY/JUNE 2020 EXAMINATION…. ........... 322
2
LCP4804/201/1/2020
Dear Students
further contains information on the forthcoming May/June 2020
examination. We hope that this feedback on Assignments will provide an
found the assignments quite exciting, and that you are coping well with
the workload.
The Study guide

examination this Study Guide is the starting point. You must pay particular
attention to Activities/Feedbacks and Self-Assesments, which together
with cases and statutes are more instructive for the purpose of answering
assessment questions.
3
LCP4804/201/1/2020
The following is the feedback on Assignment 01:

1 2
2 4
3 3
4 4
5 3
6 1
7 2
8 1
9 4
10 2
You must make sure that you study the cases listed in these questions so
that you can discuss them in the examination, giving the legal question
that was answered by the court; The decision of the court and
reasons for judgment.
Question 1
(i) the past and the present versions of customary law ……………………(5);
The conflict between these two versions of customary law must be resolved with
reference to which version is applicable to the particular case. For instance, in Mabena
v Letsoalo the two parties relied on different versions of customary law of marriage. In
this conflict the father-in-law relied on the past version that prescribed an elderly male
panel for valid customary marriage negotiations. On the other hand, the daughter-in-
in-law relied on the present version that allowed all qualifying independent adults to
validly participate in such negotiations. The High Court upheld the latter as the version
to be applied.
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(Some students can choose other cases and apply them in the same manner, eg
Mayelane; Mbatha etc.);
and between
(ii) the common law and customary law………………………………………(5)

In a customary law case, a conflict often occurs between the values of common law
and those of customary law. In the past, the common law was promoted over
customary law because of the repugnancy jurisprudence, which stipulated that, in
order to be valid, customary law values may be applied provided they are not
repugnant to common law ones (which they disguised as principles of natural justice
and public policy). This policy was even entrenched in section 1 of the Law of Evidence
Amendment Act 45 of 1988. In short, the common law, which was elevated to the
status of the law of the land, took precedence over customary law.
Now, the Constitution, which brought an end to the superiority of one component of
South African law over another, says customary law, like common law, must be
applied by the courts, when it is applicable. Like in the case of common law, this
application is subject to Constitution. Hence, the Constitutional Court held in Alexkor,
that customary law can no longer be looked at with the lens of the common law,
because it has its own independent normative value system. Therefore, under the
current Constitution, precedence is given to the system that is applicable, be it
common law or customary law. Thus customary law must be looked at with its own
lens.
(Other cases, such as Bhe, and Shilubana can similarly be used, with the necessary
adjustments.)
……………………………………………………………………………………………[10]
Question 2
(i) …………………………………………………………………………..(5)
-communal living – is an attribute of ubuntu found in ukufakwa where it shows the

father of the woman and his daughter that the brother’s humane intervention has
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LCP4804/201/1/2020
affirmed their own humanity. Hence they are humans because of the father’s brother’s
humanity. Bangabantu nagaye umfowabo. Members of the family share life.
-shared sense of belonging- is an attribute of ubuntu found in ukufakwa where it shows

the father of the woman and his daughter that the father’s brother’s humane
intervention has affirmed their own humanity. Because of the brother’s decision to re-
ignite his family ties by demonstrating that he (the father’s brother) belongs with kith
and kin, the latter also share in that belonging. Hence they share in the father’s
brother’s belonging. Ukwanda kwaliwa ngumthakathi. Members of the family belong
together.
- co-operation- is an attribute of ubuntu found in ukufakwa where it shows the father

of the woman and his daughter that the father’s brother’s co-operative spirit in their
moment of distress is a reflection of their humanity because of him. Family toil
together.
-generosity-is an attribute of ubuntu found in ukufakwa where it shows the father of

the woman and his daughter that the father’s brother’s generosity in uplifting them in
their time of need has affirmed their humanity through him. Charity begins at home.
-reciprocity- is an attribute of ubuntu found in ukufakwa where it shows the father’s

brother that the return of the pro-rata-share of his contribution to the plight of the father
of the woman and his daughter is a confirmation that his humanity is now being
recognised through them. You scratched my back, I will scratch yours.
(ii) ……………………………………………………………………………………….(5)
Many Africanists and traditionalists are justified in feeling that the African value system
was not judicially promoted and affirmed in recent judgments: -
This is because in the following cases there were two sides – human rights v the
African tradition – and in each case, the African tradition lost the case, eg:
-In Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC) –there was an existing tradition of
traditional leadership apppintments, which, according to traditionalists, worked well in
maintaining social order. Yet, the court decided to substitute a new system that does
not harmonise with the people’s succession culture of smoothly transferring family
obligations of looking after vulnrable members from father to son, and which also
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LCP4804/201/1/2020
accommodated the maintenance of family lineage.
The traditionalists maintain that the court should have made it clear that lineage would
continue to be preserved after the appointment of the woman, and that after the
woman’s term of office expired, the next qualifying person in terms of family lineage,
mano or woman, would succeed her. That would have ensured that women could be
appointed in line with the Constitution, without disrupting African culture. The idea is
to prevent people who were not fathered through the legitimate patrilineal line from
being appointed.
-Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC) – The traditionalists
say there was an existing culture of intestate succession to deceased estates, which
ensured that vulnerable family members were properly looked after within a secure
permanent family home environment, and under responsable leadership. The
deceased’s father should have got the estate, in line with African culture and ordered
by the court to maintantain the deceased’s dependents as the deceased did.
The traditionalists further say that the court should have made it clear that its Bhe
solution of resorting to the common law’s child portions would be reserved for rare
difficult cases where there was no suitably qualified successor, male or female, as
suggested by the dissenting judgment of Ngcobo J. This would have preserved African
culture, whilst complying with the Constitution. The concern is that the child portions
option would result in the sale of the family home to raise child portions, and leave
vulnerable members homeless and destitute – contrary to the African imperative that
everyone must have a secure and permanent home.
-In Mabuza v Mbatha 2003 (7) BCLR 43 (C) there was an existing culture of integrating
a bride into her marital home, which, the traditionalists maintain, accorded with the
aspirations of the communities, and which left the spouses culturally bonded, and
accorded with section 31 of the Constitution.
The court should have made it clear that the ukumekeza custom is still the tradition for
bridal integration, which may be reasonbly adjusted to accommodate changed and
urban environments. By so doing the people concerned would have retained their
identity as provided for by section 30 of the Constitution. The concern here is to have
oficial marriages that are socially reprehensible in living law.
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-In Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC) there
was an existing manner in which customary law spouses related with each other. The
court could have reformed it to say both husband and wife should respect each other,
without obliterating the tradition of the spouses, by saying it was wrong for the wife to
respect her husband. Where is Zuluness, now? Can we have a Constitution that brings
an end to being a Zulu?
The court could have reformed the spousal property relations to accommodate the
equality needs of society under the Constitution, and could have encouraged spouses
to keep their characteristic Zulu spousal relations of loving and respecting each other,
thus augmenting Zulu culture. The concern is to have law in the books that is at odds
with living law in social practice.
-In Mabena v Letsoalo 1998 (2) SA 1068 (T) there was an existing culture requiring
customary marriage negotiations to be handled with the decorum they deserved, of
representative delegations from both sides, instead of trivialising them as (private)
bridegroom/mother-in-law talks. The traditionalists detest such a judicial distortion
which trivialises their noble custom as a mere behind- scenes arrangement.
The court could have reformed the delegations by saying, in exceptional

circumstances, the bridegroom and his mother-in-law could hold negotiations to save
the marriage where nothing else could be done. This would have ensured that private
bridegroom/mother-in-law talks are the exception, to be reserved for hard cases,
rather than the norm. Even then Africans cannot operate as individuals, to the extent
of countenancing a meeting between a bridegroom and a mother-in-law. In many
cases such a meeting is taboo – as such two people customarily do not meet! Rather
than that, Africans always organise colleagues, friends and/or neighbours as proxies
for families – to lend some respectability to the negotiation process. The concern here
is to have customary marriages that do not have the approval of the clan. Or shall be
we call them ‘vat-en-sit’ arrangements? You must remember the centrality of the
communal imperative in African culture – ‘umfazi wakuthi’ as opposed to ‘umfazi wam’.
…………………………………………………………………………………………………… [10]
……………………………………………………………………………………… TOTAL {20}
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APPENDIX C: SELF-ASSESSMENT: BOTH SEMESTERS
(A) ASSIGNMENT 03: SELF-ASSESSMENT ASSIGNMENT
PLEASE NOTE!!! PLEASE NOTE!!!

The information that follows is extremely important. It deals with the instructions
on how to complete and mark the assignment, as well as the content and the purpose
of the assignment. Please read this information very carefully before you start
with the assignment.
1. Assignment 03 is a self-evaluation assignment. When you join the legal

profession, you will have to evaluate your own arguments and submissions and
you should, therefore, acquire this skill as soon as possible.
2. The questions in the assignment cover all the study units in the study guide.
Since the questions are similar to the kinds of questions you may expect in the
examination, you should view this assignment as a valuable revision exercise
in your examination preparation.
The following questions must be regarded as examination guidelines to be

studied as seriously as possible. This is a summary of what you need to do to
pass the examination. After completing this summary, you must immediately
proceed to the full story in order to pass with distinction.
The examination will consist of four questions amounting to 100 marks, made
up of sub-questions of 10 or 5 marks each from the following sections.
9
LCP4804/201/1/2020
After studying the requirements for a valid customary marriage thoroughly in section
3 of the Recognition of Customary Marriages Act 120 of 1998, check the rights of the
spouses before the commencement of that Act (that is their rights under the so-called
customary union); thereafter check the rights of the spouses under the Act and
compare the two versions. When studying the following cases, check whether the
court could have added new requirement(s) for validity, and why?
(3) SA 867 (SCA)
(b) Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC
129 (9 April 2008) (unreported), Motsoatsoa v Roro All SA 324 (GSJ), and
(c) Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and Mayelane v
Check the provisions of the customary law of intestate succession as you find it in Bhe
before that judgment reformed it. Then check how those reforms were incorporated
into the Reform of the Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009; in order to have a good picture of the post-apartheid customary
law of intestate succession.
Thereafter check the customary law that prevailed when each of the following cases
went to court, and compare it with the version applied or reformed by the court:
Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another
1998 (2) SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867 (SCA).
(d) Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27
10
LCP4804/201/1/2020

(CC)),
(e) Nwamitwa v Philia and Others 2005 (3) SA 536 (T) ; Shilubana cases
Check the customary law that existed when each of the following matters came to
court, and compare it with the evolving principles in post-apartheid customary law that
came out of those decisions.
(CC)

President of Republic of South Africa 2005 (1) BCLR 580 (CC)).
The idea is to understand the law in historical perspective.
Section D - The indigenous normative values of customary law found in

concepts such as ukufakwa, isondlo and others that indicate the centrality of
ubuntu in African traditions
Before attempting this section check the relevant feedback in Assignment 02 above.
Study the elements of the concepts of ukufakwa, isondlo/dikotlo, inqoma/mafisa/sisa,
ukwenzelela, ukwethula to determine the operation of such features of ubuntu such
as communal living, group solidarity, shared belonging, collective ownership, the ethos
11
LCP4804/201/1/2020
Section E Traditional Leadership institutions under the Constitution

Before attempting this section check the treatment of traditional leaders under
apartheid. Thereafter study Sigcau v Minister of Cooperative Governance &Traditional
Affairs 2018 (12) BCLR 1525 (CC) together with Traditional Leadership and
Governance Framework Act 41 of 2003 as amended by Act 23 of 2009, and discuss
the functions and obligations of the President under the Act, in appointing the
king/queen pursuant to both the recommendation of the Commission on Traditional
Leadership Disputes and Claims, on the one hand, and, following the identification by
the royal family, on the other.
You must remember that the President appointed the candidate that was
recommended by the Commission, and not the one that was identified by the royal
family. You must thereafter comment on whether you see the Act as adequately
empowering the communities to take charge of their system or whether it had
improperly created two centres of power.
The Full Story!!!
Assignment 03
12
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Introduction

13
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junior males.
obligations.
14
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illegitimate.
suggested.
15
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1988).
16
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worth noting.
This was because the duty of support rendered the discrimination not to
be unfair.

17
LCP4804/201/1/2020


18
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(C)Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and Mayelane v


consent;
ii. if not, whether such consent was required in Xitsonga customary law;
and
19
LCP4804/201/1/2020
customary marriage.
20
LCP4804/201/1/2020
Consequently, it held that the marriage of Ngwenyama to her deceased husband was
marriage.
consent.
21
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subsequent marriage being invalid. Unfortunately, the court, in the absence of a
take issue with Fronemann J’s approach in taking a lot pains collecting evidence to
Ngwenyama was never refuted by the latter. Fronemann J should therefore have
22
LCP4804/201/1/2020
judgments
(3) SA 867 (SCA). See section A above.
community which indicated
23
LCP4804/201/1/2020
the eldest son of the previous hosi as the successor to his father as the new traditional
leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s son, sought to dispute Philia
Shilubana's appointment, relying on past practice based on his purported right as the
eldest son of the previous hosi.
has chosen to live.
24
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25
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26
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182


law:

whom it governs,
customary law:
27
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Question 2
(d) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases (Shilubana
and Others v Nwamitwa 2007 (2) SA 432 (SCA) and Shilubana and Others v
Nwamitwa 2008 (9) BCLR 914 (CC).
28
LCP4804/201/1/2020
has chosen to live.
29
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Question 3

customary law:
(a) Recognition of Customary Marriages Act 120 of 1998
30
LCP4804/201/1/2020


representivity. Traditional Leaders are no longer chosen by the ‘State president as the
Supreme Chief of all natives’, but are identified by the royal family for appointment by
the government, to reduce the danger of appointing government stooges.

31
LCP4804/201/1/2020
3. FORMAT OF THE 2020 MAY/JUNE EXAMINATION
The 2020 May/June examination will be a Two-and-a-half-hour examination paper.

The paper consists of a total of 100 marks. It will be offered, answered and submitted
on line according to the instructions on the paper. There will be no venue-based
examination in May/June 2020. You must be ready in time, write short straightforward
discussions and finish within time. No footnotes and no bibliography required. Just
state - in Shilubana.../...in the Recognition Act... in Mabena... etc. But dont forget the
DECLARATION OF HONESTY, that is, if you are indeed HONEST!! Omitting the
declaration will suggest the opposite.
WARNING: This is not an open book examination. Therefore do not use study
material in answering the questions. In any event, these are 4th year questions
which require your application, analysis and evaluation, which require you to
reflect on the issues – therefore unprocessed notes from your study material
will not help you. If you use books you will not be able to finish writing.
Moreover, copying exposes you to the risk of plagiarism!! So beware.

Study all the prescribed tutorial matter and do not “spot”. Therefore you must
study all sections of the work. Note the following:

1 The best aproach is to study customary law in South Africa, bearing in mind that
in all Acts and cases – the issue is – must the system be based on African
tradition/culture or Western-based human rights? Thereafter check what the
Constitution says about this struggle in sections 9, 10, 11, 30, 31, 211. Then you
will be able to conclude if the courts are fair or not – or if they are biased towards
the African tradition/culture or Western-based human rights, and why?
Then study: -
- the Recognition of Customary Marriages Act, 120 of 1998 to gether with the
family law cases ( eg Mabena; Mayelane; Gumede etc); in order to be able
critique them in the light of the Constitution;
32
LCP4804/201/1/2020
- Traditional Leadership and Governance Framework Act, 41 of 2003 together

with the traditional leadership cases (eg Shilubana; Sigcau v Minister of
Cooperative Governance &Traditional Affairs) in order to be able critique the
court’s application of the legislation in the light of the Constitution;
- and the Reform of customary Law of Succession and Regulation of Related
Matters Act 11of 2009 (eg Shilubana; Bhe) in order to be able critique the
court’s application of the legislation in the light of the Constitution. What is
important is to be able to demonstrate the transformation each of these Acts
and cases brought about in the sphere of customary law.
2 Find the cases/sources from which all the extracts/quotes in Assignment 1 come
3 Study the Only Study Guide and the prescribed textbook and Revise your
assignments, especially the solutions to Assignments 02 and 03 (above).
questions. In other words, think more; and remember less.
Your lecturers
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LCP4804
Semester 1

International law

about your module.
BARCODE
1
LCP4804/201/2/2020
CONTENTS
Page
Dear Students...................................................................................................................... 3
1. FEEDBACK ON ASSIGNMENT 01 ........................................................................... 3
2. FEEDBACK ON ASSIGNMENT 02 & 03 .................................................................. 4
3. FORMAT OF THE 2020 MAY/JUNE EXAMINATION ............................................. 28
2
LCP4804/201/2/2020
Dear Students
Read this tutorial letter carefully. It contains commentary on Assignment 01,
Assignment 02 and Assignment 03 for the second semester of 2020. It further contains
information on the forthcoming Oct/Nov 2020 examination. We hope that this feedback
on Assignments will provide an insight into what is expected of you in the
examinations. We trust that you found the assignments quite exciting, and that you
are coping well with the workload.
The Study guide
The only Study Guide for LCP4804 must be used together with the prescribed
textbook, and contains most of the prescribed cases and statutes that are topical to
this module. In order to understand the important issues discussed in the assignments
and relevant to the examination this Study Guide is the starting point. You must pay
particular attention to Activities/Feedbacks and Self-Assesments, which together with
cases and statutes are more instructive for the purpose of answering assessment
questions.
had to mark either (1) (2) & (3) for each of the questions on the Unisa Mark-reading
sheet. You did not have to give reasons for your answers.

1 3
2 4
3 4
4 2
5 3
6 4
7 2
8 3
9 3
10 4
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You must make sure that you study the cases listed in these questions so that you can
discuss them in the examination, giving the legal question that was answered by
the court; The decision of the court and reasons for judgment.
2. FEEDBACK ON ASSIGNMENT 02 & 03

Question 1
The functions, powers and responsibilities of the President are set out in Act 41 of
2003 as amended (Traditional Leadership and Governance Framework Act). In terms
of section 26 the President must implement the determination of the Commission on
Traditional Leadership Disputes and Claims immediately after being aware of it.
Implementing the determination entails appointing the candidate determined by the
commission to fill the position as a king or other traditional leader immediately as the
case may be.
At the same time, the functions, powers and responsibilities of the President are set
out in sections 9-12 of the Act which provide for the royal family to identify a candidate
to be appointed by the President as king or other traditional leader, as the case may
be, as soon as a vacancy occurs in that position. In that event the President must
appoint such a candidate as a king or such other traditional leader.
Thabiso Montshiwa is the candidate so determined by the commission in terms of the

functions, powers and responsibilities of the President a set out in section 26 of the
Act and stands to be appointed immediately to fill the vacancy.
Meanwhile, the incumbent traditional leader has passed on, an event that places a
duty on the royal family to identify a successor within a reasonable time. Thus, Tladi
Montshiwa was so identified by the royal family in terms of the functions, powers and
responsibilities of the President as set out in sections 9-12 of the Act.
A similar scenario happened in Sigcau v Minister of Co-operative Governance and
Traditional Affairs where the President was interdicted by the candidate who was
identified by the royal family as he was about to appoint the candidate who had been
4
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determined by the commission. The Constitutional Court found that immediate

implementation of the determination of the commission means that the president must
perform the appointment immediately, leaving no room for considering another
candidate who had been identified by the royal family. Sigcau’s case applies in the
present case.
The problem with the Act is its creation of two institutions (the commission and the
royal family) the role of both of which is to find the suitable candidate for the same
position – a terrible recipe for conflict at the best of times. Consequently, in Sigcau the
court merely solved the legal problem by declaring the winning candidate (legally
speaking), but did not resolve the socio-legal dispute that bedevils the community as
it did not endeavour to find the rightful candidate (according to family lineage and social
norms) for the position between the two candidates. Hence no peace will follow.
Question 2
Analyse the prospects of success of each party in terms of this scenario:

XA and YZ started to stay together as husband and wife irregularly as no customary
negotiations preceded their co-habitation. The marriage negotiations only started
afterwards. That irregular process is called ukuthwala – and the subsequent
negotiation is aimed at regularising it. The approval of the families was evidenced by
the delivery and acceptance of the ukulobola goods (ikhazi) , followed by the visits of
the family members to the home of spouses – as well as the fact that the spouses
cared and took responsibility for each other’s well-being and health. In such
circumstances there can be no reason for the wife’s mother to deny the existence of
the customary marriage. Her interdict must therefore fail. The court will accordingly
allow XA to bury his wife. (See the cases of Maluleke, Motsoatsoa and Fanti).
APPENDIX C: SELF-ASSESSMENT: BOTH SEMESTERS
5
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The information that follows is extremely important. It deals with the instructions
on how to complete and mark the assignment, as well as the content and the purpose
of the assignment. Please read this information very carefully before you start
with the assignment.
1. Assignment 03 is a self-evaluation assignment. When you join the legal

profession, you will have to evaluate your own arguments and submissions and
you should, therefore, acquire this skill as soon as possible.
2. The questions in the assignment cover all the study units in the study guide.
Since the questions are similar to the kinds of questions you may expect in the
examination, you should view this assignment as a valuable revision exercise
in your examination preparation.
The following questions must be regarded as examination guidelines to be

studied as seriously as possible. This is a summary of what you need to do to
pass the examination. After completing this summary, you must immediately
proceed to the full story in order to pass with distinction.
The examination will consist of four questions amounting to 100 marks, made
up of sub-questions of 10 or 5 marks each from the following sections.
After studying the requirements for a valid customary marriage thoroughly in section
3 of the Recognition of Customary Marriages Act 120 of 1998, check the rights of the
spouses before the commencement of that Act (that is their rights under the so-called
customary union); thereafter check the rights of the spouses under the Act and
compare the two versions. When studying the following cases, check whether the
court could have added new requirement(s) for validity, and why?
(3) SA 867 (SCA)
129 (9 April 2008) (unreported), Motsoatsoa v Roro All SA 324 (GSJ), and
6
LCP4804/201/2/2020

Check the provisions of the customary law of intestate succession as you find it in Bhe
before that judgment reformed it. Then check how those reforms were incorporated
into the Reform of the Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009; in order to have a good picture of the post-apartheid customary
law of intestate succession.
Thereafter check the customary law that prevailed when each of the following cases
went to court, and compare it with the version applied or reformed by the court:
Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another
1998 (2) SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867 (SCA).
(d) Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27
(CC)),
(e) Nwamitwa v Philia and Others 2005 (3) SA 536 (T) ; Shilubana cases
Check the customary law that existed when each of the following matters came to
court, and compare it with the evolving principles in post-apartheid customary law that
came out of those decisions.
7
LCP4804/201/2/2020
(CC)

President of Republic of South Africa 2005 (1) BCLR 580 (CC)).
Section D - The indigenous normative values of customary law found in concepts

such as ukufakwa, isondlo and others that indicate the centrality of ubuntu in African
traditions
Before attempting this section check the relevant feedback in Assignment 02 above.
Study the elements of the concepts of ukufakwa, isondlo/dikotlo, inqoma/mafisa/sisa,
ukwenzelela, ukwethula to determine the operation of such features of ubuntu such
as communal living, group solidarity, shared belonging, collective ownership, the ethos

Before attempting this section check the treatment of traditional leaders under
apartheid. Thereafter study Sigcau v Minister of Cooperative Governance &Traditional
Affairs 2018 (12) BCLR 1525 (CC) together with Traditional Leadership and
Governance Framework Act 41 of 2003 as amended by Act 23 of 2009, and discuss
the functions and obligations of the President under the Act, in appointing the
king/queen pursuant to both the recommendation of the Commission on Traditional
Leadership Disputes and Claims, on the one hand, and, following the identification by
the royal family, on the other.
You must remember that the President appointed the candidate that was
recommended by the Commission, and not the one that was identified by the royal
family. You must thereafter comment on whether you see the Act as adequately
empowering the communities to take charge of their system or whether it had
improperly created two centres of power.
The Full Story!!!
Assignment 03
8
LCP4804/201/2/2020
Introduction

9
LCP4804/201/2/2020

junior males.
10
LCP4804/201/2/2020
obligations.

illegitimate.
11
LCP4804/201/2/2020
suggested.
“In the present case I therefore decline the invitation to develop the customary
law of succession which excludes women from participating in intestacy and
which also excludes children who are not the oldest male child. In any event,
because the development of that rule, as proposed by Mr Trengrove, would
affect not only the customary law of succession but also the customary family
law rules, I think that such development should rather be undertaken by
Parliament.
12
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1988).

worth noting.
13
LCP4804/201/2/2020
This was because the duty of support rendered the discrimination not to
be unfair.


14
LCP4804/201/2/2020


15
LCP4804/201/2/2020

consent;
customary marriage.

16
LCP4804/201/2/2020
Consequently, it held that the marriage of Ngwenyama to her deceased husband was
marriage.
17
LCP4804/201/2/2020
consent.

subsequent marriage being invalid. Unfortunately, the court, in the absence of a
18
LCP4804/201/2/2020
take issue with Fronemann J’s approach in taking a lot pains collecting evidence to
Ngwenyama was never refuted by the latter. Fronemann J should therefore have
judgments
19
LCP4804/201/2/2020
Philia Shilubana, of the Valoyi traditional community, in the Limpopo Province

of South Africa, was not appointed as a traditional leader (hosi) of her people
when her father died in 1968. As a woman she could not be appointed due to
the laws of unfair discrimination at the time. Instead her father’s brother,
Richard Nwamitwa, was appointed as the traditional leader (hosi). When the
latter died in 2001, the Valoyi Traditional Authority took a resolution to appoint
Philia Shilubana as the traditional leader (hosi) relying on the constitutional
provision for gender equality which motivated the community to adapt its rules.
This resolution amended the past practice of the community which indicated
the eldest son of the previous hosi as the successor to his father as the new
traditional leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s son, sought to
dispute Philia Shilubana's appointment, relying on past practice based on his
The matter was decided in favour of Sidwell Nwamitwa in both the High Court
and the SCA, in terms of the community’s past practice.
In a unanimous judgment, the Court decided that Ms Shilubana was legally

appointed as the legitimate traditional leader (hosi) of the Valoyi people. The
Court emphasised the fact that customary law is a living system of law. As such
it was not bound by historical precedent. Its flexibility allowed it to evolve as its
community changed. Once it was clear that the contemporary practices of the
community have replaced its past practices, the latter no longer applied.
Because of this, the Constitutional Court deviated from prior decisions that
had served as a test for determining the content of customary law even
though they indicated long-standing and historical practices. Instead the Court
20
LCP4804/201/2/2020
redefined customary law as a system that reflected the current practices of

the particular community. Living customary law came to be defined with
reference to the constantly evolving practices that indicate the current system
of norms by which that community has chosen to live.
appointment of a traditional leader (hosi) had legitimately evolved to allow for
the appointment of a woman as a traditional leader (hosi) and that this
development was consistent with the Constitution. After finding that Philia
Shilubana had been validly appointed the Constitutional Court upheld the
appeal, thus confirming her appointment as a traditional leader (hosi) of her
Valoyi community.
Bear in mind that this was after this particular community (Valoyi community)
had decided to adapt its laws consistently with the Constitution. Other
communities will be judged according to their own contemporary practices.
The Constitutional Court very well endorsed the community’s right to develop
their law, thus protecting their right to develop their culture. In doing so the court
unfortunately destroyed the rule regulating the customary law of succession
from one generation to another. The Constitutional Court ignored that according
to customary law, lineage is important and that the position of successor must
be held by someone capable of producing a future Nwamitwa heir. In appointing
Philia, the court should not have left future succession hanging. It should have
made it clear that it was doing so because of her status as a princess, and add
that in order to uphold lineage of the Nwamitwa royal line, after her death the
position would revert to a qualifying Nwamitwa prince/princess. Therefore, the
court did a good thing (promoting gender equality) and (not so good as it failed
to promote culture).

21
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22
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182


law:
it is well established that customary law is a vital component of our

constitutional system, recognised and protected by the Constitution, while
ultimately subject to its terms. The true nature of customary law is as a living
body of law, active and dynamic, with an inherent capacity to evolve in keeping
with the changing lives of the people whom it governs,
customary law:
23
LCP4804/201/2/2020

Question 2
(d) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases
Philia Shilubana, of the Valoyi traditional community, in the Limpopo Province

of South Africa, was not appointed as a traditional leader (hosi) of her people
24
LCP4804/201/2/2020
when her father died in 1968. As a woman she could not be appointed due to
the laws of unfair discrimination at the time. Instead her father’s brother,
Richard Nwamitwa, was appointed as the traditional leader (hosi). When the
latter died in 2001, the Valoyi Traditional Authority took a resolution to appoint
Philia Shilubana as the traditional leader (hosi) relying on the constitutional
provision for gender equality which motivated the community to adapt its rules.
This resolution amended the past practice of the community which indicated
the eldest son of the previous hosi as the successor to his father as the new
traditional leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s son, sought to
dispute Philia Shilubana's appointment, relying on past practice based on his
The matter was decided in favour of Sidwell Nwamitwa in both the High Court
and the SCA, in terms of the community’s past practice.
In a unanimous judgment, the Court decided that Ms Shilubana was legally

appointed as the legitimate traditional leader (hosi) of the Valoyi people. The
Court emphasised the fact that customary law is a living system of law. As such
it was not bound by historical precedent. Its flexibility allowed it to evolve as its
community changed. Once it was clear that the contemporary practices of the
community have replaced its past practices, the latter no longer applied.
Because of this, the Constitutional Court deviated from prior decisions that
had served as a test for determining the content of customary law even
though they indicated long-standing and historical practices. Instead the Court
redefined customary law as a system that reflected the current practices of
the particular community. Living customary law came to be defined with
25
LCP4804/201/2/2020
reference to the constantly evolving practices that indicate the current system
of norms by which that community has chosen to live.
appointment of a traditional leader (hosi) had legitimately evolved to allow for
the appointment of a woman as a traditional leader (hosi) and that this
development was consistent with the Constitution. After finding that Philia
Shilubana had been validly appointed the Constitutional Court upheld the
appeal, thus confirming her appointment as a traditional leader (hosi) of her
Valoyi community.
Bear in mind that this was after this particular community (Valoyi community)
had decided to adapt its laws consistently with the Constitution. Other
communities will be judged according to their own contemporary practices.
The Constitutional Court very well endorsed the community’s right to develop
their law, thus protecting their right to develop their culture. In doing so the court
unfortunately destroyed the rule regulating the customary law of succession
from one generation to another. The Constitutional Court ignored that according
to customary law, lineage is important and that the position of successor must
be held by someone capable of producing a future Nwamitwa heir. In appointing
Philia, the court should not have left future succession hanging. It should have
made it clear that it was doing so because of her status as a princess, and add
that in order to uphold lineage of the Nwamitwa royal line, after her death the
position would revert to a qualifying Nwamitwa prince/princess. Therefore, the
court did a good thing (promoting gender equality) and (not so good as it failed
to promote culture).
Question 3
26
LCP4804/201/2/2020

customary law:
(a) Recognition of Customary Marriages Act 120 of 1998.

representivity. Traditional Leaders are no longer chosen by the ‘State president as the
Supreme Chief of all natives’, but are identified by the royal family for appointment by
the government, to reduce the danger of appointing government stooges.
27
LCP4804/201/2/2020

3. FORMAT OF THE 2020 MAY/JUNE EXAMINATION
The 2020 October/November examination will be a Fourty-eight-hour examination

paper. The paper consists of a total of 100 marks. It will be offered, answered and
submitted on line according to the instructions on the paper. There will be no venue-
based examination in October/November 2020. You must be ready in time, write and
finish within time. No footnotes and no bibliography required. Just state - in
Shilubana.../...in the Recognition Act... in Mabena... etc. But dont forget the
DECLARATION OF HONESTY, that is, if you are indeed HONEST!! Omitting the
declaration will suggest the opposite – and an adverse inference will be drawn from
that.
WARNING: This is not an open book examination. Therefore do not use study
material in answering the questions. In any event, these are 4th year questions
which require your application, analysis and evaluation, which require you to
reflect on the issues – therefore unprocessed notes from your study material
will not help you. If you use books you will not be able to finish writing.
Moreover, copying exposes you to the risk of plagiarism!! - because we know
the wording of our own study material and we will catch you. So beware.
28
LCP4804/201/2/2020

Study all the prescribed tutorial matter and do not “spot”. Therefore you must
study all sections of the work. Note the following:

1 The best aproach is to study customary law in South Africa, bearing in mind that
in all Acts and cases – the issue is whether the system – must be based on
African tradition/culture or Western-based human rights? Thereafter check what
the Constitution says about this struggle in sections 9, 10, 11, 30, 31, 211. Then
you will be able to conclude if the courts are fair or not – or if they are biased
towards the African tradition/culture or Western-based human rights, and why?
Then study: -
- the Recognition of Customary Marriages Act, 120 of 1998 to gether with the
family law cases ( eg Mabena; Mayelane; Gumede etc); in order to be able
critique them in the light of the Constitution;
- Traditional Leadership and Governance Framework Act, 41 of 2003 together
with the traditional leadership cases (eg Shilubana; Sigcau v Minister of
Cooperative Governance &Traditional Affairs) in order to be able critique the
court’s application of the legislation in the light of the Constitution;
- and the Reform of customary Law of Succession and Regulation of Related
Matters Act 11of 2009 (eg Shilubana; Bhe) in order to be able critique the
court’s application of the legislation in the light of the Constitution. What is
important is to be able to demonstrate the transformation each of these Acts
and cases brought about in the sphere of customary law.
29
LCP4804/201/2/2020
2 Find the cases/sources from which all the extracts/quotes in Assignment 1 come
3 Study the Only Study Guide and the prescribed textbook and Revise your
assignments, especially the solutions to Assignments 02 and 03 (above).
questions. In other words, think more; and don not rely on remembering only.
Cheers!!!
30
LCP4804/201/1/2021
Tutorial letter 201/1/2021

LCP4804
Super-semester
Department of Public, Constitutional & International
Law
IMPORTANT INFORMATION:
about your module.
PLEASE READ THIS TUTORIAL LETTER IMMEDIATELY

Dear Student,
Read this tutorial letter carefully. It contains suggested answers for Assignment 01 and Assignment 02 for
the “Super Semester” of 2021. We hope that the feedback on Assignments will provide an insight into what
is expected of you in the examination. We trust that you have found the assignments stimulating, and that
you are coping with the workload.
THIS IS YOUR FINAL TUTORIAL LETTER FOR THE SEMESTER OF 2021. It contains the following:
1 ASSIGNMENT 01: MULTIPLE-CHOICE ASSIGNMENT ANSWERS
2 ASSIGNMENT 02: WRITTEN ASSIGNMENT ANSWERS
3 THE EXAMINATION: FORMAT, PREPARATION AND WRITING
The Study Guide
The only Study Guide for LCP4804 must be used together with the prescribed textbook and contains most
of the prescribed cases and statutes that are topical to this module. In order to understand the important
issues discussed in the assignments and relevant to the examination this Study Guide is the starting point.
You must pay particular attention to Activities/Feedbacks and Self-Assessments, which together with
cases and statutes are more instructive for the purpose of answering assessment questions.
FEEDBACK ON ASSIGNMENT 01: MULTIPLE CHOICE ASSIGNMENT
Assignment 01 was relatively simple and should not have given you too much trouble. This was a
compulsory assignment, consisting of multiple choice questions. You had to choose either options (1) (2)
(3) & (4) for each of the questions as the correct answer. You did not have to give reasons for your
answers.

1 1
2 2
3 4
4 2
5 3
6 1
7 2
8 1
9 4
10 2
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You must make sure that you study the cases listed in these questions so that you can discuss them in
the examination, giving the legal question that was answered by the court; The decision of the court and
reasons for judgment.
FEEDBACK ON ASSIGNMENT 02: WRITTEN ASSIGNMENT
Question 1
(i)
The Constitution envisions the customary law of South Africa that is free of the distortions that were brought
into the system through the application of the repugnancy jurisprudence (must be Africanised) and (must
conform to constitutional precepts).
Firstly, the courts are therefore required to free customary law of the domination by the common law so
that customary law could be viewed in the light of its own values and norms (Alexkor vs Richtersveld
Community), subject to constitutional constraints. The courts overlooked this requirement in both the
above cases – which resulted in the failure of Africanisation.
Secondly, the courts have to transform customary law in line with section 39(2) of the Constitution to
develop customary law to make sure that its purport and objects conform with the Bill of Rights. This would
be in line with the Bill of Rights – i.e constitutionalisation.
Both courts in Mabena and Mabuza failed to Africanise the law, they only managed to constitutionalise it.
For instance, in Mabena the father of the deceased husband relied on his understanding of customary law
rights as head of the family as protected by the Constitution. He urged the court to Africanise the law in
line with the first requirement above. However, the court rejected this request and applied the second
requirement in terms of which his wife relied on the Constitution as allowing her, as an equal member of
society, to consent to the marriage of her daughter in the absence of her husband. Her action was
accordingly affirmed. The court developed customary law to allow her to act as she did in terms of her
equality with her absent husband. At the same time the court also approved the deceased husband’s
decision to negotiate his own marriage without assistance from his father – affirming the right of an
independent adult young man to act as equal in law. The court constitutionalized the law, however, it
refused to affirm African culture i.e to insist on the participation of elders.
If the woman’s mother had seen herself as equal to her husband, and therefore able to represent her
marital family – in the same way as her husband would do, she would have contributed to Africanisation.
As an African her culture requires her to act as a member of her group – ie to represent her marital family.
But she saw herself as a constitutional being, and acted as an individual who had a personal right to
equality. The court agreed with her and emphasized her own equality as an individual – thus defining
equality in the Western sense - which downplayed her African cultural background as a communal being.
In the same case the participation of the deceased husband was not seen as an act of someone who
represented his family in the negotiations, in terms of African culture, but as affirming his own equality in
terms of the Constitution. Therefore, equality was interpreted in the Western sense – no Africanisation was
achieved in Mabena.
With reference to Mabuza a similar approach was followed. Whilst the husband insisted on the observance
of African culture, insisting on the performance of ukumekeza, the wife relied on the development of African
law by the Bill of Rights (again African culture vs Constitution). The court agreed with her and the role of
ukumekeza was rejected. Similarly, no Africanisation was achieved in Mabuza.
(ii)
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Covid-19 is a very dangerous pandemic that spreads through social interaction – to control it people must
wear masks, sanitise, avoid contact through social distancing and constant washing of hands and cleaning
of surfaces. As all this is being observed people need to ensure that the principle of ubuntu revolves around
the expression umuntu ngumuntu ngabantu – the people are the reason for one’s personhood. This means
that without the other people an individual is nothing. Togetherness is the cornerstone of African social
solidarity. One of the basic principles of ubuntu is communal living – no one lives alone. As everyone has
to survive during Covid 19 we have to ensure that we are safe all the time - also ensuring that everyone is
safe. This is an act of ubuntu to avoid shaking your brother’s/sister’s hand – in order to protect yourself
and your brother/sister. The seemingly anti-social behaviour imposed by Covid 19 is necessary in order to
ensure our social solidarity more – in the interests of a shared existence and reciprocity, one another’s
safety must be ensured. For future solidarity to exist we must avoid infecting one another. In order to be
together more in future, we must keep social distance – so that other people can be people because of
us.
Question 2
In Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC) the court developed customary law to
promote the spirit, purport and objects of the Bill of Rights, by removing the rule of male primogeniture, so
as to treat men, women and children equally in matters of intestate succession. The court held 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.
The issue of the primogeniture rule also came to the fore in Shilubana v Nwamitwa 2008 (9) BCLR 914
(CC), where this rule was considered in the context of traditional leadership. The judgment in this case
allowed the people of Valoyi traditional community in Limpopo to move away from any previously existing
rule that a woman could never be appointed to traditional leadership position. The court endorsed the
community’s right to develop their customary law in line with constitutional values.
With regard to whether the above jugdments are either compatible or incompatible with the idea of
decolonising the South African legal system, the decision in Bhe case can be seen as irreconciable with
this idea. The Constitutional Court held against its own previous judgment in Alexkor Ltd v Richtersveld
Community 2003 (12) BCLR 1301 (CC) re-introducing the defunct (in terms of Alexkor) colonial/apartheid
culture of trumping African customary law through Dutch customary in Africa. On the other hand, the
Constitutional Court in Shilubana case restored the indigenous power traditional authorities had to
legislate, maintain, repeal or amend their customs, which is consistent with the idea of of decolonising the
post-apartheid South African law.
APPENDIX C: SELF-ASSESSMENT: SUPER-SEMESTER
• Assignment 03 is a self-evaluation assignment. When you join the legal profession, you will
have to evaluate your own arguments and submissions and you should, therefore, acquire this skill
as soon as possible.
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• The questions in the assignment cover all the study units in the study guide. Since the questions
are similar to the kinds of questions you may expect in the examination, you should view this
assignment as a valuable revision exercise in your examination preparation.
The following questions must be regarded as examination guidelines to be studied as seriously

as possible. This is a summary of what you need to do to pass the examination. After completing
this summary, you must immediately proceed to the full story in order to pass with distinction.
The examination will consist of four questions amounting to 100 marks, made up of sub-questions
of 10 or 5 marks each from the following sections.
After studying the requirements for a valid customary marriage thoroughly in section 3 of the Recognition
of Customary Marriages Act 120 of 1998, check the rights of the spouses before the commencement of
that Act (that is their rights under the so-called customary union); thereafter check the rights of the spouses
under the Act and compare the two versions. When studying the following cases, check whether the court
could have added new requirement(s) for validity, and why?
Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another 1998 (2) SA 675
(T) and Mthembu v Letsela and Another 2000 (3) SA 867 (SCA)
Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008) (unreported),
Motsoatsoa v Roro All SA 324 (GSJ), and Fanti v Boto and Others 2008 (5) SA 405 (C).
Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and Mayelane v Ngwenyama and Another 2013 (8)
BCLR 918 (CC).
Check the provisions of the customary law of intestate succession as you find it in Bhe before that
judgment reformed it. Then check how those reforms were incorporated into the Reform of the Customary
Law of Succession and Regulation of Related Matters Act 11 of 2009; in order to have a good picture of
the post-apartheid customary law of intestate succession.
Thereafter check the customary law that prevailed when each of the following cases went to court, and
compare it with the version applied or reformed by the court:
Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another 1998 (2) SA 675
(T) and Mthembu v Letsela and Another 2000 (3) SA 867 (SCA).
Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27 (C), Bhe v The Magistrate
Khayelitsha; Shibi v Sithole; Human Rights Commission v President of Republic of South Africa 2005 (1)
BCLR 580 (CC)).
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Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases (Shilubana and Others v Nwamitwa
2007 (2) SA 432 (SCA) and Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC).
Check the customary law that existed when each of the following matters came to court, and compare it
with the evolving principles in post-apartheid customary law that came out of those decisions.
Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC)
Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of Republic of
South Africa 2005 (1) BCLR 580 (CC)).
Section D - The indigenous normative values of customary law found in concepts such as
ukufakwa, isondlo and others that indicate the centrality of ubuntu in African traditions
Before attempting this section check the relevant feedback in Assignment 02 above. Study the elements
of the concepts of ukufakwa, isondlo/dikotlo, inqoma/mafisa/sisa, ukwenzelela, ukwethula to determine
the operation of such features of ubuntu such as communal living, group solidarity, shared belonging,
collective ownership, the ethos of co-operation and the ethic of reciprocity.
Before attempting this section check the treatment of traditional leaders under apartheid. Thereafter study
Sigcau v Minister of Cooperative Governance &Traditional Affairs 2018 (12) BCLR 1525 (CC) together
with Traditional Leadership and Governance Framework Act 41 of 2003 as amended by Act 23 of 2009,
and discuss the functions and obligations of the President under the Act, in appointing the king/queen
pursuant to both the recommendation of the Commission on Traditional Leadership Disputes and Claims,
on the one hand, and, following the identification by the royal family, on the other.
You must remember that the President appointed the candidate that was recommended by the
Commission, and not the one that was identified by the royal family. You must thereafter comment on
whether you see the Act as adequately empowering the communities to take charge of their system or
whether it had improperly created two centres of power.
The Full Story!!!
Assignment 03
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Apply the provisions of the Recognition of Customary Marriages Act 120 of 1998 regarding the
requirements for a valid customary marriage to test the validity of the following judgments.
(Remember to start case discussion properly by giving the names of the parties; the legal question that
was answered by the court, the reasons for judgment (ratio decidendi) given by the court and the
decision of the court).
Introduction
In November 1996, Le Roux J heard an application by the applicant, Mildred Hleziphi Mthembu, who
approached the court for relief in a matter of succession to the estate of her deceased husband, one
Tebalo Watson Letsela, to whom she claimed to have been married by customary law.
1) An order declaring
1.1. that the rule of African customary law which generally excludes African women from
intestate succession ("the customary law rule") is inconsistent with the Constitution and
consequently invalid;
1.2. that s 23 of the Black Administration Act 38 of 1927 ("the Act") and s 2 of the Regulations
for the Administration and Distribution of the Estates of Deceased Blacks made under
s 23(10) of the Act [and published] by Government Notice R200 of 6 February 1987
("the regulations") are invalid insofar as they demand the application of the customary
law rule;
1.3. that the administration and distribution of the estate of her late husband, Tebalo
Watson Letsela ("the deceased") is governed by the common law of intestate
succession; and
Before his death Letsela (the deceased) was employed in Boksburg and owned a house at 822 Ditopi
Street, Vosloorus, in which he had lived with the applicant (the widow) since 1990, together with their
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daughter, Tembi, who was born on 7 April 1988. In the same house also lived Letsela's parents, his sister
and her daughter.
The deceased died on 13 August 1993 and the first respondent, Henry K Letsela, (father of the deceased)
was appointed by the second respondent (the Magistrate, Boksburg) to administer and wind up the estate.
He claims that the house in Ditopi Street devolves upon him according to the rules of customary law. The
rules are recognized by s 23 of the Black Administration Act 38 of 1927 and the regulations made under
the authority of the Act, especially reg 2 of 6 February 1987 promulgated in Government Gazette 10601
as Government Notice (5) R200. This regulation provides for customary law to apply to the devolution of
the estate of a black person who dies intestate. The most important customary law rule is the one of male
primogeniture in the customary law of succession in terms of which only first-born or precedent males may
First respondent claimed that he has no responsibilities toward applicant, either to house her or to maintain
her and her daughter; denied the existence of a customary marriage between the applicant and his son
and rejected any suggestion that the applicant and her daughter were part of his family. In her reply, the
applicant produced witnesses and documents to prove the existence of a valid customary marriage
between herself and the deceased, including the information that lobolo was formally fixed at R2,000 and
that by the time of his death, her deceased husband had paid R900 towards this sum.
The first respondent relied mainly on the argument that there was no valid customary marriage between
his son and the applicant and that consequently she neither has any rights as a wife in this matter nor
does he owe her and her daughter any obligations.
The court found that the customary law rule excluding women from inheritance is prima facie discriminatory
on the grounds of sex or gender but not unfairly so because of the concomitant duty of support. Mindful
that the constitutional issue (unfairly discriminatory on the grounds of sex or gender) might assume a
different complexion if the facts revealed that there had been no customary marriage between applicant
and deceased, Le Roux J realized that the concomitant duty of support would cease to be a consideration
and the investigation into the constitutionality of the rule would have to take different factors into account.
The court accordingly referred the matter for the hearing of oral evidence on: (a) whether there was a valid
customary marriage between the applicant and the deceased; or (b) whether a putative marriage under
Whether a customary marriage existed between Mthembu (applicant) and Letsela (deceased) and whether
Tembi (daughter) was a legitimate child
The hearing of oral evidence took place in August 1997 in a case presided over by Mynhardt J. Neither
the applicant nor the first respondent adduced any evidence and the application was accordingly
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determined on the basis that no customary marriage existed between Mthembu and the deceased and
that Tembi was therefore illegitimate.
On the question of the court 'developing' customary law in line with the spirit, purport and objects of the
Bill of Right, applicant's counsel made a strong case for customary law to be coaxed towards equality,
which is a value fundamental to the Constitution.
Arguing that the issue of discrimination on the grounds of sex or gender is ‘academic’ in this case because
the real reason for Tembi’s disqualification from inheritance is her illegitimacy, the Court refused to
“In the present case I therefore decline the invitation to develop the customary law of succession
which excludes women from participating in intestacy and which also excludes children who are
not the oldest male child. In any event, because the development of that rule, as proposed by Mr
Trengrove, would affect not only the customary law of succession but also the customary family
law rules, I think that such development should rather be undertaken by Parliament.
An appeal against the decision of Mynhart J who dismissed the application to declare that a customary
marriage existed between applicant and the deceased and declared that Tembi was a legitimate child
Justices of Appeal Smalberger, Marais, Zulman and Mpati, and Acting Justice of Appeal Mthiyane heard
the appeal on 4 May 2000 in the Supreme Court of Appeal. Counsel for the appellant raised the same four
grounds of attack against the customary law rule of male primogeniture which had been dismissed by
Mynhardt J in the court a quo. He stated, however, that he would not advance oral argument in respect of
the first two grounds and would instead concentrate on the last two grounds which were based on the
proposition that:
1) Tembi would have succeeded by intestate succession at customary law to her deceased father's
estate but for the fact that she is female, and that
2) the customary law rule of primogeniture is offensive to public policy or natural justice (within the
meaning of s 1(1) of the Law Evidence Amendment Act, 1988).
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The Court dismissed both arguments and went on to consider the invitation to develop customary law
according to the ‘spirit, purport and objects’ of the Bill of Rights. On this point, counsel for the appellant
had argued that the customary law rule was based on ‘inequity, arbitrariness, intolerance and inequality,’
all of which are repugnant to the new constitutional order. The Court was urged to develop the rule so that
it sheds its discriminatory elements and allows male and females, legitimate and illegitimate, descendants
to inherit.
The court was not convinced, arguing that Tembi was excluded by illegitimacy and not gender and that it
was undesirable to pronounce on such an important constitutional question in a case in which the issue
was academic.
The place of this case in history is assured for the simple reason that it fielded the first salvo in what was
to become a sustained battle against the primogeniture rule which was to culminate in the case of Bhe.
Several points about the Mthembu cases are worth noting.
1) Some of the earliest criticisms of the outcome in Mthembu were based on concerns that the
court did not give enough weight to the distinction between official customary law, on the one
hand, and day-to-day community practice, on the other. At the time, under attack was the
conclusion of Le Roux J that the concomitant duty of support attaching to the heir’s right to
take all the property to the exclusion of girls and women had the effect of ‘saving’ the
customary law rule from constitutional attack.
This was because the duty of support rendered the discrimination not to be unfair.
This criticism is justified but the point usually overlooked is the impact of the approach of the
court. In deciding to assess an African customary practice on its own merits without assuming
its inferiority to some other “mainstream” notions of propriety, the court sent a strong signal
about the future of customary law in a constitutional dispensation.
2) The failure to recognise the existence of a marriage between Hleziphi Mthembu and the
deceased was another lost opportunity – this time to force the issue of the existence of a
marriage so as to ensure the centrality of the real constitutional issue, sex and gender, as
opposed to illegitimacy. The point could have been canvassed more forcefully, with a fair
chance of success.
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‘African customary marriage is a process, not an event’. According to many systems of

customary law a relationship between a man and a woman ‘ripens’ towards marriage on the
occurrence of a number of events, formal and informal, intended or inadvertent, and the
reaction of the couple’s families to those events. Among the events and occurrences are:
discussions about lobolo, delivery of marriage goods, cohabitation, pregnancy or the birth of
a child.
The crisp legal question then becomes: “what is the applicable legal system and, according to
that legal system, do these fundamentals constitute a valid customary marriage?” The
judgement in the first Mthembu hearing reveals that the applicant is Zulu and the deceased
was of South Sotho stock. It would have been worth exploring the rules in these two systems
to see whether a valid customary marriage comes into existence, in either system, in the
circumstances set out above, despite the protestations of the first respondent. As things have
turned out, a feeling persists that a potentially fruitful avenue in inquiry has been blocked by
(or surrendered
to) the first respondent, who had the clearest material motive for denying the existence of the
marriage.
Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008)
(unreported), The court held:
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”.
The validity of a customary marriage was impuned on the basis that the traditional imvume ritual, the Zulu
variation of ukumekeza (Swazi), for integrating the bride into the groom’s family, had not been observed
before the death of the husband. Tshiq i J examined the requirements for a valid customary marriage as
laid down in section 3 of the Recognition of Customary Marriages Act.
On the basis of these requirements the judge concluded that customary marriage has evolved over the
years, and that this evolution has been accepted by the South African courts. The judge then 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
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customary marriage, confirming the bride’s averment that the imvume practice was not an essential
requirement for the validity of her customary marriage.
The case of Motsoatsoa v Roro All SA 324 (GSJ) is important for emphasising the value of integration of
the bride to mark the transfer from one family to another. The case is important for understanding the
meaning of 'entered into' or celebrated in section 3(1)(b) of the Act. What was in issue here was lack of
handing over of the bride. The question was: can the woman hand herself over? Fanti v Boto and Others
2008 (5) SA 405 (C) also does the same thing but focuses on the importance of involvement of the two
families in the formation of the customary marriage. The question was: can the husband decide, without
the involvement of his in -laws, that their daughter is now his wife?
Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and Mayelane v Ngwenyama and Another 2013
(8) BCLR 918 (CC)
1) whether Section 7(6) of the RCMA did indeed introduce a new requirement of validity by
requiring the husband to seek his first wife’s consent;
2) if not, whether such consent was required in Xitsonga customary law; and
3) whether, if such consent had not been furnished, the court ought to develop the
The issue was the interpretation of section 7(6) of the RCMA: whether, in requiring a husband who wants
to marry another wife to make certain proprietary arrangements it introduces (by the back door, as it were)
Ms Mayelane and Ms Ngwenyama both claimed to be married by Xitsonga customary law to one Mr
Moyana, now deceased. After Mr Moyana’s death Ms Mayelane, the first wife, challenged the validity of
Ms Ngwenyama’s marriage on the ground that the RCMA required a husband to obtain the consent of his
first wife to contract a valid further customary marriage, and that Mr Moyana had not obtained such
consent.
The High Court found the Mr Moyana’s further marriage to Ngwenyama to be invalid for not complying
with section 7(6) of the Recognition Act. It left the matter of the requirement of the first wife’s consent
undecided. Ngwenyama appealed to the SCA.
The court heard an appeal from the decision of the high court that declared Ngwenyama’s marriage to her
deceased husband invalid because the latter did not apply to court to get its approval for the contract
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regulating the matrimonial property of the spouses before marrying her as the second wife in terms of
section 7(6) of the Recognition of Customary Marriages Act 120 of 1998.
The SCA looked at the question before court as to whether a further marriage such as Ngwenyama’s that
was negotiated, entered into or celebrated without a prior court approval of a section 7(6) contract was
valid or not.
The SCA’ approach was to examine the provisions of section 7(6) of the Recognition of Customary
Marriages Act 120 of 1998 to establish whether their non -observance could have had a bearing on the
validity of a customary marriage at all. This was in view of the fact that ordinarily the validity of the
customary marriage is regulated by section 3 of the Act; and section 7(6) regulates regimes of matrimonial
property only.
The SCA, per Ndita AJA, concluded that section 7(6) of the Recognition Act was only concerned with
matters of matrimonial property, and had nothing to do with the validity of the customary marriage which
was regulated by section 3 of the Act. The SCA held accordingly that the non -observance of the section
7(6) did not affect the validity of the customary marriage. At most, such non -observance left the customary
marriage out of community of property. According to the SCA the purpose of the Recognition Act is to
protect all women, not just a particular woman. The SCA did not find it necessary to determine whether
the consent of Mayelane, as the deceased’s first wife was required for the validity of Ngwenyama’s
marriage to the same husband.
The SCA’s determination that the non -observance of the provisions of section 7(6) of the Recognition Act
does not affect the validity of the customary marriage is to be commended as such matters are clearly
dealt with by the provisions of section 3. Consequently, it held that the marriage of Ngwenyama to her
deceased husband was valid despite the non -observance of the provisions of section 7(6) Recognition
Act. It emphasised that the purpose of the Recognition Act is to protect all wives, not just the first wife. As
there was no suggestion that section 3 Recognition Act which deals with issues of validity was not complied
with, there was no basis for invalidating the marriage.
However, the SCA’s refusal to inquire into the impact of the lack of the first wife’s consent to her husband’s
further marriage to another woman is to be lamented because the high court had already found that lack
of such consent was problematic. The SCA therefore erred in holding that because the validity of
Ngwenyama’s marriage was not invalidated by the deceased’s failure to comply with the section 7(6)
provisions, it was therefore not necessary to investigate the role of the first wife’s consent.
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The Constitutional Court found it necessary to investigate whether the relevant Xitsonga custom allowed
the deceased to marry Ngwenyama as a second wife without first obtaining the consent of his first wife,
Mayelane. The court’s approach was to collect affidavits from the community about the need for the
husband to obtain his first wife’s consent to her husband’s further marriage to another woman. The court’s
majority held that the Recognition Act did not contain a requirement for the first wife’s consent and that
Xitsonga customary law did not have a uniform rule in this regard. The court decided in these
circumstances to develop Xitsonga customary law to include the rule that the first wife’s consent to her
husband’s further marriage to another woman is a requirement for the validity of a further marriage. The
consequence was that non -compliance with the rule would result in the attempted subsequent marriage
being invalid. Unfortunately, the court, in the absence of a uniform customary law rule on consent, chose
the one requiring consent, not the other. Having done that the Constitutional Court developed the version
of Xitsonga customary law it favoured and gave it the stamp of the Constitution.
Accordingly, the Constitutional Court, per Fronemann J, upheld the appeal, concluding that Ngwenyama’s
marriage to her deceased husband was invalid since it was irregularly entered into without the necessary
The minority judgments of Zondo J and Jafta J are instructive in assessing the performance of the
Constitutional Court’s majority decision in this matter. Both justices take issue with Fronemann J’s
approach in taking a lot pains collecting evidence to prove what was already clearly established on record.
According to Jafta J Mayelane’s evidence that her deceased husband never sought and obtained consent
to marry Ngwenyama was never refuted by the latter. Fronemann J should therefore have accepted this
fact as established, instead of calling for further evidence. Lacking consent, which is necessary according
to the particular community’s tradition in terms of the unrefuted evidence, means that the subsequent
marriage was not n egotiated and entered into or celebrated in the manner required by custom.
Apply the provisions of the Reform of the Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009 to test the validity of the following judgments
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(Remember to start case discussions properly by giving the names of the parties; the legal question
that was answered by the court, the reasons for judgment (ratio decidendi) given by the court and the
(1) Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another 1998
(2) SA 675 (T) and Mthembu v Letsela and Another 2000
(2) Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27 (C), Bhe v The
Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of Republic of
South Africa 2005 (1) BCLR 580 (CC), See section C below.
(3) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases (Shilubana and Others v
(CC).
Philia Shilubana, of the Valoyi traditional community, in the Limpopo Province of South Africa, was not
appointed as a traditional leader (hosi) of her people when her father died in 1968. As a woman she could
not be appointed due to the laws of unfair discrimination at the time. Instead her father’s brother, Richard
Nwamitwa, was appointed as the traditional leader (hosi). When the latter died in 2001, the Valoyi
Traditional Authority took a resolution to appoint Philia Shilubana as the traditional leader (hosi) relying on
the constitutional provision for gender equality which motivated the community to adapt its rules. This
resolution amended the past practice of the community which indicated the eldest son of the previous hosi
as the successor to his father as the new traditional leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s
son, sought to dispute Philia Shilubana's appointment, relying on past practice based on his purported
right as the eldest son of the previous hosi.
The matter was decided in favour of Sidwell Nwamitwa in both the High Court and the SCA, in terms of
the community’s past practice.
In a unanimous judgment, the Court decided that Ms Shilubana was legally appointed as the legitimate
traditional leader (hosi) of the Valoyi people. The Court emphasised the fact that customary law is a living
system of law. As such it was not bound by historical precedent. Its flexibility allowed it to evolve as its
15
community changed. Once it was clear that the contemporary practices of the community have replaced
its past practices, the latter no longer applied.
Because of this, the Constitutional Court deviated from prior decisions that had served as a test for
determining the content of customary law even though they indicated long-standing and historical
practices. Instead the Court redefined customary law as a system that reflected the current practices of
the particular community. Living customary law came to be defined with reference to the constantly
evolving practices that indicate the current system of norms by which that community has chosen to live.
The Constitutional Court held that the customary law regarding the appointment of a traditional leader
(hosi) had legitimately evolved to allow for the appointment of a woman as a traditional leader (hosi) and
that this development was consistent with the Constitution. After finding that Philia Shilubana had been
validly appointed the Constitutional Court upheld the appeal, thus confirming her appointment as a
Bear in mind that this was after this particular community (Valoyi community) had decided to adapt its
laws consistently with the Constitution. Other communities will be judged according to their own
contemporary practices.
The Constitutional Court very well endorsed the community’s right to develop their law, thus protecting
their right to develop their culture. In doing so the court unfortunately destroyed the rule regulating the
customary law of succession from one generation to another. The Constitutional Court ignored that
according to customary law, lineage is important and that the position of successor must be held by
someone capable of producing a future Nwamitwa heir. In appointing Philia, the court should not have left
future succession hanging. It should have made it clear that it was doing so because of her status as a
princess, and add that in order to uphold lineage of the Nwamitwa royal line, after her death the position
would revert to a qualifying Nwamitwa prince/princess. Therefore, the court did a good thing (promoting
gender equality) and (not so good as it failed to promote culture).
(Remember to start case discussion properly by giving the names of the parties; the legal question that
was answered by the court, the reasons for judgment (ratio decidendi) given by the court and the
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These two cases are about how the courts have negotiated the transition from the old order to the present.
Mabuza demonstrates the transition from a society that defined customary marriage with reference to the
elaborate ukumekeza tradition that was best suited to the previous rural set-up, and that it is no longer
necessary in the current urban conditions. Mabena is about how independent and adult youths have been
empowered to negotiate their own customary marriages; and that the involvement of their fathers is no
longer essential for this purpose. As the law lived by communities in actual current social practice, living
law endorsed after the court looked at the current situation in the country. These cases can also illustrate
the extent of transformation in the law of marriage as well, especially the issue of validity. See also
Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008) (unreported)
where the court held that even though the integration of the bride might not have been observed, but the
spouses themselves showed by the way they related to each other that they accepted that they were
husban d and wife. Therefore, in a difficult case, where, after the negotiations have been completed, the
requirements of "entered into or celebrated" cannot be proved, the behaviour of the spouses towards each
Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 is proof that
customary law and common law are equal components of South African law and the time when customary
law was viewed with reference to common law was over. The current status of customary law is that of an
original and independent system that has its own values and norms.
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) is authority for ascertaining the applicable
customary law. You find it by looking at the community's past practice, which is their customary law. Past
practice continues to apply until it is clear that such practice has changed. In the latter event one must
look at the current social practice to find the applicable customary law. It is also important to note that
section 211(2) of the Constitution empowers communities to make and amend their laws. In Shilubana
this was done by an amendment in which the community aligned their law with Constitution, making
females equal to males for the purposes of appointment to traditional leadership positions.
Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of Republic of
South Africa 2005 (1) BCLR 580 (CC)) is authority for jettisoning the discredited apartheid rule entrenched
in section 23 of the Black Administration Act (BAA), which preferred males to females in matters of
succession. As a result, section 23 of the BAA, the principle of male primogeniture; the distinction between
legitimate and illegitimate children were all declared unconstitutional and removed from customary law.
The court went on to incorporate the provisions of the Intestate Succession Act, 81 of 1987, dealing with
child portions. After making the necessary adjustments, all the children of the deceased, legitimate and
illegitimate, together with all his widows/widowers must get child portions. Textbook pages 173- 182
Understanding customary law in its post-transformation state and contrast it with its pre-
transformation state.
17
The following quotation shows you how to describe post-apartheid customary law:
it is well established that customary law is a vital component of our constitutional system,
recognised and protected by the Constitution, while ultimately subject to its terms. The true nature
of customary law is as a living body of law, active and dynamic, with an inherent capacity to evolve
in keeping with the changing lives of the people whom it governs,
On this basis the court held that the traditional authority cannot deny constitutional rights/freedoms to
members of the community who wish to enjoy/ exercise them
You must compare the above with the following quotation from pre-recognition customary law:
any court may take judicial notice of the law of a foreign state and of indigenous law in so far as
such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall
not be opposed to the principles of public policy or natural justice.
What is the difference? – the first quotation emphasises a customary law that is recognised and
protected by the Constitution – that is living, active and dynamic, and part of the lives of the
people; and - the second quotation merely refers to taking of judicial notice, not recognition; it
puts customary law at the level of foreign law, as opposed to a vital component of our
constitutional system; it requires customary law to be proved before being used (ie ascertained
readily and with sufficient certainty), as opposed to being applies as in section 211(3) of the
Constitution. Lastly, and most importantly, pre-recognition customary law was used, not as of right,
but subject to a condition, namely: Provided that indigenous law shall not be opposed to the
principles of public policy or natural justice. In other words, there was a suspicion that indigenous
law might be contrary to good morals if used unchecked. When you notice that the italicised
phrases were never used in describing the common law you will realise that these two components
of South African law were never treated with equality in the past.
Section D The indigenous normative values of customary law found in concepts such as ukufakwa,
isondlo and others that indicate the centrality of ubuntu in African traditions, See Textbook pages
188-194; the study guide pages 81-84; For model answers see question 4 of assignment 2 above.
Question 2
(d) Nwamitwa v Philia and Others 2005 (3) SA 536 (T); Shilubana cases (Shilubana and Others v
(CC).
Philia Shilubana, of the Valoyi traditional community, in the Limpopo Province of South Africa, was
not appointed as a traditional leader (hosi) of her people when her father died in 1968. As a woman
18
LCP4804/201
she could not be appointed due to the laws of unfair discrimination at the time. Instead her father’s
brother, Richard Nwamitwa, was appointed as the traditional leader (hosi). When the latter died in
2001, the Valoyi Traditional Authority took a resolution to appoint Philia Shilubana as the traditional
leader (hosi) relying on the constitutional provision for gender equality which motivated the
community to adapt its rules. This resolution amended the past practice of the community which
indicated the eldest son of the previous hosi as the successor to his father as the new traditional
leader (hosi). Sidwell Nwamitwa, Richard Nwamitwa’s son, sought to dispute Philia Shilubana's
appointment, relying on past practice based on his purported right as the eldest son of the previous
hosi.
The matter was decided in favour of Sidwell Nwamitwa in both the High Court and the SCA, in
terms of the community’s past practice.
In a unanimous judgment, the Court decided that Ms Shilubana was legally appointed as the
legitimate traditional leader (hosi) of the Valoyi people. The Court emphasised the fact that
customary law is a living system of law. As such it was not bound by historical precedent. Its
flexibility allowed it to evolve as its community changed. Once it was clear that the contemporary
practices of the community have replaced its past practices, the latter no longer applied.
Because of this, the Constitutional Court deviated from prior decisions that had served as a test for
determining the content of customary law even though they indicated long-standing and historical
practices. Instead the Court redefined customary law as a system that reflected the current
practices of the particular community. Living customary law came to be defined with reference to
the constantly evolving practices that indicate the current system of norms by which that community
has chosen to live.
The Constitutional Court held that the customary law regarding the appointment of a traditional
leader (hosi) had legitimately evolved to allow for the appointment of a woman as a traditional
leader (hosi) and that this development was consistent with the Constitution. After finding that
Philia Shilubana had been validly appointed the Constitutional Court upheld the appeal, thus
confirming her appointment as a traditional leader (hosi) of her Valoyi community.
Bear in mind that this was after this particular community (Valoyi community) had decided to
adapt its laws consistently with the Constitution. Other communities will be judged according to
their own contemporary practices.
19
The Constitutional Court very well endorsed the community’s right to develop their law, thus
protecting their right to develop their culture. In doing so the court unfortunately destroyed the rule
regulating the customary law of succession from one generation to another. The Constitutional
Court ignored that according to customary law, lineage is important and that the position of
successor must be held by someone capable of producing a future Nwamitwa heir. In appointing
Philia, the court should not have left future succession hanging. It should have made it clear that it
was doing so because of her status as a princess, and add that in order to uphold lineage of the
Nwamitwa royal line, after her death the position would revert to a qualifying Nwamitwa
prince/princess. Therefore, the court did a good thing (promoting gender equality) and (not so good
as it failed to promote culture).
Question 3
The transformative role of the following post-apartheid statutes in the development of customary law:
(a) Recognition of Customary Marriages Act 120 of 1998.
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.
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
marri age. 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.
(b) Traditional Leadership and Governance Framework Act 41 of 2003 as amended by Act 23 of
2009.
Again, the Traditional Leadership and Governance Framework Act 41 of 2003 has its origins in the
recognition of customary law by the Constitution. Prior to the constitutional changes the traditional leaders
were not given their proper status. They were called chiefs, not Traditional Leaders and were given
functions to do as apartheid stooges, who were paid to enforce oppressive statutes against their own
people in exchange for some stipend.
The advent of Traditional Leadership and Governance Framework Act 41 of 2003 ushered in an era of
democratic traditions for the appointment of traditional leaders, who are now free to be addressed by their
traditional titles (iNkosi Buthelezi, Nkosi Holomisa, Kgosi Pilane), and no longer insulted as ‘chief’. The Act
provides fo r the appointment of women as traditional leaders where necessary to enhance gender
20
LCP4804/201
representivity. Traditional Leaders are no longer chosen by the ‘State president as the Supreme Chief of
all natives’, but are identified by the royal family for appointmen t by the government, to reduce the danger
of appointing government stooges.
(c) The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of
2009.
The recognition of customary law by the Constitution meant that the Bill of Right had to be respected in
the sphere of succession. The discredited principle of male primogeniture, which preferred senior males
over women and junior males, had to go. The Act implemented the judgment of Bhe v Magistrate
Khayelitsha, which abolished discrimination on the basis of race, gender, marital status, birth, age etc for
the purposes of succession. The Act imported The Intestate Succession Act into customary law to
introduce inheritance by child portions for sharing by the deceased’s wife or wives, children, legitimate or
not etc.
3. FORMAT OF THE 2021 SEPTEMBER-NOVEMBER EXAMINATION
The September-November 2021 examination will be a Four-day examination paper. The paper counts 100
marks. It will be offered, answered and submitted online according to the instructions on the paper. There
will be no venue-based examination in September-/November 2021. You must be ready in time, write and
finish within time. No footnotes and no bibliography required. Just state - in Shilubana.../...in the
Recognition Act... in Mabena... etc. But do not forget the DECLARATION OF HONESTY, that is, if you
are indeed HONEST!! Omitting the declaration will suggest the opposite – and an adverse inference will
be drawn from that.
WARNING: This is not an open book examination. Therefore, do not use study material in
answering the questions. In any event, these are 4th year questions which require your application,
analysis and evaluation, which require you to reflect on the issues – therefore unprocessed notes
from your study material will not help you. If you use books you will not be able to finish writing.
Moreover, copying exposes you to the risk of plagiarism!! - because we know the wording of our
own study material and we will catch you. So, beware.
Study all the prescribed tutorial matter and do not “spot”. Therefore, you must study all sections
of the work. Note the following:
1 The best aproach is to study customary law in South Africa, bearing in mind that in all Acts and
cases – the issue is whether the system – must be based on African tradition/culture or Western -
based human rights? Thereafter check what the Constitution says about this struggle in sections 9,
10, 11, 30, 31, 211. Then you will be able to conclude if the courts are fair or not – or if they are
biased towards the African tradition/culture or Western -based human rights, and why? Then study:
21
- the Recognition of Customary Marriages Act, 120 of 1998 together with the family law cases (
eg Mabena; Mayelane; Gumede etc); in order to be able critique them in the light of the
Constitution;
- Traditional Leadership and Governance Framework Act, 41 of 2003 together with the traditional
leadership cases (eg Shilubana; Sigcau v Minister of Cooperative Governance &Traditional
Affairs) in order to be able critique the court’s application of the legislation in the light of the
Constitution;
- and the Reform of customary Law of Succession and Regulation of Related Matters Act 11of
2009 (eg Shilubana; Bhe) in order to be able critique the court’s application of the legislation in
the light of the Constitution . What is important is to be able to demonstrate the transformation
each of these Acts and cases brought about in the sphere of customary law.
2 Find the cases/sources from which all the extracts/quotes in Assignment 1 come from, not just those
that were chosen as the right answers for the assignment.
3 Study the Only Study Guide and the prescribed textbook and Revise your assignments, especially
the solutions to Assignments 02 and 03 (above).
4 Use Assignments 02 and 03 as models for answering the examination questions. In other words,
think more; and do not rely on remembering only.
5 When preparing for the examination please make sure that you take particular note of the feedback
to Assignments 02 and 03 above.
Referencing
It is important that you reference everything that is not in your own words. Please use the techniques
explained to you in online lectures. The OSCOLA referencing guide is posted for you on myUnisa under
the “additional resources” tab. Non-referenced examinations that contain plagiarised work may be subject
to disciplinary action per UNISA policy.
All that remains is for us to wish you success in the examination.
Mr P Mudau
E-mail address: [email protected]
Tel: 012 429 3111
Mr R Mokomane
E-mail address: [email protected]
Tel: 012 429 2394
22
LCP4804/201
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LCP4804/201/1/2017

Tutorial Letter 201/01/2017

Advanced African Customary Law

Department of Public, Constitutional and

1. FEEDBACK ON ASSIGNMENT 01 .................................................................................. 3

The Study guide

The feedback on Assignment 01 follows:

The names of the parties

Nwamitwa v Philia and Others 2005 (3) SA 536 (T)

The legal question that was answered by the court

The decision of the court

Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC)

The legal question that was answered by the court

The case was eventually taken on appeal to the Constitutional Court.

The decision of the court and reasons for judgment

Own comment on customary values and the Constitution

Set B: The Mthembu set of cases

The names of the parties

Mthembu v Letsela and Another 1997 (2) SA 936 (T)

Mthembu v Letsela and Another 2000 (3) SA 867 (SCA

The legal question that was answered by the court

The applicant sought the following relief:

Mthembu v Letsela and Another 1997 (2) SA 936 (T)

The decision and reasons for judgment

Mthembu v. Letsela and Another 1998 (2) SA675 (T)

The legal question that was answered by the court:

The reasons for judgment

Mthembu v Letsela and Another 2000 (3) SA 867 (SCA

The legal question that was answered by the court:

The reasons for judgment

The decision of the court

The appeal was dismissed on all four grounds.

Own comment on customary values and the Constitution

Set C: The Ngwenyama/Mayelane set of cases

The names of the parties:

The legal question that was answered by the court:

Ms Mayelane and Ms Ngwenyama both claimed to be married by Xitsonga customary law to

Ngwenyama v Mayelane 2012 (10) BCLR 1071 (SCA)

The court upheld the appeal.

Own comment on customary values and the Constitution

Mayelane v Ngwenyama 2013 (8) BCLR 918 (CC)

The legal question that was answered by the court:

The reasons for judgment

The decision of the court

The features of ubuntu in the ukufakwa institution

Self Assessment: Assignment 3:

Section A: The requirements for a valid customary marriage:

The elements of the concept of ukufakwa See solution to Assignment 02 above

3. FORMAT OF THE MAY/ JUNE EXAMINATION

NOTE: PREPARING FOR THE EXAMINATION

In order to pass the Examinations:

The requirements for a valid customary marriage

The requirement of gender equality

The nature of post-apartheid customary law

Bhe v The Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v

Study the solution in respect of Assignment 02 above.

On writing the Examinations

Good luck with your studies!!!

Tutorial Letter 201/2/2017