Indigenous law – IND203X

POSSIBLE EXAM QUESTIONS

1. Explain those factors that encourage the observance of Indigenous law.

(10)

The vast majority of people in any indigenous community generally

observe most rules, including legal rules, faithfully every day without
being forced to do so. As far as indigenous law is concerned, the
following factors may explain why people observe these rules:

• The religious or sacred element of the law. The rules for

living, and thus also the law, are believed to come from the
ancestors themselves and are protected by the ancestral
spirits. It is the ancestors who make sure that these rules are
observed. Any disregard of, or deviation from, may lead to
punishment by the ancestral spirits. Misfortunes such as
illness, drought, hail, floods and heat waves are often,
therefore, even today, experienced and interpreted as forms of
supernatural punishment.

• Public opinion, particularly sensitivity about what other people

may think, or say, about one's behaviour.

• The knowledge that, if a person is harmed, that person will

endeavour to get compensation or take measures to protect
himself/herself.

• The fact that everybody in the community has a broad

knowledge of the law because of the general participation in
the legal process, and the fact that the law is handed down
orally from one generation to another.

• Fear of punishment, especially punishment of supernatural

origin, when the conduct concerned is in conflict with
accepted legal principles.

• The influence of indigenous leaders in the community, who are

living representatives of the ancestors and who are
responsible for making sure that the law is observed.

2. Discuss the unspecialised nature of indigenous law, with specific

reference to criminal and procedural law. (25)
(a) GROUP ORIENTATION

One of the characteristics of indigenous law which is strongly

visible in both indigenous criminal and procedural law is
group orientation. Unspecialised legal systems emphasise the
group rather than the individual. The individual functions
entirely within the context of the group. As far as criminal law
is concerned, a whole family group can be punished for the
crime of one of it's members. In the case of sorcery, for
instance, the whole family might be banished and even killed.
Note that fines have to be paid by the group.

(b) CATEGORISATION

The whole idea of a sharp distinction between categories,

institutions and concepts is foreign to indigenous law. There
is no distinction between civil and criminal cases and nor are
there separate court procedures for these cases.

(c) INFORMAL

Unspecialised legal systems are also characterised by

informality. There is a great deal of flexibility when it comes to
the application of legal rules. For example: an important factor
in legal life is the process of constant consultation. A case
may not be taken to court before the parties concerned and
their families discuss the matter. In court there are also court
counsellors who participate in the proceedings throughout, by
questioning, by giving information and, eventually, by giving
their views on the matter. The court's decision is often based
on the consensus of these opinion's.

(d) LEGAL APPROACH: CONCRETE RATHER THAN ABSTRACT

Unspecialised legal systems follow a more concrete, real and

'visible' approach, compared with that of specialised legal
systems (which tend to be more abstract in nature). When a
person is charged with a crime (for instance), to prove that the
accused did indeed commit the crime, concrete evidence
would be presented to the court (i.e. evidence that
incriminated the accused). In the case of stock theft, for
example, a hide found in his possession would be regarded as
concrete evidence that the accused did indeed steal and
slaughter livestock.
 (e) THE RELIGIOUS ELEMENT

The strong religious element that is present in indigenous law

is based on the belief that the law originated with the
ancestors. Disregard of the law is punished by the ancestors,
not so much because disregard of the law is considered sinful,
but because it is regarded as being disrespectful of the
ancestors. Reconciliation between the community and the
ancestors is usually accomplished by slaughtering an animal
and having a communal meal. If the community plans to carry
out certain important juristic actions, the blessing of the
ancestors is obtained by means of special rites.

3. Evaluate the following statements:

(a) In a traditional court evidence is given under oath. (5)

The statement is incorrect. In a traditional court, evidence is

not given under oath. Perjury (wilfully giving false evidence
under oath) is therefore unknown. No action is taken against a
party or a witness who tells lies; if they do tell lies, this merely
harms their case.

(b) A traditional leader is empowered to punish anyone. (5)

This statement is incorrect. A traditional leader is not

empowered to punish anyone. He has power to punish only
black persons residing under his jurisdiction.

(c) Institutional action excludes unlawfulness. (5)

This statement is correct. In indigenous law there are certain

circumstances where what looks like an unlawful act is, in fact,
still considered lawful. In indigenous law, institutional action
is one ground for the justification of an unlawful act. This is a
cultural institution recognised as such. Thus injuries
sustained by young men during a stick fight would not
constitute assault. The same applies to injuries sustained in
the circumcision process that forms part of a cultural initiation
ceremony.

4. Discuss the execution of a sentence by an indigenous court. (10)

Unless the judgement of the indigenous court is taken on appeal, it

must be executed. Execution of the judgement or sentence must
take place as soon as judgement is passed. The fine (in whatever
prescribed form) must be taken to the court where the judgement is
given; part of this fine may be used to serve a meal to the court
members (usually livestock).

It is possible to extract the payment goods by force if the fined

person refuses or neglects to pay the fine or compensation within a
reasonable time. A specially designated person then acts as
messenger to perform the function of forcefully effecting the
judgement of the court. If this happens, the fine and the
compensation may be increased summarily. The increase may be
regarded as a fine for contempt of court. In Sotho terms, this
increase was referred to as "thupa" (stick or admonition), used for
the maintenance of the messengers as execution costs perhaps in
today's terms.

It is possible to make an arrangement with the court to allow for the

fine or compensation to be paid in instalments.

In former times, sentences in the form of corporal punishment and

banishment were enforced directly after the court session. Today a
sentence by an indigenous court may be enforced only if no notice
of appeal is received within thirty days after registration of the
judgement with the local magistrate's court.

If the property to be confiscated is situated outside the area of

jurisdiction of an indigenous court, application must be made to the
clerk of the magistrate's court for the execution of the sentence.
Also, today, the messengers of the indigenous court are not allowed
to use force in order to execute a sentence or judgement. Any
interference with the messenger in the execution of his duties is
considered a crime. However, no more goods may be seized than
are laid down in the judgement.

Section 20(5) of Act 38 of 1927 makes provision for another way in

which to exact fines. If an indigenous court cannot exact a fine, the
court may arrest the guilty person, or have the person arrested, and
make him/her appear in the local magistrate's court within 48 hours.
If the magistrate is satisfied that the fine was imposed in a proper
manner and finds that all or part of it is still outstanding, the
magistrate may order that the fine be paid immediately. Failure to do
so may lead to the guilty person being sentenced to imprisonment of
a period not exceeding three months.
5. What punishments could formerly be imposed for contempt of the ruler?
Do these punishments still apply today? (5)

In former times, the crime of contempt of the ruler could be punished

in one of the following ways:

• Banishment, because of the maxim 'go nyatsa kgosi go tloga'

(contempt of the ruler means to leave).
• The death penalty for serious forms of contempt, together with
confiscation of property.
• A fine.
• Corporal punishment

Since the death penalty and corporal punishment as forms of

punishment have been abolished by the Constitutional Court, these
forms of punishment can no longer be imposed. Nor do traditional
leaders any longer have the authority to banish subjects; the only
valid form of punishment is therefore a fine.

6. Write critical notes on appeals against the findings of both criminal and
civil courts in their rulings regarding traditional leaders. (10)

In civil cases, Section 12(4) of Act 38 of 1927 provides for an appeal

to the local magistrate's court against a sentence imposed by a
traditional leader. There is, however, no right of appeal in respect of
a claim for less than R10, unless the court of appeal finds, after a
summary enquiry, that the issue involves an important principle of
law. The execution of the sentence of the traditional court is
postponed until the appeal has been decided upon.

In criminal proceedings, an accused may appeal against his

conviction, or any sentence imposed upon him, to the magistrate's
court having jurisdiction in the area in which the trail took place, as
per Section 20(6) of Act 38 of 1927, as amended by Act 34 of 1986,
Schedule A. These appeals are also governed by Section 309 of the
Criminal Procedure Act 51 of 1977, as amended by Act 34 of 1986,
Schedule L. The magistrate may either uphold the appeal and set
aside the conviction and sentence or confirm to alter the conviction.
Should the magistrate confirm or alter the conviction, he or she may
either confirm the sentence and order its immediate satisfaction or
set aside the sentence and, in lieu thereof, impose such other
sentence as the traditional leader should have imposed. In this case
a magistrate could, for example, not impose a fine in excess of R40
(since this is the limit a traditional leader can impose). On default of
immediate compliance of the magistrate's sentence, the magistrate
may impose a sentence of imprisonment for a period not exceeding
 three months. The magistrate may also set aside the sentence
imposed by the traditional leader and in lieu thereof impose a
sentence of imprisonment for a period not exceeding three months
without the option of a fine.

In terms of Section 29(1) of the Magistrate's Court Act 32 of 1944 the

court, when hearing an appeal, may hear new evidence. In these
circumstances, it would therefore be more correct to describe the
hearing as a retrial rather than an appeal. Although provision is
made under rule 6 of the court rules for keeping a written record of
the proceedings, this does not include a written record of the
evidence heard, and so the court may well consider new evidence
that was not heard in the initial court. A copy of the written record
must be delivered to a local magistrate within two months of the date
of judgement, otherwise the judgement will lapse.

Although the appeal court may nullify a traditional leader's

judgement where indigenous law was wrongly applied to a claim
arising in the common law, it is not free to alter the cause of action at
will. As a general rule, therefore, the magistrate must continue to
apply indigenous law on appeal.

7. Discuss the indigenous principles of succession in traditional leadership.

Indicate the extent to which these principles are recognised in modern
indigenous law. (25)

Indigenous principles of succession in traditional leadership may be

summarised as follows:

• It is a hereditary system and the position of the traditional

leader follows the patrilineage. Succession in the female line
is the exception in Southern Africa and comes to the fore in
parts of Malawi and Mozambique and among the Wambo of
Namibia.

• The successor is the eldest son of the ruler by the tribal main
wife. The tribal or main wife is often married specifically for
this purpose and the tribe contributes towards her marriage
goods.

• The other wives of the ruler occupy a particular rank, and this
ranking order has significance for succession.

• The sons of the ruler by his various wives retain the rank of
their mothers. The next ruler in line will probably be a son
born of the woman with the highest rank.
• The full according to which younger full and half brothers of a
successor may succeed vary greatly among different groups.
Among the Northern Sotho, for instance, such sons cannot
succeed, but can only act as regents.

• General recognition of substitution of the ruler by the

institution of the levirate and substitution of the tribal wife by
the sororate institution or complementation of the wife. The
sororate institution is the institution whereby the man has
certain rights with regard to the sisters of the wife, if it appears
that the woman is infertile or, if, after the wife's death, he
marries her sister. The complementation of the wife is the
custom in terms of which a specific defect is supplemented
without replacing the person having the defect; once the
defect is complemented, the person standing in to make the
defect good is under no obligation towards the husband's
group. The rules for this custom differ markedly among the
various groups. In any dispute arising from complementation
of the wife, the principles of the community concerned should
be taken into account.

Substitution of the husband occurs where the husband dies before

he can marry or before he can marry the tribal wife. In this case,
children are raised on his behalf with a wife married after his death,
usually to a relative, such as his younger brother. This is the
ukuvusa custom. Substitution also occurs where the ruler dies
without a son by the tribal wife. Provided the wife is still fertile, a
son is raised on behalf of the deceased with his wife in terms of the
ukungena custom and this son becomes the lawful successor.

Substitution of the tribal wife occurs in those cases where she dies
without a son. In this case, she is substituted for by a relative. This
is the well-known principle of sororate. Substitution may also occur
where the wife is childless or where she has borne no son during her
fertile years. In such a case her inability to bear a son is
supplemented for by a relative 'supporting wife'. Once this 'wife'
bears a son as a successor, she does not have to stay with the
husband's people. She can even marry another man. Among some
groups a childless wife or wife without a son is not supported in this
way, but a daughter-in-law is married on her behalf as a tribal wife for
the generation of her fictitious son. Children are then raised with the
daughter-in-law in terms of the institution of the levirate.
8. Discuss strategies and procedures that were developed generally for
handling disputes in African customary law.

• Disregard, so that the dispute does not lead to conflict

• Avoidance, which often causes the aggrieved party to break

off social and other relations with the party.

• Self-help, where the aggrieved party acts unilaterally in order

to settle the dispute. This may take the form of physical
violence or even acts of sorcery. Today, self-help is not
recognised as a procedure by the general law of the land.

• Negotiation between the parties with a view to reconciliation

and the restoration of existing relationships.

• Mediation, where a third party becomes involved in the dispute

as a mediator between the disputing parties. The disputing
parties voluntarily subject themselves to the decision of the
mediator.

• Arbitration, where the disputing parties agree to a third party

getting involved and agree that the decision of this third party
will be binding and enforceable.

• Judicial adjudication, where one or both parties appeal to a

court to settle the dispute.

9. Write notes on the implications of Sections 30 and 31 of the Constitution

of the Republic of South Africa, 1996, for the recognition of customary law.
(10)

Section 30 is given further force by section 31, which provides as f

ollows:

Persons belonging to a cultural, religious or linguistic community

may not be denied the right, with other members of that community –

(a) to enjoy their culture, practise their religion and use their
language; and
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.

According to section 31, the state has two duties, namely:

● not to interfere with the rights of the individual
 ● to allow the existence of institutions that would be necessary to
maintain the culture concerned.
Section 31 contains yet another aspect of the right to culture: the
right of a group of people to have and maintain a specific group
identity. Group and individual rights are thus symbiotic in nature (ie
they depend on each other). The individual right to adhere to a
culture of choice assumes the existence of a cultural group or
community, and this community must first exist before the individual
may have any rights in it.

It may therefore be argued that a person's right to the application of

indigenous law in a certain instance is vested in membership of a
group. This group must be recognised by the state before the
individual may enforce his or her right.

Another implication of sections 30 and 31 is the conversion of a

freedom into a constitutional right. These sections refer expressly to
a “right”. This raises the following question: What is the difference
between a constitutional freedom and a constitutional right?
“Freedom” means that there is no regulation by the law. The
individual may act according to his or her own choice and as he or
she thinks fit. This means that freedom is subject to a right, because
the bearer of a right may enforce that right. “Rights” demand a
specific conduct, while freedoms allow choices.

10. Evaluate the following statements:

(a) A family head can make certain allotments during his lifetime. (5)

This is true. A family head could, during his lifetime, make

certain allotments which would remain valid after his death.
These methods of making allotments are still recognised in
modern indigenous law, and include the following:

• Allotment of property to a specific house of son; this

allotment is accompanied by certain formalities and may
occur more than once.

• Adoption, which influences the normal order of

succession; and adoptivus is, however, excluded by a
legitimate child; note that the Zulu and Swazi do not
recognise adoption.

• Transfer of a younger son from one house to another

house without a son; such a son succeeds to the latter
house.
 • Seed-raising is an alternative means of trying to ensure
a successor in a house without a son.

• Allocation of daughters to sons in a house as a means

of providing for the marriage goods of these sons; the
marriage goods received for a daughter are then used
as marriage goods for the wife of one of the sons. This
method of providing for the marriage goods of sons is
found chiefly among the Sotho groups.

• Ukungena, or the procreation of a successor for a

deceased man by his widows.

• Disherison (disinheritance) as a means of eliminating a

potential successor from the order of succession;
disherison requires special reasons and formalities.

11. Conflict between customary law and the Bill of Rights in unavoidable.
Evaluate this statement. (3)

This statement is true. Conflict between customary law and the Bill
of Rights occurs because the Bill of Rights emphasises individual
rights, whereas in customary law the emphasis is on the group, the
community, and the individual in the context of the community.
Conflict also occurs because the Bill of Rights emphasises, as its
name implies, rights, whereas customary law emphasises duties.

12. The Constitution indicates that fundamental rights have priority over
customary law. List and explain examples of this. (3)

• Section 2, which provides that the Constitution is the supreme

law.
• Section 8(1), which provides that the Bill of Rights is
applicable to all legislation, including indigenous law.
• Section 36(2), which provides that no fundamental rights will
be limited by any law, except as provided for under Section
36(1) or any other provision of the Constitution.
• Section 39(1), which requires the courts to promote the values
that underlie an open and democratic society based on human
dignity, equality and freedom in interpreting the Bill of Rights.
• Section 39(2), which provides that, in interpreting any law and
applying and developing common and indigenous law, the
courts must have due regard for the spirit, purport and objects
of the Bill of Rights.
 • Section 36(1), which allows the rights in the Bill of Rights to be
limited by "law of general application", provided that such
limitation is reasonable and justifiable in an open and
democratic society.

13. The family head's control over house property does not give him the
authority to allocate marriage goods for daughters in one house to another
house. Evaluate the statement.

This statement is false.

The family head's control over house property includes the authority,
for example, to allocate marriage goods received for daughters in
one house to another house. Such action gave rise to a debt
between these houses. These allocations, however, are limited to
specific circumstances and are controlled by specific rules. In this
connection, consultation with the wife and the future successor of
the house is important.

14. In 2002, Vuyo ( a male aged 22) and Karabo ( a female aged 17) and their
respective fathers concluded an agreement in terms of which Vuyo had to
deliver five head of cattle and R10 000 as lobolo to Karabo's family. Vuyo
delivered part of the lobolo agreed upon and, shortly afterwards, Karabo
was allowed to reside with Vuyo and his family. Their marriage was never
registered.

(a) Did a legally valid marriage come into being between Vuyo and Karabo?

If they had concluded their marriage in 2002, the Recognition of

Customary Marriages Act 120 of 1998 would have been applicable to
their marriage. The legal requirements for a valid customary
marriage entered into after 15 November 2000 are provided for in
Section 3 of Act 120 of 1998 and are as follows:

The prospective spouses:

- must both be above the age of 18 years

- must both consent to be married to each other under
customary law
- The marriage must be negotiated and entered into or
celebrated in accordance with customary law.

The facts reveal that only Vuyo is above the age of 18. In terms of
Section 3(3) of Act 120 of 1998:
 3(a) If either of the prospective spouses is a minor, both his or her
parents or, if he or she has no parents, his or her legal
guardian, must consent to the marriage.
(b) If the consent of a parent or legal guardian cannot be obtained
section 25 of the Marriage Act No. 25of 1961 applies.

Because Karabo is only 17 and is therefore a minor, she requires the

consent of both her parents before the marriage can be concluded.
In this case she only obtained the consent of her father. The consent
of her father is lacking. The requirement has not been fulfilled.

The facts further state that Vuyo, Karabo and their respective fathers
concluded an agreement. The couples, consent was obtained and
this requirement has therefore been fulfilled.

The facts also state that Vuyo delivered part of the lobolo agreed
upon and that, shortly afterwards, Karabo was allowed to reside with
him and his family. The customary law requirements concerning the
negotiation and celebration of the marriage were therefore fulfilled.

However, since the first requirement was not fulfilled, Vuyo and
Karabo's customary marriage would not have been legally valid. The
fact that they failed to register their marriage is irrelevant, since
failure to register a customary marriage does not influence the
validity of the marriage in terms of section 4(9) of Act 120 of 1998.

(b) If we assume that a valid marriage did come into being between Vuyo and
Karabo:

(i) What are the general consequences for them as husband and wife
in terms of customary law?

- A new and separate unit, namely a family or house, comes into

being. This unit is also a legal unit.
- The husband and wife have a mutual obligation to live
together. Some groups allow a woman to live with her eldest
son once he occupies his own independent residence.
- The husband and wife have a mutual duty to allow each other
sexual intercourse. Each group has its own particular
customs. The customs take reasonableness of demand into
account. Greater fidelity is expected from the wife than from
the husband, since indigenous marriages are potentially
polygynous.
- The status of the man and woman changes. A wife in a
customary marriage has full status and capacity to acquire
 and dispose of assets and to enter into contracts and to
litigate.

(ii) Can Vuyo enter into a further customary marriage with another
woman?

Yes he may, as long as he complies with the requirements of section

7 of Act 120 of 1998.

(iii) If he does, will Vuyo have to follow any particular procedures to

regulate the matrimonial property system of his marriages?

Yes, in the case of a polygynous customary marriage, where the

husband intends to enter into a further customary marriage with
another woman, the provisions of the Recognition of Customary
Marriages Act 120 of 1998 state that the husband must apply to the
court to approve a written contract which will regulate the future
matrimonial property system of his marriages.

In terms of section 7(7), when considering such an application the

court must:

(i) in the case of a marriage which is in community of property or

which is subject to the accrual system-

(a) terminate the matrimonial property system which is

applicable to the marriage;
and
(b) effect a division of the matrimonial property;

(ii) ensure an equitable distribution of the matrimonial property;

and
(iii) take into account all the relevant circumstances of the family
groups which would be affected if the application is granted.

The court may:

(i) allow further amendments to the terms of the contract;

(ii) grant the order subject to any condition it may deem just; or
(iii) refuse the application if, in its opinion, the interests of any of
the parties involved would not be sufficiently safeguarded by
means of the proposed contract.

All persons having a sufficient interest in this matter, and in

particular the applicant's existing spouse or spouses and his
prospective spouse, must be joined in the proceedings instituted in
 terms of section 7(6). If a court grants an application contemplated
in sections 7(4) and 7(6), the registrar or clerk of the court must
furnish each spouse with an order of the court. This order must
include a certified copy of such contract to be send to each Registrar
of deeds of the area in which the court is situated.

15. What effect does the dissolution of a customary marriage have on

marriage goods?

Generally on the dissolution of the marital union, the marriage goods

are either returned to the husband or forfeited by the husband in
favour of the wife's group. In some cases, however, the marriage
goods are returned in part only. The following factors, however, are
taken into account:

• the amount of blame on either side;

• the number of children born of the marital union; and
• the portion of marriage goods already delivered.

As far as the guilt factor is concerned, we can state that the party
who is to blame forfeits the marriage goods. Should the husband
dissolve the union with good reason, in other words, where the wife
is to blame, the marriage goods are returned. Should the wife
dissolve the union with good reason, in other words, where the
husband is to blame, the marriage goods are not returned. It has,
however, become customary to return at least one beast to the
husband to indicate, in a concrete manner, that the marriage has
been dissolved.

Amongst most groups, the wife's group is allowed certain

deductions should they have to return the marriage goods. In most
cases, one beast is allowed as a deduction for every child the wife
has borne. This does not refer to living children only, but to all
children the wife has given birth to, including miscarried children.
Should the wife have had more children than the number of marriage
beasts, at least one beast should be returned to the husband as
concrete proof that the marriage has been dissolved.

It is argued that there can be no dissolution should the wife's group

keep the full marriage goods. If the husband has not delivered all the
marriage goods upon the dissolution of the union, and if he was
responsible for the breakdown of the marriage, he is indebted for the
balance. The converse is also true.

Should the parties fail to reach a mutual agreement regarding the

marriage goods, the court may be approached for a decision. In
 such a case the court is not asked the dissolve the union. The union
is already dissolved, without the interference of the court. The court
merely decides on the marriage goods. The position in respect of
the customary marriage is not clear. The suggestion here is that the
parties make a specific point of agreeing on the fate of the marriage
goods during the dissolution of the marriage or that the court be
approached to make a decision.

16. Distinguish between a general and a particular administrative

determination. Why is this distinction important?

Determinations can, on the basis of their effect, be divided into

general and particular determinations. General determinations
create general relations in a community. An example of this is the
traditional leader's decision or determination to reserve a particular
area as grazing land for a specified time. This decision is valid for all
subjects and thus made known in public in such a way that the
whole chiefdom can take notice.

A general determination is usually made known during meeting of

the ward or general assembly. Furthermore, the annulment of a
general determination influences the whole functioning of the
determination, and not only the particular subject who opposed it.

A particular determination creates, amends or terminates particular

legal relations; for example, the allocation of a residential site to a
particular family or the removal of a particular family from one place
to another. Thus a particular determination is directed at a particular
subject and is conveyed to the person concerned by personal
notification.

17. Mr Mbuyazwe, a traditional leader, issued several determinations

regarding his subjects conduct during times of bereavement. One of the
determinations determines that, when families are in mourning, nobody in
their neighbourhood should engage in any work activity until the day after
the funeral. The bereaved families are also barred from providing meals
to persons attending the funeral. Buza's father, who is a subject of Mr
Mbuyazwe, passed away shortly after the announcement of the
determinations. Some of his relatives came from far to attend the funeral
and Buza's family therefore decided to provide them with food. They
consequently cooked a meal on the day of the funeral and served it to
Buza's relatives.

Advise Buza on the steps he can take if Mr Mbuyazwe decides to fine him
for not obeying his orders in terms of :
(a) African customary law:

Under African law, the wronged subject has access to remedies

against the traditional leader. These remedies are mediation and
judicial control.

Mediation is where a third party becomes involved in the dispute as a

mediator between the disputing parties. Any objection to
administrative action of the ruler must go before the private council
for mediation. An aggrieved subject relates his complaint to a
member of the council, who consults the ruler in secret. If he finds
that the ruler acted incorrectly, he can reprimand him and require
him to offer his pardon to the subject. The council can also act on
its own against the wrongful action of the ruler. If the private council
and the ruler cannot come to a compromise, in the past the matter
was referred to the representative council. If this council did not
succeed in reconciling the ruler and the subject, the matter was
referred to the people's assembly, where it was dealt with publicly.
At present the traditional authority also fulfils this function.

A court action to a subject to oppose an administrative action of a

ruler in the tribal court is not allowed. The reason for this is that the
ruler will then act as judge and accused in the same case. An
aggrieved subject can however use indirect means to oppose an
administration determination of the ruler by raising the invalidity of
the act as a defence in a criminal suit.

(b) Common law:

According to common law, internal review and judicial review are the
controls over a ruler's administrative action.

A higher authority within the same hierarchy of power can also

review the traditional rulers actions. Internal review can be done at
the request of an aggrieved subject or out of the higher organs own
accord. The particular organ can confirm, disapprove, amend or
replace the action. The reviewing authority can also take new facts
into account and apply new considerations. However, the decision
must fulfil the validity requirements of administrative determinations.
The subject can oppose the decision of the reviewing authority in a
court of law, as the decision does not have the power of a court
decision.

An aggrieved subject can apply directly to the magistrate's court or

the Supreme court to check the administrative action of the ruler.
The subject can:
 • apply for review of the validity of the administrative act
• apply for an interdict in which the chief is ordered to stop the
act that infringes the rights of the applicant
• apply for a mandamus whereby the chief is compelled to
execute his power

18. Discuss the implications of section 211 of the Constitution for the
recognition of indigenous law.

This section reads as follows:

(a) The institution, status and role of traditional leadership,

according to customary law, are recognised, subject to the
Constitution.

(b) A traditional authority that observes a system of customary

law may function subject to any applicable legislation and
customs, which includes amendments to, or repeal of, that
legislation or those customs.

(c) The courts may apply customary law when that law is
applicable, subject to the Constitution and any other
legislation that specifically deals with customary law.

The implications of section 211(3) are as follows:

(a) All courts may apply and therefore also recognise customary
law.

(b) The recognition and application of customary law are subject

to the Bill of Rights.

(c) The recognition and application of customary law are subject

to legislation that specifically deals with this. This implies that
only legislation aimed at amending customary law is relevant
and not legislation in general.

(d) The courts decide when customary law is applicable. Courts

have a discretion to decide whether customary law is
applicable in a particular case.

Where rights have been derived from customary law, the courts are
obliged to protect those rights, assuming that both parties
reasonably expect to be subject to customary law.
 Another approach would be to consider who has a duty in terms of
the particular legal relationship. The rights of one person creates a
responsibility for another.

19. Discuss form of punishment and the determination of punishment in

indigenous criminal law.

Originally the following forms of punishment were known:

(a) death penalty

(b) banishment
(c) confiscation of property
(d) removal of the offender to an appointed area within the
communal territory
(e) fines, mostly in the form of stock
(f) corporal punishment
(g) compulsory labour
(h) a warning after having been found guilty

Any of the abovementioned forms could be combined to increase the

punishment. Imprisonment was unknown as a form of punishment,
although a persons freedom could be restricted to a particular area.

The determination of punishment was influenced by various factors.

Mitigating circumstances were the following: the insignificance of
the offence, youth, provocation and diminished liability.

Aggravating circumstances were the seriousness of the crime, the

use of force in the perpetration of the crime, perpetration of the
crime within the victims dwelling or within his premises and repeated
perpetration of crimes.

Nowadays an African court may still impose punishment in

accordance with African customary law, but with the following
limitations: no punishment resulting in death, mutilation or bodily
harm, including corporal punishment. Maximum fines have also
been limited. An African court may not sentence to imprisonment.

20. Briefly explain the basis of liability of the head of an agnatic group for
crimes committed by members of his group.

In African customary law the head of an agnatic group is always

liable for the conduct of members of his group. He has co-liability
because in the African customary law the agnatic group has certain
rights and duties. Therefore, the group is also liable for the crimes
 of its members. The Northern Sotho use the following sayings to
refer to this type of liability:

(i) If the herd boys in the veld are bitten, it will affect their elders
at home.
(ii) A cow is brought to ruin by her calf.
(iii) A child that steals, gets his father into trouble.

The group member himself incurs the liability and is punished, but if
there's a fine, it must be paid by the group, represented by its head.
The Northern Sotho say the following in this regard: The big wolf has
not guilt; the guilt is brought on by the little wolves.

21. Define the following terms/concepts:

(a) sorcerer

A sorcerer is a person who uses supernatural powers for his

or her own ends. They may use these supernatural powers in
two ways: either to the advantage or to the disadvantage of
other people or their interests.

(b) legal capacity

Legal capacity refers to the capacity to have rights and duties.

(c) customary marriage

A customary marriage is a marriage concluded in accordance

with customary law.

22. Evaluate the following statements:

(a) The family head's control over house property does not give him the
authority to allocate marriage goods for daughters in one house to another
house.

True, when property from one house is used to the benefit of another
house, a debt relationship is created between the houses concerned.
Such a debt has to be repaid at some or other time, although no
action for repayment can be instituted in an indigenous court since
an agnatic group cannot be divided against itself.

(b) The ilobolo contract is an example of a real contract.

 True, lobolo is probably the most important contract in customary
law. This contract can be described as an agreement between the
parties concerned, by which one party undertakes to deliver a certain
female person as a bride for a certain male person in return for the
delivery of cattle or other property. The following are the most
important requirements for the lobolo contract:

(i) Consent of the father or guardian of the bride to be

(ii) Consent of the bride
(iii) Consent of the bridegroom
(iv) Transfer of the bride
(v) Transfer of the lobolo

(c) In original indigenous law, ownership of land was not subject to any
limitations.

True, originally the only real right known to customary law was
ownership, which is the most comprehensive real right which can be
acquired over material things. All other categories of real rights are
limited.

23. Briefly outline the changes that the Recognition of Customary Marriages
Act 120 of 1998 has brought about with regard to the proprietary
consequences of a customary marriage.

Originally, the house as a patrimonial unit, continued to exist after

the dissolution of the marriage. The wife lost all the rights and
powers she had in respect of house property. Neither could she
claim to be maintained from house property. In this connection,
original indigenous law was recognised virtually without change.

The Recognition of Customary Marriages Act 120 of 1998 makes

specific provision for maintenance and matrimonial estate sharing.

Divorce is effected by the abandonment; by the wife and her family,

of all the rights in the marriage, or by the forfeiture by the husband
and his family of all their rights.

In terms of Section 8 of the Act a court must make an equitable order

regarding polygynous marriages and must consider all relevant
factors, including contracts, agreements or court orders.
Expectations and liabilities regarding the marriage goods should
also be considered when determining the assets of the estate that is
to be divided. The present practise among some groups is that
these remain with the father: he is obliged to help his sons give
 lobolo for their first wives, and he received lobolo for his daughters
when they marry.

24. State the general principles of the indigenous law of succession.

The following can be identified as general principles:

(a) Succession takes place only on the death of a predecessor;

there is thus no question of succession while the family head
is still alive.
(b) In original indigenous law, succession was related solely to
status, but modern indigenous law does pay some
acknowledgement to the notion of the individual inheritance of
property.
(c) In original indigenous law, there was no such thing as the total
disposition of property by means of a will. Today, however, it
is not uncommon for indigenous African people to dispose of
their assets by means of a will.
(d) A distinction is made between general succession and special
or house succession.
(e) In original indigenous law, the successor succeeded to the
deceased's assets and liabilities; in modern indigenous law,
the position differs between groups. In KwaZulu-Natal a
successor succeeds to the assets of the estate and only those
debts that emanate from marriage contracts. In the rest of
RSA, a successor succeeds to the assets and all the debts of
his predecessor.
(f) Succession is status is limited largely to males, especially
those of the patrilineage; a man cannot be succeeded by a
woman, except in certain rare cases.
(g) Succession follows the principle of primogeniture, which
means that on his death, a man is succeeded by his firstborn
son.
(h) Succession is a duty that cannot be relinquished or ceded.
(i) Male descendants enjoy preference over male ascendants;
male ascendants, in turn, enjoy preference over collateral male
relatives.
(j) Disposal among the living is possible, provided the usual
formalities are complied with.
(k) A successor may, on good grounds, be removed from the line
of succession.

25. Define the following terms/concepts:

(a) specialisation
 Specialisation refers to the distinction of certain functions or a
definition of certain activities. According to "Myburgh"
specialisation implies " the separation, differentiation,
division, distinction, classification, delimitation, definition or
individualisation in respect of time, activity, functions,
interests, duties, knowledge and conceptions, including the
isolation or abstraction of ideas and concepts".

(b) Polygyny

Polygyny is when a man can have a valid marriage with more

that one woman at the same time.

(c) Customary law

Customary law is the customs and usages traditionally

observed among the indigenous African peoples of South
Africa and which form part of the culture of those peoples.

(d) Personal property

Personal property is property that belongs to a person who

has acquired it, although it may be under the control of the
family head.

26. Customary marriage law has been drastically amended by the Recognition
of Customary Marriages Act 120 of 1998. Discuss this statement with
reference to:

(a) the legal requirements for customary marriages that were validly in
existence before 15 November 2000 and marriages entered into
after this date.

The legal requirements for a customary marriage entered into

before 15 November 2000 is as follows:

(i) The parties must not be related to one another within

the prohibited degrees of kinship.
(ii) There must be consensus of the two family groups that
the two individuals may be united in marriage and that
the marriage goods must be delivered.
(iii) The transfer of the bride by her family group to the
man's family group.
(iv) The woman may not already be involved in a marital
union.
 The legal requirements for a valid customary marriage entered
into after 15 November 2000 are provided for in Section 3 of
the Act and are as follows:

(i) The prospective spouses must both be above the age of

18 and must both consent to be married to each other
under customary law; and
(ii) the marriage must be negotiated and entered into or
celebrated in accordance with customary law.

(b) The way in which customary marriages are dissolved.

The customary marriage can only be dissolved on the ground

of the irretrievable breakdown of the marriage. In order to
grant a decree of divorce, the relevant must be satisfied that
the marriage relationship has reached such a state of
disintegration that there exists no reasonable prospect of the
restoration of a normal marriage relationship between the
spouses.

In terms of Section 4(2) of the Divorce Act the court may, in the
case of civil marriages, accept as proof of the irretrievable
breakdown of a marriage evidence that:

(i) the parties have not lived together as husband and wife
for a continuous period of at least one year immediately
prior to the date of the institution of the divorce action.
(ii) the defendant has committed adultery and the plaintiff
finds this irreconcilable with a continued marriage
relationship.
(iii) the defendant has, in terms of a sentence of court, been
declared a habitual criminal and is undergoing
imprisonment as a result of such sentence.
Proof of the existence of any of these situations creates a
presumption that the marriage has irretrievably broken down.

27. Evaluate the following statements:

(a) Indigenous law is an expression of community values.

True. African customary law gives expression to the values of

the community. In many instances, these values are based on
conceptions of the supernatural world.

(b) A juristic person was recognised in original indigenous law.

 False. Original indigenous law recognised only a natural
person as opposed to a juristic person as a legal subject.

(c) A delict may be defined as an act which lawfully infringes the rights
of another.

False. A delict may be defined as a human act which

unlawfully infringes the rights of another. In a delict the
individuals or agnatic groups are harmed and the property of a
particular agnatic group or individual is affected. In a delict
mediation between the parties is required before legal
proceedings may be instituted. In a delict damages are
payable to the party that was harmed.

28. Write notes on the consequences of the betrothal.

The betrothal gives rise to particular rights and duties for the man
and the woman. In particular, the woman should not pay too much
attention to other men during the betrothal period. The man must
not neglect her. Because of the polygynous nature of the marriage,
the man may pay attention to other women during this period, but
should make sure he does not neglect his betrothed. The man also
has to deliver the betrothal goods during this period.

Property delivered during the betrothal period has a dual nature.

Upon delivery, property rights over these articles are transferred to
the woman or her group. If the betrothal is terminated, the articles
are not automatically returned to the man or his group. The guilt
factor determines whether the articles are returned or not. If the
termination of the betrothal is the woman's fault, the goods normally
have to be returned. If the man is guilty, the goods are not returned.

Ownership of marriage goods remains vested in the giver until the

marriage is concluded. Before the marriage, the man's groups
remains the owner of this property. If the betrothal is terminated,
these goods have to be returned.

29. Distinguish between "general succession" and "special succession".

"General succession" refers to succession to the position of the

family head. "Special succession" or "house succession" refers to
succession to the position of the head of a house in terms of the
houses of the deceased.

30. Discuss the implications of Section 1 of the Law of Evidence Amendment

Act 45 of 1988 on the recognition of indigenous law in South Africa.
 (a) All courts may take judicial notice of indigenous law, although
they are not obliged to do so.
(b) Judicial notice is limited in so far as indigenous law may be
ascertained readily and with sufficient certainty. The courts
are thus not obliged to apply indigenous law in cases where
indigenous law is the obvious system to apply, but cannot be
readily ascertained.
(c) There is no duty on the courts to take judicial notice of
indigenous law.
(d) It is not necessary for judges or magistrates to have any
formal or practical knowledge of, or training in, indigenous
law.
(e) In terms of subsection 2, evidence about indigenous law may
be submitted to the court by the party himself. So the onus is
on the party or parties to prove indigenous law in courts. This
places a financial burden on the litigant, who must obtain the
services of an expert witness.
(f) Indigenous law must not be opposed to the principles of
public policy or natural justice. A court may, however, not
declare that lobolo or other similar customs are opposed to
such principles.

31. Explain the following legal maxims:

(a) Mpa e sewa ke moladi wa yona ('a pregnancy is decided on with

the sleeping partner present').

This means that on the day of the hearing, both parties must
be present. The case may not be heard in the absence of one
of the parties. If one of the parties cannot be present and
offered apologies prior to the proceedings the case is
postponed. If a party is absent without an excuse, the case is
postponed and the absent party is warned to be present when
the case is heard again. If a party is absent without an excuse
for a second time, messengers generally bring him or her to
the court. Such a party may be punished for contempt of
court.

(b) Molato ga o rere mongwe ('one debt is not heard by another').

This means that during the hearing of a civil case, the

defendant may not institute a counterclaim against the plaintiff
and ask that his liability towards the plaintiff be removed.
 (c) Molato ga o bole ('a debt or case does not decay or expire')

This means that prescription of a debt or a claim is unknown

in indigenous law. A plaintiff is, however, compelled to submit
his claim without delay, because a delay may make it more
difficult for a plaintiff to prove the facts or he may harm the
other party through his delay.

32. Discuss guilt (culpability) as an element of a crime according to

indigenous law.

African customary law requires that the act must be intentional or at

least negligent in order to be unlawful. The act must therefore be
accompanied by guilt. If the unlawful act is merely an accident
criminal liability is excluded.

Two forms of guilt can be distinguished, namely intent and

negligence. Intent is the form of guilt that is required for most
African customary law crimes. A person acts with intent if he
consciously does something that he knows is wrong. Negligence is
when official discipline is not adhered to, and in cases of culpable
homicide. Negligence means not to act like an ordinary man or
woman. In African customary law the relation between cause and
effect is looked at.

In customary law a small child and an insane person are not

criminally liable for their unlawful conduct, because they do not have
the mental ability to judge their actions. Consideration is therefore
given to whether a person can be held criminally liable.

There is no fixed age at which children can be held criminally liable.

According to customary law an intoxicated or other drugged
condition does not exclude criminal liability. It is not a mitigating
factor if the accused himself is responsible for his condition. If a
person in an intoxicated or drugged condition is made to commit a
crime his state as well as the fact that he was made to commit the
crime are considered mitigating factors.

A supernatural cause, such as sorcery, does not exclude criminal

liability. However, in customary law, a belief in sorcery, together
with the fear that the sorcery performed by the victim may endanger
a person or his relations or even the community may be regarded as
a mitigating factor.
33. Discuss the inconsistencies which have been brought about by the
recognition of traditional leadership.

The inclusion of traditional leadership in a democratic constitutional

dispensation leads to certain inconsistencies. The difference in
degree between traditional and modern governments, and the
meaning of these differences, greatly depends on the various
functions of the government and the level of government in which
they are exercised.

In so far as the legislative function is concerned, a democracy

implies regular elections. This system of chosen leaders is in
contrast to the traditional system of hereditary leadership.
Hereditary leadership is based on the principle of male
primogeniture, with due regard to the status of the main wife or tribal
wife. Hereditary leadership further implies that the official holds
office for life, in contrast to the fixed terms of office of elected
leaders in a democratic system.

This inconsistency is brought sharply to the fore when we look at the

new powers that were given to the traditional leaders on the
provincial and national levels. At the provincial level, provision was
made for a House of Traditional Leaders and a Council for Traditional
Leaders at the national level. These bodies must advise the
provincial and national legislatures respectively, and must make
suggestions about matters concerning the traditional authorities and
African customary law, as well as the traditions and customs of the
traditional communities.

Another inconsistency with the Constitution is the clash with the

equality clause, and thus the African customary system of male
succession. With a few exceptions, women are not clothed with any
public political function in terms of African customary law.

According to the principle of equality it is discriminatory that a

chief's daughter cannot succeed if she is the first-born. According
to the principle of primogeniture the first-born must succeed,
regardless of whether they are male or female. The discriminatory
element in the succession system is therefore the principle of
patrilineal succession, meaning that only males in the patrilineage
can succeed. In a patrilineal system of descent reckoning, a
daughter belongs to the patrilineage of her father, but her children
belong to the patrilineage of her husband.
 Another problem is that a female head cannot perform the political
rites in honour of the ancestors, as according to belief these rituals
can be performed only be male members of the male line of descant.

Gender discrimination is not limited to succession to political

offices. It also affects the succession system of ordinary people, if
the prohibition against gender discrimination is to be applied
uniformly. If a woman is allowed to succeed they must support and
maintain the members of the household and perform rituals during
sickness and death.

34. Define the following terms/concepts:

(a) The levirate system

The levirate custom is customs used to substitute the

husband where the husband dies before he can marry or
before he has a son.

(b) the ukuvusa custom

The ukuvusa custom is when substitution of the husband

occurs where the husband dies before he can marry or before
he can marry the tribal wife, in which case children are raised
on his behalf with a wife married after his death, usually to a
relative, such as his younger brother.

35. Explain the legal significance of "Mangangahlae".

Sometimes the court orders additional goods or money, other than

damages, to be delivered. This may be called "a court levy", or
"courts costs". It is called a levy because is former times no money
was used. The Sotho-speaking groups refer to this "levy" as
mangangahlaa. It refers to the amount of talking that the court
councillors need to do in order to try to convince a difficult litigant of
his guilt. Mangangahlaa may be regarded as compensation to the
court for the time its members have spent on the case. Another
explanation is that these are goods that are given in order to close
the court proceedings.

In former times a goat and even a head of cattle were given. The
animal was slaughtered for the members of the court, and then eaten
in a meal shared by them and the litigants. In this way any trace of
disagreement that still existed was removed in a visible and a
concrete manner. In this respect mangangahlaa also plays a role in
the reconciliation of the parties.
 Sometimes mangangahlaa is also ordered to compensate for
malicious damage that was caused.

In criminal cases the fine that is imposed sometimes includes

mangangahlaa. It is usually used for the food served to the members
of the council and the accused.

36. Explain how a person's status is influenced by a factor such as his or her
gender.

Gender had a significance influence on a person's status.

Originally, only males could succeed to positions of status. A
woman could thus never become a family head, nor could she
succeed to general or house property. A woman was, however, not
without status, although her powers were limited.

In moderns indigenous law, the position of the female is influenced

by the majority. The legal position of unmarried woman compares
favourably with that of males.

In the original indigenous law of succession and inheritance, females

occupied an inferior position compared with males. Today, the legal
position affecting a woman's right to inherit property from the estate
of a deceased relative has changed drastically.

37. Briefly outline the most important general consequences of a traditional

indigenous marriage.

(a) New and separate unit, namely a family or house, comes into
being.
(b) Mutual obligation to live together
(c) Allow sexual intercourse
(d) Status of man and woman changes
(d) Establishment of a new house estate

38. Evaluate the following statement:

(a) Spouses in a customary marriage entered into before 15 November

2000 may never change the matrimonial property system governing
their marriage(s).

Spouses in a customary marriage entered into before 15 November

2000 may jointly apply to a court for leave to change the matrimonial
property system governing their marriage or marriages. The court
may grant the application if it is satisfied that:
 (a) there are sound reasons for the proposed change
(b) sufficient written notice of the proposed change has been
given to all creditors of the spouses for amounts exceeding
R500 or such amount as may be determined by the Minister of
Justice by notice in the Gazette.
(c) no other person will be prejudiced by the proposed change.

Provided that these requirements are met, the court will order that
the matrimonial property system applicable to the marriage or
marriages will no longer apply. The court will authorise the parties
to enter into a written contract in terms of which the future
matrimonial property system of their marriage will be regulated
according to conditions determined by the court.

Where a husband is a spouse in more than one customary marriage,

all persons having a sufficient interest in the matter, and in particular
the applicant's existence spouse or spouses, must be joined in the
proceedings.

39. Explain the following maxim:

(a) "selepe ga se itheme" (an axe does not chop itself).

No one can be a judge in their own case. A case involving a ward

headman is heard by another headman, or the case is referred to the
chief. A case involving the chief is heard by a senior relative to the
chief and usually by a brother of his father's.

40. Distinguish between defence and necessity in indigenous law.

Defence has to do with defence against an attack by another person

that has already begun or that is threatening to begin.

Necessity has to do with any condition that poses a threat to a

person or property.

41. Discuss the different forms of the custom of substitution in both the
original and modern indigenous law. (20)

Indigenous law identifies four possibilities of substitution:

Ukuvusa

If a man dies before he can conclude a marriage, his relatives will

marry a wife in his name in order to produce a successor for the
deceased. The children born to this woman are considered to be
those of the deceased. The main objectives of the union are to
increase or renew the deceased’s estate and to perpetuate his name
by the provision of a successor.

The sororate

This institution relates to a woman’s duty to reproduce. Substitution

takes place if a wife is unable to fulfil her child-bearing duties. She
may therefore be substituted if she

● dies without living sons;

● is apparently infertile;
● has passed her child-bearing period without giving birth to a living
son;
● is divorced without or before bearing a male successor;
● is repudiated by her husband without leaving a male successor in
her house; and
● dies or is divorced leaving young sons and daughters behind; in
this case, the chief duty of the supporting wife is to care for the
children.

The levirate

This custom is practised where a married man dies without a living

male child. If he is survived by a wife who is still fertile, she together
with one of his consanguineous kin will procreate a successor for
the deceased.

Ukuzalela

The ukuzalela is a unique custom and is practised when a deceased

man leaves a successor and is survived by a wife, who is still
capable of bearing further children. The deceased’s wife or wives
would engage in “legitimate intercourse with an approved (male)
relative of the deceased for the sole purpose of procreating more
children for the house”.

In modern indigenous law the ukuvusa union is recognised as a

customary marriage and must therefore satisfy all the legal
requirements provided for in the Codes of Zulu Law and the
Recognition of Customary Marriages Act 120 of 1998. However, one
of the requirements for a valid customary marriage in terms of
section 3 of Act 120 of 1998 is that the prospective spouses must
both consent to be married to each other under customary law. The
ukuvusa union cannot satisfy this requirement since one of the
 spouses, namely the man, is dead and therefore cannot consent to
the union. Therefore, in modern indigenous law, Act 120 of 1998
does not recognise the ukuvusa union.

Substitution is related to the marriage goods which the man delivers

to the wife’s group. The main effect of the lobolo contract is to
transfer the reproductive capacity of the woman from her guardian to
her husband (Bekker op cit 150). If a woman is barren or unable to
have children, a substitution has to be made, because her husband
has paid lobolo for her. The interests of her husband’s group require
that a woman who is still capable of bearing children must do so.
The wife’s group is obliged to substitute for her barrenness, since
the man’s group has the right to her child-bearing capacity.

In original indigenous law, a wife was duty-bound to subordinate

herself to the levirate custom, if she was still fertile. In modern
indigenous law, however, a woman is not forced to enter into such a
relationship, and in appropriate circumstances her absolute
refusal would be construed as repudiation.

In modern indigenous law, the fact that the Recognition of

Customary Marriages Act 120 of 1998 is silent on whether the death
of either spouse dissolves a marriage presumably means that
levirate and sororate unions are still capable of being arranged
and concluded.

42. In 1960, Thabo (a 17 year old boy) and Zandi (a 16 year old girl) and their
respective fathers concluded an agreement in terms of which Thabo had
to deliver six head of cattle and R5000 as lobolo to Zandi’s family. Thabo
delivered the lobolo agreed upon and shortly thereafter Zandi was allowed
to reside with Thabo and his family. In 1962, twin daughters were born to
them namely Nonhlanhla and Bongiwe. However, Zandi experienced
some complications during childbirth and she died. A few years after her
death, Thabo discovered that Zandi was actually a member of the clan of
his mother’s people.

(a) Did a legally valid marriage come into being between Thabo and
Zandi? (7)

The marriage between Thabo and Zandi was concluded in

1960, that is before the enactment of the Recognition of
Customary Marriages Act 120 of 1998. This means that their
union could be classified as either a traditional indigenous
marriage or a customary union.
In this case however, their marriage was not a traditional
indigenous marriage as the parties to the agreement were
individuals and not family groups. Their marriage is therefore
a customary union and in order to determine its legal validity,
we need to test it against the requirements for such a union.

If Thabo and Zandi resided in KwaZulu-Natal, section 38(1) of

the Codes of Zulu Law requires that the following
requirements be met for the conclusion of a valid customary
union:

● consent of the bride’s father or guardian if she is still a

minor, which consent must not be unreasonably withheld;
● consent of the bridegroom’s father or family head, if the
bridegroom is still a minor; and
● a public declaration by the bride to the official witness that
the union takes place with her consent.

The facts do not indicate that Zandi made a public declaration

to the official witness that her union with Thabo took place
with her consent Because the last requirement was not
fulfilled, Thabo and Zandi’s customary union would not have
been legal if they lived in KwaZulu-Natal. Furthermore, the
prohibition against not marrying within the prohibited degrees
of kinship extends to KwaZulu-Natal. Hence for this reason,
their marriage is not valid.

In areas outside KwaZulu-Natal, the requirements for a

customary union are:

● consent of the bridegroom’s father in certain circumstances,

namely if the bridegroom is a minor;
● consent of the bride’s father;
● consent of the bridegroom;
● consent of the bride;
● the handing-over of the girl to the man or his family group;
● an agreement that lobolo will be delivered; and the non-
existence of a common-law (civil) marriage.

These requirements have been fulfilled. Since all the

requirements have been fulfilled, their customary union would
have been valid if they lived outside KwaZulu-Natal.
 (b) Would a legally valid marriage have come into being between
Thabo and Zandi if they concluded their marriage on 10 December
2000? (8)

If they had concluded their marriage on 10 December 2000, the

Recognition of Customary Marriages Act 120 of 1998 would
have been applicable to their marriage. The legal
requirements for a valid customary marriage entered into after
15 November 2000 are provided for in section 3 of Act 120 of
1998 and are as follows:

The prospective spouses

- must both be above the age of 18 years

- must both consent to be married to each other under
customary law
- The marriage must be negotiated and entered into or
celebrated in accordance with customary law.

Since the first requirement was not fulfilled, Thabo and Zandi’s
customary marriage would not have been legally valid if they
concluded it on 10 December 2000.

43. In 1964, Thabo enters into a valid customary marriage with Fikile. Fikile
gave birth to a son named Senzo and a daughter named Lungile. In 1985,
Zandi’s house (hereinafter referred to as house Z) concluded an
agreement with Fikile’s house (hereinafter referred to as house F) in
terms of which house Z had to provide five head of cattle to house F,
which house F required as lobolo for Senzo(21). House F appointed
Lungile(19) as the source from which the debt was to be repaid. House Z
delivered the five head of cattle but when house F received lobolo for
Lungile in 1987, house F refused to transfer the lobolo to house Z on
account that the debt had prescribed. As a result, house Z decided to take
house F to court for the outstanding debt.

Discuss the legality of:

(a) the agreement between house Z and house F and the defence of
house F that the claim has prescribed (4)

The transfer of property between houses must be reasonable

and for a just cause. From the facts it does not look as though
the property transfer was unreasonable or unjust. Hence the
agreement between the houses is legal. The claim that the
debt has prescribed is invalid as there is no such thing as
prescription in indigenous law.
 (b) the decision of house Z to take house F to court. (4)

House Z cannot take house F to court as the family head

cannot simultaneously represent the one house as plaintiff
and the other house as defendant. The principle involved here
is that “a house cannot be divided against itself”. In modern
indigenous law, however, the woman belonging to the house
with the claim can initiate the claim against the family head or
the other house.

44. In 1989, Thabo decided to allot certain property to his daughter

Nonhlanhla. He allotted a blanket and a sleeping mat to her which
belonged to his mother. In the same year, Thabo informed Bongiwe that
he had concluded an agreement with Philasanda and his father in terms
of which Philasanda had to deliver betrothal goods and some of the lobolo
agreed upon before the marital union between Philasanda and Bongiwe
could be concluded. He also informed her that Philasanda had already
delivered the betrothal goods. Much to the disappointment of Thabo,
Bongiwe informed him that she had been ‘seeing’ a young man named
Xolani for the past six months and was pregnant with his child. Upon
hearing of her demise, Philasanda terminated the betrothal agreement.

(a) The facts reveal that Thabo made an allotment to his daughter
Nonhlanhla. Can Thabo make such allotments during his lifetime?

Succession in indigenous law occurs only on the death of the

family head. Despite this a family head could, during his
lifetime, make certain allotments that would remain valid
after his death. These methods of making allotments are
recognised in modern indigenous law and are termed a
disposition-inter-vivos. Hence Thabo can make such
allotments to his daughter, because traditionally things like
blankets and sleeping mats were given to females.

(b) Could Thabo, or any other person, claim legal redress in respect of
Bongiwe’s defloration? If so, what is the nature of the legal
redress? (8)

Thabo or Bongiwe herself, in terms of the general law of the

land see Ex parte Minister of Native Affairs in re Yako v Beyi,
can claim legal redress in respect of her defloration. In
indigenous law, if Bongiwe institutes the claim, Xolani
cannot be sued by Thabo as well.

(c) Besides Bongiwe’s defloration, have any other rights in respect of

her been violated? (3)
 According to court decisions, seduction infringes on the rights
of guardianship of the father or guardian of the girl. In original
indigenous law, the right of guardianship of the girl’s agnatic
group was infringed, as well as the agnatic group’s honour
and good name.

(d) What happens to the betrothal goods upon termination of the

betrothal? (3)

Among the Zulu, the marriage goods are returned regardless

of which party has brought about the termination of the
betrothal. Among other peoples, the guilt factor often plays
a role.

If the man terminates the betrothal with good cause, the

marriage goods which he had delivered are returned. If the
man terminates the betrothal without good cause, or if the
woman terminates the betrothal with good cause, the man
usually forfeits what he has already delivered.

In the case under consideration, Philasanda has good cause to

terminate the betrothal because Bongiwe is pregnant with
another man’s child. Hence the betrothal goods will
have to be returned.

45. In 1995, Thabo suffers a severe heart attack and dies. His estate
comprised:

• marriage goods received for Lungile;

• compensation in respect of the seduction of Bongiwe; and
• land which had been allocated to him by the traditional authority, and had
not been allotted to a particular house.

Thabo also had an outstanding debt to pay, namely additional cattle in

respect of his son Senzo’s lobolo. At the time of his death, Zandi’s sister,
Thandi, claims that her son Mandla(33) is the rightful successor to
Thabo’s estate as she bore him after she substituted her sister Zandi.
Unbeknown to Thabo’s present wife and children, both Thabo’s and
Zandi’s families were aware of the substitutionary arrangement and Thabo
had made a public declaration of the union between himself and Thandi.

Explain how Thabo’s estate will devolve. (10)

Thabo’s marriages to Zandi and Fikile have created two separate

houses. The substitution of Zandi by her sister Thandi, is legal and
valid, but both Thandi and the children she bears belong to Zandi’s
house; they do not create a separate house.
The property which comprises Thabo’s estate are:

● The marriage goods received for Lungile is house property.

● The compensation in respect of the seduction of Bongiwe is also
house property.
● The land which had been allocated to him by the traditional
authority, and had not been allotted to a particular house is general
property.

Thabo died intestate, that is without drawing up and executing a will.

Section 23 (1) ofthe Black Administration Act states the following:

“All movable property belonging to a Black and allotted by him or

accruing under Black law or custom to any women with whom he
lived in a customary marriage, or to any house, shall upon his death
devolve and be administered under Black law and custom.”

This means that house property must be inherited by the successor

of that particular house. Here, the marriage goods received for
Lungile, will be succeeded to by Senzo (the house successor in
Fikile’s house) and the compensation received in respect of the
seduction of Bongiwe will be succeeded to by Mandla (the house
successor in Zandi’s house). The land that is the general property
will be succeeded to by Mandla, the eldest son and the general
successor to Thabo’s estate.

What happens to Thabo’s outstanding debts?

In KwaZulu Natal:

● The successor is generally liable only for debts equivalent to the

assets of the estate.
● The successor however, is fully liable for lobolo debts contracted
with another house in order to establish his own house (ie
interhouse loans).

In areas outside KwaZulu-Natal, a successor is liable for his

predecessor’s debts, even if there is not enough patrimony in the
estate.
Therefore, if Thabo resided in KwaZulu-Natal, he will be fully liable
for the additional cattle in respect of his son Senzo’s lobolo. If he
lived outside KwaZulu-Natal he would still be liable for the debt even
if there was insufficient patrimony in the estate to cover it.
46. Give an example of how the unspecialised nature of indigenous law
regarding the farming-out contract is reflected in each of the following
main characteristics of indigenous law. (7)

(a) group v individual orientation;

In original indigenous law, the parties to the contract were

agnatic groups.

(b) concrete v abstract;

One of the duties of the owner is that he should visit the sisa
livestock from time to time to show outsiders that he has an
interest in the livestock, to earmark the progeny and to take
possession of natural products such as wool. Neglecting to do
this does not deprive him of his ownership, but might make it
difficult to prove his right to the animals, should this be
disputed.

Should a beast die, the keeper has to send the hide to the
owner to enable him to identify the dead animal as his own.

(c) the religious element;

One of the objectives of the sisa contract is to disguise the full

extent of the herd from envious people who, because of their
envy, may use witchcraft to harm the owner.

(d) time;

The sisa contract is not usually tied to a specified time. It

must, however, last long enough for the keeper to have the
use of the animals. The contract can be terminated by either
party: the keeper may return the animals, or the owner may
request their return.

(e) kinship.

One of the objectives of the contract is to provide assistance

to needy kinsmen or tribal members who have the use of the
livestock.

47. Status is linked to a person’s legal position or standing and it determines

the powers a person has. Discuss the factors influencing a person’s status
in indigenous law. [25]
Status is linked to a person's legal position or standing, and it is this
status that determines his or her powers. There are three factors that
influence a person’s status. These are age, sex and rank.

Age

In original indigenous law, minority and majority were, as we have

said, unknown. Age however, was not without legal significance.
Thus, a child was not considered accountable until he or she had
reached the age of six years. A person could not marry until he or
she had reached puberty. A boy who was considered mentally
immature was not qualified to succeed to a position of status and
was temporarily replaced by a deputy until he was mentally mature.

On the other hand, no person was altogether a minor. Even a

newborn baby shared in the rights, powers and duties of his or her
agnatic group. Age as such did not have a specific legal significance.
Greater importance, for example, was attached to physical
development. Puberty, particularly, was strongly emphasised by
some groups by means of specific ceremonies, generally known as
“initiation ceremonies”. A person was considered marriageable once
he or she had undergone these initiation ceremonies. Such a person
was then generally considered an adult.

Among some groups, initiation ceremonies had nothing to do with

puberty but, nevertheless, as soon as a person had undergone the
initiation ceremony, he or she was considered an adult. In modern
indigenous law, this position was amended drastically in that
majority is now attained at a fixed age. Before 1972, the position in
the Republic of South Africa varied. In KwaZulu-Natal, a female black
person was a perpetual minor in terms of section 27 of the Code of
Zulu law (Proclamation R 95 of 1967) unless she had been
emancipated in terms of section 28. In the rest of South Africa, all
unmarried persons of 21 and older were of age in terms of South
African common law. Since 1972, in terms of section 1 of the Age of
Majority Act 57 of 1972, all persons, male and female, are of age once
they turn 21.

Section 27 of the Code of Zulu Law (Proclamation R195 of 1967) was

amended and brought into agreement with the KwaZulu Act on the
Code of Zulu Law. At present, section 14 of the Natal Code of Zulu
Law (Proclamation R151 of 1987) stipulates that all female black
persons of 21 and older are of age. Majority has the effect that
individual members of the agnatic group can now become majors,
that is, they can obtain rights, powers and duties independent from
those of the agnatic group.

Sex

In original indigenous law, sex had a significant influence on a

person's status. Only male persons could succeed to positions of
status. A woman could thus never become a family head, nor could
she succeed to general or house property. However, a woman
was not without status, although her powers were limited. For
example, she had a reasonable degree of freedom as far as the
everyday use of house property was concerned. A man could not
deal arbitrarily with house property: he had to consult his
wife in the house concerned. However, this consultation was not
legally enforceable. A woman could, however, call upon the wider
family group if her husband dealt irresponsibly with house property.

In modern indigenous law, majority influences the position of the

female. This means that, today, the legal position of unmarried
women compares favourably with that of males. However, it is still
not possible for females to succeed to the position of family
head. There are some indigenous African groups that do in fact allow
women to succeed to the position of family heads. In such cases, the
position of female family heads is de facto (in fact) the same as that
of the family head in indigenous law.

In the original indigenous laws of succession and inheritance,

females occupied an inferior position compared with males. Today,
the legal position affecting a woman's right to inherit property from
the estate of a deceased relative has changed drastically. In the
Constitutional Court case of Bhe and others v Magistrate,
Khayelitsha, and Others (Commission for Gender Equality as Amicus
Curiae, the court granted women rights to inherit property and the
court also declared the rule of male primogeniture;

as it applied in customary law to the inheritance of property, to

be inconsistent with the Constitution and invalid to the extent
that it excluded or hindered women and extra-marital children
from inheriting property (Langa DCP at para [136]).

However, the position regarding the succession of females to the

position of family head, however, a remains unchanged, but is in dire
need of reconsideration, especially in the light of the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000.
Section 8(d) of the aforementioned Act provides that:
 Subject to section 6, no person may unfairly discriminate
against any person on the ground of gender, including any
practice, including traditional, customary or religious practice,
which impairs the dignity of women and undermines equality
between women and men, including the undermining of the
dignity and well-being of the girl child…

In terms of section 9(3) of the Constitution of the Republic of South

Africa 1996, the state may not discriminate unfairly against a person
on the grounds of sex, amongst other factors. This section is given
further emphasis by section 6 of Act 4 of 2000, which provides that
“neither the State nor any person may unfairly discriminate against
any person”. The commencement date for this section was 1
September 2000. It can be expected that these sections will have a
drastic influence on the position of females in indigenous law.

Rank

Here we distinguish between family rank and house rank. Family

rank refers to the hierarchy of family members within the family
group. House rank refers to the hierarchy of the various houses that
make up a household.

Family rank

The elementary or nuclear family consists of a husband and wife and

their children. Thus, a family consists of persons who differ in sex
and age. Among the indigenous African peoples of South Africa,
males occupied a higher rank than females. Females were thus
always under the authority of males, and only males could become
family heads.

In the context of a person's sex, age and other factors played a role.
In the context of the family, it can be said that a person's rank was
determined by the principle of primogeniture. The eldest son thus
had a higher rank than brothers younger than himself, and younger
brothers therefore ranked below their older brothers. The same
principle applied to sisters.

The position of twins is of significance. The question regarding twin

brothers is: Who is regarded as the eldest? What is their rank
(independently)? In this regard, there are various conceptions and
customs among the various indigenous African groups. Among
some groups, the first born of twins is regarded as the elder, while
others regard the last born as the oldest.
Within the broader family group, however, the rank of children was
qualified by their father's rank in his family of origin. If the father was
the eldest brother, his children held a higher rank than any of the
children of his brothers.

House rank

As you know, indigenous African people practise polygamy.

Polygamy means a marriage with more than one spouse. In
anthropology, we distinguish between two forms of polygamy,
namely polygyny and polyandry. “Polygyny” refers to the form of
marriage in which a man is married to more than one woman at the
same time. Today, unlike in former times, polygyny is not so
common although, among indigenous African peoples, the form of
marriage is still a potentially polygynous one.

Polyandry refers to a form of marriage in which a woman is married

to more than one man at the same time. This form of marriage is
foreign to indigenous African people and, in fact, is not common
anywhere in the world.

One consequence of a polygynous marriage is that each marriage

establishes a separate family, the husband being the common
spouse to all the families. This unit, that is, the unit in where all the
families are headed by one husband, is known as a “household”. In
the South African context, this unit of families is generally referred to
as an “agnatic group” and the head is described as the “family
head”. A number of related households or agnatic groups form a
family group in which, once again, the most senior male exercises
powers according to his rank. The members of the family group often
came together as a family council in order to discuss matters of
common interest, such as conclusion of a marriage and disputes
between members.

The various households within this unit each have a particular rank.
The basis on which this ranking rests differs among various
indigenous African peoples. In some cases, the rank of each house
is determined by when it came into being, that is, according to when
the man married the women. The wife whom he married first is then
known as the “main wife”. The rank of the children within such a
household was determined by the rank of their mother's house. The
children's rank in such a household is thus dependent on their
mother's house rank. The children of the main wife hold the highest
rank within the household, irrespective of their actual age.
 In some cases, the main wife must come from a particular descent
group, and should not be the wife whom the man marries first. In
such instances, the order of marriage is not decisive for the
hierarchy. This means that the children's rank within the agnatic
group is not determined by birth, but by their mother's rank.
Sometimes the ranking system is quite complex; this is particularly
true of the Nguni-speaking people. The household of these people is
namely divided into sections. Each section has a specific rank vis-à-
vis the other sections. Within each section, each house also has a
specific rank.

48. Briefly outline the position in regard to movable property in original

indigenous law. (10)

The position regarding movable property in original indigenous law

was briefly as follows:

● Movable property could either be house, general or personal

property.
● The content of ownership of movable property was the power to
dispose of it at the owner's discretion.
● Ownership of movable property could be acquired as follows:

- By the appropriation of natural products such as wild

animals, plant products, water from rivers or fountains and
fish from rivers. The various groups might have specific rules
governing the manner, place and time of appropriation;
members of the local community could hunt, gather, dig, fish,
fell, cut and pick within the communal area (taking into
account public or seasonal limitations).
- By creation, cultivation or rearing, such as the manufacture
of household articles from wood, hide or clay, the cultivation
of various crops and the rearing of livestock.
- By transfer in terms of an agreement of exchange, sale, gift
or service.
● Ownership of movable property could not be acquired through
prescription or through another's loss; an owner of strayed livestock
or a lost article retained his rights of ownership. Some groups had
various rules regarding lost or strayed livestock which were aimed
mainly at restoring possession of such livestock to the owner.
● Ownership of movable goods could be terminated by transfer, use
and destruction.
49. Evaluate the following statements.

(a) The nature of restitution and compensation for the defloration of a

girl is the same amongst the Zulu and Pedi peoples. (5)

The statement is false. Among the Zulu, besides the ingquthu

beast, a “purification beast” (umgezo) was also paid for the
defloration of a virgin. It is therefore apparent that there is
payment of damages as well as satisfaction. Damages are paid
because less lobolo (marriage goods) will be received for such
a girl. Consequently, compensation must be made for the loss
of marriage goods caused by the seduction. If the seducer
marries the girl, the cattle which were paid as damages for the
seduction form part of the marriage goods (lobolo).

Among the Pedi, satisfaction is paid for seduction only. The

impregnation of a Pedi girl does not influence her lobolo
value; in fact, the girl's group receives an additional beast for a
pregnant girl or a girl with a child. It is clear that, as far as the
Pedis were concerned, impregnation does not lead to injury,
but does infringe upon the honour and good name of the
agnatic group.

(b) The ukuzalela custom is practised when a married woman is

unable to procreate a successor. (5)

The statement is false. In Tekeka v Ciyana (1902 NHC 13) it is

stated that ukuzalela is practised where a deceased man has
left a successor. During the successor's youth, the family
council control the increase of the deceased's estate. This can
be done by giving the deceased's wives in ukungena unions or
by marrying a wife for the deceased. The children of such a
union would then belong to the deceased. These children
cannot, however, succeed the deceased.

The ukuzalela is therefore a unique custom and is practised

when a deceased man leaves a successor and is survived by a
wife, who is still capable of bearing further children. The
deceased’s wife or wives would engage in “legitimate
intercourse with an approved (male) relative of the deceased
for the sole purpose of procreating more
children for the house”

(c) Married men have full power with regard to their family and house
property. (5)
 The statement is true. Any married man, not just the family
head, has full power over his family and house property. His
powers completely exclude any control that the family head
originally had over his family affairs. Such a married man and
his family are, however, are subject to the family head
regarding matters that concern the agnatic group. Especially
important in this regard is the maintenance of good order
between members of the agnatic group. In modern indigenous
law, all married men are regarded as majors.

50. In 2002, Vuyo (a male aged 22) and Karabo (a female aged 17) and their
respective fathers concluded an agreement in terms of which Vuyo had to
deliver five head of cattle and R 10 000 as lobolo to Karabo’s family. Vuyo
delivered part of the lobolo agreed upon and shortly thereafter, Karabo
was allowed to reside with Vuyo and his family. Their marriage was never
registered.

(a) Did a legally valid marriage come into being between Vuyo and
Karabo? (7)

If they concluded their marriage in 2002, the Recognition of

Customary Marriages Act 120 of 1998 will be applicable to their
marriage. The legal requirements for a valid customary
marriage entered into after 15 November 2000 are provided for
in section 3 of Act 120 of 1998 and are as follows:

● The prospective spouses - must both be above the

age of 18 years. In this case, Vuyo is above the age of 18
years, but Karabo is only 17 years old. Because Karabo is a
minor, she also requires the consent of both her parents in
order to conclude a valid customary marriage (see s 3(3) of Act
120 of 1998). The facts reveal that Karabo only received the
consent of one parent, namely her father. This requirement
therefore has not been fulfilled.
● must both consent to be married to each other
under customary law. The facts state that Vuyo, Karabo
and their respective fathers concluded an agreement…
Because the couple’s consent was furnished this requirement
has
been fulfilled.
● The marriage must be negotiated and entered into or
celebrated in accordance with customary law.
 The facts state that Vuyo delivered the lobolo agreed upon and
shortly after Karabo was allowed to reside with Thabo and his
family. Thus the customary law requirements concerning the
negotiation and celebration of the marriage have been fulfilled.
However, since the first requirement was not fulfilled, Vuyo
and Karabo’s customary marriage is not legal.

(b) If we assume that a valid marriage did come into being between
Vuyo and Karabo,

(i) what are the general consequences for them as husband

and wife in terms of indigenous law? (5)

● A new and separate unit, namely a family or house,

comes into being. This is also a legal unit.
● The husband and wife have a mutual obligation to live
together.
● The status of the man and woman changes. Section 6
of Act 120 of 1998 provides that:

“a wife in a customary marriage has, on the basis

of equality with her husband and subject to the
matrimonial property system governing the
marriage, full status and capacity to acquire and
dispose of assets and to enter into contracts and
to litigate”.
● The husband and wife have a mutual duty to allow
sexual intercourse. Each group has its own particular
customs in this regard.

(ii) can Vuyo enter into a further customary marriage with

another woman? (1)

Yes, provided he complies with the requirements set out

in the Recognition of Customary Marriages Act 120 of
1998.

(iii) if he does, will Vuyo have to follow any particular procedures

to regulate the matrimonial property system of his
marriages? (9)

Yes in the case of a polygynous customary marriage,

where the husband intends to enter into a further
 customary marriage with another woman, the provisions
of the Recognition of Customary Marriages Act 120 of
1998 state that the husband must apply to the court to
approve a written contract which will regulate the future
matrimonial property system of his marriages (section
7(6)). In terms of section 7(7), when considering such an
application, the court must:
“(i) in the case of a marriage which is in
community of property or which is subject to
the accrual system-

(a) terminate the matrimonial property

system which is applicable to the
marriage; and
(b) effect a division of the matrimonial
property;

(ii) ensure an equitable distribution of the

matrimonial property; and
(iii) take into account all the relevant
circumstances of the family groups which would
be affected if the application is granted.

The court may-

(i) allow further amendments to the terms of the

contract;
(ii) grant the order subject to any condition it may
deem just; or
(iii) refuse the application if, in its opinion, the
interests of any of the parties involved would not
be sufficiently safeguarded by means of the
proposed contract.”

51. What effect does the dissolution of an indigenous marriage have on

marriage goods? (8)

Generally, it can be stated that, on the dissolution of the marital

union, the marriage goods are either returned to the husband or
forfeited by the husband in favour of the wife's group. In some cases,
however, the marriage goods are returned in part only.

The various groups differ considerably when it comes to the return

of the marriage goods. The following factors, however, are usually
taken into account:
● the amount of blame on either side;
● the number of children born of the marital union; and
● the portion of marriage goods already delivered.

As far as the guilt factor is concerned, we can state that the party
who is to blame forfeits the marriage goods. Should the husband
dissolve the union with good reason, in other words, when the wife
is to blame, the marriage goods are (in most cases) returned. Should
the wife dissolve the union with good reason, in other words where
the husband is to blame, the marriage goods are not returned.
However it has become customary to return at least one beast to the
husband to indicate, in a concrete manner, that the marriage has
been dissolved.

Among most groups, the wife's group is allowed certain deductions

should they have to return the marriage goods. In most cases, one
beast is allowed as a deduction for every child the wife has borne.
Note that it does not refer to living children only, but to all children
the wife has given birth to, including miscarried children (Mayeki v
Kwababa 4 NAC 193 (1918)). Should the wife have had more children
than the number of marriage beasts, at least one beast should be
returned to the husband as concrete proof that the marriage has
been dissolved.

It is argued that there can be no dissolution should the wife's group

keep the full marriage goods (lobolo). If the husband has not
delivered all the marriage goods upon the dissolution of the union,
and if he was responsible for the breakdown of the marriage, he is
indebted for the balance. The converse is also true. That is, if
the wife was responsible for the breakdown of the marriage and if, at
the time of the dissolution of the marriage, the husband still had not
delivered all the marriage goods, he is not indebted for the balance.

Should the parties fail to reach a mutual agreement regarding the

marriage goods, the court may be approached for a decision. Note
that, in such a case, the court is not asked to dissolve the union. The
union is already dissolved, without the interference of the court. The
court is merely being asked to decide on the marriage goods.

The position in respect of the customary marriage is not clear. An

agreement concerning the payment of lobolo is not an absolute
requirement for the conclusion of a valid customary marriage in
terms of Act 120 of 1998. Nor does the Act refer to lobolo when
dealing with issues pertaining to divorce. The suggestion here is that
the parties make a specific point of agreeing on the fate of the
 marriage goods during the dissolution of the marriage or that the
court be approached to make a decision.

52. Name the most important implications of Section 1 of the Law of Evidence
Amendment Act 45 of 1988. (10)

- All courts may take judicial notice of indigenous law, although

they are not obliged to do so.
- Judicial notice is limited in so far as indigenous law may be
ascertained readily and with sufficient certainty. The courts
are not obliged to apply indigenous law in cases where
indigenous law is the obvious system to apply, but can’t be
readily ascertained.
- It’s not necessary for judges or magistrate’s to have any
formal or practical knowledge, or training in, indigenous law.
- Evidence about indigenous law may be submitted to the court
by the party himself. The onus is on the party or parties to
prove indigenous law in court. Places financial burden on
litigant, who must obtain the services of a witness.
- Indigenous law must to be opposed to the principles of public
policy or natural justice.

53. Discuss indigenous law as an unspecialised law with specific reference to

public law.

Indigenous law is known for its group orientation, concrete

approach, religious functions and governmental functions. Group
orientation in indigenous public law is evident from the fact that the
ruler, for instance, does not rule as an individual, but only as a
representative of members of the ruling family, who were the true
rulers. Another example is apparent from the fact that the public
takes an active part in the proceedings, which always take place in
the open.

A strong emphasis is also placed on the concrete approach. This

approach implies that more emphasis is on real and visible things.
This is evident from the fact that, for example, rights to land are
acquired in a visible, perceptible manner by demarcating and
indicating an area, and by actually using the land and bringing it
under cultivation.

There is also a strong religious focus based on the belief in ancestral

spiritual powers.

Reconciliation between the community and the ancestors is usually

accomplished by the slaughtering of an animal and having a
communal meal, especially in the case of crimes
 with a pollution effect.

Consideration must also be given to how the indigenous government

functions. In this respect the tribal traditional leader is, for instance,
not only law maker and executive official, but also judge-in-chief.

Unspecialised law is also characterised by a lack of formalities. It is,

for example, sometimes not possible to distinguish whether a
transgression is harmful to the community or to the family groups
because of a lack of categorisation between a crime and a delict.

54. Discuss mediation, judicial control and internal review as legal remedies
for subjects wronged by an administrative action of a ruler. (20)

Mediation is a solution to a dispute outside of court with the

intervention of a third party. The following principle apply:

- any objection to the administrative action of the ruler must go

before the private council for mediation, which exercises the
most control over the ruler.
- Aggrieved subject relates his complaint to a member of the
private council, who consults the ruler in secret. If it is found
that ruler the acted incorrectly he can be reprimanded and
required to offer his pardon to the subject. Cattle can be
delivered by way of reconciliation.
- Council can also act on its own against the wrongful action of
the ruler. If private council and ruler cannot come to
compromise, matter was referred to representative council. If
they did not succeed, matter was referred to people's
assembly, where it was dealt with publicly.

In the method of Judicial control the aggrieved subject does

not have to apply for internal review of ruler's administrative
action, he can approach a court of law. He can apply directly
to the Magistrate's Court or the Supreme Court to check the
administrative action of the ruler and in this regard he can
make use of several remedies. The subject can:

- apply for review of the validity of the administrative act

- apply for an interdict in which the chief is ordered to stop
the act that infringes the rights of the applicant
- apply for a mandamus whereby the chief is compelled to
execute his power

The act complained of can be apposed indirectly by raising the

invalidity of the act as a defence in a criminal case. By
instituting action, the force of the ruler's administrative action
 is not deferred. If the subject wishes a deferment, he must
specially apply for a temporary interdict.

In terms of Section 6(1) of the Promotion of Administrative

Justice Act 30 of 2000, any person may institute proceeding in
a court or tribunal for the judicial review of an administrative
action. Administrative action refers only to action taken by an
organ of state, when exercising a power, in terms of the
Constitution or Provincial Constitution, or exercising a public
power of performing a public function in terms of any
legislation, or a natural or juristic person, other than an organ
of state in terms of an empowering provision, which adversely
affects the rights of any person and which has a direct,
external legal effect.

Traditional leaders, headman and traditional authorities do

make decisions of an administrative nature likely to have the
said effects. Thus the provisions of the said Act also apply to
the administrative decisions of traditional leaders but not to
their judicial functions.

55. Indicate how the conflict between the principles of indigenous law and
fundamental rights should be dealt with. [20]

Conflict between customary law and the Bill of Rights occurs

because the Bill of Rights emphasises individual rights, whereas in
customary law the emphasis is on the group, the community, and the
individual in the context of the community. Conflict also occurs
because the Bill of Rights emphasises, as its name implies, rights,
whereas customary law emphasises duties.

The Constitution does not contain a clear answer to the question of

how this conflict should be dealt with. There are however
indications that fundamental rights have priority over customary law.
These indications are:

• Section 2, which provides that the Constitution is the supreme

law.
• Section 8(1), which provides that the Bill of Rights is
applicable to all legislation, including indigenous law.
• Section 36(2), which provides that no fundamental rights will
be limited by any law, except as provided for under Section
36(1) or any other provision of the Constitution.
• Section 39(1), which requires the courts to promote the values
that underlie an open and democratic society based on human
dignity, equality and freedom in interpreting the Bill of Rights.
 • Section 39(2), which provides that, in interpreting any law and
applying and developing common and indigenous law, the
courts must have due regard for the spirit, purport and objects
of the Bill of Rights.
• Section 36(1), which allows the rights in the Bill of Rights to be
limited by "law of general application", provided that such
limitation is reasonable and justifiable in an open and
democratic society.

In the event of conflict, the fundamental rights that are in conflict

must be balanced against one another.
Conflicts between customary law and the bill of fundamental rights
cannot be solved through the Constitution alone: means outside the
Constitution should also be looked at.

56. In indigenous law there are certain crimes that can defile the community.
Evaluate this statement. (5)

In African customary law infringement of communal interest

sometimes takes the form of defilement of the community. Examples
of polluting crimes are “offences of the blood” such as assault and
homicide. It is also believed that infanticide and abortion generate a
ritual heat that keeps away the rain. Incest and also contempt of the
ruler, are considered defiling. Not only is punishment imposed, but a
meal of lustration and conciliation is ordered as well. Cattle paid as
a fine are generally slaughtered at the court. All those present must
join in the meal. In this way the offenders are visibly reconciled with
the community.

57. Discuss the implications that could follow should the principle of patrilineal
succession be abolished. (15)

According to the principle of equality there can be no argument that

it is discriminatory that a chief's daughter cannot succeed if she is
the first-born. According to the principle of primogeniture the first-
born must succeed, regardless of whether they are male or female.
The discriminatory element in the succession system is therefore the
principle of patrilineal succession. This means that only males in the
patrilineage can succeed. If a woman is allowed to succeed, it would
mean that her children cannot succeed, as they are not members of
the patrilineage. In a patrilineal system of descent reckoning, a
daughter belongs to the patrilineage of her father, but her children
belong to the patrilineage of her husband.
 A female head cannot perform the political rites in honour of the
ancestors, as according to belief these rituals can be performed only
by male members of the male line of descent.

Gender discrimination is not limited to succession to political

offices. If women would be allowed to succeed according to the
African customary system of succession, they must fulfil the
functions of a successor. This means that they must support and
maintain the members of the household and perform rituals during
sickness and death. This will bring about fundamental changes to
the status of women, and indeed to the "traditional" way of
communal life.

It is not clear whether in this regard fundamental rights should be

applied horizontally only. Even if horizontal application is assumed,
strong arguments can be advanced against the application of the
equality clause in the case of traditional political succession.

58. Explain how the Traditional Leadership and Governance Framework Act
41 of 2003 has provided for the resolution of succession disputes in
indigenous law. (10)

Whenever a dispute concerning customary law or customs arises

within a traditional community, or between traditional communities
or other customary institutions on matters arising out of the
implementation of Act 41 of 2003, members of such a community and
traditional leaders within the traditional community or customary
institution concerned, must seek to resolve the dispute internally
and in accordance with customs.

If the dispute cannot be resolved internally, it must be referred to the

relevant provincial house of traditional leaders, which house must
seek to resolve the dispute in accordance with internal rules and
procedures.

If the provincial house of traditional leaders is unable to resolve the

dispute after having consulted -

- the parties to the dispute; and

- the provincial house of traditional leaders concerned.

Section 22 of the Act establishes a Commission known as the

Commission on Traditional Leadership Disputes and Claims. This
commission may decide on any traditional leadership dispute and
claims arising in any province. Section 25(2)(i)(ii) authorises the
commission to investigate several traditional leadership issues,
 including those that relate to succession to traditional leadership
disputes.

Section 25(3)(a) requires the commission to consider and apply

customary law and the customs of the relevant traditional
community at the time the events occurred when considering a
dispute or a claim. When the claim considered by the commission is
in respect of a kinship, or senior traditional leadership or
headmanship, the commission is required to be guided by the
customary norms relevant to either the establishment of a kinship or
senior traditional leadership or headmanship.

59. Discuss indigenous law as unspecialised law with specific reference to the
betrothal. [20]

60. What is meant by specialisation? Indicate the similarities between

specialised and unspecialised legal systems. (10)

Refers to the distinction of certain functions or a definition of certain

activities. It implies the separation, differentiation, division,
distinction, classification delimitation, definition or individualisation
in respect of time, activity, functions, interests, duties, knowledge
and conceptions, including the isolation or abstraction of ideas and
concepts.

Similarities between specialised and unspecialised legal systems:

- the relations governed by law are the same. They comprise relations
between organs of authority and subjects and relations among
groups and individuals themselves.
- The means by which the law is transferred from one generation to
another is basically the same.
- A transgression of the law and legal rules will have certain, specific
consequences for the transgressors.

61. Compare the legal requirements for a traditional customa;ry marriage,

a customary union and a customary marriage. [10]

62. Outline the distinction between general property and house property. (8)
General property:
- Belongs to the household as a whole and is controlled by the family
head and each member of household shares in the property
according to status within the group.
- Local magistrate can transfer control to another male relative if there
was gross mismanagement .
- General property includes:
- property of family head’s mother’s house to which he has
succeeded.
- property which the family head has earned by his occupation.
- land allocated to the family head by the tribal authority and
which has not been allotted to a particular house.
- On the death of the family head the control of general property
passes to the head’s general successor.

House property:

- Property belongs to each separate house and is controlled by head

of the house.
- In disposal of house property the head of the house is morally
obliged to consult his wife of the house and the house successor.
- House property includes:
- earnings of family members, including earnings of midwife
and medicine woman.
- livestock which is allocated to a particular house from the
general property.
- property given to a woman on her marriage, such as
household utensils and a certain beast is given to her during
her marriage -> ubulungu beast.
- marriage goods (lobolo) received for daughters of the house.
- compensation for the wife’s adultery and seduction of any of
the daughters.
- yields from the fields belonging to the house.
- land allocated to a house for dwelling and cultivation
purposes.
- On the death of husband the control passes to the house successor,
usually the wife’s eldest son.

63. Zwai (a male aged 26) and Puleng (a female aged 23) want to enter into a
customary marriage. According to the law and custom of both Zwai and
Puleng, Zwai has to deliver lobolo to Puleng’s family. Puleng, however,
refuses to marry in terms of a lobolo agreement and appeals to section 9
of the Constitution of the Republic of South Africa, 1996.

(a) In this case, what specific constitutional rights are in conflict?

 The individual right to practise the culture of one’s choice (i.e.
section 30 of the Constitution, 1996).
The group right to practise the culture of one’s choice (i.e.
section 31 of the Constitution, 1996).
The right to equality (i.e. section 9 of the Constitution).

64. Discuss indigenous law as unspecialised law with specific reference to the
law of marriage.

One of the characteristics of indigenous law which is strongly

evident in the indigenous marriage is group orientation. The
indigenous marriage is a relationship which concerns not only the
husband and the wife, but also the respective families. Both family
groups participate not only in the matter of the choice of the
marriage partners, but also in the preceding negotiations, the
agreement, the transfer of the marriage goods and the ceremonies.
Without their participation, the marriage cannot take place.

Another characteristic of indigenous law which is strongly evident in

the indigenous law of marriage is the emphasis which is placed on
the concrete. The indigenous marriage is accompanied by the
delivery of marriage goods (commonly known as lobolo) by the
bridegroom’s agnatic group to the bride’s agnatic group. One of the
requirements of indigenous marriage is the transfer of the bride by
her family group to the man’s family group. the marriage is effected
only once the transfer of the bride has taken place. Also, in KwaZulu-
Natal, there is the additional requirement of a public declaration, by
the bride to the official witness, that the union takes place with
her consent.

A strong religious focus is also evident in the indigenous law of

marriage. One of the features of the traditional indigenous marriage
is the procreation of children. In this regard, male children are of vital
importance. This characteristic is specifically related to the belief in
ancestral spirits. This belief can be summarised as follows: the
ancestral spirits live in a spirit world that is similar to the conditions
of the living on earth. The living must care for the ancestral spirits by
continually making various sacrifices to them. The ancestral spirits,
in turn, care for their living kin by ensuring their prosperity and
wellbeing. Because man is mortal, he must procreate children in
order to ensure that he will be taken care of once he dies and passes
over to the world of the ancestral spirits. The indigenous law of
marriage therefore also allows for substitution if one of the spouses
cannot procreate a successor.
 The marriage of people with unspecialised or less specialised legal
systems is potentially polygynous - that is, one man can be involved
in a marital union with more than one woman at the same time. The
implications are that there is no longer only one house but many
houses, each of which constitutes a household of which the
husband is the head. Also, because of the polygynous nature of
marriage, a married woman is not permitted to enter into a further
marriage.

The role of kinship is of paramount importance in indigenous law. In

an indigenous marriage, the man and the woman must not be related
to each other within the prohibited degrees of kinship. In addition,
where one of the spouses is substituted, a kin member of the spouse
concerned has to stand in for the spouse.

In unspecialised legal systems there is no strong emphasis on the

aspect of time. The precise moment at which any given marriage
took place is not as important as the fact that the marriage has
indeed taken place.

65. Discuss rape as a crime in indigenous law.

Rape occurs when a man uses violence to force a woman to have

sex with him without being married to him. Sex with a girl who is not
sexually mature is punishable as rape, even if there is no violence.
Only a man can commit rape, not a woman. The use of violence is a
requirement for rape. Woman therefore has to offer resistance,
unless she is threatened.

If, in Northern Sotho law, it is proven that the woman was thrown on
the ground or that she was constrained and that her clothes were
torn, while she was screaming or was offering resistance in any
other way, these are sufficient grounds for the attacker to be found
guilty of rape. Woman must have reported the matter to the head of
her family immediately, however.

Some groups require penetration for rape to have taken place. Such
is the case with the Tswana and Ndebele. If there’s no penetration, it
is regarded as assault.

Rape is a serious crime and is regarded as unlawful and intentional

harm to the woman’s body and honour. It also harms the honour of
the agnatic group.

A person who caught a rapist in the act with his wife, daughter or
sister could give him a severe thrashing without being punished.
Killing and assault of a rapist were regarded as lawful means of self-
help that excluded the unlawfulness of the filling and the assault.
Killing and assault must also be seen as forms of satisfaction by the
agnatic group. Rape may not be tried by an African customary court
as a crime, but only as a delict.