IND2601

Assessment 1
Kymie van Niekerk
Student nr. 17954754

Question 1

i) In this scenario, Merry and Thabiso wished to enter into a customary marriage
after 15 November 2000. The marriage requirement of negotiation and celebration in
accordance with customary law is affected by the legal question. Negotiations have
taken place, but the celebration was postponed and did not take place before the
accident, which leaves the question of whether or not this relationship can be
considered as a customary marriage.

ii) In many cultures, the delivery of a bride to her marital family in a celebration is
considered an important aspect of a customary marriage. However, in some
jurisdictions, failure to comply with this requirement does not necessarily invalidate a
customary marriage. Instead, courts may look to other evidence to determine
whether a customary marriage was validly entered into.
For example, in the case of Gumede v President of the Republic of South Africa
2009, the Constitutional Court of South Africa held that the failure to comply with
certain formalities, such as the delivery of the bride, did not necessarily render a
customary marriage invalid. The court emphasised that the validity of a customary
marriage should be determined by looking at the essential requirements of
customary law, rather than strict adherence to formalities.

Similarly, in the case of Kebelo v Mokolobate, the High Court of Botswana held that a
customary marriage could be valid even if the delivery of the bride did not take place.
The court emphasised that customary law was not static and that the requirement of
bride delivery could vary depending on the particular culture and circumstances of
the parties involved.

Another relevant case is the case of Mthembu v Letsela and Others, which was
decided by the High Court of South Africa in 2014. In this case, the court held that
the essential requirements for a valid customary marriage are agreement between
the parties to be married, the payment of lobola (bride price), and the handing over
of the bride to the groom's family. However, the court also noted that the handing
over of the bride is not an essential requirement in all customary law traditions, and
that the essential requirements may differ depending on the specific tradition that is
applicable.
In the case of Southon v Moropane 2014, the court decided that the handing over of
a bride can be done informally when her family allows her to live with her husband
and they live as husband and wife after lobola has been paid.
This ruling is highly applicable to Merry and Thabiso’s situation. Merry can therefore
also argue that she was handed over to Thabiso as his wife in an informal manner
since she has lived with him for 15 years, and continued to live with him after the
lobola negotiations were concluded.

Based on the first three cases, Merry may also argue that the failure to deliver her as
a bride does not necessarily invalidate her customary marriage. She may need to
provide evidence of other customary practices that were followed in her particular
culture and circumstances, such as the payment of lobola or the exchange of gifts.
She may also need to show that she and her partner intended to enter into a valid
customary marriage, even if certain formalities were not followed.

iii) The Recognition of Customary Marriage Act 120 of 1998 provides in Section 4(9)
that customary weddings contracted in South Africa shall be registered; however, the
validity of a customary marriage shall not be affected by the non-registration of a
customary marriage.

Question 2:

The principles of succession in original customary law in South Africa vary

depending on the specific culture or ethnic group. However, there are some general
principles that are shared across many of these traditions.

1. Succession only occurs after a predecessor passes away.

2. In the original indigenous legal system, succession was entirely based on
status.
3. There was no such thing as a will that allowed for the complete disposal of
property.
4. The successor inherited both the deceased's debts and their possessions.
5. Only men, particularly those of patrilineage, typically succeed in status.
6. Succession is based on the primogeniture principle, which states that a man's
firstborn son will replace him when he passes away.
7. Succession is a responsibility that cannot be renounced or surrendered.
8. Male ascendants and male descendants were given preference over their
male relations, respectively.
9. Only if the usual rules apply can disposal among the living be feasible.
Question 3

i) The statement is correct. Section 2 of the Traditional Leadership and Governance

Framework Act 41 of 2003 does provide that the recognition of traditional
communities is conditional upon compliance with certain standards.

In particular, the section sets out a number of criteria that must be met for a
traditional community to be recognized as such. These include the existence of a
distinct community with its own cultural and social practices, the ability to trace its
history and traditions, and the presence of a traditional leader or leaders who are
recognized as such by the community.
In addition, the section also requires that recognized traditional communities must
comply with certain standards of governance and administration, including principles
of democracy, accountability, and transparency.

Overall, the intent of the Act is to provide a framework for the recognition and
support of traditional communities, while also ensuring that they adhere to certain
standards of governance and accountability. This is in line with the broader principles
of democratic governance and the rule of law.

ii) The statement is not entirely accurate. When the Constitution of South Africa of
1996 came into effect, it did not automatically discontinue the courts of traditional
leaders. However, it did bring about significant changes in the status and role of
traditional leaders and their courts.

Section 211 of the Constitution recognizes the institution of traditional leadership as

an integral part of the country's system of governance. However, it also provides that
traditional leadership and its role must be consistent with the principles of democracy
and the Constitution. This means that traditional leaders and their courts are subject
to the same legal and constitutional principles as other institutions of governance in
the country.

In practice, this has meant that traditional courts have had to adapt to the new
constitutional dispensation, including by adhering to principles of fairness,
impartiality, and the rule of law. In some cases, traditional courts have been
abolished or reformed to ensure their compatibility with the Constitution
.
So, while it is true that the Constitution of South Africa brought about significant
changes in the status and role of traditional leaders and their courts, it did not
automatically discontinue these courts. Rather, it provided a framework for their
continued existence and adaptation to the new constitutional order.

iii) The statement is partially inaccurate. In many African customary legal systems,
there is no concept of criminal liability in the modern Western sense. However, this
does not mean that children are completely exempt from responsibility for their
actions.

In some African customary legal systems, children may be held accountable for their
actions through a system of traditional justice or customary law. This may involve
sanctions such as fines, corporal punishment, or community service. However, these
sanctions are generally designed to educate and rehabilitate the child, rather than
punish or stigmatise them.

It is important to note that the treatment of children under African customary law
varies widely depending on the specific cultural and legal traditions in question. In
some cases, children may be considered to be under the authority and responsibility
of their parents or other family members, and any wrongdoing may be addressed
within the family or community.

Overall, while the concept of criminal liability may not exist in the same way under
African customary law as it does in modern Western legal systems, children may still
be held accountable for their actions under traditional justice systems or other
customary legal frameworks.