LYLE GABRIEL - 51266423

IND2601 – ASSIGNMENT 1

1. Section 211 of the Constitution gives a clear and unambiguous recognition of customary law
and its place within the constitutional order. There are four clear implications on the
recognition of customary law from section 211.

Firstly, section 211 requires that where applicable courts should apply customary law, which
also means that all courts are required to recognize customary law. Secondly, it implies that
customary law will still need to be subject to the Bill of Rights. This is important so that even
though there is recognition and a requirement to apply customary law where applicable, it
doesn’t subvert the spirit of the Constitution by contradicting the provisions of the Bill of
Rights. Thirdly, section 211 implies that the recognition and application of customary law is
subject to the specific legislation which covers the matter. Lastly, section 211 implies that
the applicability of customary law is at the discretion of the courts , which should be
practiced with due regard for the general principles of choice of law.

2. In South Africa there are different legal requirements for customary unions and customary
marriages depending on the date the marriage was entered into or for instance which
geographical region the union is being entered in. Because of this there are differences in
the legal requirements for customary marriages and customary unions, but there are also
similarities in the legal requirements.

A key difference between the legal requirements for a customary marriage and a customary
union is in the principle and application of consent. In a pre-November 2000 customary
marriage, the legal requirement is that there should be consensus between the two family
groups about the two individuals to be married, and the marriage goods to be delivered.
Contrasted to a customary union (both inside and outside KZN), whereby the consent is
required more directly from the individuals involved in the union. So that would be the
bride, the bridegroom and their guardians/fathers were they still considered minors.
Furthermore, in a customary union the bride’s consent has to be communicated by public
declaration to an official witness. This difference is eliminated when considering customary
marriages entered into post-November 2000. There, the legal requirement is for the two
 prospective spouses to both directly consent to be married to each other under customary
law.

Another difference between customary unions and marriages is that in a pre-November

2000 customary marriage there is a legal requirement that man and woman must not be
related to one another within the prohibited degrees of kinship. Customary unions have no
such absolute legal requirement. Furthermore, in a customary marriage pre-November
2000, the legal requirement is that there is a recognized transfer of the bride to the man’s
family group. Generally this is perceived not as ownership over the bride, but rather
guardianship. So the man’s family would take over guardianship of the bride. This is
generally similar to customary unions that take place outside of KwaZulu Natal.

Both customary unions and customary marriages require consensus on marriage goods to be
delivered. Customary marriages taking place post-November 2000, requires the prospective
spouses to both be over 18 years old, and require both prospective spouses to consent to
being married to the other. This marriage should be negotiated and celebrated according to
customary law.

3. a) In African customary law, the traditional leader is the organ of authority who acts as the
author of the determination. This means the traditional leader makes determinations which
creates or amends legal relations between subjects. For the traditional leader’s
administrative determination to be valid it must meet the formal requirements relating to
the announcement of the determination, the content of the determination and the correct
procedures regarding the determination.

In this instance, the traditional leader followed procedure in having the messenger convey
the determination directly to Phephisi. The content of the determination was clear and
understandable, in that Phephisi’s family had to vacate their homestead to an area
designated by the traditional leader. This was directly related to the exercise of the
traditional leader’s administrative function, as he wanted to allocate this land to Mutase
who wanted to further his personal farming ambitions.

In African customary law, a traditional leader may not issue determinations that does not
serve the purpose of furthering the public or communal interest. Every administrative action
must be attached to a very specific objective which fulfils the general purpose of advancing
the aims of the public/community. Where Rori’s determination is invalid is in the direction of
an authorised action for an unauthorised purpose, namely, the removal of Phephisi’s family
so that Mutase, a personal friend of Rori, can pursue his own personal goals, not advancing
the public interest.

b) Phephisi has several legal remedies available to him under customary law to oppose the
traditional leader’s actions. Firstly, mediation is a legal remedy which an out of court
attempt at resolution with the help of a mediator. In customary law, this mediation takes
place with the private council, which exercises the most power of the actions of the leader.
Judicial control according to the African customary law, allows for Phephisi to oppose the
administrative action by using the invalidity of the act as a defense in a criminal case.
Internal review according to the common law, allows Phephisi to request a higher authority
in the same hierarchy as the traditional leader to review the administrative action. Judicial
control according to the common law, allows Phephisi to approach a court directly to
evaluate the validity of the traditional leader’s administrative action, or to seek an interdict.
Finally, Phephisi can request a judicial review of the administrative action

c) I do not believe that Phephisi and his family can be legally banished from the area. If
Phephisi were to fail to comply with the removal order, he could, if criminal charges were
instituted against him, use the defence that the administrative action being imposed is
invalid. Should the matter be put to the test in a court of a law, due to Phephisi’s non-
compliance with the determination, then I believe the court would find the removal order
fails the test for reasonableness on the basis that the order to immediately vacate land
unduly infringes on the rights and freedoms of Phephisi and family. Further, the fact that the
land is intended for a personal friend of the traditional leader means that there exists some
unfair discrimination between individuals and groups. Thus, I do not believe it is legally
possible to enforce the removal order, or the banishment from the area of Phephisi and
family.