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Question 1 (Marks: 20)

Lawyers and students alike often fail to understand customary law, the reason being that they do
not appreciate that the premises on which it is based are different from other legal systems. For
many people, however, customary law is the most important law in their lives, as it has an effect on
how they live, and it controls various areas of their lives such as: their marriages, their property,
and their right to inherit. African customary law may, however, sometimes be at odds with the
Constitution of South Africa, 1996.

With the statement above in mind, prepare a comprehensive memorandum discussing the
following:

Q.1.1 Highlight the essential features of customary law that distinguish it from the (5)
common law.

Q.1.2 Make a distinction between the following two concepts: living customary law and (5)
official customary law.

Q.1.3 With reference to relevant sections of the Constitution: (10)

• Advise on how clashes or conflicts between the substantive principles of
customary law and fundamental rights in the Constitution should be resolved.
• Give one example of a case that reflects how a conflict between the principles
of customary law and fundamental rights has been resolved in reality.

Question 2 (Marks: 20)

Thobeka falls madly in love with Vukani and the two would like to start a family together. Vukani,
however, is currently over indebted and cannot afford to pay lobola for Thobeka. Thobeka and
Vukani decide that at dusk, she (Thobeka) should leave her family homestead and go to Vukani’s
homestead in the nearby village. The parties agree that as soon as they can afford it, they will start
marriage negotiations. They start living together and soon they have four children. Within those
years they have also managed to accumulate a large heard of livestock. Between the families
however, marriage negotiations never actually take place and after five years of waiting, Mzilikazi
follows Thobeka and demands that Vukani pay damages in the amount of R150 000. Vukani is
stunned by the figure and argues that he has complied with the principles of ukuthwala.

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Do you think Mzilikazi is justified in demanding damages from Vukani? Provide advice to Vukani on
the following:
• Explain whether the essential features of ukuthwala have been fulfilled or not in his case
with Thobeka (8 marks);
• Assess whether Vukani has committed a delict (Hint: Refer to when ukuthwala gives rise to
delictual liability (3 marks);
• Discuss whether or not in this case Mzilikazi is justified in demanding damages and what type
of compensation can be awarded (3 marks);
• Discuss the complexities around ukuthwala and constitutional dictates. In your answer, refer
to the dangers (if any) of abusing cultural practices such as ukuthwala (6 marks).

Question 3 (Marks: 20)

Ngoni aged 32 and his girlfriend, Thembi aged 17 want to get married. Thembi lives in their
hometown of Pretoria with her father (the mother passed away when Thembi was 12 years of
age) and Ngoni worked in Johannesburg. The representative fathers, of Ngoni and Thembi
respectively, concluded an agreement in terms of which Ngoni had to deliver seventeen head of
cattle and R30 000 as lobolo to Thembi ’s family. Ngoni delivered the lobolo as agreed upon.
Shortly thereafter Thembi , is given permission to live with Ngoni.

Apply the requirements for a valid customary marriage in terms of the Recognition of Customary
Marriages Act 120 of 1998 to the facts.

Your answer must include a discussion of:

• Capacity of the spouses;

• Consent of the parties;
• The requirements for a valid customary marriage; and
• Whether or not the marriage between Ngoni and Thembi there is a valid customary
marriage.

END OF PAPER

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