LCP4804/201/1/2023

Tutorial letter 201/1/2023

Advanced Indigenous Law
LCP4804
Semester 1
Department of Public, Constitutional & International
Law

IMPORTANT
INFORMATION:
This tutorial letter contains important information
about your module.

PLEASE READ THIS TUTORIAL LETTER IMMEDIATELY

Open Rubric
TABLE OF CONTENTS

1 MEMORANDUM FOR BOTH ASSIGNMENTS

1.1 Feedback on Assignment 01
1.2 Feedback on Assignment 02
2 EXAM INFORMATION
3 CONCLUSION

Dear Students

This tutorial letter contains the memorandum for both assignments and information about
the exam.
Read this tutorial letter carefully. It contains commentary on Assignment 01 and Assignment
02 for the First semester of 2023. It further contains information on the forthcoming May/June
2023 examinations. We hope that the feedback on Assignments will provide an insight into
what is expected of you in the examinations. We trust that you found the assignments
stimulating, and that you are coping with the workload.

1. Feedback on Assignment 01

Assignment 01 was relatively simple and should not have given you too much trouble. This
was a MULTIPLE choice questions. You had to mark either (1), (2), (3) or (4) for each of the
questions on the Unisa Mark-reading sheet. You did not have to give reasons for your
answer:
The feedback on Assignment 01 follows:

QUESTION CORRECT ANSWER

1 3

2 1

3 3
 4 3

5 2

6 3

7 3

8 3

9 4

10 4

2. Feedback on Assignment 02

Question 1.

Make sure that you can analyse the case as follows:

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

Legal Question:

An Appeal ;Whether the non-observance of the Xitsonga customary law could have had a
bearing on the validity of a customary marriage at all.

Reason for judgment:

Section 7(6) Recognition Act was only concerned with matters of matrimonial property, and
had nothing to do with the validity of the customary marriage which was regulated by
section 3 of the Act.

The decision of the court

The SCA held accordingly that the non-observance of the section 7(6) did not affect the
validity of the customary marriage. At most, such non-observance left the customary
marriage out of community of property.
The court upheld the appeal.
 2. Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC)
Make sure that you can analyse the case as follows:

This case turned in part on the interpretation of sections of the RCMA.

The legal questions answered by the court:

1. Whether section 7(6) of the RCMA did indeed introduce a new requirement of
validity by requiring the husband to seek his first wife’s consent;
If not, whether such consent was required in Xitsonga
customary law; and
2. whether, if such consent had not been furnished, the court ought to develop the
customary law to insert this requirement.
Reason for judgment:
There is overwhelming and undisputed evidence to the effect that before the second
marriage, Xitsonga custom followed by the community, required consent of the first wife for
a subsequent marriage to be valid, both Ms Ngwenyama or the second respondent did not
dispute it, therefore the court could not reject same.

Decision:
The constitutional court held that the consent of the first wife in a polygamous marriage is a
requirement for subsequent marriage of her husband to be valid, though RCMA is silent on
the issue.

Question 2

Jack and Jill have been married for over five years under customary law. John is considering
marrying another wife. He wants to know if Jill must give consent before he can conclude a
further customary marriage. As a law student, please advise him. Refer to the relevant case
law.

According to history of non recognition of indigenous people, a notion of customary marriage

is one that has always been viewed as potentially polygamous in nature (Hyde v Hyde and
Woodmanse, 1892-1893. 10 SC 346) and is now regulated by Recognition of Customary
Marriages Act of 2000

Recognition of Customary Marriage Act deals with customary law as envisaged by section
211(3) of the Constitution and does not contain a requirement for the first wife’s consent to
the subsequent marriage of the husband. Instead, section 6 of RCMA affords “full status
and capacity” to a wife in relation to the patrimonial consequences only. However, RCMA
provides for legal requirements for a valid customary marriage concluded before and after
15 November 2000.

Judge Moseneke in Gumede fortified RCMA when he stated that, beyond the Constitution,
RCMA is the starting point whose purpose is to transform spousal relations, entrenching
equal dignity and capacity in the marriage enterprise.

Like in the case of Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC) , in the
given set of facts, the issue is that of consent of an existing wife in a customary marriage to a
subsequent marriage of the husband.
Ms Mayelane and Ms Ngwenyama both claimed to be married by Xitsonga customary law
to one Mr Moyana, now deceased. After Mr Moyana’s death Ms Mayelane, the first wife,
challenged the validity of Ms Ngwenyama’s marriage on the ground that the RCMA
required a husband to obtain the consent of his first wife to contract a further customary
marriage, and that Mr Moyana had not obtained such consent
In order to determine the content of the claim, the court considered the constitutional
guarantees of equality and dignity in terms of both sections 9 and 10 of the
Constitution and took judicial notice of customary law in terms of Law of Evidence
Amendment Act of 1988, that, it is not written but past down to generations. While
noting the decision in Hugo, the court contended that the right to equality is the
cornerstone of constitutional democracy. In Hugo, the court reasoned it as follows:

“At the heart of the prohibition of unfair discrimination lies a recognition that the
purpose of our new constitutional and democratic order is the establishment of a
society in which all human beings will be accorded equal dignity and respect
regardless of their membership of particular groups.”

On the other hand, Curran and Bonthuys (2004) argue that while there are statutes
that seek to empower women married according to customary law, ‘living’ customary
law continues to oppress them. That is, official law and social practice are not always
compatible and may, in some instances, clash with one another as it happened in
Mayelane matter where people from the same communities gave different accounts of
their own custom and traditions.

The constitutional court held that the consent of the first wife in a polygamous marriage is a
requirement for subsequent marriage of her husband to be valid, though RCMA is silent on
the issue.

Considering the decision in Mayelane above and pending clarity on issue of ethnicity, Jack
will be required to obtain consent from Jill to marry the new wife, failing which, the new
marriage will be deemed invalid.

Question 3

In Alexkor Ltd and Another v Richterveld Community and Others 2003 (12) BCLR 1301 (CC),
the Precious Stone Act and the subsequent laws, stripped the community of the rights to
ownership. The CC then, outlined the unfortunate reality that befell the customary law that
saw lack of development during apartheid period.
As a consequent, the Constitutional Court enjoined Africans not to interpret customary law at
this constitutional era with the common law lens anymore, but with reference to indigenous
normative values, thus elevating its legal status to that of common law. Despite the flexible
and evolving nature of customary law in keeping with changing lives of the people it
governed, the common law did not recognise their culture and customs. The idea therefore,
is to allow Africans to refer to their indigenous definition of customary law to prove their title
in their land. The Constitution is clear in terms of the provisions of section 211(3) that it
sought to undo the injustice perpetrated by the repugnancy principles of apartheid legislation.

In Pilane and another v Pilane and others 2013(4) BCLR 431 (CC) , The judgment asserts
the right of the meeting organisers to redefine and assert their customary identity as a
separate clan, the secessionists who had gathered to discuss breakaway. The court held that
true nature of customary law is a living body of law, active and dynamic with inherent
capacity to evolve in keeping with changing lives of the people whom it governs. The court
decided that democracy and accountability is strengthened by allowing opposing voices to
be heard. In CC, majority said that in the functioning democracy, the core constitutional rights
expression , association and assembly apply to all law , including customary law. In the main,
the court directed all spheres of government to treat African customary traditions and
institutions as heritage to be natured and preserved for posterity , particularly in view of the
many years of distortion and abuse under apartheid regime.

Question 4.

NB: Here you were required to first CHOOSE one concept and then apply the given
philosophy to the chosen concept.

Ukufakwa entails a situation where a relative of a woman’s father, namely, brother, uncle,
cousin, nephew, you name it, takes the responsibilities of the father and ensures that the
customary traditions and ceremonies related to the initiation and/or marriage of the father’s
daughter are carried out as if the relative himself was the father. This entitles the relative to
a pro rata portion of the value of the lobolo goods expected from the marriage goods
deliverable when the daughter gets married or received as fines imposed as a result of
delicts committed on that daughter.

The relative thereby gets entitled to such portion as of right, directly from its source (that is,
as the goods are identified for delivery as lobolo goods the relevant portion already
belongs to the relative. This is to say, that portion never starts belonging to the father from
the beginning and the father does not have access to it. To the extent of this portion, the
relative becomes the father of the daughter in his own right. He does not have to claim the
portion from the property of the father. It already belongs to him.

That is why if such goods are never delivered for whatever reason the relative does not
have a claim against the father. He was never going to receive the goods from the father.
In such a case the relative also suffers his share of the nothing received. However, the
relative remains entitled to the portion if the goods are eventually received from the
marriage g o o d s of any subsequent daughter even if he never contributed to the
ceremonies of that other one.

The features of ubuntu involved in ukufakwa are:

Communal living is revealed in that relatives are a family and members of one home. They
share the joys of unity as well as the pains that go with it. Nobody’s nakedness should be
exposed. In the same vein no one should be enriched at the expense of another. It is our
home, these are our children. We must bring them up for better or for worse.

Shared sense of belonging is also revealed. No one belongs alone, nor does anyone enjoy
wealth alone or suffer poverty alone. Umuntu ngumuntu ngabantu/motho ke motho
kabatho.
From the understanding of ukufakwa you can easily understand on your own more
concepts by studying from the following sources:

Study Guide and Rautenbach Introduction to Legal Pluralism, 4th (ed) ; Himonga C
& Nhlapo T African Customary Law In South Africa Post-Apartheid and Living Law

Perspectives (2014)

2. EXAM INFORMATION

The 2023 May/June examination will be assessed online. It is an open book

exam paper consisting of short and long questions, No multiple choice
questions. Students are cautioned against coping the contents of the study guide
(or any relevant material) verbatim. The University’s rules and procedures
relating to plagiarism will apply.

NOTE THE FOLLOWING CASES:

The requirements for a valid customary marriage

Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another
1998 (2) SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867
(SCA) Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and
Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC)

The requirements for entering into or celebrating a customary marriage

Mabuza v Mbatha 2003 (7) BCLR 43 (C) Mabena v Letsoalo 1998 (2) SA 1068 (T)
Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008)
(unreported), Motsoatsoa v Roro All SA 324 (GSJ), and Fanti v Boto and Others 2008 (5)
SA 405 (C)
The requirement of gender equality
Bhe cases (Bhe v The Magistrate Khayelitsha 1998 (3) 2004 (1) BCLR 27 (C), Bhe v The
Magistrate Khayelitsha; Shibi v Sithole; Human Rights Commission v President of
Republic of South Africa 2005 (1) BCLR 580 (CC)),Nwamitwa v Philia and Others 2005 (3)
SA 536 (T) ; Shilubana cases (Shilubana and Others v Nwamitwa 2007 (2) SA 432 (SCA)
and Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC). Shilubana and Others v
Nwamitwa 2008 (9) BCLR 914 (CC).

The nature of post-apartheid customary law

Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301
(CC)Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC)
 2. EXAM INFORMATION

The 2023 May/June examination will be assessed online. It is an open book

exam paper consisting of short and long questions, No multiple choice
questions. Students are cautioned against coping the contents of the study guide
(or any relevant material) verbatim. The University’s rules and procedures
relating to plagiarism will apply.

NOTE THE FOLLOWING CASES:

The requirements for a valid customary marriage

Mthembu v Letsela and Another 1997 (2) SA 936 (T), Mthembu v Letsela and Another
1998 (2) SA 675 (T) and Mthembu v Letsela and Another 2000 (3) SA 867
(SCA) Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA) and
Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC)

The requirements for entering into or celebrating a customary marriage

Mabuza v Mbatha 2003 (7) BCLR 43 (C) Mabena v Letsoalo 1998 (2) SA 1068 (T)
Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008)
(unreported), Motsoatsoa v Roro All SA 324 (GSJ), and Fanti v Boto and Others 2008 (5)
SA 405 (C)

The requirement of gender equality

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

The nature of post-apartheid customary law

Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301
(CC)Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC)
a human being derives his/her humanity from other humans. Life is shared. No child must suffer
because of the condition of their parents, but must experience the same upbringing as others. To be
meaningful your prosperity must positively influence the condition of your family.

Group solidarity: Your brother’s problem is your problem. His shame is your shame. If he fails and gets
despised, you are also associated with that failure. If your brother’s daughter gets disgraced at her
marriage home for falling short of what was expected, her father and his relatives get disgraced more. If
she is Ms Khumalo, all her relatives are Khumalo. Nobody can afford to let that name go down. An injury to
one Khumalo is an injury to all Khumalos.

Reciprocity: The good that you do will be done to you (izandla ziyahlambana – the hands wash each
other). There is no permanent loss. What is paid out will be paid back. One hand washes the other.
Nobody should be reluctant to help others because the others will also be pleased to help them in future. A
good deed is an investment.

Collective ownership of assets: Brothers belong to a home which is the real owner of their productive
activities. This is a Khumalo home to whose growth and development all the Khumalos can and must
contribute. After all, Khumalo’s cattle, are the cattle of the Khumalos. All Khumalos claim, these are our
cattle (zinkomo zakuthi). Cattle are a collective Khumalo fund. What I pay out is paid out from the
Khumalos’ fund (albeit administered by me), and what I receive is received by into the Khumalo’s fund. Our
individual and collective efforts are directed at upholding this name, which is who we are. The daughter’s
ceremonies are still financed by the Khumalo home, regardless of the particular individual who is the father
or his brother.

All these features and many more form part of the ukufakwa institution which urges relatives, and by
extension humans, to maintain brotherhood through the sharing of joys and pains for their collective
good. This is what ubuntu is all about – to live your life selflessly and for others, who also live theirs
selflessly for you, and for the world. In ubuntu we see rules of good living.

Ukwethula: a custom associated with provision of lobolo whereby an obligations is imposed upon a junior
house to refund lobolo which may have been taken from a senior house to establish a junior house.

Isondlo: a form of payment or renumeration by a natural guardian of a child to a person who takes care of
the child. When the natural guardian wishes to claim his or parental responsibilities or any right that may
accrue as a result of the child, he or she first has to settle this debt.

Ukungena: a custom whereby a widowed woman automatically becomes her brother in law’s wife, or is
regarded as inherited by her brother in law or even another near male relative is given access to the woman
in order to father children on behalf on the widow’s deceased husband
 2 EXAM INFORMATION

The 2023 May/June examination will be assessed online. In other words, there will be no
venue- based examination. Your examination mark, out of 100, will be adapted to a mark out of
80%. Your year mark out of 20% (i.e. your assignment mark) will be added to your examination
mark out of 80% to get to your final mark for this module. Remember, you have to obtain a
subminimum of 40% in the examination before your year mark out of 20% (your assignment
mark) will be taken into account.

The exam paper consists of short and long questions. There are no multiple-choice questions.
The exam is an open book. However, students are cautioned against coping the contents of
the study guide (or any relevant material) verbatim. The University’s rules and procedures
relating to plagiarism will apply.

3 CONCLUSION

We hope that this feedback will help you to prepare for the examination and we wish you every
success with your studies.

Your lecturers