ASSESSMENT FEEDBACK

GUIDELINES FOR ANSWERS TO ASSIGNMENT QUESTIONS

Year 2023
Semester Second semester
Module AFRICAN CUSTOMARY LAW
Module code LAC 500

1. DETAILS OF LECTURER

Lecturer Mr C Nieuwoudt

Office 101, The Village Square, c/o Oxford and Queen Streets, Durbanville, Western Cape, 7550

CPD Vorster – Director | S Totaram – Director | D Singh – Director | JJ Human – Director

Company registration number: 2004/031722/07

2. GUIDELINES FOR ANSWERS TO ASSIGNMENT QUESTIONS

Question 1 [20]

Gumede v President of the RSA and Others 2009 (3) SA 152 (CC) (10)

Aspect / Element Study

guide or
Marks
textbook
page
The student should be able to articulate the following elements
of the case:
The case concerned a claim of unfair gender and race
discrimination in relation to women who are married under 10 Marks:
customary law as codified in KwaZulu-Natal. It underlined the Discussion of
persistence of patriarchy and the vulnerability of women as factual
victims. background 2
marks
The applicant approached the Constitutional Court for Legal
confirmation of a declaratory order by the High Court of the question 2
constitutional invalidity particularly of section 7(1) and (2) of the marks
Recognition of Customary Marriage Act 120 of 1998. Court
decision 2
The unconstitutionality was confirmed. marks
Reason for
Traditional monogamous marriages were declared to have the decision 2
same status as new monogamous marriage which is marriage in marks
community of property. Impact of
decision 2
The KwaZulu-Natal code was also declared inconsistent with marks
the Recognition of Customary Marriage Act 120 of 1998.

Total 10

Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) (10)

Aspect / Element Study

guide or
Marks
textbook
page
The student should be able to articulate the following elements
of the case:
10 Marks:
The factual background of the case Discussion of
factual
That the case concerned the constitutional validity of the background 2
principle of male primogeniture that governed succession to marks
chieftainship. Legal
question 2

2
The applicants argued that customary law is dynamic and marks
adaptable and that the only constraints are those imposed by Court
the Constitution and applicable legislation in terms of section decision 2
211(2) of the Constitution. Furthermore, they submitted that the marks
Valoyi were acting well within their power, under customary law, Reason for
to amend their customs and traditions to reflect changed decision 2
circumstances. In support of this, they submitted that in foreign marks
jurisdictions other communities have adapted their succession Impact of
laws to move away from male primogeniture. decision 2
marks
The Constitutional court held that both the traditions and the
present practice of the community had to be considered and that
the spirit, purport and objects of the Bill of Rights have to be
promoted.

The Court reasoned that the community had a right to develop

its own laws and customs, and this right had to be respected
where it is consistent with the continuing effective operation of
the law and that the actions by the traditional authority reflected
a valid change to customary law which resulted in Ms
Shilubana’s succession to traditional leadership. Consequently,
Mr Nwamitwa did not have a right to the traditional leadership
under the customary law of the Valoyi traditional community

Total 10

Question 2 [20]

Aspect / Element Study

guide or
Marks
textbook
page
The student should be able to illustrate the following points: Chapter 13
of the
textbook
• 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 10 Marks for
leaders, which house must seek to resolve the dispute your
in accordance with internal rules and procedures. discussion on
your chosen
• If the provincial house of traditional leaders is unable to provision(s)
resolve the dispute after having consulted i.the parties of the TLGFA
to the dispute; and ii.theprovincial house of traditional 41 of 2003
leaders concerned, Section 22 of the Act establishes a
Commission known as the Commission on Traditional

3
 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 headman
ship, the commission is required to be guided by the
customary norms relevant to either the establishment of
a kinship or senior traditional leadership or headman
ship.
10 Marks:
• There are several cases in the textbook that discuss the Discussion of
implementation of the Act. A student should be awarded factual
marks for having picked a relevant case that shows an background 2
interpretation of any aspect of the Act. marks
Legal
• The student should be able to articulate the facts and question 2
legal principle with particular relevance to the current marks
question. Court
decision 2
marks
Reason for
decision 2
marks
Impact of
decision 2
marks

Total 20

Question 3 [10]

Aspect / Element Study

guide or
Marks
textbook
page
The student should be able to illustrate any of the following 5
points: Chapter 3 of
study guide

All courts may take judicial notice of indigenous law (subsection Any 5
1), although they are not obliged to do so. implications
discussed in
Judicial notice is limited in so far as indigenous law may be your own
ascertained readily and with sufficient certainty. The courts are word at 2

4
thus not obliged to apply indigenous law in cases where marks each
indigenous law is the obvious system to apply, but cannot be
readily ascertained.

There is no duty on the courts to take judicial notice of

indigenous law by, for instance, calling in expert witnesses.

It is not necessary for judges or magistrates to have any formal

or practical knowledge of, or training in, indigenous law.

In terms of subsection 2, evidence about indigenous law may be

submitted to the court by the party himself (or herself). So, in
terms of subsection 2 read with subsection 1, the onus is on the
party or parties to prove indigenous law in court. This places a
financial burden on the litigant, who must obtain the services of
an expert witness.

A further condition is that 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. (The phrase “opposed to the
principles of public policy or natural justice” is often used as an
equivalent for contra bonos mores [“against good morals”].)

Subsection 3 contains rules for cases involving different

systems of tribal law.

Total 10

Question4 [10]
Note to the marker: this question deals with various aspects of the study guide, it requires the
student to identify different forms of property in customary law.

Model Answer:
Note to the marker: this question deals with various aspects of the study guide, it requires
the student to identify different forms of property in customary law.

Model Answer:
Family property is property which has not been allotted to any house (1) or which does not
automatically accrue to a house. (1) The property is controlled by the head of the family,
(1) not as the owner, as family members share in the property. (1) It includes property
inherited and acquired by the family head and land allotted to the family group but which
has not been allotted to a particular house. (1) Maximum of 4 marks for family property.
House property is property which is accrues to a specific house. (1) It has to be used for
the benefit of the house to which it was allotted. (1) Although it belongs to a house, the
family head still retains control over it. (1) It includes earnings of the members of the
house, livestock allocated to the house and its increase, property given to a wife at their
marriage, lobolo received for daughters of the house on their marriage. (1) Maximum of 3
marks for house property.

5
With personal property, the individual acquired the property (1) but the family head
controls the property. (1) It forms part of the household property, the property must be
used to the benefit of the members of the household. (1) It includes items such as a car or
clothes. (1) Maximum of 3 marks for personal property.

Question 5 [20]
Marking Memorandum:

Model Answer for question 5.1:

This question deals with the important issues that had to be determined by the Bhe v Khayelitsha
Magistrate (CCT 49/03)[2004] ZACC 17; 2005(1) SA 580 (CC) 2005(1) BCLR (CC) (15 October
2004) case and Shibi v Sithole Case number 7292/01 of 19 November 2003 North Gauteng High
Court Unreported. The question also deals with the important aspect of customary law of
succession, which can be found on pp. 40–46 of the study guide and forms an integral part of
Chapter 9 of the textbook.
Model Answer:
In terms of children born out of wedlock, (1) there is no need to distinguish between legitimate and
illegitimate children as this has been abolished. (1) The results of such states that both legitimate
and illegitimate children may succeed. (1) The authority for this answer refers directly to both the
Bhe (1) and Shibi cases (1) whereby the court held “It is not necessary to draw a distinction
between male and female; legitimate and illegitimate children for purposes of succession.” (1)
Thus, due to the fact that there has been no clear distinction indicated between general and
specific succession (1), Sibongile’s son will be able to inherit as he meets the requirements in
terms of order of succession (1) as well as section 9 of the equality clause of the Constitution. (1)
The requirements both indicate that Sibongile ’s son will be able to inherit intestate in terms of
customary law of succession. (1)

Model Answer for question 5.2:

In terms of section 9(1)(a), (1) the royal family needs to act within a reasonable time frame
(1) and with due regard to customary law in identifying such person. (1)
A person is disqualified from taking up such a position by any of the following in terms of
section 10(1)(a)-(d) (1): conviction of an offence subject to a year’s imprisonment; (1)
severe physical or mental disability; (1) violation of a significant customary rule (1) or
where there was a wrongful appointment or recognition. (1)
When a new traditional leader is appointed, in terms of section 11(1) (1) the Premier must
be informed of the identity of the candidate as well as reason for the choice. (1) The
Premier then recognises the person in line with provincial legislation. (1)
When a new king is appointed, the premier does not play an active role, but rather the
President in terms of section 9(1)(b) and section 9(2) (1), the President must recognise
the person identified (1) and recognise such person by way of a notice in the Gazette. (1)
Note to the marker: The student needs to refer to the correct provisions of the Traditional
Leadership and Governance Framework Act. Each correct reference will count a maximum
of 1 mark. Maximum of 10 marks for this question.

6
Question 6 [20]
Note to the marker: This question deals with the important requirement of lobolo as part of
the validity requirements for the conclusion of a customary marriage. This question is
similar to Activity 7.1 that can be found in the study guide on p. 38. The applicable Chapter
in the prescribed textbook is Chapter 8.
Model Answer:

Introduction (2 marks):
The student should introduce the topic by referring to the issue of lobolo. (1) The
Recognition of Customary Marriages Act 120 of 1998 is silent on the matter and therefore
the requirement of lobolo according to legislation is not an express requirement, however,
many scholars and judicial decisions have tried to clarify this position. (1)

Body:
Reference to journal article (7 marks)
The student should have researched a journal article that specifically deals with lobolo as
a requirement for the conclusion of a customary marriage. The student should describe 7
facts related to lobolo in respect with the creation of a marriage or what the effect of lobolo
would be when a marriage is dissolved with reference to a journal article. It is important
that all facts should be supported by the journal article. It is also important that the student
explains the role of lobolo in both the creation and dissolution of a customary marriage.
Any peer reviewed article will be allowed. An example of a good article is: Nkosi, T.
(2013). “The ending of a customary marriage – What happens to the ilobolo?” De Rebus
2013 (Nov) DR 36 which can be accessed by this link http://www.derebus.org.za/ending-
customary-marriage-happens-ilobolo/. 1 mark is awarded for each fact in accordance with
the journal article.

Judicially decided case (8 marks)

The student needs to select a case that dealt with the important issue of lobolo either in
the creation of a marriage or where lobolo played an integral part in the dissolution of a
marriage.
The mark allocations are as follows: summarise the facts (2 marks), explain the decision
of the court (2 marks), give the reasons for the decision by the court (2 marks) and
illustrate the impact of the decision (2 marks). 1 mark is awarded for each fact/argument.
Cases that students can use include, but are not limited to:
Southon v Moropane (GSJ) (unreported case no 14295/10, 18-7-2012)
Mabena v Letsoalo 1998 (2) SA 1068 (T)
Moshidi J in K v P (GSJ) (unreported case no 09/41473, 15-10-2010)

7
Appropriate references where needed (1 mark):
The student should reference the journal article and judicially decided case appropriately.

Appropriate grammar and language use (2 marks)

To be awarded the 2 full marks, the student should display the correct spelling of the legal
terminology.
ASSIGNMENT TOTAL: 100

3. CONCLUSION

Dear Student

I sincerely hope you have learned a few lessons regarding the module of African Cusomary Law,
as well as concise essay writing!

Good luck with your studies and the examination.

Remember that perfection works for those who work at it!!

Regards,

Mr. Cobus Nieuwoudt