ADVANCED INDIGENOUS LAW (LCP4804) – EXAMINATION SEMESTER 1

(2024)

By

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

DEPARTMENT OF PUBLIC, CONSTITUTIONAL AND INTERNATIONAL LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR:

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Answer 1:

Official customary law refers to laws written and found in legislation, precedents and
books or textbooks. It is somewhat static and is not aligned with the current practices
and norms of the community. On the other hand, living customary law refers to these
rules or laws; however, they are adapted to fit in with certain changed circumstances.
Living customary law is considered more aligned with the transformative values of the
South African Constitution,1 which is evident in the cases below, which will be critically
discussed.

Bhe v Magistrate Khayelisha and Others.2

Summary of the facts

There were two issues at hand: the constitutional validity of section 23 of the Black
Administration Act,3 and the constitutional validity of the principle of primogeniture
within the framework of the customary law of succession. The case dealt with two
minor children, both extramarital daughters, who had failed to qualify as heirs in their
deceased father's intestate estate.

Legal question

The Constitutional Court was asked to confirm decisions by the Western Cape High
Court and the North Gauteng High Court, where both courts declared the male
primogeniture rule, favouring senior males in the customary law of intestate
succession, unconstitutional and set it aside.

Court’s reasons for its decision (ratio decidendi)

The Constitutional Court confirmed both decisions, declaring the male primogeniture
rule unconstitutional because it violates the equality and human dignity clauses of the
Constitution. Additionally, the court set aside section 23 of the Black Administration

1 The Constitution of the Republic of South Africa, 1996 (hereinafter the Constitution).
2 Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC).
3 Black Administration Act 38 of 1927.

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Act and section 1(4) of the Intestate Succession Act.4 The Intestate Succession Act
was applied to customary law to ensure equal estate distribution among all widows
and descendants of the deceased, regardless of gender or legitimacy.

Finding/judgment

Both decisions from the high courts were confirmed.

Pilane v Pilane and Others.5

Summary of the facts

The case involved determining whether members of the traditional community in the
North West Province were rightfully prohibited from holding meetings under specific
auspices, acting in violation of applicable statutory and customary law, and presenting
themselves as a traditional authority using certain names and related titles.

Legal question

The Constitutional Court was asked whether the High Court's interdicts against a
traditional secessionist group prevented them from holding meetings to discuss their
planned secession from the main traditional authority were lawful.

Court’s reasons for its decision (ratio decidendi)

The Constitutional Court held that the interdicts were unlawfully issued because the
traditional secessionist group had the constitutional right to freedom of expression and
assembly. Customary law is a vital component of the constitutional system, recognised
and protected by the Constitution, but ultimately subject to its terms. Customary law is
a living body of law, dynamic and capable of evolving with the changing lives of the
people it governs. Based on this, the court held that the traditional authority cannot

4 Intestate Succession Act 81 of 1987.

5 Pilane v Pilane and Others 2013 (4) BCLR 431 (CC).

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deny constitutional rights and freedoms to community members who wish to exercise
them.

The Traditional Leadership and Governance Framework Act (TLGFA) 6 introduced

democratic traditions for the appointment of traditional leaders, allowing them to be
addressed by their traditional titles, such as iNkosi Buthelezi, Nkosi Holomisa, Kgosi
Pilane, rather than being derogatorily called 'chief.' The TLGFA also allows for the
appointment of women as traditional leaders to enhance gender representation.
Traditional leaders are no longer chosen by the State President as the Supreme Chief
of all natives but are identified by the royal family for appointment by the government,
reducing the risk of appointing government stooges.

Finding/judgment

The appeal was upheld, and the interdicts were set aside.

Answer 2:

Customary marriages are governed by customary and statutory laws, specifically the
Recognition of Customary Marriages Act (RCMA). 7 The RCMA was enacted to
legalise customary marriages and align them with constitutional values such as
equality and dignity. It addresses various aspects of customary marriages, including
the requirements for validity, the status of spouses, and the regulation of polygamous
marriages.

For a customary marriage to be valid in terms of the RCMA,8 it must comply with the
following requirements:

1. The prospective spouses must both be above the age of 18 years; and
2. Both parties must consent to be married under customary law; and

6 Traditional Leadership and Governance Framework Act 41 of 2003.

7 Recognition of Customary Marriages Act 120 of 1998.
8 See s 3(1)(a) of the RCMA.

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3. The marriage must be negotiated, entered into, and celebrated according to
customary law.

When it comes to the practice of polygamy under customary law, the husband who
wishes to enter into a further customary marriage with another woman must apply to
court to approve a written contract which will regulate the future matrimonial property
system of his marriages.9 This implies a need for judicial oversight to protect the rights
of the existing spouse(s) when an additional marriage is contracted.

There are two prominent court cases relating to polygamous customary marriages,
which will be briefly discussed hereunder.

The first case is Ngwenyama v Mayelane.10

In this case, the Supreme Court of Appeal (SCA) addressed whether a husband's
subsequent customary marriage requires the consent of his first wife. The legal
question was whether a subsequent marriage, like Ngwenyama's, negotiated, entered
into, or celebrated without prior court approval of a section 7(6) contract was valid. The
SCA determined that section 7(6) of the RCMA solely pertained to issues related to
matrimonial property and was distinct from the validity of the customary marriage
governed by section 3 of the RCMA. Consequently, the SCA held that the failure to
adhere to section 7(6) did not impact the validity of the customary marriage. At most,
such non-compliance resulted in the customary marriage being excluded from
community of property. The SCA upheld the appeal.

The second case, Mayelane v Ngwenyama,11 relates to the same parties, where the
matter was appealed and went to the Constitutional Court. The Constitutional Court
deemed it necessary to explore whether the relevant Tsonga custom permitted the
deceased to marry Ngwenyama as a second wife without first obtaining consent from
his first wife, Mayelane. To investigate, the court gathered affidavits from the
community regarding the necessity of the husband seeking his first wife's consent for
a subsequent marriage. The majority of the court concluded that the RCMA did not
mandate the first wife's consent, and Tsonga customary law lacked a consistent rule
on this matter. In light of this, the court chose to evolve Tsonga customary law by

9 See s 7(6) of the RCMA.

10 Ngwenyama v Mayelane 2012(10) BCLR 1071 (SCA).
11 Mayelane v Ngwenyama 2013 (8) BC LR 918 (CC).

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incorporating the principle that the first wife's consent to her husband's subsequent
marriage to another woman is essential for its validity. Consequently, non-compliance
with this rule rendered the attempted subsequent marriage invalid. However, in the
absence of a unified customary law rule on consent, the court opted for one requiring
consent rather than an alternative approach. The Constitutional Court endorsed its
preferred version of Tsonga customary law within the constitutional framework.

Under the RCMA, Buntu must apply to court if he wishes to enter into a further
customary marriage with another woman. However, he would need to know if there
are any other requirements in terms of his culture. If Buntu’s culture is that of the
Tsonga people, he would need consent from Zanele as per the second case discussed
above.

Answer 3.1:

In Mabena v Letsoalo.12

Legal question

Whether a customary marriage is valid where a young man, in the absence of his
father, negotiated his own customary marriage with the prospective mother-in-law,
who acted as the guardian of the prospective bride in the absence of her husband.

Court’s reasons for its decision (ratio decidendi)

The court concluded that an adult and independent man is eligible to negotiate his
customary marriage without his father. Similarly, the mother of the bride, acting as an
adult guardian, is qualified to negotiate the marriage and accept the marriage goods
in the absence of her husband, who has deserted the family.

12 Mabena v Letsoalo 1998 (2) SA 1068 (T).

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Finding/judgment

The validity of the customary marriage was upheld.

In Mabuza v Mbatha. 13

Legal question

Whether seSwati customary marriages can be valid without the observance of the
ukumekeza custom?

Court’s reasons for its decision (ratio decidendi)

African customary law has evolved over the years and was generally flexible in its
application, so too can the custom of ukumekeza evolve. The courts should not be
slow in developing African customary law, considering that it is recognised in the
Constitution and the RCMA. The Judiciary, when interpreting any legislation, and in
this case, developing customary law, must promote the spirit, purport and objects of
the Bill of Rights as contained in the Constitution. Any law and/or conduct that is
inconsistent with the Constitution will be considered invalid. Where African Law is only
recognised to the extent that it is incompatible with the principles of public policy or
natural justice, is flawed, and is thus unconstitutional.

Finding/judgment

The validity of the customary marriage was upheld.

Answer 3.2

One of the main criticisms is the continuation of gender bias through the assertion of
the male primogeniture rule. This rule favours male heirs over female heirs in matters

13 Mabuza v Mbatha 2003 (7) BCLR 43.

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of inheritance, which is seen as discriminatory and in violation of the principles of
gender equality as contained in the Bill of Rights. The court's decision fails to uphold
these constitutional rights, particularly regarding equality and non-discrimination. The
Constitution guarantees equal protection under the law irrespective of, inter alia,
gender and race, and the enforcement of the male primogeniture rule may be viewed
as a violation of these rights.

The court's ruling showcases a reluctance to evolve customary law alongside evolving
social norms and values. South Africa has notably advanced gender equality and
human rights since the dawn of democracy, making the court's decision seem
incongruent with these strides forward.

Furthermore, the court's ruling also raises concerns regarding the rights of illegitimate
children. In maintaining the male primogeniture principle, the court risks exacerbating
the marginalisation of illegitimate offspring and depriving them of equitable inheritance
rights.

Answer 4(i):

The RCMA has contributed positively to the development of customary law by

providing legal recognition and protection to customary marriages. Before its
enactment, customary marriages were often unrecognised and lacked legal standing,
leaving spouses vulnerable to exploitation and discrimination. By establishing a legal
framework for customary marriages, the RCMA has enhanced the status and rights of
individuals within customary unions, aligning with constitutional principles of equality
and human dignity.

The RCMA has significantly promoted equality and non-discrimination within

customary marriages. It has addressed issues such as the recognition of women's
rights, the abolition of male primogeniture, and the equal status of spouses. These

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changes have empowered women and challenged traditional male-controlled
structures, contributing to the transformation of customary law.14

Answer 4(ii):

Group solidarity

Umuntu ngumuntu ngabantu/motho ke motho ka batho is a principle/saying which

translates to ‘a human being derives his/her humanity from other humans’.15 This
signifies that in your siblings' company, no adversary can prevail against you. Their
disgrace becomes yours, just as your disgrace becomes theirs. When one of your
siblings falters or is despised, it feels as though all of you have faltered or are despised.
To prevent the onset of poverty in society, relatives will stand together and help each
other out during difficult times.

Communal living

This signifies that relatives are one family and members of one home. Whatever
comes their way, they all share the joys of unity but also deal with the responsibilities
that may accompany it. No one should ever be left exposed, nor should anyone benefit
at the expense of another.16 With this communal way of living, relatives will look out
for each other, even if it relates to financial assistance to avoid poverty. No child must
suffer because of their parents’ poverty.

Reciprocity

The kindness you extend to others will circle back to you. Every favour you do for
others will come back to you. One should never hesitate to lend a helping hand,
knowing the kindness will be repaid someday. If you support your relative’s child
through university or school, you will, in return, be assisted by him/her in your old
age.17

14 Nhlapo T and others, African Customary Law in South Africa: Post-Apartheid and Living Law
Perspectives (1st edn, Oxford 2014) 166, 169, 171.
15 See D D Ndima, Advanced Indigenous Law: Only Study Guide for LCP4804 (UNISA 2018) 45.
16 Ndima, Advanced Indigenous Law 45.
17 Ndima, Advanced Indigenous Law 45.

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Bibliography

Books
Nhlapo and others African Customary Law
Nhlapo T and others African Customary Law in South Africa: Post-Apartheid and
Living Law Perspectives (1st edn, Oxford 2014)

Ndima, Advanced Indigenous Law

D D Ndima, Advanced Indigenous Law: Only Study Guide for LCP4804 (UNISA
2018)

Case law

Bhe v Magistrate Khayelisha and Others 2005 (1) BCLR (1) (CC)

Mabena v Letsoalo 1998 (2) SA 1068 (T)

Mabuza v Mbatha 2003 (7) BCLR 43

Mayelane v Ngwenyama 2013 (8) BC LR 918 (CC)

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

Pilane v Pilane and Others 2013 (4) BCLR 431 (CC)

Legislation

Black Administration Act 38 of 1927

Constitution of the Republic of South Africa, 1996

Intestate Succession Act 81 of 1987

Recognition of Customary Marriages Act 120 of 1998

Traditional Leadership and Governance Framework Act 41 of 2003

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