LAFR 2604

AFRICAN CUSTOMARY LAW

NQF 6

16 credits

Department of Private law

Compiled by

C Müller–Van der Westhuizen (Dr)

N Sindane (Dr)

Updated by

J Matthee (Dr)

2025
TABLE OF CONTENTS

1. Welcoming.................................................................................................................... 7
2. Module Objective ......................................................................................................... 7
3. Module Outcomes ........................................................................................................ 8
4. Learning Units .............................................................................................................. 8
5. Prerequisites ................................................................................................................ 9
6. Credits and Notional Learning Hours ......................................................................... 9
7. Study Material ............................................................................................................ 10
8. Assessment................................................................................................................ 10
9. Updating of Module Information and Resources ..................................................... 11
10. Student Graduate Attributes ..................................................................................... 11
Learning Unit 1: Legal Pluralism and African Customary Law in South Africa: An
Introduction ....................................................................................................................... 16
1.1 Unit Overview ............................................................................................................ 16
1.2 Learning Outcomes ................................................................................................... 17
1.3 Unit-Specific Study Material ....................................................................................... 17
1.4 Preparation Material .................................................................................................. 18
1.5 Content Material ........................................................................................................ 18
1.6 Learning and Assessment Activities .......................................................................... 22
1.7 Questions to Consider in this Unit .............................................................................. 22
1.8 Student Graduate Attributes Developed in this Unit ................................................... 23
Learning Unit 2: South African Customary Law: Application and Ascertainment /
Conflicts of Law - Pre and Post Constitution Perspectives ........................................... 24
2.1 Unit Overview ............................................................................................................ 24
2.2 Learning Outcomes ................................................................................................... 25
2.3 Unit-Specific Study Material ....................................................................................... 25
2.4 Preparation Material .................................................................................................. 25
2.5 Content Material ........................................................................................................ 26
2.6 Learning and Assessment Activities .......................................................................... 26
2.7 Questions to Consider in this Unit .............................................................................. 26
2.8 Student Graduate Attributes Developed in this Unit ................................................... 27
Learning Unit 3: South African Customary Law: Traditional and Khoi-San Leadership
and Governance ................................................................................................................ 28
3.1 Unit Overview ............................................................................................................ 28
3.2 Learning Outcomes ................................................................................................... 28

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 3.3 Unit-Specific Study Material ....................................................................................... 28
3.4 Preparation Material .................................................................................................. 29
3.5 Content Material ........................................................................................................ 29
3.6 Learning and Assessment Activities .......................................................................... 29
3.7 Questions to Consider in this Unit .............................................................................. 30
3.8 Student Graduate Attributes Developed in this Unit ................................................... 31
Learning Unit 4: South African Customary Law: Traditional Courts and Other Dispute
Resolution Mechanisms ................................................................................................... 32
4.1 Unit Overview ............................................................................................................ 32
4.2 Learning Outcomes ................................................................................................... 32
4.3 Unit-Specific Study Material ....................................................................................... 32
4.4 Preparation Material .................................................................................................. 33
4.5 Content Material ........................................................................................................ 33
4.6 Learning and Assessment Activities .......................................................................... 33
4.7 Questions to Consider in this Unit .............................................................................. 33
4.8 Student Graduate Attributes Developed in this Unit ................................................... 34
Learning Unit 5: South African Customary Law: Property ............................................. 35
5.1 Unit Overview ............................................................................................................ 35
5.2 Learning Outcomes ................................................................................................... 35
5.3 Unit-Specific Study Material ....................................................................................... 36
5.4 Preparation Material .................................................................................................. 36
5.5 Content Material ........................................................................................................ 36
5.6 Learning and Assessment Activities .......................................................................... 36
5.7 Questions to Consider in this Unit .............................................................................. 36
5.8 Student Graduate Attributes Developed in this Unit ................................................... 37
Learning Unit 6: South African Customary Law: The Family ......................................... 38
6.1 Unit Overview ............................................................................................................ 38
6.2 Learning Outcomes ................................................................................................... 38
6.3 Unit-Specific Study Material ....................................................................................... 40
6.4 Preparation Material .................................................................................................. 40
6.5 Content Material ........................................................................................................ 40
6.6 Learning and Assessment Activities .......................................................................... 43
6.7 Questions to Consider in this Unit .............................................................................. 43
6.8 Student Graduate Attributes Developed in this Unit ................................................... 45
Learning Unit 7: South African Customary Law: Succession and Inheritance............. 46
7.1 Unit Overview ............................................................................................................ 46

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 7.2 Learning Outcomes ................................................................................................... 46
7.3 Unit-Specific Study Material ....................................................................................... 47
7.4 Preparation Material .................................................................................................. 47
7.5 Content Material ........................................................................................................ 47
7.6 Learning and Assessment Activities .......................................................................... 48
7.7 Questions to Consider in this Unit .............................................................................. 48
7.8 Student Graduate Attributes Developed in this Unit ................................................... 49
Learning Unit 8: South African Customary Law: Contracts ........................................... 50
8.1 Unit Overview ............................................................................................................ 50
8.2 Learning Outcomes ................................................................................................... 50
8.3 Unit-Specific Study Material ....................................................................................... 50
8.4 Preparation Material .................................................................................................. 51
8.5 Content Material ........................................................................................................ 51
8.6 Learning and Assessment Activities .......................................................................... 51
8.7 Questions to Consider in this Unit .............................................................................. 51
8.8 Student Graduate Attributes Developed in this Unit ................................................... 52
Learning Unit 9: South African Customary Law: Delicts ................................................ 53
9.1 Unit Overview ............................................................................................................ 53
9.2 Learning Outcomes ................................................................................................... 53
9.3 Unit-Specific Study Material ....................................................................................... 54
9.4 Preparation Material .................................................................................................. 54
9.5 Content Material ........................................................................................................ 54
9.6 Learning and Assessment Activities .......................................................................... 56
9.7 Questions to Consider in this Unit .............................................................................. 56
9.8 Student Graduate Attributes Developed in this Unit ................................................... 57
Learning Unit 10: The Role of African Customary Law in Addressing Certain Social
Justice Issues ................................................................................................................... 58
10.1 Unit Overview .......................................................................................................... 58
10.2 Learning Outcomes ................................................................................................. 58
10.3 Unit-Specific Study Material ..................................................................................... 58
10.4 Preparation Material ................................................................................................ 59
10.5 Content Material ...................................................................................................... 59
10.6 Learning and Assessment Activities ........................................................................ 60
10.7 Questions to Consider in this Unit ............................................................................ 60
10.8 Student Graduate Attributes Developed in this Unit ................................................. 60

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Table 1: Icon Library

Icon Description

Welcoming message

Module objective

Module outcomes

Action words, terms and concepts that need to be understood

Activities and resources made available on Blackboard

Prerequisites of the module

Credits and notional hours relevant to the module

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Face-to-face contact sessions

Activities to be completed individually (preparation). You may still ask

for feedback from your tutor or lecturer when you encounter aspects
that you have difficulty with

A quiz – usually made available for self-assessment on Blackboard

Unit-specific content for the module

The resources to be consulted (such as the textbook, additional reading

material, etc.)

The roadmap that contextualises (puts into perspective) the different

pieces of information in the module

An important reminder/caution from your lecturer

Assessment questions and opportunities

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Unit-specific assessment criteria

A learning unit

Learning unit outcomes for a specific unit

Purpose of the learning unit

Student graduate attribute

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 1. WELCOMING

Dear student,

Welcome to LAFR 2604. This module focuses on African customary law and is presented in
the Department of Private law. The first part of the content (semester 1) is presented by Ms
Lerato Ditsela and the second part (semester 2) by Dr Jacques Matthee. Face-to-face lectures
are scheduled for LAFR2604 (which means that classes will be presented on-campus). The
assessment will occur in a blended format, with some occurring face-to-face on campus, while
others will occur online.

Set high goals for yourself and take advantage of all the opportunities that this class has to
offer. To avoid falling behind, make sure that you prepare for each lecture/session and that
you understand the work fully after each session. It is the responsibility of all students to ensure
that they obtain all the information in connection with this module. This information will be
made available during formal lectures and/or tutorial sessions, on Blackboard and in the
Faculty of Law Rulebook. Please note that only registered students are allowed to attend the
contact sessions of this module.

Work hard and enjoy.

2. MODULE OBJECTIVE

The module currently forms part of the LLB curriculum and is taken in the second year of study
(or in the third year of study in the extended curriculum programme).

The purpose of LAFR2604 is to introduce you to the phenomenon of legal pluralism as well
as to the nature and sphere of African customary law. The application and ascertainment of
African customary law will be addressed with specific reference to the South African customary
law regulating family, property, contracts, delicts, succession and inheritance, traditional
leadership and governance as well as traditional courts and other dispute resolution
mechanisms. Key constitutional issues pertaining to African customary law will be debated.

To achieve the purpose as described above, use is made of formal lectures, tutorials, audio-
visual media, textbook/s, case law, academic journal articles, self-study and tasks.

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 3. MODULE OUTCOMES

After successful completion of this module, you should be able to:

• Explain the phenomenon of legal pluralism within the South African context.
• Reflect on how the Constitution has transformed the South African legal system in order
to recognise African customary law.
• Describe the nature and sphere of African customary law.
• Critically discuss the impact of constitutional imperatives on the application of African
customary law with specific reference to the constitutional rights to cultural and religious
freedom.
• Solve problems regarding the application of African customary law by selecting and
applying choice of law rules.
• Critically discuss how the ascertainment and proof of African customary law has
developed from the pre- to the post-constitutional dispensation with reference to key
statutory provisions and judgments.
• Apply the concepts, principles and legal theory of the African customary law regulating
the family; property; contracts; delicts; succession and inheritance; traditional leadership
and governance; and traditional courts and other dispute resolution mechanisms to
solve hypothetical and/or factual problems in a critical and practical way.
• Conduct and present independent research on contentious issues in African customary
law in written formats such as an assignment or a legal opinion.
• Perform basic numeracy tasks related to the African customary law regulating
succession and inheritance.
• Evaluate the role of African customary law in advancing social justice issues such as
inequality, discrimination and fairness.

4. LEARNING UNITS

In addressing the module outcomes above, the following learning units will be covered in this
module:

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 Part 1 (to be covered in semester 1)

Learning unit 1: Legal pluralism and African customary law in South Africa: An
introduction

Learning unit 2: South African customary law: Application and Ascertainment / Conflicts
of law

Learning unit 3: South African customary law: Traditional and Khoi-San leadership and
governance

Learning unit 4: South African customary law: Traditional courts and other dispute
resolution mechanisms

Learning unit 5: South African customary law: Property

Part 2 (to be covered in semester 2)

Learning unit 6: South African customary law: The family

Learning unit 7: South African customary law: Succession and Inheritance

Learning unit 8: South African customary law: Contracts

Learning unit 9: South African customary law: Delicts

Learning unit 10: The role of African customary law in addressing certain social justice
issues

5. PREREQUISITES

There are no prerequisites for this module.

6. CREDITS AND NOTIONAL LEARNING HOURS

Generally, "notional learning hours" means the amount of learning time taken by the "average"
student to achieve the specified learning outcomes of the course unit or programme. It
includes all learning relevant to achieving the learning outcomes, such as directed study,
possible essential practical work, group work, private study, preparation and assessments.

This module has 16 credits, which implies that 160 notional hours of learning are expected
from students. These notional hours are spread throughout the course of one year.

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 7. STUDY MATERIAL

• The prescribed textbook in this module is Introduction to Legal Pluralism in South

Africa by Rautenbach C (ed), 2021, LexisNexis (the 6th edition).
• In addition to the textbook, other study material will also be used as part of the
teaching and learning in this module. Some additional material and activities may be
made available on Blackboard throughout the semester whilst some sources need to
be obtained by the students themselves (it is important for students to be familiar
with how to locate sources on the various databases). It is students’ responsibility
to ensure that they obtain and prepare all reading material for this module in time.

8. ASSESSMENT

8.1. Assessment Breakdown

Your final mark will be calculated as indicated on Blackboard.

8.2. assessment calendar

Please consult the assessment timetable of the Faculty of Law for the dates, method and time
of assessments. The assessment timetable will be available on Blackboard at commencement
of the semester.

Please refer to the LLB Assessment Rules and Regulations (for students) that is available /
will be made available on Blackboard and ensure that you are familiar with the contents
thereof.

8.3. Calculation of the Final Mark

Your final mark will be calculated as indicated on Blackboard.

The average mark of all the assessment opportunities whilst taking into consideration the
different weightings of the assessments (as per continuous assessment).

8.4. Passing the Module

In modules, such as this one, which are assessed by way of continuous assessment (different
online assessment opportunities throughout the semester without an examination), a student

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should have taken part in all the assessment opportunities and obtain an average of
50% or above.

9. UPDATING OF MODULE INFORMATION AND RESOURCES

The module schedule and learning unit content, either orally or in writing, can be updated or
modified at any time by the lecturer. It is the responsibility of students enrolled in this module
to stay up to date with the schedule and curriculum. An announcement of this type can be
given in face-to-face class sessions or communicated on Blackboard. It is recommended that
students check Blackboard weekly (or even daily) to keep up to date with the latest
developments in this module. Any work discussed during contact sessions can be used for
assessment purposes.

10. STUDENT GRADUATE ATTRIBUTES

Graduate attributes may be broadly defined as the qualities, competencies and

understandings of a graduate which a university community agrees students should develop
during their time at the institution, both for their future professions and to contribute as ordinary
citizens.

These attributes include, but also go beyond, the disciplinary expertise or technical knowledge
that has traditionally formed the core of most university courses. They are qualities that also
prepare graduates as agents of social good and for personal development in light of an
unknown future.

The eight student graduate attributes identified by the UFS that will be developed during the
course of a student’s undergraduate studies, are the following:

The 8 (Eight) Graduate Attributes:

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Academic competence is a graduate attribute embedded in all assessments and refers to
the knowledge, skills and attitudes that students develop through their interaction with
discipline-specific content. Critical to academic competence is lifelong learning, which is an all
purposeful learning activity, undertaken on an ongoing basis with the aim of improving
knowledge, skills and competence. Lifelong learners are curios, take initiative, learn
independently, transfer knowledge, and reflect on their learning.

Academic competence for the LLB learner means that the learner has a comprehensive
and sound knowledge and understanding of the South African Constitution and basic areas or
fields of law. This relates to the body of South African law and the South African legal system,
its values and historical background. The learner can demonstrate an integrated
understanding of legal principles, concepts, theories and values, also in relation to societal
issues. The graduate has knowledge and understanding of:
(a) The dynamic nature of law and its relationship with relevant contexts such as political,
economic, commercial, social and cultural contexts;
(b) A discipline other than law and law’s relationship to other disciplines; and
(c) Select areas of the law.

Critical thinking is a habit of mind characterised by the comprehensive exploration of issues,

ideas, artefacts and events before accepting or formulating an opinion or conclusion.

Critical thinking for the LLB learner means that the learner can demonstrate the ability to
research, analyse and evaluate information from a legal perspective. The learner is able to:
(a) Recognise and reflect on the role, place and limitations of law in South African society and
beyond;

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(b) Analyse a text and/or scenario to find the key issues, i.e., distinguish between relevant and
irrelevant information and distinguish between legal and non-legal issues;
(c) Identify and address the issues presented in a text or scenario; and
(d) Make judgments on the merits of particular arguments and make and present reasoned
choices between alternative solutions.

Problem solving is the process of designing, evaluating and implementing a strategy to

answer an open-ended question or achieve a desired goal.

Problem solving for the LLB learner means that the learner is able to:
(a) Find, select, organise, use, analyse, synthesise and evaluate a variety of relevant
information sources;
(b) Determine the relative authority of relevant information sources;
(c) Present and make a reasoned choice between alternative solutions;
(d) Use techniques of legal reasoning, methodology and argumentation to reach a plausible
conclusion; and
(e) Demonstrate academic integrity in research.

Communication comprises of oral as well as written communication.

Oral communication is a prepared, purposeful presentation designed to increase knowledge,

to foster understanding, or to promote change in the listeners' attitudes, values, beliefs or
behaviours.

Written communication is the development and expression of ideas in writing. Written

communication involves learning to work in many genres and styles. It can involve working
with many different writing technologies and mixing texts, data and images. Written
communication abilities develop through iterative experiences across the curriculum.

Communication as an attribute of the LLB learner means that the learner is proficient in
reading, writing, comprehension and speaking and is therefore able to:
(a) Communicate effectively by choosing appropriate means of communication for a variety
of contexts;
(b) Demonstrate effective oral, written, listening and non-verbal communication skills;
(c) Apply communication skills to relevant situations and genres; and
(d) Engage with diverse audiences.
Ethical reasoning is reasoning about right and wrong human conduct. It requires students to
be able to assess their own ethical values and the social context of problems, recognise ethical
issues in a variety of settings, think about how different ethical perspectives might be applied
to ethical dilemmas and consider the ramifications of alternative actions. Students’ ethical self-

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identity evolves as they practice ethical decision-making skills and learn how to describe and
analyse positions on ethical issues.

Ethical reasoning as an attribute of the LLB learner means that the learner can solve
complex and diverse legal problems creatively, critically, ethically and innovatively. The LLB
learner has knowledge of relevant ethical considerations in law and is able to conduct
her/himself ethically and with integrity in her/his relations within the university and beyond,
with clients, the courts, other lawyers and members of the public.

Community engagement is continuous, negotiated collaborations and partnerships between

the UFS and/or its members and the interest groups that it interacts with, aimed at building
and exchanging the knowledge, skills, expertise and resources required to develop and
sustain society.

Community engagement as an attribute of the LLB learner means that the learner has
skills and knowledge to understand the responsibilities of the legal professional in service to
the community. In doing so, the learner is able to recognise, reflect and apply social justice
imperatives in acknowledging the capacity, agency and accountability of the legal professional
in shaping and transforming the legal system and promote social justice.

Entrepreneurial mind-set is a set of attitudes, skills and behaviours that can be applied in all
spheres of life. This mindset enables citizens to nurture their personal development, to actively
contribute to social development, to enter the job market as employee or as self-employed
and to start-up or scale-up ventures which may have a cultural, social or commercial motive.

Entrepreneurial mind-set as an attribute of the LLB learner means that the learner is able
to:
(a) Function effectively in independent and collaborative settings;
(b) Recognise opportunities, be creative and innovative, be future-orientated, comfortable
with risk-taking, take initiative and be self-reliant, flexible and adaptable.

Assessment of Graduate Attributes

Academic competence will form the foundation of all assessments throughout the LLB
programme in terms of which one or more of the other attributes will also be assessed to
establish the attainment thereof. It is a priority of the Faculty of Law of the UFS to develop all
eight of the identified student graduate attributes in all the modules presented throughout the
course. However, the assessment to establish the attainment thereof might only be performed
in specific identified modules on different levels, depending on the moment within which it falls
during the academic programme.

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These assessments could form part of a student’s formative or summative assessments and
contribute towards his/her final mark for a particular module but will be designed to provide
proof of the attainment of one or more specified graduate attribute at a particular level.
Learners will be informed of the nature and purpose of these assessments and will be
encouraged to compile portfolios (or ePortfolios) in order for them to be able to:
a) Reflect on their development of graduate attributes across the LLB programme;
b) Provide evidence for how and where graduate attributes were developed across the
curriculum; and
c) Improve their skills and marketability for potential employers, funders and work network.

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 LEARNING UNIT 1: LEGAL PLURALISM AND AFRICAN CUSTOMARY
LAW IN SOUTH AFRICA: AN INTRODUCTION

1.1 UNIT OVERVIEW

The Constitution of the Republic of South Africa of 1996 acknowledges both South African
common law and customary law as primary (official) legal systems. Secondary (unofficial)
systems include religious legal systems such as Hindu and Jewish law.

Due to the fact that African customary law is an official legal system(s) to which many South
Africans adhere to, knowledge of African customary law (also referred to as "indigenous law",
"African law" and "customary law") is important.

In light of South Africa's multicultural society, "customary law" (as it is referred to in the
Constitution), does not really refer to merely one legal system per se. Although there is a
degree of similarity of customary legal principles and cultural values across communities,
South African "customary law" rather refers to various customary legal systems operating
within the country's borders. The principles followed and values adhered to by a specific
community, vary depending on their culture and might also depend on where (in which part of
the country) the specific community is located.

Before the Constitution, in matters which dealt with customary law, courts still had a discretion
to rather apply common law principles. Under the current Constitution though, courts must
apply customary law when that law is applicable (section 211(3) of the Constitution).
Consequently, African customary law is official South African law ("courts must apply") that
needs to be applied "when applicable" (which means that sometimes it will have to be
determined whether customary law is, in fact, applicable).

In a matter where there exists a dispute between parties (or uncertainty) regarding whether
customary law or common law applies, a court will have to make a choice between the two. In
such an instance (when courts have to make a choice between common law and customary
law), a court will be guided by so-called "choice of law" rules. More on this in a later learning
unit.

It is rather impossible to study all the different systems in this course (it has been said that in
South Africa alone, there may be as many as 200 different customary legal systems (when

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taking into account certain differences)). As a result of some degree of similarity though, it is
possible to present the course as a single system and to provide an introduction (and proper
foundation) to African customary law.

This course, presented over the course of a year, is important. Although certain customary
law aspects might be studied in other LLB modules as well and some degree of overlapping
may occur, the subject-field was, due to non-recognition, neglected for quite some time.
Consequently, a renewed focus on African customary law is necessary.

1.2 LEARNING OUTCOMES

After completing learning unit 1, you should be able to do the following:

• In South Africa, so-called "legal pluralism" is observed. Explain the meaning of "legal
pluralism" and what it entails in general.
• Briefly compare the narrow and broad interpretations of the concept "legal pluralism".
• Examine / carefully consider the acceptance of the 1996 South African Constitution's
influence on legal pluralism in South Africa.
• Identify the official legal systems of South Africa.
• Provide critique against the statutory definitions of indigenous law / customary law.
• Compare certain (as per the prescribed para in the prescribed textbook) features of
customary law and common law.
• Explain the difference between "living customary law" and what has been referred to as
"official customary law".
• Identify the sources of customary law.
• Explain the effect of section 211(3) of the Constitution on customary law.

It should take the average student about 15 - 20 hours to master the contents of this learning
unit.

1.3 UNIT-SPECIFIC STUDY MATERIAL

Learning unit 1 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

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 1.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Questions applicable to this unit below.

1.5 CONTENT MATERIAL

The following material needs to be studied in this learning unit:

• Rautenbach paragraphs (in chapter 1) 1.1, 1.2.1, 1.2.2, 1.5, 1.6.1

• Rautenbach paragraphs (in chapter 2) 2.1, 2.2, 2.3, 2.4, 2.5
• Rautenbach paragraphs (in chapter 3) 3.2

Reading material:

• Rautenbach paragraphs 1.3, 1.4, 1.6.2, 1.6.3, 1.7, 3.1

• Himonga and Nhlapo (eds) 2014 "African Customary Law in South Africa Post-
Apartheid and Living Perspectives" 1st ed Oxford University Press (Chapters 2 and 3).
• Mofokeng 2009 "Legal Pluralism in South Africa Aspects of African customary, Muslim
and Hindu family law" 1st ed Van Schaik Publishers (figure of the dominant African
tribal and linguistic communities in South Africa on page 6).

For purposes of further background, read the following notes on legal pluralism and African
customary law:

"Legal Pluralism"

The concept "legal pluralism" may be interpreted in different ways. The following diagram
summarises the position:

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 Legal Pluralism

Narrow interpretation Broad interpretation

State-law pluralism Deep legal pluralism

(Officially recognised law) (Not officially recognised law)

Sometimes described as “weak” Sometimes described as

pluralism “strong” pluralism

Narrow interpretation (textbook paragraph 1.2.1)

The narrow interpretation of legal pluralism is based on a “dual systems” approach. It may be
described as the joining of western and traditional forms of law. Those legal systems
recognised within a society by the State / government, operate within the framework of “official
law”. This view (the narrow interpretation) is in accordance with the so-called "positivistic"
perception that law consists of those norms created and sanctioned by official state organs
only. Legal positivism negates the coexistence of a variety of unofficial legal systems within a
single society. According to this approach, laws derived from sources other than the state
become “law properly so called” only when authorised/recognised by the State.

Recognition inevitably leads to the formulation of certain practical rules to determine:

• when these laws may be applied;

• when they should be regarded as acceptable;

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• how they should be ascertained; and
• what should happen where there is a conflict with the national law (conflicts of laws are
discussed in the 2nd semester).

The narrow interpretation of legal pluralism prevails in South Africa. Customary law and
common law are recognised by the Constitution.

Broad interpretation (textbook paragraph 1.2.2)

According to this interpretation, legal pluralism should be regarded as the factual situation that
various legal systems are observed in a single society. Legal pluralism is, therefore, not
dependent on state recognition of the various legal systems.

Official recognition of a legal system and non-recognition of others have no effect on the
factual existence of legal pluralism. Recognition simply determines the status of the legal
systems. The dominance of the state law is, in fact, irrelevant to the continued existence of
the unofficial laws.

“Deep legal pluralism” (the broad interpretation) also exists in South Africa. The Western state
law has never been able to penetrate the indigenous, Islamic or other religious legal systems
fully.

"Customary law"

Definition

The first statutory definition of customary law / indigenous law in South Africa is found in the
Law of Evidence Amendment Act 45 of 1988 (section 1(4)): “‘Indigenous law’ means the law
or custom as applied by the Black tribes in the Republic.” This definition is, in all probability,
not in line with Constitutional values. Another definition is to be found in the Recognition of
Customary Marriages Act 120 of 1998 (also see Act 11 of 2009).

Division

The law is generally divided between national and international law. National law governs
relations between people within a state and relations between the government and its
subjects. International law governs relations between different states.

Certain African language-speaking groups in South Africa also had independent, sovereign
states under the rule of a chief. Sometimes groups joined together and were ruled by a king

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or the so-called paramount chief. Examples of kingdoms are the Zulu, the Swazi and the South
Sotho in Lesotho.

The customary law of a certain group or unit can generally be equated to the concept of
"national law" and one may thus speak of Pedi law or Tswana customary law. "Intertribal" law
could be equated to "international law". Few details are known about "intertribal" law.

African language-speaking groups of Southern Africa

The term “African language-speaking” refers to a family of languages that have a remarkable
degree of similarity and a common origin. Linguists and anthropologists refer to these
languages as “African” languages. They have a similar structure and are quite different from
English, which is an Indo-European language.

On the basis of language and other cultural characteristics, one can distinguish the main
groupings of the African language-speaking people of Southern Africa (including Botswana,
Lesotho and Swaziland). There are four main groups, some consisting of several subgroups.
In terms of section 6(1) of the Constitution of the Republic of South Africa Act, 1996, there are
nine official African languages, indicated below:

Group Language

Nguni:
Xhosa isiXhosa
Zulu isiZulu
Swazi siSwati
Ndebele isiNdebele
Sotho:
Pedi (North Sepedi
Sotho)
South Sotho Sesotho
Tswana Setswana
Shangaan-Tsonga Xitsonga
Venda Tshivenda

The languages, legal systems and customs of communities differ. However, there are common
features as well. For example, most communities, if not all, share the belief that a marriage is
a union between two families (opposed to merely being a commitment between two individuals
for example) and the (usually male) family head is responsible for maintaining / taking care of,
the family.

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 1.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

1.7 QUESTIONS TO CONSIDER IN THIS UNIT

1. Distinguish between the narrow interpretation and the broad interpretation of legal
pluralism.
2. Write a paragraph on each of the following:
2.1 The meaning of a narrow interpretation of legal pluralism.
2.2 The meaning of a broad interpretation of legal pluralism.
3. With reference to case law, indicate the position of customary law in the South African
constitutional dispensation.
4. Discuss state law pluralism in South Africa today.
5. List other terms used for "African customary law".
6. Provide concise critical discussions of the statutory definitions of "customary law" and
"indigenous law" in South Africa.
7. Define customary law.
8. Compare the features of customary law and common law.
9. Write explanatory notes on ubuntu.
10. Distinguish between the concepts “official” and “non-official” (“living”) customary law.
11. Explain why the (traditionally known) "official" and "non-official" customary law must be
as near as possible to each other.
12. Evaluate whether official, living (or both) customary law should be applied.
13. Explain whether there is one universal system of customary law in South Africa.
14. Name four sources of customary law.
15. Discuss section 211(3) of the Constitution.

Students should also be able to answer the listed learning outcomes in the format of both
shorter and longer questions, depending on the marks allocated.

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 1.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking (for example, regarding living customary law's place in the South
African legal order)
• Problem solving (for example, evaluating relevant information discussed in this unit)

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 LEARNING UNIT 2: SOUTH AFRICAN CUSTOMARY LAW: APPLICATION
AND ASCERTAINMENT / CONFLICTS OF L AW - PRE AND POST
CONSTITUTION PERSPECTIVES

2.1 UNIT OVERVIEW

Before the Constitution, in matters which dealt with customary law, courts still had a discretion
to rather apply common law principles. Under the current Constitution though, courts must
apply customary law when that law is applicable (section 211(3) of the Constitution).

Consequently, African customary law is official South African law ("courts must apply") that
needs to be applied "when applicable" (which means that sometimes it will have to be
determined whether customary law is, in fact, applicable).

In a matter where there exists a dispute between parties (or uncertainty) regarding whether
customary law or common law applies, a court will have to make a choice between the two. In
such an instance (when courts have to make a choice between common law and customary
law), a court will be guided by so-called "choice of law" rules.

Here is an illustration: A and B entered into a contract. A has already performed under the
contract, but B refuses to perform. A sues B and alleges that customary law is applicable. B
raises the defence of prescription and claims common law to be applicable. (In customary law,
as the actual occurrence of an event is more important than when exactly it happened,
prescription is not practised.) Which system of law should govern this dispute? The court has
to choose and, as stated, will be guided by "choice of law"-rules.

Apart from conflicts between common law and customary law, it may also happen that a
conflict of laws between different customary legal systems might also occur. Certain choice of
law rules guide the courts in this respect as well.

The manner in which choice of law rules are applied by courts have to be in accordance with
constitutional values. Certain factors that were taken into account in the past to determine the
applicable legal system, might not be appropriate anymore.

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 2.2 LEARNING OUTCOMES

After completing learning unit 7, you should be able to do the following:

• Provide a brief overview of the earlier recognition of customary law.

• Explain the effect of section 211(3) of the Constitution on customary law. Paraphrase
section 181 of the interim Constitution.
• Demonstrate the need for choice of law rules.
• Distinguish between the different kinds of choice of law rules Outline the principles
governing choice of law as laid down by the courts.
• State how conflicts between different systems of customary law are to be resolved.
• Illustrate how the courts deal with challenges relating to the ascertainment and proof of
customary law.
• Provide an example of how a court/s has applied choice of law rules in the past. From
a constitutional perspective, criticise certain factors used in the past to conclude that
customary law / common law is applicable to a given situation.
• Apply acquired knowledge to a set of facts / Solve problems regarding the application of
African customary law.

It should take the average student about 15-20 hours to master the contents of this learning
unit.

2.3 UNIT-SPECIFIC S TUDY MATERIAL

Learning unit 2 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

2.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Study material as indicated on / uploaded on Blackboard.

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• Questions applicable to this unit below.

2.5 CONTENT MATERIAL

Study material:

• Rautenbach paragraphs 3.1, 3.2.1, 3.2.2 and 3.3 (including all subparagraphs).
• Further material as indicated on / uploaded on Blackboard.

Diligent students who wish to make a deeper study than is required for assessment purposes
may wish to consult the following material:

• Reading material and/or study material (lecturer will indicate).

• Rautenbach paragraph 3.4.
• Himonga and Nhlapo (eds) 2014 "African Customary Law in South Africa Post-
Apartheid and Living Perspectives" 1st ed Oxford University Press (Pages 81 – 87).

2.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

2.7 QUESTIONS TO CONSIDER IN THIS UNIT

1. Sometimes a court have to decide whether common law or a customary legal

system (or a court have to choose between more than one customary legal
systems) should be applied in a given case. Describe how the court will be
able to make such a decision.
2. Explain, by means of an example, why there is a need for choice of law rules
3. In some instances the courts have to choose whether common law or customary law
should be applied in a given case. Outline the principles governing choice of law as
was laid down by the courts.
4. Critically discuss the provisions of section 1(3) of the Law of Evidence Amendment
Act 45 of 1988.

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5. Mr Fihlo is a South Sotho man working in Bloemfontein. His wife, Puleng, is on
holiday in East London. While she is there, Mr Xaba, a Xhosa man from the Pondo
tribe who resides and works in Umtata, commits adultery with Puleng. Mr Fihlo
wants to sue Mr Xaba for damages for adultery under customary law. Determine the
customary legal system applicable.
6. Students should also be able to answer the listed learning outcomes in the format
of both shorter and longer questions, depending on the marks allocated

2.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving
• Written communication

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 LEARNING UNIT 3: SOUTH AFRICAN CUSTOMARY L AW:
TRADITIONAL AND KHOI-SAN LEADERSHIP AND GOVERNANCE

3.1 UNIT OVERVIEW

In terms of the 1996-Constitution, courts must apply customary law when that law is applicable
(section 211(3)). Section 211(1) specifically provides for recognition of the institution, status
and role of traditional leadership. Accordingly, the Traditional Leadership and Governance
Framework Act was promulgated. The Traditional & Khoi-San Leadership Act also came into
effect on 01 April 2021. The Act "enables Khoi and San leaders to serve in the national and
provincial Houses of Traditional leaders".

3.2 LEARNING OUTCOMES

After completing learning unit 3, you should be able to do the following:

• Compare the features of modern constitutionalism and traditional government.

• Explain the different aspects of the historical traditional authority system.
• Explain briefly why it can be stated that the institution of traditional leadership is also
subject to the Constitution.
• Briefly describe the legislative foundation of the institution of traditional leadership.
• Provide an overview of the Traditional and Khoi-San Leadership Act.

It may take the average student about 10-15 hours to master the contents of this learning unit.

3.3 UNIT-SPECIFIC STUDY MATERIAL

Learning unit 3 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

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 3.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Study material as indicated on / uploaded on Blackboard.
• Questions applicable to this unit below.

3.5 CONTENT MATERIAL

Study material:

• Rautenbach paragraphs (in chapter 10) 10.2, 10.3, 10.4, 10.5, 10.6, 10.7.10
• Shilubana v Nwamitwa 2009 2 SA 66 (CC)
• Premier, Eastern Cape v Ntamo 2015 (6) SA 400 (ECB)
• Traditional and Khoi-San Leadership Act 3 of 2019 – sections indicated in class

Reading material:

• Rautenbach paragraphs (in chapter 10) 10.7 (except 10.7.10), 10.8, 10.9
• Barrie GN 2018 "Not only can the King do no wrong, he also does not have judicial
immunity. The incarceration of the King of the Abathembu Nation His Majesty Dalinyebo
continues to reverberate" TSAR 670 - 680
• Mmusinyane 2009 "The role of traditional authorities in developing customary laws in
accordance with the Constitution: Shilubana and Others v Nwamitwa 2008 9 BCLR
914 (CC)" PER/PELJ: 136-161
• Congress of Traditional Leaders of South Africa v Speaker of the National Assembly
2017 2 All SA 463 (WCC)

3.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

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 3.7 QUESTIONS TO CONSIDER IN THIS UNIT

1. Compare the features of modern constitutionalism and traditional government.

2. Briefly explain the following regarding the traditional leader:
2.1 How a position of authority is attained through succession.
2.2 The rules regarding replacement, and regency.
2.3 The arguments against the succession of women as traditional leaders.
2.4 Fulfilment of functions.
3. Name the different bodies advising the traditional leader and briefly describe their
composition and main functions.
4. The institution of traditional leadership is also subject to the Constitution. Which sections
of the Constitution are implied? Explain briefly.
5. Outline the aim of the Traditional Leadership and Governance Framework Act, 41 of
2003.
6. When and how can a traditional community be recognised?
7. “A traditional community would in its traditional form not comply with the requirements
embodied in the Bill of Rights.” Name and briefly explain the ways in which it must
transform.
8. Write short notes on the establishment and recognition of traditional councils.
9. What are the functions of traditional councils?
10. How will performance of functions by a traditional council be regulated?
11. The Act provides for partnerships between municipalities and traditional councils.
Explain.
12. Name the different categories of traditional leadership positions, recognised in the Act.
13. Describe the role of the following whenever the position of a king or queen is to be filled:
13.1 the royal family;
13.2 the president;
14. On which grounds may a king, queen, or other traditional leader be removed from
office?
15. Briefly describe how a person will be recognised as a senior traditional leader,
headman, or headwoman.
16. When will a regent be appointed?
17. Briefly discuss the importance of Shilubana and Others v Nwamitwa 2008 9 BCLR
(CC).
18. Name the different houses of traditional leaders.

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19. When must a local house of traditional leaders be established?
20. What are the functions of a local house of traditional leaders?
21. How and why did the Act address the problem of resolving disputes where a whole
community is involved?
22. Briefly explain the functions of the “Commission of Traditional Leadership Disputes and
Claims”.
23. What are the outstanding features of the Act (41 of 2003)?
24. Provide the definition of "Khoi-San" as it appears in the Traditional and Khoi-San
Leadership Act 3 of 2019.

Students should also be able to answer the listed learning outcomes in the format of both
shorter and longer questions, depending on the marks allocated.

3.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving

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 LEARNING UNIT 4: SOUTH AFRICAN CUSTOMARY L AW:
TRADITIONAL COURTS AND OTHER DISPUTE RESOLUTION
MECHANISMS

4.1 UNIT OVERVIEW

The Traditional Courts Bill has been under discussion for quite a number of years now. Further
meetings regarding the Bill were scheduled for the third term of 2021. The Constitution, by
means of section 166, recognises such institutions.

4.2 LEARNING OUTCOMES

After completing learning unit 4, you should be able to do the following:

• Explain whether traditional authority courts are recognised by the Constitution.

• Name the courts that may apply customary law.
• Explain the civil and criminal jurisdiction of courts of traditional leaders.
• Write brief notes on the informal dispute-settlement forums.
• Fully discuss the application of customary law in ordinary courts.
• Critically discuss the Bill for the regulation of customary courts.
• Briefly describe the legislative foundation of the institution of traditional leadership.

It may take the average student about 10-15 hours to master the contents of this learning unit.

4.3 UNIT-SPECIFIC STUDY MATERIAL

Learning unit 4 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

32 | P a g e
 4.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Study material as indicated on / uploaded on Blackboard.
• Questions applicable to this unit below.

4.5 CONTENT MATERIAL

Study material:

• Rautenbach paragraphs (in chapter 11) 11.1, 11.2, 11.3, 11.4, 11.5
• Traditional Courts Act 9 of 2022

Reading material:

• De Souza Louw M 2020 "Evolution of provisions relating to violence against women in

South Africa's Traditional Courts Bill" Acta Juridica 87 – 133.
• Willams J and Klusener J 2013 "The Traditional Courts Bill: A Woman's Perspective"
SAJHR 276 – 293.
• Thipe T and Buthelezi M 2014 "Discourse and Debate Democracy in Action: The Demise
of the Traditional Courts Bill and its Implications" SAJHR 196 - 205.

4.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

4.7 QUESTIONS TO CONSIDER IN THIS UNIT

Answer the questions below in preparation of the lecture. Bring your answers to the lecture for
discussion.

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1. Are traditional authority courts recognised by the Constitution? Explain briefly.
2. Explain the jurisdiction rights and duties of a traditional leader in civil claims.
3. Explain the jurisdiction of traditional leaders in criminal cases.
4. Write brief notes on the courts of ward heads.

Students should also be able to answer the listed learning outcomes in the format of both
shorter and longer questions, depending on the marks allocated.

4.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving
• Written communication

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 LEARNING UNIT 5: SOUTH AFRICAN CUSTOMARY L AW: PROPERTY

5.1 UNIT OVERVIEW

The Constitution of the Republic of South Africa of 1996 acknowledges customary law as a
primary (official) legal system.

Customary law property rights were generally characterised by a family or "household

approach". Even though individuals within the family were accommodated and protected, the
family head (a male person) was the person generally responsible for the administration and
control of the family property (as per Rautenbach paragraph 6.1).

In customary law there is a distinction between different categories of property, namely family
property, house property and personal property. The commencement of the Constitution,
along with certain other legislation, have contributed to important developments impacting on
property held within a customary law context (as per Rautenbach paragraph 6.1).

5.2 LEARNING OUTCOMES

After completing learning unit 5, you should be able to do the following:

• Describe the characteristics of customary law property rights.

• Explain and evaluate the meaning and content of the following concepts: Family
property, House property and Personal property.
• Distinguish between different ways in which to acquire property rights in customary
law.

It may take the average student about 10 hours to master the contents of this learning unit.

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 5.3 UNIT-SPECIFIC STUDY MATERIAL

Learning unit 5 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

5.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Questions applicable to this unit below.

5.5 CONTENT MATERIAL

Study material:

• Rautenbach paragraphs (chapter 6) 6.1, 6.2, 6.3

Reading material:

• Rautenbach paragraph 6.4.

• Maledu v Itereleng Bakgatla Mineral Resources [2018] ZACC 41.

5.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

5.7 QUESTIONS TO CONSIDER IN THIS UNIT

1. Evaluate the characteristics of customary law property rights.

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2. Distinguish between family property, house property, and personal property.

Students should be able to answer the listed learning outcomes in the format of both shorter
and longer questions, depending on the marks allocated.

5.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving

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 LEARNING UNIT 6: SOUTH AFRICAN CUSTOMARY LAW: THE FAMILY

6.1 UNIT OVERVIEW

Before the Constitution, customary marriages did not enjoy full recognition / the same status
as marriages concluded in terms of the Marriage Act (civil marriages). Customary marriages
only received full recognition with the enactment of the Recognition of Customary Marriages
Act, which came into operation on 15 November 2000. The latter Act requires that a customary
marriage must be negotiated and concluded or celebrated in accordance with customary law.
A definition of "customary law" (as also discussed in a previous unit) is provided by the Act.

"New" (post-Act) as well as "old" (pre-Act) customary marriages are recognised by the
Recognition of Customary Marriages Act. Consequently, some aspects of traditional
customary law marriages (requirements for "old" marriages) are included in this unit, which
should also create context. The Recognition of Customary Marriages Act however stands to
be amended in accordance with certain fairly recent court judgments. Consequently / to
address this, the Recognition of Customary Marriages Amendment Bill of 2019 was submitted
to Parliament in July of 2019. In the meantime, the South African Law Reform Commission
has also been investigating the possibility of a "Single Marriage Statute" - in order to eliminate
the existence of various statutes dealing with marriage in South Africa (which, on its' turn, may
lead to inequality). On 4 May 2021, a green paper on marriages in South Africa appeared in
GN No 398.

6.2 LEARNING OUTCOMES

After completing learning unit 6, you should be able to do the following:

• Name and briefly describe the different ways to initiate marriage negotiations.
• Distinguish between the different categories of property (material goods) under
discussion at the "engagement" / initiation of marriage negotiations; and indicate the
legal position of each category.
• List the methods of termination of the "engagement".

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• Briefly explain the legal consequences of the termination of an engagement with
reference to the effect on the different categories of material goods.
• Discuss the status of customary marriages under the Constitutional dispensation whilst
also comparing it to the position before the Constitution.
• List the traditional requirements of a customary marriage.
• With regards to the Recognition of Customary Marriages Act:

- Explain which customary marriages will be recognised as valid in terms of section

2;
- Define "customary marriage" and "customary law" in terms of section 1;
- Thoroughly explain and discuss the requirements for a valid customary
marriage (section 3);
- Write critical notes on the registration of a customary marriage (section 4);
- Describe the status of a wife (and spouses in general) in a customary marriage
(section 6);
- With reference also to relevant case law, explain the proprietary
consequences of customary marriages (section 7); and
- Explain how and on which "grounds" a customary marriage may be dissolved
(section 8).

Students should be able to evaluate and critically discuss all of the above mentioned
sections. A student should further be able to apply laws regulating customary marriage
(legislation and case law) to a set/s of facts.

• Name the Bill which has been submitted to Parliament in order to address case law on
certain sections of the Recognition of Customary Marriages Act.
• From a Constitutional viewpoint, critically discuss and evaluate both the lobolo custom
as well as the custom of "handing over of the bride". The latter should be done with
reference to recent case law in this regard.
• Evaluate the non-registration of a customary marriage.
• Briefly describe the position of customary law spouses i. before 2 December 1988, and
ii. after 2 December 1988
• Briefly discuss recent case law which amended the position of pre-1988 customary
marriages being out of community of property.
• Explain the effect of contracting a civil marriage or civil union during the subsistence of
a customary marriage.
• Argue for and/or against a "Single Marriage Statute".

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• Evaluate dissolution of a customary marriage and discuss whether lobolo should be
returned at such dissolution.
• Discuss "adoption practices" in customary law. The discussion should include a list of
"forms" of adoptions found within customary law as well as a list of certain general
requirements which should be adhered to in order for such adoptions to take place.
It should take the average student about 25-30 hours to master the contents of this learning
unit.

6.3 UNIT-SPECIFIC S TUDY MATERIAL

Learning unit 9 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study

material. 6.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Study material as indicated on / uploaded on Blackboard.
• Questions applicable to this unit below.

6.5 CONTENT MATERIAL

Study material:

• Rautenbach paragraphs 5.1, 5.2.1 (self-study / The "ukuthwala"-custom will receive

more attention in a later unit), 5.2.2 (self-study), 5.2.3 (self-study), 5.3.1, 5.3.2
(excluding subparagraphs) 5.3.3.1, 5.3.3.3, 5.3.3.4, 5.3.4, 5.3.5, 5.3.6 (including all
subparagraphs), , 5.3.7.2, 5.3.7.3.3, 5.3.10, 5.4 (self-study) and 5.5.
• The Recognition of Customary Marriages Act 120 of 1998 ("the RCMA").
• Ramuhovhi v President of the Republic of South Africa 2017 ZACC 41.
• Ngwenyama v Mayelane 2012 4 SA 527 SCA - also cited as MM v MN 2013 4 SA 415
CC.

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• Mbungela v Mkabi (820/2018) [2019] ZASCA 134 (30 September 2019).
• AS v GS 2020 (3) SA 465 (KZD) (24 January 2020)
• Murabi v Murabi (893/12) [2014] ZASCA 49 (1 April 2014).

Reading material and/or study material (lecturer will indicate):

For purposes of some background on the ukuthwala custom, consult the following sources
and read the following notes (however as stated, the practice will also be discussed in more
detail later in the course):

• Mwambene and Sloth-Nielsen 2011 "Benign accommodation? Ukuthwala, 'forced

marriage' and the South African Children's Act" African Human Rights Law Journal: 1-
22.
• South African Law Reform Commission May 2014 "The practice of ukuthwala"
Discussion Paper 132 Project 138.
• See Matshidze et al 2017 Gender & Behaviour 9013-4 for case studies of the original
version of ukuthwala versus the distorted version of ukuthwala as well as an analysis
thereof.
• Mabasa 2015 De Jure 1–5.
• Mwambene and Kruuse 2017 "The thin edge of the wedge: ukuthwala, alienation
and consent" South African Journal on Human Rights 33 (1): 25-45.

For further general background / context, consult the following sources and read the
following notes. Also find and consult more recent sources on the topic/s.

• Rautenbach paragraphs 5.3.3.2, 5.3.7.3.1, 5.3.7.3.2 and 5.3.8. Mabena v Letsoalo

1998 2
• SA 1068 (T).
• Mabuza v Mbatha 2003 4 SA 218 (CPD).
• Bekker 2004 "Requirements for the validity of a customary marriage: Mabuza v
Mbatha" THRHR: 146-150.
• Fanti v Boto and Others 2008 5 SA 405 (CPD).
• Ngema 2013 "The enforcement of the payment of lobolo and its impact on children's
rights in South Africa" PELJ: 404-536.
• Mofokeng 2005 "The lobolo agreement as the silent prerequisite for the validity of a
customary marriage in terms of the Recognition of Customary Marriages Act" THRHR:
277- 288.
• Knoetze 2000 "The modern significance of lobolo" TSAR: 532-543.

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• Jansen and Ellis 1999 "The South African Common Law and Lobolo – Another
perspective" Journal for Juridical Science 24(2): 41-49 and 54.
• Nkosi Nov 2013 "The ending of a customary marriage What happens to ilobolo?" De
Rebus: 36-39.
• Müller-van der Westhuizen and Nhlapo 2016 "Practical challenges relating to the
supervision of small estates" Journal for Juridical Science: 1-18.
• Maithufi and Bekker 2009 "The existence and proof of customary marriages for
purposes of Road Accident Fund claims" Obiter 164-174.
• Van Niekerk 2013 "The courts revisit polygyny and the Recognition of Customary
Marriages Act 120 of 1998 Ngwenyama v Mayelane 2012 4 SA 527 (SCA); Mayelane
v Ngwenyama
• 2013 4 SA 415 (CC)" SAPL: 469-487.
• Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC). Hlope v
Mahlalela 1998 1 SA (TPD).
• Thembisile v Thembisile 2002 2 SA 209 (TPD).
• Fosi v Road Accident Fund 2008 3 SA 560 (CPD).
• Nkosi 2000 "The status of African women: has it really changed?" Codicillus 41(2): 48-
53.
• Nicholson 2003 "The realisation of human rights within the context of African
marriages" THRHR 66: 373-388.
• Jansen 2003 "Multiple marriages, burial rights and the role of lobolo at the dissolution of
the marriages" Journal for Juridical Science 27(2): 120-132.
• Weeks 2021 "Constitutionally transforming South Africa by amalgamating customary
and common law: Ramuhovhi, the proprietary consequences of marriage and land as
property" Constitutional Court Review 165-205
• Bapela and Monyamane 2021 "The 'revolving door' of requirements for validity of
customary marriages in action Mbungela v Mkabi [2019] ZASCA 134 Obiter 186-193

Case law

Ex parte Minister of Native Affairs: Re Molefe v Molefe 1946 AD 315 ruled that the proprietary
rights of the spouses were governed by common law except where a specific statute altered
the common law.

According to section 7(3)-(6) the Divorce Act, the court may order an equitable redistribution
of assets in marriages out of community of property.

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In Mathabathe v Mathabathe 1987 3 SA 45 (W), the court said that in marriages where the
repealed section 22(6) applied, which made these marriages automatically out of community
of property, the court could also make an equitable redistribution.

Milbourn v Milbourn 1987 3 SA 62 (W) decided otherwise.

Mathabathe was confirmed in legislation (Act 3 of 1988). Therefore, section 7(3) is

applicable in section 22(6) marriages (automatically out of community of property).

6.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

6.7 QUESTIONS TO CONSIDER IN THIS UNIT

1. Name and briefly explain the different ways to initiate marriage negotiations.
2. Briefly explain "ukuthwala".
3. Distinguish between the different categories of property (material goods) under
discussion at the engagement and discuss the legal consequences where betrothal is
terminated.
4. Describe the ways of terminating the engagement.
5. In terms of the Recognition of Customary Marriages Act:
5.1 Explain which customary marriages will be recognised as valid (in terms of section 2).
5.2 Define:
5.2.1 "customary marriage"
5.2.2 "customary law"
6. Is it possible for a member of any population group to enter into a customary marriage?
Briefly provide an opinion in this regard.
7. Name and briefly explain the requirements of a customary marriage (outside KZN and
the Transkei) before 15 November 2000.
8. Name the requirements for a customary marriage in terms of section 3 of the Act.
9. Argue for or against the practise being a validity requirement for a customary marriage.
10. Is "handing over of the bride" a requirement for a valid customary marriage? Discuss
(with reference to relevant case law).

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11. How is the size of lobolo determined? Explain.
12. Explain the arrangements regarding registration of customary marriages in terms of
section 4 of the Act.
13. Discuss some of the challenges, with respect to the registration of customary marriages,
which may exist in practice.
14. Explain how section 6 changed the traditional position in customary law.
15. Briefly explain the effect of Gumede v President of the Republic of South Africa 2009 3
SA 152 (CC) on monogamous customary marriages.
16. Evaluate whether, since the Gumede-decision, the position regarding women in
polygynous marriages has changed.
17. Thandi and Vuyo entered into a customary marriage in 1998. Vuyo now wants to enter
into a further customary marriage with Puleng. Explain the procedure that needs to be
followed by Vuyo in order for him to take a second wife. You must also discuss the legal
implications in the event that Vuyo chooses not to follow the procedure prescribed by
the RoCMA in this regard.
18. How and on which "ground(s)" may a customary marriage be dissolved in terms of the
RoCMA? Explain.
19. Which courts have jurisdiction to dissolve a customary marriage? Explain how the
position now differs from the traditional position.
20. Which (Discuss briefly) circumstances may the court take into account to determine
whether there is an irretrievable breakdown of a marriage?
21. Certain indigenous marriage practices may be perceived to undermine the equal status
of women. Briefly discuss same.
22. May a spouse in a civil marriage enter into a customary marriage with another person?
Explain.
23. May a spouse in a customary marriage enter into a civil marriage with another person?
Explain.
24. Explain:
24.1 the circumstances under which spouses in a customary marriage may convert their
marriage into a civil marriage; and
24.2 the consequences of such a conversion.
25. Veronica, a black, African woman, approaches you for legal advice. She wants to divorce
her husband, Vuyo, to whom she was married in accordance with civil rites on 10
September 1988. She is unaware of the proprietary consequences of her marriage and
needs your advice. Advice.
26. Discuss Murabi v Murabi (893/12) [2014] ZASCA 49 (1 April 2014) briefly. Students
should be able to answer the listed learning outcomes in the format of both shorter and

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 longer questions, depending on the marks allocated.

6.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving
• Written communication

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 LEARNING UNIT 7: SOUTH AFRICAN CUSTOMARY LAW: SUCCESSION
AND INHERITANCE

7.1 UNIT OVERVIEW

In customary law, "succession" and "inheritance" do not necessarily have the same meaning.
With respect to succession in particular, the eldest male generally would have "succeeded" /
stepped into the shoes of, the deceased. It was his duty to control the family's assets to the
benefit of the family as a whole. In cases of polygyny, eldest sons succeeded in the various
"houses". Male primogeniture therefore stood in the centre of the customary law of succession.

The Constitutional Court found the rule of male primogeniture to be unconstitutional. Along
with certain legal developments following the decision made by the CC / Bhe-decision, the
customary law of succession and inheritance was basically changed in its' entirety.

The Intestate Succession Act, along with the Reform of Customary Law of Succession and
Regulation of Related Matters Act now apply to a deceased who lived under a system of
customary law. Striking down male primogeniture was done in the quest to obtain equality for,
for example, women and younger sons, however certain questions (such as whether the eldest
male still has a duty to look after the family unit), remain unanswered.

More about the history, current position and certain unanswered questions follows in this unit.
Students will also have the opportunity to perform basic numeracy tasks.

7.2 LEARNING OUTCOMES

After completing learning unit 10, you should be able to do the following:

• Distinguish briefly between inheritance and succession.

• Provide an outline of the general, traditional principles of the customary law of
• succession.
• Briefly explain the general, traditional order of succession in a monogamous and in a
polygynous household.
• Fully discuss Bhe v Magistrate, Khayelitsha (etc) 2005 1 SA and explain the
impact of this judgment in the South African constitutional dispensation.

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• Critically discuss the current legal position (law reform) regarding customary law of
succession and inheritance.
• Explain the right to bury a deceased family member.
• In applying either traditional rules of succession and / or certain rules in terms of the
Intestate Succession Act, students should also be able to perform basic numeracy tasks.

It should take the average student about 20-25 hours to master the contents of this learning
unit.

7.3 UNIT-SPECIFIC S TUDY MATERIAL

Learning unit 10 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

7.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Questions applicable to this unit below

7.5 CONTENT MATERIAL

Study material:

• Rautenbach paragraphs 9.1, 9.2 (including paragraphs 9.2.1, 9.2.2, 9.2.2.1, 9.2.2.2 and
9.2.3), 9.5 and 9.6 (9.6.1 – 9.6.4) (self-study).
• Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC) (for guidance, see from page 43
below).

Reading material and/or study material (lecturer will indicate):

• Rautenbach paragraphs 9.2.2.3, 9.2.3, 9.2.4, 9.3.1 – 9.3.4, 9.4.6.

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• Centre of Socio-Legal Research University of Cape Town 2006 "Protecting the
vulnerable from 'property grabbing': The reality of Intestate Inheritance" News and views
for Magistrates: 3
• Bekker and Koyana 2012 "The judicial and legislative reform of the customary law of
succession" De Jure: 568-584
• Sibanda and Mosaka 2015 "Bhe v Magistrate, Khayelitsha: A cultural conundrum,
Fanonian alienation and an elusive constitutional oneness" A Transformative Justice:
Essays in honour of Pius Langa: 256-280
• Müller-van der Westhuizen and Nhlapo 2016 "Practical challenges relating to the
supervision of small estates" Journal for Juridical Science: 1-18

7.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

7.7 QUESTIONS TO CONSIDER IN THIS UNIT

1. Distinguish briefly between inheritance and succession.

2. Provide a detailed account of the general principles of the customary law of succession.
3. Explain the problematic effect of changing circumstances on traditional
customary law and why customary law could not keep pace (Bhe case para 80-
87).
4. Explain why the rule of male primogeniture was declared unconstitutional
by the Constitutional Court in Bhe v Magistrate, Khayelitsha (para 88 and
further).
5. Discuss why section 23 of the Black Administration Act and the relevant
regulations were declared unconstitutional by the Constitutional Court in Bhe
v Magistrate, Khayelitsha (see paragraphs 68 and 73).
6. A black, African family head died intestate in July 2005 and is survived by his wife,
whom he had married according to traditional customary law principles, one son,
and three daughters. Explain how his estate will devolve.
7. Briefly explain the position where a man died intestate in July 2005 and is
survived by two wives whom he had married according to customary law.

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8. Indicate whether Bhe v Magistrate, Khayelitsha have retrospective effect.
(see para 129).
9. The Bhe case provides for the “facilitation of agreements”. Briefly explain. (See
paragraph 130.)
10. Criticise the division of an estate into equal shares between the beneficiaries.
11. Briefly discuss the right to visit the grave of a deceased.
12. In a set of facts: Students must be able to reason who should have burial rights
(with reference to case law).
13. In a set of facts: Students must be able to perform certain basic numerical tasks.
Students should also be able to answer the listed learning outcomes in the format
of both shorter and longer questions, depending on the marks allocated.

7.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving

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 LEARNING UNIT 8: SOUTH AFRICAN CUSTOMARY LAW: CONTRACTS

8.1 UNIT OVERVIEW

The most important contract in customary law is probably the lobolo agreement and contracts
associated with it. Lobolo already featured in a previous unit. In this unit we will deal with
general information regarding the customary law of contract as well as certain specific and
quasi-contracts. Customary law contracts have to be recognised subject to the Constitution.

8.2 LEARNING OUTCOMES

After completing learning unit 8, you should be able to do the following:

• Describe the customary law contract.

• Explain the parties to a customary law contract.
• Discuss representation in customary law.
• Explain the following customary law contracts: Gifts, loans for use and loans for
consumption, exchange, farming out and service contracts.
• Briefly describe the quasi-contract isondlo.

It may take the average student about 15 - 20 hours to master the contents of this learning
unit.

8.3 UNIT-SPECIFIC S TUDY MATERIAL

Learning unit 8 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

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 8.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Questions applicable to this unit below.

8.5 CONTENT MATERIAL

Study material:

• Rautenbach paragraphs 7.1, 7.2.1, 7.2.2, 7.3 (including subparagraphs) and 7.4.2.

Reading material:

• Rautenbach paragraph 7.5.

• Himonga and Nhlapo (eds) 2014 "African Customary Law in South Africa Post-
Apartheid and Living Perspectives" 1st ed Oxford University Press (chapter 10).
• Sibisi 2021 "The Juristic Nature of iLobolo Agreements in Modern South Africa" Obiter
57 – 69.

8.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

8.7 QUESTIONS TO CONSIDER IN THIS UNIT

1. Explain the way in which a contract is concluded in customary law.

2. Explain when a contractual liability arises in customary law.
3. Explain the legal position with regards to the family as party to a contract.
4. Write short notes on: isondlo.

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 8.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving
• Written communication

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 LEARNING UNIT 9: SOUTH AFRICAN CUSTOMARY LAW: DELICTS

9.1 UNIT OVERVIEW

It is important to keep in mind that where a delict is alleged to have been committed, both
customary law and common law may be applied. However, it is necessary first to determine
which legal system will probably be applicable in order to determine:

• the parties to the dispute;

• the forum; and
• whether an alternative dispute resolution might best serve the purpose.

Certain customary law delicts may be incompatible with the Bill of Rights.

9.2 LEARNING OUTCOMES

After completing learning unit 8, you should be able to do the following:

• Explain why it is necessary to determine which legal system will probably be applicable
– common law or customary law.
• Write brief notes on the accessory liability of the family head.
• Discuss the defloration of an unmarried girl as a delict in customary law.
• Distinguish between the indigenous law action for defloration and the common law
action for seduction.
• Discuss adultery as a delict in customary law.
• Briefly discuss the following sexual delict: Impregnation of an unmarried girl.
• Explain when ukuthwala would be a delict in customary law.
• Explain the relevance, if any, of section 31 of the Black Laws Amendment Act 76 of
1963.
• Explain in which respects some customary law delicts may be in contrast with the
Constitution.

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 9.3 UNIT-SPECIFIC S TUDY MATERIAL

Learning unit 9 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

9.4 PREPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Questions applicable to this unit below.

9.5 CONTENT MATERIAL

Study material:

• Rautenbach paragraphs 8.1, 8.2, 8.3, 8.3.1 – 8.3.4 (including sub-paragraphs), 8.4 &
8.7 (8.7.1 and 8.7.2).

Reading material:

• Rautenbach paragraph 8.5.

• Mwambene and Sloth-Nielsen 2011 "Benign accommodation? Ukuthwala, 'forced
marriage' and the South African Children's Act" African Human Rights Law Journal: 1-
22.
• South African Law Reform Commission May 2014 "The practice of ukuthwala"
Discussion Paper 132 Project 138.
• Matshidze et al 2017 Gender & Behaviour 9013-4 for case studies of the original
version of ukuthwala versus the distorted version of ukuthwala as well as an analysis
thereof.
• Mabasa 2015 De Jure 1–5.
• Jezile v S (A 127/2014) [2015] ZAWCHC 31.

For purposes of a background, read the following notes:

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Assault and causation of death

Due to the unfair situation in the past, section 31 of the Black Laws Amendment Act 76 of
1963 was promulgated.

Read section 31 of the Constitution. Since 15 November 2000, customary marriages have
been recognised as valid marriages. The widow or widower of a customary marriage,
therefore, has the same rights as a widow or widower of a civil marriage – he or she is a legal
dependant of his or her spouse and the right to maintenance can be enforced against third
parties.

Section 31 has, however, not been repealed and still applies in so far as it is not inconsistent
with the Recognition of Customary Marriages Act 120 of 1998. Therefore, it can still be used
to prove the existence of a customary marriage should a dispute arise. In a polygamous
marriage, section 31 can still be used to avoid payment of more compensation than would be
payable if the deceased had only one wife, and to limit time and costs. It is however not a
prerequisite for the widow’s claim anymore. The registration certificate issued in terms of
section 4 of the Recognition of Customary Marriages Act, is prima facie evidence of the
existence of a customary marriage. Registration is not a prerequisite for the validity of the
marriage and therefore other evidence can also be accepted to prove the existence of the
customary marriage.

Section 31(2) mentions that the spouse must “produce” a certificate. There is conflicting case
law on when this certificate must be “produced”.

Finlay and Another v Kutoane 1993 4 SA 675 (W), gives (in my opinion) the best account
of what the legal position should be:

(a) “Produce” must be understood in its ordinary meaning, that is, to show to the other party.
(b) There is flexibility with regard to the time when the certificate must be produced, either:
(i) directly to the defendant prior to the issuing of summons; or
(ii) attached to the summons; or
(iii) on application; or
(iv) at the final stage during the trial, but then it must be covered by an allegation
in the summons that he/she could produce the certificate.
(c) The defendant need not wait until the trial before he/she demands the production of the
certificate.

Gasa v Road Accident Fund, Case no 579/06 (SCA) court order 19 November 2007
(paragraphs 2 and 4). The Supreme Court of Appeal ordered the Minister of Justice and

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Constitutional Development to review the continued existence of section 31 within a
specific time. The section has not been repealed yet.

9.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on
assessment opportunities.

9.7 QUESTIONS TO CONSIDER IN THIS UNIT

Accessory liability of the family head

1. Discuss the following aspects regarding the accessory liability of the family head:
1.1 Historical background and whether it should still find application.
1.2 Customary law principles that determine liability.

Sexual delicts

1. Why is the plaintiff in an alleged sexual delict in customary law always a male?
2. Discuss the defloration of an unmarried girl as a delict in customary law.
3. Distinguish between the action for defloration and the common law action for
seduction and indicate whether both can be instituted.
4. Discuss impregnation of an unmarried girl in customary law.
5. Discuss adultery as a delict in customary law.

Ukuthwala and defamation as delicts

Is ukuthwala a delict in customary law? Explain briefly.

Assault and causation of death

1. What purpose (if any) does section 31 of the Black Laws Amendment Act 76 of
1963 have?
2. Indicate whether the section 31 certificate is still a requirement in the widow’s
action for loss of maintenance and what your advice to your client will be in this
regard.
Students should also be able to answer the listed learning outcomes in the format of both

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shorter and longer questions, depending on the marks allocated.

9.8 STUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving
• Written communication

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 LEARNING UNIT 10: THE ROLE OF AFRICAN CUSTOMARY LAW IN
ADDRESSING CERTAIN SOCIAL JUSTICE ISSUES

10.1 UNIT OVERVIEW

"The full transformative power of the rights in the Bill of Rights will only be realised when they
are interpreted with reference to the specific social and economic context prevalent in the
country as a whole…" (as per Jajbhay J in City of Johannesburg v Rand Properties 2006)

"According to Fraser, in order to achieve social justice, a society would have to address the
glaring forms of status subordination based on – for instance – race, gender, and sexual
orientation as well as systemic patterns of social and economic disadvantage." (as per Phooko
and Radebe)

The question/s to consider here is not only how customary law advances certain social justice
issues / injustices; one may also want to consider the role African Customary Law has to play
in addressing these issues. Throughout the course of the year, students should reflect and
suggest potential debatable points.

10.2 LEARNING OUTCOMES

After completing learning unit 2, you should be able to do the following:

• Evaluate the role of African customary law in advancing social justice issues such as
inequality, discrimination and unfairness.

It should take the average student about 10 - 15 hours to master the contents of this learning
unit.

10.3 UNIT-SPECIFIC STUDY MATERIAL

Learning unit 2 consists of specific preparation material and content material that will assist
each student in understanding the key concepts of this unit. It is the responsibility of each
student to ensure that he/she familiarises him/herself with unit-specific study material.

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 10.4 P REPARATION MATERIAL

Prepare the:

• Study material indicated below.

• Questions applicable to this unit below.

10.5 CONTENT MATERIAL

The following material needs to be studied in this learning unit:

• Rautenbach paragraphs (in chapter 3) 3.1 and 3.5

Law of Marriage

• Rautenbach paragraph (in chapter 5) 5.3.5

• Recognition of Customary Marriages Act 120 of 1998 - sections indicated in class
• Gumede v President of the Republic of South Africa 2009 BCLR 243 (CC)
• Ramuhovhi v President of the Republic of South Africa 2018 (2) SA 1 (CC)
• MM v MN 2013 4 SA 415 (CC)

Law of Succession

• Rautenbach paragraphs (in chapter 9) 9.4.6 and 9.5.2

• Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of
2009 - sections indicated in class
• Intestate Succession Act 81 of 1987 - sections indicated in class
• Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC)

Traditional leadership

• Rautenbach paragraph (in chapter 10) 10.5.2

• Shilubana v Nwamitwa 2009 (2) SA 66 (CC)

The following reading material can be consulted for further context to this learning unit:

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• Müller van der Westhuizen C and Meyer SL “The (non-)recognition of same-sex
marriage in the Recognition of Customary Marriages Act 120 of 1998” Journal for
Juridical Science 44(2): 44-67
• Weeks SM 2021 "Constitutionally transforming South Africa by amalgamating
customary and common law: Ramuhovhi, the proprietary consequences of marriage and
land as property" Constitutional Court Review 165 – 205
• Barkley S 2020 "A crisis of violence against women: Has South Africa fulfilled its
obligation in terms of the Convention on the Elimination of All Forms of Discrimination
against Women?" Acta Juridica 165 – 195.
• Bohler-Müller 2001 “Cultural practices and social justice in a constitutional dispensation:
Some (more) thoughts on gender equality in South Africa” Obiter
• Luwaya N and Omar J 2020 "Working against violence against women: How far have
we come?" Acta Juridica 1 – 26.

10.6 LEARNING AND ASSESSMENT ACTIVITIES

You will be assessed on the contents of this learning unit during particular assessment
opportunities. Refer to Blackboard for more information and announcements on assessment
opportunities.

10.7 QUESTIONS TO CONSIDER IN THIS UNIT

Students should also be able to answer the listed learning outcomes in the format of both
shorter and longer questions, depending on the marks allocated.

10.8 S TUDENT GRADUATE ATTRIBUTES DEVELOPED IN THIS UNIT

• Academic competence (with respect to the topic/s discussed in this unit)

• Critical thinking
• Problem solving
• Written communication
• Ethical reasoning

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