LAC PAST PAPER MEMORANDUMS

PAST PAPER 1: MAY 2024

Question 1 (8 marks)

1.1 Name the two forms or types of African customary law.

• Official customary law

• Living customary law

1.2 Explanation of the two forms or types of African customary law

• Official Customary Law

o Codified and interpreted by state institutions (courts, legislation, textbooks).

o Historically shaped by colonial and apartheid legislation, especially:

▪ Black Administration Act 38 of 1927

▪ Section 11(1): Introduced the repugnancy clause, allowing courts to reject customary
law if deemed “repugnant to the principles of natural justice or public policy.”

▪ Section 23(1): Codified male primogeniture in succession.

o Criticised for being:

▪ Fossilised: Static and unable to evolve with community practice.

▪ Distorted: Filtered through Western legal norms.

▪ Uncustomary: Detached from actual lived practices.

o Courts historically preferred written records over oral evidence, undermining authenticity.

• Living Customary Law

o Refers to the evolving practices of communities as they are lived today.

o Protected under the Constitution of the Republic of South Africa, 1996:

▪ Section 211(3): Courts must apply customary law when applicable, subject to the
Constitution and legislation.

▪ Sections 30 and 31: Protect cultural and linguistic communities.

o Affirmed in:

▪ Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC): Customary law is an
integral part of South African law.

▪ Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC): Living law may evolve and be
developed by communities in line with constitutional values.

o Courts now investigate actual community practices rather than relying solely on codified
versions.
 Question 2 (24 marks)

Essay: Section 211(3) of the Constitution and Its Four Functions in Relation to African Customary
Law
Introduction (4 marks)

• Section 211(3) of the Constitution of the Republic of South Africa, 1996, states:

• “The courts must apply customary law when that law is applicable, subject to the Constitution and any
legislation that specifically deals with customary law.”

• This provision performs four distinct but interrelated functions:

1. Recognition Function

2. Application Function

3. Alignment Function

4. Ascertainment Function

• These functions collectively reposition African customary law within South Africa’s plural legal system,
ensuring its legitimacy, enforceability, and compatibility with constitutional values such as equality,
dignity, and cultural autonomy.

1. Recognition Function

Discussion (2 marks):

• Section 211(3) affirms that customary law is a valid and binding legal system.

• This marks a departure from earlier frameworks such as the Black Administration Act 38 of 1927,
which:

o Treated customary law as subordinate to common law.

o Allowed courts to reject it under the repugnancy clause in Section 11(1).

• Recognition is no longer discretionary — courts must apply customary law when relevant.

Effect/Implication (2 marks):

• Customary law now enjoys equal status with common law and legislation.

• In Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC):

o The Constitutional Court held that indigenous land rights based on customary law were
valid and enforceable.

o Customary law was recognised as a source of property rights, not merely cultural
practice.

• This function restores dignity to African legal traditions and affirms their role in governance,
succession, and dispute resolution.

2. Application Function
Discussion (2 marks):

• Section 211(3) makes the application of customary law mandatory when it is applicable.

• This is reinforced by the Law of Evidence Amendment Act 45 of 1988, which provides:

o Section 1(1): Courts may take judicial notice of customary law if it is readily
ascertainable and not contrary to public policy or natural justice.

o Section 1(2): Courts may admit evidence to establish the content of customary law.

• The shift from discretionary to mandatory application ensures that customary law is not excluded from
legal proceedings.

Effect/Implication (2 marks):

• Litigants relying on customary law are no longer disadvantaged by procedural barriers.

• In Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T):

o The court acknowledged the need to apply customary law where relevant, affirming its
practical legal force.

• This function promotes legal pluralism and ensures that African communities can access justice
through their own normative systems.

3. Alignment Function

Discussion (2 marks):

• Section 211(3) subjects’ customary law to the Constitution, especially the Bill of Rights.

• This replaces the outdated repugnancy clause in Section 11(1) of the Black Administration Act.

• Customary law must now comply with constitutional values such as:

o Equality (Section 9)
o Human dignity (Section 10)
o Freedom of culture and religion (Sections 30 and 31)

Effect/Implication (2 marks):

• Enables the transformation of discriminatory or outdated customary rules.

• In Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC):

o The rule of male primogeniture in succession was declared unconstitutional.

o The Court applied the Intestate Succession Act 81 of 1987 to ensure gender equality.

• In Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC):

o The Constitutional Court upheld the community’s decision to appoint a female chief, aligning
customary succession with constitutional values.

• This function ensures that customary law evolves in line with democratic principles and human rights.

4. Ascertainment Function
Discussion (2 marks):

• Before applying customary law, courts must ascertain its content.

• This involves investigating the living practices of communities, not relying solely on codified or official
versions.

• The Law of Evidence Amendment Act 45 of 1988, Section 1(2), allows courts to admit evidence of
living law.

• In Shilubana v Nwamitwa, the Constitutional Court introduced a three-step test:

1. Examine past practice

2. Investigate contemporary change

3. Align with constitutional values

Effect/Implication (2 marks):

• Shifts the focus from fossilised official law to dynamic living law.

• In Mthembu v Letsela 2000 (3) SA 867 (SCA):

o The court deferred reform of male primogeniture to the legislature, showing reluctance to
engage with living law.

• In Bhe, the Court acknowledged the difficulty of determining living law but emphasised its importance.

• This function empowers courts to interpret and apply customary law in a way that reflects actual
community norms and constitutional imperatives.

Conclusion (2 marks)

• Section 211(3) of the Constitution performs four transformative functions:

o Recognition, Application, Alignment, and Ascertainment.

• These functions collectively reposition African customary law within South Africa’s legal system,
ensuring its legitimacy, enforceability, and adaptability.

• Through landmark cases and legislative reform, courts have moved from marginalisation to meaningful
engagement with living customary law, affirming its relevance in a democratic society.

Question 3 (23 marks)

Customary Marriage, Registration, Validity, and Civil Law Implications

3.1 Time to register a customary marriage (4 marks)

• Under the Recognition of Customary Marriages Act 120 of 1998 (RCMA):

o Section 4(3): A marriage must be registered within three months of its conclusion.

o Section 4(5): The registering officer must issue a certificate of registration.

o Section 4(9): Failure to register the marriage does not affect its validity.

• Therefore, parties have three months to register, but late registration is permitted and does not
invalidate the marriage.
3.2 Validity of unregistered marriage (6 marks)

• The marriage between Andile and Banele is valid, even though it was not registered.

• Section 3(1) of the RCMA provides that a customary marriage is valid if:

o It is negotiated, entered into, and celebrated in accordance with customary law.

• Section 4(9) confirms that non-registration does not affect validity.

• In Maluleke v Minister of Home Affairs [2008] ZAGPHC 129:

o The court held that a customary marriage is valid even if not registered, provided it meets
the requirements of Section 3(1).

• Andile’s friend is incorrect — a decree of divorce is still required to terminate the marriage.

3.3 Monogamous vs Polygamous marriages; civil vs customary (8 marks)

• Monogamous marriage:

o Union between one man and one woman.

o Governed by the Marriage Act 25 of 1961.

o Civil marriages are strictly monogamous.

• Polygamous marriage:

o Union where a man may have more than one wife.

o Permitted under customary law and governed by the RCMA.

o Section 7(6) of the RCMA:

▪ If the first marriage is in community of property, the husband must apply to court for
approval of a written contract regulating the future matrimonial property system.

• Can both be civil or customary?

o Civil marriages: Only monogamous.

o Customary marriages: Can be monogamous or polygamous.

• In Mayelane v Ngwenyama 2013 (4) SA 415 (CC):

o The Constitutional Court held that first-wife consent is required under Tsonga custom for a
valid second marriage.

o This affirms the importance of aligning polygamous practices with both living law and
constitutional values.

3.4 Can Andile marry another woman during civil marriage? (5 marks)

• No, Andile cannot marry another woman while married to Celiwe under civil law.

• Civil marriages under the Marriage Act 25 of 1961 are monogamous by law.

• Entering another marriage while a civil marriage exists would constitute bigamy, which is a criminal
offence.
 • Only customary marriages allow polygamy, and even then, Section 7(6) of the RCMA requires
court approval and regulation of property rights.

• Therefore, Andile must divorce Celiwe before marrying another woman under any legal regime.

Question 4 (8 marks)

General (House) Property vs Family Property

• General (House) Property:

o Property acquired by the husband and wife during the marriage.

o Used for the maintenance of the household and daily needs.

o Includes income, movable assets, and livestock acquired jointly.

o Managed by the husband or jointly, depending on the custom.

o In succession, general property may be inherited by the surviving spouse or children.

• Family Property:

o Property held collectively by the extended family or lineage.

o Includes ancestral land, ritual items, and livestock inherited through generations.

o Cannot be disposed of without the consent of the family head or council.

o Governed by rules of male lineage and customary succession.

o Often central to disputes in inheritance cases, as seen in Mthembu v Letsela and Bhe v
Magistrate, Khayelitsha.

Question 5 (17 marks)

Intestate Succession and Male Primogeniture

5.1 Testate vs Intestate (8 marks)

• Testate:

o The deceased left a valid will.

o Estate distributed according to the terms of the will.

o Executor appointed to administer the estate.

o Provides certainty and control over inheritance.

• Intestate:

o The deceased died without a valid will.

o Estate distributed according to the Intestate Succession Act 81 of 1987.

o Section 1(1)(c): Surviving spouse and children inherit equally.

o Customary law may apply if the deceased was subject to it, but only if it aligns with the
Constitution.

• Implications:
 o Testate succession respects individual autonomy.

o Intestate succession must comply with constitutional values and cannot enforce
discriminatory rules like male primogeniture.

5.2 Validity of Dumisani’s claim (9 marks)

• Dumisani’s claim is invalid under current constitutional law.

• The rule of male primogeniture was declared unconstitutional in:

o Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC):

o Violated Section 9 (equality) and Section 10 (dignity) of the Constitution.

o Court applied the Intestate Succession Act to all children, regardless of gender.

• In Shibi v Sithole (North Gauteng High Court, 2003):

o The court rejected male-only inheritance and upheld the rights of female heirs.

• In Mthembu v Letsela 2000 (3) SA 867 (SCA):

o The court initially upheld male primogeniture, but this was later overturned by Bhe.

• Therefore, Carol and Dumisani inherit equally under the Intestate Succession Act.

Question 6 (10 marks)

Customs and Delictual Liability in African Customary Law

6.1 Explain what the custom or practice of ukufakwa entails. (4 marks)

• Ukufakwa is a customary practice related to levirate marriage, where a woman is placed into the
household of her deceased husband’s family.

• The purpose is to:

o Ensure the continuation of the deceased husband’s lineage.

o Provide social and economic support to the widow and children.

• The woman may be married to a male relative of the deceased (often a brother), and any children
born from this union are considered part of the deceased’s lineage.

• This practice is recognised under living customary law, but must be interpreted in line with
constitutional values:

o Section 9 (equality)

o Section 10 (dignity)

o Section 12(1)(c) (freedom from forced marriage)

• Courts must ascertain whether the practice is voluntary and consistent with community norms.

6.2 Explain what the custom or practice of ukwenzelela entails. (4 marks)

• Ukwenzelela refers to a practice where a man marries a second wife to bear children on behalf of
the first wife, especially if she is infertile.
 • The children born from the second wife are considered to belong to the first wife’s house.

• This practice ensures:

o Continuity of the family name and lineage.

o Fulfilment of social obligations such as inheritance and ritual duties.

• As with ukufakwa, courts must assess the practice under Section 211(3) of the Constitution and
ensure it aligns with:

o Section 28(2) (best interests of the child)

o Section 12(2) (bodily and psychological integrity)

• The practice must be consensual and reflect living law, not imposed tradition.

6.3 Who is generally delictually liable for delicts committed by members of their family under
African customary law? (2 marks)

• Under African customary law, the head of the household or family is generally held delictually
liable for the wrongful acts (delicts) committed by members of the family.

• This is based on the principle of collective responsibility and the authority of the family head.

• Liability may include:

o Payment of damages or compensation to the injured party.

o Participation in reconciliation or restorative processes.

• This principle must be balanced with constitutional rights to individual responsibility and due
process under Section 12(1)(a) (freedom and security of the person).

Question 7 (5 marks)

Matching Delictual Concepts with Descriptions

• 7.1 Defamation of Character and Denial of Chastity

o Match: D

o Description: Making malicious statements that harm someone’s reputation or character, such
as accusing them of witchcraft or questioning their chastity.

• 7.2 Delict of Adultery

o Match: A

o Description: One or more acts of sexual intercourse with a married woman resulting in legal
consequences such as the claiming of damages by her husband.

• 7.3 Delict of Seduction

o Match: B

o Description: Deflowering an unmarried woman or causing her to lose her virginity. Her
guardian may claim damages.

• 7.4 Witchcraft
 o Match: E

o Description: Casting a spell on another person, considered a criminal offence, especially if it

results in death.

• 7.5 Contempt or Defiance of the Head of a Group

o Match: C

o Description: Showing disrespect towards a king, chief, or family head through speech,
behaviour, or refusal to comply with orders.

Question 8 (5 marks)

Powers and Functions of a Traditional Council and/or Leader

• Governed by the Traditional Leadership and Governance Framework Act 41 of 2003,

especially:

o Section 4(1): Establishes traditional councils to support traditional leadership.

o Section 4(2): Councils must include elected members and promote democratic governance.

o Section 20: Outlines the powers and functions of traditional leaders.

• Powers and Functions include:

o Administering customary law and resolving disputes within the community.

o Promoting social cohesion, cultural heritage, and traditional values.

o Participating in local government and development planning.

o Managing communal land and resources in accordance with customary law and statutory
frameworks.

o Upholding constitutional values and ensuring that customary practices align with human
rights.

• Traditional leaders must exercise their powers in a manner that respects:

o Section 211(1) of the Constitution: Recognition of traditional leadership.

o Section 211(2): Role of traditional leaders in governance.

o Section 39(2): Interpretation of law must promote the spirit, purport, and objects of the Bill of
Rights.

PAST PAPER 2: OCTOBER 2024

Question 1 (10 marks)

1.1 Define African customary law. (2 marks)

• A system of law based on the customs, traditions, and practices of indigenous African communities.

• It is unwritten, community-based, and transmitted orally across generations.

• Recognised as a legitimate source of law under Section 211(3) of the Constitution.

1.2 Name the two forms or types of African customary law. (2 marks)

• Official customary law

• Living customary law

1.3 Provide a detailed explanation of the two forms or types of African customary law. (6 marks)

• Official Customary Law

o Codified and interpreted by state institutions (e.g. courts, legislation, textbooks).

o Historically shaped by colonial and apartheid legislation, especially:

▪ Black Administration Act 38 of 1927

▪ Section 11(1): Repugnancy clause allowed courts to reject customary law if deemed
contrary to public policy.

▪ Section 23(1): Codified male primogeniture in succession.

o Criticised for being:

▪ Fossilised: Static and unable to evolve with community practice.

▪ Distorted: Filtered through Western legal norms.
▪ Uncustomary: Detached from actual lived practices.

• Living Customary Law

o Refers to the evolving practices of communities as they are lived today.

o Protected under the Constitution, especially:

▪ Section 211(3): Courts must apply customary law when applicable, subject to the
Constitution and legislation.

▪ Sections 30 and 31: Protect cultural and linguistic communities.

o Affirmed in:

▪ Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC): Customary law is an
integral part of South African law.

▪ Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC): Living law may evolve and be
developed by communities in line with constitutional values.

Question 2 (10 marks)

• 2.1 Legal Pluralism → B: The coexistence of multiple legal systems within a single legal order.

• 2.2 Legal Positivism → C: A theory where law is identified through scientifically verifiable sources.

• 2.3 Deep Legal Pluralism → D: Recognises multiple normative orders independent of the state.

• 2.4 State Centralism → G: Law should be uniform and administered by a single set of state
institutions.

• 2.5 Living Law → I: Law evolves and varies from codified propositions through practice.

• 2.6 Rule of Law → A: Law is supreme in a legal order.

 • 2.7 Jurisprudential Theories of Law → E: Focus on legal sources, institutions, and officials.

• 2.8 Socio-Legal Theories of Law → F: Emphasise law as practiced by ordinary people.

• 2.9 Weak Legal Pluralism → H: Recognition and regulation of multiple legal orders by the state.

• 2.10 Semi-Autonomous Social Fields → J: Domains that generate their own rules but are
influenced by external systems.

Question 3 (25 marks)

Essay: Section 211(3) and Its Four Functions in Relation to African Customary Law

Introduction (2 marks)

• Section 211(3) of the Constitution performs four key functions:

1. Recognition Function

2. Application Function

3. Alignment Function

4. Ascertainment Function

• These functions reposition African customary law within a constitutional framework, ensuring its
legitimacy, enforceability, and adaptability.

1. Recognition Function

Identification (1 mark)

• Customary law is recognised as a valid legal system.

Discussion (2 marks)

• Section 211(3): “The courts must apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary law.”

• Ends discretionary application under apartheid-era laws like the Black Administration Act 38 of
1927.

Effect (2 marks)

• Customary law has equal status with common law and legislation.

• In Alexkor Ltd v Richtersveld Community, the Constitutional Court upheld indigenous land rights
based on customary law.

2. Application Function

Identification (1 mark)

• Courts must apply customary law when relevant.

Discussion (2 marks)

• Supported by the Law of Evidence Amendment Act 45 of 1988:

o Section 1(1): Judicial notice of customary law if ascertainable and not contrary to public policy.
 o Section 1(2): Courts may admit evidence to establish the content of customary law.

Effect (2 marks)

• Removes procedural barriers and promotes legal pluralism.

• In Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T), the court acknowledged the need to
apply customary law when relevant.

3. Alignment Function

Identification (1 mark)

• Customary law must comply with the Constitution.

Discussion (2 marks)

• Replaces the repugnancy clause in Section 11(1) of the BAA.

• Must align with:

o Section 9 (equality)

o Section 10 (dignity)

o Sections 30–31 (cultural rights)

Effect (2 marks)

• Enables transformation of discriminatory practices.

• In Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC), male primogeniture was declared
unconstitutional.

• In Shilubana v Nwamitwa, female succession was upheld.

4. Ascertainment Function

Identification (1 mark)

• Courts must ascertain the content of customary law.

Discussion (2 marks)

• Investigate actual community practices.

• Shilubana v Nwamitwa introduced a three-step test:

1. Examine past practice

2. Investigate contemporary change

3. Align with constitutional values

Effect (2 marks)

• Shifts focus from fossilised law to dynamic living law.

• In Mthembu v Letsela 2000 (3) SA 867 (SCA), the court deferred reform to the legislature.

• In Bhe, the Court acknowledged the difficulty of determining living law.

Conclusion (2 marks)

• Section 211(3) transforms customary law through recognition, mandatory application, constitutional
alignment, and dynamic ascertainment.

• These functions ensure that customary law evolves in line with democratic values and community
practices.

Question 4 (10 marks)

Conflict of Laws in the Context of Customary Law

4.1 Explain the concept of conflict of laws in the context of customary law. (4 marks)

• Conflict of laws refers to situations where two or more legal systems or rules apply to the same
legal issue, requiring a court to determine which law governs.

• In the South African context, this often arises between:

o Customary law and common law

o Customary law and civil law

• Courts must resolve these conflicts by applying principles of legal interpretation and constitutional
supremacy.

• Section 211(3) of the Constitution provides that customary law must be applied when applicable,
but subject to the Constitution and legislation.

• The Law of Evidence Amendment Act 45 of 1988, Section 1(1) and 1(2), allows courts to admit
evidence of customary law and determine its content in conflict scenarios.

4.2 Explain the following terms within the context of conflict of laws: lex fori, lex causae, lex loci
celebrationis. (6 marks)

• Lex fori (“law of the forum”):

o Refers to the law of the jurisdiction where the court is located.

o In South Africa, this is typically South African law, including the Constitution and applicable
statutes.

o Used to determine procedural matters and jurisdiction.

• Lex causae (“law of the cause”):

o Refers to the substantive law that governs the legal issue in dispute.

o May be customary law, common law, or statutory law depending on the facts.

o Courts must ascertain whether customary law is the lex causae based on the parties’
background and the nature of the dispute.

• Lex loci celebrationis (“law of the place of celebration”):

o Refers to the law governing the validity of a marriage based on where it was concluded.

o In customary marriages, this includes the customs of the community where the marriage was
celebrated.
 o Recognised under RCMA Section 3(1), which validates marriages negotiated and celebrated
in accordance with customary law.

Question 5 (12 marks)

Civil and Customary Marriage Conflict

5.1 Explain 'monogamous' and 'polygamous' marriages. (4 marks)

• Monogamous marriage:

o Union between one man and one woman.

o Governed by the Marriage Act 25 of 1961.

o Civil marriages are strictly monogamous and do not permit multiple spouses.

• Polygamous marriage:

o Union where a man may have more than one wife.

o Permitted under customary law, regulated by the Recognition of Customary Marriages

Act 120 of 1998 (RCMA).

o Section 7(6): Requires court approval and a written contract regulating the matrimonial
property system if the first marriage is in community of property.

5.2 Validity of A’s marriage to C and steps to marry two wives. (8 marks)

• A’s marriage to C is invalid because he is already married under civil law, which is monogamous.

• Civil law does not permit polygamy; therefore, a second marriage under customary law cannot be
registered.

• RCMA Section 10(1): A person may not be married under both civil and customary law
simultaneously unless the civil marriage is converted into a customary marriage.

• To marry two wives legally:

1. A must terminate the civil marriage with B through divorce.

2. A must then concludes a customary marriage with both B and C.

3. If the first customary marriage is in community of property, Section 7(6) requires court
approval and a written contract before entering a second marriage.

• In Mayelane v Ngwenyama 2013 (4) SA 415 (CC), the Court emphasised the importance of
consent and regulation in polygamous marriages.

Question 6 (19 marks)

Inheritance and Children Born Out of Wedlock

6.1 Testate vs Intestate Succession (4 marks)

• Testate:

o The deceased left a valid will.

o Estate distributed according to the terms of the will.

 o Executor administers the estate.

o Provides certainty and respects individual autonomy.

• Intestate:

o The deceased died without a valid will.

o Estate distributed according to the Intestate Succession Act 81 of 1987.

o Section 1(1)(a): Surviving spouse and children inherit equally.

o Customary law may apply if consistent with the Constitution.

6.2 Can Z inherit despite being born out of wedlock? (15 marks)

• Yes, Z can inherit from T’s intestate estate.

• The rule of male primogeniture was declared unconstitutional in:

o Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC):

o Violated Section 9 (equality) and Section 10 (dignity).

o Applied the Intestate Succession Act to all children, regardless of gender or birth status.

• In Shibi v Sithole (North Gauteng High Court, 2003):

o The court upheld the right of a female heir born out of wedlock to inherit.

• In Mthembu v Letsela 2000 (3) SA 867 (SCA):

o Earlier support for male primogeniture was overturned by Bhe.

• Children born out of wedlock are protected under:

o Children’s Act 38 of 2005

o Section 28(2) of the Constitution: Best interests of the child are paramount.

• Z was acknowledged by T and accepted by H, which strengthens his claim under living customary
law.

• Courts must apply Section 211(3) and interpret customary law in line with constitutional values.

Question 7 (10 marks)

Mafisa Contract in African Customary Law

• Mafisa is a traditional livestock loan system where one party (the owner) lends cattle to another (the
caretaker) for a period.

• Roles of the parties:

o Owner: Retains ownership of the cattle.

o Caretaker: Uses the cattle for ploughing, breeding, or milk, and returns them after the
agreed period.

• Rights and obligations:

o The caretaker may keep offspring or a portion of the produce, depending on the agreement.
 o The owner may claim damages if cattle are lost due to negligence.

• Termination conditions:

o Upon expiry of the agreed term.

o If the caretaker breaches the agreement.

o If the owner demands return due to misuse or dishonesty.

• The contract is based on trust and reciprocity, and disputes are resolved through customary
dispute resolution mechanisms.

• Must be interpreted in line with Section 211(3) and Section 39(2) of the Constitution.

Question 8 (4 marks)

True/False Statements

• 8.1 True

o The delict of seduction includes penalties for defloration and pregnancy.

• 8.2 True

o Only husbands may claim damages for adultery; wives cannot under customary law.

• 8.3 False

o Customary law emphasises restorative justice, not retributive punishment.

• 8.4 False

o Traditional leaders may not impose taxes independently; they must act within the framework
of municipal and national law under the Traditional Leadership and Governance
Framework Act 41 of 2003, Section 20.

PAST PAPER 3: MAY 2025

Question 1 (10 marks)

Recognition of Customary Marriages and Lobolo

1.1 How is customary law defined according to the RCMA? (2 marks)

• Section 1 of the Recognition of Customary Marriages Act 120 of 1998 defines customary law
as:

• “The customs and usages traditionally observed among the indigenous African peoples of South
Africa, and which form part of the culture of those peoples.”

• This definition affirms that customary law is rooted in community practice and tradition and is
recognised as a legitimate legal system under Section 211(3) of the Constitution.

1.2 Requirements for a valid customary marriage under the RCMA (3 marks)

• Section 3(1) of the RCMA sets out the requirements:

1. The marriage must be negotiated, entered into, and celebrated in accordance with
customary law.
 2. The parties must be over the age of 18.

3. Both parties must consent to the marriage.

• These requirements ensure that the marriage is valid under both customary and statutory law.

1.3 Define lobolo and its effect on marriage validity (5 marks)

• Lobolo is a customary practice involving the transfer of wealth (often cattle or money) from the
groom’s family to the bride’s family.

• Its primary function is:

o To formalise the union between families.

o To symbolise respect and commitment.

o To facilitate negotiations and recognition of the marriage.

• Effect on validity:

o RCMA Section 3(1) does not require full payment of lobolo for a marriage to be valid.

o As long as the marriage is negotiated and celebrated in accordance with customary law, and the
parties meet the age and consent requirements, non-payment or partial payment of lobolo
does not invalidate the marriage.

o Confirmed in Maluleke v Minister of Home Affairs [2008] ZAGPHC 129, where the court held
that lobolo is not a statutory requirement for validity.

Question 2 (10 marks)

Desertion and Divorce under Customary Law and the RCMA

2.1 Weak and strong desertion as traditional grounds for divorce (4 marks)

• Weak desertion:

o Temporary or non-malicious absence from the marital home.

o May be due to conflict, illness, or external pressures.

o Traditionally not sufficient to dissolve a marriage.

• Strong desertion:

o Intentional and permanent abandonment of the marital relationship.

o Includes refusal to return, severing ties, and rejecting reconciliation.

o Traditionally considered a valid ground for divorce under customary law.

• However, under the current legal framework, customary grounds alone are insufficient for formal
dissolution.

2.2 Can desertion automatically end a customary marriage? (6 marks)

• No, desertion does not automatically dissolve a customary marriage under the RCMA.

• Section 8(1) of the RCMA provides that:

 • “A customary marriage may only be dissolved by a court on the ground of irretrievable breakdown.”

• This means:

o Even if strong desertion occurs, the parties must approach a competent court for a decree of
divorce.

o Customary rituals or community declarations are not legally sufficient to terminate the
marriage.

• In Mayelane v Ngwenyama 2013 (4) SA 415 (CC), the Court emphasised the importance of formal
legal processes in regulating customary marriages.

• The RCMA ensures that dissolution respects constitutional values such as equality, dignity, and
legal certainty.

Question 3 (15 marks)

Mafisa Contract and Ownership Disputes

3.1 Nature and purpose of a mafisa contract (4 marks)

• Mafisa is a traditional livestock loan system.

• One party (the owner) lends cattle to another (the caretaker) for use in farming, milk production, or
breeding.

• The caretaker benefits from the use of the cattle but does not acquire ownership.

• The purpose is:

o To promote mutual benefit and community support.

o To increase productivity without transferring ownership.

3.2 Tshepo’s obligations under the mafisa contract (5 marks)

• Tshepo’s obligations include:

o Safekeeping and proper care of the cattle.

o Returning the original cattle and any offspring to Mpho.

o Not selling, transferring, or disposing of the cattle without Mpho’s consent.

o Reporting losses or illness affecting the cattle.

• By selling the cattle and calves, Tshepo breached the mafisa contract and violated customary
norms of trust and reciprocity.

3.3 Can Mpho reclaim the cows and calves from Themba? (6 marks)

• Yes, Mpho can reclaim the cattle and calves from Themba.

• Under customary law, ownership remains with the lender (Mpho), and the caretaker (Tshepo) has no
right to alienate the livestock.

• Themba acquired the cattle without valid title, making the transaction voidable.

• Mpho may:
 o Demand return of the cattle.

o Claim damages or restitution through customary dispute resolution or civil court.

• Courts will apply Section 211(3) of the Constitution to uphold customary law principles, provided they
align with constitutional values.

Question 4 (15 marks)

Essay: The Three Phases of the South African Statutory Framework for Ascertaining and Proving
Customary Law

Introduction (1 mark)

• The legal treatment of African customary law in South Africa has evolved through three distinct phases:

1. Pre-Law of Evidence Amendment Act (pre-1988)

2. Law of Evidence Amendment Act 45 of 1988 (LEAA)

3. Post-1996 Constitutional Era

• Each phase reflects a shift in how courts recognise, prove, and apply customary law, moving from
marginalisation to constitutional protection.

1. The Position Before the Law of Evidence Amendment Act (Pre-1988)

Recognition, Proof, and Application (4 marks)

• Timeframe: Colonial period to 1988

• Customary law was treated as foreign law and required formal proof in court.

• Judges had wide discretion to reject customary law based on the repugnancy clause in:

o Black Administration Act 38 of 1927, Section 11(1):

o “Any rule of customary law that is repugnant to the principles of natural justice or public
policy shall not be enforced.”

• Courts relied on:

o Written records by colonial administrators

o Anthropological reports

o Expert testimony

• This led to the creation of official customary law, which was:

o Fossilised: Static and unresponsive to social change

o Distorted: Filtered through Western legal norms

o Uncustomary: Detached from lived community practices

• Example:
 o In Van Breda v Jacobs 1921 AD 330, the court applied common law principles over
customary norms, illustrating judicial preference for Western legal standards.

2. The Position Under the Law of Evidence Amendment Act 45 of 1988

Recognition, Proof, and Application (4 marks)

• Date of enactment: 1 January 1989

• The LEAA marked a turning point in the procedural treatment of customary law.

• Key provisions:

o Section 1(1):

▪ Courts may take judicial notice of customary law if it is “readily ascertainable and
not in conflict with public policy or natural justice.”

o Section 1(2):

▪ Courts may admit evidence to establish the content of customary law.

• This reduced the burden of proof and acknowledged the legitimacy of customary law.

• However, courts still relied heavily on:

o Codified versions

o Written records

o Expert testimony

• The LEAA did not fully resolve the problem of fossilised law, but it laid the groundwork for more
inclusive jurisprudence.

• Example:

o In Thibela v Minister van Wet en Orde 1995 (3) SA 147 (T), the court applied customary
law in a civil dispute, showing increased judicial willingness to engage with indigenous norms.

3. The Position Under the Constitution of the Republic of South Africa, 1996

Recognition, Proof, and Application (4 marks)

• Date of commencement: 4 February 1997

• The Constitution elevated customary law to a fully recognised legal system, subject to
constitutional values.

• Key provisions:

▪ Section 211(3):

▪ “The courts must apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary law.”

o Section 39(2):
 ▪ Courts must interpret law to promote the spirit and objects of the Bill of Rights.

• Customary law must now be:

▪ Recognised as equal to common law

▪ Applied when relevant

▪ Aligned with constitutional values (e.g. equality, dignity, non-discrimination)

▪ Ascertained through investigation of living law, not just written records

• Landmark cases:

o Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC):

▪ Customary law is an integral part of South African law and must be interpreted
through the lens of the Constitution.

o Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC):

▪ Established a three-step test for ascertaining living customary law:

1. Examine past practice

2. Investigate contemporary change

3. Align with constitutional values

o Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC):

▪ Declared male primogeniture unconstitutional and applied the Intestate

Succession Act 81 of 1987 to customary estates.

• Courts now prioritise living law — the actual practices of communities — over fossilised official law.

Conclusion (1 mark)

• The evolution from repugnancy and exclusion to constitutional protection reflects South Africa’s
commitment to legal pluralism, cultural dignity, and human rights.

• Customary law is no longer marginalised; it is a dynamic, living system that must be interpreted
and applied in line with democratic principles and community realities.