50 Questions
Indigenous legal systems resulted from recent innovations.
False
What was the method of conducting court procedures?
Orally
What was the limitation of the court's function in indigenous legal systems?
The application, and not the creation, of law
How are court decisions often made in this system of justice?
Based on a consensus of opinions of court councilors
According to the content, a woman spending a night with another man is evidence of ________.
adultery
In this system of justice, theft of another's property is considered a delict and stock theft is considered a crime.
True
Match the following constitutional provisions with their descriptions:
S211 = Courts must apply and recognize customary law, subject to principles of public policy and natural justice S30 and S31 = Convert a freedom into a constitutional right, individuals have the right to take part in their culture of choice
What is the emphasis of African Customary Law?
Duties rather than rights
What does 'sanction' mean in the context of African Customary Law?
Both a and b
What are the divisions of African Customary Law?
All of the above
Match the following main groups with their characteristics:
Nguni = Composite household divided into sections with senior wives Sotho = Household not divided into sections, each married woman has certain rank Shangana-Tsonga = Originally settled in Northern Province and Mpumalanga Venda = Originally settled in the north-eastern part of the Northern Province
What is a key characteristic of African Customary Law?
Unwritten
Before the Black Administration Act, a person's status within the agnatic group depended on their ________.
status
Which factor played a significant role in determining a person's status after the Black Administration Act?
Age
Under the Black Administration Act, women could succeed to the position of family head and house property.
False
What was the significant change in a person's status after the Black Administration Act in terms of their powers?
independent from the other members of the group
What does Polyandry refer to?
a woman is married to more than one man at the same time
What are the consequences of polygynous marriages?
Each family within the agnatic group has a different rank
An agnatic group can be divided against itself in legal disputes.
False
Customary marriage is the statutorily recognized and adapted form of ______.
Traditional indigenous marriage (TIM)
Match the following traditional marriage features with their descriptions:
Union between 2 family groups = Not dissolved by death of a spouse Substitution of a deficient spouse = A person from the family group may be substituted Delivery of marriage goods (lobolo) = Man's agnatic group delivers to the woman's agnatic group Procreation of children = Ensures care for ancestral spirits and prosperity
What are the requirements for prospective spouses under RCMA?
Both must consent to be married under customary law
RCMA allows a minor to marry without needing consent from a parent or guardian.
False
According to RCMA, when should an application be made by a parent/guardian before a minor turns 18?
within 6 weeks of becoming aware of the marriage
Under RCMA, marriage must be negotiated and entered into in accordance with ______ law.
customary
Match the following Nguni tribes with their marriage customs:
Xhosa = Sex with woman of same clan considered incest Zulu = Marriage with blood relations or person of the same clan prohibited Swazi = Marriage between man and woman belonging to the clan of man's paternal grandmother or maternal grandparent of either sex is desirable
What consequences are there for a man in a thwala action?
May pay attention to other women (polygynous) as long as he does not neglect his betrothed. He must also deliver betrothal goods.
What consequences are there for a woman in a thwala action?
Cannot pay too much attention to other men during betrothal period.
How are betrothal goods different from marriage goods in a thwala action?
All of the above.
Can a betrothal be terminated by mutual agreement between the man and the woman in a thwala action?
True
In a thwala action, a unilateral agreement can be made with or without good cause based on the principle that the marriage agreement is entered into in _____.
good faith
What does the Customary Law of Property state about general property in a household?
Belongs to household as a whole, controlled by family head on their behalf & in interests of group. Each member of household shares in it according to his status within the group.
Who usually becomes the heir and gains control of house property when the family head passes away?
The eldest son in the house
In Customary Law, the wife and children have special interests and rights in house property that terminate upon marriage dissolution.
False
Traditionally, land is allocated to family heads by the traditional authority, who then allocate it to constituent family houses. Women have always been allotted land to cultivate and reside on, as part of their ______ property.
house
What are the requirements to be met with and the information to be furnished to the registration officer regarding customary marriage?
Manner in which the registration officer must satisfy himself about the marriage
In traditional indigenous marriage, what is required for the man and woman to be united?
Consensus between the family groups
In customary union within KZN, the union must be registered to be considered valid and legally binding.
False
In the context of lobolo, parties to the lobolo contract are the groom and the person entitled to the girl's ___ .
lobolo
Match the following marriage consequences with their descriptions:
New & separate legal unit: family house = Comes into being H&W have mutual obligation to live together = Establishment of a new house estate Relationships btw houses: Prop of every house forms sep unit = One house cannot be enriched at cost of another
What are the grounds for divorce for both husband and wife under Zulu Law?
Parties living apart for at least 1 year before instituting divorce action, Defendant committing adultery, Defendant being declared a habitual criminal and in prison
What are the general effects of dissolution on marriage goods under Zulu Law?
Goods are usually returned if the wife is to blame, and not returned if the husband is to blame (except for 1 beast). Wife's group allowed a deduction for each child born, and court can decide if parties fail to agree on portion of goods already delivered.
What happens to the status of the husband and wife, as well as the children, after dissolution of marriage under Zulu Law?
Husband's status not seriously affected by polygynous nature, wife becomes divorced woman not under guardianship of husband but under her agnatic group, children's custody and guardianship determined based on various factors such as age and family arrangements
What are the different considerations for child custody and guardianship after marriage dissolution under Zulu Law?
Father generally has custody and guardianship rights, but court can intervene to ensure best interests of child if wife or husband not deemed suitable caregivers. Equal powers can be granted to both parents, and ancestral connections are considered in custody decisions.
Under modern indigenous law, who can initiate a claim against the family head or other house in a house where a woman belongs?
Woman belonging to the house having claim
When spouses want to change their matrimonial property system under the Reformed Customary Marriages Act (RCMA), what conditions must be satisfied for the court to grant the application?
All of the above
The Reformed Customary Marriages Act (RCMA) declared unconstitutional as it relates to monogamous customary marriages.
True
In monogamous marriages concluded after the RCMA, the family estate is in ___________ of property unless excluded in an ANC.
community
Match the following ways of dissolution with the customary marriage types:
Court Action = TIM W/O Interference of the Court = CU Death of Husband & Wife = CM
What are the recognized grounds for dissolution of a customary marriage outside KZN?
Adultery
Study Notes
African Customary Law
- Customs and usages traditionally observed among indigenous African peoples in South Africa, forming part of their culture.
- Emphasizes duties over rights.
- The maintenance of order is supported by means of approving and disapproving legal sanctions.
Divisions of Customary Law
- Indigenous National Law (Tribal Law): applies to tribes ruled by a king or paramount chief, e.g., Zulu.
- Indigenous International Law (Law of Different Tribes): applies to agreements between tribes to help each other against communal enemies.
-
Customary Public Law: governs relations between traditional authorities and subjects, and between traditional authorities within a tribe.
- Indigenous Constitutional and Administrative Law
- Indigenous Adjudicatory Organs and Law of Procedure
- Indigenous Criminal Law
-
Customary Private Law: governs legal relations between individuals and groups in their capacity as private persons.
- Law of Property, Persons, Family, Things, and Succession
- Law of Personality (e.g., honour, good name, privacy)
- Law of Immaterial Property (e.g., copyright, patents) is unknown
- Law of Obligations
Characteristics of Customary Law
- Unwritten: law was not recorded in written legal sources, but transmitted orally from one generation to the next.
- Customary: resulted from age-old traditions and customs, with direct orders and instructions from leaders.
- An expression of community values: public participation in the adjudication process resulted in law giving expression to community values and moral behavioural code.
- The role of magico-religious conceptions: belief in ancestral spirits and sorcery influenced the law, with a supernatural origin and static, unchangeable nature.
Observance of Rules
- Voluntary observance of legal rules due to factors such as:
- religious or sacral elements of the law
- public opinion
- fear of punishment (including supernatural origin)
- influence of indigenous leaders
- recognized leaders played a key role in daily life
- local heads of families and kinship groups were consulted before important decisions
Nature of Customary Law
- Unspecialized: compared to Western legal systems, with no clear distinction between criminal and civil cases, courts, and procedures.
-
Similarities with Western legal systems:
- relations governed by law
- law transferred from one generation to the next
- transgression of the law has specific consequences
-
Differences from Western legal systems:
- no division between criminal and civil cases
- no classification of cases
- no delimitation between criminal and civil cases
- time is not a crucial factor in the legal process### Individualism vs. Collectivism
- Emphasis on individual: individual upholds rights even against community interests
- Emphasis on group: individual functions within the context of the group, individual's interests subordinate to group interests
Education Systems
- Individual-focused education: stresses individuality and achievements
- Group-focused education: encourages adaptation and subordination to group interests
Rights and Ownership
- Individualization of rights: one individual owns rights and is the creditor
- Emphasis on group: ruler represents the interests of the ruling family, not individual interests
Marriage and Family
- Individual-focused marriage: two spouses are the only interested parties
- Group-focused marriage: both family groups participate in the marriage
Contracts
- Individual-focused contracts: concluded between individuals
- Group-focused contracts: concluded between agnatic groups
Criminal Liability
- Individual-focused liability: individual is liable for their actions
- Group-focused liability: whole family group can be punished for a crime committed by one member
Administration of Justice
- Individual-focused justice: judge finds the law and decides accordingly, public's role is limited to being an audience
- Group-focused justice: public actively participates in proceedings, aiming for reconciliation rather than punishment
Governmental Functions
- Individual-focused government: judicial, executive, and legislative powers are clearly distinguished
- Group-focused government: governmental functions are not clearly distinguished, tribal chief is law-maker, executive, and judge-in-chief
Approach to Law
- Abstract approach: emphasis on abstract consent and expression of intent
- Concrete approach: emphasis on concrete, visible, and observable acts
Religious Element
- Law originates from ancestors, who consider it disrespectful to disobey and enforce punishment
- Reconciliation between the community and ancestors is accomplished through special means, such as slaughtering an animal and having a communal meal
Categorization
- No clear distinction between categories, institutions, and concepts
- Difficulty in knowing whether authority in a family group concerns private or public law
- Categories of transgressions can be vague, making it hard to distinguish between delicts and crimes
Kinship
- Family group has extensive authority over its members, which is firm but compassionate and protective
- Position of women is unfavorable compared to men
Polygamy
- One man can be married to more than one woman at the same time
Customary Law and the Constitution
- Before 1994 Constitution: indigenous law had limited recognition and was subject to certain conditions
- 1996 Constitution: recognition of customary law as a system of law, with provisions for its application and protection
Intersection with the Bill of Rights
-
Customary law may conflict with principles of public policy and natural justice
-
Courts must balance individual rights and group rights in interpreting customary law### Agnatic Group
-
The owner of the group's assets had the power to dispose of them, and their successors were also regarded as heirs of the group's property.
-
The agnatic group was an association of people, but individual members did not have rights, powers, and duties independent from the group, and likewise, the group did not have rights, powers, and duties independent from the group members.
Status
- Status determines the powers derived from objective law.
- Factors that influence a person's status include:
- Age: Before the Black Administration Act, there was no fixed age for attaining majority, and age did not have significant legal significance. After the Act, majority is attained at a fixed age of 21, and when members become majors, they can obtain rights, powers, and duties independent from those of their agnatic group.
- Sex: Before the Black Administration Act, males could succeed to the position of family head and general/house property, while females had an inferior position and could not succeed to the position of family head and/or general/house property.
Rank
- Family rank refers to the hierarchy of family members within the family group, which relates to a person's legal status within the household.
- House rank refers to the hierarchy of the various houses that make up a household, which relates to a person's legal status within a nuclear family (husband, wife, and children).
Customary Family Law
- "Patrimonial consequences" refer to the legal consequences of marriage on a married couple's property.
- Consequences of polygynous marriages:
- Two or more families exist within a unit known as an agnatic group (household).
- Legal relations within the family apply to each family within the agnatic group (household).
- Every component family has a particular rank that differs from the others.
- Multiple families require a complicated system of property relations.
Traditional Indigenous Marriage (TIM)
- Background: TIM is still practiced in rural areas, and its underlying ideas apply to customary marriage.
- Features:
- Union between two family groups, not dissolved by the death of a spouse.
- If a spouse is deficient in some way, a person from their family group may be substituted.
- Man's agnatic group delivers marriage goods (lobolo) to the woman's agnatic group.
- Procreation of children, especially males, is essential to ensure the care of ancestral spirits.
- Marriage is a process of growth, with ceremonies and customs as evidence of the marriage process.
- Requirements:
- No fixed age is required, but sexual maturity is usually necessary.
- Marriages between ascendants/descendants of father/mother and between children of the same mother/father are forbidden.
- Nguni prohibits marriage between persons with the same family name/same as person's mother/father.
- Sotho-Tswana encourages marriage between cross-cousins, viewed as preferential marriages.
Customary Union (CU) and Customary Marriage (CM)
- Customary Union (CU) is a statutory recognized version of TIM before the Recognition of Customary Marriages Act.
- Customary Marriage (CM) was introduced on 15 November 2000 by the Recognition of Customary Marriages Act (RCMA).
- A CM is a valid marriage at customary law, which is recognized as a marriage for all purposes.
The Betrothal
- The betrothal is a legal act with specific consequences, which includes:
- Agreement between two family groups regarding a future marriage.
- Marriage negotiations are initiated by the man's family group.
- Negotiations take place to reach consensus on the proposed marriage and the amount of lobolo to be paid.
- Reaching consensus leads to a formal betrothal, which can be repudiated or terminated at any time.
- An engagement is not a prerequisite for a valid marriage.
- Betrothals of infants and children are void.
- Betrothals can be short or long, and the duration is determined by the agreement between the parties.
Ukuthwala Custom
- Xhosa custom where a woman is abducted to force her family to enter into negotiations.
- There are three types of ukuthwala:
- Woman is aware of the intended abduction and there is an agreement between the parties.
- Families agree, but the woman is unaware of the abduction.
- Neither the woman nor her family have prior knowledge of the abduction.
- If the woman is abducted without her parent's consent, it may lead to a claim for delict and damages in the form of "bopha" cattle.
This quiz covers the traditional laws and customs of indigenous African peoples in South Africa, focusing on duties rather than rights and the use of sanctions to maintain order.
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