Podcast
Questions and Answers
What is the term for the senior traditional leader among the Valoyi?
What is the term for the senior traditional leader among the Valoyi?
What is the source of customary law?
What is the source of customary law?
Custom which emerges from widespread social practice and acceptance.
Living customary law is written and regulates day-to-day life.
Living customary law is written and regulates day-to-day life.
False
A group of persons who are related to a person by blood through the ____________________ line is called a patrilineage.
A group of persons who are related to a person by blood through the ____________________ line is called a patrilineage.
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Match the definitions with the scholars:
Match the definitions with the scholars:
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What happens when customary law is written?
What happens when customary law is written?
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Matrilineage is a group of persons who are related to a person by blood through the male line.
Matrilineage is a group of persons who are related to a person by blood through the male line.
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What is living customary law?
What is living customary law?
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What is the principle that recognizes the law as supreme in a legal order?
What is the principle that recognizes the law as supreme in a legal order?
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Legality refers to the arbitrariness of State action.
Legality refers to the arbitrariness of State action.
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What are the three arms of government that should be separated according to the Rule of Law?
What are the three arms of government that should be separated according to the Rule of Law?
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The Constitutional Court case that highlights legality as a key component of the Rule of Law is ________________________.
The Constitutional Court case that highlights legality as a key component of the Rule of Law is ________________________.
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What is a requirement for laws according to the concept of Legality?
What is a requirement for laws according to the concept of Legality?
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Customary Law is not recognized by the Constitution.
Customary Law is not recognized by the Constitution.
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Match the following principles with their descriptions:
Match the following principles with their descriptions:
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What is the term that refers to the idea that laws should be clear, certain, precise, specific, and consistently applicable?
What is the term that refers to the idea that laws should be clear, certain, precise, specific, and consistently applicable?
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The common law customs must derive their existence from an unchanging antiquity.
The common law customs must derive their existence from an unchanging antiquity.
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What is the main reason why the approach adopted in Van Breda v Jacobs is not appropriate for customary law?
What is the main reason why the approach adopted in Van Breda v Jacobs is not appropriate for customary law?
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What is the main difference between the treatment of customary law and foreign law according to the Constitutional Court?
What is the main difference between the treatment of customary law and foreign law according to the Constitutional Court?
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Customary law constantly adapts to the ____________________.
Customary law constantly adapts to the ____________________.
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What is the outcome of applying the approach adopted in Van Breda v Jacobs to customary law?
What is the outcome of applying the approach adopted in Van Breda v Jacobs to customary law?
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Match the following cases with their descriptions:
Match the following cases with their descriptions:
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The Constitutional Court equated customary law with foreign law in section 1(1) of the LEAA.
The Constitutional Court equated customary law with foreign law in section 1(1) of the LEAA.
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What is the term used to describe the conflict between different legal systems?
What is the term used to describe the conflict between different legal systems?
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In the Mabena v Letsoalo case, the court deviated from the standard textbook approach and applied what type of law?
In the Mabena v Letsoalo case, the court deviated from the standard textbook approach and applied what type of law?
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In the Mthembu v Letsela case, the court took a more nuanced approach to ascertaining customary law.
In the Mthembu v Letsela case, the court took a more nuanced approach to ascertaining customary law.
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What is the significance of the Mabena v Letsoalo case?
What is the significance of the Mabena v Letsoalo case?
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In the Mabena v Letsoalo case, the prospective husband negotiated a ____________________ with his prospective mother-in-law.
In the Mabena v Letsoalo case, the prospective husband negotiated a ____________________ with his prospective mother-in-law.
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Match the cases with their descriptions:
Match the cases with their descriptions:
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The Mabena v Letsoalo case involved a dispute over inheritance.
The Mabena v Letsoalo case involved a dispute over inheritance.
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What is the challenge in ascertaining customary law?
What is the challenge in ascertaining customary law?
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What did the court in Mabena v Letsoalo recognize as consonant with the Bill of Rights?
What did the court in Mabena v Letsoalo recognize as consonant with the Bill of Rights?
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What was the purpose of Proclamation 140 of 1885?
What was the purpose of Proclamation 140 of 1885?
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The Black Administration Act was enacted in 1885.
The Black Administration Act was enacted in 1885.
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The Commissioner's Courts were given discretion to apply customary law in all proceedings between ______.
The Commissioner's Courts were given discretion to apply customary law in all proceedings between ______.
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What was the significance of the Intestate Succession Act in relation to customary law?
What was the significance of the Intestate Succession Act in relation to customary law?
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What was the finding of the Hoexter Commission of Inquiry in 1983?
What was the finding of the Hoexter Commission of Inquiry in 1983?
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Lobolo and bogadi were subject to the repugnancy clause.
Lobolo and bogadi were subject to the repugnancy clause.
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Match the following with their respective descriptions:
Match the following with their respective descriptions:
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The treatment of customary law as a ______ was a significant aspect of its application in courts.
The treatment of customary law as a ______ was a significant aspect of its application in courts.
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Study Notes
Living Customary Law
- Living customary law refers to the actual practices or customs of the indigenous community.
- It is a set of norms that are abstracted from practice and invested with binding authority.
- Customary law is unwritten, but it can be written, and it regulates day-to-day life.
- The source of customary law is custom, which emerges from widespread social practice and acceptance.
Patrilineage and Matrilineage
- Patrilineage is a group of persons related to a person by blood through the male line.
- Matrilineage is a group of persons related to a person by blood through the female line.
Senior Traditional Leader
- The term "hosi" is used to refer to a senior traditional leader among the Valoyi.
Rule of Law
- The principle that the law is supreme in a legal order and that no state action is legitimate unless provided for by validly adopted law prior to the state taking the action.
- Requires:
- Separation of powers between the three arms of government
- Equality before the law
- The right to a fair hearing accompanied by the assumption of innocence until a person is proven guilty
- Legality
- Legality refers to the lawfulness – that is, the non-arbitrariness – of State action.
Early Provisions
- Proclamation 140 of 1885 contained the Repugnancy Clause, allowing the restriction of customary law’s application.
- Section 22 of the Black Administration Act displaced the Repugnancy Clause.
- Section 11(1) of the Black Administration Act gave discretion to the Commissioner’s Courts to apply customary law in all proceedings between black people, subjected to the application of the repugnancy clause.
Treatment of Customary Law
- The courts’ interpretation of section 11(1) continued to reflect the position taken by the different territories before the Union.
- Lobolo and bogadi were excluded from the ambit of the repugnancy clause.
- Customary law was treated as a fact to be proven.
Case Law
- Mabena v Letsoalo: The court applied living customary law that recognizes what people do in practice, accepting a gender-neutral practice as consonant with the Bill of Rights.
- Mthembu v Letsela: The court confined the customary law of intestate succession to the framework prescribed in section 23 of the BAA, read together with section 1(4)(b) of the Intestate Succession Act.
- Van Breda v Jacobs: The approach adopted for ascertaining the legal validity of common law customs is not appropriate to customary law, as customary law constantly adapts to the community.
- Mabuza v Mbatha: The Constitutional Court deviated from the equation made in section 1(1) of the LEAA between customary and foreign law, holding that customary law need no longer be proven in order for it to be applied.
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Description
This quiz covers the basics of living customary law, including its sources and practices, as well as patrilineage and matrilineage systems. Test your knowledge of these social structures and norms.