40 Questions
What is the term for the senior traditional leader among the Valoyi?
Hosi
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.
False
A group of persons who are related to a person by blood through the ____________________ line is called a patrilineage.
male
Match the definitions with the scholars:
A body of customs and traditions which regulates the various kinds of relationships between members of the community. = Jobodwana The original customs and usages that are in a constant phase of evolution. = Bekker and Rautenbach A set of norms which the actors in a social situation abstract from practice and which they invest with binding authority. = Hamnett
What happens when customary law is written?
It prevents further development and makes it irrebuttable
Matrilineage is a group of persons who are related to a person by blood through the male line.
False
What is living customary law?
The actual practices or customs of the indigenous community whose customary law is under consideration.
What is the principle that recognizes the law as supreme in a legal order?
Rule of Law
Legality refers to the arbitrariness of State action.
False
What are the three arms of government that should be separated according to the Rule of Law?
legislature, judiciary, and executive
The Constitutional Court case that highlights legality as a key component of the Rule of Law is ________________________.
Affordable Medicines Trust v Minister of Health
What is a requirement for laws according to the concept of Legality?
They should be consistently applicable
Customary Law is not recognized by the Constitution.
False
Match the following principles with their descriptions:
Rule of Law = The principle that the law is supreme in a legal order Separation of Powers = The principle that divides power among the three arms of government Legality = The principle that ensures State action is lawful and non-arbitrary
What is the term that refers to the idea that laws should be clear, certain, precise, specific, and consistently applicable?
Legality
The common law customs must derive their existence from an unchanging antiquity.
True
What is the main reason why the approach adopted in Van Breda v Jacobs is not appropriate for customary law?
It requires past consistent application.
What is the main difference between the treatment of customary law and foreign law according to the Constitutional Court?
Customary law no longer needs to be proven in order for it to be applied.
Customary law constantly adapts to the ____________________.
community
What is the outcome of applying the approach adopted in Van Breda v Jacobs to customary law?
It would stifle growth.
Match the following cases with their descriptions:
Sigcau v Sigcau = Deals with the legal validity of common law customs Van Breda v Jacobs = Customary law constantly adapts to the community. Mabuza v Mbatha = Hlophe JP echoed the dictum and disapproved of the treatment of customary law as foreign law.
The Constitutional Court equated customary law with foreign law in section 1(1) of the LEAA.
False
What is the term used to describe the conflict between different legal systems?
Conflict of Laws
In the Mabena v Letsoalo case, the court deviated from the standard textbook approach and applied what type of law?
Living customary law
In the Mthembu v Letsela case, the court took a more nuanced approach to ascertaining customary law.
False
What is the significance of the Mabena v Letsoalo case?
The court recognized a gender-neutral practice as consonant with the Bill of Rights, affirming African values.
In the Mabena v Letsoalo case, the prospective husband negotiated a ____________________ with his prospective mother-in-law.
lobolo or bogadi
Match the cases with their descriptions:
Mabena v Letsoalo = The court applied living customary law to recognize a gender-neutral practice. Mthembu v Letsela = The court proceeded with the official version of customary law.
The Mabena v Letsoalo case involved a dispute over inheritance.
False
What is the challenge in ascertaining customary law?
There are inherent challenges in the process of ascertaining customary law.
What did the court in Mabena v Letsoalo recognize as consonant with the Bill of Rights?
A gender-neutral practice.
What was the purpose of Proclamation 140 of 1885?
To restrict the application of customary law
The Black Administration Act was enacted in 1885.
False
The Commissioner's Courts were given discretion to apply customary law in all proceedings between ______.
black people
What was the significance of the Intestate Succession Act in relation to customary law?
It separated the administration of estates of black people from those of other races in South Africa.
What was the finding of the Hoexter Commission of Inquiry in 1983?
That black-only Commissioners' Courts discriminated between litigants on the grounds of race and dispensed inferior justice to blacks
Lobolo and bogadi were subject to the repugnancy clause.
False
Match the following with their respective descriptions:
Proclamation 140 of 1885 = Contained the Repugnancy Clause, allowing for the restriction of customary law's application Black Administration Act = Gave discretion to the Commissioner's Courts to apply customary law in all proceedings between black people Intestate Succession Act = Separated the administration of estates of black people from those of other races in South Africa Hoexter Commission of Inquiry = Found that black-only Commissioners' Courts discriminated between litigants on the grounds of race and dispensed inferior justice to blacks
The treatment of customary law as a ______ was a significant aspect of its application in courts.
fact to be proven
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.
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.
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