RPR CASE LAW.pdf

RPR CASE LAW – EXAM __________________________________________________ In Gumede v President of the Republic of South Africa = the court sought to eradicate the discrimination against women in monogamous customary marriages concluded before the Recognition of Customary Marriages Act 120 of 1998 came...

RPR CASE LAW – EXAM __________________________________________________ In Gumede v President of the Republic of South Africa = the court sought to eradicate the discrimination against women in monogamous customary marriages concluded before the Recognition of Customary Marriages Act 120 of 1998 came into operation. In the Ramuhovhi v President of the Republic of South Africa the Constitutional Court decided that section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) inconsistent with the Constitution and invalid because it discriminates unfairly against women in polygamous customary marriages entered into before the commencement of the RCMA (pre-Act marriages) on the bases of (a) gender and (b) race, ethnic or social origin. Therefor declared unconstitutional. The court in Gumede v President of the Republic of South Africa, however, declared 7(2) unconstitutional insofar as it excluded from its ambit marriages concluded before commencement of the Recognition of Customary Marriages Act. The Constitutional Court in Mayelane v Ngwenyama qualified polygamous marriages by concluding that the prospective husband must obtain the consent of his first wife before entering into a polygamous marriage. In this case, the court upheld the validity of the marriage but nullified it for lack of consent. The high court in the Ngwenyama v Mayelane case held that a second marriage entered into without a contract as provided for in s7(6) of the RCMA was void. However, in Mayelane the marriage was ruled to be invalid due to lack of consent of the first wife. Upon consideration of the principle in Hlophe v Mahlalela the court held that parental rights over a child were not to be determined by the payment of lobolo but rather by the best interest of the child principle. The parental rights and responsibilities of children are now upheld by the Children's Act 38 of 2005, which the Recognition of Customary Marriages Act 120 of 1998 gives recognition to. Prior to the Gumede V President of the Republic of South Africa (1) the proprietary consequences of monogamous customary marriages entered into before the enactment of the Recognition of Customary Marriages Act 120 of 1998 were governed by customary law The status and obligations of the deceased likewise fell upon the eldest male relative, who then had a duty to maintain the deceased dependents. Referred to Male primogeniture. This principle was first challenged by the Supreme Court of Appeal in Mthembu v Letsela where it was held that it did not amount to discrimination on the basis of age and gender as the duty to maintain dependents still existed. The Constitutional Court, however, later held a different opinion in both the cases of Bhe v Khayelitsha Magistrate and Shibi v Sithole. Both cases held the principle of male primogeniture to be unconstitutional in that it unfairly discriminates against women, children and extramarital children. Section 23 of the Black Administration Act was therefore unconstitutional as well. Ito s 23(7) of the BAA, estate of deceased black people could not be administered by a Master. Estates of black people married by civil and customary rites. Master had jurisdiction over estates of whites, Indians and coloureds .Estates of black people were administered by a magistrate → Declared unconstitutional in Mosoneke v Master of the High Court → Unfair discrimination on the grounds of race, ethnic origin and colour Bhe v Magistrate Khayelitsa = Bhe case challenged the principle of male primogeniture ito s 23 of BAA Joined with the Shibi v Sithole = Shibi challenged the constitutionality of s 23 of the BAA. Appointment of heirs by the magistrate in terms of s 23 of the BAA. Appointment followed the principle of male primogeniture. In Mogale v Seima, civil law countries such as Germany do not recognise a damages claim for defamation unless the defamation is a criminal defamation. Our own indigenous law also does not in general allow damages claims for defamation unless allegations of witchcraft are involved → According to this case, defamation under customary law is a restricted delict as it applies only to witchcraft in Mgangabode v Ntshentshe, an heir was not held liable for the damages arising out of his father’s adultery. The plaintiff should therefore immediately take action in accordance with custom against the wrongdoer and his family head jointly otherwise his action is liable to be fatally prejudiced especially where the wrongdoer dies prior to action being taken In Moima v Matladi, the Court said the following about prescription: we must avoid the pitfall of applying principles of ethics of one community to another and especially avoid fallacious reasoning from one system of jurisprudence to another. The law of nature, i.e. natural justice, is ignorant of statutes of limitation of action. → It knows only that a debt has been incurred and must be repaid. In this respect then, Native law is nearer nature and must be held to be in accord with natural justice According to Labuschagne and Van den Heever, the two main procedural differences are as follows: 1. First, the parties in a civil matter must personally present their case while in criminal matters the responsible member of the tribal court must present the factual details of the offence and lead the evidence. 2. Second, customary law requires that the parties in civil matters attempt to negotiate and settle their dispute extrajudicially through a group leader before approaching the court. With criminal matters, however, the traditional leader has the discretion to allow negotiations and extrajudicial settlement In S v Maluleke, the Court said that restorative justice: emphasises the need for reparation, healing and rehabilitation rather than harsher sentences, longer terms of imprisonment, adding to overcrowding in jails and creating greater risks of recidivism → In addition, restorative justice, seen in the context of an innovative approach to sentencing, may become an important tool in reconciling the victim and the offender, and the community and the offender