RPR 210 Exam Notes PDF

RPR 210 EXAM NOTES SCOPE 5,7,8,9,10,11,12 3 HOURS 50 MARKS Leandri Meyer & Christelle Samons INTERNAL CONFLICTS OF LAW: The term ‘conflict of laws’ refers to the method of choosing an appropriate rule to apply in the interests of justice.    Conflict of laws means choosing the appropriate l...

RPR 210 EXAM NOTES SCOPE 5,7,8,9,10,11,12 3 HOURS 50 MARKS Leandri Meyer & Christelle Samons INTERNAL CONFLICTS OF LAW: The term ‘conflict of laws’ refers to the method of choosing an appropriate rule to apply in the interests of justice.    Conflict of laws means choosing the appropriate law. To arrive at a just order or finding. It does not mean conflict in legal systems. Conflict of laws therefore refers to the rules for choosing the appropriate law. These rules are also known as conflict rules. Such rules indicate when it is appropriate to use a specific legal system where the dominant legal system in a court (lex fori) is not the only legal system the court can use to resolve the dispute at hand. Conflict of laws can take place in two ways:  The conflict between two legal systems in two different countries  This is private international law.  The conflict of two legal systems in one country due to diversity  This is private or internal conflict of laws.  lex fori Latin – the law of the forum; the law of the court hearing and disposing of an action.  lex causae Latin – the law of the cause; where there is a conflict of laws, the law which has precedence to dispose of the action.  lex loci celebrationis Latin – the law of the place where the marriage is celebrated Conflict of laws under customary law      Conflict of laws started in pre-colonial era. Pertaining to trade and politics It is incorrect to say that conflict of laws started during the colonial era. Conflict of laws put emphasis on the method used to resolve disputes. Between people and organisations  The conditions necessary for the existence of problems relating to conflict of laws are the presence of social and commercial intercourse between people subject to different legal systems.  This creates the false impression that the management of conflict of laws is a foreign concept that was introduced by people from outside Africa.  Conflict of laws relates to the methods used to resolve disputes arising from such interactions. Resolution of conflicts between the laws of different systems of customary law  The nature of customary law itself contributes to the avoidance of conflicts between different systems of customary law. Where these conflicts occur, there are conflict of laws rules which are used to resolve them.   Customary law by nature avoids conflicts. If a conflict arises it must be resolved using customary law Conflicts under customary law are avoided as follows: 1. Integrate communities to one legal system. 2. Communities tend to keep to themselves during marriage and trade 3. Mutual respect on culture and way of life imfecane (isiXhosa) or difaqane (Sesotho) = ‘social upheavals caused by wars among the African communities of Southern Africa by the end of the second decade of the nineteenth century. These led to the emergence and consolidation of new nations’ 1. A tendency to integrate different communities into the legal system of the dominant group so that in due course no further conflicts arise. Integration as a conflict-resolving factor became more apparent after the imfecane/difaqane upheavals which afflicted southern Africa. After just a few decades, the conflict of cultures was resolved through social integration. 2. Communities tended to keep to themselves when contracting marriages and conducting business transactions. In this way, they avoided conflict of laws situations. 3. African communities continued to respect each other’s cultures after integration. By allowing diversity in the context of unity, communities after integration often manage to minimise conflicts in their different approaches to the conduct of marriages, birth rituals and funerals. Resolution of conflicts under customary law     If there is a conflict in customary law, customary law must provide a solution. For example, in lobolo\lobola negotiations, the customary law of the bride will be applied. After conclusion of the customary marriage, the customary law of the husband will start to apply. It will regulate the day-to-day affairs of the marriage.  Where conflicts between different systems of customary law occur, there are rules that are applied to determine the applicable system.  Because there are different systems of customary law, the conflict of laws is likely to vary between these different systems.  Conflict of laws problems arise when the spouses come from different communities.  In a conflict of this nature, there is evidently no single rule applicable across different systems of customary law.  Arguably, the court would have to determine the conflicts rule on a case-by-case basis.  Conflicts may also arise within the same community, for example between different versions of customary law within a patrilineal community. During marriage negotiations, for instance, issues surrounding the custom of lobolo and the delivery of the goods arising therefrom are decided according to the version of customary law applicable to the bride’s family group which invariably hosts the negotiations. However, it would appear that the version of customary law of the husband’s family determines the consequences of the marriage, for instance the status of the bride and her children, and their relationship with the rest of her husband’s clan. In terms of these relationships, she relinquishes her membership of her maiden family and joins that of her husband. Her husband’s version of customary law governs the family unit, known as the house, which the marriage establishes within the broader household of the husband’s family. Membership of the husband’s family means that both the wife and her husband fall under this family’s version of customary law, including its system of succession. Legislative intervention       Section 1 (3) of LEAA = Provides a way to resolve conflicts of laws: Parties can agree to the applicable legal system. Then the court must apply the decision of the parties If no agreement is reached between the parties, the court will look at the place of residence or work of the defendant for a solution. If the defendant has multi versions of customary law due to places of residence or work The court will look at the first version of customary law for a solution. Section 1(3) of the Law of Evidence Amendment Act (1) provides that: i. The court must determine if the parties agreed expressly or tacitly to the version of law to be applied. ii. If parties have made an express agreement, court implements the agreement. iii. In the absence of any agreement, court will apply the version of customary law that applies to the place where the defendant works or resides. Before arriving at the decision as to which version of customary law to apply in those circumstances, the court must follow the steps below:  It must first make a finding as to whether the parties agreed expressly or tacitly as to the version to be applied at judicial proceedings.  If the parties made an express agreement, the court’s task is simply to implement the agreement. This is because the freedom to choose a legal system is protected by the constitutional right to participate in the culture of one’s choice which the courts must respect.  In the event of a tacit or implied agreement, the court will impute the terms of the agreement to the parties, considering their prior conduct, their cultural orientation or the nature of the transaction.  In the absence of any agreement between the parties, the court will seek to resolve the conflict by selecting the version of customary law that applies to the place where the defendant resides or works if such is the only prevailing version at that place. Where the defendant’s version of customary law is one of several versions prevalent at either his or her residence or workplace neither of which is in a traditional area, the court must apply the firstmentioned version.  Apart from the unnecessary complexities of application, this requirement refers to confusing and obsolete concepts, such as ‘tribes’, which have derogatory connotations and may no longer mean anything to many people. Conflict rules regulating conflicts between customary law and common law      Conflict between customary law and common law Constitution will resolve the conflict. Supreme law in the land The law applicable to the dispute in hand will be applied In the interest of justice Conflicts between laws do not only happen when South African law is involved with a foreign legal system. Such conflicts also occur in our national legal system where our law consists of components with different sources of origin and conceptual backgrounds. This means that in South African law, disputes often occur where the rules of customary law and the common law compete for selection. CONSEQUENCES OF MARRIAGE:    RCMA recognises as valid, marriages concluded before its enactment. Such marriages must have been valid when RCMA came into force. Pre-RCMA marriages are regulated by customary law. Personal consequences of marriage    Attainment of adulthood is a process. Does not depend on an individual’s age. Factors such as initiation and marriage are pivotal. Majority status and capacity of spouses        Elderhood in traditional Customary law takes place progressively. Dependent on individual milestones Milestones include marriage, parenthood etc. Men attained adulthood by establishing a separate homestead. Women attained elderhood through marriage and by giving birth. Seniority played a role in attaining adulthood in polygamous. Marriages       RCMA enhanced the status of women. Women were viewed as inferior compared to their husbands. S 6 introduced reforms to customary law Married women now have full status and capacity. Capacity to acquire assets and to dispose of them. To enter into contracts and to litigate    Ito the Gumede case s 6 also apply to pre-RCMA marriages. Prevents discrimination against women married before RCMA came into force S 6 applies retrospectively to pre-RCMA monogamous marriages Majority status of a married minor    A civil marriage of a minor results in the minor becoming a major The position under customary law differs from culture to culture. Need for equal treatment. Polygamous marriages    Only husbands are allowed to have more than one spouse. Polyandry is not recognised. Ito Mayelane v Ngwenyama, a husband must obtain consent of the first wife before concluding a valid subsequent marriage. Status of wives inter se in polygamous marriages concluded before 15 Nov 2000         Simple marriage are marriage consisting of two wives Complex marriage are marriage consisting of more than two wives Separate house is created for each wife after marriage. Husband allots property to the house. Customary law regulates the status of wives in pre-RCMA marriages. Unequal status exists. Seniority determines rank of a wife. Husband must treat all wives equally. Status of wives inter se in polygamous marriages concluded after 15 Nov 2000   The RCMA is silent on the ranking of wives in polygamous marriages Debatable whether customary law continues to apply to polygamous marriages concluded after 15 Nov 2000 Consequences of marriage in respect of children of the marriage          Children always attached to a family. Illegitimacy is not recognised under living customary law. In matrilineal societies children of unmarried women were born into the family of their mother In patrilineal societies children of unmarried women were born into the family of their father A man who is not the biological father of the child is permitted to pay lobolo for the child of an unmarried women. Child became attached to the man who paid lobolo. Traditionally lobolo was key in the affiliation of a child. Fathers obtained parental rights by paying lobolo. Before lobolo, rights vested with mother’s father. Effect of the Bill of Rights on affiliation of children     Position changed by Section 30(3) of the interim Constitution. Introduced best interests of the child principle. Principle upheld in s 28 of the final Constitution. Best interests of the child are of paramount importance in all matters concerning a child.    Hlophe v Mahlalela court held that lobolo has no effect on parental rights. Parental rights determined ito best interests of the child principle. Children born after 15 Nov 2000 are affiliated to both parents’ families whether or not lobolo was paid. Effect of the Children’s Act on the consequences of customary marriage regarding children      RCMA gives effect to the Children’s Act Children’s Act aligns the law regulating children to Constitutional values. S 28 of the Constitution guarantees the rights of children Husbands and wives have equal parental rights and responsibilities. Parental rights and responsibilities are outlined in section 18(2) and (3) of the Children’s Act Traditional proprietary consequences of marriage  Regulated through the system of ranking. Two forms existed: i. Simple ranking and ii. Complex ranking Simple ranking  All wives in a marriage form one estate  Wives form one estate  Husband is the head  Wives ranked according to the date of their marriages  Seniority principle applies  This ranking system is rare Complex ranking system    Wives and their houses ranked in terms of seniority A customary marriage creates a separate house The date of the customary marriage determines the wife’s rank General property  Also regarded as house property  Property acquired by individual members of a house  Assets received as lobolo for members of the house  Property allotted to the house by the head of the family Family property  Property acquired by family head  Property not allotted to a specific house  All members of the family can utilise the property Monogamous customary marriages in terms of the RCMA and the MPA      Before Gumede case, only monogamous marriages concluded after15 Nov 2000 were in community of property and of profit and loss. Gumede invalidated s 7(1) in respect of monogamous marriages Gumede case amended s 7(2) S 7(2) now applies to all monogamous customary marriages All monogamous customary marriages are in community of property unless excluded through an antenuptial contract. Monogamous marriage in community of property       Spouses own an indivisible joint estate. Includes assets acquired before and during the marriage. Equal share in the estate Liabilities incurred are recoverable from joint estate. Certain assets and liabilities are excluded from the joint estate. These are recoverable from individual spouses. Assets and liabilities excluded from joint estate. i. ii. iii. iv. Assets excluded by the antenuptial contract. Assets excluded by a will. Delictual damages paid to one spouse by the other spouse. Assets excluded in terms of legislation. Monogamous marriage out of community of property     Default system is in community of property. Can be changed through an antenuptial contract. Can conclude a marriage out of community of property. Antenuptial contract will regulate the proprietary consequences. Polygamous marriages in terms of the RCMA       Proprietary consequences of pre-RCMA polygamous marriages wereregulated by customary law Ranking system applied Invalidated by Ramuhovhi v President of the Republic of SouthAfrica Declared s 7(1) invalid and unconstitutional Recognition of Customary Marriages Amendment Act 1 of 2021 Amended s 7(1) for pre-RCMA polygamous marriages NB: Not discussed in the textbook   S 7(6) regulates proprietary consequences of polygamous marriages Must conclude a contract regulating the future consequences           To be approved by the court Protects matrimonial property rights of all spouses Court must terminate existing system before approving the contract S 7(8) all persons with an interest must be joined in the application RCMA silent on non-compliance with section 7(6) Decided in the Mayelane v Ngwenyama HC invalidated second marriage SCA validated second marriage CC invalidated second marriage on a different ground Alteration of the matrimonial property regime Property regime may only be altered in two instances: i. Pre-RCMA polygamous marriage ii. Monogamous marriages concluded after 15 Nov 2000 Pre-RCMA polygamous marriages   All parties must apply to the court to change property regime All spouses and interested parties must be joined to the proceedings When changing regime, court must consider the following: i. sound reasons for proposed change ii. written notice given to creditors iii. prejudice to other interested people Post-RCMA monogamous marriages     Regulated by section 21 of the Matrimonial Property Act Parties must enter into a notarial contract Notarial contract must regulate their future matrimonial propertyregime Court must make an order approving the contract by parties DISSOLUTION OF MARRIAGE:     A customary marriage is a union of two families. The marriage binds both the living and the dead. Belief in the indissoluble nature of customary marriages Marriage binds the two families for life. Dissolution by divorce  Sororate inhlantior seantlo = a custom that enables a marriage to continue when the wife is infertile by allowing a younger sister or half-sister of the wife to marry the husband  theleka = a practice observed among sections of the Nguni communities where a wife will go home to her guardian either to end her marriage or to initiate family discussions aimed at improving her lot, usually involving the husband’s transfer of further instalments of the lobolo  phuthuma = the duty of a husband to fetch his wife when she has returned home to her guardian whereupon the reason for her departure from the matrimonial home is discussed and either amicably settled or a divorce may ensue      Divorce was a private matter between two families. Traditional courts only utilised in difficult matters. Regulated by s 8 of the RCMA. Ito s 8(1) of the RCMA, divorce can only be granted on one ground. Namely, irretrievable breakdown of the marriage  Dissolution of marriage by divorce in customary law is complicated, both by the link between divorce and the courts in common law systems and by the widely held.  As to the claim of indissolubility, this was based on an enduring belief in traditional society that a customary marriage bound the two families together for life. Belief in many traditional communities that a customary marriage is indissoluble. Since the date of commencement of the Recognition of Customary Marriages Act (RCMA) there has been only one ground for divorce in customary law for marriages concluded before and after 15 November 2000: the irretrievable breakdown of the marriage. S 8(2) defines irretrievably broken-down as:  Marriage relationship between the two parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them. Common factors resulting in an irretrievable breakdown are:  Adultery; Witchcraft; Infertility and Desertion Generally speaking, adultery, witchcraft, infertility, desertion, and other kinds of neglect of marital duties may lead to the dissolution of a marriage. Adultery  Different communities hold differing views on adultery.  Adultery may only lead to a sanction by the husband.  The form of sanction might include paying a fine  May lead to divorce if is persistent or incestuous. Generally speaking, however, a spouse may seek a divorce if the adultery is persistent or incestuous, or when it is a factor in desertion Witchcraft  Accusations of witchcraft are a serious matter.  A spirit medium is usually used.  Persistent accusations may also lead to an irretrievable breakdown. Often raised by wives against their husbands as grounds for divorce. If such accusations were supported by a divination or 'smelling out' by a medium, the wife's claim may succeed. Persistence of these accusations or evidence of the husband's intent to drive the wife away could also lead to a successful claim. Infertility  Infertility does not always lead to a divorce.  It can be remedied through the custom of sororate.  Sororate can also be referred to as inhlanti or seantlo  The wife’s younger sister or half-sister steps into her shoes for purposes of giving birth. Desertion  Desertion does not always lead to divorce.  Must be accompanied with an intention not to return to the marriage.  Wife may leave with the intention of returning to the marriage.  This is done to initiate family discussions to improve her marriage.  This custom is known as theleka (ukutheleka) The Husband must exercise his phuthuma duty to fetch his family. Theleka custom may be used to enforce payment lobolo. Desertion in customary law can be strong or weak. The strong version is when a person intends not to return to the marriage and is a ground for dissolution of the marriage. The weak version provides a way for a woman to end her marriage or initiate discussions for improvement. In both versions, the woman goes back home to her guardian and the resolution of the conflict depends on the support of the guardian. Customs such as theleka and phuthuma are observed among some Nguni communities, where a wife goes home to extract further lobolo transfers from her husband. The husband has a duty to fetch her, and if the issues cannot be resolved, divorce may follow. Amount retained is determined by: i. Whether the wife has borne children, ii. Whether any fault can be attributed to either of the spouses iii. Wife’s performance of services in her matrimonial home should be acknowledged. Dissolution by death  Marriage is not a union between the spouses individually  It is a union between the families of the spouses  Death does not always lead to the dissolution of the marriage  After the death, the family council determines the future of themarriage  Marriage might continue to exist through the custom of ukungena levirate, ukungena, kungena or kenela = the practice where a man’s widow may be required to cohabit with one of his brothers or some other nominated male relative, mainly for the purposes of raising an heir Ukungena  Man’s widow cohabits with one of his brothers.  Male relative is regarded as an ukungena consort.  The nominated relative ‘steps into the shoes of the deceased’  Purpose of ukungena is to raise an heir.  Continuation of family bloodline is a significant determining factor.  Children borne between the widow and the ukungena consort areregarded as children of the deceased.  A number of factors are put into consideration before a family can invoke the ukungena practice. These factors include among others: i. Consent of the widow ii. Age of the widow iii. Whether the widow has offspring iv. Relationship between the deceased’s family and the widow      Consent of the widow is important. The widow is never compelled. Consent is required for her participation and identity of the consort. Widow may refuse but continue to be part of the deceased’s family. Death of a wife may lead to seantlo/sororate custom. Consequence of divorce (lobolo)   After dissolution lobolo may be returned to the husband’s family Wife’s guardian may retain a portion of the lobolo.  A divorce order can only be given by a High Court, a family court or a divorce court.  Jansen characterises this development as a ‘radical amendment of customary law’. She is correct in the sense that traditionally the state were not involved in divorce as it was seen as a private matter between the families concerned. The critical indicator that dissolution had been agreed in this process was the return of lobolo of a court in any divorce arrangements. isondlo or dikotlo (Setswana) = the payment in the form of one or two beasts that a person who has raised a child has a right to claim from the parent who seeks to acquire custody of the child  Sections 8(4)(a) and 8(4)(b) of the RCMA govern the consequences of a dissolution of customary marriage by divorce. Section 8(4)(a) provides that a court dissolving a customary marriage has the same powers as those found in sections 7, 8, 9 and 10 of the Divorce Act and section 24(1) of the Matrimonial Property Act (MPA).  Rule 43 of the Uniform Rules of Court applies to customary marriages and allows spouses to apply for maintenance pending litigation, interim custody or guardianship of any child and/or a contribution towards costs. THE CUSTOMARY LAW OF SUCCESSION: law of succession - deals with testate and intestate succession, and the manner in which a person's estate or eligible assets are to be inherited by his or her beneficiaries after his or her death. testate succession - takes place where the deceased, the testator had, during his or her lifetime, executed a valid will which indicates how his or her estate has to be shared or divided after his or her death intestate succession - deals with the rules of law which determine who a person's heirs or beneficiaries are and their respective shares if the person dies without executing a valid will or executing a will which disposes of only a portion of his or her estate. successor - in customary law, the person who acquires status by taking the place of the deceased, who becomes responsible for the deceased's duties and obligations and who succeeds to both the liabilities and assets of the deceased deathbed wish - the allotment of property to individuals on the deceased's deathbed Succession determines distribution of a deceased person’s estate Testate succession - - Deceased executed a valid will Indicates how the estate must be shared Must comply with the requirements set in the Wills Act 7 of 1953 Intestate succession - Deceased did not execute a valid will Recognises any allotment during deceased’s lifetime Deathbed wishes also given effect to Preservation and continuation of family name after the death Also concerned with unity Succession not only identifies heirs and beneficiaries Succession and inheritance in customary law male primogeniture - the rule in customary law as codified by legislation in South Africa that the eldest surviving male relative of the deceased succeeds to both status and the whole estate of the deceased. inheritance - the acquisition of property of the deceased unless the context indicates otherwise. succession - the acquisition of the status of the deceased unless the context indicates otherwise. house heir - a person who is entitled to inherit property in a particular house in a polygamous family, usually that of his mother. general heir - the person who acquires or succeeds to the status of the deceased lesika - a family court in the sesotho languages tshwaiso, go tshwaisa or tshwaelo - among balswana, the allocation or allotment of property before death - Successor takes the place of the deceased ‘Steps in the shoes’ of the deceased Becomes responsible for the deceased’s duties and obligations Deceased’s debts must be settled by the successor Successor could also inherit assets General/principal heir takes over the family headship House heir inherits property in a particular house Usually, the eldest son in a house of his mother Common law is concerned with the acquisition of the rights to the property of the deceased Customary law succession is concerned with preservation and continuation of the family name Official Traditional Customary law → Black Administration Act and the Regulations for the Administrationand Distribution of Estates of Deceased Blacks → Entrenched the principle of male primogeniture → Principle became official law → Eldest male relative succeeded status and estate of the deceased → No differentiation between successor and heir → Excluded children, wife or wives and other relatives or dependants → Declared unconstitutional in the Bhe v Khayelitsha Magistrate The Black Administration Act 38 of 1927 - Regulated official customary law of succession for black people Determined consequences of civil marriages of black people Ito s 22(6), civil marriages by black people were OCOP Spouses could declare intention to marry ICOP, a month before their marriage Could conclude an antenuptial contract → 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 → → → → → Ito BAA, husband who is a party to a customary marriage couldbconclude a subsequent civil marriage Changed by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 in 1988 Civil marriage was regarded as a customary marriage for succession Civil marriage created a house Civil marriage dissolved the customary marriage Customary wife regarded as a ‘discarded spouse’ Discarded spouse had no right to the estate of the spouse Only had a claim upon death of husband Civil marriage wife had no greater rights than she would have had the marriage been a customary marriage Testate succession in terms of BAA S 23 of the BAA excluded certain property of black people from being distributed in terms of a will - Male primogeniture applied - No distinction between successor and heir Judicial reform - Constitutionality of principle of male primogeniture - Initially challenged in Mthembu v Letsela - Held principle to be constitutional - Successor had a duty to maintain all the dependants of the deceased - Held principle can be discriminatory if applied in an urban setting 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 Constitutional Court decision The CC in the Bhe case held inter alia that: I. s 23 of the BAA and its regulations were manifestly discriminatory in that they violated the s 9 right to equality, section 10 right to dignity and s 28 children’s rights II. principle was discriminatory against women, marital and extramarital children III. principle was declared unconstitutional IV. intestate estates to devolve in terms of the Intestate Succession Act CC order applied retrospectively to 27th of April 1994 Order was to remain in force until the matter was corrected by the legislature Retrospective application of the order had two exceptions: I. order of invalidity did not apply to completed transfers of ownership to heirs who had had no notice of the challenge to the validity of s 23 of the BAA and the rule of male primogeniture II. order did not apply to anything done pursuant to the winding-up of an estate in terms of the BAA Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 o RCLSA introduced due to the invalidity of s 23 of the BAA and its regulations in the Bhe case o Bhe case applied between the period of judgment and until the coming in to force of the RCLSA o RCLSA applies to all intestate estates of people who live under customary law o Ensures that intestate estates of black people devolve in terms of the Intestate Succession Act Definition of ‘descendant’ S 1 of the RCLSA defines a descendant as: “…a person who is a descendant in terms of the Intestate Succession Act, and includes – a) a person who is not a descendant in terms of the Intestate Succession Act … but who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his/her own child, and b) a woman referred to in s 2(2)(b) or (c)” S 1(a) of the RCLSA includes individuals who are regarded as dependants in terms of customary law Include individuals who are not the biological children of the deceased but were regarded as the children of the deceased Reference to woman in s 1(b) of the RCLSA as dependants includes any woman whom the deceased had entered into a union with in order to provide children for his spouse’s house Refers to a substitute wife/seed raiser/seantlo woman - The RCLSA definition of ‘spouse’ A spouse is defined as: → “a partner in a customary marriage that is recognised in terms of s 2 of the Recognition of Customary Marriages Act” → Widows and widowers of customary marriages now regarded as intestate heirs → •Widows and widowers of customary marriages concluded before 15 Nov 2000 are also regarded as intestate heirs Explain the difference between a house heir and a principle heir A house heir - is someone who inherits property in a particular house within a polygamous family A principle heir - on the other hand, is someone who steps into the shoes of the deceased and then acquires the deceased's status CONTRACTUAL OBLIGATIONS IN CUSTOMARY LAW The nature of an obligation in customary law of contract - In customary law of contract, an obligation is identified in the context of a group or family. One of the most important examples of a contract in customary law is lobolo, which relates to a marriage in terms of customary law, and provides an illustration that customary law contracts are concerned with a family or group Customary law recognises the ability of people to contract Contract must be In line with Constitutional values Traditionally family heads concluded contracts on behalf of their families Family head liable for contracts by family member with his consent Contractual liability because he was expected to exercise control over whatever the family members acquired → Family head also had delictual co-liaility → → → → → Capacity to contract - Customary law recognised that the only persons with full legal capacity were family heads. Thus, only family heads were competent to enter into contracts in customary law. CUSTOMARY LAW CONTRACTS Lobolo - property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage Ukutheleka - a procedure that entails the wife’s father or his heir taking her and her children away from her husband to enforce payment of outstanding lobolo or until the lobolo is fully paid phuthuma - a procedure that entails the husband fetching his wife and children from her father or heir where the father or his heir has resorted to ukutheleka Lobolo: - is entered into at the time when a marriage is negotiated in accordance with customary law. It is one of the most important features that distinguishes a valid marriage from other forms of relationships in customary law. - it is evident that this contract is an agreement between the prospective husband or his family head and the family head of the prospective wife to give property, in cash or kind, to the head of the prospective wife’s family in consideration of a customary marriage with his daughter or the prospective wife → → → → → → → → Contract is concluded during marriage negotiations Husband or family head have an obligation to give lobolo Wife’s family head has a right to receive the lobolo Receiving lobolo signifies consenting to the marriage Lobolo distinguishes valid marriage from an informal relationship Lobolo amount various among communities Non-payment amounts to a breach of contract Outstanding lobolo may be claimed through a court action or the ukutheleka custom The nature of the lobolo contract - The lobolo contract, an important feature of customary family law, was initially regarded as being contrary to public policy or natural justice as it was equated with an agreement of sale. Although not expressly provided as a requirement for a valid customary marriage, the RCMA provides that a customary marriage must be negotiated and entered into or celebrated in accordance with customary law. Ukwethula: ukwethula or ethula - ‘… the custom whereby an obligation is imposed upon a junior house to refund lobolo which may have been taken from a senior house to establish such junior house. The lobolo of the eldest daughter of such junior house is usually indicated as the source from which the liability is to be met but the custom is not recognised as extending to the handing over of the ‘ethula’ girl herself as a pledge of payment - is a contract that is associated with the provision of lobolo. It relates to an interhouse debt where property is taken from one house to establish another house in the same household or to benefit such a house. Interhouse debt created where house property is used for the benefit of another house. Includes property taken from one house to establish another house. Applies in polygamous marriages I. II. III. Husband uses house property to provide lobolo for himself to marry another wife Family head lends property of one house to another in order to provide lobolo for the marriage of a son from the last-mentioned house Family head takes property from one house in order to pay a debt of another house Ukufakwa: literally meaning to be ‘put into the lobolo’, ukufakwa is a custom among the Eastern Cape Nguni in terms of which a young woman’s father requests a relative to contribute towards expenses to be incurred in respect of various traditional ceremonies normally held for women. The debt is repaid from the lobolo to be received for the marriage of the young woman concerned → Attaching third party to lobolo negotiations to satisfy debts owed to him → Relative contributes towards expenses incurred in respect of traditional ceremonies of a girl → Contribution made is repaid from the lobolo of the young woman → Ukufakwa debt may be paid from damages payable for the girl for example damages received for her seduction Ukwenzelela: among the Eastern Cape Nguni, an agreement in terms of which a man or his family head or father requests his relatives or friends to contribute towards his or his son’s lobolo requirements or other expenses relating to his or his son’s marriage ceremony. The contributor is to be refunded from the lobolo received for the first daughter of the recipient are regarded as a donation unless an agreement was reached that they are a loan → Debt created when relatives or friends contribute towards a young man’s lobolo or marriage ceremony → However, other non-debt creating contributions or gifts may be given to the young man or his family head → These contributions are mere gifts which do not give rise to a debt → Debt created if a stipulation has been made regarding repayment → These stipulations are made at the time these contributions are made → Repayment may be made from the lobolo to be received for the first daughter of the recipient → Death of the recipient does not extinguish the debt → Heirs is liable upon his death Isondlo: isondlo / dikotlo - a form of payment or remuneration by a natural guardian of a child to a person who takes care of that child - It is a form of remuneration for maintaining or taking care of a child of another person. - Isondlo is therefore a debt that arises when a person other than a child’s natural guardian raises the child → Payment by a natural guardian of a child to a person who takes care of that child → Debt must be settled when the child’s natural guardian claims his or her parental responsibilities → Must also be settled when the child’s natural guardian claims any right that may accrue as a result of the child → Questions regarding the role of the best interest of the child principle Sisa/Mafisa: mafisa / nqoma / sisa - ‘a custom whereby the owner of cattle or other livestock deposits them with some other person on the understanding that such person shall enjoy the use of them, but that the ownership will remain with and any increase will accrue to the depositor - o o o o o o o o contract is an agreement between the owner of cattle or other livestock and another person who does not own cattle or other livestock to the effect that the latter shall enjoy the use of the cattle or livestock while the ownership of the cattle or livestock and its progeny (increase) remains with the owner. Where owner of livestock deposits with a third party for his benefit Ownership of the livestock remains with the depositor Borrower uses and takes care of the livestock as if they were his Progeny (increase) remains with the depositor Borrower entitled to other products of the livestock Sisa contract reflects the ubuntu philosophy that underlies customary law Borrower may not attach the livestock in the payment of his debts Depositor runs the risk of loss not caused through the sisa holder’s negligence Ukwethula, ukufakwa, ukwenzelela, isondlo (dikotlo) and mafisa (sisa or nqoma) as quasi-contracts → Authors in customary law view these contracts discussed above, that is ukwethula, ukufakwa, ukwenzelela, isondlo and mafisa as quasi-contracts. 68 According to Mqeke, these contracts are examples of what has been described as official customary law and are gradually in the process of dying out. 69 They are quasi-contracts because they do not satisfy all the requirements of a contract as ‘liability arises from performance without agreement based on enrichment or negotiorum gestio. THE CUSTOMARY LAW OF DELICT - The family head is an important figure with regard to delictual liability Family head is liable for delicts committed by members of the family Family head also institutes delictual claims on behalf of family members This is referred to as delictual co-liability Delictual co-liability traditionally, the family head is an important figure with regard to delictual liability. As a general rule, the head of the family is liable for delicts committed by the members of the family. He or she also institutes claims for delicts committed in respect of members of the family unit. - Family head jointly sued for any delicts committed by family members Delictual co-liability was also recognised in official customary law Co-liability applies to guardians, fathers and family heads Section 102 of the KwaZulu-Natal and Natal Codes of Zulu law states that: 1) A guardian shall be liable in respect of delicts committed by his minor ward while in residence at the same family home as himself. 2) A father shall be liable in respect of delicts committed by his minor ward while in residence at the same family home as himself. 3) A family head shall be liable in respect of delicts such as is committed by any minor inmate of his family home while in residence at the same family home as himself. ‘blood’ cases are based on the principle that ‘a man may not eat his own blood’ and in these cases, customary law does not fix the amount of damages payable for a delictual claim Defamation of character - Defamation is specifically mentioned in section 93 of the KwaZulu and Natal Codes of Zulu Law as being an actionable wrong. 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 → Defamation of character is an actionable action → Includes an allegation of witchcraft → Defamatory words during a heated quarrel followed by a public apology does not result in a successful delictual claim → Defamatory words in good faith are not actionable → Claim can be instituted for questioning the chastity of an unmarried woman ukungena / kungena / kenelo - a custom practised by both Nguni-speaking and Sesotho speaking groups according to which a widow enters into a union with a brother or half-brother of the deceased in order to raise seed for the deceased Adultery - adultery in customary law was committed with a wife married in terms of customary law either during her husband’s lifetime or after his death if she is cohabiting with her lawfully appointed ukungena consort. Further, adultery is committed with a ‘widow of a man whose final obsequies have not been observed and whose estate has not been settled • • • • • • Traditionally only women could commit adultery Adultery can also be committed by a widow in an ukungena union Widow whose final obsequies have not been observed or whose estate has not been settled Spouse can claim a full fine for each separate act of adultery Delictual claim can be for the return of lobolo Additional fine can be claimed where pregnancy ensues Adultery within a customary marriage A spouse is entitled to claim a full fine or penalty for each separate act of adultery committed with his wife Adultery with a widow - Where adultery is committed with a widow who is staying with her lawfully appointed ukungena consort, the consort brings the action but the fine belongs to the widow’s house since the consort acts on behalf of the late husband’s estate - Thus, in the case of intercourse with a widow, she must be staying with her late husband’s family as a recognised ukungena wife for the act to constitute actionable adultery Defences to delictual claim for adultery Valid defences under customary include: 1) Neglect and ill-treatment of the married woman gives a reasonable impression that her husband abandoned her 2) Collusion and connivance 3) Spouse has been deserted and the other spouse has no intention of returning to the marriage - Delictual claim must be immediately instituted Evidence such as blankets found at the scene may be necessary This evidence is referred to as a ‘catch’ The delict of seduction Generally, customary law provides for the payment of a penalty or fine to a woman’s guardian for the defloration of the woman, but also for a further act of extramarital intercourse if pregnancy ensues. Thus, apart from the customary fine payable for the defloration of a virgin, customary law also imposes an additional penalty for each pregnancy of an unmarried woman, whether never married or divorced. Umgezo - in the Nguni languages, meaning literally ‘the cleansing’, the penalty imposed for the cleansing of the family and all the virgins in that community resulting from the delict of seduction ukusoma - in the Nguni languages, a form of sexual intercourse without penetration by the man for which no fine is claimable ngquthu - beast in the Nguni languages, the beast claimable where the defloration of a virgin is not followed by pregnancy mvimba - beast in the Nguni languages, the beast claimable for each pregnancy where seduction of an unmarried woman is followed by pregnancy - Defloration of a woman results in a delictual claim Damages can be claimed by the woman’s guardian Further damages can be claimed where pregnancy ensues Damages for pregnancy apply whether the woman had been previously married or not → → → → → → Ngquthu beast may be claimable for the defloration of a virgin Defloration of a virgin is viewed as sinful Also regarded as an insult to the ancestral spirits Can be punished supernaturally Thus, a umgezo penalty can be claimed This is to cleanse the family and all virgins in the community • • • Mvimba beast is claimed where seduction is followed by pregnancy Miscarriage does not extinguish the claim This is claimed in addition to the ngquthu beast and the umgezo, if the woman was a virgin Mvimba beast cannot be claimed where pregnancy occurs during an existing engagement between herself and the man who caused her pregnancy The report at the seducer’s kraal must be made as soon as possible for a successful claim of seduction Delay in reporting may be fatal to the claimant’s case • • • Ukuthwala as a delict literally meaning ‘to carry away’, the custom to which a man and a woman resort where they have agreed to marry each other, but there is an obstacle to their marriage and that becomes a delict when it does not result in a negotiated marriage because of the refusal of the bride’s family to consent to the marriage - It should be emphasised that to be a customary law delict, ukuthwala must take place without the consent of the girl’s guardian. It may take place prior to the payment of lobolo or after the partial or full payment of lobolo whenever there is an obstacle to the actual marriage of the parties, in other words, their living together as husband and wife According to case law, the marriage resulting from a factually forcible ukuthwala is not a valid marriage - Main purpose of the ukuthwala custom is to initiate marriage negotiations Agreement between the man and the woman is necessary Consent of the woman’s family is also essential to validate the custom This leads to a delict where the woman’s family does not give consent This may be where the woman’s family believe that the carrying away of the woman was an insult to the family (abduction) Rules of procedure - In matters of delictual liability, customary law insists that the plaintiff shall, as soon as he discovers wrongdoing, lose no time in establishing his claim against the person or persons responsible 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. - Customary law actions are preceded by a demand for compensation. The demand is compulsory but need not be in writing. must approach the wrongdoer with prima facie evidence of wrongdoing and then demand compensation in terms of customary law. If the wrongdoer denies liability, the family head may institute legal action in the court of the traditional leader or any other court that has jurisdiction to hear the matter Prescription - Prescription means that a debt or a claim which applies to the type of debt in question is extinguished after the lapse of time as contemplated in the Prescription Act a debt or a claim which applies to the type of debt in question is extinguished after the lapse of time as contemplated in the Prescription Act 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 - Prescription of actions is not a part of customary law Delay in taking action may merely prejudice a claimant’s case It may also be fatal to a claimant’s case because of the fading out of evidence However, such a delayed claim may never prescribe Customary law in the context of prescription in common law The non-recognition of prescription of actions under customary law implies that the plaintiff whose right of action has prescribed under common law may still take the same action under customary law, provided that such action is recognised by custom. CRIMINAL LAW - Customary law is generally not a penal system Based on principles of restorative and healing justice Crimes under common law are committed against state not individuals Under customary law crimes are committed against individuals The distinction between customary criminal law and the customary law of delict Customary law is not homogeneous, and it is not, generally, a penal system. It is a system based on principles of restorative and healing justice. • The most obvious distinctions between customary criminal law and delict relate mainly to legal procedures. 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 Law of Delict vs Criminal law - Parties in civil matters personally present their case - In criminal matters members of the tribal court present the factual details and lead the evidence - In civil matters parties must try extrajudicial negotiations - In criminal matters only a traditional leaders may allow extrajudicial settlements Punishment and co-liability African customary law principles of punishment are based on restorative justice, reconciliation and ubuntu. 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 → → → → → The most common forms of punishment were confiscation of property, fines and loss of status, and in particular, loss of social status appropriate penalties imposed by courts are determined in accordance with clearly defined rules of punishment and sentencing. Criminal co-liability exists under customary law Forms of punishment include: confiscation of property, fines and loss of status Loss of status: s 30 of the Natal Codes of Zulu Law Traditionally criminal penalties were not fixed Changed by s 20(2) of the Black Administration Act: - A chief, headman or chief’s deputy may not inflict any punishment involving death, mutilation, grievous bodily harm or imprisonment or impose fines in excess of R100 or two head of large stock or ten head of small stock or impose corporal punishment Specific customary law offences Buloyi - witchcraft in the Sesotho and Setswana languages muthi - commonly used to refer to umuthi, which means medicine (good or bad) in the Nguni languages. ukubhula - an isiZulu word meaning either to consult a diviner or what a diviner does when he or she ‘diagnoses’ or identifies a problem ukuphengula - another word for ukubhula, used mostly among emaSwati ukunuka - an isiZulu word, literally ‘to smell’, meaning to divine or smell out ukuthakatha - to practise witchcraft Witchcraft - Accusations of witchcraft may lead to a delictual claim Practising witchcraft is a criminal offence One of the greatest crime under customary law Regulated by the Witchcraft Suppression Act 3 of 1957 See offences listed in section 1 Does the Witchcraft Suppression Act address the real issues of witchcraft in South Africa? - The Witchcraft Suppression Act may not be regarded as a source of customary law concerning the prohibition against witchcraft. The Act applies to and prohibits conduct specified in the Act as witchcraft and makes no mention of customary law. Thus, there may be conduct that is not covered by the Act but that would constitute a crime of witchcraft under customary law. Contempt or defiance of the head of a group inhlonipho or hlompho - respect in the Nguni and Sesotho languages ex curiae - outside of court proceedings in facie curiae - during court proceedings Customary law is a system of law that is premised on and seeks to protect group interests. The group functions properly if it has a leader. It is for this reason that customary law devised rules that prohibit the defiance of the group leader, whether that person is a king, chief or simply a family head - The offence is based on the African values of inhlonipho or hlompho (respect). This implies that any conduct that a leader considers to be disrespectful is punishable as an offence Customary law prohibits the defiance of the group leader, whether that person is a king, chief or simply a family head. The offence is based on the African values of inhlonipho or hlompho (respect). This implies that any conduct that a leader considers to be disrespectful is punishable as an offence. • • • • Customary law protects group interests Groups function properly if it has a leader Defiance of the leader is a criminal offence Based on the custom of inhlonipo Other crimes under the Natal Code of Zulu Law The Natal and KwaZulu Codes and the BAA prescribe offences, some of which were known in customary law. First, it is an offence for any member of the tribal community to disregard customs or ‘regulations’ regulating the duly defined tribal boundaries or, without authority, to move his family from their own area to that of another presumably for permanent residential purposes. Second, section contains a scale of the maximum amounts or size of lobolo property that may be delivered in respect of marriages to women in certain categories. In the case of doubt, ‘the lobolo shall not exceed ten head of cattle or their equivalent’.Under section 62, it is an offence for any person to receive ‘lobolo in excess of the scale prescribed in section Third, any person who coerces or attempts to coerce a woman to enter into a marriage commits an offence. The Natal Code also prohibits the guardian of a woman from permitting the celebration of a customary marriage after the official witness has stopped or directed the suspension of such celebration. Fourth, there are miscellaneous offences listed under section 117. The following persons shall be guilty of an offence: failure by those who have a natural duty to provide the necessities of life for any other person to do so knowingly omitting to give proper warning to neighbours and other interested parties concerning the presence of a contagious or infectious disease among livestock carrying traditional weapons without the written authorisation of the district officer failure by the family head to report to the chief any serious crime committed or the death of any person at or near his family home. Examples where the ordinary courts have applied customary criminal law - There are cases where the courts have accepted defences based on customary law even though the offender was charged and tried in terms of criminal law under the common law and legislation. - Generally, customary law places most emphasis on group rights, interests and du