1

LEGAL DIVERSITY 2019 (1)

LECTURERS: LESALA MOFOKENG
MUNIRA OSMAN-HYDER (COORDINATOR)

WELCOME TO ALL STUDENTS

 Lecturers & Administrative Support
2

IMPORTANT CONTACT DETAILS

Module Co-ordinator & Religious Legal Systems Lecturer:
Ms Munirah Osman-Hyder
Suite E Howard College Building
Tel: 031 260-2979
Email: [email protected]

Customary Law Lecturer (F/T): Mr. Lesala Mofokeng

Suite F Howard College Building
Tel: 031 260-2551 or 3146
Email: [email protected]

Customary Law Lecturer (P/T): Mr. Herman Oosthuizen

[email protected]

Module Administrator: Ms Londiwe Gumede

Hut 11 Howard College Campus
Tel: 031 260-2446
Email: [email protected]
 ABOUT THE MODULE
3

 Course structure:
 Introduction to Legal Pluralism (Mofokeng) Week 1
 African customary law (Mofokeng) week 1-6 weeks
 Religious legal systems (Osman-Hyder) week 7-13

 PRESCRIBED READINGS
 Mofokeng, L. (2009) Legal Pluralism in SA: Aspects of African, Muslim and Hindu
Family Law, Van Schaik Publishers
 Bekker; Rautenbach & Goolam (2010), Introduction to Legal Pluralism in SA, Lexis
Nexis
 Legislation & Cases:
 All authorities cited in the prescribed textbooks and recommended readings
 All authorities discussed in class
 assessments
4

ASSESSMENTS DATES & VENUES WEIGHT

1. Class Test Main Test
There will be TWO tests as explained in 6(c) Date: 03/05/2019
below. Each test will comprise of 2 sections – Venue: TBA
Time: 08h30 – 09h30 30%
Religious Legal Systems and African Customary
Law. Students are only required to write ONE Substitute Test
test. Date: 10/05/2019
Venue: SU Hall
Full time and part time will write together. Time: 17h00 – 18h00

2. Final Examination
The final examination will consist of all work covered Consult the official final
during the entire semester. This element of the examination timetable
assessment will comprise a standard two (2) hours for date, venue and 70%
examination to assess your understanding of the time.
various subject areas covered in the course. It will
consist of essays, short answers and problem solving
type questions.
Each section will carry 35 marks.
TOTAL 100%
 DP REQUIREMENTS
5

 As a university student, you are expected to

take responsibility for your own learning.
Consequently, you are expected to attend
class and to participate in class
discussions. In order to obtain a DP (‘Duly
Performed’) certification for this course you
MUST fulfil all of the following requirements:

 You must write ONE test.

 You must obtain a minimum 35%
semester mark.
 INTRODUCTION
6

Traditional male circumcision is usually associated Wearing ants gloves to prove manhood. The
with a religious or cultural ceremony. The primary most painful ritual is followed by Satere-Mawe
global determinant is religion, and almost all tribe of the Amazon. You can't become a man if
Muslim and Jewish males are circumcised. you don't take part in this ritual. When a young
When male circumcision is performed boy becomes sexually mature, he needs to
on adolescents and young adults, it usually marks prove his manhood by wearing a glove which
a transition from boyhood to manhood. In many has ants inside. These ants have most painful
traditional circumcision ceremonies, boys and men
are educated about their responsibilities and sting in the world which is compared to a bullet
duties as an adult member of the community. hitting the flesh.
 For discussion
7

Scotland: blackening of the bride

Fiji: whale tooth
Scottish brides-to-be are taken by surprise by their
To get married in Fiji, a man must bring a tooth of a friends ahead of the big day, and pelted with all sorts of
rubbish such as curdled milk, dead fish, spoiled food, tar
whale to his future wife’s father. So in order to get and feathers. She is then tied to a tree and after taken
married, a man must face the largest mammal on for a night of drinking. The belief is that if she can
Earth and steal a tooth withstand this kind of treatment, she can handle anything
that comes her way in her marriage.
 For discussion
8
China: shooting the bride
In China's Yugur culture, grooms shoot
their future brides with a bow and arrow
— albeit minus the arrowheads — three
times. The groom then breaks the arrows
And this…..?
to ensure the couple stay in love forever.
 GENERAL INTRODUCTION
9

 Learning outcomes:
 Understand the key concepts
 Discuss the legal requirements for a customary marriage & an
indigenous traditional marriage;
 Indicate the similarities and differences between the legal
requirements for the above marriages;

 Readings:
 Chapters: 1 - 7 (and all citations)
 All cases discussed in class
 Chapter 2 of the SA Constitution, 1996
 Recognition of Customary Marriages Act 120 of 1998
10

• Sec 15 of SA Constitution, 1996:

Freedom of religion, belief and opinion
15. (1) Everyone has the right to freedom of conscience, religion,
thought, belief and opinion.
(2)…
(3) (a) This section does not prevent legislation recognising -
(i) marriages concluded under any tradition, or
a system of religious, personal or family
law; or
(ii) systems of personal and family law under any
tradition, or adhered to by persons professing a
particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with
this section and the other provisions of the Constitution.
 TERMINOLOGY
11

 What is legal pluralism?

 Legal order where people are allowed to choose the law under which they
want to be judged

 What is “tradition”?:
 “The transmission of customs or beliefs from generation to
generation, or the fact of being passed on in this way.” (dictionary)

 What is “personal law”?

 Rules considered binding on members of a group in accordance with
prescripts of a religion, faith or custom – not matter in which jurisdiction
they are.
 Examples: (Class discussion)
 Recognition of Customary law
12

 Section 1 Law of Evidence Amendment Act 45 of

1988:
“Any court may take judicial notice of the law of a
foreign state and of indigenous law in so far as such
law can be ascertained readily with sufficient
certainty...”

 See also s211 of the SA Constitution, 1996:

“The courts must apply customary law when that
law is applicable.”
 Understanding Customary Law
13

What is “customary law”?

“Customary law derives from cultural practices, usages that the
community concerned accepts as obligatory.

What is “culture”?
In common parlance … 'culture' implies high intellectual or artistic
endeavour. … But 'culture‘ may also denote a people's entire store of
knowledge and artefacts, especially the languages, systems of belief,
and laws, that give social groups their unique characters. This meaning
would encompass a right to customary law, for customary law is
peculiarly African, in contrast with the law of a European origin.
Bennet Human Rights and African Customary Law 23-24
“Customary law”
 Definition of customary law:
CLASS DISCUSSION
Can you distinguish between “African customary
law” and “custom”?
According to one view, “customary laws” are distinguishable
from “customs” in customary societies in that certain norms
are required to be done. If these norms are not followed, a
sanction will be applied in turn.

Can you think of any such serious customs from your own
society?

To understand the meaning of mere custom, read: VAN BREDA

AND OTHERS v JACOBS AND OTHERS1921 AD 330
To understand customary law, read:
 VAN BREDA AND OTHERS v JACOBS AND OTHERS
1921 AD 330

15

 The plaintiffs and defendants were fishermen at Simonstown. The plaintiffs

claimed the value of a catch of fish made by the defendants at the Kamartje
beach. A local custom amongst fishermen was that once on a free beach,
namely, a beach where no boats are permanently stationed, fishermen had
set their lines for the purpose of catching a shoal of fish seen travelling
along the coast, no other fishermen would be entitled to set a line in front of
theirs within a reasonable distance therefrom.

 Held: Court must be satisfied beyond any reasonable doubt that the alleged
custom does, in fact, exist. As to what is necessary to be proved in order to
establish a valid custom there is no substantial difference between the
English and the Roman-Dutch law, namely, that it must be long established,
reasonable, have been uniformly observed, and certain.
 Ex Parte Minister of Native Affair: In re
16
Yako v Beyi 1948 (1) SA 388 (A)
 Schreiner JA at par 394:
“Native customs would then be provable and would have effect
according to the principles generally applicable to customs (see
van Breda & Others v Jacobs & Others, 1921 AD 330)”

i.e.: must be long established, reasonable, have been uniformly observed,

and certain.

In addition to the above, please note the following concerning customary law:

 Proof of:
 Existence, content of customary rule; and
 applicability to the litigants, is required
 WHY RELIGIOUS LAW NOT FULLY
17
RECOGNIZED?
 Doctrine of “religious entanglement” (see p25-26)
(Ryland vs Edros 1997 (2) 690 (C) at 700):

 Religious courts do not exist – only secular courts?

 Judges have no “authority” to pronounce on religious
law?
 Religious law subject to the SA Constitution as supreme
law?
 Divine law cannot be changed by mankind
 Class discussion: Understanding the
customary law system
Do we know enough about –

 which people in society feel bound by particular

customary rules, and why?

 the customary rules of various SA communities?

 how important do people consider the customary rules

to be?
 Customary laws in SA
(based on shared culture and language)
19
 SOURCES OF CUSTOMARY LAW
20

 African custom (historical source)

 must be considered legally binding
 must be in existence and recognized

 ...by community concerned

 Legislation & judicial precedent (modern sources)

 Eg: Recognition of Customary Marriages Act
 Commission reports (see p14) (modern source)
Characteristics of Customary law
 Unwritten – oral tradition – most legal principles expressed in
maxims, proverbs. Eg. “umuntu ngumuntu ngabantu”.

 Based on recognised living/current social practices – not static;

 No clear division between crimes & civil matters – unspecialised

system;

 Does not recognise ‘prescription’ of actions & detentions

 Emphasis on group rights & obligations of individuals within a

group (eg. family; clan; tribe) as opposed to individual rights and
obligations.
 Reconciliatory and Restorative justice: “is an approach to justice that aims
to involve the parties to a dispute and others affected by the harm (victims,
offenders, families concerned and community members) in collectively
identifying harms, needs and obligations through accepting responsibilities,
making restitution, and taking measures to prevent a recurrence of the
incident and promoting reconciliation.”

 Punishment may be supernatural – people voluntarily observe customary

law, and where they fail to do so, courts may not be required to impose civil
or criminal penalties.

 Marriages are potentially polygynous & emphasis on the rights and

obligations of extended families in family law.
 Customary Marriages: Some
distinctive characteristics
 Customary marriage:
 potentiallypolygynous
 extends beyond lifetime of the parties
 creates legal obligations & rights between families
 must be negotiated & then publicly celebrated

 Examples, forms & purpose:

 Ukungena (wife inheritance)
 Ukuvusa (prevention from extinction)
 Polygamy (one husband – many wives)
 Gaenamous (woman to woman marriage)
 Week 2 - 3:
24

 Expected learning outcomes:

 Gain sufficient knowledge in order to critically evaluate the law

of marriage and customs that may precede the celebration of a
customary marriage

 Understanding the law applicable to civil marriages between

Africans prior to December 1988

 Understanding the consequences of a customary marriage

including polygamy

 Readings: Chapters - 6; 7 & 11.

 Requirements for validity

BEFORE DEC 2000 AFTER DEC 2000

 Traditional law  Recognition Act

 Consent of both parties  Yes

 Consent of guardians  Age dependant

 Handing over of the wife  Yes (note exceptions)

 Family negotiations  Yes

 Lobola agreement  No

 No civil marriage  Yes

 Parties not related  Yes

Section 3(1)(b):

 “the marriage must be negotiated and entered into

or celebrated in accordance with customary law.”
Negotiated:
 Families meet – lobola
negotiations. May take
forever…

 Engagement...?

 Lobola contract
negotiated & entered into
 Size/amount/delivery
agreed; etc.

 Consent of woman/
guardians obtained
 Celebrated:

Meaning & purpose Example

 There Act requires a “wedding”

 Also known as “handing over of
bride”
Fanti v Boto 2008 (5)SA 405 (C)
Applicant claimed custody of the
body and right to bury deceased
(wife). Court to determine validity
of marriage. Held: Custom of
handing over of the wife is
compulsory because it indicates in
a visible way that a customary
marriage is being contracted.
 Celebrated ... Cont/...
29

 Motsoatsoa v Roro
and Others [2011] 2
All SA 324 (GSJ)
 “The handing over of the bride is
what distinguishes mere cohabitation
from marriage. Until the bride has
formally and officially handed over
to the groom’s people there can be
no valid customary marriage.”
 Celebrated ... Cont/...
30

 Southon v Moropane) [2012]

ZAGPJHC 146
 In present times customary law has
become flexible, the rituals are
abbreviated to the extent that they
combine the traditional ceremonies with Class discussion:
modern western culture especially in  Examples of marriage
urban areas these activities cannot be activities or rituals not
regarded as ‘essential legal regarded as essential
requirements’. legal requirements:
 ...of course, they have probative
significance in the sense that a prima
facie presumption could be drawn from
them that a valid marriage was
concluded and that all the essential
requirements were satisfied’
 or....”entered into”
 No celebration necessary...
 Parties agree to waive “handing over” of
wife/ celebration
 This is the first exception to the
“celebration” requirement.

 For meaning of “entered into” see:-

Mabuza v Mbatha 2003 (4) SA 218 (C)
Husband opposed divorce action arguing that
no valid customary marriage existed btn the
parties because the ukumekeza custom
(handing over of bride) did not take place.
Held: Customary has evolved. ukumekeza
may be waived by agreement. Marriage
declared valid.
 “...in accordance with customary law.”

Class discussion Good example.....?

Read definitions:

“customary law” means the customs and usages

traditionally observed among the indigenous African
peoples of South Africa and which form part of the
culture of those peoples

“customary marriage” means a marriage concluded

in accordance with customary law
 Which customary law?
33
 Requirements relating to polygyny
34

 Section 3(2):-
“Neither party is a spouse in a
subsisting civil marriage with any other
person”

 Section 7(6):-
“A husband in a customary marriage
who wishes to enter into a further
customary marriage with another
woman after the commencement of
this Act must make an application to
the court to approve a written contract
which will regulate the future
matrimonial property system of his
marriages.”
 Section 7(8) and 7(9)
35

 “(8) All persons having a sufficient interest in the matter, and

in particular the applicant’s existing spouse or spouses and
his prospective spouse must be joined in the proceedings
instituted in terms of subsection (6).”

 “(9) If a court grants an application contemplated in

subsection (4) or (6), the registrar or clerk of the court, as
the case may be, must furnish each spouse with an order of
the court including a certified copy of such contract and must
cause such order and a certified copy of such contract to be
sent to each registrar of deeds of the area in which the
court is situated.”
 Failure to comply with Section 7(6) Application
requirement

MM v MN 2010 (4) SA 286 (GNP)

 Deceased married the first respondent according to customary law in 2008. At the time, he was married to
another woman also in terms of customary law. In an application to declare the second marriage null & void.
 Held: failure to comply with s7(6) requirement leads to the invalidity of the 2nd marriage. Reversed on appeal.

MN v MM AND ANOTHER 2012 (4) SA 527 (SCA)

If a husband in a customary marriage, without complying with s 7(6), enters a second customary marriage, both his
marriages will be valid because:
First: Consequence of a failure to comply with these provisions is that the matrimonial property system
existing before the conclusion of the second customary marriage continues in existence and is not
terminated by the conclusion of the second marriage.
Second: a nullity means that a court is not entitled at all, irrespective of the particular circumstances of a
case, to condone non-compliance with the provisions of s 7(6) of the Act. The effect of non-compliance
will thus be that all subsequent marriages, irrespective of the circumstances, would be null and void ab
initio. Such a harsh and indiscriminate result could hardly have been intended by the legislature.
 Continued…

37

 Third: No obligation is imposed on either the first or subsequent wife by the legislature (the
obligation to apply to court being placed solely upon the husband), The potential hardships on
the wives include the potential for the alteration of the status of a woman (conducting herself as
a married woman), to that of a concubine, and her children from that of legitimate to
illegitimate. In either event the consequential social stigma and legal disability may cause
irreparable harm to the woman and her children.

 Fourth: the considerations as to illiteracy, that persuaded the court below to interpret the
requirements of s 7(6) to protect the first wife's fundamental rights, apply equally to the second
wife.

 Fifth: it could not have been the intention of the legislature to effect a fundamental change to the
customary law incident of polygyny by subjecting the validity of a second marriage effectively to
prior consent by a court which could be withheld by it.

 Sixth: s 7(6) does not appear in that part of the Recognition Act which prescribes the
requirements for the validity of customary marriages. Non-compliance with those requirements
that the legislature has itself designated as requirements for the validity of a customary
marriage does not automatically result in nullity.
Requirements – continued...
 Section 3(1) - Parties must:
 be above the age of 18yrs
 consent to marry each other under customary law
 Below 18yrs: consent of both parents/guardian/Minister/Court

 Section 5(6) - Parties must not be related by blood or

affinity (unless custom allows)
 class to discuss examples.

 Section 3(3) – (5) – Minors require consent of

guardian/ minister/ etc – Minister may validate the
marriage where consent was not obtained
Marriage registration
 Who may apply?
 S4(2) – “either spouse”
 S4(5)(a) – any“interested parties” (eg. child)

 What is required? (See regulations GN R.101 (1 Nov
2001))

 Proof
 two witnesses
 IDs or passport if foreign national
 divorce order, if applicable
 death certificate, if applicable
 Is consent of 1st wife necessary for the man to
marry 2nd wife?
40

MM v MN and Another 2013 (4) SA 415 (CC)

 the Constitutional Court has held that, if a man wishes to marry more than
one wife under Xitsonga custom, he must get consent from his existing
wife. This rule applies to all Xitsonga Customary marriages concluded after
30 May 2013. Any Xitsonga customary marriages concluded before this
date are not affected by this judgment.

 The Constitutional Court in MM v MN developed Tsonga customary law to

include the rule that the husband must obtain the first wife’s consent in
order to enter into a further marriage, and that failure to do so will result in
invalidity of further marriage. This was based on findings of the court that
the current practices of the Tsonga people require such consent to be
obtained.
 Consequences of a customary
41
marriage
 Students are expected to understand the
consequences of a customary marriage entered into
before and after the enactment of the Recognition
Act.
42

Section 7

“7(1) The proprietary consequences of a customary marriage entered into before

the commencement of this Act continue to be governed by customary law.

7(2) A customary marriage entered into after the commencement of this Act in
which a spouse is not a partner in any other existing customary marriage, is a
marriage in community of property and of profit and loss between the spouses,
unless such consequences are specifically excluded by the spouses in an
antenuptial contract which regulates the matrimonial property system of their
marriage.”
43

• Monogamous: • Polygamous:
– COP & Profit & loss
– ANC – with / without accrual – S7(6) contract – if
– Sect 7(1)-(2): unconstitutional any.
Gumede v President of RSA & Others 2009
(3) SA 152 (CC) – If no contract: MN V
Divorce. ss 7(1) and 7(2) of RCMA and MM and Another 2012
(4) SA 527 (SCA)
20-22 of Zulu Code provided that a wife in a
customary marriage concluded before the
commencement of the RCMA had no claim to – Personal property
the family property either during or upon
dissolution of the marriage. Held to be contrary
to the equality provisions in Constitution –
marriage declared COP. Note: the court did not
extend the terms of the order to include
polygamous marriages under customary law.
 Rule in Gumede extended to polygynous marriages…
44

Ramuhovhi & Others V President of South Africa & Others 2018 (2) SA 1 (CC)
The applicants are the biological children of Mr Musenwa Joseph Netshituka (the
deceased), who died on 4 January 2008. During his lifetime the deceased entered into
polygamous customary marriages with Ms Tshinakaho Netshituka, Ms Masindi
Netshituka and Ms Diana Netshituka. The applicants also aver that he entered into civil
marriages with Ms Martha Mosele Netshituka and the fourth respondent, Ms
Munyadziwa Joyce Netshituka. The first and second applicants were born of Ms
Tshinakaho Netshituka and Ms Masindi Netshituka, respectively. The deceased left a
will in terms of which the fourth respondent, whom the will refers to as a wife married in
community of property, was named executrix of the estate. She, Ms Tshinakaho
Netshituka, Ms Diana Netshituka and all of the deceased's children were to receive
certain benefits from the deceased's 'half share of the joint estate'.
Held:
• The declaration of constitutional invalidity of s 7(1) of the Recognition of Customary
Marriages Act 120 of 1998 by the High Court of South Africa, Limpopo Local Division,
Thohoyandou is confirmed.

• The declaration of constitutional invalidity is suspended for 24 months to afford

Parliament an opportunity to correct the defect giving rise to the constitutional
invalidity.
45

Continued…

• During the period of suspension , the following regime will apply to polygamous customary marriages
concluded before the Act came into operation:

(a) Wives and husbands will have joint and equal ownership and other rights to, and joint and
equal rights of management and control over, marital property, and these rights shall be
exercised as follows —
(i) in respect of all house property, by the husband and the wife of the house
concerned, jointly and in the best interests of the family unit constituted by the
house concerned; and
(ii) in respect of all family property, by the husband and all the wives, jointly and
in the best interests of the whole family constituted by the various houses.

(b) Each spouse retains exclusive rights to her or his personal property.

• In the event that Parliament fails to address the defect during the period of suspension, the above
orders will continue to apply after the period of suspension.
46

MN v MM AND ANOTHER 2012 (4) SA 527 (SCA)

 If a husband in a customary marriage, without complying with s 7(6), enters a

second customary marriage, then:

 The first marriage's matrimonial property system will continue, and

 The second marriage will be valid and out of community of property

 Understanding POLYGAMY
47

Simple system Complex system

 one main wife (two wives)  two or three main/senior "houses"

 each wife must be allotted her house with ancillary or affiliated/junior
& property "houses“

 Sigcau v Sigcau 1944 AD 67  Each wife is subordinate to a senior

 Sigidi’s Executors v Matumba (1899) 16 SC house. Ranking of wives! Succession?
439
 S37of the Natal Code of Zulu Law
 Pic: The African Reader; Sunday Tribune

POLYGYNY
48

Simple system Complex system

 POLYGYNY
49

Complex system Simple system

Great wife
Great wife
Senior Senior
Wife 2 Wife 3 (Indlunkulu)

Affiliated
house 1 Affiliated
house 1

Iqadi (left- Ikhohlo (right-

Affiliated hand senior hand senior
house 2 Affiliated wife)
house 2 wife)
 Distinction btw house & family
property
HOUSE PROPERTY FAMILY PROPERTY

 Code: "property vested  Code: "all property in a

in and pertaining family home other than (i)
specially to any house in property vesting in or
a family home; such pertaining specially to any
property is acquired by particular house of that
donations, earnings or family home and (ii) the
personal property of any
apportionment and by major inmate or any inmate
receipt of lobolo in not related to or belonging
respect of the girls of the to the family of the family
house." head."

50
 Customs that may precede marriage
51

 Lobola agreement
 Ukuthwala custom
 LOBOLA CONTRACT

52

 Class discussion:

 Purpose:
 Creates alliance btn families, clans etc;
 Unites ancestors;
 Signifies the transfer of rights & duties.

 Obligations of recipients:
 Duty to provide asyslum & protection (see p53);
 Duty to resolve disputes;
 Duty to contribute towards specific marriage expenses.
53

• THE LOBOLA AGREEMENT

• Meaning & Significance

• Class discussion: See s1 of
RCMA

• Distinguish between “lobolo”

property & “lobola” contract

• History – Law of Evidence

amendment Act
54

SOURCES OF LOBOLA PROPERTY

 LOBOLO PROPERTY
55

Composition & significance:

• Class discussion

Amount/ Size:
• Determined by:
• Custom (eg KZN Natal Code);
• Agreement;
• Unilaterally (theleka cutom)

Parties:
• Class discussion
• See next slide
 Parties: Cont’d
56

Mabena v Letsoalo 1998 (2) SA 1068

 Facts: Court had to determine validity of the marriage and
the appropriate matrimonial regime to be applied. Both the
deceased’s parents had refused consent to the ‘marriage’
and refused to negotiate lobola. Deceased negotiated lobola
with his ‘wife’s’ mother and paid accordingly. Held marriage
valid:
 Reasoning:
 Deceased was an adult –no reason why he could not negotiate
lobolo for himself. SEE 1072D/E and 1073A-B/C
 Current practice is that mothers negotiate for and receive lobolo for
their daughters – 1073I and 1074F-G
 “Living version” of law (opposed to “official version”) must be given
effect in accordance with Constitution SEE1074H/I and 1075B/C
 THE UKUTHWALA CUSTOM
57
 Lit – “to carry away”: abduction of a
woman with or without her consent for
purpose of marriage

 Method: class discussion

 Forms:
 forced ukuthwala
 Consensual ukuthwala

 Purpose: prevents obstacle to marriage,

eg:

 Father refuses consent

 Woman pregnant
 Man has no lobolo
 CUSTOMS PRECEDING MARRIAGE:
THE UKUTHWALA CUSTOM (see p57)
58

Definition: Cases:

 Lit – “to carry away”  Mfeketho v Satimani 1947 NAC

(abduction of a woman with (C&O) 108
or without her consent for Held: marriage resulting from
marriage) ukuthwala was invalid.
 Method: class discussion
 Purpose: prevents obstacle  S v Katelane 1973 (2) SA 230
to marriage, eg: (N)
 Father refuses consent  Held: where an adult woman
consents to the custom &
 Woman pregnant marriage, there is no common law
 Man has no lobolo offence of abduction.
 Other (criminal act?)
 Jezile v S and Others
2015 (2) SACR 452 (WCC);
2016 (2) SA 62 (WCC)

59

 Facts
 The 28 year old man, arranged a customary marriage with the complainant’s uncle
which led to her abduction. The complainant was, at the time, 14 years old. The
custom of abducting girls for the purposes of marriage, is known as ukuthwala. The
complainant was restrained and transported to the man’s village. She attempted to
escape two times, and was successful the second time in arriving back to her village,
but was subsequently apprehended by her uncle and returned to the man. She was
then beaten and raped eight times, and was locked in the house when the man and
his relatives were going out. After a few days, the complainant jumped over the fence
and sought help from the police. The man was convicted of rape and abduction. The
man appealed to the Western Cape High Court, arguing that the trial court:

 ‘…had misdirected itself in not proceeding from the premise that the merits should
have been determined within the context of the practice of ukuthwala, or customary
marriage. It was submitted that “consent” within the practice of ukuthwala is a
concept that must be determined in accordance with the rightful place which
customary law has in our constitutional dispensation, because it is an integral part of
ukuthwala that the “bride” may not only be coerced, but will invariably pretend to
object (in various ways) since it is required, or at least expected, of her to do so”
60

The Court was informed of and accepted that some of the essential elements of the traditional
conception of ukuthwalaare as follows:
1. both parties must be of marriageable age (which was considered to be child-bearing age in
customary law);
2. both parties must consent to initiate their nuptials through the use of the practice
of ukuthwala (it was noted that there are instances where a woman is taken unaware, and
acquiescence in the process only occurs after the fact. If, however, the woman does not
agree, the process fails and her father could institute a civil action against the man’s
guardian);
3. as part of the thwala process, the intending bride and groom would arrange a mock
abduction of the bride at dusk and she would put up a show of resistance in order to
preserve her modesty, but she would be aware of and have agreed to the abduction
beforehand;
4. once abducted, the intending bride would be placed in the safe custody of the women in the
man’s homestead in order to preserve her reputation. It was at this point that the intending
groom’s father would be informed of the presence of a woman in his house, who his son
intended to marry;
5. sexual intercourse was strictly prohibited during this time; and
6. the intending groom’s family then sent an invitation to the woman’s village, either on the
day of the mock abduction or the following morning, to inform her family that she was with
his family, which was a sign that they intended to commence negotiations for marriage.
61

 The Court also noted the two contrasting ways in which ukuthwala has
been practiced:

 On the one hand, there is a traditional conception of ukuthwala that requires

consent of both parties wishing to enter into a marriage, and

 On the other hand, there is what was referred to as an aberration of the

traditional concept. The Court heard and accepted that, in this case, Jezile
had misapplied the customary practice of ukuthwala:
 given the age of the complainant,
 her lack of consent to the ‘marriage’, the abduction process and,
 more importantly, the fact that lobolo was negotiated and paid before
the ukuthwala occurred.

 The Court unequivocally pronounced that violent and coercive practices

committed in accordance with “abhorrent” forms of ukuthwala shall have no
protection under the law.
 Dissolution of customary marriage
62

DIVORCE
Grounds:
 See s8(2)  Section 8(2)
 “A court may grant a decree of
divorce on the ground of the
 Compare with irretrievable breakdown of a
civil law (Divorce marriage if it is satisfied that the
Act) marriage relationship between
the parties to the marriage has
reached such a state of
 Compare with disintegration that there is no
Natal Code (see reasonable prospect of the
p 88) restoration of a normal marriage
relationship between them.”
 Dissolution
63

 Procedural issues:

 Parties must attempt reconciliation:

 Sect 8(5): “Nothing in this section may be construed
as limiting the role, recognised in customary law, of
any person, including any traditional leader, in the
mediation, in accordance with customary law, of any
dispute or matter arising prior to the dissolution of a
customary marriage by a court.”

 Joinder of interested parties:

 Eg:
 Existing wives
 Recipients of lobolo property
 Dissolution
64

 The court may -

 when making an order for the payment of

maintenance, take into account any
provision or arrangement made in
accordance with customary law.

 Take into consideration all relevant factors

including any contract, agreement or order
entered into i.t.o. RCMA
 Dissolution
65

 Death of spouse

 Death does not necessarily dissolve marriage:

 If husband dies first- ukungena may apply
 If wife dies first, her house remains & husband may marry a
“seedraiser”

 Termination of lobola agreement

 See p89

 Wife retains personal property:

 Damages for seduction of daughters (Ngquthu property)
 Gifts given to her by her father before or at the time of marriage
(Ubulunga property)
 CIVIL MARRIAGES BTN AFRICANS
(pgs: 111 - 119)
66

 Distinguish between three periods

 Before1927 (Customary law)

 1927 – 1987 (Black Admin Act)
 1988 – present (Marriage Act)

 Note: between 1927 & 1987: Civil marriages had

the effect of automatically invalidating any existing
customary union(s).
 see definitions of “marriage” and “union” on pg 112.
 Legal effect of dual marriages
(before 1988)
67

Nkambula v Linda 1951 (1) SA 377 (A)

Man who was married by customary rites contracted a civil
marriage with another woman. Held: Must be regarded as
having deserted customary wife. Woman justified in leaving
husband. Her guardian not liable for refund of lobolo.

Netshituka v Netshituka & another (426/10) [2011] ZASCA

120 (20 July 2011)
Whether a civil marriage with a second wife contracted by
a husband already married by customary rites to another
wife was valid.
Held: customary marriage valid – civil marriage null & void.
 See also: Thembisile v Thembisile 2002 (2) SA 209 (T)
 Before 2 December 1988
68

Parties had a choice of three marital regimes:

 in terms of s22(6) of BAA

 applied automatically unless parties agreed otherwise
 marriage out of community of property- no community of profit & loss
 Note: marriage in community of property for other racial groups
(Marriage Act)

 by ANC
 contract concluded prior to marriage
 spouses = separate estates

 in community of property
 parties required to make a declaration before the magistrate that they
did not wish s22(6) to apply to them.
 After 2 December 1988
69

 Note the changes ito Marriage & Matrimonial

Property Law Amendment Act (1988):

 Made the laws that previously applied to whites only,

applicable to Africans
 No African male could conclude a civil marriage if
already married by customary rites (protecting
customary law wives)
 Parties married by custom not permitted to conclude a
civil marriage during the subsistence of a customary
union
 Consequences of a civil marriage identical across all
race groups
 Affiliation Agreements
70

Readings:
 Contracts:
 Affiliation agreement (Chapter 10)

 Lobola agreement (Chapter 6)

 Affiliation Agreements
71

Introduction:
 According to custom:
 Every child must be affiliated to a clan and/or family.
 Children born out of wedlock are automatically affiliated to the group of
the mother, unless an affiliation agreement is entered into to by the
families of the parent.
 Affiliation is an agreement transferring certain parental rights and
responsibilities concerning a child born out of wedlock to the family of the
natural father.
 Affiliation agreements are partly recognized under s21(1) of Children’s Act:
“The biological father...acquires full parental responsibilities and
rights...if he... Consents to be identified or successfully
applies....to be identified as the child’s father or pays damages
in terms of customary law...”
 Preconditions to affiliation
72
agreement

 1. Payment of damages/ penalties (known as inhlawulo (zulu)):

 Mvimba (for pregnancy)

 Umgezo (cleansing of family home)
 Ngquthu (defloration)

 2. Compensation for child maintenance & upbringing (isondlo)

 Note s21(1)(b)(i) of the Children’s Act 38 of 2005 (p103)

 AFFILIATION AGREEMENTS
73

EFFECT OF AFFILIATION AGREEMENT

 Discussion:
 Is the effect of s21(1) of Children’s Act the same as the effect of
affiliation under traditional law?
 Affiliation agreements may also include traditional
methods of adoption
74

 Traditionally, child may be adopted by any suitable

member of the traditional community group (“child
belongs to the village”), but the following are preferred:
 Any relative of the parent
 And “step parent”

 Family head may give consent where the parent is

unable to give such consent

 Specific rituals must be performed

 CASES ON TRADITIONAL METHODS
75
OF ADOPTION
Thibela v Minister van Wet & Orde 1995 (3) SA 147 (T)
In an action for damages for loss of support due to death of husband (killed by
police). Plaintiff (mother) sued on behalf of her son T, who was born out of an earlier
relationship with another man. Held: Man may agree to [pay damages] to adopt his
wife’s child fathered by another man.
Metiso v Padongelukfonds 2001 (3) SA 1142 (T)
Mother ceasing to have contact with minor children after death of their father. Child
adopted (i.t.o custom) by father’s brother (who also died). Whether the deceased had
a duty to support the child (whether properly adopted). Held: Customary adoption
valid despite that the mother did not consent to such adoption.
Hlophe v Mahlalela 1998 (1) SA 449 (T)
Man claimed custody of his minor child, who had been living with her grandparents
(respondents) after the death of her mother. Grandparents contention was what
bearing the fact that applicant had not paid the lobolo in full at the time of his wife's
death, he was not entitled to custody.
Held: Payment of cows concerning adoption of a child was held to be tantamount to
child trafficking. Court to consider best “interests of the child”
 Succession & Inheritance
76

 Compulsory readings:

 Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC)

 Shilubana v Nwamitwa 2009 (2) SA 66 (CC)
 Reform of Customary Law of Succession & Regulation of Related
Matters Act 11 of 2009

 Learning outcomes:
 Understanding the traditional African rules of succession & inheritance;

 Understanding the judicial and statutory amendments to the traditional

law.
 Traditional Principles of intestate
77
succession
• General succession took place only when family head died

• Customary law gave preference to

 males (men not succeeded by woman);
 Male descendants (if none: male ascendants preferred over
collateral relatives eg brothers)

• General rule: Principle of male primogeniture (men succeeded by first

born son)
• Heir inherited both assets & position/status of the deceased (universal
succession)

 If polygamous, distinction drawn btn:

 ‘house property’ & ‘family property’
 ‘general’ & ‘house succession’
 See next slide
Order of succession (i.t.o. BAA)
Monogamous Polygamous

 Household not divided into

sections:
 eldest son of the house
 eldest son of the family  male descendant
 male descendant  Brother
 Brother  House next in the rank
 Illegitimate son (isondlo
paid)  Houses divided into sections:
 Ukungena son  main house
 Adopted son  next house in the rank
 Premarital son  Note: there may be several heirs
Death bed wishes & dispositions

 During lifetime family head may:

 Allot any property to specific sons/ houses

 Link sons to daughters -
 Powers & duties of the heir
(successor)

 Powers & duties of the heir were in direct

proportion to the rank of each house. i.e. heir ‘steps
into the shoes’ of deceased

 Debts & delicts of deceased (before his death) – relied

on estate
 KZN – only liable for debts equivalent to estate
 Judicial developments
81

Facts
• Two extramarital daughters of the deceased challenged the
constitutional validity of the male primogeniture principle.

• Held
• Male primogeniture principles was inconsistent with Constitution
and invalid to extent that it excluded or hindered black women
and extra-marital children from inheriting property.

• Held further: Intestate Succession Act to apply until new

legislation is enacted
Inheritance: Legislative developments

Reform of Customary Law of Succession &

Regulation of related matters Act 11 of 2009
(“Reform Act”)
 Purpose:
 Protection of women & children

 Modification of traditional law of inheritance as

required by ruling in Bhe case
Scope of the “Reform Act’
The Reform Act applies in addition to the
Intestate Succession Act provided the
deceased person:

was “subject to customary law.”

did not leave a valid Will
 Important definitions

Section 1:
‘Descendant’ means 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 or her own child, and

(b) a woman referred to in section 2(2)(b) or (c)”.

 Meaning of ‘Descendent’
The Act has done the following:
1. It has widened the definition of “descendant” under the
Intestate Succession Act to include:

 persons accepted by deceased as own child i.t.o. custom;

 Woman from a substitute marriage (eg. ukungena & ukuvusa
unions);
 Woman from a “woman to woman marriage”.

2. It requires both legislation to apply to estates of those of

deceased persons who were “subject to customary law”
 Section 1: Definitions cont’d
86

 ‘‘house’’
means the family, property, rights and status which
arise out of the customary marriage of a woman.

 ‘‘spouse’’
includes a partner in a customary marriage that is
recognised in terms of section 2 of the Recognition
of Customary Marriages Act, 1998 (Act No. 120 of
1998).
 Section 2(2): Application of Intestate
87
Succession Act
2(2) In the application of the Intestate Succession Act—
(a) where the person referred to in subsection (1) is survived by a spouse, as well as a
descendant, such a spouse must inherit a child’s portion of the intestate estate or
so much of the intestate estate as does not exceed in value the amount fixed from
time to time by the Cabinet member responsible for the administration of justice
by notice in the Gazette, whichever is the greater;

(b) a woman, other than the spouse of the deceased, with whom he had entered into a
union in accordance with customary law for the purpose of providing children for
his spouse’s house must, if she survives him, be regarded as a descendant of the
deceased;

(c) if the deceased was a woman who was married to another woman under customary
law for the purpose of providing children for the deceased’s house, that other
woman must, if she survives the deceased, be regarded as a descendant of the
deceased.
 Section 3(1) and (2):
88
Polygamy
3. (1) For the purposes of this Act, any reference in section 1 of the
Intestate Succession Act to a spouse who survived the deceased must
be construed as including every spouse and every woman
referred to in paragraphs (a), (b) and (c) of section 2(2).

(2) For the purposes of this Act and in the application of section
1(1)(c) of the Intestate Succession Act, the following subparagraph
must be regarded as having been added to that section:

‘‘(iii) where the intestate estate is not sufficient to provide each

surviving spouse and woman referred to in paragraphs (a), (b) and
(c) of section 2(2) of the Reform of Customary Law of Succession
and Regulation of Related Matters Act, 2008, with the amount fixed
by the Minister, the estate shall be divided equally between such
spouses;’’.
 Section 4(2): House Property
89

 “Any reference in the will of a woman ...to her child or

children and any reference in section 1 of the Intestate
Succession Act to a descendant, in relation to such woman,
must be construed as including any child –

 (a) born of a union between the husband of such woman and

another woman entered into in accordance with customary law
for the purpose of providing children for the first mentioned
woman’s house.

 (b) born to a woman to whom the first mentioned woman was

married under customary law for the purpose of providing
children for the first mentioned woman’s house.”
 Section 5(1) and (2)
90

 Dispute or uncertainty in consequence of nature of

customary law
 (1) If any dispute or uncertainty arises... the Master ...
may make such a determination as may be just and
equitable in order to resolve the dispute or remove the
uncertainty.
 (2) Before making a determination under subsection (1),
the Master may direct that an inquiry into the matter be
held by a magistrate or a traditional leader in the area
in which the Master has jurisdiction.
 Section 6: Disposal of property held by
traditional leader in official capacity
91

6. Nothing in this Act is to be construed as mending

any rule of customary law which regulates the
disposal of the property which a traditional leader
who has died held in his or her official capacity on
behalf of a traditional community referred to in the
Traditional Leadership and Governance Framework
Act, 2003 (Act No. 41 of 2003).
 Succession: Does primogeniture still
92
apply?
SHILUBANA AND OTHERS v NWAMITWA 2009 (2) SA 66 (CC)
 Chief Fofoza died in 1968. His eldest daughter, the applicant, in accordance
with the principle of male primogeniture was not considered for the position.
Instead the chief's younger brother, Richard, succeeded him. During Richard's
reign, and with his participation, the royal family of the Valoyi unanimously
resolved to confer chieftainship on the applicant. In 2002 the respondent,
who was the eldest child of Richard, made application in the High Court for
an order declaring that he, and not the applicant, was entitled to succeed
Richard upon his death.
 Held: s 211(2) of the Constitution provides for the right of traditional
communities to amend or repeal laws. A community had to be empowered to
act so as to bring its customs into line with the norms and values of the
Constitution, and even if the royal family had lacked customary authority to
act as they did, they nevertheless had constitutional authority to do so. Their
actions, reflected in the appointment of the applicant, indicated a
development of customary law.