AFRICAN CUSTOMARY LAW

CODE OF COURSE: IND203X

SEMESTER CODE: 02

ASSIGNMENT NUMBER: 02

STUDENT NUMBER: 7844654

ASSIGNMENT DUE DATE: 23 September 2010

NAME: C. H. Olivier

ADDRESS: P.O. Box 1694

RIVONIA

POSTAL CODE: 2128

 ASSIGNMENT 02
SECOND SEMESTER

SECTION A

Study the following hypothetical case and answer the

questions that follow. Consider all possibilities and justify
your answers in full.

Zwai (a male aged 26) and Puleng (a female aged 23) want to
enter into a customary marriage. According to the law and
custom of both of them, Zwai has to deliver lobolo to Puleng’s
family. Puleng however refuses to marry in terms of a lobolo
agreement and appeals to section 9 of the Constitution of the
Republic of South Africa, 1996.

1. In the hypothetical case, what specific constitutional

rights are in conflict?

Chapter 2 (Bill of Rights) section 9 (1)(2), the right to equal

treatment of the individual, as well as section 30 and 31, the
right of cultural choice by the individual.

2. Conflict between customary law and the Bill of Rights is

unavoidable. Evaluate this statement.

That there is conflict between the Bill of Rights and principles

African customary law is a given fact. There are plenty
examples where customs of the different indigenous tribes of
South Africa, could clash with the Bill of Rights.

One example, for instance, is the principle of primogeniture,

where the oldest son of the family head becomes the heir if
the family head passed away, discriminates against women,
and is in total contradiction with, and infringement of section
9 (3) of Chapter 2, the Bill of Rights.

The problem in itself is that the Bill of Rights focuses on the

rights of the individual, where as customary law focuses on
the duties of the individual in context of the community.
Customary law emphasizes the group, community and the
individual’s role in the community.

-2-
3. The Constitution contains indications that fundamental
rights have priority over customary law. List and explain
3 of these indications.

• Section 2 – “Supremacy of Constitution.-This Constitution

is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by
it must be fulfilled.”

This section provides that the constitution is the supreme law

of South Africa, and that all laws are subject to it.

• Section 8 – “Application.—
(l) The Bill of Rights applies to all law, and binds the
legislature, the executive, h e .judiciary and all organs
of state.
(2) A provision of the Bill of Rights binds a natural or a
juristic person if, and to the extent that, it is
applicable, taking into account the nature of the right
and the nature of any duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a
natural or juristic person in terms of subsection (2), a
court-
(a) in order to give effect to a right in the Bill,
must apply, or if necessary develop, the
common law to the extent that legislation does
not give effect to that right; and
(b) may develop rules of the common law to
limit the right, provided that the limitation is in
accordance with section 36 (1).
(4) A juristic person is entitled to the rights in the Bill
of Rights to the extent required by the nature of the
rights and the nature of that juristic person.”

The Bill of Rights, as per this section, is applicable to, and

binds all legislation, including customary law as applied.

-3-
 • Section 36 (1) – “ Limitation of rights.-
(1) The rights in the Bill of Rights may be limited only
in terms of law of general application to the extent that
the limitation is reasonable and justifiable in an open
and democratic society based on human dignity,
equality and freedom, taking into account all relevant
factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose;
and
(e) less restrictive means to achieve the purpose.”

Section 36 (1), the “limitation” clause. The law that limits a

right must be of general application – the law must apply
to everybody in the country. The limitation must be
reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom –
There must be a very good and justifiable reason to limit a
right in terms of the context of a constitutional society. This
section allows the Bill of Rights to be limited by law of
general application, including customary law, provided as
stipulated supra.

SECTION B

1. Briefly discuss strategies and procedures that were

developed generally for handling disputes in
indigenous law.

In customary law of most of the Southern African countries,

the processes of negotiation and mediation are found.
African customary law these processes were to bring about
reconciliation between individuals and/or community groups
who for some reason have dispute. Procedures and rules
have been developed to settle disputes between parties and
the following is to be found in communities world wide, also
in African customary law.

In some cases the aggrieved party would disregard the

other party so that the grievance would not lead to conflict.
Sometimes the aggrieved party would avoid the other party,
in which case it causes the aggrieved party to break existing
relations with other party, and in other circumstances the
aggrieved party would act unilaterally, by use of violence or

-4-
sorcery to settle a dispute (self-help). These procedures as
discussed involve the taking of action by one party only to
settle a dispute

By the process of negotiation the parties involved view to

settle the dispute and aim to reconcile and restore existing
relationships. Two parties have to be involved in this process
of negotiation.

With the processes of mediation, arbitration and judicial

adjudication, a third party gets involved. In mediation a
mediator gets involved in a dispute between parties, who
then subject themselves voluntary to the final decision of
mediator. In arbitration the decision of the third party is
binding and enforceable to both the disputing parties. If the
dispute cannot be settled by any of these discussed
procedures, one or both parties may appeal to a court to
settle the dispute (judicial adjudication). In each of these
processes it can be clearly seen that the role of the third
party actually differs from one procedure to another.

-5-