LCP4804 - Advanced Indigenous Law Summary Notes Trial Exam and Answers

LPB ACCOM Student Number 48264385 LCP4804 Advanced Customary Law Semester 2 - Trial exam questions 2018 1.1 Discuss marital rights in the context of polygamy within the South African legislation pre-democracy. Use case law to show the emancipation of women in the Constitutional Court. In terms of the BAA (which was the national policy), alongside the Natal Code of Zulu Law, the concept of marital rights declared that all black women were perpetual minors. Perpetual minority demands the handing over of the woman from the guardian (her father) to guardian (the husband) during marriage proceedings because of being considered a minor. The latter code provides that the husband is the owner of matrimonial property and the wife owes him the duty of respect. In the Gumede case, these provisions were found to be inconsistent with the constitutional right to equality and are invalid. Other than these negative and disruptive roles, there is no further role for these old order statutes. With regards to the polygamous nature of customary marriages, the husband had all the rights as well as the power to marry as many wives as he wanted, whereas women had no competing rights since they were regarded as perpetual minors. The Constitutional Court cases which are relevant here are: Gumede Case which discussed property rights in the context of divorce. The Recognition of Customary Marriages Act was unconstitutional as it excluded customary marriages concluded pre-recognition from the marital regime of ICOP. This meant that such women upon divorce were not entitled to any marital property. This case was not explicitly brought before the court in a polygamous nature, however it is important to take note that all customary marriages are potentially polygamous. Mayelane Case Permission of first wife is a requirement the court in this case set a precedent that in order for a man to marry more women according to customary law, that he requires the permission of the first wife. 1. 2 How did the outlawed marital legislation hinder the status of indigenous women? The Black Administration Act declared that all black women were perpetual minors. Perpetual minority demands the handing over of the woman from the guardian (her father) to guardian (the husband) during marriage proceedings because of being considered a minor. Section 23 Before the Act came into being customary marriage was not recognised as a marriage in law. It was known as a customary union where spouses did not enjoy marital rights. Black women were perpetual minors who could be discarded simply by their husbands marrying other women by civil rites. In terms of the Kwazulu Act on the Code of Zulu law and the Natal Code of Zulu Law, that these statutes have no contribution to make in the development of post-apartheid customary law. Without section 23 of the BAA, the male primogeniture problems in Mthebu, Shilubana and Bhe would not have happened. Prior to coming into operation of the Recognition of Customary Marriages Act 120 of 1998, customary marriages were subject to limited recognition in South Africa as a result of their potentially polygamous nature. Before to the Act coming into being customary marriage was not recognised as a marriage in law. It was known as a customary union where spouses did not enjoy marital rights. Black women were perpetual minors who could be discarded simply by their husbands marrying other women by civil rites.