Browsing by Subject "customary law"

Now showing 1 - 6 of 6
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    Ascertainment of customary law: case note on MM v MN - case note
    (2016) Osman, Fatima
    Froneman J states in MM v MN: ‘The process of determining the content of a particular customary norm can present some challenges.’ This case gives rise to a number of issues which have been discussed in some part elsewhere,2 however this note considers the Constitutional Court’s approach in MM v MN in ascertaining customary law and the difficulties the Court experienced. The issue in MM v MN was whether a polygamous customary marriage was validly concluded in Tsonga customary law and in particular, whether the first wife’s consent was required for the subsequent customary marriage. This note scrutinises how the Constitutional Court ascertained the Tsonga customary law on the issue. Tentative conclusions include that innovation and respect for customary law may not be enough for the judgment to stand as good precedent.
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    Beyond the Traditional Courts Bill: regulating customary courts in line with living customary law and the Constitution
    (Academy of Science of South Africa, 2011) Weeks, Sindiso Mnisi
    This article discusses flaws in the Traditional Courts Bill in light of research that shows customary courts to operate in accordance with a model that is very different from that adopted by the Bill. Customary courts are not professional institutions but community-based discussion forums, thus participation in them is inclusive of the broad community membership, and their accountability is partly dependent on people's ability to choose to use them, or other forums, when their own courts are unjust. The article therefore develops a framework for regulating customary courts that gives recognition to their essential elements as understood through prior study of diverse courts. The framework advanced is also one that gives greater expression to rights (to democracy, gender equality and freedom of association, or choice) articulated in the Constitution.
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    Custom Versus Customary Law: Does South African Jurisprudence Draw the Distinction?
    (2025) Osman, Fatima
    This article presents a critical analysis of whether South African courts employ established theoretical concepts to delineate the boundaries between custom and customary law. To facilitate a comprehensive understanding, the article begins by providing an overview of the South African legal system, laying the groundwork for the subsequent discussion. The article then delves into prominent theories that address the differentiation between custom and customary law, providing a succinct summary of each. Finally, the article examines the degree to which these theories have been embraced by the courts. Notably, the article uncovers the courts’ emphasis on factors such as certainty and the protection of human rights when deciding whether to apply customary law, rather than relying solely on the distinction between custom and customary law.
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    Exploring the influence of intlawulo on father Involvement among Xhosa speaking black South African fathers raised and living in Cape Town
    (2020) Samukimba, Jill Chidisha; Moore, Elena
    Studies on African fatherhood represent African fathers as problematic and in South Africa, they are identified as ‘‘emotionally disengaged, physically absent, abusive and do not pay for their children's upkeep'' (Morrell & Ritcher, 2006:81). Many studies link the high rates of absent fathers to poverty and irresponsibility. Such literature is devoid of cultural factors that might be contributing to the high rates of absent fathers in most African communities. Across Southern Africa, intlawulo, a customary practice that involves the paying of a fine by a man responsible for impregnating a woman out of wedlock and his family to the pregnant woman's family. Historically, intlawulo served as a critical means of regulating and mediating unmarried fathers' involvement in their children's lives. Therefore, this explorative qualitative research project explores African fathers' experiences of intlawulo and its subsequent links to father involvement. To gauge their experiences and interpretation of intlawulo and father involvement, I conducted face-to-face in-depth qualitative interviews with a purposive sample of 8 black Xhosa speaking South African fathers from Cape Town who have gone through the intlawulo negotiations for the past five years or less. This study aimed to explore how the customary practice of intlawulo or ‘paying damages' influences a father's involvement in his child's life in Khayelitsha, an urban township within Cape Town. It argued that the payment of intlawulo regulates a father's involvement in childrearing, his interaction with and access to his child. In contrast to how fathering has been described in previous literature, this thesis argues that becoming a father is a process and intlawulo is the entry point where it can be denied, stopped and negotiated.
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    Left in Limbo The Status of the Handing Over of the Bride in Customary Marriages Post Sengadi v Tsambo
    (2025-03-25) Osman, Fatima; Kruger, Sky; Bebington, Micaela Lara; Uranovsky, Jaime Lilleen
    Courts are regularly tasked with determining the validity of a customary marriage using the requirements stipulated in the Recognition of Customary Marriages Act. This entails an assessment of whether certain fundamental rituals and practices occurred. One such ritual that appears frequently in recent jurisprudence is the handing over of the bride to the bridegroom’s family, although courts have differed on whether this is a necessary requirement for a valid customary marriage. In the case of Sengadi v Tsambo, the High Court conceptualised the handing over ritual as an extraneous requirement additional to the Recognition of Customary Marriages Act that could be imposed on an otherwise valid marriage, and ruled it unconstitutional to this extent. This article argues that the High Court's declaration of unconstitutionality, while peculiar for positioning the practice of handing over as extraneous to the statutory provisions, was within its powers, effective without further confirmation, and binding on lower courts within its jurisdiction. Upon appeal, rather than clarifying the matter, the Supreme Court of Appeal did not substantively deal with the High Court’s peculiar conception of handing over and ruled that the High Court should not have pronounced on its constitutionality. In doing so, we argue that the Supreme Court of Appeal may have tacitly overturned the High Court’s declaration of constitutional invalidity.
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    Resurgence of tribal levies: double taxation for the rural poor
    (Academy of Science of South Africa, 2011) Claassens, Aninka
    People in the former homelands waged a successful battle against the imposition of 'tribal levies' during the anti-apartheid struggle. Recently, however, there has been a resurgence of traditional authorities demanding annual levies. Those who refuse to pay cannot access government grants and identity books. This article argues that recent laws bolstering the powers of traditional leaders have contributed to this resurgence. It argues that the laws undermine the citizenship rights of the poorest South Africans as well as their ability to hold traditional leaders to account. It suggests that the laws have been ambiguously worded in an attempt to disguise the fact that they are inconsistent with the Constitution. It rebuts the argument that annual tribal levies are consistent with and justified by customary law, by describing their colonial and apartheid genesis.