Question 1 (20 marks)
Write an essay of no more than two pages analysing whether, if two parties are married under customary law and subsequently enter into a civil marriage with each other, the civil marriage automatically dissolves the customary marriage. In other words, do the parties remain dually married under both customary and civil law, or are they now considered married solely under civil law? Your analysis should be framed in the context of the article by F Osman, “The Million Rand Question: Does a Civil Marriage Automatically Dissolve the Parties’ Customary Marriage?” PER / PELJ 2019 (22).
Marks will be awarded based on the following criteria:
• A good and concise introduction. (1)
• A body that analysis and explains whether a civil marriage automatically dissolves a customary marriage, based on the article by F Osman, “The Million Rand Question: Does a Civil Marriage Automatically Dissolve the Parties’ Customary Marriage?” PER / PELJ 2019 (22). (17)
• A concise conclusion that effectively draws everything together. (1)
• Good academic writing demonstrating good grammar and language skills. (1)
Question 2 (20 marks)
Kagiso and Lerato entered into a customary marriage on 15 October 2015. However, they did not register their marriage. Kagiso now intends to marry another woman, Asanda, through customary rites.
Answer the following questions based on the above set of facts:
Is the customary marriage between Kagiso and Lerato valid despite not being registered? (2)
What steps should Kagiso take to ensure his customary marriage with Lerato is registered and what would be the effect of registration? (4)
Can Kagiso enter into a civil marriage with Ayanda while his customary marriage to Lerato is still in effect? (3)
Before Kagiso can enter into a customary marriage with Asanda, what key requirement for the validity of the marriage is outlined in the Mayelane v Ngenyama 2013 4 SA 415 (CC) decision? (4)
Briefly discuss the constitutional validity of polygamy within the context of African customary law and provide your personal opinion, either in support of or against this practice. (5)
Suppose Lerato does not want to be in a polygamous marriage and seeks a divorce. Who has the legal authority to dissolve the marriage between Kagiso and Lerato? Is it the elders of the two families after a family meeting, a traditional leader after consultation with both parties or a competent court of law? Substantiate your answer using applicable authority.
Question 3 (15 marks)
There has been debate about whether the application of customary law under the Law of Evidence Amendment Act (LEAA) was mandatory or discretionary. Critically analyse section 1(1) of the LEAA, using relevant case law to support your analysis. After thoroughly reviewing the language of the LEAA, provide your personal opinion on whether the application of customary law was intended to be mandatory or permissive under the Act.
Marks will be awarded based on the following criteria:
• A good and concise introduction. (1)
• A body that:
Critically analyses section 1(1) of the LEAA. (4)
References and discusses relevant case law. (6)
Provides a personal opinion on whether the language of the LEAA indicates a permissive or mandatory approach. (2)
• A concise conclusion that effectively draws everything together. (1)
• Good academic writing demonstrating good grammar and language skills. (1)
Question 4 (20 marks)
Write a short paragraph explaining the rule of male primogeniture, how it operates and analysing its constitutional validity. Your analysis should be based on at least two prescribed judicially decided cases. (10)
Write a short paragraph differentiating between customary criminal law and the customary law of delict. You are required to compare and illustrate the most important differences. (10)
Answers to Above Questions on Customary Law
Answer 1: The fact that if two parties are married under customary law and subsequently enter into a civil marriage with each other, the civil marriage automatically dissolves the customary marriage is somewhat ....
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