CUSTOMARY LAW 2641 SEPTEMBER TEST MEMO – 2014 PLEASE NOTE THIS IS A GUIDELINE AND NOT ANSWERS NB: Cul = customary law CuM= customary marriage RCMA = Recognition of Customary Marriage Atc, 2000 MMPLAA - Marriage and Matrimonial Property Law Act 3 of 1988 Q 1. 1.1 See your notes 1.2 See your notes 1.3 See your notes Q2 2.1 Here you have an option to write in one essay or tackle each marriage separately, but thoroughly discussed. BELOW ARE NOTES OF WHAT SHOULD BE CONSIDERED FOR COMPETENT ANSWER WHICH HELPS IN PROPER CONSTRUCTION OF THE ANSWER: BRIEFLY discuss the status of CuM in South Africa ( e.g is CuM in SA legally recognized or not, and give short reasons). Brief discussion on conditions for recognition of CuM entered into before the year 2000 ( requirement for valid CuM after 2000 may also be shorlty summarized but not necessary) NB: It’s important not to lose focus on what the question requires you to do. Don’t lose track! These two discussions indicated above are optional to set the background. Though not compulsory but may carry added advantage to your answer. NOTE: by now you have noticed that all marriages on this scenario are pre 2000. Therefore you must realise that you will not be dealing with section 3 requirements for these marriages. RELEVANT STATUTES: 1. Section 2(1), (3) which provides for the recognition (validity) of all forms of customary marriages, monogamous and polygamous, entered into before the RCMA and which still exist (meaning were not terminated before 2000) 2. Section 4(2,3(a-b) & 9) which provides for the requirement to register a customary marriage for marriages entered before 2000 and those after and the consequence of failure to register such customary marriage. Also, test each customary marriage against these provisions. Put the section against each marriage affected by the section, then determine whether the marriage is valid or not. This will apply on marriage 1 and 2 as they are both customary marriages. 3. With regards to the 3rd marriage, section 7(2) OF the MMPLAA becomes relevant (see your tutorial notes) as also discussed in the Netshituka case. 4. You can conclude your answer by making reference to the case of Netshituka, if the present case presents similar facts, you can make your hypothesis on the outcome of this case. EXAMPLE SO FAR: In terms of SA legal system, CuM are now recognised as legally binding marriages since the promulgation of the RCMA ( full citation) which came into force in the year 2000. The RCMA was enacted for the……… of customary marriages .In terms of section 2 of the RCMA which provides that…….., Ndhuma’s marriages to Thandi and Ntombi are valid (give reason for each marriage). As it shows that the marriages were still in existence at the commencement of the Act and continue to exist. Though the marriages were not registered they were not invalidated, since section 4(9) of the RCMA provides that …… With regards to Ndhuna’s marriage to Dudu, section 7(2) of the MMPLAA should be considered which provides that…… With this and taking into account the decision of the SCA in the case of Netshituka (citation) where the court held that……., Dudu’s civil marriage is not valid as it was contracted under …………. (explain to justify similarity of facts in order for the case of Netshituka to be applicable as precedent here). Therefore,……… (put a brief conclusion). Q 3 3.1 USE POINT FORM See a comprehensive summary on page 242 of prescribed text book, African Customary Law in South Africa, Oxford (2014) 3.2 see section 10(1) of the Traditional Leadership and Governance Framework Act 23 of 2009
Posted on: Tue, 04 Nov 2014 10:20:13 +0000
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