That is only part of the task, and from a Customary Law perspective. Was section 39(2) of the South African Constitution, by its reference to the development of customary law alongside the common law, merely part of the CODESA settlement arrangement, intended merely to make Customary Lawyers and those who subscribe to it feel good about themselves and nothing more? Pilane and Another v Pheto and Others (582/2011) [2011] ZANWHC 63 (30 September 2011), Mafate and Another v Bapo Ba Mogale Traditional Council and Others (M139/2015) [2016] ZANWHC 44 (22 September 2016), What’s mine is mine: How the Bapo Ba Mogale got robbed of R800 million, JSC October 2020 sitting postponed until 2021, Criteria for the appointment of a Chief Justice, The JSC’s misdealings against Judge Motata. The account, into which mining companies pay royalties for communities on whose ancestral land they mine, had once accumulated R617 million, but currently has less than R1 million.

Will they rebuke the applicant for his upholding the interdicts, given that they infringed basic rights to freedom of expression as well as the constitutional principle of accountability? There are widespread complaints that courts are failing and refusing to recognise customary law or do not understand the particular principles of these laws.

What case would you have put up in relation to the interface between Customary Law and Common Law in modern-day South Africa? The conduct that formed the basis for these convictions is deplorable. The case of King Buyelekhaya Dalindyebo (aah Zwelibanzi!!!) That means I reserve the right to edit your paper, either stylistically or substantively, or both. In order to post comments, please make sure JavaScript and Cookies are enabled, and reload the page. The common law is contained in actual texts dating back more than a thousand years. It does not appear to have heard oral argument on the substance of the body of law that constitutes Customary Law that had received no substantive treatment in the SCA. In a minority decision the Chief Justice and Justice Nkabinde dissented, saying they would have upheld the decision of the court below. You will have to read. The King was convicted of arson, kidnapping, assault with intent to do grievous bodily harm and defeating the course of justice.
Our commitment to bringing transparency to the judicial appointments process in South Africa comes with considerable costs. This is because people are perhaps being guided by civil, common and internal law principles as well as religious beliefs, therefore constraining the proper development and application of customary law in the South African societies. An introductory background on South African customary law will be presented by way of tracing the development of customary law over time, focusing on three historical periods: colonialism, the apartheid era of segregation, and after democratization. In a majority decision the Constitutional Court upheld an appeal against the interdicts and set them aside. For your guidance on writing style see examples on this website.

This law enables first born males to inherit everything that is left behind by the father, with the belief that if females are given the chance to do so, they will marry and take wealth/inheritance to their husband’s family and leave her maiden family destitute. However, understanding of the application of the law in certain cases was very slim because most of the judicial officers of that time were far removed from the customs held by the majority of indigenous people.

For example, in inheritance practices under customary law, men are the rightful heirs to their fathers’ properties, not women. This is followed by a consideration of the relevant factors deter- mining the application of customary law. Section 211 (2) of the Constitution specifically provides for the rights of traditional authorities to function subject to their own system of customary law, including amendments and repeals of the laws. The Judicial Service Commission interviews take place from the 3 – 7 April 2017. However, Dambuza JA reflected that decisions, for example in divorce matters, straddled the two realms of common and customary law, making adjudication difficult. Did the courts do justice to Customary Law, or did they ignore it? “Platinum, poverty and princes in post-apartheid South Africa: new laws, old repertoires”, New South African Review 4 (2014), 117. Customary law is fluid, and changes over time and among different groups of people. Furthermore, some scholars argue that customary law does not belong in the courts, and this has raised many arguments in the legal system. Women and the Judicial Office: what lies behind the robe? Following news that President Ramaphosa is considering the release from prison (or pardon) of King Buyelekhaya Dalindyebo – Aah Zwelibanzi!!! But what is the touch and feel of Customary Law?

Therefore, outcomes of court rulings were mostly dependent on the personal attributes and philosophical assumptions of the particular judge.

On all four occasions the SCA uses the phrase with a view to dismissing the King’s argument that the King’s conduct was done in accordance with customary law. Explore also what constitutional grounds, if any, arise in each case, and whether the Constitutional Court was correct in dismissing the King’s application for leave to appeal on your appreciation of the role that Customary Law should rightfully play in South Africa’s constitutional jurisprudence. This may be a timely review of what that court has been up to in the ongoing battles for control over the lucrative mining rights in the region, and what attitude the JSC will take to this candidate’s record. The Constitutional Court has asserted the validity of customary entitlements to land and minerals rights in the Alexkor case of 2003, which dealt with the ownership status of both land and mineral rights in the Richtersveld. I can only pick one paper. еxcｅllent put up, very informative.

She practiced as an attorney from 1992-2003 and has served as the High Court Judge in the Eastern Cape from 2005-2015. The winning paper will be announced on this platform. “Customary law has always been part of our law and prior to the advent of the South African constitutional democracy, customary law was administered by traditional and commissioners courts as long as it was not in conflict with the common law of the land,” Dambuza JA said. Public Protector, Busisiwe Mkhwebane, will release her report into the missing Bapo-Ba-Mogale mining royalties by the end of April. Presently, the Constitution is the supreme law of South Africa and section 211 (3) of the Constitution instructs that the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.

In a 43-page judgment, the Supreme Court of Appeal (the SCA) uses the phrase “customary law” on only 4 occasions. As a result, customs and customary practices that offend the Bill of Rights have been struck down as unconstitutional. Communications@ru.ac.za, Copyright All Right Reserved 2019, Max Themes.

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Save my name, email, and website in this browser for the next time I comment. Prof Rosaan Kruger, Judge Mfanelo Mbenenge, Judge Nambitha Dambuza, By Hazel Simpo, Psychology Honours student, Rhodes University’s Faculty of Law recently hosted Judge of Appeal, Nambitha Dambuza who gave a public lecture titled: “Customary law in South African courts - shunned?”. Obtain the papers filed in all 3 courts in the King’s case, and consider whether the grounds advanced on behalf of the King for the challenge were good or bad and why in each case. Dambuza JA pointed out that the majority of conflicts in customary law are mostly with regards to inheritance and succession. The deadline for submission of the final paper is, This invitation for expression of interest closes on.

Ensure that you use proper referencing and acknowledge your sources. One candidate, Ms Tebogo Djaje, has been nominated for a position on the North-West bench. “Should customary law be implemented for poor people only?” she asked. I’m wondering why the otheг If your thesis is that Customary Law has no role in South Africa’s constitutional landscape, develop your argument with reference to specific examples of Customary Law provisions that you consider to be inconsistent with specific provisions of the Constitution, bearing in mind the principle that where a law is capable of both a constitutional and an unconstitutional interpretation, the courts are enjoined to adopt the interpretation that saves the law from unconstitutionality. But not once is there a teleological treatment of the body of law that is Customary Law in the judgment. She has had occasion to look at the Bapo-Ba-Mogale Traditional Council leadership disputes, which in turn actually hinge around access to the D accounts. The next section discusses the recognition of customary law in the legal system of South Africa. To sum up the discussion, Dambuza JA noted: “Of course judges face challenges with regards to passing judgments on customary disputes, but it does not mean that customary law should be withdrawn from the courts of laws.”. According to Aninka Classens and Boitumelo Matlala: “Judge Hendricks found that Nyalala Pilane, being ‘the nominated representative of the kgosikgolo in South Africa, has the necessary standing and clear right as a member of the royal family, as defined in terms of Bakgatla custom and law, to bring this application. Or will the arguably more conservative view of the Chief Justice on traditional leadership prevail? What would you have done differently? The Constitutional Court dismissed the King’s application for leave to appeal against the judgment of the SCA. The transparency and accountability issues around these accounts have been the subject of a number of court cases, and the actions of the communities who are demanding accountability as well. Click here for instructions on how to enable JavaScript in your browser. David v Goliath as Students Challenge Government Over Covid-19 Regulations: A Summary, South Africa’s Main Opposition Party (DA) Challenge to the Disaster Management Act, 2002: A Summary, In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 5th segment, The Zondo Commission Regulations Amendment: A Looming Constitutional Crisis?