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Intro Customary Law Cases (Application of Customary Law (Ex Parte Minister…
Intro Customary Law Cases
Declaration of constitutional invalidity
MM v MN :star:
Non-consentual second marriage declared unconstitutional and invalid
Gumede v President of the RSA :star:
Certain official customary law dealing with marital property was declared unconstitutional
Living Customary Law Changing
Bhe v. Magistrate Khayelitsha :star:
Living customary law allows for rules to be adapted to changing circumstances
This was the case in which the principle of inheritance by the eldest son (primogeniture) was declared unconstitutional
Mabena v Letsoalo :star:
Dispute about whether a valid customary law marriage was concluded
Under official customary law: father of bridegroom must negotiate lobolo with the father of the bride, that didn't happen in this case
However, in this case - due to the changing circumstances such as the increase in female-headed households, it was held that the living customary law had changed, and therefore the marriage was valid
Application of Customary Law
Fosi v RAF
:star:
Recognition of African Customary Law duty of support of major child to support parent (de facto)
Ex Parte Minister of Native Affairs: in re Yako v Beyi :star:
Old Union of SA rule which said that the party alleging the existence of customary law rule must prove it using criteria applicable to the determination of a custom
Found that English Law relating to the recognition of customs applied to customary law, and therefore it could only be applied if it was proved
Shilubana v Nwamitwa :star:
Development of customary law to recognise female chiefs done by traditional authority itself - therefore traditional authorities also have the authority to develop customary law to align with the constitution
The
Van Breda
test cannot be applied to customary law
Swasintshi v Magidela
:star:
The dispute was about a debt that was owed due to the sale of mielies.
The court considered 2 main factors in concluding that customary law should apply:
1) that the mielies were homegrown and not commercially produced
2) both parties lived in the same homeland area
Van Breda v Jacobs :star:
The existence of a custom must be clearly proved, the onus of proving it lies with the person who is alleging it. It must be proved that it is long-established, reasonable, uniformly observed, and certain.
Mayelane v Ngwenyama :star:
Court confirms that customary law is a primary source of law