Legal Diversity June 2007

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UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG

EXAMINATIONS: JUNE 2007

SUBJECT, COURSE AND CODE: LEGAL DIVERSITY (LAWS3LD)LEGAL STUDIES 212 (LAWS2LD)

LEGAL STUDIES 212 PT (PLP2LD1)

DURATION: 3 HOURS TOTAL MARKS: 60

External Examiner: Professor I P Maithufi

Internal Examiner: Ms M Mamashela

STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS, TO WRITE LEGIBLY

PLEASE NOTE: This paper consists of 3 pages. Please see that you have them all.________________________________________________________________________

ANSWER THREE (3) QUESTIONS

QUESTION 1

(i) Muslim marriages are not recognized as valid marriages in South African law

and the parties thereto do not enjoy the protection afforded to spouses by virtue

of inter alia, the Intestate Succession Act and the Maintenance of SurvivingSpouses Act, van Heerden, J in Daniels v Campbell NO and Others 2003 (9)

BCLR 969 at 993. However, the widow was recognized as the deceaseds

spouse and survivor respectively. What reasons did the court give for itsjudgment/decision?

(10)

(ii) InRyland v Edros1997 (2) SA 690, the parties had contracted a Muslimmarriage, and the court recognized the contractual obligations flowing from the

marriage and the widows legal right to arrears maintenance. What reasons did

the court advance for recognizing those contractual obligations and the widowsrights?

(10)

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Question 2


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SUBJECT: LEGAL STUDIES

PAGE 2

QUESTION 2

(a) State and discuss five criticisms leveled against the Traditional Courts.(10)

(b) Do you agree with all the criticisms leveled against the Courts? Discuss and givereasons for you answer.

(10)

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QUESTION 3

Sipho impregnated Thandiwe in June 2001 whereupon his father and uncle went

to her home to acknowledge the delict and pay 6 head of cattle for seductiondamages. Siphos representatives were received warmly by Thandiwes family.

Thandiwe gave birth to a baby boy in February 2002. Subsequently, both families

agreed that the children marry. A further agreement was reached on the amount

of iloboloto be transferred from Siphos family to Thandiwes though none wastransferred at the time. After these negotiations Sipho and Thandiwe lived

together as husband and wife. Thandiwe gave birth to another child, Nozipho.

In 2003 Thandiwe heard that Sipho had married a woman by the name of Belina

in 1990, according to customary rites, and was not divorced from her. In a rage,Thandiwe left Sipho and went back to her home taking both children. She hascome to you for legal advice. She would like you to answer the following

questions.

a. What are the requirements of a valid customary marriage according to TheRecognition of Customary Marriages Act 120, 1998? Name and discuss them. Is

iloboloone of them? Explain.

(10)b. The Act prescribes a procedure that a man who wishes to marry a second wife

must follow. Write a short note on the procedure.

(5)c. What is the legal status of her marriage to Sipho? Discuss.

(5)

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Question 4


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SUBJECT: LEGAL STUDIES

PAGE 3

QUESTION 4

(a) What are the five current reasons for the maintenance of the institution of iloboloaccording to Dlamini?

(10)

(b) What are the criticisms leveled by Dlamini against these reasons? (10)

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QUESTION 5

Ntombenhle and Nxabulela lived together for 25 years; they were not married. Twochildren were born of the relationship, Thamsanqa a boy (aged 20 years) and

Makhosazana, a girl (aged 16 years). Nxabulela bought land at Kwa Machibisa, a

township 10 kilometers out of Pietermaritzburg. He and Ntombenhle contributedequally towards the construction of a four-roomed house on the land.

Last year Nxabulela died intestate and was survived by Ntombenhle and their twochildren. After Nxabulelas death his brother, Mahlalela, argued that he was Nxabulelas

intestate heir in accordance with the principles of Zulu customary law. This meantMahlalela argued further, that he was entitled to Nxabulelas land as well as the house

built on it. In making these arguments, Mahlalela relied on the provisions of section 23

of theBlack AdministrationAct 38 of 1927 as well as regulation 2 of theRegulations inRespect of the Administration and Distribution of the Estates of Deceased Blacks7February 1987.

Ntombenhle now wants your advice on the following issues:

Is Mahlalela correct when he claims that he is Nxabulelas intestate heir? In your answer

you must set out the legal position as it applied both before and after the decision of the

Constitutional Court inBhe v Magistrate, Khayelitsha2005 (1) SA BCLR 1 (CC).

You must also set out the judgment of the Constitutional Court in Bhes case and explain

how the court arrived at its conclusion.

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Legal Diversity June 2007