Legal Diversity June 2007

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2007 SUBJECT, COURSE AND CODE: LEGAL DIVERSITY (LAWS3LD) LEGAL STUDIES
212 (LAWS2LD) LEGAL STUDIES 212 PT (PLP2LD1) TOTAL MARKS: 60 Professor I P Maithufi Ms M Mamashela
DURATION: 3 HOURS External Examiner: Internal Examiner:
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 Surviving Spouses 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 its judgment/decision? (10) In Ryland v Edros 1997 (2) SA 690, the parties had contracted a Muslim marriage, 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 widows rights? (10) [20]
(ii)
Question 2
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2007 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 give reasons for you answer. (10) [20]
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 seduction damages. 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 ilobolo to be transferred from Siphos family to Thandiwes though none was transferred 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 has come 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 The Recognition of Customary Marriages Act 120, 1998? Name and discuss them. Is ilobolo one of them? Explain. (10) 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) What is the legal status of her marriage to Sipho? Discuss. (5) [20]
b.
c.
Question 4
UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2007 SUBJECT: LEGAL STUDIES PAGE 3 QUESTION 4 (a) What are the five current reasons for the maintenance of the institution of ilobolo according to Dlamini? (10)
(b)
What are the criticisms leveled by Dlamini against these reasons?
(10) [20]
QUESTION 5 Ntombenhle and Nxabulela lived together for 25 years; they were not married. Two children 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 contributed equally towards the construction of a four-roomed house on the land. Last year Nxabulela died intestate and was survived by Ntombenhle and their two children. After Nxabulelas death his brother, Mahlalela, argued that he was Nxabulelas intestate heir in accordance with the principles of Zulu customary law. This meant Mahlalela 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 the Black Administration Act 38 of 1927 as well as regulation 2 of the Regulations in Respect of the Administration and Distribution of the Estates of Deceased Blacks 7 February 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 in Bhe v Magistrate, Khayelitsha 2005 (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. [20]

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UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG EXAMINATIONS: JUNE 2007 SUBJECT, COURSE AND CODE: LEGAL DIVERSITY (LAWS3LD) LEGAL STUDIES

DURATION: 3 HOURS External Examiner: Internal Examiner:

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

What are the criticisms leveled by Dlamini against these reasons?

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