Study unit 2: CUSTOMARY LAW OF PERSONS, FAMILY LAW AND MARRIAGE LAW
Lecture 1: CUSTOMARY LAW OF PERSONS, FAMILY LAW AND MARRIAGE LAW
1.1 THE LEGAL
... [Show More] SUBJECT IN INDIGENOUS LAW
The term “juristic person” refers to an association of persons which, according to
the law, is regarded as a legal subject.
Within the context of the agnatic group, the individual is therefore independent of
the other members.
1.2 STATUS
“Status” is linked to a person’s legal position or standing, and it is this status that
determines a person’s powers.
Status may either give or deny the individual certain powers.
In modern customary law, a person’s status is infuenced strongly by the specifc
age (18) at which majority is attained, as prescribed in section 17 of the
Children’s Act 38 of 2005.
Status determines the powers derived from objective law. Rank is just one factor
that may infuence a person’s status.
Rank plays a signifcant role in customary law.
1.3 Age
A boy who was considered mentally immature was not qualifed to succeed to a
position of status and was temporarily replaced by a deputy until he was mentally
mature enough.
1.4 Sex
Only male persons could succeed to positions of status. A woman could therefore
never become a family head, nor could she succeed to general or house property.
This means that, today, the legal position of unmarried women compares
favourably with that of males.
The South African Constitution provides, in section 9, that no person may be
discriminated against on any of the grounds listed in that section, including
gender.
1.5 Rank
1.5.1 Family rank
Males occupied a higher rank than females. Females were therefore always under
the authority of males, and only males could become family heads.
The eldest son held a higher rank than his younger brothers, and younger
brothers therefore ranked below their older brothers. The same principle applied
to sisters.
1.5.2 House rank
“Polygyny” refers to the form of marriage in which a man is married to more than
one woman at the same time.
“Polyandry” refers to a form of marriage in which a woman is married to more
than one man at the same time.
Today, polygyny is still a common practice among African people. Polyandry is
foreign to indigenous African people and, in fact, is not common anywhere in the
world.
Lecture 2: Introduction to customary family and betrothal law
2.1 THE SCOPE AND NATURE OF CUSTOMARY FAMILY LAW
The main principles of customary law are valid for all African ethnic groups of
South Africa. However in numerous instances, there are so many variations that,
technically, there are as many systems of customary law as there are ethnic
groups. (See Kerr “The Constitution and customary law” (2009) 126 SALJ 39 42–
43.)
The polygynous marriage infuences customary family law in the following ways:
• Potentially, there are two or more families, and this family unit is known as the
agnatic group.
• The legal relations within the family also apply to each family within the
household. [Show Less]