Hall of Cases

Memory hook. Customary law stands on its own feet — and it owned the land all along.

Facts. The Richtersveld community claimed restitution of land (rich in diamonds) from which it had been dispossessed. The question was whether the community had held rights in the land under indigenous law before annexation, and the status of customary law.

Legal question. Is customary law an independent source of law, and did the community hold indigenous ownership of its land under it?

Judgment. The Constitutional Court upheld the community's indigenous land rights and confirmed the constitutional status of customary law as an independent legal system.

Significance. The leading authority that customary law is an original, self-standing source of law equal to the common law, and a landmark for indigenous land rights and restitution.

Exam tip. Cite Alexkor for two propositions: customary law is an independent source (not subordinate to common law), and it recognises indigenous/communal land ownership.

Memory hook. The Constitution certified: customary law belongs, on equal footing.

Facts. The Constitutional Court had to certify that the new Constitution complied with the agreed Constitutional Principles, including objections about the recognition of customary law and traditional leadership.

Legal question. Does the Constitution adequately recognise and protect customary law and traditional leadership?

Judgment. The Constitutional Court certified the Constitution, confirming that customary law enjoys constitutional recognition on a par with the common law.

Significance. An early confirmation that customary law is a constitutionally recognised system, setting the stage for Alexkor and the later development of customary law.

Exam tip. Use the Certification judgment to show that customary law's recognition is constitutionally entrenched and equal in status to the common law.

Memory hook. The living law let a mother negotiate lobolo — the frozen books were out of date.

Facts. The validity of a customary marriage was challenged on the basis that lobolo had been negotiated by the bride's mother (a woman) and that the bride herself had consented, contrary to "official" customary law which required a male family head.

Legal question. Should the court apply the frozen "official" customary law, or the living customary law actually practised by the community?

Judgment. The court upheld the marriage, applying living customary law over the distorted official version.

Significance. An influential recognition of living customary law and of the evolving role of women, foreshadowing Shilubana and Bhe.

Exam tip. Use Mabena for the official-vs-living distinction and the recognition of women's evolving roles in living customary law.

Memory hook. The community changed its own law to crown a woman — and the Court said yes.

Facts. The Valoyi traditional authority resolved to restore the chieftainship (hosi) to Ms Shilubana, who had earlier been passed over because she was a woman. A male relative challenged her appointment, relying on the traditional male-only rule.

Legal question. May a traditional community develop its own customary law to allow a woman to succeed to traditional leadership, and must courts respect that development?

Judgment. The Constitutional Court upheld Ms Shilubana's appointment, confirming the community's power to develop its own customary law consistently with the Constitution.

Significance. The leading authority on the living, evolving nature of customary law and on traditional communities' authority to develop it (in line with s 39(2)).

Exam tip. Use Shilubana for: living customary law, communities' power to develop their own law, and courts' duty to respect that development rather than impose common-law values.

Memory hook. Equal ownership for the customary-marriage wife.

Facts. A wife in an old (pre-Act) monogamous customary marriage was denied equal rights over the marital property under the RCMA's transitional provisions and old KwaZulu/Natal codes.

Legal question. Do provisions denying wives in old monogamous customary marriages equal proprietary rights violate the Constitution?

Judgment. The Constitutional Court struck down the offending provisions, equalising the proprietary rights of wives in old monogamous customary marriages.

Significance. A landmark securing gender equality in the proprietary consequences of customary marriage.

Exam tip. Use Gumede for equality in customary-marriage property (monogamous marriages); pair with Ramuhovhi (polygynous marriages).

Memory hook. No second wife without the first wife's "yes".

Facts. A husband entered a second customary marriage without the knowledge or consent of his first wife. On his death, the first wife challenged the validity of the second marriage under Tsonga customary law.

Legal question. Is the consent of the first wife required for the validity of a subsequent polygynous customary marriage?

Judgment. The Constitutional Court held the second marriage invalid for want of the first wife's consent, developing the living customary law to require it.

Significance. The leading authority that the first wife's consent is required for a valid subsequent customary marriage — a key development of living customary law for gender equality.

Exam tip. Combine Mayelane with s 7(6) of the RCMA (court-approved contract) when discussing further customary wives. Note the case developed living customary law under s 39(2).

Memory hook. Equality reaches the polygynous household too.

Facts. Wives in old polygynous customary marriages lacked equal rights to marital property under the RCMA, which left the proprietary consequences of such marriages governed by (discriminatory) old customary law.

Legal question. Are wives in old polygynous customary marriages entitled to equal proprietary rights?

Judgment. The Constitutional Court declared the provision invalid and imposed an interim regime giving wives equal proprietary rights pending legislation.

Significance. Extends Gumede's equality to polygynous customary marriages.

Exam tip. Pair Ramuhovhi with Gumede (monogamous) and Mayelane (first wife's consent) for the customary-marriage picture.

Memory hook. Custom bends: a missing ritual did not undo the marriage.

Facts. The validity of a customary marriage was challenged on the basis that a particular Swazi custom (ukumekeza, the integration of the bride) had not been observed.

Legal question. Is a specific traditional custom (ukumekeza) an indispensable requirement for a valid customary marriage?

Judgment. The court recognised the marriage, holding that strict observance of ukumekeza was not essential to validity.

Significance. An important recognition of the flexibility of living customary law and against rigid formalism in customary marriage.

Exam tip. Use Mabuza for the flexibility of living customary law — specific customs are not always indispensable. Pair with Mbungela (handing over).

Memory hook. A relationship is not a marriage — the families must be part of it.

Facts. A man claimed that a valid customary marriage existed; the alleged wife's family disputed it, and it appeared the required customary negotiations and family consent had not been completed.

Legal question. What are the essential requirements for a valid customary marriage, and were they met?

Judgment. The court held that no valid customary marriage had been proved, as the customary requirements and family consent were not satisfied.

Significance. Emphasises that a customary marriage is a union of families requiring genuine customary negotiation and consent, not merely cohabitation.

Exam tip. Use Fanti for the requirement of family consent/involvement and the customary process; contrast with cases relaxing strict formality where a marriage was clearly concluded.

Memory hook. No handing over, no marriage — the stricter line later relaxed by Mbungela.

Facts. A woman claimed to be a customary wife, but the handing over of the bride to the groom's family had not taken place, and the family disputed the marriage.

Legal question. Is the handing over of the bride essential to the validity of a customary marriage?

Judgment. The court found no valid customary marriage, emphasising the significance of the handing over of the bride.

Significance. Represents a stricter approach to the handing-over requirement, later softened by Mbungela v Mkabi.

Exam tip. Use Motsoatsoa for the traditional emphasis on handing over the bride; contrast with Mbungela, where the SCA held it is not always essential.

Memory hook. Intention over ritual — a marriage stands though the handing over was incomplete.

Facts. A customary marriage was challenged because the formal handing over of the bride had not been completed, although lobolo had been paid and the marriage celebrated and intended by the parties and families.

Legal question. Is the handing over of the bride an indispensable requirement for a valid customary marriage?

Judgment. The SCA upheld the customary marriage despite the incomplete handing over, giving effect to the parties' intention and the living law.

Significance. The leading modern authority that strict formalities (like handing over) can yield to the substance and intention of the customary marriage — a triumph of living law.

Exam tip. Use Mbungela as the modern, flexible position on customary-marriage formalities; contrast with the stricter Motsoatsoa.

Memory hook. The eldest son no longer takes all — daughters inherit too after Bhe.

Facts. On the death of a father intestate, the customary rule of male primogeniture meant that a male relative, not the deceased's two young daughters, would inherit and become family head. The rule was challenged as unconstitutional.

Legal question. Is the customary-law rule of male primogeniture, applied to intestate succession, consistent with the Constitution?

Judgment. The Constitutional Court struck down the primogeniture rule and ordered that the Intestate Succession Act govern such estates in the interim.

Significance. The landmark transformation of customary succession; the direct impetus for the Reform of Customary Law of Succession Act 11 of 2009.

Exam tip. Bhe is the flagship case: male primogeniture in intestate succession is unconstitutional (gender + birth discrimination). Note the interim remedy (Intestate Succession Act) and the later Reform Act.

Memory hook. The last stand of male primogeniture — before Bhe swept it away.

Facts. A woman married by customary law sought to challenge the male-primogeniture rule that excluded her daughter from inheriting her late partner's estate, arguing it was unconstitutional.

Legal question. Should the customary rule of male primogeniture be struck down as unconstitutional?

Judgment. The SCA upheld the primogeniture rule on the facts — a position subsequently overtaken by Bhe.

Significance. Represents the pre-constitutional-transformation position on customary succession, later reversed by the Constitutional Court in Bhe.

Exam tip. Use Mthembu to show the old position (primogeniture upheld) and contrast it sharply with Bhe, which struck the rule down.

Memory hook. Even a chief cannot silence the people's right to meet.

Facts. Members of a community within a larger traditional authority sought to hold a meeting to discuss forming a separate community; the traditional leadership tried to interdict them.

Legal question. May a traditional authority prevent community members from meeting and associating to pursue their own interests?

Judgment. The Constitutional Court discharged the interdict, upholding the community members' constitutional rights against the traditional authority.

Significance. Confirms that traditional authority operates within, and is subject to, constitutional rights and democratic accountability.

Exam tip. Use Pilane for the accountability of traditional authority to constitutional rights (assembly, association) of community members.

Memory hook. A crown wrongly given is a crown set aside.

Facts. A dispute over the recognition of the rightful king of a traditional community turned on the process the President had followed in recognising a leader.

Legal question. What is the proper process for recognising traditional leadership, and was it lawfully followed?

Judgment. The Constitutional Court set aside the flawed recognition, requiring adherence to the correct statutory and customary process.

Significance. Illustrates judicial oversight of traditional-leadership recognition and the interplay of customary law, statute and administrative legality.

Exam tip. Use Sigcau for the lawful process of recognising traditional leaders and the courts' supervisory role in leadership disputes.

Memory hook. The Court's first great judgment made ubuntu a constitutional value.

Facts. The constitutionality of the death penalty was challenged in the Constitutional Court's first major judgment.

Legal question. Is the death penalty consistent with the Constitution, and what role does ubuntu play in the constitutional order?

Judgment. The Constitutional Court struck down the death penalty, several judges invoking ubuntu as a constitutional value.

Significance. The locus classicus for ubuntu as a foundational constitutional value, linking African values to the Bill of Rights.

Exam tip. Use Makwanyane as the source of ubuntu as a constitutional value; it shows African customary values shaping constitutional interpretation.

Memory hook. Ubuntu in the eviction court: humaneness and mediation over cold formalism.

Facts. A municipality sought to evict unlawful occupiers from private land; the occupiers had nowhere else to go, raising the tension between property rights and the right to housing.

Legal question. How should courts approach eviction of unlawful occupiers, and what role does ubuntu play?

Judgment. The Constitutional Court refused the eviction on the facts, emphasising ubuntu, mediation and the need for a just-and-equitable enquiry.

Significance. A leading application of ubuntu to a modern socio-economic problem, showing its practical constitutional force beyond customary law.

Exam tip. Use Port Elizabeth Municipality to show ubuntu operating as a living constitutional value in eviction/housing law.

Memory hook. The Muslim widow is a "spouse" after all.

Facts. The survivor of a monogamous Muslim marriage claimed as a "spouse" under the Intestate Succession Act and the Maintenance of Surviving Spouses Act, from which she was excluded because the marriage was not solemnised under the Marriage Act.

Legal question. Does "spouse" in those Acts include a party to a monogamous Muslim marriage?

Judgment. The Constitutional Court read "spouse" to include the Muslim widow, granting her the statutory protections.

Significance. A key step in the recognition of Muslim marriages within SA's plural legal order, for specific statutory purposes.

Exam tip. Use Daniels for the progressive recognition of religious marriages; note it covers monogamous Muslim marriages (Hassam extended it to polygynous ones).

Memory hook. Recognition reaches the polygynous Muslim marriage.

Facts. A survivor of a polygynous Muslim marriage was excluded from the intestate-succession protection afforded to "spouses".

Legal question. Do spouses in polygynous Muslim marriages qualify for intestate-succession protection?

Judgment. The Constitutional Court extended intestate-succession protection to spouses in polygynous Muslim marriages.

Significance. Extends Daniels to polygynous Muslim marriages, deepening the recognition of religious personal law.

Exam tip. Pair Hassam with Daniels; both feed into the broader recognition confirmed in Women's Legal Centre Trust.

Memory hook. The State must finally recognise the Muslim marriage.

Facts. The State's continued failure to recognise Muslim marriages left spouses (especially women and children) without the protections of marriage law.

Legal question. Is the failure to recognise Muslim marriages as valid marriages unconstitutional?

Judgment. The Constitutional Court confirmed the invalidity and ordered interim measures pending reform.

Significance. The constitutional breakthrough on Muslim marriages within SA's plural legal order.

Exam tip. This is now the leading authority — avoid saying Muslim marriages are simply "not recognised".