2243771
| Question | Answer |
| Define legal pluralism & the narrow interpretation thereof | The co-existence of various officially recognized state laws - Common & Customary law operating in a single society. Law = norms created by state & rules governing application, ascertainment, etc. |
| Explain the broad interpretation of legal pluralism | Also = "deep" LP; factual situation existing in society with various legal systems; de facto existence of different systems irrespective of recognition (simply = status); not founded upon relations of unequal power |
| Define Customary law w.r.t. South Africa | Customs & usages traditionally observed among the indigenous African people of SA and forming part of the culture of those peoples |
| Give the definition of "culture" as defined by Bennett | Culture implies "high intellectual or artistic endeavor"; "people's entire store of knowledge & artifacts, especially languages, beliefs, laws that give social groups their unique characteristics" |
| Who are the indigenous African people of SA according to Seymour-Smith? | The term "indigenous" refers to the "original inhabitants of an area which has subsequently been occupied by migrants"; therefore have to be South-Africans. |
| Give the UNESCO definition of "culture" | "A set of distinctive spiritual, material, intellectual and emotional features of society of a social group, that encompasses, in addition to art & literature, lifestyles, ways of living together, value systems, traditions & beliefs". |
| Who does Customary law in South Africa apply to? | Customary law applies to anyone - s30 of Const [everyone can choose their own culture]; the person must prove that they're part of the community and live their lives in accordance with the customs of that community |
| Give some of the values of ubuntu | Group solidarity; African philosophy; give coherent structure to society; express collective consciousness in behavior; demonstrate brotherhood, sharing, treat like equals; respect; conducive atmosphere; person can't exist by himself; rehabilitation rather than vengeance. |
| Differentiate between "living" and "official" customary law | Living = original customs & usages in a constant phase of evolvement in accordance with the needs of the group. Official = law which has been incorporated into legislation or pronounced in judicial decisions. |
| What does s211(3) of the Constitution provide for? | "The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law". |
| When may courts apply customary law? | a) If it is compatible with the Constitution b) To the extent that it's not amended by legislation c) When it is applicable (e.g. choice of law rules) |
| In a conflict of laws, if the defendant contests the plaintiff's choice, what action does the court take? | Court investigates parties' prior conduct to instituting action: look at words/deeds out of which claim arose, nature of cause of action, cultural indication/rituals (if none, look at purpose, environment, subject matter), delict, parties' way of living (Westernised?) |
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