LCP4804

Date: 9 June 2022

INSTRUCTIONS ON THE DAY OF ASSESSMENT:

Ensure you are connected to the internet in order to log into the YOUR EXAM QR CODE & EXAM
Invigilator App and scan this QR code. ACCESS CODE

If you encounter difficulty in scanning the QR code, you can

alternatively enter the Exam Access Code below the QR code to start
the invigilation.

Unless otherwise specified by your institution, note that you can only
scan this QR code once. If your assessment has multiple online sections,
tests or attempts, you should NOT finish the invigilation until your entire
assessment has been completed.

Only scan the QR code when the assessment formally commences.

Exam Access Code: f8665376
The QR code is only scannable for a limited time and it should
therefore be scanned as soon as possible to start the
invigilation.

Once the QR code is scanned, ensure your media volume Is turned up and place your smartphone next to you. The
Invigilator App will notify you with a notification beep when you are required to action a request, which you should then
perform.

We recommend that you keep your smartphone on charge for the duration of the assessment.

If you only have one device you may access your assessment in the application by pressing the ‘Access Exam’ button
in the top right corner of your app.

Keep the Invigilator App open on your cell phone for the full duration of the assessment. You are not
allowed to minimise or leave the app.

Ensure you are connected to the internet in order to commence the invigilation as well as at the end of the
assessment. No internet connection is required during the assessment.

You have to adhere to the assessment time limit communicated to you by your institution as the time
displayed in the Invigilator App could differ from the time allocated to complete your assessment.

You can click the "Finish Assessment" button in the app if you finish your assessment early.

If you are performing a written or Scan-and-Upload assessment:

The Invigilator App may request you to take a picture of every page of your answer sheet at the end of the
assessment. Unless otherwise specified by your institution, this does NOT replace the normal upload of
your script to your institutions online portal

After completing invigilation and following all app instructions, you must upload your Invigilation App data. If however
there is a delay in the upload of the app data at the end of the assessment, you should prioritise the upload of your
script to your university portal and you can temporarily minimise the app to do so. Uploading of app data is not time
sensitive and you can come back and do it after you have successfully uploaded your script to the exam portal.

Should you encounter any technical difficulty, please WhatsApp The Invigilator Helpdesk on 073 505 8273.

Open Rubric
UNIVERSITY EXAMINATIONS

May/June 2022

LCP4804

Advanced indigenous law

100 Marks
Duration 4 Hours

Examiners:

Adv RB Mokomane

This paper consists of 7 pages.

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE

ANSWERING THE EXAMINATION QUESTIONS.

1. The examination question paper counts 100 marks.

2. It consists of Four questions. Answer ALL the questions.

3. The duration of the examination is Four (4) hours. Your answers must be submitted
via the myExams platform on 9 June 2022 on or before 16:15 (South African
Standard Time).

4. This is an open-book examination. You may consult your prescribed study material
during the examination.

5. Your exam file must be uploaded on the myExams platform on Moodle.

5.1 You are advised to preview your submission (answer script) to ensure legibility and
that the correct answer script file has been uploaded.

5.2 Once the official examination time per the examination timetable has expired, you
are provided one hour to submit your answer script. Submissions made after the
submission period has lapsed will be rejected per the examination regulations and
will not be marked.

6. The cover page for your take-home exam must include your name, student number
and the module code.

7. It is preferred that your take-home exam is typed. However, handwritten

submissions will also be accepted. If the take-home exam is typed, the maximum

1
 length is 15 pages (which includes the cover page and the bibliography). If the take-
home exam is handwritten, the maximum length is 20 pages (which includes the
cover page and the bibliography).

8. Whether your answers are typed or handwritten, your submission on the myExams
platform on Moodle must be made in the form of one PDF document. Only the last
file uploaded and submitted will be marked.

8.1 The exam answer file that you submit must not be password protected or uploaded
as a “read only” file.

8.2 Your examination answer file will not be marked if:

8.2.1 you send your examination answer file via email.

8.2.2 you submit the incorrect examination answer file. A mark of 0% will be awarded.
8.2.3 you submit your exam answer file on an unofficial examination platform (including
the invigilator cellphone application).
8.2.4 you submit your examination answer file in the incorrect file format.
8.2.5 you submit a password-protected document.
8.2.6 you submit your examination answer file late
8.2.7 you submit your answer file from a registered student account that is not your own.

8.3 Incorrect answer scripts and/or submissions made on unofficial examinations

platforms (including the invigilator cellphone application) will not be marked and no
opportunity will be granted for resubmission.

8.4 The mark awarded for an illegible examination answer file submission will be your
final mark. You will not be allowed to resubmit after the scheduled closing date and
time of the exam.

9. If your answers are typed, ensure that the following requirements are adhered to.
Items 9.3-9.6 applies to written assignments as well.

9.1 The text must be typed in Arial font, size 12 with single line spacing within the
paragraph, and double line spacing after the paragraph.

9.2 The text must be justified.

9.3 All of the pages must be numbered in the right hand corner at the bottom of the
page.

9.4 All margins must be 2.5cm, but the left margin must be 3cm.

9.5 South African English and not American English should be used. For example, the
correct spelling is “Labour” and not “Labor”.

9.6 Do not use abbreviations or SMS language.

9.7 All quotes that are two lines long (or less), must form part of the main text, be written
in italics, and be bracketed by quotation marks. Where a quotation is longer than
two lines, it must be typed in a separate paragraph in italics in size 11 font and must
be indented by 1 cm. No quotation marks are required when the quotations stand
alone. Use quotations very sparingly. In this take-home exam, a maximum of 5% of
the text may be quoted.

2
10. When answering the take-home exam questions, remember that an open-book
exam is a test at a higher level than the usual type of exam, where memory is tested
as much as insight. In an open-book exam, you need not memorise any information.
You are expected to prove that you can use information, rather than merely repeat
it. In brief, what is being tested is factual knowledge, understanding and the correct
application thereof, not memory skills. For this reason, you do not earn marks by
merely detailing a list of all the information that you think might be relevant to a
particular question. This gives no indication that you know what statutory or other
provisions are applicable in a specific context. You are expected to identify precisely
what information applies, and then explain why you think so.

10.1 Also, because you have the guide available when answering questions, we do not
give marks for direct quotations from the guide. You are therefore assessed on your
level of understanding of the legal principles by looking at how well you applied the
principles to the questions.

10.2 PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR
ANY OTHER SOURCE).

11. The arguments that you make must be logical, well-structured and substantiated by
all of the relevant legal principles. You are given 4 hours (not 2 hours) to complete
the take-home exam. Use the time given wisely.

11.1 Ensure that you give reasons for each answer. Substantiate your answers by
referring to ALL of the relevant authorities, e.g. sections from relevant legislation
and/or court cases in the text or in your footnotes.

11.2 You are required to have read and summarised the prescribed cases yourself. The
summaries in the Study Guide are not sufficient for this exam. When using case law
to support your answer, please include complete references to the relevant cases in
your footnotes. This means that you must not only include the name of the case but
also the exact page and section and/or paragraph where the information can be
found. The same applies to articles and books used.

11.3 A number of students lose marks because they do not approach problem-type
questions correctly. When answering such questions, it is important to first clarify for
yourself the area of work where the answer must be sought. Once you have done
this, set out the relevant legal principles. Deal only with those principles that relate
to the given facts. Next, apply these principles to the facts. This is where most of the
students lose marks - they set out the law in some detail, but then do not illustrate
how it applies to the factual situation they have been asked to solve. Finally, state
your conclusion.

12. You must complete the online declaration of own work when submitting.
12.1 By ticking the Honesty Declaration, you confirm that you have read (i) the
University’s Policy on Copyright Infringement and Plagiarism and the Student
Disciplinary Code, which are both available on
myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to student
values and plagiarism that is found at
https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-
rules.

12.2 Students suspected of dishonest conduct during the examinations will be subjected
to disciplinary processes. Students may not communicate with other students, or
request assistance from other students during examinations. Plagiarism is a

3
 violation of academic integrity, and students who do plagiarise or copy verbatim from
published work will be in violation of the Policy on Academic Integrity and the Student
Disciplinary Code and may be referred to disciplinary hearing. Unisa has a zero
tolerance for plagiarism and/or any other forms of academic dishonesty.

12.3 Unless a student is exempted because of disability or incarceration, students who

have not utilised invigilation or proctoring tools will be deemed to have transgressed
Unisa’s examination rules and will have their marks withheld.

PLEASE NOTE:

If you experience technical problems of any kind on the day(s) of the examination (including
network or loadshedding challenges) and your examination answers are not
submitted by the cut-off time, please apply online for an aegrotat exam within 3 days
of the examination session. Include supporting documentation with your application.
Supplementary or aegrotat students will not be able to apply for aegrotat exams and
will have to re-register for the module.

Students experiencing technical challenges may contact the SCSC on 080 000 1870 or
email [email protected] or refer to Get-Help for the list of additional
contact numbers.

4
QUESTION 1

(a) Write down the definition of customary law as it appears from section 1 of the
Recognition of Customary Marriages Act 120 of 1998; and then use its wording to
explain the nature, role and function of this component of the South African legal
system as appears in case law. (10)

(b) Apply extracts (i) and (ii) below to analyse the differences between the status,
nature and characteristics of customary law under the pre- and the post-
constitutional periods in South African law –

(i) Section 11(1) of the Black Administration Act 38 of 1927 reads in part:

“It shall be in the discretion of the Commissioners’ Courts in all suits or proceedings
between Blacks involving questions of customs followed by Blacks, to decide such
questions according to the Black law applying to such customs except in so far [as] it shall
have been repealed or modified: provided that such Black law shall not be opposed to the
principles of public policy or natural justice…” (pre-constitutional law); and –

(ii) Section 211(3) of the Constitution of the Republic of South Africa, 1996 reads:

“The courts must apply customary law when that law is applicable, subject to the
Constitution and any legislation that specifically deals with customary law.” (post-
constitutional law).

(NB-The value of your answer will be enhanced by the application of relevant case law).
(20)

[30]

QUESTION 2

Examine the following scenario and answer the questions that follow:

X is the most senior son of B, a deceased traditional leader of one of the prominent
kingdoms in South Africa. He hopes to succeed his father as a traditional leader and head
of the relevant traditional authority in terms of legislation and customs presently practised
by the jural community. The royal family has identified him (X) as the person qualified for
appointment to those roles and has presented his particulars to the government for that
purpose in terms of section 11 of the Traditional Leadership and Governance Framework
Act 41 of 2003.

X has an elder sister Y who also aspires to succeed her father as the traditional leader
and head of the said traditional authority. She believes that she has a stronger right than
X to succeed her father (B), and that her feminine gender is no bar to her assumption of
that role. However, Y's bid has not been supported by the royal family and consequently
has not been recommended by the traditional authority in terms of the Act.

5
Y has launched a high court application to be declared the rightful successor to the
position left vacant by her father's (B's) death. The traditional authority is supporting X in
his defence against Y's High Court application.

Critically evaluate X's and Y's chances of success for appointment in the position of
traditional leader and head of the traditional authority.

(i) Taking into account the historical traditions and the culture surrounding
appointments to traditional leadership in South Africa, what considerations do you
think would have persuaded the traditional authority to support X rather than Y in
their recommendations to the government, notwithstanding Y’s age and the
provisions of section 11 of the Traditional Leadership and Governance Framework
Act, 41 of 2003 and case law. Provide reasons. (10)

(ii) If the traditional authority has not amended its past practices for appointing
traditional leaders, and no contemporary practices have been adopted in line with
the values of the new constitutional order, which version of customary law would it
have to apply in its recommendations and give reasons. (10)

(iii) If a contemporary practice has emerged among the entire community,

mainstreaming compliance with the Bill of Rights in the appointment processes of
traditional functionaries, which version of customary law would the traditional
authority be obliged to apply in its recommendations and give reasons. (15)

[35]

QUESTION 3

(a) Write critical comments on the following judgments (excluding details on facts) with
reference to the pressing transformation and women’s empowerment agenda in
customary law:

(1) Mayelane v Ngwenyama and Another 2013 (8) BCLR 918 (CC). (5)

(2) Mabena v Letsoalo 1998 (2) SA 1068 (T). (5)

(b) The institution of sisa/mafisa/nqoma was the main indigenous empowerment

instrument during the pre-colonial period. With reference to its constitutive
elements, illustrate how the applicable attributes of ubuntu reflected therein,
contributed to the principle of umuntu ngumuntu ngabantu/motho ke motho ka
batho in preventing the onset of poverty in society. (10)

[20]

QUESTION 4
Write a comprehensive essay for presentation at an international conference on good
governance highlighting the potential of the values engrained in the indigenous

6
philosophy – kgosi ke kgosi ka batho/inkosi yinkosi ngabantu – to limit public power.
(this principle means - the source of royal authority is the community). Your reference
to the Constitutional Court in Pilane and Another v Pilane and Others 2013 (4) BCLR
431 (CC) may indicate whether in your view a wonderful opportunity was not missed
to illustrate this indigenous principle of enforcing freedom of expression; freedom of
assembly/demonstration as well as freedom of association. Your views will take into
account that the court substituted Roman-Dutch principles for the African ones in its
efforts to resolve this customary law dispute. (15)
[15]
TOTAL:{100}

©
UNISA 2022