Create a brief conclution from this
"Generosity is important in adjudication of African Customary Law. It is all about caring fairness, caring for each other and promoting peaceful living. This essay will discuss the important roles of generosity when adjudicating in terms of African Customary Law. First, I will address the importance of generosity; Secondly, I will make use case law to show how generosity is applied, emphasised and regarded during Customary Law disputes even when the law is not strictly adhered to but the context agrees for flexibility; Finally, I will provide the authority that reflect support to application of generosity.
In African Customary Law adjudication, generosity plays an important role. It does this by keeping the public united and stable by ensuring that people treated fairly; This is closely related to Ubuntu, which can be defined as African culture of humanity to maintaining justice and mutual care in the communities (127-128). Generosity in African Customary Law adjudication helps in dispute resolutions by it helps in coming up with fair judgements that result in fair precedents for future use in courts. It also encourages fair sharing of resources in communities in order to promote equality and peace.
The importance of generosity in adjudication was shown in several case laws, including that of Muvhali v Lukhele, where the court’s ruling showed fair judgement by the recognising marriages in a more flexible way in order to protect the marital status and rights of the applicant after her partner, Khethuhuthula died. This case is about a couple that started dating in university, started staying together in 2014 until the deceased proposed to marry the applicant by customary law in 2016, which their families accepted. The deceased payed part of Lobola, and then celebrated on the day as claimed by the applicant. She stated that she started being recognised as Makoti by deceased's family. Prior his death, the deceased affirmed the applicant as his wife through a WhatsApp where he said that he bequeathed all his asserts to her should he die or become incapacitated.
After his death, the applicant claimed that their customary marriage is a valid in terms of section 3 of the Recognition of Customary Marriage Act, 120 of 1998, however, the respondents claimed that she is not since the requirements of valid marriage as stated in the Act were not met. After considering all the facts and evidence provided by both parties, the court decided in favour of the applicant, stating that Customary Law has important qualities, including generosity, which in this case will be considering the context of the situation and the wishes of the testator.
While Ubuntu is associated with positive values not everyone understands its values, for example, the respondents in this case for arguing that their marriage was invalid (147). This is because in most cases, indigenous knowledge is orally passed from one generation to the other.
The Constitution of South African recognises the role of generosity in African Customary Law Adjudication. For instance, in its decision, the court prioritised generosity, which is what section 39 of the Constitution advocate for by saying a courts must promote values of human dignity during interpretation of statutes.
It so by also acknowledging the importance applying African Customary Law in section 211(1) emphasising that the institution and traditional leadership’s role are recognised, provided that they do conflict it nor infringe on the rights mentioned in Chapter 2. Further, Customary Law application is recognised in section 3, where it is stated that courts must apply it when applicable, as long as it doesn’t contradict the Constitution, which is exactly what happened in this case."