African Customary Law

Question 1

what is customary law

Answer 1

A set of rules that arise from the social practices (customs) of a particular group of people, and which members of the group regard as legally obligatory.

Question 2

Native Administration Act 38 of 1927

Answer 2

Native Commissioners Courts and Native Appeal Courts. The Act confirmed for local leaders to carry on exercising their own system in terms of civil matters (marriage, succession, etc.) BUT it had to be compatible with white authorities ideas of justice and public policy.

Question 3

​Evidence Amendment Act 45 of 1988

Answer 3

All courts mandated to take judicial notice of customary law but there was a repugnancy clause.

Question 4

what is official customary law

Answer 4

Consists of those rules of customary law that have been written down in customary law codes, other legislation, case precedents and textbooks ​–>​ ​codified.

Question 5

what are the pros of official customary law

Answer 5

Codified, easier to access and apply consistently.

Question 6

what are the cons of african customary law

Answer 6

Inflexible and unreliable – the law cannot change and adapt so quickly so sometimes official customary law is still part of the law, but the community may no longer see that practice as legally obligatory.

ALSO written to suit colonial interest

Question 7

what is living customary law

Answer 7

Consists of the social practices of a group of people who regard these practices as legally obligatory. The test of its validity is acceptance by the people rather than legislation ​–>​ ​not codified​.

Question 8

pros of living customary law

Answer 8

Alive, grows, and changes with the communities. So it is more reflective, this one corresponds more with the actual definition of customary law.

Question 9

cons of living customary law

Answer 9

1. Very difficult to apply it consistently as there is no uniformity.
2. ​Many different living customary laws for many different ethnic groups.
   ​3. Lack of a single authority to define the law.
   ​4. Because it is not written down ​à​ people can manipulate and distort it to suit their interests. ​Distinguishing between habit and legally obligatory.
3. ​Ascertainment and proof problems.

Question 10

legal pluralism

Answer 10

a system of law where there are 2 or more valid legal systems operating in the same place at the same time. In SA, both common law and customary are recognized as valid legal systems.
​Therefore African customary law is a source of law that has equivalent status to the common law.

Question 11

how do courts decide whether customary law or common law more superior

Answer 11

The court decides based on: the intention
and general lifestyle of the parties, as well as the circumstances of the transaction, when decided which
legal system to apply.

Question 12

when can a custom be regarded as legally obligatory

Answer 12

1. reasonable
2. time of observancy
3. uniformity of observancy
4. certainty

Question 13

Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC)

Answer 13

ruled that primogeniture rule of official

customary law conflicts with the BoR. They acknowledged official and living customary law.