LCP4804 QUESTIONS
Question 1
With the aid of decided cases of critically discuss the differences between living customary law and official customary law and indicate why the living customary law is held to be more aligned to the transformative value of customary law in South Africa. [25]
Questio...
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(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 from case
law. (10)
Customary law in South Africa is a vital component of the nation’s pluralistic legal
system. Defined in Section 1 of the Recognition of Customary Marriages Act 120
of 1998 (RCMA), customary law comprises "the customs and usages traditionally
observed among the indigenous African peoples of South Africa and which form
part of the culture of those peoples."1 This definition provides the foundational
understanding that customary law is an organic and integral part of the social fabric
of various indigenous communities, informing their day-to-day interactions, conflict
resolution, and societal organization.
The nature of customary law is intrinsically flexible, with its unwritten norms and
practices being passed down through generations. This fluidity allows for the
accommodation of changes within society and a form of law that is highly
contextual and adapted to the needs of the communities it serves. Its role within
the South African legal system is multifaceted: it operates alongside common law
and statutory law, recognizing the cultural autonomy of indigenous groups and their
right to regulate their own affairs in accordance with their traditions.2
In terms of function, customary law governs aspects of life including marriage,
inheritance, and leadership succession, among others. It emphasizes restorative
justice and the maintenance of harmony within communities. The South African
Constitutional Court has noted that customary law must be interpreted within the
1
Recognition of Customary Marriages Act 120 of 1998, s. 1.
2
Bennett, T.W. "Customary Law in South Africa." (2004).
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