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African Customary Law in South Africa
LCP4804 PORTFOLIO MEMO - OCT./NOV. 2023 - SEMESTER 2 - UNISA - DUE 6 NOVEMBER 2023 - DETAILED ANSWERS WITH FOOTNOTES & BIBLIOGRAPHY- DISTINCTION GUARANTEED!
QUESTION 1
(a) Write down the definition of customary law as it appears from section 1 of the Recognition of Customary Marriages Act 120 ...
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LCP4804
Advanced Indi law
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SEMESTER 2 - 2023
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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 is defined in section 1 of the Recognition of Customary Marriages Act1
(hereafter referred to as RCMA) as the “usages and customs traditionally observed among the
indigenous African peoples of South Africa”, which “forms part of the culture of those peoples”. In
understanding customary law, an important distinction needs to be drawn between codified
customary law and living customary law. Codified customary law, also referred to as official
customary law, comprises what was an oppressive form of customary law developed by colonial
and apartheid states which exists in codes and precedents. It has been argued that much of the
customary law in the courts before 1994 was drawn from texts or precedents and is therefore of
dubious validity. Living customary law, on the other hand, exists in the system of living norms that
regulate the everyday lives of people who live according to customary law. This system of law is
dynamic, evolving and context-specific as it adapts to changes in the beliefs and circumstances
of the people it applies to.
In the case of Alexkor v The Richtersveld Community & Others 2004 (5) SA 460 (CC) 2, the
Constitutional Court defined the nature and concept of customary law as follows: The nature and
the content of the rights that the Richtersveld Community held in the subject land prior to
annexation must be determined by reference to indigenous law. That is the law which governed
its land rights. Those rights cannot be determined by reference to common law. The Privy Council
has held, and we agree, that a dispute between indigenous people as to the right to occupy a
piece of land has to be determined according to indigenous law “without importing English
conceptions of property law”.
1 Recognition of Customary Marriages Act, 120 of 1998
2 Alexkor v The Richtersveld Community & Others 2004 (5) SA 460 (CC)
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