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]
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,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]
Living Customary Law
A living customary law is treated as a respectable component of the legal system that
functions like any other, and has its own unique normative value system, capable of
developing, subject to the Constitution1.
The concept of living customary law has been embraced by scholars and judges, its
acceptance has not benefitted from a detailed legal theoretical explanation. Indeed, the
mainstream conceptualisation of living customary law may be accused of alarming
ambiguity, which is evident in scholar’s failure to properly account for its flexibility and
emergence. Living customary law is best perceived as a product of people’s adaptation of
customs to socio-economic changes and suggests that this approach is the stepping stone
to a comprehensive theory of African law. Living customary law, unlike official customary
law, refers to the original customs and usages that are in a constant phase of evolvement.
Communities change and so do their rules. The ideal situation would be to apply customary
rules that are in accordance with the modern needs of the particular group, and, in principle,
living customary law should be applied.
Official Customary Law
Customary law was treated as an unrecognized sub-system of the common law, its
principal system, with whose moral principles it could not be opposed. As such courts did
not have to apply customary law, but when they did, they could handle it at the level of
foreign law; and only in so far as it had been recorded in some book, statute, code or
judgment. Official customary law is the law applied by the court and other state institutions.
1 The Constitution of the Republic of South Africa, 1996
, Sources of official customary law are codes of customary law and other legislation, court
precedents and textbooks. Official customary law fails to represent the customary law of the
people. Despite this failure, official customary law continues to exist side by side with the
living customary law. The application of official customary law is also closely connected to
the demands of legal certainty. Official customary law is written down. It therefore enables
courts to apply it uniformly and with certainty. This issue of legal certainty arose in Bhe
where the Court declined to develop customary law in terms of section 39(2) of the
Constitution on a case-by-case basis. It reasoned that adopting this approach would result
in the slow development of customary law.
Regarding certainty the Court stated: ‘The problem with the development by the courts on a
case-bycase basis is that ... uncertainties regarding the real rules of customary law will be
prolonged and there may well be different solutions to similar problems’.
Living customary law emphasises a customary law that is recognised and protected by the
Constitution that is living, active and dynamic, and part of the lives of the people. Official
customary law is the law applied by the courts and other state institutions and are typically
customary law and other legislation, court precedents and textbooks. This system of law
does not really represent the customary law of the people, as ‘the people’s flexible body of
customary law was transformed into written, rule-orientated and rigid version of customary
law in the form of official customary law. In Pilane and Another v Pilane and Others 2013
(4) BCLR 431 (CC) it was stated that ,‘Our history, however, is replete with instances in
which customary law was not given the necessary space to evolve but was instead
fossilised and “stoned walled” through codification, which distorted its mutable nature and
subverted its operation.’ The Constitution is designed to reserve this trend and to facilitate
the preservation and evolution of customary law as a legal system that conforms with its
provisions.
On this basis the court held that the traditional authority cannot deny constitutional
rights/freedoms to members of the community who wish to enjoy/exercise them.
Living customary law has undergone considerable change as a result of the colonial
environment. For example;
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