Explore the difference between custom and customary law and refer to the test as formulated in Van Breda v Jacobs, define customary law, distinguish between living and official customary law, examine when customary/indigenous law will apply to a dispute and investigate the impact of the Constitutio...
Introduction
Customary law refers to the customs of indigenous people that they believe to have legal consequence.
- Customary, similar to common law, is a now considered a primary source of law and has binding authority.
- Four requirements set out by the court in Van Breda v Jacobs for a custom to be considered valid.
Questions
- But what is the difference between a custom and customary law?
- Is the customary law something that is written down and official or can it develop to suit the changing needs
of a society?
- When should customary law be used and is up to the discretion of a particular court to decide whether the
customary or common law should apply to a particular issue?
- Is the customary law, particularly pertaining to women, always in line with the constitution and if not, what
should the courts do?
Learning outcomes
- Explore the difference between custom and customary law and refer to the test as formulated in Van Breda v
Jacobs
- Define customary law
- Distinguish between living and official customary law
- Examine when customary/indigenous law will apply to a dispute
- Investigate the impact of the Constitution and s.39(2) on customary law
Customs versus customary law:
Customs
- General customs of the whole country
o E.G.
▪ The general custom of merchants and trade usage.
- Customs have their roots in Roman and even old Germanic law
o Seldom that a new legal principle will established by custom in our law today.
▪ The four requirements set out in Van Breda v Jacobs have to be met.
1. Must be immemorial/ long-established
• Long period of time is not actually measured
• Court must have discretion
• Existed for a long time
• Can argue this if test needs to be applied
2. Must be reasonable
• Linked to the values of the Constitution
o Equality, human dignity and freedom
o Fair
o Does not infringe of someone’s dignity or freedom
3. Continued without exception since its immemorial origin
• Observed generally by the community
4. Must be certain
• Content and meaning must be clear and certain
- Customs play a modern day role
o Trade usage
▪ Customs exist in trade & in case of transactions
▪ E.G.
• Interest is payable on an overdrawn bank account
o Client and the bank do not have to reach an agreement on this
- Practices in accordance with how people love
- Uncodified
, Customary law
- Refers to the customs and usages traditionally observed amongst the indigenous people and forms part of the
culture of those people.
- The same test as set out in Van Breda should also be used in ascertaining whether an indigenous custom or
usage is indeed valid.
o However, if it is easily ascertainable and sufficiently certain,
▪ s.1 (1) of the Law of Evidence Amendment act
• Stipulates that the court can take judicial notice of such a law and it will not be
necessary to prove the validity of such a customary law by applying the Van Breda
test.
- Questions
o When customary law differs from legislation or common law, does it mean that the customary law is
automatically invalid?
▪ It is not automatically invalid, as it needs to be out of line with the Constitution in which then
it can be abolished.
o What are some of the positive attributes of customary law?
▪ it places emphasise on
• Consensus seeking and provides for family and clan meeting needs as a community.
o As it provides for these, it offers opportunities to attempt to prevent and
resolve disputes and disagreements.
o The aspects not only contribute to resolution of disputes but also to the
▪ Unity of family structures
▪ Fostering of cooperation
▪ Sense of responsibility and belonging.
• Customary law also emphasises healthy communication such as ubuntu.
o What are the challenges with applying the living customary law in the court?
▪ Was designed to fit the communities way of life which does not necessarily fit in the way of
the courts.
▪ The system had different defences in order to ensure fairness.
▪ It had its own system which was designed that every man, woman and child had a role that
they played to contribute to the welfare of the community which is different to South
African’s legal courts and systems.
▪ It is difficult to apply living customary law as some of the customary law is not in line with the
Constitution and it often clashes which does not necessarily mean it is violating any persons
rights.
o What is the problem with the courts developing the living customary law on a case by case basis
▪ Changes will be very slow and uncertainties regarding the real rules of customary law will be
prolonged and there may well be different solutions to similar problems.
▪ The lack of uniformity and the uncertainties it causes is if one has regard to the fact that in
some cases
- Customs & usages traditionally observed among indigenous African people of South Africa which forms part
of culture of those people
- Codified
- Not unproblematic
Law of Evidence Amendment Act 45 of 1988:
- Judicial notice of law of foreign state and of indigenous law
o Any court may take judicial notice of the law of a foreign state and of indigenous law in so far as such
law can be ascertained readily and with sufficient certainty:
▪ Provided that indigenous law shall not be opposed to the principles of public policy and
natural justice:
• Provided further that it shall not be lawful for any court to declare that the custom of
lobola or bogadi or other similar custom is
repugnant to such principles.
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