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LME3701-ASSIGNMENT 2 YEAR 2024
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LCP4804 ASSIGNMENT 2WE ALIGHT TUTORIALS
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, LCP4804
ASSIGNMENT 02
SEMESTER 1
YEAR 2022
Critically discuss the differences between living customary law and official
customary law.
Customary law consists of two forms of customary law which are; the living customary
law and official customary law. The courts have recognised the co-existence of the
concepts of living customary law and official customary, but it must be noted that living
customary law has been the more preferable system of customary law by these courts.
The High Court also differentiated between living and official customary law in Mabena
v Letsoalo.1 The court held that there were two forms of customary law: living
customary law and official customary law. The court noted that it had to recognise the
principle of living, actually observed law as this would constitute a development in
accordance with the spirit, purport and objects of the Bill of Rights.2
Living Customary Law:
It should be noted that customary law consists of the actual practices or customs of
the indigenous community whose customary law is under consideration. Bekker and
Rautenbach define living customary law as the original customs and usages that are
in a constant phase of evolvement in the sense that as communities change in their
lifestyle and practices so do their rules.3 The courts have therefore defined living
customary law as follows:
1 Mabena v Letsoalo 1998 (2) SA 1068 (T).
2 Nhlapo T et al African Customary Law In South Africa: Post-Apartheid and Living Law
Perspectives (2014 Oxford University Press Southern Africa).
3 Nhlapo T et al African Customary Law In South Africa: Post-Apartheid and Living Law
Perspectives (2014 Oxford University Press Southern Africa).
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