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LCP4804 Assignment 2 Semester 1 2023
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STUDENT NO : 59267410NAME: LINDY BELL
ADVANCED INDIGENOUS LAW
LCP4804
ASSIGNMENT 02
This study source was downloaded by 100000864138891 from CourseHero.com on 03-26-2023 13:40:26 GMT -05:00
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, QUESTION 1
Critically discuss the differences between living customary law and official customary law.
Official Customary Law
Official customary law is the law applied by the courts and other institutions.
In general, the official customary law reflects state interests and is part of state law. The
official version of customary law is found in statutes, law reports, the South African Law
Reform Commission reports, text books, university lectures and other public documents.
According to Ndima, the official version of customary law depends on alien values for validity.
Mogoro J, in Du Plessis v De Klerk 1 , points out that customary law "has lamentably been
marginalised and allowed to degenerate into a vitrified set of norms alienated from its roots
in the community". Costa puts it thus: Customary law as it stands is corrupted, inauthentic
and lacking authority. It is a foreign imposition, a stranger in Africa.2
In Fosi v Road Accident Fund,3 the court put it as follows:
Indigenous African customary law has occupied an unfortunate position in the legal history of
our country. The fact is that it was hardly recognized by the law-makers and was accordingly
scarcely applied in the South African courts. It enjoyed the status of being known that it
existed and its continued existence was merely tolerated as a necessary evil.
In Sigcau v Sigcau,4 the Appellate Division held that the individual person was the owner of
the royal family home and not merely the controller of the property. Ndima 5 puts it thus:
However, the learned Chief Justice refused to vacate his common law comfort zone, although
he was dealing with an African customary law problem. He continued to use the same
institution, which his experience of common law made him use, to describe the rights of the
defendant, in an African matter. By doing this he unwittingly committed an
1 Van Niekerk 2001 CILSA 480.
2 Costa 1998 SAJHR 525, 534.
3 Fosi v Road Accident Fund 2008 3 SA 560 (CPD) 567.
4 Sigcau v Sigcau 1944 AD 67 79.
5
Ndima 2007 Speculum Juris 83-84.
This study source was downloaded by 100000864138891 from CourseHero.com on 03-26-2023 13:40:26 GMT -05:00
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