LCP4804 PORTFOLIO memo.
LCP4804 PORTFOLIO
MEMO - OCTOBER 2021
Advanced Indigenous Law
- UNISA
DETAILED FOOTNOTES &
BIBLIOGRAPHY INCLUDED
QUESTION 1
Critically discuss the differences between living customary law and official customary
law.
[30]
Official Customary Law
In general, the off...
, LCP4804 PORTFOLIO
MEMO - OCTOBER 2021
Advanced Indigenous Law
- UNISA
DETAILED FOOTNOTES &
BIBLIOGRAPHY INCLUDED
, QUESTION 1
Critically discuss the differences between living customary law and official customary
law.
[30]
Official Customary Law
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. Ndima5 puts it thus:
MEMO CONTINUES ON THE NEXT PAGE……⬇️⬇️⬇️
1Van 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.
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