LCP4804 PORTFOLIO
MEMO - OCTOBER
2022
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
Klerk1, 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.
,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 unforgivable comparative law mistake,
namely, looking at foreign law (African customary law) with the eyes of his own
system (common law).
Living Customary Law
Living customary law is the "law actually observed by African communities".6 It is
the unwritten law that is passed on from generation to generation and is part of
the culture and tradition of the community. 7 It evolves as the circumstances of
society change.8 However, a change of legislation, in particular, and written law,
in general, often if not always requires legislative intervention. Ndima9 puts it as
follows:
When it comes to the pervasive problem of developing African customary law,
the judiciary faces the additional challenge of determining the living version of
customary law for the community concerned. One of the injustices of the past,
which our constitutional interpreters must reject in striving to heal our historical
divisions, is the distortion caused to African law by the application of the
interpretive technique of repugnancy. This method removed the philosophical
underpinnings (which the colonial officials perceived to be in conflict with
Western morality) from African customary law.
The development of the law is not only a catholic but is also an age-old world-
wide phenomenon. For instance, according to Hahlo,10 western European
marriage law developed in three stages. During the first stage, marriage was a
private matter between spouses and their families. During the second stage,
marriage was under the jurisdiction of the church. During the last stage,
marriage passed under the control of the state. The court, in Rolfes, Nebel and
Co v Zweigenhaft,11 said:
6 Mabena v Letsoalo 1998 2 SA 1068 (T) 1074.
7 Du Plessis Introduction to Law 67.
8 Koyana Customary Law 157.
9 Ndima 2007 Speculum Juris 81-82.
, 10 Hahlo Law of Husband and Wife 1.
11 Rolfes, Nebel and Co v Zweigenhaft 1903 TS 185 206.
MEMO - OCTOBER
2022
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
Klerk1, 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.
,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 unforgivable comparative law mistake,
namely, looking at foreign law (African customary law) with the eyes of his own
system (common law).
Living Customary Law
Living customary law is the "law actually observed by African communities".6 It is
the unwritten law that is passed on from generation to generation and is part of
the culture and tradition of the community. 7 It evolves as the circumstances of
society change.8 However, a change of legislation, in particular, and written law,
in general, often if not always requires legislative intervention. Ndima9 puts it as
follows:
When it comes to the pervasive problem of developing African customary law,
the judiciary faces the additional challenge of determining the living version of
customary law for the community concerned. One of the injustices of the past,
which our constitutional interpreters must reject in striving to heal our historical
divisions, is the distortion caused to African law by the application of the
interpretive technique of repugnancy. This method removed the philosophical
underpinnings (which the colonial officials perceived to be in conflict with
Western morality) from African customary law.
The development of the law is not only a catholic but is also an age-old world-
wide phenomenon. For instance, according to Hahlo,10 western European
marriage law developed in three stages. During the first stage, marriage was a
private matter between spouses and their families. During the second stage,
marriage was under the jurisdiction of the church. During the last stage,
marriage passed under the control of the state. The court, in Rolfes, Nebel and
Co v Zweigenhaft,11 said:
6 Mabena v Letsoalo 1998 2 SA 1068 (T) 1074.
7 Du Plessis Introduction to Law 67.
8 Koyana Customary Law 157.
9 Ndima 2007 Speculum Juris 81-82.
, 10 Hahlo Law of Husband and Wife 1.
11 Rolfes, Nebel and Co v Zweigenhaft 1903 TS 185 206.
