LCP4804 FINAL PORTFOLIO
DUE DATE: 18/10/2021
UNIVERSITY OF SOUTH AFRICA
QUESTION 1
Critically discuss the differences between living customary law and official customary
law
Living customary Law
Living customary law is the law actually observed by African communities. It is the unwritten
law that is passed from generation to generation and is part of the culture and tradition of
community. It evolves as the Circumstances of society changes. However, a change of
legislation, in particular, and written law, in general, often of not always requires legislative
intervention.
When it comes to the pervasive problem of developing African customary law, the judicial
faces the additional challenge of determining the living version of customary law for the
community concerned. One of the injustices if 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 from African customary law (Ndima 2007:81-82)
The development of the law is not only a Catholic but is also an age-old world -wide
phenomenon. For example, Hahlo states that 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 (Hahlo Law of husband and wife:
1). In the matter of Rolfes, Nebel and Co v Zweignenhaft, the court indicated as follows:
This court would be loath to upset a practice that had become a general custom of South
Africa, even if it were somewhat different from the Roman -Dutch practice. In this case, a
principle of Roman -Dutch in question had fallen into disuse and an indigenous customary
legal principle had come into effect. The court accepted that the law had developed and that
the established contemporary legal custom overrode the Roman-Dutch legal practice which
had fallen into disuse. The legal development was not legislated but had evolved in response
to the changing circumstances of society.
In Henderson v Hanekom, Sir Henry de Villiers CJ held thus: There must, in the ordinary
course, be Progressive development of the law keeping pace with modern requirements.
In MM v MN and Another, the constitutional court stated:
Paradoxically, the strength of customary law, its adaptive inherent flexibility, is also potentially
difficult when it comes to its application and enforcement in a court of law. The constitution
imposes a duty upon a competent court to develop customary law consistent with its
provisions. It follows implicitly that, whether common law or customary deviates from the spirit,
purport and objects of the Bill of Rights the courts have obligation to develop it by removing
the deviation. Thus, the courts in carrying out their section 39 (2) development functions, must
have regard to the spirit, purport and objects of the Bill of Rights.
Section 39(2) states:
When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.
Customary law, essentially the customs of indigenous communities, is also subject to change
and may be developed by the court and the legislature. In a minority judgement Ngobo J, in
Bhe, said there are two instances in which customary law should be developed.
Mabena v Letsoalo concerns a dispute between daughter -in- law and parents -in- law. The
respondent and her husband married in accordance with the rules of the living customary law
if marriage. Traditionally, such a marriage required the consent of both family groups in
addition to those of the bridegroom and bride. On both sides, family heads would represent
their respective family groups. Over years as the living customary law evolved in response to
the changing circumstances of the traditional communities, the consent of the father of the
bridegroom and bride was Substituted for that of the family groups as represented by family
Heads. In that case, the fathers of both the bridegroom and bride did not give their consent.
