Notes for Introduction to law (LAWS1011A at Wits University).
A comprehensive summary of the topic content - including diagrams, definitions and explanations where applicable.
Custom & Customary Law
Created @August 30, 2022 1:57 PM
Class
Type
Materials
Reviewed
Custom
Long-standing practice that has acquired the force of law through its usage
Used to fill in gaps/voids in certain areas
Not officially stated in the rules
Play a significant role in banking law and customary law
Requirements
1. Long-standing practice
2. Existence without exception since its origin
3. Must be reasonable
4. Must be certain
5. Must be generally recognised and observed by the community
Customary Law and Colonisation
Official Customary Law
Custom & Customary Law 1
, Attempt to codify African customary law
most likely corrupted by colonialism
Why official customary law was documented/codified:
1. Prove customary law in every case
2. People who recognised customary law were state officials who did not understand
African customary law → misconstrued and misunderstood
3. Precedent and Documentation importance in law
4. Legal Certainty
5. The notion of the Rebuplicy (?) Clause
Living Customary Law
actual practices of indigenous communities whose customary law is under
consideration
limited influence by colonialism
adapts to changes in communities
Mixed Customary Law
hybrid
Living customary law x official customary law x modern disposition
Customary Law and the Constitution
recognised by the constitution as a primary source → S211, S39(3)
Custom & Customary Law 2
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