NAME:
STUDENT NUMBER:
MODULE CODE: LCP4804
SUBJECT: ADVANCED INDIDENOUS LAW
ASSESSMENT TYPE: EXAMINATION
DATE: 06 NOVEMBER 2023
QUESTION 1
(a) Section 1 of the Recognition of customary Marriages Act, 120 of 1998 defines
customary law as the customary usages traditionally observed among the
indigenous African people of South Africa and which form part of the culture of
those people. The Same definition is given in section 1 of the Reform of
customary Law of Succession and Regulation of Related Matter Act, 11 of 2009.
The nature, role and function of customary law as pointed out in case law.
In Alexkor v The Richtevsveld community and the others, the constitutional court
defines the nature and concept of customary law as follows:
The nature and the content of the right that Richtevsveld community held in the
subject land prior to annexation must be determined by reference to indigenous
Law. That is the law which governed its land rights. Those rights cannot be
determined by reference to common law.
, The Privy Council has held, that a dispute between indigenous people as to the
right to occupy a piece of land has to be determined according to indigenous law
without importing English conceptions of property law.
While in the past indigenous law was seen through the common law lens, it must
now be seen as an integral part of our law. Like all law it depends for its ultimate
force and force and validity in constitution.
Its validity must now be determined by reference not to common law, but to the
constitution. The courts are obliged by section 211 (3) of the constitution to apply
customary law when it is applicable, subject to the constitution and any
legislation that deals with customary law.
In doing so the courts must have regard to the spirit, purport and objects of the
Bill of Rights.
Our constitution does not deny the existence of any other rights or freedom that
are recognised or conferred by common law, customary law or legislation, to the
extent that they are consistent with the Bill of Rights.
The constitution acknowledges the originally and distinctiveness of indigenous
law as an independent source of Norms within the legal system.
At the same time the constitution, while giving force to indigenous law, makes it
clear that such law is subject to the constitution and has to be interpreted in the
light of its values.
Furthermore, like the common law, indigenous law is subject to any legislation,
consistent with the constitution that specifically deals with it. In the result,
indigenous law feeds into, nourishes, fuses with and becomes part of the
amalgam of South African law.
It is important to note that indigenous law is not a fixed body of formally
classified and easily ascertainable rules. By its very nature it evolves as the
people who live by its norms Change their patterns of life.
In applying indigenous law, it is important to bear in mind that, unlike common
law, indigenous law is not written. It is a system of law that was known to the
community, practiced and passed on from generation to generation.
