LCP4804 PORTFOLIO
ADVANCED INDIGENOUS LAW
MEMO
MAY/JUNE 2024
SEMESTER 1 – 2024 - UNISA
30 MAY 2024
Question 1
With the aid of decided cases of critically discuss the differences between living
customary law and official customary law and indicate why the living customary
law is held to be more aligned to the transformative value of customary law in
South Africa. [25]
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:
1
Van Niekerk 2001 CILSA 480.
2
Costa 1998 SAJHR 525, 534.
3
Fosi v Road Accident Fund 2008 3 SA 560 (CPD) 567.
