LCP4804 CUSTOMARY LAW NOTES

LCP4804
CUSTOMARY LAW
NOTES

,ContEntS



STUDY UNIT 1
Characteristics and application of customary
1 law

1.1 Learning outcomes 1
1.2 Definition of customary law 1
1.3 Characteristics of customary law 2
1.3.1 A family of systems 2
1.3.2 Specialisation 3
1.3.3 Distinction between civil and criminal proceedings 3
1.3.4 Concept of time 3
1.3.5 Group as opposed to individual orientation 3
1.3.6 Concrete as opposed to abstract approach 3
1.3.7 Customary law as a changing system 4

1.4 Recognition of customary law 4
1.4.1 Constitutional recognition 4
Section 15: Freedom of religion, belief and opinion 4
Section 30: Language and culture 5
Section 211: Recognition 5
1.4.2 Recognition subject to the Bill of Rights 5
Section 9(1): Equality 5
Section 21(3): Freedom of movement and residence 6
Section 25(1): Property 6
Section 35(3) (f): Right to legal representation 6
1.4.3 The development of customary law 6

1.5 Conflict of laws 7
1.5.1 Applicability of customary law 7
1.5.2 Distinction between common and customary law 8
1.5.3 Adducing evidence of the substance of a legal rule 9
1.5.4 Conflicts between different systems of customary law 9

1.6 Sources of customary law 10
1.6.1 Customs and usages 10
1.6.2 Legislation 10
1.6.3 Judicial precedent 10
1.6.4 Scholarly and other writings 10

,1.7 Self-assessment 11

SOURCES REFERRED TO IN THIS STUDY UNIT 11

CASES 12



STUDY UNIT 2
Social structure of indigenous communities
13

2.1 Learning outcomes 13

2.2 The scope of social structures 13

2.3 The system of relationship 13

2.4 The system of kinship 14

2.5 The social composition 14
2.5.1 The household 14
2.5.2 The family group 14
2.5.3 The community ward 14
2.5.4 The community 14

2.6 The present social structure 15

2.7 The legal significance of social structures 15
2.7.1 Human-orientated approach 15
2.7.2 Group-oriented approach 15
2.7.3 Western social structures 15

2.8 Religion 15
2.8.1 Christianity 16

2.9 Belief in a Supreme Being 16
2.9.1 Nature and designation 16
2.9.2 Ways in which the Supreme Being are perceived 16
2.9.3 Ways in which the Supreme Being reveals himself 16
2.9.4 Services to the Supreme Being 16
2.9.5 Belief in ancestral spirits 16
2.9.6 Name, coming into being and characteristics of ancestral spirits 17

2.10 Impact of religion on law 17

, 2.11 Self-assessment 17

SOURCES REFERRED TO IN THIS STUDY UNIT 18



STUDY UNIT 3
Contracts 19

3.1 Learning outcomes 19

3.2 General principles 19
3.2.1 Definition 19
3.2.2 Agreement 19
3.2.3 Possibility of performance 19
3.2.4 Lawfulness 19
3.2.5 Formalities 20
3.2.6 Performance creates liability 20
3.2.7 Terms of agreement (legal obligation) 20
3.2.8 Remedies for failure to perform 20
3.2.9 Termination of agreement 20
3.2.10 Parties 20

3.3 Specific contracts 21
3.3.1 Lobolo 21
3.3.1.1 Parties to the lobolo agreement 21
3.3.1.2 The nature oflobolo 21
3.3.1.3 f
Position oloboloat termination of the marriage 22
3.3.1.4 Obligations that may arise from the provision
lobolo
of 22
3.3.1.4.1 Ukwethula 22
3.3.1.4.2 Ukwenzelela 22
3.3.1.4.3 Ukufakwa 22

3.4 Exchange 22

3.5 Purchase and sale 23

3.6 Gifts 23

3.7 Employment 23

3.8 Independent service 23

3.9 Farming out mafisa,
( sisa or nqoma
) 23

3.10 Pledge 24