Introduction to Law (1014B)
Topic 9: Custom by Imaan Ebrahim
LEARNING OUTCOMES
After completing this unit, you should be able to:
1. Understand the difference between custom and customary law as sources
of South African law
2. Explain their development in South African judicial precedent
3. Explain the role of custom as a primary source of law
What is Custom?
A specific form of behaviour in a community that, over time, acquires the force of
law through repeated practice and acceptance by that community.
🗸 Not automatically law
🗸 Must be proven/asserted in court
🗸 Must satisfy legal criteria
A custom is a long-standing, certain, reasonable, and generally observed practice
that may gain the force of law if it meets specific requirements (Van Breda).
Criteria for Valid Custom (Van Breda v Jacobs)
A custom will only be recognised as law if it meets the following five requirements:
Requirement Explanation
1. Long duration Custom must have existed for a long time
2. General observation Community must generally observe the custom
3. Reasonableness Must not be unfair or illogical
4. Clear and Certain The meaning and content must be specific
The custom must have been in existence without
5. Continuity
exception since its origin
Time Requirement in Custom
English Law: “Time immemorial” = since 1189
South African Law (Roman-Dutch): Judicial discretion on what qualifies as
"long enough"
Courts prefer: Consistent and convincing evidence over rigid timelines
, The outcome or conclusion is under the discretion of a court or judge ruling
that certain requirements have been met or not met.
Distinction: Custom vs Customary Law
Custom Customary Law
Individual practice that may evolve Legal system based on traditional rules of a
into law community
Presumed to exist and evolve within
Requires proof in court
communities
Governed by Constitution and living law
Evaluated using Van Breda test
principles
Case Law (Trade and Industry)
1. Van Breda v Jacobs (1921 AD)
Set out 5 criteria for custom
Still used for evaluating claims of custom, but not for customary law
2. Catering Equipment Centre v Friesland Hotel (1967)
Claimed custom: buyer of a stove also pays for its installation
Held: Custom doesn't need to date back to 1189 (time immemorial) as in
English law.
Judicial discretion allowed for there to be a distinction between trade usage
(Roman-Dutch) and custom such that trade usage would follow the same
criteria in Van Breda.
3. Tropic Plastic v Standard Bank (1969)
Claimed custom: exchange rate on day of presentation of a bill
Held: No sufficient evidence = custom not proven
4. Golden Cape Fruits v Fotoplate (1973)
Claimed trade usage: approving proofs absolves printer of liability
Held: Failed to prove usage — evidence must be clear, convincing, and
consistent
No rule on number of witnesses
Topic 9: Custom by Imaan Ebrahim
LEARNING OUTCOMES
After completing this unit, you should be able to:
1. Understand the difference between custom and customary law as sources
of South African law
2. Explain their development in South African judicial precedent
3. Explain the role of custom as a primary source of law
What is Custom?
A specific form of behaviour in a community that, over time, acquires the force of
law through repeated practice and acceptance by that community.
🗸 Not automatically law
🗸 Must be proven/asserted in court
🗸 Must satisfy legal criteria
A custom is a long-standing, certain, reasonable, and generally observed practice
that may gain the force of law if it meets specific requirements (Van Breda).
Criteria for Valid Custom (Van Breda v Jacobs)
A custom will only be recognised as law if it meets the following five requirements:
Requirement Explanation
1. Long duration Custom must have existed for a long time
2. General observation Community must generally observe the custom
3. Reasonableness Must not be unfair or illogical
4. Clear and Certain The meaning and content must be specific
The custom must have been in existence without
5. Continuity
exception since its origin
Time Requirement in Custom
English Law: “Time immemorial” = since 1189
South African Law (Roman-Dutch): Judicial discretion on what qualifies as
"long enough"
Courts prefer: Consistent and convincing evidence over rigid timelines
, The outcome or conclusion is under the discretion of a court or judge ruling
that certain requirements have been met or not met.
Distinction: Custom vs Customary Law
Custom Customary Law
Individual practice that may evolve Legal system based on traditional rules of a
into law community
Presumed to exist and evolve within
Requires proof in court
communities
Governed by Constitution and living law
Evaluated using Van Breda test
principles
Case Law (Trade and Industry)
1. Van Breda v Jacobs (1921 AD)
Set out 5 criteria for custom
Still used for evaluating claims of custom, but not for customary law
2. Catering Equipment Centre v Friesland Hotel (1967)
Claimed custom: buyer of a stove also pays for its installation
Held: Custom doesn't need to date back to 1189 (time immemorial) as in
English law.
Judicial discretion allowed for there to be a distinction between trade usage
(Roman-Dutch) and custom such that trade usage would follow the same
criteria in Van Breda.
3. Tropic Plastic v Standard Bank (1969)
Claimed custom: exchange rate on day of presentation of a bill
Held: No sufficient evidence = custom not proven
4. Golden Cape Fruits v Fotoplate (1973)
Claimed trade usage: approving proofs absolves printer of liability
Held: Failed to prove usage — evidence must be clear, convincing, and
consistent
No rule on number of witnesses
