QUESTION 1
Critically discuss the differences between living customary law and official
customary law. [30]
The concept of customary law in South Africa consists of two forms of customary law:
living customary law and official customary law. The courts have recognised the co-
existence of the concepts of living customary law and official customary law. For
instance, in Bhe v Khayelitsha Magistrate,1 the majority judgment acknowledged the
difference between these forms of customary law in the following statement:
The official rules of customary law are sometimes contrasted with what is
referred to as ‘living customary law’, which is an acknowledgment of the
rules that are adapted to fit in with changed circumstances. The problem
with the adaptations is that they are ad hoc and not uniform. However,
magistrates and the courts responsible for the administration of intestate
estates continue to adhere to the rules of official customary law, with the
consequent anomalies and hardships as a result of changes which have
occurred in society.
The High Court also differentiated between living and official customary law in Mabena
v Letsoalo.2 The Court held that there were two forms of customary law: living
customary law and official customary law. The Court noted that it had to recognise the
principle of living, actually observed, law as this would constitute a development in
accordance with the spirit, purport and objects of the Bill of Rights.
Living customary law usually consists of the unwritten customary practices that
regulate the day-to-day life of people. In Pilane and Another v Pilane and Others3 it
was held that it is well established that customary law is a vital component of our
constitutional system, recognised and protected by the Constitution, while ultimately
subject to its terms. The true nature of customary law is as a living body of law, active
and dynamic, with an inherent capacity to evolve in keeping with the changing lives of
the people whom it governs.4 From these definitions of living customary law, we can
1 Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC)
2 Mabena v Letsoalo 1998 (2) SA 1068 (T)
3 Pilane and Another v Pilane and Others 2013 (4) BCLR 431
4 T Nhlapo and C Himonga, African Customary Law in South Africa: Post-Apartheid and Living
Law Perspectives (Oxford University Press 2014) 69.
, see that the source of law is custom, in other words a practice which emerges from
relatively widespread social practice and acceptance.
(a) Custom
According to Hund, both lawyers and non-lawyers make use of the word custom to
refer to the repetitive behaviour of a group of people or society. However, when
lawyers talk about custom as a source of customary rule, this repetitive conduct
constitutes a rule when variation from the anticipated behaviour is openly condemned
and meets with pressure for conformity.5
There is also an ‘internal aspect’ to the custom. This simply means that most members
of the group ‘look upon the behaviour in question as a general standard to be followed
by the group as a whole’. The crucial point is that the majority considers the norm or
behaviour imposed to be compulsory. However, in Alexkor, the Constitutional Court
observed that by ‘its very nature [customary] law evolves as the people who live by its
norms change their patterns of life’.6
(b) Acceptance
With regard to acceptance as a concept in the definition of living customary law, we
stated above that the acceptance of the social practice by the group is essential to the
constitution of the practice or custom as a source of living customary law. In a sense,
every law receives social acceptance to be effective. However, customary law is
distinguishable by ‘the fact that it is this acceptance which makes it law by giving it
authority, and which gives it its content’.
Hamnet stated the best test of the definition of living customary law as follows:
“Customary law emerges from what people do, or, more accurately from
what they believe they ought to do. Rather than from what a class of legal
specialists consider they should do or believe. The ultimate test is not what
does this judge say? But rather what do the participants in the law regard
as the rights and duties that apply to them?”7
5 Nhlapo and Himonga, African Customary Law 70.
6 Richtersveld Community v Alexkor LTD & Another [2004] 3 ALL SA 244 (LCC)
7 Nhlapo and Himonga, African Customary Law 72.
Critically discuss the differences between living customary law and official
customary law. [30]
The concept of customary law in South Africa consists of two forms of customary law:
living customary law and official customary law. The courts have recognised the co-
existence of the concepts of living customary law and official customary law. For
instance, in Bhe v Khayelitsha Magistrate,1 the majority judgment acknowledged the
difference between these forms of customary law in the following statement:
The official rules of customary law are sometimes contrasted with what is
referred to as ‘living customary law’, which is an acknowledgment of the
rules that are adapted to fit in with changed circumstances. The problem
with the adaptations is that they are ad hoc and not uniform. However,
magistrates and the courts responsible for the administration of intestate
estates continue to adhere to the rules of official customary law, with the
consequent anomalies and hardships as a result of changes which have
occurred in society.
The High Court also differentiated between living and official customary law in Mabena
v Letsoalo.2 The Court held that there were two forms of customary law: living
customary law and official customary law. The Court noted that it had to recognise the
principle of living, actually observed, law as this would constitute a development in
accordance with the spirit, purport and objects of the Bill of Rights.
Living customary law usually consists of the unwritten customary practices that
regulate the day-to-day life of people. In Pilane and Another v Pilane and Others3 it
was held that it is well established that customary law is a vital component of our
constitutional system, recognised and protected by the Constitution, while ultimately
subject to its terms. The true nature of customary law is as a living body of law, active
and dynamic, with an inherent capacity to evolve in keeping with the changing lives of
the people whom it governs.4 From these definitions of living customary law, we can
1 Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC)
2 Mabena v Letsoalo 1998 (2) SA 1068 (T)
3 Pilane and Another v Pilane and Others 2013 (4) BCLR 431
4 T Nhlapo and C Himonga, African Customary Law in South Africa: Post-Apartheid and Living
Law Perspectives (Oxford University Press 2014) 69.
, see that the source of law is custom, in other words a practice which emerges from
relatively widespread social practice and acceptance.
(a) Custom
According to Hund, both lawyers and non-lawyers make use of the word custom to
refer to the repetitive behaviour of a group of people or society. However, when
lawyers talk about custom as a source of customary rule, this repetitive conduct
constitutes a rule when variation from the anticipated behaviour is openly condemned
and meets with pressure for conformity.5
There is also an ‘internal aspect’ to the custom. This simply means that most members
of the group ‘look upon the behaviour in question as a general standard to be followed
by the group as a whole’. The crucial point is that the majority considers the norm or
behaviour imposed to be compulsory. However, in Alexkor, the Constitutional Court
observed that by ‘its very nature [customary] law evolves as the people who live by its
norms change their patterns of life’.6
(b) Acceptance
With regard to acceptance as a concept in the definition of living customary law, we
stated above that the acceptance of the social practice by the group is essential to the
constitution of the practice or custom as a source of living customary law. In a sense,
every law receives social acceptance to be effective. However, customary law is
distinguishable by ‘the fact that it is this acceptance which makes it law by giving it
authority, and which gives it its content’.
Hamnet stated the best test of the definition of living customary law as follows:
“Customary law emerges from what people do, or, more accurately from
what they believe they ought to do. Rather than from what a class of legal
specialists consider they should do or believe. The ultimate test is not what
does this judge say? But rather what do the participants in the law regard
as the rights and duties that apply to them?”7
5 Nhlapo and Himonga, African Customary Law 70.
6 Richtersveld Community v Alexkor LTD & Another [2004] 3 ALL SA 244 (LCC)
7 Nhlapo and Himonga, African Customary Law 72.
