2025 African Customary
Law
LAC500
,TOPIC 1: NATURE AND DEFINITION OF CUSTOMARY LAW
INTRODUCTION
CUSTOMARY LAW V CUSTOMARY LAWS
• No uniform system of customary law applicable to all indigenous communities
o As many versions of customary law as there are indigenous communities
o Similarities -> depend on matrilineal or patrilineal forms of social
organization
• South Africa – Patrilineal societies
CUSTOMARY LAW AND COLONIAL HISTORY
• When viewed from a historical perspective, customary law links with colonial,
Union and apartheid legal cultures.
• Official customary law = official code for governance of Africans by colonial state
and capital (influence of colonialism)
Factors: Treatment by state courts of Customary law had to be proven as a fact
customary law
emergence And customary law relied on oral methods of proof
of official Ignorance of official of state courts re content and nature of
customary customary law
law
Use of precedent and academic literature as sources of customary law
Codification of customary law
Quest for legal certainty in the norms of customary law as sources of
law
Changes existing customary law to suit official
Use of repugnancy clause requirements
1
, • Much of what the state courts presented/applied as customary law was different
from customary practices of the African people’s day-to-day lives
• African legal systems were not static or pure, as opposed to colonialism, thus the
social changes enforced by colonialism accelerated the ‘invention’ of customary
law
• Customary law was created via an alliance between colonial authorities and
African male elders
• As such, pre-democratic indigenous law was influenced by the political,
administrative and judicial context in which it was applied
DEFINITION AND CONCEPT OF CUSTOMARY LAW
INTRODUCTION
• Courts have acknowledged two forms: living customary law, and official customary
law
• Bhe v Khayelitsha Magistrate
o Majority acknowledged the difference between the above forms
o Official rules may sometimes contrast w/ living customary law
▪ Living law = rules are adapted to fit w/ changed circumstances
▪ These adaptions are ad hoc and not uniform
o Responsible courts continue to adhere to the rules of official customary law
• Mabena v Letsoalo
o Held that there are two forms of customary law
o Had to recognize living law -> constitute development in accordance w/
spirit, purport and objects of the Bill of Rights
• Statutory recognition of living law: Recognition of Customary Marriages Act, and
Reform of Customary Law of Succession and Regulation of Related Matters Act
o Define customary law: the customs and usages traditionally observed
among the indigenous African peoples of South Africa and which form part
of the culture of those peoples.
o Culture implies inherently evolving nature of living law.
2
,LIVING CUSTOMARY LAW
DEFINTION
• Actual practices or customs of the indigenous community whose customary law is
under consideration
• Consists of the unwritten customary practices that regulate day-to-da life of people
• Can still be recorded in writing
• Only significant where it carries consequences for the nature of the system
o Where it becomes an irrebutable statement of customary law, regardless of
observed norms
• Source of law = custom
o Practice which emerges from a relatively widespread social practice +
acceptance
Custom Acceptance
•Describes the repetitive behaviour of a •Acceptance of customary law
group of people or society
makes it law by giving it authority,
•In law – repetitive behaviour becomes a rule
and which gives it its content
when deviation from the expected
behaviour is openly criticised and meets w/ •Social acceptance -> does not
pressure for conformity necessary connote voluntariness.
•Criticism = legitimate or justified oObservance of customary law rules
•Majority considers the standard imposed to may be due to force
be obligatory •Majority may observe the rule as a
•Internal aspect = members look upon result of force by those who
behaviour as general standard to be consider themselves to have the
followed by the group as a whole authority to enforce customary law
•Alexkor: Court observed that, by its very
nature, customary law evolves as the •How the group views its own
people who live by its norms change their behaviour is central
patterns of life oLed to problems about who has the
authority to define customary law
3
, • Acceptance
o Social groups for purposes of defining customary law – patrilineage,
matrilineage, the clan
o Customs to which these groups attribute authority are considered to be
socially, and not merely individually, legitimised norms
• Nature of the intermediate groups that possess the public character = vary
ASPECTS OF LIVING CUSTOMARY LAW RELATED TO ITS DEFINITION
a. Living customary law distinguished from custom under common law
• Van Breda v Jacobs
o Court defined concept of custom: source of law under common law
o Court – 4 steps to determine if a custom has the authority of law
▪ Custom must be long established
▪ Custom must be reasonable
▪ Custom must be uniformly observed
▪ Custom must be certain
• Shilubana
o Customary law is an independent and original source of law
o Custom, at common law, ‘survives merely as a useful accessory….filling in
normative gaps in the common law’.
b. Living customary law as an evolving system of law
• Evolving nature of living customary law, and its ability to adapt to changing
conditions in society
• Shilubana judgement
o Living customary law is adaptive by its very nature
o Change is intrinsic to, and invigorating of, customary law
• Bhe judgement
o ‘dynamic system of law continually evolving to meet the changing
circumstances of the community in which it operates’
• Alexkor judgement
4
, o Unwritten / living customary law -> system of law that has evolved and
developed to meet the changing needs of the community
o Will continue to evolve within the context of its values and norms
consistently w/ the constitution
▪ Flexibility = makes it more adaptable to constitutional principles than
official customary law
▪ Not inherently unproblematic -> still be constitutionally tested
• Evolving characteristic: rules change in an unregulated manner
o May be gradual or instant -> depends on pace of social, economic or
political change
• Shilubana case
o Valoyi Royal Council changed rule of male primogeniture re succession to
hosi
o Resolution was passed: allows a woman to succeed to the position of hosi
to meet constitutional principle of gender equality
• The practice must be shown to receive acceptance as a binding legal norm at the
relevant point in time
OFFICIAL CUSTOMARY LAW
• Law applied by the courts/state institutions
• Sources: codes of customary law, other legislation, court precedents, textbooks
• Rarely represents customary law of people
• People’s oral and flexible body of customary law was transformed into a written,
rule-oriented and rigid version of customary law
MIXED CUSTOMARY LAW
• Reforms of customary law marriage and succession -> align customary law w/ BoR
• Incorporates family law from the Marriage Act, Matrimonial Property Act, and (w/
modification) the Intestate Succession Act.
• Customary law concepts have been retained as part of the new laws.
• Mix of customary law and common law -> hybrid form of customary law.
5
,RECONCILING CUSTOMARY LAW W/ FUNDAMENTAL HUMAN RIGHTS
• Bill of Rights applies to private relations through s 8(2)
• Most affected -> family relationships (patriarchal norms) but also land and
traditional leadership.
S 9(1) S 9(3) and (4) S 10 S 39(2)
• equal • instances • everyone has • courts must
treatment where unfair inherent dignity promote the
before the law discrimination and right to spirit, purport
is prohibited have their and objects of
dignity the BoR.
respected and
protected
• Examples of customary law practices that are in conflict: lobolo, polygamy,
ukuthwala, male primogeniture, and succession to traditional status or office.
• Bhe judgement: invalidated male primogeniture on basis that it discriminated
against women re inheritance.
• Shilubana judgement: endorsed rule of customary law in form of royal resolution
which allowed a woman to succeed to position of hosi, as it promoted gender
equality.
o Implicitly prohibited principles of succession that countenances
discrimination
6
,TOPIC 2: LEGAL PLURALISM
DOMINANT JURISPRUDENTIAL THEORIES OF LAW IN SOUTH AFRICA
POSITIVISM AND THE RULE OF RECOGNITION
Jurisprudential theory of law
Positivism
Legal
Based on the idea that law
can be found in tangible
sources that we can verify
scientifically/logically
Rejects morality or ethics as
a source of law
• Prominent theorist: Hart.
o Source thesis: the pedigree (source) of rules determines their status as
law
o Rule of recognition: validity of rules based on the officially accepted rule
of recognition, rather than social acceptance, makes them laws over mere
norms/convergence of behaviour
▪ Examples of criteria: These criteria can include things like whether a
rule was enacted by a specific body (e.g., Parliament), whether it
follows a particular procedure, or whether it has been recognized as
law by legal officials.
• In South Africa
o Laws are enacted by legislature or legal precedent (in line w/ the
constitution) = this makes them law
7
, o Regardless of whether the public accepts, they must just generally obey
o legal system and general moral standards can be differentiated
POSITIVISM AND THE RULE OF LAW
The law is supreme in a
Rule of law
legal order
No state action is
legitimate unless provided
for by validly adopted law
prior to the state taking
action
• Founding Constitutional principle
• Requires:
Separation of
powers between Courts having the Equality before
the three arms of right to review the law
state
Right to fair
hearing +
Legality
presumption of
innocence
8
, Legal foality (similar to rules of recognition
Legality and source thesis -> positivist)
Requires law to be...
• clear
• certain
• precise
• specific
• consistent
• accessible
• ascertainable
• foreseeable
• Legality and customary law -> ConCourt has recognised living customary law in
several cases.
LEGAL CENTRALISM
The law is and should be
Legal
centralism
the law of the state
Uniform for all persons
Exclusive of al other law
Administered by a single
set of state institutions
9
Law
LAC500
,TOPIC 1: NATURE AND DEFINITION OF CUSTOMARY LAW
INTRODUCTION
CUSTOMARY LAW V CUSTOMARY LAWS
• No uniform system of customary law applicable to all indigenous communities
o As many versions of customary law as there are indigenous communities
o Similarities -> depend on matrilineal or patrilineal forms of social
organization
• South Africa – Patrilineal societies
CUSTOMARY LAW AND COLONIAL HISTORY
• When viewed from a historical perspective, customary law links with colonial,
Union and apartheid legal cultures.
• Official customary law = official code for governance of Africans by colonial state
and capital (influence of colonialism)
Factors: Treatment by state courts of Customary law had to be proven as a fact
customary law
emergence And customary law relied on oral methods of proof
of official Ignorance of official of state courts re content and nature of
customary customary law
law
Use of precedent and academic literature as sources of customary law
Codification of customary law
Quest for legal certainty in the norms of customary law as sources of
law
Changes existing customary law to suit official
Use of repugnancy clause requirements
1
, • Much of what the state courts presented/applied as customary law was different
from customary practices of the African people’s day-to-day lives
• African legal systems were not static or pure, as opposed to colonialism, thus the
social changes enforced by colonialism accelerated the ‘invention’ of customary
law
• Customary law was created via an alliance between colonial authorities and
African male elders
• As such, pre-democratic indigenous law was influenced by the political,
administrative and judicial context in which it was applied
DEFINITION AND CONCEPT OF CUSTOMARY LAW
INTRODUCTION
• Courts have acknowledged two forms: living customary law, and official customary
law
• Bhe v Khayelitsha Magistrate
o Majority acknowledged the difference between the above forms
o Official rules may sometimes contrast w/ living customary law
▪ Living law = rules are adapted to fit w/ changed circumstances
▪ These adaptions are ad hoc and not uniform
o Responsible courts continue to adhere to the rules of official customary law
• Mabena v Letsoalo
o Held that there are two forms of customary law
o Had to recognize living law -> constitute development in accordance w/
spirit, purport and objects of the Bill of Rights
• Statutory recognition of living law: Recognition of Customary Marriages Act, and
Reform of Customary Law of Succession and Regulation of Related Matters Act
o Define customary law: the customs and usages traditionally observed
among the indigenous African peoples of South Africa and which form part
of the culture of those peoples.
o Culture implies inherently evolving nature of living law.
2
,LIVING CUSTOMARY LAW
DEFINTION
• Actual practices or customs of the indigenous community whose customary law is
under consideration
• Consists of the unwritten customary practices that regulate day-to-da life of people
• Can still be recorded in writing
• Only significant where it carries consequences for the nature of the system
o Where it becomes an irrebutable statement of customary law, regardless of
observed norms
• Source of law = custom
o Practice which emerges from a relatively widespread social practice +
acceptance
Custom Acceptance
•Describes the repetitive behaviour of a •Acceptance of customary law
group of people or society
makes it law by giving it authority,
•In law – repetitive behaviour becomes a rule
and which gives it its content
when deviation from the expected
behaviour is openly criticised and meets w/ •Social acceptance -> does not
pressure for conformity necessary connote voluntariness.
•Criticism = legitimate or justified oObservance of customary law rules
•Majority considers the standard imposed to may be due to force
be obligatory •Majority may observe the rule as a
•Internal aspect = members look upon result of force by those who
behaviour as general standard to be consider themselves to have the
followed by the group as a whole authority to enforce customary law
•Alexkor: Court observed that, by its very
nature, customary law evolves as the •How the group views its own
people who live by its norms change their behaviour is central
patterns of life oLed to problems about who has the
authority to define customary law
3
, • Acceptance
o Social groups for purposes of defining customary law – patrilineage,
matrilineage, the clan
o Customs to which these groups attribute authority are considered to be
socially, and not merely individually, legitimised norms
• Nature of the intermediate groups that possess the public character = vary
ASPECTS OF LIVING CUSTOMARY LAW RELATED TO ITS DEFINITION
a. Living customary law distinguished from custom under common law
• Van Breda v Jacobs
o Court defined concept of custom: source of law under common law
o Court – 4 steps to determine if a custom has the authority of law
▪ Custom must be long established
▪ Custom must be reasonable
▪ Custom must be uniformly observed
▪ Custom must be certain
• Shilubana
o Customary law is an independent and original source of law
o Custom, at common law, ‘survives merely as a useful accessory….filling in
normative gaps in the common law’.
b. Living customary law as an evolving system of law
• Evolving nature of living customary law, and its ability to adapt to changing
conditions in society
• Shilubana judgement
o Living customary law is adaptive by its very nature
o Change is intrinsic to, and invigorating of, customary law
• Bhe judgement
o ‘dynamic system of law continually evolving to meet the changing
circumstances of the community in which it operates’
• Alexkor judgement
4
, o Unwritten / living customary law -> system of law that has evolved and
developed to meet the changing needs of the community
o Will continue to evolve within the context of its values and norms
consistently w/ the constitution
▪ Flexibility = makes it more adaptable to constitutional principles than
official customary law
▪ Not inherently unproblematic -> still be constitutionally tested
• Evolving characteristic: rules change in an unregulated manner
o May be gradual or instant -> depends on pace of social, economic or
political change
• Shilubana case
o Valoyi Royal Council changed rule of male primogeniture re succession to
hosi
o Resolution was passed: allows a woman to succeed to the position of hosi
to meet constitutional principle of gender equality
• The practice must be shown to receive acceptance as a binding legal norm at the
relevant point in time
OFFICIAL CUSTOMARY LAW
• Law applied by the courts/state institutions
• Sources: codes of customary law, other legislation, court precedents, textbooks
• Rarely represents customary law of people
• People’s oral and flexible body of customary law was transformed into a written,
rule-oriented and rigid version of customary law
MIXED CUSTOMARY LAW
• Reforms of customary law marriage and succession -> align customary law w/ BoR
• Incorporates family law from the Marriage Act, Matrimonial Property Act, and (w/
modification) the Intestate Succession Act.
• Customary law concepts have been retained as part of the new laws.
• Mix of customary law and common law -> hybrid form of customary law.
5
,RECONCILING CUSTOMARY LAW W/ FUNDAMENTAL HUMAN RIGHTS
• Bill of Rights applies to private relations through s 8(2)
• Most affected -> family relationships (patriarchal norms) but also land and
traditional leadership.
S 9(1) S 9(3) and (4) S 10 S 39(2)
• equal • instances • everyone has • courts must
treatment where unfair inherent dignity promote the
before the law discrimination and right to spirit, purport
is prohibited have their and objects of
dignity the BoR.
respected and
protected
• Examples of customary law practices that are in conflict: lobolo, polygamy,
ukuthwala, male primogeniture, and succession to traditional status or office.
• Bhe judgement: invalidated male primogeniture on basis that it discriminated
against women re inheritance.
• Shilubana judgement: endorsed rule of customary law in form of royal resolution
which allowed a woman to succeed to position of hosi, as it promoted gender
equality.
o Implicitly prohibited principles of succession that countenances
discrimination
6
,TOPIC 2: LEGAL PLURALISM
DOMINANT JURISPRUDENTIAL THEORIES OF LAW IN SOUTH AFRICA
POSITIVISM AND THE RULE OF RECOGNITION
Jurisprudential theory of law
Positivism
Legal
Based on the idea that law
can be found in tangible
sources that we can verify
scientifically/logically
Rejects morality or ethics as
a source of law
• Prominent theorist: Hart.
o Source thesis: the pedigree (source) of rules determines their status as
law
o Rule of recognition: validity of rules based on the officially accepted rule
of recognition, rather than social acceptance, makes them laws over mere
norms/convergence of behaviour
▪ Examples of criteria: These criteria can include things like whether a
rule was enacted by a specific body (e.g., Parliament), whether it
follows a particular procedure, or whether it has been recognized as
law by legal officials.
• In South Africa
o Laws are enacted by legislature or legal precedent (in line w/ the
constitution) = this makes them law
7
, o Regardless of whether the public accepts, they must just generally obey
o legal system and general moral standards can be differentiated
POSITIVISM AND THE RULE OF LAW
The law is supreme in a
Rule of law
legal order
No state action is
legitimate unless provided
for by validly adopted law
prior to the state taking
action
• Founding Constitutional principle
• Requires:
Separation of
powers between Courts having the Equality before
the three arms of right to review the law
state
Right to fair
hearing +
Legality
presumption of
innocence
8
, Legal foality (similar to rules of recognition
Legality and source thesis -> positivist)
Requires law to be...
• clear
• certain
• precise
• specific
• consistent
• accessible
• ascertainable
• foreseeable
• Legality and customary law -> ConCourt has recognised living customary law in
several cases.
LEGAL CENTRALISM
The law is and should be
Legal
centralism
the law of the state
Uniform for all persons
Exclusive of al other law
Administered by a single
set of state institutions
9
