African Customary Law
ACL is recognised under positivism in one of two ways...they are... - ANSWER-process of inclusion by rule
of recognition
development or made subject to master rule (Constitution)
.ACL problems of ascertainment... - ANSWER-LCL is applied by Western Courts
Rules of ACL are applied outside their domestic setting, when in local settings there is no problem
because people are aware of the law & rules are negotiated
Unlike Western style courts, customary adjudicators are not obliged by predetermined rules of
ascertainment
There is greater emphasis on substantive justice than on certainty
.Alexkor dealt with... - ANSWER-s8(3) of the Constitution allows the development of customary law in
line with the Constitution
s211(3) states the courts are obliged to apply customary law where applicable, subject to the
Constitution
Court recognized ACL as independent source of law
ACL can be ascertained through writers, old authorities, sources, and evidence of witnesses
There is a danger of looking at customary law through a common law prism
, .Alexkor while recognising the difficulties of ascertaining the principles of ACL stated the court
concluded that... - ANSWER-recognition of ACL in the constitution includes Living Customary Law
s8(3) holds that customary, like common, is directly applicable between individuals and is subject to
development when in conflict with the BOR
Customary law is legitimate component of SA law and not subordinate to common
.Bhe was a case about the male primogeniture being struck down, the court directly applied... -
ANSWER-civil law solution by extending the intestate succession Act
.Centralism (Griffiths) holds that law is... - ANSWER-the law of the state and that the state is the only
legitimate source of authority
.Conflict of law (cust/cus) introduces a hierarchy which is confusing....they look at in terms of s1(3) -
ANSWER-firstly the intention of the parties (express, implied/lifestyle)
secondly, in the absence of agreement, respondents place of residence, business or employment
provided that only one is applicable
lastly, if more than one form of law is applicable then they look at the defendent's tribe
.Conflicts of law (com/cus) --> s(1)(1) leaves the court with 'discretionary' power? Factors to consider by
the court are... - ANSWER-agreement and intention of the parties
nature of prior transactions
subject matter
form of transaction
parties way of life
.Courts inquiry in Gumede was... - ANSWER-not a question of whether the courts should develop
customary law - but rather an order of constitutional validity
.Does ACL fit under Centralism - ANSWER-OCL does...if it is recognised by the state
ACL is recognised under positivism in one of two ways...they are... - ANSWER-process of inclusion by rule
of recognition
development or made subject to master rule (Constitution)
.ACL problems of ascertainment... - ANSWER-LCL is applied by Western Courts
Rules of ACL are applied outside their domestic setting, when in local settings there is no problem
because people are aware of the law & rules are negotiated
Unlike Western style courts, customary adjudicators are not obliged by predetermined rules of
ascertainment
There is greater emphasis on substantive justice than on certainty
.Alexkor dealt with... - ANSWER-s8(3) of the Constitution allows the development of customary law in
line with the Constitution
s211(3) states the courts are obliged to apply customary law where applicable, subject to the
Constitution
Court recognized ACL as independent source of law
ACL can be ascertained through writers, old authorities, sources, and evidence of witnesses
There is a danger of looking at customary law through a common law prism
, .Alexkor while recognising the difficulties of ascertaining the principles of ACL stated the court
concluded that... - ANSWER-recognition of ACL in the constitution includes Living Customary Law
s8(3) holds that customary, like common, is directly applicable between individuals and is subject to
development when in conflict with the BOR
Customary law is legitimate component of SA law and not subordinate to common
.Bhe was a case about the male primogeniture being struck down, the court directly applied... -
ANSWER-civil law solution by extending the intestate succession Act
.Centralism (Griffiths) holds that law is... - ANSWER-the law of the state and that the state is the only
legitimate source of authority
.Conflict of law (cust/cus) introduces a hierarchy which is confusing....they look at in terms of s1(3) -
ANSWER-firstly the intention of the parties (express, implied/lifestyle)
secondly, in the absence of agreement, respondents place of residence, business or employment
provided that only one is applicable
lastly, if more than one form of law is applicable then they look at the defendent's tribe
.Conflicts of law (com/cus) --> s(1)(1) leaves the court with 'discretionary' power? Factors to consider by
the court are... - ANSWER-agreement and intention of the parties
nature of prior transactions
subject matter
form of transaction
parties way of life
.Courts inquiry in Gumede was... - ANSWER-not a question of whether the courts should develop
customary law - but rather an order of constitutional validity
.Does ACL fit under Centralism - ANSWER-OCL does...if it is recognised by the state
