LCP4804 PORTFOLIO MEMO - MAY/JUNE 2025 - SEMESTER 1 - UNISA - DUE DATE :- 26 MAY 2025 - (DETAILED ANSWERS WITH FOOTNOTES AND BIBLIOGRAPHY - DISTINCTION GUARANTEED!)

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LCP4804
Advanced Indigenous law




PORTFOLIO
The



MEMO - MAY/JUNE 2025
SEMESTER 1 – 2025 - UNISA
UNIQUE NUMBER: -
DUE DATE: - 26 MAY 2025
Footnotes/Bibliography included
PORTFOLIO PREVIEW
QUESTION 1


With reference to decided cases, critically discuss the differences between living customary law and
official customary law?
(20)



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,QUESTION 1
With reference to decided cases, critically discuss the differences between living
customary law and official customary law?
(20)

QUESTION 2
Discuss some of the observations or criticisms that have been levelled against the court’s
decision in Mthembu v Letsela and Another 2000 (3) SA 867 (SCA) in deciding on the
questions of the male primogeniture rule and illegitimacy under customary law?
(20)

QUESTION 3
Paul is a junior counsel who has been briefed on a matter concerning the ascertainment
and proof of customary law. He consults you, a legal researcher in the field, and requests
you to explain how customary law can be ascertained and proven.
(20)

QUESTION 4
Thabiso is preparing for a matter involving a conflict between customary law and common
law, and he requires your expertise on the tools he can utilise in order to resolve this
issue. As a point of clarification, you are informed that conflict of laws refers to choosing
the appropriate law. Discuss how such a conflict of laws can be resolved.
(20)

QUESTION 5
Name and discuss 6 (six) customary law contracts?
(20)

, TOTAL = [100]




Question 1
Critically discuss the differences between living customary law and official
customary law. (25)
[25]




Official Customary Law


In general, the official customary law reflects state interests and is part of state law. The
official version of customary law is found in statutes, law reports, the South African Law
Reform Commission reports, text books, university lectures and other public documents.
According to Ndima, the official version of customary law depends on alien values for
validity. Mogoro J, in Du Plessis v De Klerk1, points out that customary law "has
lamentably been marginalised and allowed to degenerate into a vitrified set of norms
alienated from its roots in the community". Costa puts it thus:Customary law as it stands
is corrupted, inauthentic and lacking authority. It is a foreign imposition, a stranger in
Africa.2


In Fosi v Road Accident Fund,3 the court put it as follows:


Indigenous African customary law has occupied an unfortunate position in the legal
history of our country. The fact is that it was hardly recognized by the law-makers and
was accordingly scarcely applied in the South African courts. It enjoyed the status of being




1Van Niekerk 2001 CILSA 480.
2 Costa 1998 SAJHR 525, 534.
3 Fosi v Road Accident Fund 2008 3 SA 560 (CPD) 567.