LCP4804 Assignment 2
(COMPLETE ANSWERS)
Semester 2 2025 - DUE
September 2025
For assistance contact
Email:
,Nature and Concept of African Customary Law
African customary law is a dynamic, unwritten body of law based on the customs and
traditions of indigenous African communities. Unlike codified legal systems, it's not found in
a single statute book but is passed down orally through generations. Its core characteristics
include being community-based, flexible, and aimed at reconciliation rather than retribution.
African customary law is often described as living law because it adapts to socio-economic
changes, evolving with the community it governs. It regulates social relationships, property
rights, succession, and marriage, focusing on the preservation of social harmony and the well-
being of the group.
Ascertainment and Proof of Customary Law
Paul, as a junior counsel, needs to understand that ascertaining and proving customary law in
a modern court is a two-step process.
1. Ascertainment: This is the process of determining what the specific rule of
customary law is. Since it's unwritten, the court or legal practitioner must investigate
the rule as it exists within the relevant community. This can be done by:
o Consulting with traditional leaders and elders who are the custodians of
customary norms.
o Referring to academic writings and research by anthropologists, sociologists,
and legal scholars.
o Examining existing court precedents that have already dealt with the same
customary rule.
o Admitting expert testimony from individuals knowledgeable in the specific
customary law in question.
2. Proof: This involves demonstrating to the court that the ascertained rule is valid and
applicable. The Constitution and legislation, such as the Law of Evidence Amendment
Act 45 of 1988, have made it easier to prove customary law. It's no longer treated as a
foreign law that needs to be proven as a fact. The court can take judicial notice of a
customary law rule if it's certain and readily ascertainable. If not, the party relying on
the custom must provide evidence to prove its existence and application within the
community.
, Resolution of Conflicts Between Customary and Common Law
Thabiso can use several tools to resolve a conflict between customary and common law. The
central principle in South Africa is that both legal systems are equal and subject to the
Constitution. The Constitution serves as the ultimate tool for resolving such conflicts.
1. Constitutional Test: The primary tool is to test the customary law rule against the
Bill of Rights in the Constitution. If a customary rule, such as male primogeniture, is
found to be discriminatory and infringes on a constitutional right (e.g., equality), it
must be struck down or developed to align with the Constitution. The courts have the
power to develop customary law to be consistent with the spirit, purport, and objects
of the Bill of Rights.
2. Repugnancy Clause: While historically a tool used to reject customary law, its
modern equivalent is the constitutional test. The old repugnancy clause stated that
customary law would not be applied if it was "repugnant to the principles of public
policy and natural justice." Today, this is done through the lens of constitutional
values.
3. Choice of Law Rules: In some cases, the conflict isn't about validity but about which
law should apply to a particular case. The Reform of Customary Law of Succession
and Regulation of Related Matters Act is an example of a legislative tool that
provides guidelines on when customary law should apply. The courts also consider the
principle of party autonomy, where parties can choose which law they wish to
govern their relationship, and the principle of living customary law, where the court
looks at the current practices of the community rather than outdated, codified
versions.
Criticisms of Mthembu v Letsela and Another (2000)
The Mthembu v Letsela judgment faced significant criticism, particularly concerning its
approach to the male primogeniture rule and the status of illegitimate children under
customary law.
1. Ignoring Living Customary Law: Critics argued the court focused on the rigid,
official version of customary law, failing to consider how the rule had evolved within
communities. Many modern communities no longer strictly adhere to the rule of male
primogeniture, especially regarding succession to personal property.
2. Perpetuating Discrimination: The decision was seen as upholding a discriminatory
rule that disadvantaged female heirs and illegitimate children, contrary to the
constitutional imperative of equality. The court upheld the rule on the basis of a
narrow interpretation, stating it was not inherently discriminatory.
3. Fragmented Interpretation: The court's distinction between succession to a stools of
a chieftainship (political office) and succession to private property was seen as
problematic. It applied the rule differently, creating a confusing legal landscape.
Critics argued the court should have seized the opportunity to decisively abolish the
(COMPLETE ANSWERS)
Semester 2 2025 - DUE
September 2025
For assistance contact
Email:
,Nature and Concept of African Customary Law
African customary law is a dynamic, unwritten body of law based on the customs and
traditions of indigenous African communities. Unlike codified legal systems, it's not found in
a single statute book but is passed down orally through generations. Its core characteristics
include being community-based, flexible, and aimed at reconciliation rather than retribution.
African customary law is often described as living law because it adapts to socio-economic
changes, evolving with the community it governs. It regulates social relationships, property
rights, succession, and marriage, focusing on the preservation of social harmony and the well-
being of the group.
Ascertainment and Proof of Customary Law
Paul, as a junior counsel, needs to understand that ascertaining and proving customary law in
a modern court is a two-step process.
1. Ascertainment: This is the process of determining what the specific rule of
customary law is. Since it's unwritten, the court or legal practitioner must investigate
the rule as it exists within the relevant community. This can be done by:
o Consulting with traditional leaders and elders who are the custodians of
customary norms.
o Referring to academic writings and research by anthropologists, sociologists,
and legal scholars.
o Examining existing court precedents that have already dealt with the same
customary rule.
o Admitting expert testimony from individuals knowledgeable in the specific
customary law in question.
2. Proof: This involves demonstrating to the court that the ascertained rule is valid and
applicable. The Constitution and legislation, such as the Law of Evidence Amendment
Act 45 of 1988, have made it easier to prove customary law. It's no longer treated as a
foreign law that needs to be proven as a fact. The court can take judicial notice of a
customary law rule if it's certain and readily ascertainable. If not, the party relying on
the custom must provide evidence to prove its existence and application within the
community.
, Resolution of Conflicts Between Customary and Common Law
Thabiso can use several tools to resolve a conflict between customary and common law. The
central principle in South Africa is that both legal systems are equal and subject to the
Constitution. The Constitution serves as the ultimate tool for resolving such conflicts.
1. Constitutional Test: The primary tool is to test the customary law rule against the
Bill of Rights in the Constitution. If a customary rule, such as male primogeniture, is
found to be discriminatory and infringes on a constitutional right (e.g., equality), it
must be struck down or developed to align with the Constitution. The courts have the
power to develop customary law to be consistent with the spirit, purport, and objects
of the Bill of Rights.
2. Repugnancy Clause: While historically a tool used to reject customary law, its
modern equivalent is the constitutional test. The old repugnancy clause stated that
customary law would not be applied if it was "repugnant to the principles of public
policy and natural justice." Today, this is done through the lens of constitutional
values.
3. Choice of Law Rules: In some cases, the conflict isn't about validity but about which
law should apply to a particular case. The Reform of Customary Law of Succession
and Regulation of Related Matters Act is an example of a legislative tool that
provides guidelines on when customary law should apply. The courts also consider the
principle of party autonomy, where parties can choose which law they wish to
govern their relationship, and the principle of living customary law, where the court
looks at the current practices of the community rather than outdated, codified
versions.
Criticisms of Mthembu v Letsela and Another (2000)
The Mthembu v Letsela judgment faced significant criticism, particularly concerning its
approach to the male primogeniture rule and the status of illegitimate children under
customary law.
1. Ignoring Living Customary Law: Critics argued the court focused on the rigid,
official version of customary law, failing to consider how the rule had evolved within
communities. Many modern communities no longer strictly adhere to the rule of male
primogeniture, especially regarding succession to personal property.
2. Perpetuating Discrimination: The decision was seen as upholding a discriminatory
rule that disadvantaged female heirs and illegitimate children, contrary to the
constitutional imperative of equality. The court upheld the rule on the basis of a
narrow interpretation, stating it was not inherently discriminatory.
3. Fragmented Interpretation: The court's distinction between succession to a stools of
a chieftainship (political office) and succession to private property was seen as
problematic. It applied the rule differently, creating a confusing legal landscape.
Critics argued the court should have seized the opportunity to decisively abolish the
