LCP4804 Assignment 2
719843
, QUESTION 1
----------------------------------------------------------------------------------------------------------------
Critically discuss the differences between living customary law and official
customary law.
----------------------------------------------------------------------------------------------------------------
Living customary law
Living customary law consists of the actual practices or customs of the indigenous
community whose customary law is under consideration.1 For example, Jobodwana,
defines customary law of the community as a body of customs and traditions which
regulates the various kinds of relationships between members of the community.2 In a
traditional society, customary law derives its authority from its acceptance by members
of the community as a body of rules binding on themselves: customary law is not
dependent on the sovereign or supreme legislature for its validity but rather on its
acceptance by the community whose affairs it regulated. Acceptance means or implies
that customs must conform with actual patterns of behaviour.3 Bekker and Rautenbach
define living customary law as ‘the original customs and usages that are in a constant
phase of evolvement [in the sense that as] communities change … so do their rules’.4
Hamnett defines living customary law as ‘a set of norms which the actors in a social
situation abstract from practice and which they invest with binding authority’.5
Living customary law consists of the unwritten customary practices that regulate the
day-to-day life of people. It can be recorded on a written statute.6 The minority
judgment in Bhe referred to living customary law as a ‘dynamic system of law which is
continually evolving to meet the changing circumstances of the community in which it
operates’.7 this system of law would ‘continue to evolve within the context of its values
and norms consistently with the Constitution’.8This definition was adopted by the
Constitutional Court in Alexkor. From the above definitions, it is evident that source of
customary law is custom, (a practice which emerges from relatively widespread social
1 Nhlapo T et al African customary law in South Africa post-apartheid and living law perspectives (Oxford
University Press 2014) 69.
2 Jobodwana, ZN (2000) Customary courts and human rights: Comparative African perspectives SA
Public Law 15(1):26–49 at 30.
3 Jobodwana (2000) 31.
4 Rautenbach C and Bekker JC Introduction to legal pluralism (LexisNexis 2010) 29.
5 Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of Executive Law in
Lesotho 14.
6 Woodman, GR ‘Customary laws and customary legal rights: A comparative consideration of
their nature and of the relationship between laws’ in Svensson, TG (ed) (1999) On Customary
Law and the Saami Rights Process in Norway 3–29 at 5.
7 Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1)
BCLR 1 (CC) (15 October 2004) para 153.
8 Alexkor Ltd v Richtersveld Community (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC);
2003 (12) BCLR 1301 (CC) (14 October 2003) para 53.
719843
, QUESTION 1
----------------------------------------------------------------------------------------------------------------
Critically discuss the differences between living customary law and official
customary law.
----------------------------------------------------------------------------------------------------------------
Living customary law
Living customary law consists of the actual practices or customs of the indigenous
community whose customary law is under consideration.1 For example, Jobodwana,
defines customary law of the community as a body of customs and traditions which
regulates the various kinds of relationships between members of the community.2 In a
traditional society, customary law derives its authority from its acceptance by members
of the community as a body of rules binding on themselves: customary law is not
dependent on the sovereign or supreme legislature for its validity but rather on its
acceptance by the community whose affairs it regulated. Acceptance means or implies
that customs must conform with actual patterns of behaviour.3 Bekker and Rautenbach
define living customary law as ‘the original customs and usages that are in a constant
phase of evolvement [in the sense that as] communities change … so do their rules’.4
Hamnett defines living customary law as ‘a set of norms which the actors in a social
situation abstract from practice and which they invest with binding authority’.5
Living customary law consists of the unwritten customary practices that regulate the
day-to-day life of people. It can be recorded on a written statute.6 The minority
judgment in Bhe referred to living customary law as a ‘dynamic system of law which is
continually evolving to meet the changing circumstances of the community in which it
operates’.7 this system of law would ‘continue to evolve within the context of its values
and norms consistently with the Constitution’.8This definition was adopted by the
Constitutional Court in Alexkor. From the above definitions, it is evident that source of
customary law is custom, (a practice which emerges from relatively widespread social
1 Nhlapo T et al African customary law in South Africa post-apartheid and living law perspectives (Oxford
University Press 2014) 69.
2 Jobodwana, ZN (2000) Customary courts and human rights: Comparative African perspectives SA
Public Law 15(1):26–49 at 30.
3 Jobodwana (2000) 31.
4 Rautenbach C and Bekker JC Introduction to legal pluralism (LexisNexis 2010) 29.
5 Hamnett, I (1975) Chieftainship and Legitimacy: An Anthropological Study of Executive Law in
Lesotho 14.
6 Woodman, GR ‘Customary laws and customary legal rights: A comparative consideration of
their nature and of the relationship between laws’ in Svensson, TG (ed) (1999) On Customary
Law and the Saami Rights Process in Norway 3–29 at 5.
7 Bhe v Khayelitsha Magistrate (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1)
BCLR 1 (CC) (15 October 2004) para 153.
8 Alexkor Ltd v Richtersveld Community (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC);
2003 (12) BCLR 1301 (CC) (14 October 2003) para 53.
