ADVANCED
INDIGENOUS LAW
LCP4804
Semester 1 2022
EXAM
(9 JUNE 2022)
, ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of Unisa’s policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used someone else’s work, I have
indicated this by using the prescribed style of referencing. Every contribution to, and quotation in, this
assignment from the work or works of other people has been referenced according to the prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his
or her own work.
4. I did not make use of another student’s work and submit it as my own.
NAME: ……………………………………………………………………………………...
SIGNATURE: ……………………………………………………………………………...
STUDENT NUMBER: ……………………………………………………………………..
MODULE CODE: ...............................................................................................
DATE: ……………………………………………………………………………………....
RESEARCH THEME SELECTED: ………………………………………………………
MARK RECEIVED FOR ASSIGNMENT 01: …………………………………………..
MARK RECEIVED FOR ASSIGNMENT 02: …………………………………………...
, QUESTION 1
(a) Write down the definition of customary law as it appears from section 1 of the Recognition of
Customary Marriages Act 120 of 1998; and then use its wording to explain the nature, role and
function of this component of the South African legal system as appears in case law. (10)
Customary law is defined in section 1 of the Recognition of Customary Marriages Act35 (hereafter
referred to as RCMA) as the “usages and customs traditionally observed among the indigenous
African peoples of South Africa”, which “forms part of the culture of those peoples”. In
understanding customary law, an important distinction needs to be drawn between codified
customary law and living customary law. Codified customary law, also referred to as official
customary law, comprises what was an oppressive form of customary law developed by colonial
and apartheid states which exists in codes and precedents. It has been argued that much of the
customary law in the courts before 1994 was drawn from texts or precedents and is therefore of
dubious validity. Living customary law, on the other hand, exists in the system of living norms that
regulate the everyday lives of people who live according to customary law. This system of law is
dynamic, evolving and contextspecific as it adapts to changes in the beliefs and circumstances of
the people it applies to.
In the case of Alexkor v The Richtersveld Community & Others 2004 (5) SA (CC)36, the
Constitutional Court defined the nature and concept of customary law as follows: The nature and
the content of the rights that the Richtersveld Community held in the subject land prior to
annexation must be determined by reference to indigenous law. That is the law which governed its
land rights. Those rights cannot be determined by reference to common law. The Privy Council
has held, and we agree, that a dispute between indigenous people as to the right to occupy a
piece of land has to be determined according to indigenous law “without importing English
conceptions of property law”.
The recognition and application of customary law rests on the right to culture. Historically Black
South Africans were positioned “outside of the law”, which means they were subordinated by, and
denied protection from, customary and state support systems in the apartheid and colonial
contexts.
INDIGENOUS LAW
LCP4804
Semester 1 2022
EXAM
(9 JUNE 2022)
, ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of Unisa’s policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used someone else’s work, I have
indicated this by using the prescribed style of referencing. Every contribution to, and quotation in, this
assignment from the work or works of other people has been referenced according to the prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his
or her own work.
4. I did not make use of another student’s work and submit it as my own.
NAME: ……………………………………………………………………………………...
SIGNATURE: ……………………………………………………………………………...
STUDENT NUMBER: ……………………………………………………………………..
MODULE CODE: ...............................................................................................
DATE: ……………………………………………………………………………………....
RESEARCH THEME SELECTED: ………………………………………………………
MARK RECEIVED FOR ASSIGNMENT 01: …………………………………………..
MARK RECEIVED FOR ASSIGNMENT 02: …………………………………………...
, QUESTION 1
(a) Write down the definition of customary law as it appears from section 1 of the Recognition of
Customary Marriages Act 120 of 1998; and then use its wording to explain the nature, role and
function of this component of the South African legal system as appears in case law. (10)
Customary law is defined in section 1 of the Recognition of Customary Marriages Act35 (hereafter
referred to as RCMA) as the “usages and customs traditionally observed among the indigenous
African peoples of South Africa”, which “forms part of the culture of those peoples”. In
understanding customary law, an important distinction needs to be drawn between codified
customary law and living customary law. Codified customary law, also referred to as official
customary law, comprises what was an oppressive form of customary law developed by colonial
and apartheid states which exists in codes and precedents. It has been argued that much of the
customary law in the courts before 1994 was drawn from texts or precedents and is therefore of
dubious validity. Living customary law, on the other hand, exists in the system of living norms that
regulate the everyday lives of people who live according to customary law. This system of law is
dynamic, evolving and contextspecific as it adapts to changes in the beliefs and circumstances of
the people it applies to.
In the case of Alexkor v The Richtersveld Community & Others 2004 (5) SA (CC)36, the
Constitutional Court defined the nature and concept of customary law as follows: The nature and
the content of the rights that the Richtersveld Community held in the subject land prior to
annexation must be determined by reference to indigenous law. That is the law which governed its
land rights. Those rights cannot be determined by reference to common law. The Privy Council
has held, and we agree, that a dispute between indigenous people as to the right to occupy a
piece of land has to be determined according to indigenous law “without importing English
conceptions of property law”.
The recognition and application of customary law rests on the right to culture. Historically Black
South Africans were positioned “outside of the law”, which means they were subordinated by, and
denied protection from, customary and state support systems in the apartheid and colonial
contexts.
