Summary Custom & Customary Law

Custom & Customary Law
Created @August 30, 2022 1:57 PM

Class

Type

Materials

Reviewed



Custom
Long-standing practice that has acquired the force of law through its usage

Used to fill in gaps/voids in certain areas

Not officially stated in the rules

Play a significant role in banking law and customary law



Requirements

1. Long-standing practice

2. Existence without exception since its origin

3. Must be reasonable

4. Must be certain

5. Must be generally recognised and observed by the community




Customary Law and Colonisation
Official Customary Law


Custom & Customary Law 1

, Attempt to codify African customary law

most likely corrupted by colonialism



Why official customary law was documented/codified:

1. Prove customary law in every case

2. People who recognised customary law were state officials who did not understand
African customary law → misconstrued and misunderstood

3. Precedent and Documentation importance in law

4. Legal Certainty

5. The notion of the Rebuplicy (?) Clause




Living Customary Law
actual practices of indigenous communities whose customary law is under
consideration

limited influence by colonialism

adapts to changes in communities



Mixed Customary Law
hybrid

Living customary law x official customary law x modern disposition




Customary Law and the Constitution
recognised by the constitution as a primary source → S211, S39(3)




Custom & Customary Law 2