LCP4804
ASSIGNMENT 2 SEMESTER 2 2025
UNIQUE NO. 504322
DUE DATE: 2025
, Advanced Indigenous Law
Question 1: The Nature and Concept of African Law (Customary Law)
Customary law, also referred to as African law, forms a distinct and essential
component of the South African legal system. It is defined as the body of rules that have
developed from the customs and practices of indigenous African communities, and it
continues to evolve in response to social change (Bennett, 2004). Unlike common law,
which is rooted in Roman-Dutch principles, customary law is deeply embedded in the
social, spiritual, and cultural fabric of African societies.
The Concept of Customary Law
Customary law exists in two broad forms: the “official” version and the “living” version.
The official version consists of codified and recorded rules that have often been shaped
by colonial administrators, legislation, and judicial interpretation. By contrast, living
customary law refers to the rules that are actually observed and practiced by
communities on the ground. The Constitutional Court has consistently held that it is the
living version of customary law that must be applied. In Alexkor Ltd v Richtersveld
Community (2004), the Court affirmed that living customary law reflects the true
practices of communities, rather than rigid codifications imposed externally.
Characteristics of Customary Law
Customary law possesses distinctive characteristics that differentiate it from Western
legal systems. First, it is communal in nature, focusing on the welfare of the
community rather than the rights of the individual (Mbondenyi & Ojienda, 2013).
Secondly, it is an oral system, preserved and transmitted through generational
practices, rituals, and storytelling, rather than through written codes. Thirdly, it is
holistic, in that it integrates law, morality, religion, and culture into a unified worldview
(Himonga & Nhlapo, 2014).
Another significant feature of customary law is its flexibility. Because it evolves with the
community, it adapts readily to changing social and economic circumstances. Its
ASSIGNMENT 2 SEMESTER 2 2025
UNIQUE NO. 504322
DUE DATE: 2025
, Advanced Indigenous Law
Question 1: The Nature and Concept of African Law (Customary Law)
Customary law, also referred to as African law, forms a distinct and essential
component of the South African legal system. It is defined as the body of rules that have
developed from the customs and practices of indigenous African communities, and it
continues to evolve in response to social change (Bennett, 2004). Unlike common law,
which is rooted in Roman-Dutch principles, customary law is deeply embedded in the
social, spiritual, and cultural fabric of African societies.
The Concept of Customary Law
Customary law exists in two broad forms: the “official” version and the “living” version.
The official version consists of codified and recorded rules that have often been shaped
by colonial administrators, legislation, and judicial interpretation. By contrast, living
customary law refers to the rules that are actually observed and practiced by
communities on the ground. The Constitutional Court has consistently held that it is the
living version of customary law that must be applied. In Alexkor Ltd v Richtersveld
Community (2004), the Court affirmed that living customary law reflects the true
practices of communities, rather than rigid codifications imposed externally.
Characteristics of Customary Law
Customary law possesses distinctive characteristics that differentiate it from Western
legal systems. First, it is communal in nature, focusing on the welfare of the
community rather than the rights of the individual (Mbondenyi & Ojienda, 2013).
Secondly, it is an oral system, preserved and transmitted through generational
practices, rituals, and storytelling, rather than through written codes. Thirdly, it is
holistic, in that it integrates law, morality, religion, and culture into a unified worldview
(Himonga & Nhlapo, 2014).
Another significant feature of customary law is its flexibility. Because it evolves with the
community, it adapts readily to changing social and economic circumstances. Its
