LCP4804
Unique No: 504322
Assignment 2
Due 2025
,Question 1: The Nature and Concept of African Law (Customary Law)
Customary law—also known as African law—is a vital element of South Africa’s plural
legal system. It represents a body of rules that emerge from the customs, values, and
traditions of indigenous African communities and continues to adapt in response to
social transformation (Bennett, 2004). Unlike the common law, which is historically
grounded in Roman-Dutch legal principles, customary law is inseparable from the
cultural, spiritual, and social life of African societies.
The Concept of Customary Law
Customary law can broadly be understood in two forms: the “official” version and the
“living” version. The official version consists of codified or judicially recognised rules,
many of which were shaped during the colonial and apartheid eras by legislation and
court interpretations. In contrast, living customary law refers to the norms and practices
actually observed and applied within communities today. The Constitutional Court has
stressed the importance of applying the living version because it reflects genuine
community practices. In Alexkor Ltd v Richtersveld Community (2004), the Court made
it clear that living customary law is the authentic form of customary law, as opposed to
rigid codifications.
Distinctive Features of Customary Law
Several characteristics distinguish customary law from Western legal systems:
1. Communal Orientation – It is community-focused, prioritising collective welfare
over strict individual rights (Mbondenyi & Ojienda, 2013).
2. Oral Tradition – Rules are passed down orally through generations, rituals, and
storytelling rather than formal statutes or codes.
3. Holistic Nature – It integrates law with morality, religion, and cultural practices,
creating a unified worldview (Himonga & Nhlapo, 2014).
4. Flexibility – Because it evolves alongside society, it readily adapts to shifting
social and economic conditions.
, 1. Restorative Justice Orientation – Dispute resolution under customary law is
consensus-driven and aims to restore harmony in relationships, rather than
focusing solely on punishment.
Recognition in the Constitutional Era
The 1996 Constitution elevated the status of customary law by recognising it as part of
South Africa’s legal framework. Section 211(3) directs courts to apply customary law
where relevant, provided it does not conflict with the Constitution or other legislation.
Section 39(2) requires that customary law be developed in a way that advances the
values and objectives of the Bill of Rights.
South African courts have actively ensured that customary law aligns with constitutional
principles. In Bhe v Magistrate, Khayelitsha (2005), the Constitutional Court struck down
the rule of male primogeniture in succession, finding it inconsistent with the rights to
equality and dignity. In Shilubana v Nwamitwa (2009), the Court upheld a community’s
decision to appoint a woman as traditional leader, illustrating the adaptability of
customary law in the constitutional context.
Conclusion
Customary law remains distinctive because of its communal ethos, oral transmission,
adaptability, and focus on restorative justice. Its recognition in the Constitution affirms
its importance in the legal system, but its application must always balance cultural
authenticity with the demands of constitutional rights and values.
Unique No: 504322
Assignment 2
Due 2025
,Question 1: The Nature and Concept of African Law (Customary Law)
Customary law—also known as African law—is a vital element of South Africa’s plural
legal system. It represents a body of rules that emerge from the customs, values, and
traditions of indigenous African communities and continues to adapt in response to
social transformation (Bennett, 2004). Unlike the common law, which is historically
grounded in Roman-Dutch legal principles, customary law is inseparable from the
cultural, spiritual, and social life of African societies.
The Concept of Customary Law
Customary law can broadly be understood in two forms: the “official” version and the
“living” version. The official version consists of codified or judicially recognised rules,
many of which were shaped during the colonial and apartheid eras by legislation and
court interpretations. In contrast, living customary law refers to the norms and practices
actually observed and applied within communities today. The Constitutional Court has
stressed the importance of applying the living version because it reflects genuine
community practices. In Alexkor Ltd v Richtersveld Community (2004), the Court made
it clear that living customary law is the authentic form of customary law, as opposed to
rigid codifications.
Distinctive Features of Customary Law
Several characteristics distinguish customary law from Western legal systems:
1. Communal Orientation – It is community-focused, prioritising collective welfare
over strict individual rights (Mbondenyi & Ojienda, 2013).
2. Oral Tradition – Rules are passed down orally through generations, rituals, and
storytelling rather than formal statutes or codes.
3. Holistic Nature – It integrates law with morality, religion, and cultural practices,
creating a unified worldview (Himonga & Nhlapo, 2014).
4. Flexibility – Because it evolves alongside society, it readily adapts to shifting
social and economic conditions.
, 1. Restorative Justice Orientation – Dispute resolution under customary law is
consensus-driven and aims to restore harmony in relationships, rather than
focusing solely on punishment.
Recognition in the Constitutional Era
The 1996 Constitution elevated the status of customary law by recognising it as part of
South Africa’s legal framework. Section 211(3) directs courts to apply customary law
where relevant, provided it does not conflict with the Constitution or other legislation.
Section 39(2) requires that customary law be developed in a way that advances the
values and objectives of the Bill of Rights.
South African courts have actively ensured that customary law aligns with constitutional
principles. In Bhe v Magistrate, Khayelitsha (2005), the Constitutional Court struck down
the rule of male primogeniture in succession, finding it inconsistent with the rights to
equality and dignity. In Shilubana v Nwamitwa (2009), the Court upheld a community’s
decision to appoint a woman as traditional leader, illustrating the adaptability of
customary law in the constitutional context.
Conclusion
Customary law remains distinctive because of its communal ethos, oral transmission,
adaptability, and focus on restorative justice. Its recognition in the Constitution affirms
its importance in the legal system, but its application must always balance cultural
authenticity with the demands of constitutional rights and values.
