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LCP4804 Assignment 2
(COMPLETE ANSWERS) Semester
2 2025 - DUE September 2025
NO PLAGIARISM
[Pick the date]
[Type the abstract of the document here. The abstract is typically a short summary of the contents of
the document. Type the abstract of the document here. The abstract is typically a short summary of
the contents of the document.]
,Exam (elaborations)
LCP4804 Assignment 2 (COMPLETE
ANSWERS) Semester 2 2025 - DUE
September 2025
Course
Advanced Indigenous Law (LCP4804)
Institution
University Of South Africa (Unisa)
Book
African Customary Law in South Africa
LCP4804 Assignment 2 (COMPLETE ANSWERS) Semester 2 2025 - DUE
September 2025; 100% TRUSTED Complete, trusted solutions and
explanations. Ensure your success with us....
African Law (Customary Law) is unique in many respects, and it is necessary
to understand it fully, thus in this regard, discuss the nature and concept of
African Law (Customary Law). Paul is a junior counsel who has been briefed
on a matter concerning the ascertainment and proof of customary law. He
consults you, a legal researcher in the field, and requests you to explain how
customary law can be ascertained and proven. (50) Thabiso is preparing for
a matter involving a conflict between customary law and common law, and
he requires your expertise on the tools he can utilise in order to resolve this
issue. As a point of clarification, you are informed that conflict of laws refers
to choosing the appropriate law. Discuss how such a conflict of laws can be
resolved. (50) Discuss some of the observations or criticisms that have been
levelled against the court’s decision in Mthembu v Letsela and Another 2000
(3) SA 867 (SCA) in deciding on the questions of the male primogeniture rule
and illegitimacy under customary law? (50) Potgieter is an attorney who
needs to ascertain and proof customary law? In this regard discuss the tools
which will assist Potgieter to ascertain and proof African Law (Customary
Law). [50] With reference to decided cases, critically discuss the differences
between living customary law and official customary law? (50)
The Nature and Concept of African Law (Customary Law)
African Law, or Customary Law, is a unique and dynamic legal system rooted in the traditions
and practices of indigenous African communities. Unlike common or civil law systems, which
are typically codified in statutes and case law, customary law is largely unwritten, flexible, and
communitarian in nature. It's a body of norms and rules passed down through generations, often
, through oral tradition, and is a reflection of the social, cultural, and spiritual values of the
community.
A key characteristic of African Customary Law is its emphasis on reconciliation and
restoration rather than punishment. The goal is to repair social relationships and restore
harmony within the community, rather than to merely impose a penalty on the wrongdoer. This
is a significant departure from Western legal systems, which often prioritize retributive justice.
The law is also inherently communitarian, meaning it focuses on the rights and duties of the
collective, not just the individual. Decisions are often reached through consensus in community
forums, with elders or traditional leaders playing a central role.
Another critical aspect is the distinction between "living" customary law and "official"
customary law. The living customary law is the law as it is actually practiced by the people in
their daily lives. It is constantly evolving and adapting to social changes. Official customary law,
on the other hand, is the version of customary law found in old codes, statutes, and judicial
precedents. This official version can be static and may not accurately reflect the current practices
of the people. This distinction is crucial, as the courts must strive to apply the living customary
law to uphold the constitutional values of dignity and equality.
Ascertainment and Proof of Customary Law
As a legal researcher, here is a detailed explanation for Paul on how to ascertain and prove
customary law. The process can be challenging because of its unwritten nature.
The primary tool for ascertaining and proving customary law is evidence. Customary law must
be proven in court just like any other fact. This is the general rule, and the burden of proof rests
on the party seeking to rely on the customary law rule. The main ways to do this are:
1. Expert Witnesses: This is the most common method. An expert witness, such as a
traditional leader, a respected elder, or an academic in the field of customary law, can
testify on the content and application of the relevant customary law rule. The court will
assess the expert's credibility and expertise.
2. Affidavits: A party can submit affidavits from members of the community or experts
who can attest to the existence and content of the customary law.
3. Judicial Notice: Under the Law of Evidence Amendment Act 45 of 1988, a court may
take judicial notice of customary law if it can be readily and with sufficient certainty be
ascertained. This means if the rule is well-established, well-known, and not in dispute,
the court does not need formal proof. For example, in Shilubana v Nwamitwa, the
Constitutional Court took judicial notice of the fact that traditional leadership practices
have evolved to accommodate gender equality.
4. Codified Law and Legal Writings: While official customary law is often criticized, it
can still be used as a starting point. This includes colonial-era codes, statutes, and
academic writings or anthropological studies that have documented customary practices.
However, these sources must be viewed with caution, as they may not reflect the living
LCP4804 Assignment 2
(COMPLETE ANSWERS) Semester
2 2025 - DUE September 2025
NO PLAGIARISM
[Pick the date]
[Type the abstract of the document here. The abstract is typically a short summary of the contents of
the document. Type the abstract of the document here. The abstract is typically a short summary of
the contents of the document.]
,Exam (elaborations)
LCP4804 Assignment 2 (COMPLETE
ANSWERS) Semester 2 2025 - DUE
September 2025
Course
Advanced Indigenous Law (LCP4804)
Institution
University Of South Africa (Unisa)
Book
African Customary Law in South Africa
LCP4804 Assignment 2 (COMPLETE ANSWERS) Semester 2 2025 - DUE
September 2025; 100% TRUSTED Complete, trusted solutions and
explanations. Ensure your success with us....
African Law (Customary Law) is unique in many respects, and it is necessary
to understand it fully, thus in this regard, discuss the nature and concept of
African Law (Customary Law). Paul is a junior counsel who has been briefed
on a matter concerning the ascertainment and proof of customary law. He
consults you, a legal researcher in the field, and requests you to explain how
customary law can be ascertained and proven. (50) Thabiso is preparing for
a matter involving a conflict between customary law and common law, and
he requires your expertise on the tools he can utilise in order to resolve this
issue. As a point of clarification, you are informed that conflict of laws refers
to choosing the appropriate law. Discuss how such a conflict of laws can be
resolved. (50) Discuss some of the observations or criticisms that have been
levelled against the court’s decision in Mthembu v Letsela and Another 2000
(3) SA 867 (SCA) in deciding on the questions of the male primogeniture rule
and illegitimacy under customary law? (50) Potgieter is an attorney who
needs to ascertain and proof customary law? In this regard discuss the tools
which will assist Potgieter to ascertain and proof African Law (Customary
Law). [50] With reference to decided cases, critically discuss the differences
between living customary law and official customary law? (50)
The Nature and Concept of African Law (Customary Law)
African Law, or Customary Law, is a unique and dynamic legal system rooted in the traditions
and practices of indigenous African communities. Unlike common or civil law systems, which
are typically codified in statutes and case law, customary law is largely unwritten, flexible, and
communitarian in nature. It's a body of norms and rules passed down through generations, often
, through oral tradition, and is a reflection of the social, cultural, and spiritual values of the
community.
A key characteristic of African Customary Law is its emphasis on reconciliation and
restoration rather than punishment. The goal is to repair social relationships and restore
harmony within the community, rather than to merely impose a penalty on the wrongdoer. This
is a significant departure from Western legal systems, which often prioritize retributive justice.
The law is also inherently communitarian, meaning it focuses on the rights and duties of the
collective, not just the individual. Decisions are often reached through consensus in community
forums, with elders or traditional leaders playing a central role.
Another critical aspect is the distinction between "living" customary law and "official"
customary law. The living customary law is the law as it is actually practiced by the people in
their daily lives. It is constantly evolving and adapting to social changes. Official customary law,
on the other hand, is the version of customary law found in old codes, statutes, and judicial
precedents. This official version can be static and may not accurately reflect the current practices
of the people. This distinction is crucial, as the courts must strive to apply the living customary
law to uphold the constitutional values of dignity and equality.
Ascertainment and Proof of Customary Law
As a legal researcher, here is a detailed explanation for Paul on how to ascertain and prove
customary law. The process can be challenging because of its unwritten nature.
The primary tool for ascertaining and proving customary law is evidence. Customary law must
be proven in court just like any other fact. This is the general rule, and the burden of proof rests
on the party seeking to rely on the customary law rule. The main ways to do this are:
1. Expert Witnesses: This is the most common method. An expert witness, such as a
traditional leader, a respected elder, or an academic in the field of customary law, can
testify on the content and application of the relevant customary law rule. The court will
assess the expert's credibility and expertise.
2. Affidavits: A party can submit affidavits from members of the community or experts
who can attest to the existence and content of the customary law.
3. Judicial Notice: Under the Law of Evidence Amendment Act 45 of 1988, a court may
take judicial notice of customary law if it can be readily and with sufficient certainty be
ascertained. This means if the rule is well-established, well-known, and not in dispute,
the court does not need formal proof. For example, in Shilubana v Nwamitwa, the
Constitutional Court took judicial notice of the fact that traditional leadership practices
have evolved to accommodate gender equality.
4. Codified Law and Legal Writings: While official customary law is often criticized, it
can still be used as a starting point. This includes colonial-era codes, statutes, and
academic writings or anthropological studies that have documented customary practices.
However, these sources must be viewed with caution, as they may not reflect the living
