LCP4804 Assignment 2
(COMPLETE ANSWERS)
Semester 2 2025 - DUE
September 2025
NO PLAGIARISM
[Pick the date]
[Type the company name]
,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 customary law is a dynamic, unwritten body of norms and practices that have evolved
over time and are accepted by a community as binding. It's unique because it is community-
centric, unwritten, and focused on reconciliation rather than punishment. Its principles are
derived from the communal values and history of a specific group of people, often varying
significantly from one community to another. Key features include its oral nature, flexibility, and
, its emphasis on restorative justice and social harmony. It is fundamentally different from
Western law, which is often codified, individualistic, and based on retributive justice. The
concept of Ubuntu, which emphasizes interconnectedness and humanity, is a core philosophical
underpinning of many African customary legal systems.
Ascertainment and Proof of Customary Law
As a legal researcher, here's how I'd explain to Paul, the junior counsel, how to ascertain and
prove customary law.
Ascertainment
Ascertaining customary law involves finding out what the relevant custom is and how it applies
to a given situation. This is a complex process because customary law is often unwritten and not
static.
Expert Witnesses: The most common method is to call on expert witnesses, such as
traditional leaders, elders, or legal anthropologists who have a deep understanding of the
specific customary practices.
Case Law and Precedent: Existing judicial decisions that have already ascertained and
applied the same customary rule can be a valuable source. However, this source is often
criticized for creating a rigid, "official" version of customary law that may not reflect its
current, "living" reality.
Academic and Scholarly Works: Books, articles, and research papers by legal scholars
and anthropologists can provide documented accounts of customary law, though their
accuracy must be verified.
Code of Customary Law: In some jurisdictions, certain customary laws have been
codified, which simplifies the process of ascertainment.
Proof
Once ascertained, customary law must be proven to the satisfaction of the court. This is distinct
from proving facts in a case. It involves demonstrating that the ascertained law is a valid and
binding rule within the community.
Judicial Notice: Under certain circumstances, a court may take judicial notice of a well-
known customary rule, meaning it doesn't need to be formally proven. This is rare and
typically applies to customs that are universally accepted and consistently applied.
Evidence: The most reliable way to prove customary law is through evidence presented
in court. This evidence can include the testimony of expert witnesses, as mentioned
above. The court will assess the credibility and expertise of the witness to determine the
weight of their evidence.
(COMPLETE ANSWERS)
Semester 2 2025 - DUE
September 2025
NO PLAGIARISM
[Pick the date]
[Type the company name]
,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 customary law is a dynamic, unwritten body of norms and practices that have evolved
over time and are accepted by a community as binding. It's unique because it is community-
centric, unwritten, and focused on reconciliation rather than punishment. Its principles are
derived from the communal values and history of a specific group of people, often varying
significantly from one community to another. Key features include its oral nature, flexibility, and
, its emphasis on restorative justice and social harmony. It is fundamentally different from
Western law, which is often codified, individualistic, and based on retributive justice. The
concept of Ubuntu, which emphasizes interconnectedness and humanity, is a core philosophical
underpinning of many African customary legal systems.
Ascertainment and Proof of Customary Law
As a legal researcher, here's how I'd explain to Paul, the junior counsel, how to ascertain and
prove customary law.
Ascertainment
Ascertaining customary law involves finding out what the relevant custom is and how it applies
to a given situation. This is a complex process because customary law is often unwritten and not
static.
Expert Witnesses: The most common method is to call on expert witnesses, such as
traditional leaders, elders, or legal anthropologists who have a deep understanding of the
specific customary practices.
Case Law and Precedent: Existing judicial decisions that have already ascertained and
applied the same customary rule can be a valuable source. However, this source is often
criticized for creating a rigid, "official" version of customary law that may not reflect its
current, "living" reality.
Academic and Scholarly Works: Books, articles, and research papers by legal scholars
and anthropologists can provide documented accounts of customary law, though their
accuracy must be verified.
Code of Customary Law: In some jurisdictions, certain customary laws have been
codified, which simplifies the process of ascertainment.
Proof
Once ascertained, customary law must be proven to the satisfaction of the court. This is distinct
from proving facts in a case. It involves demonstrating that the ascertained law is a valid and
binding rule within the community.
Judicial Notice: Under certain circumstances, a court may take judicial notice of a well-
known customary rule, meaning it doesn't need to be formally proven. This is rare and
typically applies to customs that are universally accepted and consistently applied.
Evidence: The most reliable way to prove customary law is through evidence presented
in court. This evidence can include the testimony of expert witnesses, as mentioned
above. The court will assess the credibility and expertise of the witness to determine the
weight of their evidence.
