PREPARED BY DIAGNOSTIC RESEARCH AND LAW ACADEMY (Contact/whatsup:
076 048 3478)
__________________________________________________________________________________
ADVANCED INDIGENOUS LAW 4804 (LCP4804)
Name:
Surname:
Student number:
TAKE HOME EXAMINATION (OCTOBER/NOVEMBER 2021)(SUPERSEMESTER)
DUE DATE: 18 OCTOBER 2021
DEPARTMENT OF PUBLIC, CONSTITUTIONAL AND INTERNATIONAL LAW
UNIVERTY OF SOUTH AFRICA
UNIQUE NUMBERS:
OCTOBER 2021
1
, QUESTION ONE
Critically discuss the differences between living customary law and official
Customary law
Living Customary Law
A living customary law is treated as a respectable component of the legal system that
functions like any other, and has its own unique normative value system, capable of
developing, subject to the Constitution.1
The following quotation shows you how to describe post-apartheid customary law:
Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC)“It is well established
that customary law is a vital component of our constitutional system, recognised and
protected by the constitution, while ultimately subject to its terms. The true nature of
customary law is as a living body of law, active and dynamic, with an inherent capacity
to evolve in keeping with the changing lives of the people whom it governs.”2
‘Our history, however, is replete with instances in which customary law was not given
the necessary space to evolve but was instead fossilised and “stoned walled” through
codification, which distorted its mutable nature and subverted its operation.’3
The Constitution is designed to reserve this trend and to facilitate the preservation and
evolution of customary law as a legal system that conforms with its provisions. On this
basis the court held that the traditional authority cannot deny constitutional
rights/freedoms to members of the community who wish to enjoy/exercise them.
1
Constitution of the Republic of South Africa,1996.
2
Pilane and Another v Pilane and Others 2013 (4) BCLR (CC).
3
Ndima DD Advanced indigenous law: only study guide for LCP4804 (UNISA Pretoria 2018).
2
076 048 3478)
__________________________________________________________________________________
ADVANCED INDIGENOUS LAW 4804 (LCP4804)
Name:
Surname:
Student number:
TAKE HOME EXAMINATION (OCTOBER/NOVEMBER 2021)(SUPERSEMESTER)
DUE DATE: 18 OCTOBER 2021
DEPARTMENT OF PUBLIC, CONSTITUTIONAL AND INTERNATIONAL LAW
UNIVERTY OF SOUTH AFRICA
UNIQUE NUMBERS:
OCTOBER 2021
1
, QUESTION ONE
Critically discuss the differences between living customary law and official
Customary law
Living Customary Law
A living customary law is treated as a respectable component of the legal system that
functions like any other, and has its own unique normative value system, capable of
developing, subject to the Constitution.1
The following quotation shows you how to describe post-apartheid customary law:
Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC)“It is well established
that customary law is a vital component of our constitutional system, recognised and
protected by the constitution, while ultimately subject to its terms. The true nature of
customary law is as a living body of law, active and dynamic, with an inherent capacity
to evolve in keeping with the changing lives of the people whom it governs.”2
‘Our history, however, is replete with instances in which customary law was not given
the necessary space to evolve but was instead fossilised and “stoned walled” through
codification, which distorted its mutable nature and subverted its operation.’3
The Constitution is designed to reserve this trend and to facilitate the preservation and
evolution of customary law as a legal system that conforms with its provisions. On this
basis the court held that the traditional authority cannot deny constitutional
rights/freedoms to members of the community who wish to enjoy/exercise them.
1
Constitution of the Republic of South Africa,1996.
2
Pilane and Another v Pilane and Others 2013 (4) BCLR (CC).
3
Ndima DD Advanced indigenous law: only study guide for LCP4804 (UNISA Pretoria 2018).
2
