African Customary Law Flashcards
what is customary law
A set of rules that arise from the social practices (customs) of a particular group of people, and which members of the group regard as legally obligatory.
Native Administration Act 38 of 1927
Native Commissioners Courts and Native Appeal Courts. The Act confirmed for local leaders to carry on exercising their own system in terms of civil matters (marriage, succession, etc.) BUT it had to be compatible with white authorities ideas of justice and public policy.
Evidence Amendment Act 45 of 1988
All courts mandated to take judicial notice of customary law but there was a repugnancy clause.
what is official customary law
Consists of those rules of customary law that have been written down in customary law codes, other legislation, case precedents and textbooks –> codified.
what are the pros of official customary law
Codified, easier to access and apply consistently.
what are the cons of african customary law
Inflexible and unreliable – the law cannot change and adapt so quickly so sometimes official customary law is still part of the law, but the community may no longer see that practice as legally obligatory.
ALSO written to suit colonial interest
what is living customary law
Consists of the social practices of a group of people who regard these practices as legally obligatory. The test of its validity is acceptance by the people rather than legislation –> not codified.
pros of living customary law
Alive, grows, and changes with the communities. So it is more reflective, this one corresponds more with the actual definition of customary law.
cons of living customary law
- Very difficult to apply it consistently as there is no uniformity.
- Many different living customary laws for many different ethnic groups.
3. Lack of a single authority to define the law.
4. Because it is not written down à people can manipulate and distort it to suit their interests. Distinguishing between habit and legally obligatory. - Ascertainment and proof problems.
legal pluralism
a system of law where there are 2 or more valid legal systems operating in the same place at the same time. In SA, both common law and customary are recognized as valid legal systems.
Therefore African customary law is a source of law that has equivalent status to the common law.
how do courts decide whether customary law or common law more superior
The court decides based on: the intention
and general lifestyle of the parties, as well as the circumstances of the transaction, when decided which
legal system to apply.
when can a custom be regarded as legally obligatory
- reasonable
- time of observancy
- uniformity of observancy
- certainty
Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC)
ruled that primogeniture rule of official
customary law conflicts with the BoR. They acknowledged official and living customary law.