Chapter 2: The nature and concept of customary law

Question 1

What are the two forms of cusotmary law in South Africa?

Answer 1

• Official Customary Law
• Living Customary Law

Question 2

Explain the Bhe v Magistrate, Khayelitsha case

Answer 2

It recognised Living Customary Law.
However, regarding administration of intestate estates, continues to adhere to Official Customary Law.

Question 3

Explain the Mabena v Letsoala case

Answer 3

• Court held there were two forms of customary law: Official and Living Customary law

Question 4

What does ‘Patrilineage’ mean?

Answer 4

Group of persons related to a person by blood through the male line.

Question 5

What does ‘Matrilineage’ mean?

Answer 5

Group of person related to a person by blood through the female line.

Question 6

What does ‘Hosi’ mean?

Answer 6

Senior traditional leader among the Valoyi.

Question 7

What does Living Customary Law mean?

Answer 7

• Consists of the actual practices or customs of the indigenous community whose customary law is under consideration.
• Unwritten oral traditions
• Oral sources
• Must be custom and acceptance
• Can be codified
• Unwritten customary practices that regulate the day-to-day life of people.

Question 8

What is a custom?

Answer 8

Repetitive behaviour of a group of people or society.
Forms part of the general standard of living.

Question 9

What is acceptance?

Answer 9

The community makes it law by giving it authority, which gives it content.
A custoamary law rule may be due by coercion/force.

Question 10

Explain what happend in the Van Breda v Jacobs case?

Answer 10

Four tests for a custom to have authority of law
1. Long established
2. Reasonable
3. Uniformly observed
4. Certain

Question 11

Explain what happend in the Shilubana case?

Answer 11

Under common law for a case to be valid, it must be an immemorial practice.(Useful accessory)

Question 12

In terms of Living Customary Law as an evolving system of law, what did the Shilubana case confirm?

Answer 12

CC held that living customary law is adaptive by its very nature.

Question 13

In terms of Living Customary Law as an evolving system of law, what did the Bhe case confirm?

Answer 13

Affirmed the dynamic and evoloving nature of living customary law.

Question 14

In terms of Living Customary Law as an evolving system of law, what did the Alexkor case confirm?

Answer 14

CC confirmed living customary law as a sytem of law that has evolved and developed to meet the changing needs of the community.

Question 15

What is Official Customary Law?

Answer 15

The law applied by the courts and other state institutions.
Laws that are written.
Sources include: Textbooks, legislation and court cases.

Question 16

What is Mixed Customary Law?

Answer 16

Combination or co-existence of both Common law and Customary law.

Question 17

In terms of reconciling Customary law with fundamental rights, how does Section 9 and Section 10 of the Constitution play a role in it?

Answer 17

• Section 9 guarantees equality of treatment before the law.
• Section 10 provides that everyone has inherent dignity and the right to havve their dignity respected and protected.

Question 18

In terms of reconciling Customary law with fundamental rights, how does Section 39(2) of the Constitution play a role in it?

Answer 18

When customary law is in conflict with the Bill of Rights, S39(2) enjoins courts to promote the spirit, purport and objects of the Bill of Rights.