Customary Law

Question 1

1. What is customary law?

Answer 1

• these are social practices which people regard as obligatory or legally binding because they believe it is the rule of law.
• there are two components (1) Believe that something must be done and (2) doing what must be done because it is legally binding

Question 2

1.1 Official Customary Law

Answer 2

• consists of rules of customary law that are written down in codes, cases, precedent and legislation.
• it is written down and thus less flexible in adapting.
• they are only revised occasionally and may not reflect the social practices of the community.
• there is a possibility it was not reflected accurately.

Question 3

1.2 Living Customary Law

Answer 3

• regarded as the true customary law
• also known as ‘unofficial customary law’ , ‘folk law’ and ‘peoples law’.
• the flexible and ever changing cl that reflects the socia practices of the community based on social, political and economical developments.

Question 4

1.3 Legal Pluralism

Answer 4

• exists where there two valid legal systems which exists at the same time at the same place. When there are two laws dealing with the same issue.
• common law and customary law are both valid systems thus LP is part of our South African system.
• when an issue is brought to court, the court must determine which law is applicable by determining the (1) Intention of the parties, (2) Lifestyle of the parties, (3) The nature and (4) Circumstance of the issue.

Question 5

2. Customary Law and the Constitution

Answer 5

• s30
• s31
• s211

Question 6

2.2 What must the court apply and when is it applicable?

Answer 6

• courts have no choice to apply the law because it is compulsory.
• it is applicable after the court has determined the nature, lifestyle, nature and circumstance of the parties and issue.