FACULTY OF LAW

DEPARTMENT OF PRIVATE LAW

CUSTOMARY LAW 311 (CUS 311)

2023 MODULE INFORMATION AND COURSE OUTLINE

Dear Student,
Welcome to African Customary Law 311 (CUS 311). This outline contains important
information about the module content, resources, assignments, as well as the general
administrative information about this module. You are urged to read it carefully and to
keep it at hand when working through the study material, doing assignments,
preparing for the examination, and addressing questions to your lecturers. Please
familiarise yourself with it to ensure you contact the right people always. We hope that
you will enjoy this module and wish you all the best!

1. General Information
CUS 311 falls under the Department of Private Law. The Chairperson of the
Department is Professor SM Viljoen, with email address [email protected], Mrs M
Nelson is the Module Administrator (Room 220, Tel. 021 959 3314,
[email protected])

The module is presented by: Prof A Diala [email protected], and Prof L. Mwambene
(Module coordinator; Room 218, Tel. 021 959 3284, [email protected]) and
guest lecturers.

2. Module Outcomes

On completion of this module, students should be able to:

a. Identify the foundational values of the Constitution, the Bill of Rights and the
customary law of South Africa;

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b. Discuss the impact of the Bill of Rights on the application of customary law norms
and practices;
c. Identify provisions in the Bill of Rights that affect customary law rules and practices
in the light of social transformation;
d. Compare and contrast the norms and practices between customary law and
constitutional rights;
e. Analyse legal problems pertaining to the application of Customary law in South
Africa’s constitutional democracy and apply constitutional principles and provisions
to solve those problems [Transformative Constitutionalism];
f. Identify and analyse emerging constitutional developments that affect customary
rules that regulate women, children, traditional leadership, marriage, succession,
and property (land) rights [Africanisation/Decolonisation].

3. Teaching and Learning activities, notional hours

By successfully completing Customary Law 311, a student will earn 10 credits towards
the LL.B. degree, representing 100 ‘notional learning hours.’ A ‘learning hour’ refers
to the amount of learning an ‘reasonable student’ can be expected to complete in an
hour. The course will be divided into a range of weekly seminars dealing with separate
topics and themes as outlined in the study guide below. These seminars will be used
to convey module content, but are also expressly set up for the purpose of class
discussion, as this aspect is vital to attain a deeper understanding of Customary Law,
and will constitute 26 learning hours.

The remaining 74 learning hours (making up the total of 100 learning hours) will
therefore consist of preparation for seminars, self-study, preparation for assessment
and completing assessments. For example, a student in CUS311 should spend at
least 14 hours preparing for each lecture by reading the material to be covered in that
lecture and conducting designated self-study. A student should devote another 30
hours preparing for test and assignment, and 30 hours preparing for the examination.
The 100 notional learning hours for Customary Law 311 should therefore comprise the
following:

Face to face classes (live lectures): 26 hours

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 Preparing for lectures and conducting self-study: 14 hours

Preparing for and writing test and assignment: 30 hours

Preparing for and writing examinations: 30 hours

The above is only a rough guide. Each student should allocate learning time according
to his/her own needs (for example, by spending more time preparing for lectures one
week and more on studying for a test the next week). Moreover, students can use part
of their learning time to consult with their lecturers about module-related questions or
issues. Students are encouraged to organise voluntarily into small study groups
(ideally not more than 6 students per group) to discuss the subject-matter of the
module and jointly prepare for tests and the examination. Therefore, part of a student’s
preparation for lectures, tests and the examination as well as conducting designated
self-study should be spent in discussing work with the other students in a study group.

Note: to the extent that a student does not attend lectures, or engage in the necessary
preparation and self-study, such a student deprives him/herself of the learning time
required to complete the module successfully.

4. UWC Faculty of Law Charter of Graduate Attributes and Attitudes

UWC LLB graduates will be critical thinkers, skilled communicators and

responsible and proficient citizens with a profound understanding of
the role of the Constitution in transforming the law and society, as well
as a keen understanding of their roles and ethical duties in realising
this transformation.
UWC LLB Graduates will:
1. Have a comprehensive and sound knowledge and
understanding of South African and relevant international and
African law values, with a keen understanding of the evolving nature
of law, the transformative role of the SA Constitution in evolving law
and society, and a keen awareness of our African context.
2. Be equipped with:

a. the skills to conduct research through identifying,

evaluating, selecting and analysing relevant information
sources using multimodal literacies in order to produce
appropriately referenced and competently argued texts.
b. the numeracy skills required to perform basic numeracy

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 tasks related to the fields / practice of law.
c. the entrepreneurship skills required to succeed in a world of
unemployment and poverty, including the ability to transform
creative ideas into action and identify practical applications for
academic skills and knowledge in an entrepreneurial
environment.
d. technological skills required to adapt and thrive within a
complex, evolving technological society including critical
engagement with the 4IR and 5IR including AI, robots,
machine learning and the internet of things.
3. Be critical and innovative thinkers and problem solvers, with
the ability to evaluate and analyse legal texts and scenarios,
identify problems, question assumptions, challenge current
positions, make critical judgments and identify potential different
approaches and solutions to problems.
4. Be able to work independently and in collaboration with others
within and across disciplinary boundaries, integrating individual
efforts into collaborative efforts to solve legal problems and address
the needs of diverse communities.
5. Be responsible members of their legal, social and natural
environments, with the ability to conduct themselves ethically and
with integrity and accountability in their relations with these different
environments and an acute understanding of their roles and
responsibilities in a transformative society.
6. Have effective communication skills, being proficient in reading,
writing, listening, comprehension and speaking in a professional
capacity, being able to communicate via multimodal media tools
and engage audiences across professional, cultural and language
divides.
7. Have a life-long learning attitude or stance towards themselves,
committed to and capable of continuous collaborative and individual
learning and critical reflection throughout their lives and careers.
8. Be equipped to maintain work-life balance, having the knowledge
and skills to be able to create a balance between their professional
and personal lives so that they can live a fulfilling life and cope with
the challenges and complexities of a changing world.
9. Will have participated in work-integrated learning, having the
ability to link academic knowledge to workplace knowledge to
expedite the transferability of knowledge and skills across contexts

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 5. Graduate Attributes, Learning Outcomes and Assessment

AFRICAN CUSTOMARY LAW

Learning Outcome Teaching & Learning Activity Assessment UWC LLB Graduate Attributes

On completion of this module Self-

Lecture Tutorial Assignment Test Examination 1 2 3 4 5 6 7
students should be able to: study

Understand and communicate

the general principles of       
customary law

Identify, interpret and critique the

         
foundational values of cust. Law

Critique the relationship between

customary law and the Bill of        
Rights

Critically evaluate the status of

       
traditional leadership in SA

Demonstrate understanding of
marriage and succession under       
customary law and legislation

Explain the nature of property

        
rights under customary law

Project the future of customary

      
law in context of legal pluralism

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 6. Lecture periods
Lectures will be on Tuesdays and Wednesdays:
Group 1
Tuesday, Period 3, 10:20am – 11:05am, venue Prefab OD
Wednesdays, 7, 14: 55pm- 15:40pm, venue GH1

Group 2
Tuesday, Period 4, 11:15am – 12:00pm, venue: Prefab OD
Wednesday, Period 8, 15:50pm-16:35pm, venue GH1
Please check announcements on iKamva in case of any changes.

7. Consultation hours
This will be posted on iKamva.

8. Assessment information
The continuous assessment mark for CUS 311 will be a mark obtained in respect of one
(1) compulsory term test and one (1) research-based assignment. The details are
explained below.

Compulsory Test
• One compulsory test is scheduled for the semester. It will be a sit-down closed book
test.
• A student who missed the compulsory test may write a special test at the end of the
semester.
• NB: The scope of the compulsory test and the special test will not be the same.

The term test will contribute 50% of your continuous assessment mark.
The tentative dates allocated for these tests are:
Compulsory Term Test 1: 15 March 2023 (Duration to be advised)
Special/Sick test: 13 May 2023 (Duration to be advised)

Please always check announcements on IKAMVA for changes.

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Research Assignment
One (1) compulsory research-based assignment will be written. The assignment
contributes 50% of your continuous assessment mark.
The date for the submission of the assignment is 5 May 2023.

(i) Assignment question

“On 6 September 2021, the South African Law Reform Commission (SALRC) announced
the availability for general information and comment of its Project 100E: Issue Paper 41
dealing with the review of matrimonial property law. Respondents were requested to
submit comments to the SALRC by 30 November 2021. The Issue Paper 41 is available
on the Internet at the following site”:

Link to Issue Paper 41

In view of the above development, you are requested to submit your critical comments
regarding aspects of customary law marriages, particularly as they relate to the
Recognition of Customary Marriages Amendment Act and case law.

NB:

(ii) Rules for assignment

1. Your answer should be no less than 3000 and no more than 4000 words!
2. Every assignment must be typed, have footnotes and a bibliography.
3. Every assignment must attach a duly completed and signed plagiarism declaration to
the front cover. No assignment will be marked if this declaration is not attached.
4. Every assignment must have a cover page, specifying your name, number, and the
subject.
5. This is an individual assignment. For assessment elements, see the marking
rubric that will be posted on e-teaching for detailed requirements (the focus is on your
research and writing skills).
6. Familiarise yourselves with the rules on assignments as set out in the Student
Handbook.

Assessment criteria and rubric

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The assessment rubric for your tests will be posted on iKamva. It will reflect the graduate
attributes explained here. Your continuous assessment mark is calculated in the following
ratio:
Test score: 50%
Assignment: 50%
Total mark: 100%

Final mark
Your final mark is calculated in the ratio 50% examination mark and 50% continuous
assessment.

Re-evaluation
You are referred to Rule 5.2.7 of the University Calendar for rules regarding Special
Assessments.

9. Prescribed Readings
Himonga C et al African Customary Law in South Africa: Post – Apartheid and Living Law
Perspectives, Oxford University Press, 2014.

Diala A.C. ‘Legal pluralism and the future of indigenous family laws in Africa’ (2021) 35(1)
International Journal of Law, Policy and the Family pp. 1-17.

Bhe and Others v Magistrate Khayelitsha and Others; Shibi v Sithole; SAHRC v President
RSA 2005 (1) BCLR 1 (CC)

Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC)

Mabena v Letsoalo 1998 (2) SA 1068 (T)

Mabuza v Mbatha 2003 (4) SA 218 (C).

MM v MN 2013 (4) SA 415 (CC) para 43-61, 110-132.

Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC.

Ramuhovhi v President of the Republic of South Africa 2018 (2) SA 1 (CC).

NB: Additional prescribed cases, as well as applicable legislation will be provided

under each topic.

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 10. Recommended readings

Jan Christoffel Bekker, Christa Rautenbach, Nazeem Muhammad Ismail Goolam (eds.)
Introduction to Legal Pluralism in South Africa, Durban, Lexis Nexis, 6th edition 2021

Bennett TW Customary Law in South Africa Cape Town Juta 2004.

Cotton S and Diala AC ‘Silences in marriage laws in Commonwealth Africa: Women’s

position in polygynous customary marriages’ (2018) 32(1) Speculum Juris 18-32.

Diala AC ‘The concept of living customary law: A critique’ (2017) 49(2) Journal of Legal
Pluralism and Unofficial Law 143-165

Diala AC and Kangwa B ‘Rethinking the interface between customary law and
constitutionalism in sub-Saharan Africa’ (2019) 52(2) De Jure pp. 189-206.

Diala AC ‘Neoliberal influences on legal pluralist marriage reforms in Africa’ (2022) 9(2)
Journal of International and Comparative Law pp. 81-108.

Himonga, CN and Bosch, C ‘The application of African Customary Law under the
Constitution of South Africa: problems solved or just beginning’ (2000) 117 SA Law
Journal pp. 306-341.

Mwambene, L. and Mqidlana, R.H. ‘Should South Africa criminalise Ukuthwala leading to
forced marriages and child marriages?’ (2021) 24(1) Potchefstroom Electronic Law
Journal pp. 1-27.

Mwambene L ‘What is the future of polygyny (polygamy) in Africa’ (2017) PER/PELJ 1-

33.

Mwambene, L and Kruuse, H ‘Unfulfilled Promises? The implementation of the

Recognition of Customary Marriages Act in South Africa’ (2015) 29(3) International
Journal of Law, Policy and the Family 237-259.

Mwambene, L and Sloth-Nielsen, J ‘Talking the talk and walking the walk: How can the
development of customary law be understood?’ (2010) 28(2) Law in Context Journal pp.
27-46.

Olivier NJJ and Others (eds) Indigenous Law LAWSA Volume 32 Durban LexisNexis
Butterworths 2009 (2nd ed).

Ojogbo, S.E. and Edu, O.K. ‘Comparing maintenance and property rights in marriage
under customary law and statutory law in Africa’ (2022) Oxford University Commonwealth
Law Journal pp. 1-24.

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Osman, F ‘The ascertainment of living customary law: An analysis of the South African
Constitutional Court’s jurisprudence’ (2019) 51(1) Journal of Legal Pluralism pp. 98-113

Osman, F ‘The Recognition of Customary Marriages Amendment Bill: Much ado about
nothing?’ 2020 SALJ 389

Rautenbach, C ‘South African common and customary law on intestate succession: A

question of harmonisation, integration or abolition’ (2008) 12(1) Electronic Journal of
Comparative Law pp. 119-132.

Sezgin, Y. ‘Undignified Jurispathy: Muslim Family Law at Ghanaian Courts’ (2022) Law
& Social Inquiry, pp. 1-31.

Soyapi CB ‘Regulating Traditional Justice in South Africa: A comparative analysis of

selected aspects of the Traditional Courts Bill, (2008) 2014 PER/PELJ 42.

Van der Waal ‘Formal and informal dispute resolution in Limpopo Province, South Africa’
(2004) 27 Anthropology Southern Africa 111-121.

11. Communication:
You are required to consult with your lecturer/HOD without any delay:
(i) if you experience any problem (personal or otherwise) that has an impact
on your studies or your ability to write a test or examination; or
(ii) if you feel that you are unable to cope with the work for whatever reason.

The sooner we become aware of your problem, the better our ability to be of assistance.
The university offers various student support services, including a Student Counselling
Centre, for students, who, inter alia, feel that they cannot cope with their studies.

The contact details of these services are:

(i) Counselling (study skills, time management etc.) 021 959 2299;
(ii) The Writing Centre (skills around writing essays etc.) 021 959 3919; a
(iii) The Multimedia Centre (slide shows on essay writing, level 4 of the library) 021
959 3016.
(iv) Disability unit 021 3128/3586/2770.
(v) Psychological support 021 959 9481.
(vi) Gender Equity Unit (gender issues, sexuality etc.) 021 9592813.

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 12. Digital etiquette for students
Please start your e-mail by greeting the person you are writing to: Dear Prof X (surname),
or Dear Dr Y (surname). Emails should be concluded respectfully with the name of the
sender, for example: Regards Babalwa, or best wishes John Doe

Please always use a respectful tone when engaging with your lecturer, even though you
may be tired or frustrated about something.

Digital etiquette for students extends beyond the virtual classroom. Just because it is
possible to contact your lecturer, teaching assistant or fellow students at midnight on a
Tuesday, doesn’t mean that you should. If no guidance is given, stick to reasonable hours
of contacting them from roughly 8AM – 6PM, and don’t expect an immediate response.
You should receive a response within two working days.

When it comes to contact with your fellow students, whom you may need to collaborate
with, remember that everyone has their own studying style. Some may be up at midnight
on a Tuesday, whilst others might find messages at that time disruptive, so take a moment
to gauge that before messaging/emailing them and stick to more reasonable hours in the
meantime.

Before contacting anyone for an answer to a question, try to look for it yourself. In a
traditional classroom setting it can be easy to just raise your hand or turn to the person
next to you and ask a question, but at university and in an online format especially, it’s
worthwhile trying to answer your own questions. This can save everyone time and this
develops your independent thinking and learning skills.

Adapted from: https://www.routledge.com/blog/article/5-tips-for-improving-your-digital-

etiquette

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 UNIVERSITY OF THE WESTERN CAPE
DEPARTMENT OF PRIVATE LAW
CUSTOMARY LAW 311 (CUS 311)
2023 STUDY GUIDE

Anticipated learning outcomes per topic

This module is structured to encourage creativity, critical thinking, independence and

collaborative learning. In line with the UWC Graduate Attributes, you are expected to:

1. Describe and communicate the general principles of African customary law to

solve factual problems related to the nature of indigenous laws in South Africa.
2. Identify, interpret and critique the foundational values of African customary law.
3. Critique the basis of, and validity of African customary law.
4. Using factual situations and case law, critique the relationship between customary
law and the Bill of Rights, especially the judicial approach to this relationship.
5. Critically evaluate the status of traditional leadership in South Africa.
6. Demonstrate understanding of marriage and succession under customary law and
legislation, especially the status of vulnerable groups like women and children.
7. Explain the nature of property rights, especially land rights under customary law.
8. Project the future of African customary law in the context of legal pluralism.

Module Themes
This module is taught within the broader context of the South African legal framework.
For this reason, each of the following themes will be addressed throughout the course.
1. Transformative constitutionalism: Weeks 3 to 11 will address issues relating to
equality and discrimination in the areas of customary rules and practices and the
legal framework.
2. Decolonisation and Africanisation: Weeks 3 to 11 will address the decolonization
and Africanisation of customary rules of marriages, succession, traditional
leadership, as well as contracts, insurance and legal framework.

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Module overview (topics to be covered)
Week 1: Introduction: definition of concepts; nature and sources of customary law.
Week 2: Foundational values of customary law
Week 3: Historical recognition and application of customary law in South Africa.
Week 4: Relationship between customary law and the Bill of Rights.
Weeks 5 & 6: Customary marriage, including delicts, statutory and case law.
Week 7: Customary law of property, including land.
Weeks 8 & 9: Succession and inheritance, including statutory and case law.
Weeks 10 & 11: Traditional leaders and courts; and the role of statutory and case law.
Week 12: Contracts under customary law.

Week 1: Introduction, definition of concepts and the nature and sources of

customary law in South Africa
In this study unit, students are exposed to certain basic legal principles and concepts
that play an important role in understandings of customary law and its application in
contemporary society. Here, students will be exposed to the nature, sources, and proof
of customary law in South Africa. At the end of this week, they should be able to project
the future of customary law.
Outline:
 Definitions and conceptualisation of African customary law
 Differences between indigenous laws and customary law
 Characteristics of customary law
 Sources, ascertainment, and proof of customary law.
 Judicial guidelines and principles for the ascertainment of African customary law.
 Judicial approach to choosing different versions of customary law.
 The influence of expert evidence, oral evidence, precedents and legal texts.

Week 2: Foundational values of customary law

In this week, students are introduced to the core values of African customary law in
inheritance, marriage, commerce, and traditional leadership. These values are notably

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Ubuntu, fair trade, preservation of the ancestral home, family involvement in marriage,
and duty of care owed by family members. Students are expected to understand the
difference between indigenous African laws and customary law.
Outline:
- Illumination of the social settings in which indigenous laws emerged
- Examination of the intimate relationship between social behaviour and sense of
obligation
- Analysis of the adaptive interaction of laws in post-colonial settings
- Contrast between the values of customary law and the Bill of Rights

Week 3: Historical recognition and application of customary law in South Africa

In order to understand the recognition and application of customary law in contemporary
modernity, students will be taken through its historical recognition and application within
the wider political economy of South Africa. Relevant examples and contrasts shall be
drawn from other African countries where necessary.
Outline:
- Prior to the Black Administration Act (BAA) (Colonisation (1652-1909)
- After the Black Administration Act (BAA) (Union (1910 -1947)
- Recognition in terms of the Law of Evidence Amendment Act (Apartheid era (1948-
1990)
- Constitutional recognition

Week 4: Relationship between customary law and the Bill of Rights

In this week, students are exposed to the unequal relationship between customary law
and state laws. Here, the Bill of Rights is presented as the face of state laws, while state
laws are explained as European laws adopted and adapted via colonialism to suit local
circumstances. Customary law is subject to state laws and is often interpreted with
principles of state laws rather than the values of customary law. At the end of this week,
students should be able to appreciate the interaction of legal orders (ie customary law
and state laws) in the light of comparative legal history.

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Outline:
 Understand the colonial origin of state laws
 Understand dissonance between modern conditions and the agrarian social settings
in which customary laws emerged and the hardships caused by this dissonance
 Reconcile the application of customary law and the demands of the Bill of Rights

Weeks 5 & 6: Customary marriages including delicts, statutory and case law
In this week, students will examine certain factors that determine status, rights and
obligations under customary family law, as well as rules governing customary marriages.

Outline:
 Factors that determine a person’s status, rights, and obligations under customary law
 The historical recognition of customary marriages in South Africa
 Recognition of Customary Marriages Act, 1998
 Legal requirements for a customary marriage
o Before the Recognition of Customary Marriages Act, 1998
o After the Recognition of Customary Marriages Act, 1998
 Consequences of a valid customary marriage
o Status of spouses in a customary marriage
o Proprietary consequences of a customary marriage
 SLRC Matrimonial Property Law Review
o The status of children
 Dissolution & consequences of divorce
 Ukuthwala and the Prohibition of Forced Marriages and Child Marriages Bill, 2015.
 Case law

Week 7: Customary law of property, including land

In this week, students will learn the characteristics of succession and property rights
under customary law. They will also learn the rules that determine acquisition and
disposal of property.
Outline:

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 Characteristics of property rights
 Rights relating to property
 Acquisition of property
 Communal land tenure
 Communal Land Rights Act, 2004
 Case Law

Weeks 8 & 9: Succession and inheritance, including statutory and case law
In this week, students are taught relevant customary rules and principles that inform the
general regulation of succession and inheritance matters under customary laws.
Outline:
 General principles of succession and inheritance.
 Historical legal developments
 Reform of Succession Act, 2009
 Case law

Weeks 10 & 11: Traditional leaders, traditional courts and the role of statutory and
case law
In this week, students are exposed to the general rules and principles that inform the
institutions of traditional leadership and traditional courts under customary law.
Outline:
 Recognition and functions of traditional leaders
 Traditional Authority Courts
 South African Courts that may apply indigenous law
 Informal dispute settlements forums
 Traditional Leadership and Governance Act, 2003
 Traditional Courts Bill
 Case law.

Week 12: Contracts under customary law

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In this week, students are exposed to specific contracts that are recognised under
customary law.
Outline:
 Introduction
 Nature of indigenous commerce – open markets and duties of the family head
 Nature of contracts under customary law
 Enforcement of contracts.

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