CUSTOMARY LAW: 2013

1. Introduction

1.1 Overview

Customary law is a self-standing course in the Faculty of Law in LLB 2 as well as

comprising one of the six component courses in the Legal Theory major in the Faculties
of Humanities, Commerce and Science. Students who pass Customary law as part of
the Legal Theory major are exempted from the course in the LLB curriculum.

The purpose of the course is to introduce students to the history of recognition and
application of customary law as part of the national legal system. Students are also
introduced to the notion of legal and cultural pluralism and the impact of the new
Constitution on some aspects of Customary law. Since the advent of the new
constitutional dispensation there has been numerous legal challenges regarding the
constitutionality of some customary law rules and practices.


To assist students to gain a better understanding of the application of choice law
rules in the resolution of civil disputes in the lower and superior courts in terms of s
211(3) of the Constitution r/w 1(1) of the Law of Evidence Amendment Act 45 of
1988.


To assist students in extracting legal principles from the law reports and other
source materials.

Customary Law 2013 1

1.2 Credit values

1.3 Assumptions of prior learning

To enable students to know and benefit from this course, students should be able to:

Have the ability to read and research

Know how and where to access resources such as articles in the various law
Journals, textbooks (old and new); statutes and law reports

Be capable of independent reading

Read, analyse and extract principles from law reports and other source materials

Understand the system of judicial precedent

Understand the notion of judicial development of customary law to meet the
objectives of s 39(2) of the Constitution

2. Outcomes

2.1 Critical Outcomes

This course will assist students to attain the following critical outcomes:
2.1.1 Organise and manage themselves;
2.1.2 Identify and solve practical legal problems
2.1.3 Communicate effectively in class and written assignment;
2.1.4 To understand the nature of customary and how it is applied in courts;
2.1.5 To be culturally sensitive;

2.2 Intended specific outcomes

A. Knowledge Outcomes
 The Customary law course is designed to enable students, on the completion
of the course, to be conversant with the objects of section 39(2) of the Bill of
Rights and how the courts in practice use the section to develop the outdated
principles of Customary law in order to be in harmony with the Bill of Rights.

Customary Law 2013 2

  To understand the resolution of internal conflict problems.
 To apply the knowledge acquired during the course in the resolution of legal
disputes arising in Customary law contexts.
 To understand the nature of customary law and how it is applied in courts.
 To deal with issues of diversity.

B. Skills Outcome
At the end of course students should be able to:
 Identify and understand the notion of legal pluralism and how it is given effect
to in the judgments of the courts.
 To understand the concept of the judicial development of customary law in
the context of s 39(3) of the new Constitution.
 To be able to apply legal principles of customary law to specific situations.
 To research and write case note on a case dealing with an aspect of
customary law.

C. Values Outcomes
 It is intended that students will demonstrate an appreciation of academic
integrity in acknowledging sources in research.
 Ethics of disclosing all relevant law, whether favourable or not, to a given
factual situation.
 Acknowledge the value of old authorities in dealing with the harmonization of
customary law principles with the values of the Bill of Rights.

3. TEACHING METHODS

The course will be presented by means of the discussions of the topics indicated in the
course outlines in the lecture periods. Students are only provided with a synopsis
covering the nature of the law, recognition and application. Students will also be
referred to recent decisions of the superior courts dealing with the judicial development

Customary Law 2013 3

of some aspects of customary law. Students will be referred, from time to time, to recent
publications dealing with some areas of contestation. Students will be expected to
participate in class discussions. Tutorial attendance is compulsory. Nonattendance will
result in a student losing the 5% component of the tutorial.

4. COURSE CONTENT

Sources of customary law; history and application of customary in South Africa since
1927; Customary Law and the Constitution; Customary Law of Persons and Family;
Law of Property and Succession and Law of Obligations.

4.1 The place of customary law in the national legal system.

4.1.1 Definition, nature and the main features of customary law and the notion of legal
and cultural pluralism.
4.1.2 Sources
4.1.2.1 Custom
4.1.2.2 Legislation (See the Traditional Leadership and Governance Framework
Legislation attached as Annexure II)
4.1.2.3 Precedent
4.1.2.4 Constitution

4.2 Recognition and application

4.2.1 Brief history of recognition of customary law in South Africa
4.2.2 Customary law under the New Constitution
4.2.3 Compatibility with human rights

4.3 Application of customary law in the courts

4.3.1 “Unofficial Courts”
4.3.2 Customary Courts
4.3.3 Magistrates’ Courts
4.3.4 High Court

Customary Law 2013 4

4.4 Law of persons and the family
4.4.1 General principles
4.4.2 Matters of status
4.4.3 Adoption
4.4.4 Disinheritance
4.4.5 Family law
4.4.5.1 Relationship within the family
4.4.6 Customary marriages
4.4.6.1 Statutory development (Recognition of Customary Marriages Act 120 of
1998)

5. Property and succession (on succession, read AJ Kerr “The Constitution,

The Bill of Rights and the law of succession” (2006) 20 Speculum Juris p1
5.1 Development affecting the law of property (Land reform process)
5.2 Customary law of property
5.3 Customary law of succession after Bhe
5.4 Administration and distribution of the estates of deceased Blacks. The Reform of
Customary Law of Succession and Regulation of Related Matters Act 11 of 2009

6 Customary law of obligations

6.1 Delict and procedural requirements
6.2 Specific delicts
6.3 Contracts
6.4 General principles and quasi contractual relations

7 Resources
The core reading and study materials are textbooks (old and new), law reports, statutes
and the various articles published in the law Journals.

The following books are recommended for further reading

Customary Law 2013 5

1. The Law of South Africa – First Reissue, 32 Indigenous Law, Lexis Nexis
Butterworths (2004).
2. RB Mqeke Customary Law and The New Millennium. Lovedale Press (2003).
3. TW Bennett Customary Law in South Africa Juta (2004)
4. JC Bekker et al (eds) Introduction to Legal Pluralism in South Africa. Part 1
Customary Law Butterworths (2006).
5. AJ Kerr Customary Law of Immovable Property and of Succession, Grocott &
Sherry (1990).
I have included notes from the revised chapters of Customary Law and the New
Millennium.

Customary Law 2013 6

STUDENT ASSESSMENT

Specific outcomes Assessment criteria Assessment tasks

(on completion of this course What evidence must the The evidence will be
the students will be able to: student provide to show gathered in the following
that they are competent? way. The student may be
The student must be able expected to:
to:
To understand the nature of Describe the recognition Write an essay showing
customary law and how it is and application of how the courts have
applied in the courts. customary law. harmonized the rules of
Describe how the courts customary family law with
develop customary law in the objects of the Bill of
terms of s 39(2) of the Rights.
Constitution r/w s 1(1) of
the Law of Evidence
Amendment Act 45 of
1988.
To understand the notion of Explain how the courts Setting problem question
choice of law rules. resolve internal conflicts in which the student will
problem in terms of s be required to discuss the
211(3) of the Constitution. choice of law factors in the
light of the recent court
decisions
To have the ability to resolve Describe the various Set a test in which the
legal disputes arising in stages of dispute problem type question will
customary law contexts. resolution in customary be asked and which
law in matters involving requires the application of
delictual and contractual knowledge.
claims.

Customary Law 2013 7

Assessment Strategy
The final mark of the course is comprised of the following components:
Examination: out of 70 marks
Class work: out of 30 marks
Total: 100 marks

Test
There is one test for this course which is written in the fourth term. The test will be out of
35 marks written during the lecture period. The test will contain questions equivalent to
that which may be found in the November examination.

Assignment
There will be one assignment written in the third term. The length of the assignment will
not be more than 1 000 words. The students will be required to follow the referencing
conventions used in the Survival Guide. The assignment will be out of 35 marks.
Assignment and test will count 25% and tutorial mark will count 5%.

Customary Law 2013 8

Lecture Distribution

1. Definition
In Section 1 of the Recognition of Customary Marriages Act 120 of 1998, customary law
means the customs and usages traditionally observed among the indigenous African
peoples of South Africa which form part of the Culture of those peoples. In the Reform
of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
there is slight change in that the word usages has been replaced by practices and the
word peoples has been replaced by people. In Gumede v President of the Republic of
South Africa and others 2009 (3) SA 152 (CC) Moseneke DCJ raised the issue of the
“reach of Customary Law, whom it binds and, in particular whether other people other
than indigenous African people may be bound by Customary Law”. See also AJ Kerr
“The Constitution, the Bill of Rights and the Law of Succession (1) 2009 (19) Speculum
Juris 181 where the author raises the same questions in the light of the comments
appearing in both the minority and majority judgments in Bhe v Magistrate Khayelitsha
2005 (1) SA 580 (CC).

In response to Moseneke DCJ’s query in the Gumede case Supra, Kerr in the article
referred to above at 186 thinks that Nama, Khoi and San people should be included. In
Alexkor Ltd v Richtersveld Community 2004 (5) SA 460 (CC) the court dealt with Nama
indigenous law. As Customary Law has been defined from a cultural context, it is
important to read the relevant sections of our Constitution which deal with culture such
as sections: 6 (languages), 30 (language and culture), 31 (Cultural, religious and
linguistic communities) and section 185 (Commission for the Promotion and Protection
of the Rights of Cultural Religions and Linguistic Communities).

Students should read Sachs J’s comment on section 31 in Christian Education South
Africa v Minister of Education 2000 (10) BCLR 10 51 (CC)

 Meaning and legal significance of culture in Customary Law context. To this end
the following sources should be consulted:

Customary Law 2013 9

M J Maluleke “Culture, Tradition, Custom, Law and Gender Equality” PER/PELJ 1 2012
(15) 1 428;

N Ntlama “The Application of section 8 (3) of the Constitution in the Development of

Customary Law values in South Africa’s New Constitutional Dispensation” PER/PEL
(2012) (15)

Obeng Mireku “Culture and South African Constitution” An overview 2002 Speculum
Juris 91

The Right to Culture

i. In Case Law the right to culture has been juxta posed with the right to equality.
See the following cases:

Mthembu v Letsela and another 1998 (2) SA 6 75 (T); Anne Prior v Donald Battle and
others 1998 (8) BCLR 10 13 (TK); Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC);
Bhe v Magistrate Khayelitsha 2005 (1) BCLR 1 (CC)

ii. The Nature of Customary Law (features which distinguished it from the Common
Law).

The following cases contain useful comments on the distinguishing features of

Customary Law:

S v Makwanyane and Another 1995 (3) SA 391 (CC); Sijila v Masuku 19 37 NAC (N&T)
121; Alexkor and Another v Richtersveld Community and others 2003 (12) BCLR 13 01
(CC) paras 51 and 52; Bhe v Magistrate Khayelitsha and others 2005 (1) BCLR 1 (CC);
Mthembu v Letsela and Another 1997 (2) 2SA 936 (T) and Chuma Himonga “The

1
PER/PELJ stands for Potchefstroom Electronic Journal

Customary Law 2013 10

Future of Living Customary Law in African Legal Systems in 21st Century and Beyond
with specific Reference to South Africa” in The Future of African Customary Law by
Jeanmaré Jenrid, Galizzi & Higgisio (ed)’s Cambridge University Press 31.

iii. Main features

 Not a single system but consists of a multiplicity of Customary Laws
 Statutory and non-statutory Customary Law
 Judicial notion of three streams of Customary Law, namely: Official
Customary, Living Customary Law and Academic Customary Law. See
Kerr’s comment on these streams in “The Constitution, Bill of Rights and the
Law of Succession (1)” 2005 Speculum Juris 192 – 197

iv. The notion of legal pluralism

 State Law pluralism. Students should read
Introduction to Legal Pluralism in South Africa by J C Bekker et al Lexis
Nexis (2006) chapter 1. A discussion of the notion of legal pluralism is
contained in the hand-out entitled Chapter 1.
 Deep Legal Pluralism (Unofficial Customary Law, Islamic Law, Peoples Law,
Hindu Law)
 Outline of religious Family Laws in South Africa (Hindu Law, Jewish Law and
Muslim Law). See generally chapter 10 and Gordon Woodman “Legal
Pluralism in Africa: The implications of state recognition of customary laws
illustrated from field of land law” 2011 Acta Juridica 35 and Razaana Denson
“Non-recognition of Muslim Marriages: Discrimination and Social injustice”
2009 Obiter 243.

2. The place of Customary Law in the National Legal System. See again the
hand-out entitled chapter 1 page 1 – 25 and Ntlama’s article page 27 – 38.

3. Ascertainment of Customary Law. See generally the hand-out entitled chapter

2.

Customary Law 2013 11

4. Brief history of recognition in South Africa: see pages 34 – 36 of the Handout.

5. Application of Customary Law in both official and non-official courts: see chapter 5
of the Handout.

6. Development of Customary Law chapter 5 of the Handout.

7. Chiefs’ Courts Rules: see a summary of these rules in Francois de Villiers

Selected South African legislation on Customary Law and Traditional Authorities
kept on short loan.

8. Part B Customary Private Law

8.1 Law of Persons and Family see separate Handout entitled Chapter 6. See also
2010 THRHR 679

8.2 Property and Succession (see the separate Handout to be handed out). See also
Ingonyama Trust v Radebe & Others (2012) 2 ALL SA 2012 (KZP)

8.3 Customary Law of obligations (separate Handout)

Customary Law 2013 12