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• Customary law refers to the customs and usages traditionally observed among indigenous African people of South Africa, forming part of their culture
• It is considered an essential source of law, regulating the lives of the majority of the South African population since time immemorial

Pluralism within African Customary Law

• There isn't a single, uniform system of customary law in South Africa
• Different versions of Customary Law exist across various indigenous communities.

African Customary Law Groups

• Black South Africans are classified into four main groups Nguni, Tsonga, Sotho and Tswana
• There are also nine subgroups Zulu, Xhosa, Swazi, Ndebele, Tsonga, Pedi, Sotho, Tswana and Venda

Pluralism within Customary Law

• There has never been only one general legal system that applied to all indigenous African groups, each tribe or kingdom had its own legal system

Marriage customs

• Among most of the 280 Zulu tribes, it's customary to deliver all marriage goods (ilobolo (noun); ukulobola (verb)) either before or during the marriage ceremony
• In most Xhosa-speaking communities, marriage goods are delivered over time after the woman is handed over to the man's family group
• In some Xhosa groups, the woman's family may "impound" her until the husband delivers more marriage goods, a custom known as utheleka

About African Legal Systems Nature

• African legal systems aim to preserve societal harmony and cohesion, rather than focusing on individual rights
• Society is considered more important than the individual
• Individual obligations to society are deemed worthy of protection.
• Law is integrated with religion and morality, not a separate normative system

Customary law and rules

• Customary law was an established system of immemorial rules from the way of life and natural wants of the people
• The general context was common knowledge, with precedents for special cases retained in the memories of chiefs, councilors, and their descendants

Concept of Customary Law

• Customary law involves norms abstracted from social practice, invested with binding authority, and embodies concrete principles applied variably and subject to change
• It denotes legal systems from African societies, part of particular tribes' culture, which have been supplemented, amended, or superseded in part by factors like changing community views, contact with other legal systems, and foreign government influence.

Legal Recognition of Customs

• Custom emerges from the repetitive conduct of people
• Custom is a habitual, uniformly, and voluntarily observed course of conduct
• It's created by the people through their unconscious adoption of a certain rule of conduct
• Recognition is based on long-continued use, recognition, and acceptance within the group or community

Legal Recognition Requirements

• Courts established requirements for recognizing a custom as law, according to van Breda v Jacobs case
• It must be reasonable, serving a legitimate purpose without conflicting with fundamental common law principles
• It must be uniformly or consistently observed within a sizable population
• It must be well established or have existed since time immemorial
• It must be certain or ascertainable.

Living Customary Law

• Living customary law involves the "Actual practice or custom of an indigenous community"
• It is in a constant state of evolvement as communities change, so do the rules
• It is unwritten and can be recorded in writing in textbooks for example
• Is not easily ascertainable as there is no comprehensive source
• It is aligned with the Constitution

Official Customary Law

• Official customary law refers to written versions of the law found in legislation, precedent, and books.
• It must be treated cautiously due to historical distortions by the state and questions about true representation
• It must be interpreted to promote constitutional objectives
• It can be easily ascertainable

Mixed Customary Law

• Mixed Customary Law forms a hybrid of customary law and common law in marriage and succession
• Aligns Customary law with the Bill of Rights

Acts

• Recognition of Customary Marriages Act incorporates family law from Marriage and Matrimonial Property Acts to align Customary law with the Constitution, while retaining concepts like Lobola, polygamy, and ukungena
• Reform of Customary Law of Succession and related matters Act incorporates succession Act

Sources of Customary Law

• Main sources are customs, the Constitution, legislation, case law, and academic/scholarly writings

Customs

• The primary source is the customs, practices, or rules generated by traditional communities across generations
• As unwritten and dynamic law, it's known as "living" law, emanating from the communities' practices.

Constitution as a source of Customary Law

• The Constitution serves as the foundation for applying and developing customary law within the framework of new constitutional values
• It bridges the past of a deeply divided society with a future founded on human rights, democracy, peaceful co-existence, and equal opportunities for all South Africans
• Recognizing customary law in the Constitution shows respect, confirms legitimacy, and integrates it into South Africa's legal system

Legislation related to customary law

• Legislation emanates from laws passed by Parliament and other legislatures, with validity depending on compliance with the Constitution
• Statutes adopted by Parliament address customary law issues, including Traditional Leadership and Governance Framework Act 41 of 2003
• Legislation addresses oversight and advisory roles via the National House of Traditional Leaders Act 22 of 2009
• Legislation regulates private relationships through the Recognition of Customary Marriages Act 120 of 1998
• Legislation address regulation of intestate succession through the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009

Case law concerning customary law

• Case Law deals with the application and development of customary law.
• It demonstrates the practical application of customary law values within the context of the new constitutional dispensation.
• The judiciary (courts) is particularly mandated to develop customary law subject to the Constitution as envisaged in section 39(2)of the Constitution.
• Reliance on case law, based on judicial precedent, is a constitutional mandate and legitimate source of law.

Academic and Scholarly writings concerning customary law

• Academic writing is another source of customary law.
• It is essential due to its influential role in legislative and judicial decision-making
• Academic writing has a persuasive, but not necessarily obligatory, role, offering insight on interpreting the legitimacy of challenged customary law rules.