Is customary law applicable in sa legal system?

Answer 1

I promised to give out the answer after i am done with the research. Walter Mokganya School of Law University of Limpopo. If you get the rest of the answer before me, please let me know. Only the Recognition and Application, by sending an e-mail to mokganyaw@vodamail.co.za

The Nature of Customary Law

(compiled by M.W Mokganya)

The nature of customary law is not broad as such, customs which arose from repeated acts of people, some of which customs attained to the marks by which they were later called laws.

The nature of customary law has arose in two ways; either by people repeating certain acts till they become habitual, or by some popular authority making decisions on cases voluntarily brought before him. It is convenient to separate these two occasions, but in history they are often connected. For the popular authority, the popular leader to whom appeal was made, interprets the customs which exist among the peoplehttp://wiki.answers.com/Q/The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_system&action=edit#_ftn1.

The involving nature of indigenous law and the fact that its unwritten, have resulted in the difficulty of ascertaining the true indigenous law as practised in the community. This law is sometimes referred to as living indigenous law. Statutes, textbooks and case law, as a result, may no longer reflect the living law. What is more, abuses of indigenous law are at times construed as a true reflection of indigenous law these tend to distorthttp://wiki.answers.com/Q/The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_system&action=edit#_ftn2.

Customary law consists of the indigenous customs of traditional communities.

Every ethnic group in Africa has evolved its own discrete customary legal system of rules that are binding on its members. Unlike ordinary social habits and observances, the rules carry along with them local sanctions for their breach. For

the most part, the rules are unwritten, though efforts are now being made to

compile them in written form.

Customary laws are not uniform across ethnic groups. Differences in the customary laws of ethnic groups can be traced to various factors such as language, proximity, origin, history, social structure and economy. For example, the customary law system of an ethnic group in one town may be different from the customary law system of the ethnic group in a neighbouring town even though the two ethnic groups speak the same language. Generally, the customary law rules among ethnic groups speaking a common language tend to be similar, but the rather significant differences that can sometimes exist make it misleading to speak of a uniform customary law rule applicable to all members of the language group.http://wiki.answers.com/Q/The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_system&action=edit#_ftn3

The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_systemGilbert T Sadler- The relation of custom to Law

The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_systemPara 154 Bhe v Magistrate of Khayelitsha 2005 (1) SA 580 (CC)

The_nature_recognition_and_application_of_south_african_indigenous_law_within_the_south_african_legal_systemPaul Kuruk- African Customary Law and Protection of Folklore-Vol XXXVI,No. 2, 2002