Accepted paper:

Application of "living customary law" in South African Courts: A fool's errand?

Authors:

Pieter Bakker (University of South Africa)

Paper short abstract:

The South African courts are under a constitutional obligation to apply customary law. There however exists a dichotomy between official and living customary law. The main element of differentiation between living and official customary law is that living customary law is regarded as flexible whereas official customary law is static. The paper investigates whether living customary law can still exist after official recognition of customary law.

Paper long abstract:

The term "customary law" is used to describe the law practiced by the indigenous tribes of South Africa. The courts are under a constitutional obligation to apply customary law when applicable subject to the Constitution and legislation. However two different concepts of customary law exist - the law applied by the courts and codified in legislation and textbooks or the so called "official customary law" and the law practiced by the communities or the so called "living customary law". Criticism against official customary law is that it is a misrepresentation of true living customary law, it over emphasises the patriarchal nature of customary law and does not reflect the true adaptable nature of living customary law. Problems arise regarding the determination of the content of living customary law. Determining whether a particular principle in an indigenous community is customary law or merely a custom is difficult. Can living customary law truly still exist in South Africa after official recognition of customary law in other words can an official living customary law exist? The South African court system functions on a precedent system. If a higher court applies a particular principle of customary law the other lower courts are bound by the decision. Official customary law is in fact created the moment a court decides on a customary law principle. Can living customary law still exist or does South Africa merely recognise official customary law and customs that in future might be recognised by the courts as law?

panel SE01
Legal features of cultural diversity: experiences from the African continent (IUAES Commission on Legal Pluralism)