3. CL: TOPIC 1 - Evolution and Development of Customary Rules

PROBLEM TYPE 3

Topic 1 Problem Type 3: Evolution and Development of Customary RulesSteps to tackle this legal problem:

1. Identify the factual enquiry — what triggered the dispute.

2. State the issue — what the court must decide.

3. Set out the applicable law — Constitution and precedent.

4. Explain the justification — why development of rules is valid.

5. Define adaptability vs Van Breda test — clarify the rejected test.

6. Set out constitutional duty to develop law — Section 39(2).

7. Bring in precedent — Shilubana, Bhe, Mabena.

8. Apply principles to facts — Royal Council’s resolution.

9. Conclude — rule validly developed.

Step 1: What is the factual enquiry when a Royal Council appoints a female Hosi?

The factual enquiry is:

• A Royal Council passes a resolution to appoint a female Hosi (chief).

• This is challenged as “untraditional.”

• These facts are significant because they require the court to balance legal certainty with the inherent flexibility of customary law.

Step 2 : What is the issue in the evolution and development of customary rules?

The issue is:

• Whether the community’s departure from past practice constitutes a valid development of living customary law.

• The matter concerns the evolution and development of customary law in leadership succession

Step 3: What is the applicable law in disputes over the development of customary rules?

The applicable law is:

• Section 211(2) of the Constitution.

• Section 39(2) of the Constitution.

• The precedent in Shilubana v Nwamitwa.

Step 4: What is the justification for recognising development of customary rules?

The justification is:

• Courts must respect communities’ right to self‑determination while ensuring constitutional consistency.

Step 5: What is the Van Breda test and why is it rejected?

The Van Breda test:

• Originating in Van Breda v Jacobs, it was a common‑law test requiring “unbroken antiquity” and immemorial practice before a rule could acquire the force of law.

• This test applied to common‑law custom, not indigenous law.

• In the constitutional era, it is expressly rejected for customary law because it would freeze the system and deny its inherent flexibil

Step 6: What constitutional duty governs development of customary law?

 The duty is:

• Section 39(2) imposes a mandatory duty on courts to develop customary law to promote the “spirit, purport and objects” of the Bill of Rights.

• The definitive methodology is the three‑part test in Shilubana:

  1. Consider the traditions of the community.

  2. Respect the community’s right to develop its own law.

  3. Ensure the development is consistent with the Constitution.

Step 7: What precedents guide the evolution and development of customary rules?

The precedents are:

• Shilubana v Nwamitwa: Court held that “change is intrinsic to and can be invigorating of customary law.” It upheld the Valoyi community’s resolution to appoint a female Hosi, rejecting the Van Breda test.

• Bhe v Magistrate, Khayelitsha: Court struck down male primogeniture as unconstitutional, refusing to “develop” it because the violation of equality was too fundamental.

• Mabena v Letsoalo: Reinforced that living law must be recognised even when it contradicts official versions.

Step 8: How are these principles applied in practice?

The application is:

• The challengers’ reliance on antiquity is misplaced.

• The Van Breda test does not apply to customary law.

• The Royal Council’s conscious decision to appoint a female Hosi satisfies the Shilubana test:

  • It reflects past practice.

  • Acknowledges contemporary changed practice.

  • Aligns with constitutional values of equality and dignity.

• Courts must respect the community’s right to self‑determination while ensuring constitutional consistency.

Step 9 : What is the conclusion when a community develops its rules?

The conclusion is:

• The rule has been validly developed.

• This conclusion respects the community’s autonomy while ensuring customary law evolves consistently with constitutional values.