2. CL TOPIC 1: Distinguishing Between Official and Living Customary Law

PROBLEM TYPE 2

Problem Type 2: Distinguishing Between Official and Living Customary LawSteps to tackle this legal problem (9)

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, LEAA, and case law.

4. Explain the justification — why living law must be applied.

5. Define ascertainment and proof — evidentiary process.

6. Distinguish official vs living law — core difference.

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

8. Apply principles to facts — oral testimony vs textbooks.

9. Conclude — living law applies, official law rejected.

Step 1 : What is the factual enquiry when official and living customary law conflict?

The factual enquiry is:

• A litigant seeks to enforce a modern family arrangement (e.g., a mother’s right to negotiate marriage agreements).

• The opponent relies on fossilised “official” rules recorded in colonial‑era statutes or textbooks that reserve such powers for male relatives.

• These facts are significant because they trigger the court’s duty to ascertain the content of customary law.

Step 2 : What is the issue when official and living customary law conflict?

The issue is:

• Whether the court should apply the official version of customary law or the living version.

• The matter concerns the ascertainment and proof of customary law in contested family arrangements.

Step 3 : What is the applicable law in disputes over official vs living customary law?

The applicable law is:

• Section 211(3) of the Constitution.

• The Law of Evidence Amendment Act 45 of 1988 (LEAA).

• Precedents in Alexkor v Richtersveld, Mabena v Letsoalo, and Bhe v Magistrate, Khayelitsha.

Step 4  What is the justification for applying living customary law?

 The justification is:

• Courts must apply the law actually practised by the people, not ossified versions

Step 5 : What is ascertainment and proof of customary law?

Ascertainment and proof are:

• Ascertainment: The process by which courts identify the specific customary rule applicable to a dispute.

• Proof: The evidentiary steps taken to establish the content of a rule.

• LEAA governs this process:

  • Section 1(1): Judicial notice if law is “readily ascertainable and with sufficient certainty.”

  • Section 1(2): Oral and other evidence permitted where rules are contested or evolving.

• This evidentiary flexibility ensures courts apply the law actually practised by the people rather than ossified versions.

Step 6: What is the distinction between official and living customary law?

The distinction is:

• Official law: Codified rules in statutes and textbooks, often distorted by colonial and patriarchal bias.

• Living law: Actual practices observed by communities, dynamic and adaptive.

• Section 39(2) of the Constitution requires courts to develop customary law in line with the Bill of Rights.

Step 7 : What precedents guide the court in distinguishing official vs living law?

The precedents are:

• Bhe v Magistrate, Khayelitsha: Official customary law is often a “poor reflection” of the law; cautioned against relying on textbooks.

• Mabena v Letsoalo: Recognised a mother’s right to negotiate lobolo, rejecting the official male‑only rule.

• Alexkor v Richtersveld: Customary law must be understood in its own terms.

Step 8: How are these principles applied in practice?

The application is:

• Opponent’s reliance on textbooks fails.

• Oral testimony under Section 1(2) of the LEAA demonstrates contemporary changed practice where women actively participate in negotiations.

• The court must adopt a processual model, hearing the voices of women historically excluded from official accounts.

• To apply the fossilised rule would be a serious factual error, ignoring both the community’s lived reality and constitutional imperatives.

Step 9 : What is the conclusion when official and living law conflict?

The conclusion is:

• The applicable law is the living practice of women’s participation.

• Official rules are rejected as colonial distortions.

• By applying Alexkor, Mabena, and Bhe, the court fulfils its duty to treat customary law with dignity, ensuring it remains dynamic, authentic, and constitutionally complia