Two versions
Official vs Living Law
The single most important distinction in the subject.
Official customary law
Official customary law is the version recorded and enforced by the state — in legislation, codes (e.g. the old Natal Code), court precedents, and textbooks. It is often distorted, frozen, and outdated — a colonial "invention" that hardened flexible custom into rigid rules.
Living customary law
Living customary law is the law actually observed and practised by the community — dynamic, adaptive, and evolving with social conditions. It is the "real" customary law of the people.
Which one applies
The courts must apply the living customary law where it can be established, in preference to distorted official versions (Alexkor; Shilubana; Bhe). Ascertaining living law is the central practical difficulty.
Key Rule
Official law = the frozen, state-recorded version (often distorted). Living law = the evolving law actually practised. Courts must apply living customary law where it can be ascertained.
Common Mistake
Relying on old codes or textbooks as if they state the current law. They record official customary law, which may be out of step with the living law communities actually observe.
Leading Cases
Shilubana v Nwamitwa2009 (2) SA 66 (CC)Customary law is living and evolving; traditional authorities may develop it — courts apply the current living law, not a frozen version.
Facts. The Valoyi traditional authority resolved to restore the chieftainship (hosi) to Ms Shilubana, who had earlier been passed over because she was a woman. A male relative challenged her appointment, relying on the traditional male-only rule.
Legal question. May a traditional community develop its own customary law to allow a woman to succeed to traditional leadership, and must courts respect that development?
Judgment. The Constitutional Court upheld Ms Shilubana's appointment, confirming the community's power to develop its own customary law consistently with the Constitution.
Significance. The leading authority on the living, evolving nature of customary law and on traditional communities' authority to develop it (in line with s 39(2)).
Exam tip. Use Shilubana for: living customary law, communities' power to develop their own law, and courts' duty to respect that development rather than impose common-law values.
Mabena v Letsoalo1998 (2) SA 1068 (T)Recognised living customary law over official versions — a woman could act as family head and negotiate lobolo, reflecting evolved practice.
Facts. The validity of a customary marriage was challenged on the basis that lobolo had been negotiated by the bride's mother (a woman) and that the bride herself had consented, contrary to "official" customary law which required a male family head.
Legal question. Should the court apply the frozen "official" customary law, or the living customary law actually practised by the community?
Judgment. The court upheld the marriage, applying living customary law over the distorted official version.
Significance. An influential recognition of living customary law and of the evolving role of women, foreshadowing Shilubana and Bhe.
Exam tip. Use Mabena for the official-vs-living distinction and the recognition of women's evolving roles in living customary law.
Features
The Hearth of Custom
The distinctive characteristics of customary law.
Characteristics
- Largely unwritten — transmitted orally and through practice
- Group-oriented (communitarian) — the community, family and group come before the individual
- Founded on ubuntu — humaneness, solidarity, and reconciliation
- Flexible and dynamic — it adapts to changing conditions (living law)
- Reconciliation-oriented — dispute resolution seeks restoration of harmony, not just a winner
- A religious/ancestral dimension — the ancestors and ritual play a role
Historically patriarchal
Traditional customary law was patriarchal — status and succession followed the male line. Much of the subject's modern development is the constitutional reform of these features for gender equality (Bhe, Gumede).
Key Rule
Customary law is unwritten, group-oriented, ubuntu-based, flexible, and reconciliatory. Its historically patriarchal features are being reformed under the Constitution.
Common Mistake
Describing customary law as static or "primitive". It is a living, adaptive system; its rigidity is largely an artefact of colonial recording (official law).
Sources
The Wells of Custom
Where the content of customary law is found.
Sources
- The practices and customs of the community itself (the primary source of living law)
- The Constitution and legislation (e.g. the RCMA, the Reform of Customary Law of Succession Act)
- Case law developing and reforming customary rules
- Textbooks, restatements and expert (assessor) evidence as aids to ascertainment
Key Rule
The primary source of living customary law is the community's own practice; legislation, case law, and expert evidence help ascertain and reform it.