LCP4804 May/June 2022 Portfolio Guidelines
QUESTION 1
(a) Write down the definition of customary law as it appears from section 1
of the Recognition of Customary Marriages Act 120 of 1998; and then use
its wording to explain the nature, role and function of this component of
the South African legal system as appears in case law. (10)
According to section 1 of the Recognition of Customary Marriages Act 1 (RCMA),
customary law means “the customs and usages traditionally observed among the
indigenous African people of South Africa and which form part of the culture of those
peoples”.
It means that the customary law of a community is its living law in the sense that it
must “form part of the culture of those people”. As the culture of the Tsonga people
differ from that of the Tswana people, so do their customary laws. This has an impact
on the application of the doctrine of judicial precedent in customary law. For example,
the decision in Mayelane v Ngwenyama and Another,2 which is based on the Xitsonga
custom that requires the consent of the main wife before her husband can contract a
further marriage. The consent of the main wife “form(s) part of the culture of those
people”. It does not necessarily “form part of the culture of the Tswana, Zulu, Sotho,
Xhosa or Khoisan people”. But even if none of the latter cultures endow the main wife
with the right to consent to her husband’s contracting a further marriage, in terms of
the equality and dignity clauses of the Constitution as expounded in the Mayelane
principle, in future no husband will be able to contract another marriage without the
consent of the main wife. Because of the Mayelane judgment, the consent requirement
is now part of customary law jurisprudence in South Africa as a whole.
1 Recognition of Customary Marriages Act 120 of 1998.
2 Mayelane v Ngwenyama and Another (CCT 57 of 2012) [2013].
QUESTION 1
(a) Write down the definition of customary law as it appears from section 1
of the Recognition of Customary Marriages Act 120 of 1998; and then use
its wording to explain the nature, role and function of this component of
the South African legal system as appears in case law. (10)
According to section 1 of the Recognition of Customary Marriages Act 1 (RCMA),
customary law means “the customs and usages traditionally observed among the
indigenous African people of South Africa and which form part of the culture of those
peoples”.
It means that the customary law of a community is its living law in the sense that it
must “form part of the culture of those people”. As the culture of the Tsonga people
differ from that of the Tswana people, so do their customary laws. This has an impact
on the application of the doctrine of judicial precedent in customary law. For example,
the decision in Mayelane v Ngwenyama and Another,2 which is based on the Xitsonga
custom that requires the consent of the main wife before her husband can contract a
further marriage. The consent of the main wife “form(s) part of the culture of those
people”. It does not necessarily “form part of the culture of the Tswana, Zulu, Sotho,
Xhosa or Khoisan people”. But even if none of the latter cultures endow the main wife
with the right to consent to her husband’s contracting a further marriage, in terms of
the equality and dignity clauses of the Constitution as expounded in the Mayelane
principle, in future no husband will be able to contract another marriage without the
consent of the main wife. Because of the Mayelane judgment, the consent requirement
is now part of customary law jurisprudence in South Africa as a whole.
1 Recognition of Customary Marriages Act 120 of 1998.
2 Mayelane v Ngwenyama and Another (CCT 57 of 2012) [2013].
