written by
varsityassist
www.stuvia.com
Downloaded by: zephrusm |
Distribution of this document is illegal
, Stuvia.com - The study-notes marketplace
LCP 4804 - ADVANCED
INDIGENOUS LAW
LATEST EXAM
REVISION PACK
2017 – 2021 MEMOS
THIS PACK IS THE LATEST PACK THAT HAS BEEN UPDATED IN 2021 WITH THE
MEMOS RIGHT UP UNTIL THE EXAM WRITTEN IN OCT/NOV SUPER SEMESTER
PORTFOLIO
(2017 – 2021 ) - PAST EXAMS PAPERS COVERED WITH DETAILED
ANSWERS
ASSIGNMENTS FEEDBACK TUT – 2018 -2020 ALSO INCLUDED
ADDITIONAL REVISION Q & A ALSO INCLUDED IN PACK
ACTIVITIES FEEDBACK ALSO INCLUDED IN PACK
CASE SUMMARIES ALSO INCLUDED IN PACK
QUESTIONS AND ANSWERS HAS BEEN TYPED OUT FOR YOU FOR EASY
REFERENCE. ANSWERS ARE DIRECTLY BELOW THE QUESTIONS, HENCE NO NEED
TO REFER BETWEEN SEPARATE QUESTION PAPERS AND ANSWERS.
QUICK SEARCH FUNCTIONS TO EASILY FIND ANSWERS
Downloaded by: zephrusm |
Distribution of this document is illegal
, Stuvia.com - The study-notes marketplace
CONTENTS
PAST YEAR EXAM QUESTIONS AND ANSWERS
OCTOBER / NOVEMBER 2021
MAY / JUNE 2021 – ECP PAPER
MAY/ JUNE 2020
OCTOBER / NOVEMBER 2019
MAY/ JUNE 2019
OCTOBER / NOVEMBER 2018
MAY/ JUNE 2018
OCTOBER / NOVEMBER 2017
MAY /JUNE 2017
+
ADDITIONAL REVISION QUESTION AND
ANSWERS FOR EXAM PREP
+
ASSIGNMENT FEEDBACK TUTS – 2018-2020
ACTIVITIES FEEDBACK
CASE SUMMARIES
THIS PACK HAS BEEN SET OUT FOR EASY USE
FOR THE STUDENT WITH QUICK SEARCH
FUNCTIONS
Downloaded by: zephrusm |
Distribution of this document is illegal
, Stuvia.com - The study-notes marketplace
OCT/ NOV 2021 EXAM
QUESTION ONE
Critically discuss the differences between living customary law and official customary
law. [30]
Living customary law emphasises a customary law that is recognised and protected
by the Constitution that is living, active and dynamic, and part of the lives of the people.
Living customary law is the unwritten, non-state law representing the customary
practices of the people who are subject to customary law and is distinguished from the
common law concept of custom. It consists of current practices that have binding
authority and that adapt to changing conditions. The recording of living customary law
only becomes significant wen it carries consequences for the nature of the system.1
Official customary law is the law applied by the courts and other state institutions and
are typically customary law and other legislation, court precedents and textbooks. This
system of law does not really represent the customary law of the people, as ‘the
people’s flexible body of customary law was transformed into written, rule-orientated
and rigid version of customary law in the form of official customary law.’ 2 Official
customary Law merely refers to taking of judicial notice, not recognition; it puts
customary at the level of foreign law, as opposed to a vital component of our
constitutional system; it requires the use of customary law that has been proved and
is part of official precedent, before being used (i.e. ascertained readily and with
sufficient certainty), as opposed to being applied in its living form as in section 211(13)
of the Constitution.3
Official customary law is written down and therefore enable courts to apply it uniformly
and with certainty. ‘The issue of legal certainty arose in Bhe where the court declined
to develop customary law in terms of section 39(2) of the Constitution on a case-by-
case basis.’4
In Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC) it was stated that
,‘Our history, however, is replete with instances in which customary law was not given
1 Nhlapo T et al African Customary Law in South Africa Post-Apartheid and Living Law
Perspectives (Oxford University Press 2014) 74.
2 Nhlapo T et al African Customary Law in South Africa Post-Apartheid and Living Law
Perspectives (Oxford University Press 2014) 78.
3 Constitution of the Republic of South Africa,1996.
Downloaded by: zephrusm |
Distribution of this document is illegal
varsityassist
www.stuvia.com
Downloaded by: zephrusm |
Distribution of this document is illegal
, Stuvia.com - The study-notes marketplace
LCP 4804 - ADVANCED
INDIGENOUS LAW
LATEST EXAM
REVISION PACK
2017 – 2021 MEMOS
THIS PACK IS THE LATEST PACK THAT HAS BEEN UPDATED IN 2021 WITH THE
MEMOS RIGHT UP UNTIL THE EXAM WRITTEN IN OCT/NOV SUPER SEMESTER
PORTFOLIO
(2017 – 2021 ) - PAST EXAMS PAPERS COVERED WITH DETAILED
ANSWERS
ASSIGNMENTS FEEDBACK TUT – 2018 -2020 ALSO INCLUDED
ADDITIONAL REVISION Q & A ALSO INCLUDED IN PACK
ACTIVITIES FEEDBACK ALSO INCLUDED IN PACK
CASE SUMMARIES ALSO INCLUDED IN PACK
QUESTIONS AND ANSWERS HAS BEEN TYPED OUT FOR YOU FOR EASY
REFERENCE. ANSWERS ARE DIRECTLY BELOW THE QUESTIONS, HENCE NO NEED
TO REFER BETWEEN SEPARATE QUESTION PAPERS AND ANSWERS.
QUICK SEARCH FUNCTIONS TO EASILY FIND ANSWERS
Downloaded by: zephrusm |
Distribution of this document is illegal
, Stuvia.com - The study-notes marketplace
CONTENTS
PAST YEAR EXAM QUESTIONS AND ANSWERS
OCTOBER / NOVEMBER 2021
MAY / JUNE 2021 – ECP PAPER
MAY/ JUNE 2020
OCTOBER / NOVEMBER 2019
MAY/ JUNE 2019
OCTOBER / NOVEMBER 2018
MAY/ JUNE 2018
OCTOBER / NOVEMBER 2017
MAY /JUNE 2017
+
ADDITIONAL REVISION QUESTION AND
ANSWERS FOR EXAM PREP
+
ASSIGNMENT FEEDBACK TUTS – 2018-2020
ACTIVITIES FEEDBACK
CASE SUMMARIES
THIS PACK HAS BEEN SET OUT FOR EASY USE
FOR THE STUDENT WITH QUICK SEARCH
FUNCTIONS
Downloaded by: zephrusm |
Distribution of this document is illegal
, Stuvia.com - The study-notes marketplace
OCT/ NOV 2021 EXAM
QUESTION ONE
Critically discuss the differences between living customary law and official customary
law. [30]
Living customary law emphasises a customary law that is recognised and protected
by the Constitution that is living, active and dynamic, and part of the lives of the people.
Living customary law is the unwritten, non-state law representing the customary
practices of the people who are subject to customary law and is distinguished from the
common law concept of custom. It consists of current practices that have binding
authority and that adapt to changing conditions. The recording of living customary law
only becomes significant wen it carries consequences for the nature of the system.1
Official customary law is the law applied by the courts and other state institutions and
are typically customary law and other legislation, court precedents and textbooks. This
system of law does not really represent the customary law of the people, as ‘the
people’s flexible body of customary law was transformed into written, rule-orientated
and rigid version of customary law in the form of official customary law.’ 2 Official
customary Law merely refers to taking of judicial notice, not recognition; it puts
customary at the level of foreign law, as opposed to a vital component of our
constitutional system; it requires the use of customary law that has been proved and
is part of official precedent, before being used (i.e. ascertained readily and with
sufficient certainty), as opposed to being applied in its living form as in section 211(13)
of the Constitution.3
Official customary law is written down and therefore enable courts to apply it uniformly
and with certainty. ‘The issue of legal certainty arose in Bhe where the court declined
to develop customary law in terms of section 39(2) of the Constitution on a case-by-
case basis.’4
In Pilane and Another v Pilane and Others 2013 (4) BCLR 431 (CC) it was stated that
,‘Our history, however, is replete with instances in which customary law was not given
1 Nhlapo T et al African Customary Law in South Africa Post-Apartheid and Living Law
Perspectives (Oxford University Press 2014) 74.
2 Nhlapo T et al African Customary Law in South Africa Post-Apartheid and Living Law
Perspectives (Oxford University Press 2014) 78.
3 Constitution of the Republic of South Africa,1996.
Downloaded by: zephrusm |
Distribution of this document is illegal
