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 from case law.


Question: 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 from case law.

Definition of Customary Law

Section 1 of the Recognition of Customary Marriages Act 120 of 1998 does not provide an explicit definition of customary law. However, it does recognize customary law as a valid source of law in South Africa. This suggests that customary law can be defined as the body of rules and principles that have been established and developed through the customs and traditions of a particular community or group of people.

Nature, Role, and Function of Customary Law

Customary law has played an important role in the South African legal system since the early days of colonization. It has been used to regulate a wide range of matters, including marriage, property, succession, and criminal law. In recent years, there has been a growing movement to recognize and protect customary law in South Africa. This is due in part to the fact that customary law is often seen as a more flexible and adaptable system of law than common law or statute law. It is also seen as a way of preserving the cultural heritage of South Africa's diverse communities.

Case Law on Customary Law

There have been a number of important cases in South Africa that have dealt with the nature, role, and function of customary law. These cases have helped to clarify the relationship between customary law and other sources of law in South Africa. They have also helped to protect the rights of individuals who are subject to customary law.

Examples of Case Law

One of the most important cases on customary law is Gumede v President of the Republic of South Africa (2008). In this case, the Constitutional Court held that a provision of the Recognition of Customary Marriages Act 120 of 1998 that made the husband the sole owner of any property that would have been acquired during the subsistence of a marriage was unconstitutional. The Court held that this provision discriminated against women and was therefore invalid.

Another important case on customary law is Bhe v Magistrate, Khayelitsha (2005). In this case, the High Court held that a customary marriage could not be dissolved without the consent of both spouses. The Court held that this principle of customary law was consistent with the Constitution's protection of the right to equality.

Conclusion

Customary law continues to play an important role in the South African legal system. It is a complex and evolving body of law that is constantly being shaped by the courts and by the communities that it serves. As South Africa continues to develop, it is likely that customary law will continue to play an important role in the country's legal system.

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