Proof and ascertainment of customary law

• Published date: 01 January 2011
• DOI: 10.10520/EJC153213
• Author: I.A. Van der Merwe,J.C. Bekker
• Date: 01 January 2011
• Pages: 115-127

Proof and ascertainment of customary

law

JC Bekker

*

IA van der Merwe

**

1Introduction

In the light of the constitutional recognition of customary law

1

as one of the

sources of our law,

2

this article explores whether the Law of Evidence Amendment

Act 45 of 1988

3

is still relevant as a basis for its ascertainment during litigation.

The questions that are addressed deal with the status of customary law, whether

courts may take judicial notice thereof or whether it should be proved, and on

what basis? In short, the question is whether the constitutional recognition of

customary law has made any difference to prior evidentiary rules or practice with

regard to its application in court.

A number of aspects will be covered. Firstly, the statutory recognition of

customary law within the colonial era and further will be highlighted. Secondly, the

basis for the use of evidence with regard to customary law will be re-evaluated.

Thirdly, the extent to which customary law may be ascertained ‘readily and with

sufficient certainty’, as required by the section 1(1) of the Evidence Amendment

Act, will be assessed. Finally, several court cases over the last decade will be

examined to determine judicial approach towards using (expert) evidence versus

taking judicial notice of rules of customary law.

*

BA LLB LLD. Professor Extraordinary, University of Pretoria.

**

B Proc LLB LLM Ph D, Associate Professor, University of Pretoria.

1

Although the Constitution itself does not define customary law, a definition is provided in s 1(ii) of

the Customary Marriages Act 120 of 1998, namely, ‘the customs and usages traditionally observed

among the indigenous African peoples of South Africa and which form part of the culture of these

peoples’. The Law of Evidence Amendment Act 45 of 1988 (as amended by the Justice Laws

Rationalisation Act 18 of 1996), however, uses the term ‘indigenous law’ and defines it in subs 1(4)

as ‘the Black law or customs as applied by Black tribes in the Republic of South Africa’. The term

‘customary law’, in line with the Constitutional terminology, is used predominantly throughout this

article, yet, it is sometimes used interchangeably with ‘indigenous law’, as required by the context.

2

See the text accompanying (n 25)-(n 27) below.

3

Section 1(2) as quoted in text below (hereafter the Evidence Amendment Act).