and thus has met the actual demands of society Moreover customary law exists

And thus has met the actual demands of society

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and thus has met the actual demands of society. Moreover, customary law exists not only in the "official version" as documented by writers; there also is the "living law", denoting "law actually observed by African communities" (Law Commission Project 90 at 12 paragraph 2.3.2; see also TR Nhlapo The African Family and Women's Rights: Friends or Foes 1991 Acta Juridica at 135). The quoted passages by Labuschagne and the Law Commission seem to be the first notations (there might of course be more) of a rule of the "living law" actually observed by the community and testified to by the respondent. It might be argued that because of the dearth of authority on the point, the rule cannot be "ascertained readily and with sufficient clarity" as is provided for in section 1(1) of the Law of Evidence Amendment Act 45 of 1988, and that the court cannot take judicial notice thereof. The evidence of the respondent, admissible in terms of section 1(2) of the said Act, lends support to what the authorities say. This Court should accordingly recognise the rule. Such recognition would constitute a development in accordance with the "spirit, purport and objects" of chapter 3 of the Constitution of the Republic of South Africa Act 200 of 1993 (see section 35(3) of the 1993 Constitution, read in particular with section Page 14 of [1998] JOL 3523 (T) 8 thereof. See further Du Plessis and others v De Klerk and another 1996 (3) SA 860 (CC) per Kentridge AJ at paragraph 59 (at 884F) et seq ). This case was pending when the Constitution of the Republic of South Africa Act 108 of 1996 came into effect. Accordingly the case falls to be dealt with in accordance with the 1993 Constitution; see section 17 of schedule 6 to the 1996 Constitution. I should perhaps add that the applicability or otherwise of the 1993 of 1996 Constitutions was not debated before us. Even if the 1996 Constitution should be applicable, it would not affect the conclusion to which I have come). It is held that on the facts of this case the respondent's mother was in law entitled to negotiate for and receive lobolo in respect of the respondent. She was also in law entitled to act as guardian and consent to the marriage of the respondent. The appeal is accordingly dismissed with costs. Page 15 of [1998] JOL 3523 (T) (Van Der Walt DJP concurs in the judgment of Du Plessis J.)
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  • Fall '18
  • customary law, customary marriage, JC Bekker

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