Custom Versus Customary Law: Does South African Jurisprudence Draw the Distinction?

Abstract

This article presents a critical analysis of whether South African courts employ established theoretical concepts to delineate the boundaries between custom and customary law. To facilitate a comprehensive understanding, the article begins by providing an overview of the South African legal system, laying the groundwork for the subsequent discussion. The article then delves into prominent theories that address the differentiation between custom and customary law, providing a succinct summary of each. Finally, the article examines the degree to which these theories have been embraced by the courts. Notably, the article uncovers the courts’ emphasis on factors such as certainty and the protection of human rights when deciding whether to apply customary law, rather than relying solely on the distinction between custom and customary law.