Abstract

Proving living customary law in court can be a challenging task. This is further exacerbated by the fact that although the foundational values of a customary practice may be uniform, practices may differ, with the result that courts may hear different versions based on the same norm. The court to date has merely opted for one version over another, without establishing whether a practice is observed as obligatory or as a social practice. The argument of this contribution is that although determining living customary law in court is mired in difficulties, the courts have exacerbated the problem by not interrogating whether certain practices are observed out of a sense of obligation. The courts also tend to find unconstitutionality, even when the customary practice in question may have solutions that are consistent with the Constitution. Although customary law is subject to the Constitution, this does not necessarily mean that the Constitution is the only solution to adjudicate disputes. It is further argued that courts exacerbate the problem further by accepting evidence that is submitted, without determining the motive behind such evidence given by witnesses.