Embracing living customary law : rethinking the teaching of African customary law : the case of Mgenge v Mokoena

Abstract

Promoting living customary law in the teaching of African customary law is crucial, as it recognises the dynamic and evolving character of the legal system. Traditional approaches to teaching have often relied on codified or “official” versions of customary law, which tend to be static, outdated, or shaped by colonial influences. In contrast, living customary law reflects the actual practices, beliefs, and norms as they develop within communities themselves. South African courts are frequently confronted with cases that demand a nuanced understanding of and sensitivity to the realities of African customary law. This underlines the need to critically assess whether current methods of teaching African customary law are adequate for preparing future legal practitioners to handle such intricate disputes. The judgment in Mgenge v Mokoena exemplifies the evolving nature of living customary law and demonstrates the progress made by South African courts in engaging with it. Notably, the court in Mgenge went beyond merely accepting documentary evidence, such as a marriage certificate, and undertook its own investigation to determine the substance of living customary law regarding the existence of a customary marriage. This reflects a commitment to ensuring that the genuine practices and requirements of customary law are understood and applied, rather than relying exclusively on formal documents. Given these advances in the judiciary, legal academia must reform its teaching methods. This case note draws on lessons from Mgenge v Mokoena and proposes a framework for teaching African customary law which places emphasis on contextual analysis when establishing the realities of living customary law.