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4. Living law and the role of the courts Thankfully, there is no longer any doubt in South African legal circles that the customary law recognised by the Constitution is living customary law as opposed to official customary law. What was hinted at in the pronouncements of the court in the Certification case has been amplified and clarified in a series of decisions, notably Alexkor v Richtersveld Community, Bhe, Shilubana, and Mayelane. In Alexkor, the Court declared the main principles relating to an observance of living customary law in the following terms: _ While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution; _ The courts are obliged by section 211(3) of the Constitution to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law. In doing so the courts must have regard to the spirit, purport and objects of the Bill of Rights; _ It is clear, therefore that the Constitution acknowledges the originality and distinctiveness of indigenous law as an independent source of norms within the legal system. At the same time the Constitution, while giving force to indigenous law, makes it clear that such law is subject to the Constitution and has to be interpreted in the light of its values. Furthermore, like the common law, indigenous law is subject to any legislation, consistent with the Constitution, that specifically deals with it.48 In the result, indigenous law feeds into, nourishes, fuses with and becomes part of the amalgam of South African law; _ …indigenous law may be established by reference to writers on indigenous law and other authorities and sources, and may include the evidence of witnesses if necessary. However, caution must be exercised when dealing with textbooks and old authorities because of the tendency to view indigenous law through the prism of legal conceptions that are foreign to it. In the course of establishing indigenous law, courts may also be confronted with conflicting views on what indigenous law on a subject provides. The difficulties inherent in following the living-law path have not been lost on the courts. Thus, in Bhe, Langa DCJ observes: The question whether the Court was in a position to develop that rule in a manner which would ‘promote the spirit, purport and objects of the Bill of Rights’ evoked considerable discussion during argument. In order to do so, the Court would first have to determine the true content of customary law as it is today and to give effect to it in its order. There is however insufficient evidence and material to enable the Court to do this. The difficulty lies not so much in the acceptance of the notion of ‘living’ customary law, as distinct from official customary law, but in determining its content and testing it, as the Court should, against the provisions of the Bill of Rights. (Emphasis added) There has also been no shortage of attempts at setting out some guidelines for the courts when faced with the need to ascertain a rule of living law. For instance Van der Westhuizen J in Shilubana set out a useful framework: Customary law must be permitted to develop, and the enquiry must be rooted in the contemporary practice of the community in question. Section 211(2) of the Constitution requires this. The legal status of customary-law norms cannot depend simply on their having been consistently applied in the past, because that is a test which any new development must necessarily fail. Development implies some departure from past practice. A rule that requires absolute consistency with past practice before a court will recognise the existence of a customary norm would therefore prevent the recognition of new developments as customary law. This would result in the courts applying laws which communities themselves no longer follow, and would stifle the recognition of the new rules adopted by the communities in response to the changing face of South African society. (Emphasis added)