Customary Law

Customary law is generally unwritten law. It is fixed practices in accordance with which people live because they regard it as the law. Customary law therefore does not concern all customs or practices, such as practices of polite behaviour. Old Germanic law also consisted of customs. The same can be said of indigenous law. In modern law custom does not play such an important role as a formative source of law. Any assertion of a custom as law has to be proved. The court in the well-known case of van Breda v Jacobs 1921 AD 330, required that the following be proved before a custom could qualify as law⁽²⁾:

• It must be immemorial;
• It must be reasonable;
• It must have continued without exception since its immemorial origin; and
• Its content and meaning must be certain and clear