Customary Law II in Lesotho

• Customary law


  A set of rules and principles which derive from the long-established practice of a particular community or society and regulate behaviour and conduct of that specific society. It is a set of customs, practices and beliefs that are accepted as obligatory rules and principles of conduct by indigenous peoples and local communities. These customs, practices and beliefs are unwritten and are passed from generation to generation as part of the tradition of the specific community.
• Not all customs, practices and belief of the community are law. They become law when they are generally known in the community, have been practiced from time immemorial, they are followed by the general membership of the community, they are believed to be binding by the members of the community and are enforced or enforceable.
• Constitution of Lesotho's definition of customary law

  The customary law of Lesotho for the time being in force subject to any modification or other provision made in respect thereof by any Act of Parliament
• Customary law is by its very nature in a state of flux and is therefore flexible. The very customs, practices and beliefs of the community, the pre-legal building blocks that make up the customary law, keep changing because of the changing circumstances of the community, whether socio-economic or political.
• Customary Law II is concerned with the "living version" of customary law, not the official version.
• Forms of customary law

  • Official version
  • Living version
• Official version of customary law

  Customary law as documented, found in acts of parliament, judicial decisions, writings of legal jurists, sociologists and anthropologists, Lawes of Lerotholi Code, and other documents.
• Customary Law II is focused on the Living Customary Law, not the official customary law.
• What Customary Law II deals with

  • The pre-legal building blocks of customary law (customs, practices, traditions and beliefs of the community/society)
  • Socio-economic and political factors that generate, mediate or influence these practices, customs, traditions and beliefs
  • The nature of the living customary law
  • Its relationship with other normative orders (statutory law, human rights, the Constitution, etc)
  • How the living customary law can be ascertained
  • The constitutional duty of the courts to modify the living version of the customary law
• Important aspects in the study of the Living version of Customary Law

  • Pre-colonial and post-colonial history and development of Basotho
  • Traditional values and value-system: socio-economic values
  • Socio-economic and political institutions and systems of Basotho in pre- and post-colonial periods
  • Socio-economic and political development of Basotho society from hunter-gatherer, to agrarian or horticultural society, and to the present industrial society or post-industrial society, as well as the effect of this developments on the practices, customs and traditions of Basotho
  • Colonialism and its intrusive nature on the socio-economic and political systems of Basotho
  • The codification of Basotho's Living Version of Customary Law (into a Lerotholi Code in 1903) and its aftermath on the inherently flexible nature of customary law
  • The Living Customary Law and the Courts today: problems of ascertaining and applying Living Customary Law
  • Decolonizing customary-law based litigation in Lesotho
• In the study of the Living Customary Law (Customary Law II), a historical, sociological and anthropological perspectives will be taken to the study of traditional law that govern Basotho society.
• Ascertainment


  To find (something) out for certain; to discover it, or identify it. To ascertain the living customary law, means to discover or to find out for certain the existence or content of a particular rule or principle of the living customary law.
• Ascertaining the living customary law

  1. In the past, the court would treat customary law as a matter of fact and not as a matter of law

  2. Witnesses, commissioned officers or those with special knowledge of the customary law in the specific community would provide oral evidence as to the existence or contents of the law

  3. The court may also consult recent sociological or anthropological studies and researches

  4. Based on the evidence and material, the court would then make the decision
• With the advent of colonialism, customary disputes are now resolved first by the Local and central courts, and on appeal, the Judicial Commissioner's Court, and on further appeal, the High Court and the Court of Appeal
• Determining the content of a particular customary law norm

  • Consider the traditions of the community concerned
  • Respect the right of communities that observe systems of customary law to develop their law
  • Consider the practice of the particular community and its history and usage
  • Balance the need for flexibility and development with legal certainty, respect for vested rights, and the protection of constitutional rights
• Courts in Botswana have followed a similar approach as their South African counterparts in the ascertainment of the living customary law
• Courts in Lesotho have relied on "written documents" as reflecting the law, even after more than a century since the codification of the customs and practices of Basotho in 1903 in the Lerotholi Code
• Lerotholi Code


  The 1903 codification of the customs and practices of Basotho
• The official version of customary law may be correct and valid to the extent that it still corresponds with the living customary law mirrored by the social practices, customs and traditions of the society at a given point in its social development
• In Ramootsi v Ramootsi, the Court of Appeal recognized that section 34 of the Laws of Lerotholi Code was not "a codification of the customary law of Lesotho as such" nor "a comprehensive statement of all the Sesotho customary law of marriage"
• The Court of Appeal in Ramootsi considered the social development of Basotho (their practices, customs and traditions) in relation to the aspect of "the payment of bohali" requirement of the Laws of Lerotholi Code
• The Court of Appeal in Ramootsi held that "in this day and age ... bohali is not a sine qua non of the validity of a customary law marriage in all cases" and "what is of fundamental importance is the agreement by the respective parties to create a validly binding customary law marriage regardless of bohali"
• The Ramootsi approach is the searchlight in the discovery of the living customary law norms and principles and the "birth certificate" of the living customary law recognition in Lesotho
• Customary law


  A set of rules and principles which derive from the long-established practice of a particular community or society and regulate behaviour and conduct of that specific society. It is a set of customs, practices and beliefs that are accepted as obligatory rules and principles of conduct by indigenous peoples and local communities. These customs, practices and beliefs are unwritten and are passed from generation to generation as part of the tradition of the specific community.
• Not all customs, practices and belief of the community are law. They become law when they are generally known in the community, have been practiced from time immemorial, they are followed by the general membership of the community, they are believed to be binding by the members of the community and are enforced or enforceable.
• Constitution of Lesotho's definition of customary law

  The customary law of Lesotho for the time being in force subject to any modification or other provision made in respect thereof by any Act of Parliament
• Customary law is by its very nature in a state of flux and is therefore flexible. The very customs, practices and beliefs of the community, the pre-legal building blocks that make up the customary law, keep changing because of the changing circumstances of the community, whether socio-economic or political.
• Customary Law II is concerned with the "living version" of customary law, not the official version.
• Forms of customary law

  • Official version
  • Living version
• Official version of customary law

  Customary law as documented, found in acts of parliament, judicial decisions, writings of legal jurists, sociologists and anthropologists, Lawes of Lerotholi Code, and other documents.
• Customary Law II is focused on the Living Customary Law, not the official customary law.
• What Customary Law II deals with

  • The pre-legal building blocks of customary law (customs, practices, traditions and beliefs of the community/society)
  • Socio-economic and political factors that generate, mediate or influence these practices, customs, traditions and beliefs
  • The nature of the living customary law
  • Its relationship with other normative orders (statutory law, human rights, the Constitution, etc)
  • How the living customary law can be ascertained
  • The constitutional duty of the courts to modify the living version of the customary law
• Important aspects in the study of the Living version of Customary Law

  • Pre-colonial and post-colonial history and development of Basotho
  • Traditional values and value-system: socio-economic values
  • Socio-economic and political institutions and systems of Basotho in pre- and post-colonial periods
  • Socio-economic and political development of Basotho society from hunter-gatherer, to agrarian or horticultural society, and to the present industrial society or post-industrial society, as well as the effect of this developments on the practices, customs and traditions of Basotho
  • Colonialism and its intrusive nature on the socio-economic and political systems of Basotho
  • The codification of Basotho's Living Version of Customary Law (into a Lerotholi Code in 1903) and its aftermath on the inherently flexible nature of customary law
  • The Living Customary Law and the Courts today: problems of ascertaining and applying Living Customary Law
  • Decolonizing customary-law based litigation in Lesotho
• In the study of the Living Customary Law (Customary Law II), a historical, sociological and anthropological perspectives will be taken to the study of traditional law that govern Basotho society.