QUESTION 3 (a) Write down the definition of customary law as it appears from section 1 of the Recognition of Customary Marriages Act 120 of 1998; and then use its wording to explain the nature, role and function of this component of the South African legal system as appears from case law. (10) (b) Apply extracts (i) and (ii) below to analyse the differences between the status, nature and characteristics of customary law under the pre- and the postconstitutional periods in South African law -

(i) Section 11(1) of the Black Administration Act 38 of 1927 reads in part: "it shall be in the discretion of the Commissioners' Courts in all suits or proceedings between Blacks involving questions of customs followed by Blacks, to decide such questions according to the Black law applying to such customs except in so far [as] it shall have been repealed or modified: provided that such Black law shall not be opposed to the principles of public policy or natural justice..." (pre-Constitutional law); and -

(ii) Section 211(3) of the Constitution of the Republic of South Africa, 1996 reads: "The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law." (post-Constitutional law). (NB-The value of your answer will be enhanced by the application of relevant case law).