Transforming Customary Law of Marriage in South Africa and the Challenges of Its Implementation with Specific Reference to Matrimonial Property

Chuma Himonga

doi:10.1017/S0731126500004121

Article

Transforming Customary Law of Marriage in South Africa and the Challenges of Its Implementation with Specific Reference to Matrimonial Property

Chuma Himonga

Published/Copyright: February 28, 2019

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From the journal International Journal of Legal Information Volume 32 Issue 2

Abstract

This paper briefly discusses the transformation of the customary law of marriage in South Africa by the Recognition of Customary Marriages Act of 1998 Act (hereafter referred to as the Act), and the likely challenges of implementing the new law. The latter will be demonstrated by reference to section 7 of the Act, which regulates the matrimonial property.

1
Act 120 of 1998 (commencement 15 November 2000).
2
See for example, Ex parte Minister of Native Affairs: In Re Yako v Beyi1948 (1) SA 388 (A).
3
See the Law of Evidence Amendment Act 45 of 1988, s 1 (1). BennettT.W.Customary Law in South Africa. Juta & Co., Cape Town, 1991. 42 p.
4
Act 200 of 1993.
5
See for example, Ismail v Ismail1983 (1)SA 1006 (A), Sanatam v Fondo1960 (2) SA 467 (A). But cf Ryland v Edros1997 (2) SA 690 (C).
6
Act 108 of 1996.
7
See Rylands v Edros supra fn. 5.
8
See, for example, Mthembu v Letsela1997 (2) SA 936 (T) at 944.
9
See supra fn. 1.
10
Ibid.
11
See South African Law Commission Report on Customary Marriages of 1998 (Project 90 the Harmonisation of the Common Law and the Indigenous Law) 130.
12
See report of the South African Law Commission on Marriages and Customary Unions of Black Persons of 1986 (Project 51).
13
See s 2 (1-4) and s 1 (iii) of the Act.
14
See supra fn. 11 at 95.
15
See s 3 (3)(a).
16
S6 of the Act.
17
See Age of Majority Act 57 of 1972, s1.
18
See the Transkei Marriage Act of 1978, 29, 37-39; the Kwazulu Code and the Natal Code of Zulu law, 27(3). These provisions were repealed by section 13 of the Act. For the discussion of the position before the commencement of the Act seeBennettT.W.A Sourcebook of African Customary Law, Cape Town: Juta & Co., 1991. 317-37 pp.; SinclairJ.D., The Law of Marriage, Cape Town, Juta & Co., 1996. 247-250 pp.
19
The application of certain provisions of the Matrimonial Property Act 88 of 1984, which governs civil marriages contracted under common law, extends to customary marriages as well.
20
That is marriages contracted in accordance with the Marriage Act 25 of 1961, which were the only marriages that received full legal recognition until the commencement of the Recognition of Customary Marriages Act.
21
Act 120 of 1998, s 7(6) and (8).
22
Ibid. S 7(1).
23
Ibid. S 7(4).
24
The Act does not, however, prohibit mediation of marital disputes by traditional methods (see s8 (5)).
25
See 8(1)(2) of the Act.
26
According to Mbata, the presiding officers in traditional institutions comprising of chiefs and headmen's courts are exclusively men (MbataLikhaphaGender Research Project Bulletin vol. 4/99 summer 5-6).
27
See supra fn. 11.
28
S 8 (4) (e) of the Act, which incorporates s 7 (1) (2) of the Divorce Act 70 of 1979.
29
Sees 8 (4) (a) of the Act, which extends the application of the relevant provisions of the Divorce Act of 1979 to customary marriages as well.
30
See s 7 (4).
31
S 7(8).
32
S 7 (7)(a)(i-iii).
33
S 7 (7)(b)(i-iii)).
34
S 7 (9).
35
See section 4 of the Act.

Published Online: 2019-02-28

Published in Print: 2004-06-01

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https://doi.org/10.1017/S0731126500004121