McGill Law Journal ~ Revue de droit de McGill
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA
AND THE INTRICACIES OF A MIXED LEGAL SYSTEM:
JUDICIAL (IN)NOVATIO OR CONFUSIO?*
Christa Rautenbach and Willemien du Plessis**
South Africa has a mixed legal system com-
prised of transplanted European laws (the core be-
ing Roman-Dutch law, subsequently influenced by
English common law) and indigenous laws, re-
ferred to as customary law. This mix is also evident
in South Africas marriage laws, which can roughly
be divided into two categories: civil marriages or
unions, and African customary marriages. Since
1994, the developments in these two categories of
marriage have been revolutionary. The case law
reads like a jurisprudential chronicle of factual sit-
uations never contemplated by the legislator, and
the judiciary must resort to innovation to solve the
intricacies of a constitutionalized mixed legal sys-
tem. To deal with the challenges posed by the in-
teraction of two seemingly equal legal systems in
one legal sphere, the courts have followed a variety
of approaches including legal positivism, the appli-
cation of common law principles, and, more recent-
ly, the notion of transformative constitutionalism.
The primary aim of this essay is to discuss the
sometimes innovative and at other times confusing
approaches followed by the judiciary in dealing
with the complexities created by a mixed legal sys-
tem, especially with regard to marriages between
Africans.
essentiellement du droit
LAfrique du Sud a un systme de droit
mixte, comprenant un hritage de lois europennes
(venant
romano-
nerlandais, influenc ensuite par la common law
anglaise) et des lois autochtones, ou droit coutu-
mier. Ce mlange est vident lorsquon regarde les
lois sud-africaines du mariage, qui peuvent tre di-
vises en deux catgories : mariages ou unions ci-
viles, et mariage coutumier africain. Depuis 1994,
les dveloppements de ces deux catgories de ma-
riage ont t rvolutionnaires. La jurisprudence se
lit comme une chronique de situations factuelles
jamais envisages par le lgislateur, et le judiciaire
doit faire preuve dinnovation pour rsoudre les
complications rsultant dun rgime constitutionnel
de droit mixte. Pour rpondre aux dfis poss par
linteraction, dans une seule sphre juridique, de
deux systmes de droit en apparence gaux, les
tribunaux ont suivi plusieurs approches, incluant
le positivisme juridique, lapplication de principes
de common law et, plus rcemment, la notion de
constitutionnalisme transformateur. Le principal
objectif de cet article est de discuter des approches
parfois innovantes ou encore droutantes que sui-
vent les tribunaux afin de rgler les complications
cres par un systme de droit mixte, particuli-
rement dans le domaine du mariage entre Afri-
cains.
* The term novatio refers to renewal or change whilst the term confusio usually bears
the meaning of mixing or combining, although it can also denote confusion or dis-
order. In the context of this article, the term confusio includes both meanings depend-
ing on the method of judicial reasoning applied in a particular case and the result of
that reasoning.
** Professors of Law, North-West University (Potchefstroom Campus), South Africa. An
earlier version of this contribution, entitled Methodology and Innovation in Mixed Le-
gal Systems, was presented at the Third International Congress of the World Society of
Mixed Jurisdiction Jurists (20-23 June 2011) at the Hebrew University of Jerusalem,
Israel. Christa Rautenbach is indebted to the Alexander von Humboldt Foundation and
the National Research Foundation for their financial assistance, but remains responsi-
ble for any errors and viewpoints.
Christa Rautenbach and Willemien du Plessis 2012
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Introduction
I.
Legal Framework for Marriages between Africans:
Setting the Scene
A. Customary Marriages between Africans
B. Civil Marriages or Unions between Africans
II. Addressing African Customary Marriages: Judicial
Approaches
A. Legal Positivism: The Easy Way Out?
B. Common Law Principles: Potjiekos Mix?
C. Transformative Constitutionalism: Knight in Shining
Armour?
Conclusion: Is There Method in the Madness?
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 751
Introduction
Since 1994, legal developments in South Africas mixed legal system1
have been revolutionary.2 Marriage law, in particular, has undergone
groundbreaking changes over the last few years. In the South African
context, the term marriage law deals with marriages or marriage-like
unions that can broadly be divided into three categories. The first catego-
ry includes so-called civil marriages which are regulated by the Mar-
riage Act, 19613 and by common law principles.4 These marriages are mo-
nogamous and may only be entered into by heterosexual couples, regard-
less of their cultural or religious background.5 For more than five decades,
only these marriages were recognized as valid marriages; all other unions
1 South Africas mixed legal system consists of transplanted European laws, referred to
as the common law of South Africa, and indigenous laws, referred to as customary law.
See Christa Rautenbach, Mixing South African Common Law and Customary Law of
Intestate Succession: Potjiekos in the Making in Esin rc, ed, Mixed Legal Systems
at New Frontiers (London, UK: Wildy, Simmonds & Hill, 2010) 222 at 222 [Rautenbach,
Potjiekos].
The common law is chiefly a mixture of RomanDutch law and English common
law that has been developed by means of legislation and judicial decisions. It can be
found in legislation, precedent, RomanDutch law, custom, and legal textbooks (see
Christa Rautenbach, Deep Legal Pluralism in South Africa: Judicial Accommodation of
Non-State Law (2010) 60 J Legal Pluralism 143 at 144, n 3).
African customary law is the various laws observed by indigenous communities. It
is recognized under the Constitution of the Republic of South Africa, 1996 (s 211 [Con-
stitution]) and it can be found in scholarly textbooks, legislation, judicial decisions, and
living custom. In terms of the Recognition of Customary Marriages Act, 1998 ((S Afr),
No 120 of 1998, s 1(ii) [Recognition Act]), customary law means the customs and usages
traditionally observed among the indigenous African peoples of South Africa and which
form part of the culture of those peoples. This definition poses its own problems, as
pointed out by JC Bekker & C Rautenbach (Nature and Sphere of Application of Afri-
can Customary Law in South Africa in C Rautenbach, JC Bekker & NMI Goolam, eds,
Introduction to Legal Pluralism in South Africa, 3d ed (Durban: LexisNexis, 2010) 15 at
17-23).
2 Most of the developments can be attributed to the inclusion of human rights provisions
in the Constitution of the Republic of South Africa Act, No 200 of 1993 [Interim Consti-
tution], which was replaced by the Constitution (supra note 1).
3 (S Afr), No 25 of 1961 [Marriage Act]. The Marriage Act has been regulating marriages
in South Africa since 1 January 1962. The act does not provide a definition of a mar-
riage, but the common law definition of a voluntary union between a man and a woman
to the exclusion of all others has been accepted as the norm. See Ismail v Ismail (1982),
[1983] 1 S Afr LR 1006 at 1019, (S Afr SC) [Ismail].
4 For an explanation of what the common law means, see supra note 1.
5 For a general discussion of civil marriages, see DSP Cronj & Jacqueline Heaton, South
African Family Law, 3d ed (Durban: LexisNexis, 2010) at 3-107.
752 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
that did not fit the bill, including African customary marriages,6 were
treated with suspicion and contempt. The first bill of rights,7 passed in
1994 and followed by the second and final one in 1996,8 had an almost
immediate influence on traditional views of what constitutes a marriage.
After a long line of judicial decisions challenging traditional views of
what constitutes a marriage relationship and what consequences it en-
genders,9 the second category came to life on 30 November 2006 with the
passing of the Civil Union Act, 2006.10 This act allows heterosexual and
same-sex couples to enter into a so-called civil union regardless of their
cultural or religious background.11 The requirements for, and consequenc-
es of, civil unions are similar to civil marriages, but neither form allows
polygyny (marriage between one man and more than one wife). Religious
marriages, such as Muslim and Hindu marriages, remain unrecognized
under South African law.12
This brings us to the third category and the main point under discus-
sion: African customary marriages. In the past, these marriages were rec-
ognized only for limited purposes.13 Again, with the bill of rights as a cata-
lyst, the situation quickly changed, first owing to the courts and then to
the legislature.14 Most notably, the Recognition Act15 came into operation
6 For a general discussion of African customary marriages in South Africa, see R-M Jan-
sen, Customary Family Law in Rautenbach, Bekker & Goolam, supra note 1, 45.
7 See Interim Constitution, supra note 2, c 3.
8 Constitution, supra note 1, c 2.
9 For a discussion of one of these cases, see Ann Skelton et al, eds, Family Law in South
Africa (Cape Town: Oxford University Press Southern Africa, 2010) at 169-70.
10 (S Afr), No 17 of 2006 [Civil Union Act].
11 The legal consequences of a civil marriage and a civil union are similar, but the latter
creates an alternative method for couples who have moral objections to the traditional
form of marriage (see Skelton et al, supra note 9 at 170-71).
12 For a general discussion of the legal position of religious marriages in South Africa, see
C Rautenbach, NMI Goolam & N Moosa, Religious Legal Systems: Constitutional
Analysis in Rautenbach, Bekker & Goolam, supra note 1, 187. The Muslim Marriages
Bill (Department of Justice and Constitutional Development, Government Gazette No
33946 (21 January 2011)) was published in 2011. Its aim, as described in the back-
ground to the bill, is to provide statutory recognition of Muslim marriages in order to
redress inequities and hardships arising from the non-recognition of these marriages
(ibid). The bill applies only to persons who adhere to the Muslim faith and who choose
to be bound by its provisions.
13 See the discussion at subsection I.A, below.
14 For a discussion, see Skelton et al, supra note 9 at 167-70 (regarding civil marriages
and unions), 195-97 (regarding religious marriages).
15 Supra note 1.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 753
on 15 November 2000.16 The purpose of this act, as stated in its title, is to
give statutory recognition to monogamous and polygynous customary
marriages17 and to specify the requirements for a valid customary mar-
riage.18 In addition, the Recognition Act addresses issues such as registra-
tion,19 proprietary consequences,20 dissolution,21 the capacity of spouses,22
and ability to change marriage system.23
African couples24 thus have several choices of marriage regime. They
may either conclude a civil marriage under the Marriage Act, a civil union
under the Civil Union Act, or a monogamous or polygynous customary
marriage under the Recognition Act. The latter only applies if both spous-
es are African.
At the Second World Society of Mixed Jurisdiction Jurists Confer-
ence25 it was illustrated that, although the Recognition Act regulates Afri-
can customary marriages, the act actually follows a hybrid approach that
reflects both customary and common law characteristics.26 At first glance,
the combination of these two legal systems seems to be conciliatory, har-
monizing the different marriage systems in South Africa. A second glance,
however, reveals that the practical implementation of the provisions of
the Recognition Act has been less harmonious than anticipated. Judicial
interpretation to date reflects a discord between law and reality. The rele-
vant issues often come to the fore upon the death of one of the spouses,
most notably the husband, where more than one wife remains behind to
fight for legal recognition as a spouse. The case law reads like a jurispru-
dential chronicle of factual situations never contemplated by the legisla-
16 See Recognition of Customary Marriages Act, 1998 (Act No 120 of 1998) Regulations, (S
Afr), No R 1101, s 11 (1 November 2000).
17 Recognition Act, supra note 1, s 2.
18 Ibid, s 3.
19 Ibid, s 4.
20 Ibid, s 7.
21 Ibid, s 8.
22 Ibid, s 6.
23 Ibid, s 10.
24 The term African refers to black people living in South Africa. See Christa Rauten-
bach & Willemien du Plessis, Reform of the South African Customary Law of Succes-
sion: Final Nails in the Customary Law Coffin? in Jeanmarie Fenrich, Paolo Galizzi &
Tracey E Higgins, eds, The Future of African Customary Law (Cambridge: Cambridge
University Press, 2011) 336 at 338-39, n 16.
25 (Edinburgh, UK, 27-30 June 2007).
26 See Marissa Herbst & Willemien du Plessis, Customary Law v Common Law Marriag-
es: A Hybrid Approach in South Africa, online: (2008) 12:1 EJCL 30
754 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tor, and the judiciary is forced to resort to innovation to solve the intrica-
cies of a constitutionalized mixed legal system. Recently, the Constitu-
tional Court in Gumede v. President of Republic of South Africa referred
to this disharmony by stating (in the context of customary marriages):
At one level, the case underlines the stubborn persistence of patriar-
chy and conversely, the vulnerability of many women during and
upon termination of a customary marriage. At another level, the
case poses intricate questions about the relative space occupied by
pluralist legal systems under the umbrella of one supreme law,
which lays down a common normative platform.27
Facing the challenges posed by the interaction of two seemingly equal
marriage systems in one legal sphere, the courts have followed a variety
of approaches to African customary marriages, including legal positiv-
ism,28 the application of common law principles,29 and, more recently, the
notion of transformative constitutionalism.30 This essay discusses the
sometimes innovative, and at other times confusing judicial approaches to
these complexities, focusing on the courts approach to African customary
marriages in a mixed legal system that caters to cultural diversity. We
begin with a brief historical discussion of the prevalence of customary
marriages in South Africa,31 followed by an overview of civil marriages or
unions between Africans.32 The discussion then proceeds to examine three
judicial approaches to African customary marriages.33 It is not our inten-
tion to give a detailed analysis of all the cases dealing with the issues to
date. We focus our attention on three recent cases, each following a differ-
ent judicial approach, to illustrate some of the complexities that arise in a
mixed legal jurisdiction.
I. Legal Framework for Marriages between Africans: Setting the Scene
It is necessary to give a brief historical overview of the recognition of
the different marriage regimes pertaining to Africans in South Africa. A
distinction should be drawn between customary marriages and civil mar-
riages or unions between Africans. Africans are in a unique position to
27 (2008) [2009] 3 S Afr LR 152 at 154, (S Afr Const Ct) [Gumede].
28 See MM v MN [2010] 4 S Afr LR 286, (Transv Prov Div) [MM]. See the discussion at
subsection II.A, below.
29 See Maluleke v Minister of Home Affairs [2008] ZAGPHC 129 (SAFLII) at paras 11ff,
(Wit Local Div) [Maluleke]. See the discussion at subsection II.B, below.
30 See Gumede, supra note 27. See also the discussion at subsection III.C, below.
31 See the discussion at subsection I.A, below.
32 See the discussion at subsection I.B, below.
33 See the discussion at subsection II, below.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 755
choose which legal system, the common or the customary law, should ap-
ply to them. All other population groups are subject to the common law
and must choose between the Marriage Act (civil marriage) and the Civil
Union Act (civil union).34 They cannot opt for a marriage under the Recog-
nition Act.
A. Customary Marriages between Africans
When British colonists arrived on South African soil in the nineteenth
century, they found a polygynous marriage system that was foreign to
them.35 Missionaries condemned these marriages as a form of slavery
where women were bought and sold by the payment of lobolo (bride-
wealth).36 The true character of African customary marriages, being an
arrangement between families where lobolo was seen as an expression of
appreciation for the upbringing of the daughter, as well as a measure to
ensure that she was treated properly by her husband and his family, was
not immediately evident. The customary marriage was a formal, though
unwritten, arrangement between two families. It was publicized when the
community took notice of the ritualistic transfer of the bride to the family
of the groom.37
Because of their potentially polygynous nature, customary marriages
were regarded as inconsistent with the principles of natural law. For this
reason, for many years they went unrecognized by the state.38 Neverthe-
less, beginning in 1927, the custom of lobolo was protected by the Black
Administration Act,39 which prevented the courts from finding this custom
34 The limited recognition of certain religious marriages falls outside the scope of this dis-
cussion.
35 See TW Bennett, Customary Law in South Africa (Lansdowne, South Africa: Juta,
2004) at 188 [Bennett, Customary Law]. The terms polygynous and polygyny refer to
the union of one man with more than one wife. This is the only polygamous marriage
form practised in South Africa.
36 CRM Dlamini, The Role of Customary Law in Meeting Social Needs in TW Bennett et
al, eds, African Customary Law (Cape Town: Juta, 1991) 71 at 78. See also WA Joubert,
JA Faris & Joan Church, eds, The Law of South Africa, 2d ed (Durban: LexisNexis,
2009) vol 32 at 108-109.
37 Dlamini, supra note 36 at 78-79.
38 See e.g. Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo
[1960] 2 S Afr LR 467, (S Afr SC). See also Ismail, supra note 3, which was eventually
overruled in Hassam v Jacobs [2009] 5 S Afr LR 572, (S Afr Const Ct) [Hassam].
39 Black Administration Act, (S Afr), No 38 of 1927, amending Native Administration Act,
No 38 of 1927, s 22(1) [Black Administration Act]. The Black Administration Act was
almost entirely repealed by the Repeal of the Black Administration Act and Amendment
of Certain Laws Act, (S Afr), No 28 of 2005, including the sections dealing with mar-
riage.
756 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
to be against the principles of natural law. Though customary unions
were not formally recognized as valid marriages at that stage, some of the
consequences of customary unions were regulated by legislation.40 The
uncertainty regarding the exact status of customary unions continued un-
til they were finally recognized as valid marriages on 15 November 2000
by the Recognition Act.
Just as customary marriages were not recognized before 15 November
2000, neither was the associated matrimonial property regime regulated.
No distinction between in community of property and out of community of
property,41 as in common law marriages, existed; rather, the rules of cus-
tomary law generally distinguished between family property, house prop-
erty, and personal property. Family property was controlled by the head
of the family, house property by the eldest son of the particular house (or
the fatherthe head of the familyin the absence of a son), and personal
property consisted of a few personal items.42 When a marriage was dis-
solved, the wife was supposed to return to her own family where the head
of that family had to take care of her.43
The post-November 2000 regime introduced by the Recognition Act is
a far cry from the older system. The new regime creates a customary mar-
riage in community of property, unless the parties wish to regulate their
matrimonial property by way of an antenuptial contract.44 Upon a subse-
40 See e.g. Bantu Laws Amendment Act, (S Afr), No 76 of 1963, s 31(1) (A partner to a
customary union … [shall] be entitled to claim damages for loss of support from any per-
son who unlawfully causes the death of the other partner to such union or is legally lia-
ble in respect thereof, provided such partner or such other partner is not at the time of
such death a party to a subsisting marriage); Workmens Compensation Act, (S Afr), No
30 of 1941, s 4(3) (In the case of a native, widow includes any woman who was associ-
ated with a deceased native workman in a conjugal relationship according to native law
and custom where neither the man nor the woman was a party to a subsisting mar-
riage); Maintenance Act, (S Afr), No 23 of 1963, s 5(6) (For the purposes of determining
whether a [Bantu African] … is legally liable to maintain any person, he shall be
deemed to be the husband of any woman associated with him in a customary union).
41 A marriage in community of property means that the spouses have an undivided and
indivisible half share of the joint estate and that they are co-owners of the joint estate.
If the spouses concluded a valid antenuptial contract prior to their marriage whereby
community of property is excluded, the marriage is referred to as one out of community
of property. In the latter case the two spouses retain their own separate estates and no
merging of estates occurs. For a discussion of the various common law matrimonial
property systems, see Skelton et al, supra note 9 at ch 5.
42 Joubert, Faris & Church, supra note 36 at 125-28.
43 TW Bennett, Human Rights and African Customary Law Under the South African
Constitution (Cape Town: Juta, 1995) at 125.
44 See Recognition Act, supra note 1, s 7(2), which reads:
A customary marriage entered into after the commencement of this Act in
which a spouse is not a partner in any other existing customary marriage, is
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 757
quent customary marriage, the husband must apply to a court to approve
a written contract which will regulate the future matrimonial property
system of his marriages.45 The court must first divide the existing prop-
erty between the current wife and husband before establishing the new
matrimonial property regime by way of an order of the court.46 It is im-
portant to note that customary marriages concluded before the com-
mencement of the Recognition Act will continue to be regulated by cus-
tomary law.47 Divorce is only possible by way of a court order.48
Before November 2000, there was no requirement for the registration
of customary marriages, except in the former homelands49 such as the
Transkei, Bophuthatswana, and KwaZulu.50 The nonregistration of mar-
riages gave rise to a number of court decisions, which ranged from regard-
ing registration as prima facie proof of the existence of a customary mar-
riage, to declaring the marriage void.51 Today, the Registration Act places
a marriage in community of property and of profit and loss between the
spouses, unless such consequences are specifically excluded by the spouses in
an antenuptial contract which regulates the matrimonial property system of
their marriage.
In Gumede v President of the Republic of South Africa ([2008] ZAKZHC 41 (SAFLII) at
para 17, (D&C Local Div) [Gumede 2008]) the High Court found the differentiation be-
tween customary marriages concluded before and after the commencement of the
Recognition Act to be unconstitutional, and held the words entered into after the com-
mencement of this Act to be invalid. The Constitutional Court confirmed this order in
Gumede (supra note 27).
45 Recognition Act, supra note 1, s 7(6).
46 Ibid, s 7(7).
47 Ibid, s 2 (read with section 7(1)). This provision was also declared unconstitutional and
invalid in Gumede (supra note 27). The Constitutional Court in Gumede also confirmed
the order of invalidity but held that [t]he order of constitutional invalidity in relation to
s 7(1) of the Recognition Act is limited to monogamous marriages and should not con-
cern polygamous relationships or their proprietary consequences (ibid at 176).
48 Recognition Act, supra note 1, ss 7(6), 7(7), 7(8).
49 Homelands were separate areas set up for Africans within the territory of South Africa.
The idea was that every African had to become a citizen of one of these homelands,
which had different self-governing powers. The homelands were reintegrated into South
Africa in 1994 and the whole idea of separate development ceased to exist.
50 See e.g. Marriage Act, 1978, (Transkei, S Afr), No 21 of 1978; Bophuthatswana Regis-
tration of Customary Unions Act, (Bophuthatswana, S Afr), No 8 of 1977; KwaZulu Act
on the Code of Zulu Law, (Kwazulu, S Afr), No 16 of 1985; Natal Code of Zulu Law,
(Kwazulu, S Afr), Proclamation No R151 of 1987. The codes were repealed by the Kwa-
Zulu-Natal Traditional Leadership and Governance Act, 2005 ((S Afr), No 5 of 2005, s
53), but the repeal has not yet been put into operation.
51 See e.g. Tshatela v Qendwana (17 August 2000), [2001] JOL 7672, (Transkei HC);
Mayelane v Ngwenyama [2010] 4 All SA 211, (Transv Prov Div); Kwitshane v Magalela
[1999] 4 S Afr LR 610, (Transkei HC); Makholiso v Makholiso (1996) [1997] 4 S Afr LR
758 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
responsibility on spouses to have their marriage registered, but failure to
register does not affect the validity of the marriage.52 Given that a certifi-
cate of registration constitutes prima facie proof of the existence of the
customary marriage, it would be foolish not to have a marriage regis-
tered.53
The Recognition Act recognizes existing and future monogamous and
polygynous customary marriages.54 It even allows for conversion from a
customary marriage to a civil marriage,55 but does not allow spouses to
convert a civil marriage to a customary marriage.56
B. Civil Marriages or Unions between Africans
Historically Africans could conclude a type of marriage comparable to
the Western civil marriage but this civil marriage was anything but
equal to the Western civil marriage. The African civil marriages were ini-
tially regulated by the partly repealed Black Administration Act,57 whilst
Western civil marriages were (and still are) regulated by the Marriage
Act, 1961. All civil marriages concluded by Africans were automatically
out of community of property, while all other civil marriages concluded in
the country were (and still are) regarded as being in community of proper-
ty, except where the parties had concluded an antenuptial contract.58 If an
African couple wanted their marriage to be in community of property,
they had to make a declaration stating their intention before a commis-
sioner one month prior to the wedding. When a man already involved in a
customary marriage concluded a civil marriage with another woman, the
first marriage was automatically dissolved. The children of the first mar-
riage were, however, protected in the case of intestate succession in that
the house of their mother was regarded as a house for succession purpos-
es, even though the marriage no longer existed.59 In many instances a son
from this household became the next head of the family of the formally
recognized marriage.
509, (Transkei HC); Kambule v The Master [2007] 3 S Afr LR 403, (E Cape Div), [2007]
4 All SA 898 [Kambule cited to S Afr LR].
52 Recognition Act, supra note 1, ss 4(1), 4(9).
53 Ibid, s 4(8).
54 Ibid, s 2.
55 Ibid, s 10(1).
56 Ibid, s 10(4).
57 Supra note 39.
58 Ibid, s 22(6).
59 Ibid, s 22(7).
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 759
In communal settings polygynous marriages were accepted as a mat-
ter of life. The wives benefited from the companionship and security
which a large establishment provided.60 In a more modern setting the se-
cond wife, in many instances, may live in the city or an urban area; the
two families may have little or no contact, perhaps only realizing the ex-
istence of the other when the husband dies.61 The new head of the family
stepping into the shoes of the deceased husband may not necessarily have
the interests of both households at heart, as he would have had in a true
polygynous setting.
In 1988 there was an attempt to correct potential inequalities by
amending the relevant sections in the Black Administration Act.62 The
new provisions allowed spouses of a customary marriage to convert their
marriage into a civil marriage63 but, most importantly, it prevented
spouses from entering into a consecutive civil marriage with other people
while still married under customary law.64 In addition, a man who wanted
to enter into a civil marriage had to declare that he had dissolved all pre-
vious marriages (including customary marriages and civil marriages) and
had to name all wives and children from previous marriages.65 Contraven-
tions of this rule were punished by fines or imprisonment, but legislative
changes coupled with the possibility of punishment did not stop men from
marrying more than one wife under different marriage regimes.66 They
did not always declare that they already had customary wives and that
they had not dissolved the first marriages. Accordingly, in many cases the
courts have held that the second marriage is void.67
Today, the Recognition Act also prohibits the conclusion of a civil mar-
riage during the existence of a customary marriage.68 If the spouses elect
60 Dlamini, supra note 36 at 77.
61 Martin Chanock, Law, State and Culture: Thinking About Customary Law After
Apartheid in Bennett et al, supra note 36, 52 at 63-64.
62 See the Marriage and Matrimonial Property Law Amendment Act ((S Afr), No 3 of 1988,
s 1), which amended section 22 of the Black Administration Act (supra note 39).
63 Ibid, s 22(1) (which is similar to Recognition Act, supra note 1, s 10(1)).
64 Black Administration Act, supra note 39, s 22(2) (which is similar to Recognition Act,
supra note 1, s 10(4)).
65 Black Administration Act, supra note 39, s 22(3).
66 Ibid, s 22(4).
67 See e.g. Khoza v Phago (15 October 2010), [2010] JOL 26276 (South Gauteng HC);
Nkonki v Nkonki (2000), [2001] 1 All SA 32 (Cape Prov Div).
68 Supra note 1, ss 3(2), 10(1). Section 3(2) reads:
Save as provided in section 10(1), no spouse in a customary marriage shall be
competent to enter into a marriage under the Marriage Act, 1961 (Act No. 25
of 1961), during the subsistence of such customary marriage.
760 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
to enter into or to convert an existing customary marriage into a civil
marriage, the civil marriage must comply with the provisions of the Mar-
riage Act and the common law. In addition, Africans can also enter into a
civil union under the Civil Union Act, but then they cannot enter into a
customary marriage as well.69
The number of court decisions where the courts have had to decide
whether a civil or customary marriage between Africans is valid indicates
the uncertainty that still exists in this area of law.70 When interpreting
the law dealing with these marriages, courts tend to take interesting ap-
proaches to reach what are, according to the courts, fair decisions.71
II. Addressing African Customary Marriages: Judicial Approaches
A. Legal Positivism:72 The Easy Way Out?
In a number of cases conflict arose between the widows of customary
marriages concluded before and widows of marriages concluded after the
commencement of the Recognition Act. In these instances the requirement
that customary marriages be registered was used as an argument to ex-
clude one of the widows from inheritance or from the right to bury the de-
ceased husband.
A case in point is MM,73 where the applicant (MM) was married to the
deceased, HM, in accordance with customary law. Their marriage was
Section 10(1) reads:
A man and a woman between whom a customary marriage subsists are com-
petent to contract a marriage with each other under the Marriage Act, 1961
(Act No. 25 of 1961), if neither of them is a spouse in a subsisting customary
marriage with any other person.
69 Supra note 10, s 8(2).
70 See also in this regard IP Maithufi & JC Bekker, The Existence and Proof of Custom-
ary Marriages for Purposes of Road Accident Fund Claims (2009) Obiter 164.
71 See e.g. R-M Jansen, Multiple Marriages, Burial Rights and the Role of Lobolo at the
Dissolution of the Marriage (2003) 28:1 Journal for Juridical Science 120.
72 In general, legal positivism is the theory that the law depends for its validity on the
state and that the only legitimate sources of law are (depending on the legal system of a
given country) legislation, judicial decisions, common law principles, and other officially
recognized sources of law. See Thomas Mautner, The Penguin Dictionary of Philosophy,
2d ed (London: Penguin Books, 2005) sub verbo positivism; Joel Feinberg & Jules
Coleman, Philosophy of Law, 8th ed (Belmont, Cal: Thomson Wadsworth, 2008) ch 2;
Mark Tebbit, Philosophy of Law: An Introduction, 2d ed (London, UK: Routledge, 2005)
ch 2; David Johnson, Steve Pete & Max du Plessis, Jurisprudence: A South African Per-
spective (Durban: Butterworths, 2001) ch 3, 6.
73 Supra note 28.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 761
concluded in 1984 before the enactment of the Recognition Act, and was
not registered at the office of the Department of Home Affairs. Without
the applicants knowledge, HM married a second wife (the first respond-
ent, MN) in 2008, also according to customary law. The second marriage
was confirmed by the headman of MNs village74 but did not comply with
section 7(6) of the Recognition Act requiring court approval of a written
contract regulating the matrimonial property system.75 The second mar-
riage was also not registered. After HMs death, the applicant attempted
to have her marriage registered but was informed that the first respond-
ent also claimed to have been married to the deceased. As a result, the
Department of Home Affairs refused her application for registration. The
applicant approached the High Court for an order declaring the second
marriage null and void. The first respondent, however, argued that her
marriage was properly and publicly performed, in accordance with cus-
tomary law76 and that it was, therefore, legally valid.
The court analyzed the wording of the Recognition Act and stated that
the acts purpose was to place marriages concluded before and after its
enactment on an equal footing.77 It referred to section 6, which gives
wives in customary marriages equal status,78 and to the fact that the act
allows someone to register a marriage that was concluded prior to enact-
ment of the act.79 The court also indicated that the purpose of section 7
was to protect existing and future wives of the husband, noting:
Both the existing spouse and the intending further spouse have a
vital interest in having their relative proprietary positions safe-
guarded by the procedure that is laid down in [section 7]. Most cus-
tomary marriages are concluded by persons whose access to worldly
74 Ibid at 287. See also Recognition Act (supra note 1, s 4), which allows not only any
spouse to apply for registration, but also anyone who can show that he or she has suffi-
cient interest in the matter.
75 Ibid, s 7(6), which reads:
A husband in a customary marriage who wishes to enter into a further cus-
tomary marriage with another woman after the commencement of this Act
must make an application to the court to approve a written contract which
will regulate the future matrimonial property system of his marriages.
76 MM, supra note 28 at para 288.
77 Ibid.
78 Recognition Act, supra note 1. Section 6 reads:
A wife in a customary marriage has, on the basis of equality with her hus-
band and subject to the matrimonial property system governing the mar-
riage, full status and capacity, including the capacity to acquire assets and to
dispose of them, to enter into contracts and to litigate, in addition to any
rights and powers that she might have at customary law.
79 See MM, supra note 28 at 288.
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goods is limited and whose financial security may be severely preju-
diced by an earlier, or the conclusion of another, marriage if such
fact is not disclosed to the spouses and dealt with by the contract
and the courts approval.80
The court, first, interpreted the legislative provisions dealing with the
proprietary consequences of a customary marriage as set out in section
7(6) of the Recognition Act.81 This provision provides that a husband who
is already a party to a customary marriage must obtain the courts ap-
proval of a written marriage contract before concluding a second custom-
ary marriage. In light of the peremptory language of section 7(6), in con-
junction with the wording of section 7(7)(b)(iii), the court concluded that
noncompliance therewith would lead to the invalidity of the second cus-
tomary marriage.82
Second, the court opined that allowing the husband to marry another
woman without [the] knowledge and acquiescence of the first wife/wives
would be regarded as a gross infringement of the first or earlier spouses
fundamental rights.83 The court then referred cursorily to the fundamen-
tal rights of the wives, including, among others: the right to dignity and to
physical and emotional integrity; the right to protection from abuse (emo-
tional and material); the right to be treated equally, as stated in the
Recognition Act; and the right to receive support from the husband. The
court also held that the future wifes expectation to be informed about
previous marriages should be respected.84 Seeing that the Recognition Act
itself is silent on whether former wives must consent to subsequent mar-
riages, and whether the customary law should prevail in this regard, the
court did not decide the matter; rather, it indicated that the courts in fu-
ture might have to decide the issue of consent.85
Third, the court pointed to the possibility that the rights of children of
previous customary marriages might be harmed by noncompliance with
section 7(2).86 The court briefly referred to section 28(2) of the constitu-
tion, stating that the court should always consider the best interests of
the children, without exploring this argument any further.
80 Ibid at 290.
81 A court may refuse the application [for approval of the marriage contract] if in its opin-
ion the interests of any of the parties involved would not be sufficiently safeguarded by
means of the proposed contract (Recognition Act, supra note 1, s 7(b)(iii)).
82 MM, supra note 28 at 290-91.
83 Ibid at 291.
84 Ibid at 291-92.
85 Ibid.
86 Recognition Act, supra note 1.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 763
The court raised a fourth argument with regard to noncompliance
with section 7(6), namely, that failure to comply with the mandatory pro-
visions of this subsection cannot but lead to the invalidity of a subsequent
customary marriage, even though the Act does not contain an express
provision to that effect.87 In this it followed the positivistic approach ex-
pressed by some family law lawyers,88 rather than adopting the view of
Bennett, an African customary law scholar who proposes that the mar-
riage should be voidable rather than void. According to Bennett, in cases
where parties to a consecutive customary marriage have not approached
the court for approval of the marriage contract, this should be interpreted
to constitute contempt of court; this interpretation could, on the one hand,
lead to the nullity of the marriage or, on the other hand, to it merely being
voidable.89 Bennett prefers the latter outcome because, in his opinion, the
section 7(2) procedure was instituted to protect the long-term interests of
customary wives.90 It would thus be in their best interests to treat the re-
lationship with the husband as a valid marriage91 rather than a void one.
The court rejected Bennetts argument and concluded that it was the in-
tention of the legislature to provide protection to existing wives in section
7(2) and not to create uncertainty.92 According to the court, the first wife
might be prejudiced by a marriage contract concluded by new spouses if
the subsequent marriage is held to be merely voidable.93 The court also
considered the position of a subsequent wife who had no knowledge of
previous marriages and stated that women should be educated about
their rights and the workings of the Recognition Act. Furthermore, if the
subsequent marriage is void for noncompliance with the Recognition Act,
common law remedies are available to the unrecognized wife. She could,
for example, institute a delictual claim against the mans estate, especial-
ly if she was duped into believing she could marry him. If any children
87 MM, supra note 28 at 290.
88 Cronj & Heaton (supra note 5 at 212 [footnotes omitted]) declare as follows:
[T]he absence of such a contract renders the subsequent customary marriage
void, for an interpretation which does not make the husbands capacity to en-
ter into a further customary marriage dependent on the courts approval of
his proposed matrimonial property contract would imply that court approval
is unnecessary (and a waste of time and money), and would leave the inter-
ests of the existing customary wives and their family groups unprotected.
89 Bennett, Customary Law, supra note 35 at 247-48.
90 Ibid at 248.
91 MM, supra note 28 at 292 (citing Bennett, Customary Law, supra note 35).
92 The court declared: With respect to the learned author this argument cannot be upheld
in the light of the legislatures clear intention to accord existing wives the full protection
of the Bill of Rights in the context of customary marriages (MM, supra note 28 at 292).
93 Ibid.
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were born from this void marriage, the marriage would be regarded as a
putative marriage; the children would thus be acknowledged as the legit-
imate children of the deceased, and might claim maintenance from their
fathers estate.94 As no children had been born from the subsequent mar-
riage in this case, the court found that it did not have to elaborate further
on the matter.95
The following quotation clearly illustrates that the court overwhelm-
ingly favoured the first wife in the context of conflict between numerous
wives:
An existing wife may very often be entirely dependent upon her
husband together with her children, may be unaware of her rights,
may be illiterate or too timid or impecunious to seek legal advice,
and may suffer the economic and emotional deprivation brought
about by a subsequent marriage long before a separation as a result
of death or divorce. To rely on an absence of protest by a wife who
may live in fear of rejectionnot to mention the children born of an
earlier unionwould be to consign the issue of voidability to a most
uncertain and indeed arbitrary test.96
The contrary, however, is also true. A consecutive wife might also have
been ignorant of the section 7 procedure in the Recognition Act, as well as
ignorant of the fact that her husband was a partner in a previous mar-
riage and that a void marriage could leave them destitute. The court did
not consider the time, effort, and cost it would take a subsequent wife to
institute court proceedings where necessary.97 It also did not consider that
she may not have the means or knowledge to institute delictual proceed-
ings. One wonders whether the court might have taken a different ap-
proach if there were children born from the second marriage.
Another point of concern is the courts approach in reaching its final
conclusion. The court relied on the positivist-cum-literal approach as set
out in Minister of Environmental Affairs and Tourism v. Pepper Bay Fish-
ing (Pty) Ltd; Minister of Environmental Affairs and Tourism v. Smith.98
In this case the court referred to the general principle of interpretation,
namely that language of a predominantly imperative nature such as
must is to be construed as peremptory rather than directory unless there
94 Ibid at 293.
95 Ibid at 292-93.
96 Ibid at 292.
97 See IP Maithufi & JC Bekker, Baadjies v Matubela 2002 3 SA 427 (W) [2003] Journal
of South African Law 753 at 760 [Maithufi & Bekker, Baadjies] (expressing concern
over litigation costs).
98 (2003), [2004] 1 S Afr LR 308, (S Afr SC), [2003] 4 All SA 1 [Pepper Bay Fishing cited to
S Afr LR].
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 765
are other circumstances which negate this construction.99 Although such
a viewpoint is in accordance with the general rules of statutory interpre-
tation,100 it is important to bear in mind that Pepper Bay Fishing deals
with rejected applications for fishing rights and not with the validity of
customary marriages. In Pepper Bay Fishing the applicants did not com-
ply with the prescribed requirements of a general notice (an invitation to
submit applications) and its procedural guidelines issued in terms of the
Marine Living Resources Act, 1998.101 The court stated:
As a general principle an administrative authority has no inherent
power to condone failure to comply with a peremptory requirement.
It only has such power if it has been afforded the discretion to do
so.102
The court also found that the chief director had no discretion to condone
defects in the applications.103 Another important difference between the
two cases is the fact that the decision maker in MM was a court that had
to decide whether or not the marriage contract ought to have been ap-
proved (section 7 procedure), while the administrative body in the Pepper
Bay Fishing case had to make a final decision. In addition, the facts of the
two cases were totally different. Pepper Bay Fishing addressed an applica-
tion for fishing rights where thousands of applications across the 22 sec-
tors were anticipated104 whilst the MM case dealt with the law of mar-
riage, where more than one persons life and livelihood was affected on a
long-term basis.
There can be no doubt that a positivistic approach to the text of an act
provides an easy way out of a sticky situation. The facts of MM clearly il-
lustrate how courts are often faced with a dilemma whereby a decision in
favour of one party will inevitably prejudice another. Even in a literal ap-
proach to the law, however, there are certain guidelines the court in MM
could have followed.105 For example, if the relevant provision is framed
positively and no sanction is imposed, it may be concluded that the provi-
sion is directory. Occasionally it is also necessary to regard the history of
99 Ibid at 321 [emphasis added].
100 See Christo Botha, Statutory Interpretation: An Introduction for Students, 4th ed (Cape
Town: Juta, 2005) at 111.
101 (S Afr), No 18 of 1998. See also Department of Environmental Affairs and Tourism,
General Notice 1771 of 2001, Government Gazette No 22517 (27 July 2001).
102 Pepper Bay Fishing, supra note 98 at 320.
103 Ibid at 322.
104 Ibid at 314.
105 See in this regard Botha, supra note 100 at 111-113; Lourens du Plessis, Re-
Interpretation of Statutes (Durban: Butterworths, 2002) at 113-15.
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the specific legislation.106 Where a right, privilege, or exemption is grant-
ed, the rule will be peremptory if the requirements are not met. If the
strict application of section 7 could lead to injustice, it could be regarded
as directory. In this regard, du Plessis states:
In deciding whether, in exceptional cases, a generally assumed nulli-
ty must give way to an intended validity, the scope and purpose of
the enactment, public policy and equity considerations carry consid-
erable weight.107
In deciding the validity of a particular provision, the possible injustice to-
ward others should also be taken into account. In this case the (possible)
injustice caused to the second wife should also have been considered.
The meaning of a legislative provision is often said to be determinable
by the context in which it appears.108 According to du Plessis, the context
does not merely denote the language of the rest of the statute but in-
cludes its matter, its apparent purpose and scope and, within limits, its
background.109 Section 7 of the Recognition Act deals with the conse-
quences of marriages while section 2 specifies the requirements for valid
customary marriages. Section 2 does not refer to section 7, and section 7
does not refer to section 2. In Kambule, the court indicated that the regis-
tration of a customary marriage is not mentioned as a requirement under
section 2 and that it could therefore not be regarded as such; the only ad-
ditional requirement to age and consent was that the marriage should
have been concluded in accordance with the customs and usages tradi-
tionally observed among the indigenous African peoples of South Afri-
ca.110
The Recognition Act allows a court to refuse an application if in its
opinion the interests of any of the parties involved would not be sufficient-
ly safeguarded by means of the proposed contract.111 What section 7 does
not say, however, is what happens when a court rejects the application:
the section does not state that the subsequent marriage may not take
place. The act thus does not address failure to comply with the provisions
of section 7. If the general rule, as expressed in Pepper Bay Fishing, is to
be applied, the phrase unless there are other circumstances which negate
106 Ibid at 114-15.
107 Ibid at 252.
108 Ibid at 111-12.
109 Ibid at 113.
110 Supra note 51 at 412.
111 Supra note 1, s 7(7)(b)(iii). See also ss 7(7)(b)(i) and (ii), which empower the court to al-
low amendments to the contract or to grant the order subject to any condition it may
deem fit.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 767
this construction could have assisted the court in reaching another deci-
sion. The Recognition Act specifically orders a court to take the circum-
stances of the families into account, which already indicates some discre-
tion on its part.112 A similar discretion was not available in Pepper Bay
Fishing.
Another principle that could have been applied in MM is the so-called
mischief rule, or the historical context of the Recognition Act in general
and section 7 in particular.113 Botha states that certain questions need to
be answered. For example: What was the legal position before the legis-
lation was adopted? What was the problem (mischief) that had to be
corrected? What was the solution the legislature had in mind to solve the
problem, and what was the real reason for the solution?114 The mischief
rule can be applied only if the language of section 7(6) is not clear.115 Alt-
hough the Recognition Act clearly states that a contract must be regis-
tered by a court, it does not indicate what will happen if the parties con-
clude a marriage without doing so. This necessitates an investigation into
the background, the problem, and the mischief that needs to be corrected.
Customary marriages link families and individuals, as indicated above.
The celebration of the marriage gives public notice thereof; as such, many
customary marriages were concluded in the past without any regard for
additional legislative requirements. The historical nonrecognition of cus-
tomary marriages in South Africa illustrates the injustices women from
these marriages suffered.116 It is clear that the Recognition Act attempts
to ameliorate these injustices. In the past, some husbands did not comply
with all the formalities of the Marriage and Matrimonial Property Law
Amendment Act117 when they concluded consecutive civil marriages with-
out first dissolving the customary marriages. In this regard the courts
have held the customary marriages to be automatically dissolved.118 The
112 Ibid, s 7(7)(a)(iii).
113 Botha, supra note 100 at 84; du Plessis, supra note 105 at 117-18; GE Devenish, Inter-
pretation of Statutes (Cape Town: Juta, 1992) at 28.
114 Botha, supra note 100 at 84.
115 du Plessis, supra note 105 at 118.
116 See Felicity Kaganas & Christina Murray, Law, Women and the Family: The Question
of Polygyny in a New South Africa in Bennett et al, supra note 36, 116.
117 Supra note 62.
118 See Kaganas & Murray, supra note 116 at 121-25. In the past the courts regarded mar-
riages that did not comply with the requirements to be voidable in order to ensure at
least some protection to the families of the different marriages. In the case of registra-
tion, for example, the courts regarded registration as prima facie evidence of the exist-
ence of a marriage rather than as a requirement for the marriage. See e.g. Wormald v
Kambule (2005), [2006] 3 S Afr LR 562, (S Afr SC), [2005] 4 All SA 629; Baadjies v
768 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
courts effort to uphold civil law marriages at the cost of customary mar-
riages led to the suffering of the children and wife of the customary mar-
riage. In MM, for example, the court used the literal interpretation meth-
od to protect the first wife and her child, albeit within the context of a cus-
tomary marriage, but in the process the court overrode the interests of the
second wife.119 Both of these women were customary wives. In a custom-
ary marriage this problem would not have arisen as both wives would
have been recognized as wives. However, applying common law concepts
embedded in legislation to an African marriage without taking the context
into account creates a new form of voidable marriage not previously antic-
ipated. Taking into account that the drafters of the Recognition Act must
have realized that the registration of customary marriages, if made a re-
quirement, could result in void marriages, section 4(9) of the act specifies
that [f]ailure to register a customary marriage does not affect the validity
of that marriage. However, when section 7 was drafted, the legislature
could not foresee that a new voidable marriage might be created, and it
seems as if history is repeating itself. Instead of promoting the recognition
of customary marriages, new reasons are developed for not recognizing
them.
fairs, the court stated:
In Re Former Highlands Residents: Sonny v. Department of Land Af-
Where the language of a statute leaves a gap to be filled, the
Court must fill that gap. In doing so, it must reconstruct the
thinking contained in the statute, consider the practical im-
plications and come up with a solution which conforms with
the purpose of the statute and with the spirit, purport and ob-
jects of the Bill of Rights, while also serving the requirements
of justice and equity.120
It is our contention that the literal approach followed in MM only partial-
ly serves the requirements of justice and equity by safeguarding the in-
terests of one wife. By denying the second wife protection, the court failed
in its attempt to achieve ultimate justice. The question remains as to
Matubela (2001), [2002] 3 S Afr LR 427, (Wit Local Div), [2002] 2 All SA 623. See also
Maithufi & Bekker, Baadjies, supra note 97.
119 It is possible that the outcome of the case would have been the same had the court con-
sidered the circumstances of the second wife (there is no indication that the court did
indeed do so). The more the legislature tries to interfere, the more womens and chil-
drens rights may be harmed. For the potential implications, see e.g. Dlamini, supra
note 36 at 75-78; Sandra Burman, Illegitimacy and the African Family in a Changing
South Africa in Bennett et al, eds, supra note 36, 36 at 37.
120 (1999), [2000] 2 S Afr LR 351 at 355-56, (S Afr Land Claims Ct), [2001] 1 All SA 157
[footnotes omitted].
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 769
whether the court should not perhaps have act[ed] in a creative and just
way, establish[ed] precedents, and develop[ed] the law.121 In light of the
historical developments in the recognition of customary and civil marriag-
es in South Africa, we propose that courts regard marriages that do not
comply with section 7 as voidable and allow time for corrective action. It is
all very well to leave it to the spouses to determine their new marriage
regime, but what happens if the couples are not informed or are ill-
informed about the fact that they must seek approval from the court? The
legislature may have to amend the Recognition Act to provide a default
matrimonial property regime, should the parties fail to obtain a court or-
der beforehand. The Recognition Act, with its civil law features, may pro-
vide customary marriages the recognition they deserve, but the applica-
tion of this regime is not always as just as one would expect. In the mean-
time the courts will have to find innovative ways to reconcile customary
marriages and the common law to ensure a just outcome for all parties.
B. Common Law Principles: Potjiekos Mix? 122
The inclination of the courts to apply common law principles in cases
where they regard the rules of customary law as either unjust or unclear
has been criticized on a number of occasions.123 Since customary law has
received its rightful place in the South African legal system there is no
more doubt that customary law principles should not, without good rea-
son, be replaced by common law principles. In Alexkor Ltd v. Richtersveld
Community the Court stated:
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. Its
validity must now be determined by reference not to common-law,
but to the Constitution.124
Nevertheless, it remains a difficult task to keep a clear divide between
common law and customary law principles, and more often than not the
courts either mix the principles of the two legal systems or prefer the one
to the other. For example, in Maluleke, the court applied principles of the
121 Devenish, supra note 113 at 228.
122 Rautenbach refers to this unique blend of common and customary law as a pot food
mix (Potjiekos, supra note 1 at 238-40). This is a traditional South African dish where
the food is layered in a big black pot and then slowly cooked to mix all the layers.
123 See e.g. the interpretation of communal land tenure in Willemien du Plessis & Juanita
M Pienaar, The More Things Change, the More They Stay the Same: The Story of
Communal Land Tenure in South Africa (2010) 16:1 Fundamina 73.
124 Alexkor Ltd v Richtersveld Community, [2003] 12 B Const LR 1301 at para 51, (S Afr
Const Ct).
770 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
common law of contract to prove the existence of a customary marriage.125
In this case, the family of a deceased person applied to the court for an or-
der to cancel the registration of a customary marriage between the de-
ceased and one of the defendants. According to the plaintiffs (consisting,
amongst others, of children from the deceaseds previous marriages), no
marriage existed between the deceased and his registered wife (the se-
cond defendant) as the requirements of a customary marriage had not
been fulfilled. Although the lobolo negotiations were concluded, the
imvume,126 namely the celebration of the marriage or transfer of the bride,
did not take place before the deceaseds death.127 Prior to his death, the
deceased and the second defendant were nevertheless already living to-
gether as man and wife.128 The Department of Home Affairs registered the
marriage date as the date of the last payment of the lobolo and issued a
marriage certificate.129
To determine whether a customary marriage had, in fact, been con-
cluded, the court interpreted the words entered into or celebrated, part
of the customary marriage requirements specified by the Recognition
Act.130 The court looked at the dictionary meaning of celebrated and
found that the marriage had not been celebrated as no festivities were
held.131 In order to determine the meaning of entered into the court re-
sorted to the common law of contract. It indicated that an agreement may
be concluded expressly or tacitly. Considering all the factorsnamely,
that the negotiations for the lobolo had been concluded; that the date for
the imvume had been fixed; and that the parties were already living as
husband and wife and were regarded as married by their respective fami-
liesthe court held that the circumstances satisfied the requirement of
the Act that the customary marriage be entered into.132 Accordingly, the
court refused to deregister the customary marriage.133
125 Supra note 30.
126 The imvume is a form of integration of the bride into the bridegrooms family.
127 Maluleke, supra note 29 at paras 3-4.
128 Ibid at para 14.
129 Ibid at paras 4-5.
130 Supra note 1, s 3(1)(b) (the marriage must be negotiated and entered into or celebrated
in accordance with customary law [emphasis added]).
131 Maluleke, supra note 29 at para 8.
132 Ibid at para 16.
133 Ibid at paras 16-17. In earlier decisions the courts considered the fact that the families
allowed the parties to live together as complying with the requirement of handing over
the girl: see in this regard Joubert, Faris & Church supra note 36 at 94-95.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 771
The judicial reasoning in this case seems to contradict the many court
decisions where compliance with traditional customs must have occurred
before a valid marriage comes into being. These requirements include the
payment of lobolo, the celebration of certain ceremonies, and the transfer
of the bride.134 In Manona, the court applied customary law, holding that
no marriage existed as
there was no final agreement about what ilobolo would be paid to
the deceased’s family. It can be said that ilobolo was not at all nego-
tiated. There was no handing over of the deceased to the family of
the second respondent by the family of the deceased. It is more prob-
able that R1 000,00 was paid for as customary damages. The answer
to this question is therefore that there was no valid customary mar-
riage between the deceased and the second respondent.135
Similar logic was followed in cases dealing with customary law divorces.
For example, in Thembisile v. Thembisile the court held that a subsequent
civil marriage was null and void on the basis that there was not enough
evidence indicating that the deceased had divorced his first customary
law wife in terms of customary rules.136
These decisions hampered judicial activism and, as the common law
was seen as being superior to customary law, common law continued to be
used to resolve matters between litigants married under the customary
law regime. Bearing in mind that customary law now has its rightful
place in the South African legal order, courts should be mindful of the fact
that they have the power to develop customary law where it should be de-
veloped, rather than having to replace it with common law principles that
may be regarded as foreign and hostile to African litigants.137
In several cases, the courts have already applied their power to devel-
op customary law. For instance, in Fanti the court recognized the adap-
tive nature of customary law in lobolo proceedings by allowing the mother
to negotiate and receive lobolo.138 In doing so the court recognized the role
that women play, or should play in society and declared:
[I]f courts do not recognise the role played or to be played by women
in society, then that would indicate failure and/or reluctance on their
part to participate in the development of the customary law, which
134 See Manona v Alice Funeral Parlour (2002), [2002] JOL 9717, (E Cape Div) [Manona];
Fanti v Boto (2007), [2008] 5 S Afr LR 405 at 413-14, (Cape Prov Div), [2008] 2 All SA
533 [Fanti].
135 Manona, supra note 134 at para 5.
136 (2001), [2002] 2 S Afr LR 209 at 214-15 (Transv Prov Div).
137 See Constitution, supra note 1, ss 39, 173 (regarding the power of the courts to develop
the law).
138 Supra note 134 at 414.
772 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
development is clearly in accordance with the spirit, purport and
objects of our Constitution.139
Courts open themselves to criticism when they simply replace custom-
ary law principles with common law principles, or when they adapt cus-
tomary law principles to common law ones. The latter occurred in Malu-
leke,140 where the court used the common law interpretation of contracts
to provide meaning to a customary practice of a marriage being entered
into. In order to ensure a just result (in the mind of the judge), the court
fused two legal systems, even though similar results could have been ob-
tained using constitutional principles.141
C. Transformative Constitutionalism: Knight in Shining Armour?
The South African constitution has been described as a transforma-
tive document and the process of transformation, as envisaged by the
constitution, as transformative constitutionalism.142 Transformative
constitutionalism and everything it entails has been enthusiastically em-
braced by the South African judiciary. In general terms it refers to the
mammoth task placed on the shoulders of the constitution to effect trans-
formation from the old, and everything bad associated with it, to the new
and idealistically good. As pointed out by Justice Madala in S. v.
Makwanyane:
We, as Judges, are oath-bound to defend the Constitution. This obli-
gation, in turn, requires that any enactment of Parliament should be
judged by standards laid down by the Constitution. The Judiciary
has the duty of implementing the constitutional safeguards that pro-
tect individual rights. … When it appears that an Act of Parliament
conflicts with the provisions of the Constitution, we have no choice
but to enforce the paramount commands of the Constitution. We are
sworn to do no less.143
139 Ibid.
140 Supra note 29.
141 See the discussion of transformative constitutionalism in subsection II.C, below.
142 The concept was introduced to the South African legal literature by Karl E Klare, Le-
gal Culture and Transformative Constitutionalism (1998) 14 SAJHR 146. Since then, a
number of cases have referred to it: see e.g. Minister of Health v New Clicks South Afri-
ca (Pty) Ltd (2005) [2006] 2 S Afr LR 311 at 400 (S Afr Const Ct); S v Mhlungu [1995] 3
S Afr LR 867 at 874 (S Afr Const Ct); Hassam, supra note 38 at 584; Road Accident
Fund v Mdeyide (2010) [2011] 1 B Const LR 1 at para 125 (S Afr Const Ct).
143 S v Makwanyane, [1995] 3 S Afr LR 391 at 486-87 (S Afr Const Ct) [Makwanyane]. Jus-
tice Madala delivered a separate but concurring judgment. The Court abolished the
death sentence in South Africa. This is regarded as the Constitutional Courts inaugu-
ral decision.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 773
The role of the judiciary in safeguarding an individuals rights has
been made easier by the interpretation clause, enabling judges to use in-
terpretation to achieve transformation.144 For example, in dealing with
the question of whether or not the wives of polygynous Muslim unions
should be included as spouses under the Intestate Succession Act,145 Jus-
tice Nkabinde in Hassam146 referred to this role as follows:
The interpretive approach enunciated by this court will ensure the
achievement of the progressive realisation of our transformative
constitutionalism. This approach resonates with the founding val-
ues now informing the assessment of the prevailing boni mores of
our society and thus affords the necessary protection to those ad-
versely affected by the exclusion under the Act.147
Similar sentiments were echoed by Justice Mokgoro in Makwanyane.
She confirmed that the interpretative function of the courts has evolved
from one that gives effect to clear and unambiguous legal texts, irrespec-
144 See Constitution, supra note 1, s 39, which reads:
(1) When interpreting the Bill of Rights, a court, tribunal or forum
(a) must promote the values that underlie an open and democratic soci-
ety based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must promote the
spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the existence of any other rights or
freedoms that are
recognised or conferred by common law, customary law or legislation, to the
extent that they are consistent with the Bill.
145 Intestate Succession Act, (S Afr), No 81 of 1987. Section (1)(a) reads: If after the com-
mencement of this Act a person dies intestate, either wholly or in part, and is sur-
vived by a spouse, but not by a descendant, such spouse shall inherit the intestate es-
tate.
146 Supra note 38. The Court concluded that the exclusion of widows in a polygynous Mus-
lim union from protection under the Intestate Succession Act was inconsistent with the
equality provision (section 9) of the constitution and was thus invalid to the extent that
it did not protect more than one spouse in a polygynous Muslim marriage. As a result,
the Court amended the Intestate Succession Act to include all the wives of a Muslim
husband, thus transforming the law by means of the constitution to reflect the new
ethos of tolerance, pluralism and religious freedom described by Chief Justice Ma-
homed in Amod v Multilateral Motor Vehicle Accidents Fund, [1999] 4 S Afr LR 1319 at
1328, (S Afr SC), [1999] 4 All SA 421.
147 Hassam, supra note 38 at 584 [footnotes omitted].
774 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tive of the unjust effects of their application (the positivistic approach),148
to one that involves making constitutional choices by balancing compet-
ing fundamental rights and freedoms, which can often only be done by
reference to a system of values extraneous to the constitutional text itself,
where these principles constitute the historical context in which the text
was adopted and which help to explain the meaning of the text.149
In Gumede, though not in so many words, the judiciary (both in the
court a quo and in the Constitutional Court) applied the principles of
transformative constitutionalism to determine the constitutionality of
some of the provisions of the Recognition Act and the KwaZulu-Natal
codes.150 In this case, the applicant Elizabeth Gumede entered into a cus-
tomary marriage with Amos Gumede (the fifth respondent) on 29 May
1968 in the KwaZulu-Natal province. In 2003, Amos Gumede instituted
divorce proceedings in the divorce court. Before he could continue with the
divorce action, Elizabeth Gumede applied for an order in the High
Court151 to declare certain provisions of the KwaZulu-Natal codes152 and
the Recognition Act153 unconstitutional because they unfairly discriminat-
148 This approach by courts is contrary to the one previously followed. For example, in
Bongopi v. Chairman of the Council of State, Ciskei ([1992] 3 S Afr LR 250 at 265, (Cis-
kei HC)), the court held as follows: This Court has always stated openly that it is not
the maker of laws. It will enforce the law as it finds it. To attempt to promote policies
that are not to be found in the law itself or to prescribe what it believes to be the correct
public attitudes or standards in regard to those policies is not its function. See also the
discussion of positivism in subsection II.A, above.
149 Makwanyane, supra note 143 at 498. This viewpoint is contrary to the positivist ap-
proach followed in MM, supra note 28. See the discussion in subsection II.A, above.
150 Supra note 27. For a discussion of the case, see Jan Bekker & Gardiol van Niekerk
Gumede v President of the Republic of South Africa: Harmonisation, or the Creation of
New Marriage Laws in South Africa? (2009) 24 SA Publiekrek/SA Public Law 206
[Bekker & van Niekerk, Gumede].
The customary law applicable in the province of KwaZulu-Natal is codified in the
KwaZulu Act on the Code of Zulu Law (supra note 50) and the Natal Code of Zulu Law
(supra note 50) [KwaZulu-Natal codes]. Both pieces of legislation have been repealed by
the KwaZulu-Natal Traditional Leadership and Governance Act, 2005 (supra note 50),
but the repeal has yet to come into effect and the two codes are for all practical purposes
still in effect.
151 Gumede 2008, supra note 44.
152 Under section 20 of the KwaZulu-Natal codes (supra note 150), the husband as the fam-
ily head is the owner of all family property in his family home and has custody and
control of house property. This resulted in the exclusion of Elizabeth Gumede from the
family property or, as she put it: I will be the owner of none of the property, and will
remain property-less (Gumede 2008, supra note 44 at para 5).
153 The applicants contention was that the Recognition Act (supra note 1, s 7) distin-
guished between customary marriages before and after the Recognition Act came into
force. The property regime for marriages concluded before 15 November 2000 posited
that such marriages were governed by customary law, whilst those concluded on or af-
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 775
ed154 against her on the grounds of gender and race.155 In short, she ar-
gued that the KwaZulu-Natal codes, reflecting the customary law posi-
tion, excluded her from owning family property either during or upon dis-
solution of her marriage. Second, she claimed that the Recognition Act
distinguished between customary marriages entered into before and those
entered into after the statutes enactment, resulting in the unequal
treatment of customary wives in general. The respondents tried to argue,
amongst other things, that the differentiation served a legitimate pur-
pose because it gave effect to indigenous culture, but the court was not
convinced that indigenous culture was strong enough cause the pendulum
to swing in favour of customary law.156 The High Court noted:
It is not the Recognition Act which creates that discriminationit is
customary law in its various manifestations which does so. The com-
plaint against the Recognition Act is that it is under-inclusive in
remedying that discrimination against African women.157
Judge Theron, who found in favour of Elizabeth Gumede, declared the of-
fending provisions inconsistent with the constitution and therefore inva-
lid. She referred the court order to the Constitutional Court for confirma-
tion in terms of section 172(2)(a) of the constitution.158 In Gumede, the
Constitutional Court agreed in principle with the findings of the High
Court, and confirmed the latters holding of constitutional invalidity with
regard to monogamous customary marriages concluded before com-
mencement of the Recognition Act.159 On the one hand, Deputy Chief Jus-
ter 15 November 2000 were in community of property, except where the spouses had
concluded an antenuptial contract. As explained above, the customary law in the Kwa-
Zulu-Natal Province is codified in the KwaZulu-Natal codes (supra note 150), which do
not afford the wives of the head of a family any rights in the family property.
154 See Constitution, supra note 1, s 9(3) (the so-called equality provision, which prohibits
unfair discrimination by the state on various grounds).
155 The Constitution (supra note 1, s 36) allows for the limitation of rights if it can be shown
that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, which the respondents were unable to
show (see Gumede 2008, supra note 44 at para 16).
156 Ibid at para 13.
157 Ibid at para 16.
158 See Constitution, supra note 1, s 172(2)(a), which reads:
The Supreme Court of Appeal, a High Court or a court of similar status may
make an order concerning the constitutional validity of an Act of Parliament,
a provincial Act or any conduct of the President, but an order of constitution-
al invalidity has no force unless it is confirmed by the Constitutional Court.
159 The Court left the position of polygynous customary marriages unchanged and added
that the proprietary consequences of polygamous relationships will be regulated by
customary law until parliament intervenes (Gumede, supra note 27 at 176 [emphasis
added]).
776 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tice Moseneke was highly critical of legislative encroachments on custom-
ary law over the years. In line with existing sentiments, he also blamed
the current state of affairs on colonialism and expressed the hope that
democratic rule would save the day, declaring:
During colonial times the great difficulty resided in the fact that cus-
tomary law was entirely prevented from evolving and adapting as
the changing circumstances of the communities required. It was rec-
orded and enforced by those who neither practised it nor were bound
by it. Those who were bound by customary law had no power to
adapt it. Even when notions of spousal equality and equity and the
abolition of the marital power of husbands over wives were intro-
duced in this country to reform the common law, official customary
law was left unreformed and stonewalled by static rules and judicial
precedent, which had little or nothing to do with the lived experience
of spouses and children within customary marriages. With the ad-
vent of democratic rule much had to give way.160
On the other hand, it is clear from Deputy Chief Justice Mosenekes rea-
soning that he viewed the Recognition Act as being in a totally different
category than the preconstitutional legislation dealing with customary
marriages.161 According to Deputy Chief Justice Moseneke, the Recogni-
tion Act establishes a normative value system and is inspired by the dig-
nity and equality rights entrenched in the constitution.162 He hails the
Recognition Act as
a belated but welcome and ambitious legislative effort to remedy the
historical humiliation and exclusion meted out to spouses in mar-
riages which were entered into in accordance with the law and cul-
ture of the indigenous African people of this country.163
Ironically, the wording of the Recognition Act in combination with the fi-
nal order of the court results in a customary rule (the control of the head
of a family over the family property) being abolished. But because this re-
sult is achieved in terms of the Recognition Act, an act promulgated with-
in the contours of a respected constitution, and by an order of a Court that
has the power to develop customary law in line with constitutional val-
ues,164 the outcome is (perhaps) more acceptable.165
160 Ibid at 161-62 [footnotes omitted].
161 For example, the KwaZulu-Natal codes (supra note 150) and the notorious Black Ad-
ministration Act (supra note 39).
162 Gumede, supra note 27 at 162.
163 Ibid at 160.
164 The Constitution (supra note 1, s 39(2)) compels courts to develop the common and cus-
tomary law in line with the spirit, purport and objects of the Bill of Rights.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 777
An intriguing point, raised by Deputy Chief Justice Moseneke, is the
purpose of the Recognition Act to unify customary marriage laws in South
Africa. To say that the Recognition Act would introduce certainty and
uniformity to the legal validity of customary marriages throughout the
country is, to say the least, quite optimistic.166 It is trite that customary
law is an umbrella term for the vast array of indigenous laws, mostly un-
codified, of the various traditional communities in South Africa. The
Recognition Act in itself recognizes this fact by defining a customary mar-
riage as a marriage concluded in accordance with customary law.167 In
addition, section 2(1) of the Recognition Act recognizes a customary mar-
riage entered into before its commencement as a valid marriage, without
prescribing additional requirements. Thus, in order to determine the va-
lidity of such a marriage, one must establish what the customary law re-
quirements for that particular marriage are. It will be a long and winding
road before all customary marriages concluded before the commencement
of the Recognition Act are no longer in existence and some level of legal
certainty is achieved.
A notable outcome of Gumede is that only monogamous customary
marriages entered into before the commencement of the Recognition Act
are now in community of property, thus excluding polygynous customary
marriages. Bekker and van Niekerk rightly point out that this is due to
the apparent incompatibility between the community of property system
and the proprietary consequences of polygynous marriages.168 The Court
recognized that this distinction perpetuates the existing inequality be-
tween women involved in monogamous relationships and those involved
in polygynous relationships, but left the matter to be resolved by parlia-
ment.169 One can only hope that this will happen in the near future.
As suggested earlier, the judicial method applied by the Constitutional
Court to reach its outcome is in line with the principles of transformative
constitutionalism. Deputy Chief Justice Moseneke pointed out that
courts have a constitutional obligation to develop customary law in order
165 Bekker & van Niekerk (Gumede, supra note 150 at 207) are highly critical of the out-
come of the case. They say: the Gumede decision further deepens the divide that is
evolving between the unwritten, living customary law and the official customary law
entrenched in legislation and judicial decisions. In fact, it rids official customary law of
some of the last substantial vestiges of African customary marriage and so, in effect,
brings the piecemeal legislative and judicial obliteration of the official African custom-
ary marriage to a conclusion.
166 Gumede, supra note 27 at 164.
167 Supra note 1, s 1(iii).
168 Bekker & van Niekerk, Gumede, supra note 150 at 209.
169 Gumede, supra note 27 at 175-76.
778 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
to align it with constitutional dictates.170 What comes next, however, is
somewhat confusing. In spite of the Courts obligation to develop custom-
ary law in line with the constitution, Deputy Chief Justice Moseneke was
of the opinion that the question of developing customary law did not arise
in this particular case.171 At first glance, he appears to refer to the devel-
opment (or transformation) of customary law as practised as opposed to
official customary law as codified in the KwaZulu-Natal codes. If we un-
derstand him correctly, he says that a courts power in relation to legisla-
tion is merely to interpret the legislation in a manner that is consistent
with the constitution and, if it is not, to declare it invalid.172 Conversely, a
courts power in relation to customary law as practised is to develop it in
accordance with the spirit, purport, and objects of the Bill of Rights.173
The Court concluded, however, that it was not necessary to develop
the customary law because the Recognition Act made a legislative choice
that all customary marriages since 15 November 2000 must be in com-
munity of property, which is in harmony with the communal ethos that
underpins customary law.174 The Court also indicated that if it was to de-
clare the offending provisions in the Recognition Act unconstitutional,
customary marriages before 15 November 2000 would also be in commu-
nity of property; customary law would thus become consistent with the
Constitution and it follow[ed], therefore, that it would be unnecessary to
develop it.175
The Courts reasoning seems contradictory. On the one hand, the
Court held that customary law need not be developed. On the other hand,
the Court conceded that a declaration of invalidity of sections 7(1) and (2)
of the Recognition Act would bring customary law within the realm of the
constitution. It is difficult not to see this process as a development or
170 Ibid at 166.
171 Ibid.
172 Thus the court confirmed the holding of constitutional invalidity made by the High
Court; namely, the invalidity of ss 7(1) and (2) of the Recognition Act (supra note 1), and
the relevant sections of the KwaZulu-Natal codes (supra note 150).
173 Deputy Chief Justice Moseneke declared:
However, the question of developing customary law in this particular in-
stance does not arise. Firstly, the version of customary law we are faced with
is codified by legislation and applies only to the province of KwaZulu-Natal.
A competent court may develop customary law but its power in relation to
legislation is not to develop the legislation but to interpret it in a manner
that promotes the objects of the Constitution or to hold, where appropriate,
that it is inconsistent with the Constitution and for that reason invalid
(Gumede, supra note 27 at 166 [emphasis added]).
174 Ibid.
175 Ibid at 167.
AFRICAN CUSTOMARY MARRIAGES IN SOUTH AFRICA 779
transformation of customary law from a system that disallows wives from
having property rights to one that affords them equal property rights.
Be that as it may, the Court eventually subjected the impugned provi-
sions of the Recognition Act and the KwaZulu-Natal codes to constitution-
al scrutiny, concluding that they subjected women living under a system
of customary law to unfair discrimination, and that they should be de-
clared invalid.176 It is important to note that the Court was cautious not to
create the impression that it was merely replacing customary law rules
with common law rules by expressly stating that customary marriages
should not be seen through the prism of the marital proprietary regimes
under the common law or divorce legislation that regulates civil marriag-
es.177 Recognizing that the matrimonial property system of customary
law, as codified in the KwaZulu-Natal codes, infringes womens equality
and dignity rights by providing that the head of the family is the owner of
the family property and has total control over it, the Court concluded:
This patriarchal domination over, and the complete exclusion of, the wife
in the owning or dealing with family property unashamedly demeans and
makes vulnerable the wife concerned and is thus discriminatory and un-
fair.178
It is true that the provisions of the KwaZulu-Natal codes endorse and
sustain patriarchy within the traditional communities, that they are re-
garded as entrenching a colonial perception of Zulu law, and that there is
little reason for their continued existence. Nevertheless, as pointed out by
Bekker and van Niekerk, the KwaZulu-Natal codes have been in exist-
ence for more than 130 yearscommunities and the courts alike are used
to them.179 A body of case law that has evolved over the years continues to
be interpreted and applied by the courts and traditional authorities, and a
decision to repeal the KwaZulu-Natal codes should not be taken lightly.
Besides, the codes have been in operation for so long that it would be diffi-
cult, if not impossible, to distinguish between distorted and true versions
of customary law.
Conclusion: Is There Method in the Madness?
To attain the utopia described by Deputy Chief Justice Moseneke in
Gumede, namely, to have a flourishing and constitutionally compliant
176 The marital property system contemplated by the KwaZulu-Natal codes renders wom-
en extremely vulnerable and infringes their dignity (Gumede, supra note 27 at 168).
177 Ibid at 171.
178 Ibid at 173.
179 Bekker & van Niekerk, Gumede, supra note 150 at 210.
780 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
customary law that lives side by side with the common law and legisla-
tion, is no easy matter.180 As has been shown, invalidating a customary
rule for want of its compliance with constitutional dictates is an extremely
sensitive and difficult matter. The question remains, what replaces that
which was invalidated? The South African judiciary is understandably in
a precarious situation. Judges generally receive adequate schooling in the
common law of South Africa, while the customary law is often taught only
at an introductory level in universities. The logical step for the judges is to
develop a nonconstitutional customary law rule by replacing it with a
common law rule that is readily available and known to them.
On a number of occasions it has been said that common law and cus-
tomary law are two equal legal systems, and that the latter should not be
scrutinized through a common law lens but through a constitutional
lens.181 Put differently, the instruction is that customary law should be
developed (or transformed) within the framework of the constitution.
Such an approach would ensure, as pointed out by Deputy Chief Justice
Moseneke in Gumede, that customary law is brought into harmony with
the constitution, as well as with the standards of international human
rights.182 Further, in recognizing the supremacy of the constitution, cus-
tomary law will rid itself of its stunted and deprived past and, finally,
reaffirm the pluralistic character of the South African legal system.183
In a mixed legal system there will always be a certain measure of confu-
sion regarding which laws are applicable to a given situation, and there will
always be some degree of mixing of the rules of the two legal systems. These
two attributes of a mixed legal system are not necessarily detrimental to an
effective legal system, but are indicative of a system promoting and protect-
ing diversity. Besides, if a unified legal system has not been possible since
the inception of colonial domination of South Africa, what makes us think
that it will ever happen? It is perhaps time to accept the inevitable: the
South African legal system is a mixed legal system because its society con-
sists of a mix of cultural and religious communities that adhere to laws in
which they trust. Ultimately, those rules must conform to the dictates of a
supreme constitution, thus ensuring that one legal system is not regarded as
superior to another and that all systems comply with constitutional principles.
180 Gumede, supra note 27 at 163.
181 See section 1, above.
182 Gumede, supra note 27 at 163.
183 Gumede, supra note 27 at 162. The past that the Court refers to here, is of course pre-
1994; first, when South Africa was still under colonial rule and second, when South Af-
rica was ruled by a white minority.
