DOCSLIB.ORG

'Official' Version of Customary Law Vis-À-Vis the 'Living' Hananwa Family Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
'Official' Version of Customary Law Vis-À-Vis the 'Living' Hananwa Family Law THE 'OFFICIAL' VERSION OF CUSTOMARY LAW VIS-À-VIS THE 'LIVING' HANANWA FAMILY LAW BY CHUENE WILLIAM THABISHA RAMMUTLA STUDENT NO: 4910699 Submitted in fulfillment of the requirements for DOCTOR OF LAWS DEGREE DEPARTMENT OF INTERNATIONAL AND CONSTITUTIONAL LAW COLLEGE OF LAW UNIVERSITY OF SOUTH AFRICA REPUBLIC OF SOUTH AFRICA PROMOTERS: PROF JC BEKKER PROF C RAUTENBACH 2013 Declaration I declare that the thesis hereby submitted to the University of South Africa for the degree of Doctor of Laws has not been previously submitted by me for the degree at this or any other University; that it is my own work in design and in execution; and that all materials contained herein had been duly acknowledged. ...................................................... ...................................................... (MR) CW RAMMUTLA DATE i Preface The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal. Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him. However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009. 1 Costa 1998 SAJHR 525, 534. ii The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes. The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law. Keywords Bill of Rights, capacity to act, capacity to litigate, divorce, emancipation, engagement, extramarital children, customary marriage, group rights, individualisation, individual rights, intestate succession, legal capacity, lobolo, maintenance, marital children, marital guardianship, natal guardianship, polygamy, polygyny, polyandry, spousal consent, spousal equality, parental consent iii Acknowledgements I must pause and reflect on those who selflessly and charitably lifted me up every step of the road I travelled over the years. My gratitude goes to people without number who socialised with me in my youth and adulthood. Some gave me a brick and passed by but others continue to give me a brick with the nobility of spirit. A Northern Sotho saying goes thus: "Montshepetsa bosego ke mo leboga bo sele". Literally translated, it means: "I give my gratitude, after dawn, to the one who led me safely in the valley of the shadow of the darkest night". I am greatly indebted to my supervisors, Prof JC Bekker and Prof C Rautenbach for their guidance, and also to Ms Tina Coetzer who did the biographical control, Prof Alan Brimer who edited the language of the thesis, and Ms Doepie de Jongh who helped with the technical outlay of the final product. I am also indebted to my countless informants all over the Maleboho territory. The majority of these informants have chosen to remain anonymous for various reasons. "Thank you, Bahananwa ba Mmatshwene a lebule! You who dared to rebel in order to be!" I thank my wife, Moloko Jane Rammutla, for her love and support. Thank you, Tlou! I also extend my gratitude to my children, Noko, Lemphe, Kgabo, Mmanare and Chuene for being there for me. Baupo! Bachoroma! I cannot dare to forget to thank my parents, Masediye Joseph Rammutla (Moupo! Lechoroma!) and Matsetse Julitha Rammutla (Mmirwa! Mokgalaka!) for their unwavering faith in my ability to pull it off from the very days of my youth. Last but not least I thank my spiritual leader, His Grace, The Right Reverend Bishop Dr Barnabas Edward Lekganyane of Zion Christian Church for motivating all of us to study without relent. Thank you, Kgomo! iv INDEX Declaration i Preface ii Keywords iii Acknowledgements iv List of abbreviations 1 Glossary 3 CHAPTER 1 1 INTRODUCTION TO CUSTOMARY FAMILY LAW 1 1.1 Introducing the issues 1 1.2 The problem statement 1 1.3 The aim of the study 6 1.4 The research objectives 6 1.5 The research methodology 6 1.6 The structure of the study 7 1.7 The significance of the study 7 1.8 Terminology 9 1.8.1 Affiliation 10 1.8.2 African 10 1.8.3 Customary law, African law, African indigenous law, native law and Black law 10 1.8.4 Extramarital child 10 1.8.5 Hananwa law 10 1.8.6 Hlatswadirope 10 1.8.7 Male primogeniture 11 1.8.8 Patriarchy 11 1.8.9 Polygyny and polyandry 11 1.8.10 Seyantlo 11 1.9 Concluding remarks 11 v CHAPTER 2 12 GENERAL PRINCIPLES OF CUSTOMARY LAW 12 2.1 Introduction 12 2.2 Defining customary law 12 2.3 Sources of customary law 15 2.3.1 Constitution 16 2.3.2 Legislation 16 2.3.3 Customs and practices 17 2.3.4 Case law 19 2.3.5 Commission reports 20 2.3.6 Textbooks written by legal and anthropology scholars 21 2.4 The status of customary law 22 2.4.1 The recognition of customary law 1652-1909 24 2.4.1.1 The Cape 25 2.4.1.2 Natal 26 2.4.1.3 Zuid-Afrikaansche Republiek (ZAR) 27 2.4.1.4 The Orange Free State (OFS) 27 2.4.2 The Union of South Africa 1910-1961 27 2.4.3 The Republic of South Africa 1961-1994 28 2.4.4 The recognition of customary law, 1994 to date 29 2.4.4.1 The Constitution of the Republic of South Africa 2000 of 1993 29 2.4.4.2 The Constitution of the Republic of South Africa 1996 30 2.5 The nature of customary law 34 2.5.1 Specialised and non-specialised systems of law 35 2.5.2 Language as a medium of description 36 2.5.3 Constant change and development 38 2.5.4 African government and administration 39 2.5.5 Moments in time 40 2.5.6 Categorisation 41 2.5.7 Traditional authority courts and procedure 41 2.5.8 Marriage and family 42 2.5.9 Contract 43 vi 2.5.10 Concrete as opposed to abstract legal facts 43 2.5.11 Groups rather than individuals as legal subjects 43 2.5.12 Customary law and the values of Ubuntu 44 2.6 The application of customary law in South Africa 46 2.7 Conclusion 49 CHAPTER 3 50 THE FORMS OF CUSTOMARY LAW 50 3.1 Introduction 50 3.2 Ascertainment of customary law 50 3.3 The forms of customary law 51 3.3.1 The official customary law 52 3.3.2 Living customary law 59 3.4 Conclusion 77 CHAPTER 4 78 OFFICIAL CUSTOMARY FAMILY LAW 78 4.1 Introduction 78 4.2 The forms of customary marriage 79 4.3 The recognition of customary marriages 80 4.4 Defining official customary family law 83 4.5 A definition of customary marriage 84 4.6 The Recognition of Customary Marriages Act 120 of 1998 87 4.6.1 The requirements for a valid customary marriage 88 4.6.1.1 Customary marriage must be negotiated 90 4.6.1.1.1 The first stage of negotiations: the marriage proposal 90 4.6.1.1.2 The second stage of negotiations: lobola agreement 91 4.6.1.1.3 The third stage of negotiations: approved cohabitation 92 4.6.2 Consent 92 4.6.2.1 Spousal consent 93 4.6.2.1.1 The consent of the prospective husband 93 4.6.2.1.2 The consent of the prospective wife 94 vii 4.6.2.2 Parental consent 94 4.6.2.2.1 The consent of the parents
Load more

Recommended publications
  • The Marriage Act 25 of 1961, the Divorce Act 70 of 1979, and the Dissolution of a Hindu Marriage [Discussion of Singh V Ramparsad 2007 3 SA 445 (D)]
    THE MARRIAGE ACT 25 OF 1961, THE DIVORCE ACT 70 OF 1979, AND THE DISSOLUTION OF A HINDU MARRIAGE [DISCUSSION OF SINGH V RAMPARSAD 2007 3 SA 445 (D)] Jacqueline Heaton BLC LLM Professor, University of South Africa 1 Introduction South African law recognises three types of marriages, namely civil mar- riages, customary marriages and marriages that are civil unions. A civil union may also be called a civil partnership.1 The choice of whether their civil union is to be known as a marriage or a civil partnership rests with the parties to the union.2 The consequences of the civil union are the same regardless of whether it is called a marriage or a civil partnership, and correspond to those of a civil marriage.3 Civil marriages must comply with the requirements of the common law and the Marriage Act 25 of 1961 (“the Marriage Act”), customary marriages with the requirements of the Recognition of Customary Marriages Act 120 of 1998 (“the Recognition of Customary Marriages Act”), and marriages (and civil partnerships) that are civil unions with the requirements of the Civil Union Act 17 of 2006 (“the Civil Union Act”). For the sake of simplification, and because the consequences of a civil union correspond to those of a civil marriage,4 the phrase “civil marriage” will be used as a substitute for “civil marriage or civil union” in the remainder of the note.5 1 Ss 1 and 2(a) of the Civil Union Act 17 of 2006 2 S 11(1) 3 A civil union has the same consequences as “a marriage contemplated in the Marriage Act … with such changes as may be required
    [Show full text]
  • Critical Overview of the Application of the Default System in South Africa’S Matrimonial Property Regimes’ Is My Own Work, That It Has Not Been
    CRITICAL OVERVIEW OF THE APPLICATION OF THE DEFAULT SYSTEM IN SOUTH AFRICA’S MATRIMONIAL PROPERTY REGIMES MOGAMMAD SHAMIEL JASSIEM A research paper submitted in partial fulfillment of the requirement for the degree of Masters Legum in the Faculty of Law, University of the Western Cape Prepared under the supervision of Dr Jacqueline Gallinetti November 2010 i KEY WORDS In Community of Property Out of Community of Property Matrimonial Property Act Divorce Act Antenuptial Contract Joint Estate Accrual Divorce Default System Notary Public ii DECLARATION I declare that ‘Critical overview of the application of the default system in South Africa’s matrimonial property regimes’ is my own work, that it has not been submitted before for any degree or examination in any other university, and that all the sources I have used or quoted have been indicated and acknowledged as complete reference. Full name: Mogammad Shamiel Jassiem Signed: _________________ November 2010 iii TABLE OF CONTENTS PAGE Title page i Keywords ii Declaration iii Table of Contents iv List of Abbreviations vii CHAPTER ONE: INTRODUCTION 1.1 Background to the study 1 1.2 The research question 5 1.3 Objectives of the study 6 1.4 Significance of the study 6 1.5 Research methods 7 1.6 Literature 7 1.7 Outline of chapters 9 CHAPTER TWO: THE HISTORY OF MATRIMONIAL PROPERTY LAW IN SOUTH AFRICA 2.1 Roman law 10 2.2 Continental law 12 2.3 The late Middle Ages (Canon law) 13 2.4 Roman-Dutch law 14 2.5 South African law pre 1994 16 2.6 South African law post 1994 2.6.1 Introduction 20 2.6.2
    [Show full text]
  • South Africa - Trusts and the Patrimonial Consequences of Divorce: Recent Developments in South Africa
    Journal of Civil Law Studies Volume 8 Number 2 Article 8 12-31-2015 South Africa - Trusts and the Patrimonial Consequences of Divorce: Recent Developments in South Africa François du Toit Follow this and additional works at: https://digitalcommons.law.lsu.edu/jcls Part of the Civil Law Commons Repository Citation François du Toit, South Africa - Trusts and the Patrimonial Consequences of Divorce: Recent Developments in South Africa, 8 J. Civ. L. Stud. (2015) Available at: https://digitalcommons.law.lsu.edu/jcls/vol8/iss2/8 This Civil Law in the World is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Journal of Civil Law Studies by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. TRUSTS AND THE PATRIMONIAL CONSEQUENCES OF DIVORCE: RECENT DEVELOPMENTS IN SOUTH AFRICA François du Toit I. Introduction ............................................................................. 655 II. An Overview of South African Matrimonial Property Regimes and Aspects of the Patrimonial Consequences of the Dissolution of Marriages ........................................................................... 660 III. “Going Behind the Trust Form:” A Synopsis ....................... 665 IV. South African Judgments on Claims Regarding Trust Assets in Divorce Proceedings .............................................................. 669 A. Claims for the Redistribution of Assets ............................. 669 B. Accrual
    [Show full text]
  • Matrimonial Property Regimes and the Principles of European Family Law – a European–South African Comparison (Part 2)*
    Default matrimonial property regimes and the principles of European family law – a European–South African comparison (part 2)* MADELENE DE JONG** WALTER PINTENS*** 4 South African default regimes As in Europe,108 prospective spouses in South Africa have wide-ranging party autonomy and they may select the matrimonial property system they would like to make applicable to their marriage by entering into an antenuptial contract before their marriage.109 If they do not exercise this freedom of contract, the default matrimonial property system of universal community of property will apply to their marriage.110 There is, in fact, a rebuttable presumption that when a couple enters into a civil marriage the pair is marrying in community of property.111 Community of property is therefore referred to as the primary matrimonial property system of South Africa.112 If prospective spouses do enter into an antenuptial contract to exclude community of property, section 2 of the Matrimonial Property Act 88 of 1984 makes provision for the accrual system almost as a second default matrimonial property system. Spouses do not even need to state in their antenuptial contract that they would like to get married with the accrual system, as all marriages concluded out of community of property since the coming into operation of the Matrimonial Property Act on 1 November 1984 are subject to the accrual system, unless the parties expressly exclude this system. The accrual system can therefore be regarded as the secondary matrimonial property system in South Africa. Both these systems will be scrutinised as regards their operation firstly upon conclusion of the marriage and secondly upon dissolution through divorce.
    [Show full text]
  • The Law of Persons and Family Law
    Source: Review of South African Law, Juta's/Annual Survey of South African Law/2015/The law of persons and family law URL: http://jutastat.juta.co.za/nxt/gateway.dll/jrsa/1573/1611/1623?f=templates$fn=default.htm The law of persons and family law 2015 Annual Survey 393 Jacqueline Heaton * Legislation The law of persons No applicable legislation or draft legislation was promulgated during the period under review. Case law Domicile In Central Authority v TK 2015 (5) SA 408 (GJ), Spilg J raised issues relating to the domicile of a child in the context of an application for the child's return under the Hague Convention on the Civil Aspects of International Child Abduction. This case is discussed in the chapter on Conflict of Laws. Suffice to mention for present purposes, that domicile is not the appropriate criterion in the context of the Hague Convention — habitual residence is. To make matters worse, Spilg J appears to have been unaware of the enactment of the Domicile Act 3 of 1992 ('the Domicile Act'). He incorrectly stated that a wife and a minor child obtain domiciles of dependence. This entails that a wife follows her husband's domicile and a minor follows his or her father's domicile. A person of at least eighteen years of age, and someone who is younger than eighteen years, but legally has the status of a major, can acquire a domicile of choice, regardless of his or her sex or marital status, unless he or she lacks the mental capacity to make a rational choice (s 1(1) of the Domicile Act).
    [Show full text]
  • Statutory Law Revision: Legislation Administered by the Department of Home Affairs
    DISCUSSION PAPER 133 PROJECT 25 STATUTORY LAW REVISION: LEGISLATION ADMINISTERED BY THE DEPARTMENT OF HOME AFFAIRS CLOSING DATE FOR COMMENT: 31 MAY 2015 ISBN: 978-0-621-43280-0 (i) Introduction South African Law Reform Commission (SALRC) was established in terms of the South African Law Reform Commission Act, 1973 (Act No. 19 of 1973). The members of the SALRC are– Justice MML Maya (Chairperson) Judge J Kollapen (Vice-Chairperson) Prof V Jaichand Mr I Lawrence Adv M Sello Ms T Siwendu The Acting Secretary of the SALRC is Adv Jacob Skosana. The project leader responsible for this investigation until 31 December 2011 was Honourable Madam Justice Yvonne Mokgoro. The project leader responsible for this investigation is Mr Irvin Lawrence. The researcher assigned to this investigation is Ms Maureen Moloi. On 31 July 2008, Ms Mabandla, the then Minister of Justice and Constitutional Development appointed the following advisory committee members who assisted the SALRC to develop this Discussion Paper, namely: Professor Tshepo Mosikatsana (University of the Witwatersrand) Professor Jacqueline Heaton (University of South Africa) Professor Marita Carnelley (University of Natal) Advocate Neo Morei (University of the North West) Mr. Chris Watters (Attorney) Mr. Julian Pokroy (Attorney) Ms. Abeda Bhamjee (Attorney) and Ms. Mmasechaba Annah Mojoko-Morudi (University of Natal) Correspondence should be addressed to: The Secretary South African Law Reform Commission Private Bag X668 Pretoria ii 0001 Telephone: (012) 622 6330 or (012) 622 6315 Fax: E-mail: [email protected] Website: http://www.doj.gov.za/salrc/index.htm iii Preface This Discussion Paper has been prepared to elicit responses from stakeholders on the preliminary findings and proposals contained in this Discussion Paper and for the stakeholders to confirm that they have no objection to the provisionally proposed repeals and amendments.
    [Show full text]
  • Domestic Violence in South Africa: Women and Children Under Siege?
    ISSN 2039-2117 (online) Mediterranean Journal of Social Sciences Vol 5 No 20 ISSN 2039-9340 (print) MCSER Publishing, Rome-Italy September 2014 Domestic Violence in South Africa: Women and Children Under Siege? Neo Morei Senior Lecturer, Faculty of Law, North West University Email:[email protected] Doi:10.5901/mjss.2014.v5n20p928 Abstract Domestic violence is rife in South Africa and it has harsh effects on the society, particularly on family life. It cuts across class, race, culture and geography and it is all the more pernicious because it is often concealed and so frequently goes unpunished. The most vulnerable in our communities, women, children and the elderly all live in fear, simple things like walking one’s dog or jogging early in the morning or late in the afternoon can turn tragic. It seems there are few places for South African women and children to be safe. The existing legislative framework aimed at combating domestic violence seems to be unable to effectively address issues of domestic violence in the Republic (Domestic Violence Act). It is therefore, the purpose of this paper to give an overview of domestic violence legislation in South Africa and determine whether government has fulfilled its constitutional mandate in the protection of women and children. Some recommendations are made. Keywords: Domestic violence, women, children, legislation, South Africa 1. Introduction While the Minister of Police Mr Nathi Mthetwa assures South Africans that, on average, crime has decreased and the murder rate has dropped by 6.5% , this does not seem to be the case with women and children given some of the happenings in the past year or so’ .1 There is no reliable measure for domestic violence because it is not a crime category in its own right when it comes to reporting with the result that one has nothing more than reports in the media.
    [Show full text]
  • Issue Paper 34
    ISSUE PAPER: 34 PROJECT 100E REVIEW OF ASPECTS OF MATRIMONIAL PROPERTY LAW 30 JUNE 2018 CLOSING DATE FOR COMMENTS: 15 NOVEMBER 2018 ISBN: 978-0-621-46810-6 © Copyright South African Law Reform Commission First published: 28 August 2018 SOUTH AFRICAN LAW REFORM COMMISSION The South African Law Reform Commission (SALRC) was established by the South African Law Reform Commission Act, 1973 (Act 19 of 1973). The terms of office of the following Commission members appointed by the President, who were in office at the time of approval of this paper, namely: Judge J Kollapen (Chairperson) Prof M Carnelley Prof V Jaichand Mr I Lawrence Prof A Oguttu Adv M Sello Judge N Siwendu have expired. The new Commissioners are in the process of being appointed. The Secretary of the SALRC is Mr TN Matibe. The Commission's offices are at Spooral Park Building, 2007 Lenchen Ave South, Centurion, Gauteng. Correspondence should be addressed to: The Secretary, South African Law Reform Commission Private Bag X668, Pretoria 0001 Telephone: (012) 622 6311 E-mail: [email protected] Website: http://salawreform.justice.gov.za The members of the Advisory Committee for this investigation are – Judge D van Zyl (Chairperson) Adv M Sello (former designated Commission member and project leader) Prof E Bonthuys Prof F Bosman The researcher assigned to the investigation was Mrs AM Havenga. The current researcher assigned to the investigation is Ms PK Padayachee. REQUEST FOR COMMENTS The main object of the South African Law Reform Commission (SALRC) in terms of section 4 of its establishing legislation, the South African Law Reform Commission Act 19 of 1973, is to do research with reference to all branches of the law of the Republic, and to study and investigate all such branches of the law in order to make recommendations for the development, improvement, modernisation or reform thereof.
    [Show full text]
  • Laws on Adultery: Comparing the Historical Development of South African Common-Law Principles with Those in English Law
    LAWS ON ADULTERY: COMPARING THE HISTORICAL DEVELOPMENT OF SOUTH AFRICAN COMMON-LAW PRINCIPLES WITH THOSE IN ENGLISH LAW Marita Carnelley* The history of humankind indicates that when it created the relationship of marriage, adultery was not far behind. A study of ancient laws will show that although we now treat the adulteress and the adulterer more humanely, our underlying feelings resemble those of ancient man.1 1 Introduction Adultery is a universal human occurrence. It threatens the core of family life and the stability of the institution of marriage and potentially creates uncertainty about the paternity of the marital offspring.2 It is not merely a moral issue, but one which, over the past two millennia, legal systems have used numerous avenues to address. The legal consequences of committing adultery have varied according to place, community values, the historical era and prevailing ideology. Adultery is still legally relevant in South Africa. Although it is no longer a crime,3 the Transvaal High Court (as it then was) confirmed in 2008 that the innocent spouse’s claim for delictual damages against a third-party adulterer remains part of South African law.4 In the Divorce Act, adultery combined with the inability to continue with the marriage, is still mentioned as one possible factor proving that the marriage has broken down 1 DE Murray “Ancient laws on adultery – A synopsis” (1961) 89 J of Family Law 89-104 at 89. Although the legal definition of adultery may change, at its core is intercourse with a person other than a spouse. 2 Johannes Voet Commentarius ad Pandectas (tr Percival Gane The Selective Voet being the Commentary on the Pandects by Johannes Voet vol 1, London, 1955) ad D 48 5 7 at 382 notes that a wife’s pregnancy by her adulterer confuses the bloodlines; if the husband unwittingly acknowledges the adulterer’s child as part of his family, the family resources are used to maintain a “foreign” child and the rightful heirs are cheated because their possible inheritance is diminished.
    [Show full text]
  • A Patchwork of Marriages: the Legal Relevance of Marriage in a Plural Legal System
    Oñati Socio-legal Series, v. 6, n. 6 (2016) – Radically Rethinking Marriage ISSN: 2079-5971 A Patchwork of Marriages: The Legal Relevance of Marriage in a Plural Legal System ELSJE BONTHUYS∗ Bonthuys, E., 2016. A Patchwork of Marriages: The Legal Relevance of Marriage in a Plural Legal System. Oñati Socio-legal Series [online], 6 (6), 1303-1323. Available from: https://ssrn.com/abstract=2891014 Abstract Like other former colonies, South Africa has a plural family law system, which has historically recognized the polygynous marriages practiced by indigenous African people. However, recognising these marriages by way of legal pluralism does not afford them equal status with monogamous Judaeo-Christian marriage, nor does it ensure gender equality within families. Instead, the interaction between the colonial and apartheid socio-economic oppression of black people on the one hand, and legal pluralism on the other hand, produces a highly complex family law system, best described as ‘a patchwork of patriarchies.’ This paper argues for a move away from conjugality as the basis of family law in order to recognize kinship relationships which have been central to African family practices and which have assisted many families to weather colonial and white domination. This move away from conjugality would also acknowledge the decreasing incidence of marriage and nuclear families in contemporary South Africa and would shift the focus of legal regulation to protecting socially valuable relationships, rather than protecting marriage as an institution. Key words Pluralism; polygamy; congugality; racial discrimination; gender discrimination Resumen Al igual que otras antiguas colonias, Sudáfrica tiene un sistema de derecho de familia plural, que ha reconocido históricamente los matrimonios en poliginia practicados por personas indígenas africanas.
    [Show full text]
  • SALJ 09 Part 3 PAGE: 1 SESS: 8 OUTPUT: Thu Feb 25 09:31:06 2010 /Dtp22/Juta/Juta/SALJ−2009−Part3/02Article
    JOBNAME: SALJ 09 Part 3 PAGE: 1 SESS: 8 OUTPUT: Thu Feb 25 09:31:06 2010 /dtp22/juta/juta/SALJ−2009−Part3/02article View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of the Western Cape Research Repository THE CONSTITUTIONAL FAMILY IN THE LAW OF SUCCESSION FRANCOIS DU TOIT* Professor of Law, University of the Western Cape I INTRODUCTION South African law’s traditional definition of ‘family’ in its narrow meaning refers to heterosexual spouses in a valid civil marriage and their children.1 However, the notion of the ‘constitutional family’ — the family concept redefined under constitutional imperatives — is a pertinent feature of South African jurisprudence since the advent of our democratic constitutional dispensation; in fact, the term ‘constitutional family’ has become accepted and frequently used legal terminology in the post-1994 era.2 Unsurprisingly, the constitutional family took judicial and legislative shape not only in South African family law,3 but also in the law of succession. In the latter regard South African High Courts and the Constitutional Court produced, particularly since 2003, a considerable volume of constitutional case law that marked a break with the traditional exclusive family concept in favour of a wider inclusive conception of ‘family.’ The judgments dealt specifically with the application of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 to family relationships beyond the ambit of the traditional nuclear family as constituted through a valid civil marriage. The landmark Constitutional Court judg- ments in this regard are Daniels v Campbell,4 Bhe v Magistrate, Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of the RSA,5 Volks v Robinson,6 Gory v Kolver (Starke & others intervening)7 and Hassam v Jacobs.8 * LLB LLM LLD (Stell).
    [Show full text]
  • Chapter 6 1 2017.Fm
    80 The legal character of ancillary customary marriages JC Bekker LLB LLD Honorary Professor in Department of Private Law, University of Pretoria M Buchner-Eveleigh LLB LLM LLD Senior Lecturer in Department of Private Law, University of Pretoria OPSOMMING Die regsaard van aanvullende gebruiklike huwelike Die Wet op Erkenning van Gebruiklike Huwelike is ’n kernkomponent van Suid-Afrika se plurale regsbestel. Bykomstig tot die huwelike deur die Wet geskep, is daar egter ook ander, huwelike, wat as “aanvullende” huwelike beskryf sou kon word. Hierdie huwelike val uiteen in verskeie kategorieë, nl. ’n huwelik gesluit tussen twee vroue om die baar van kinders vir ’n betrokke lapa, huis of kraal te bewerkstellig; sororate huwelike; leviraatshuwelike; en, laastens, ukungena. In hierdie artikel word elk van bogenoemde bespreek en word daar, kortliks, ondersoek ingestel na die vraag of hierdie huwelik as sodanig erken kan word binne die bestek van die Wet op Erkenning van Gebruiklike Huwelike en die Handves van Regte. 1 Background and purpose South Africa has a plural legal system consisting of the common law (applicable to everybody) and customary law (applicable to black South Africans only). The people to whom these laws apply are largely socially integrated but Africans, especially those who live in rural areas, follow traditional and customary practices and ways of living to varying degrees. For instance, family law among a mostly urban section of the population (particularly Whites) is based on notions of the nuclear family, whereas African families form extended social units consisting, broadly speaking, of all who belong to the family.1 The status of spouses and their children, therefore, is inextricably interwoven with their membership of the family.2 In the following outline Coertze3 explains the concept of ‘family’ in black African communities: Among the African peoples, including the Bafokeng the social structure is not composed of a number of separate nuclear family atoms, but of networks of 1 Bafokeng Family Law and Law of Succession (1987) 3.
    [Show full text]