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