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Published online by Cambridge University Press: 28 February 2019
This paper briefly discusses the transformation of the customary law of marriage in South Africa by the Recognition of Customary Marriages Act of 1998 Act (hereafter referred to as the Act), and the likely challenges of implementing the new law. The latter will be demonstrated by reference to section 7 of the Act, which regulates the matrimonial property.
1 Act 120 of 1998 (commencement 15 November 2000).Google Scholar
2 See for example, Ex parte Minister of Native Affairs: In Re Yako v Beyi 1948 (1) SA 388 (A).Google Scholar
3 See the Law of Evidence Amendment Act 45 of 1988, s 1 (1). Bennett, T.W. Customary Law in South Africa. Juta & Co., Cape Town, 1991. 42 p.Google Scholar
4 Act 200 of 1993.Google Scholar
5 See for example, Ismail v Ismail 1983 (1)SA 1006 (A), Sanatam v Fondo 1960 (2) SA 467 (A). But cf Ryland v Edros 1997 (2) SA 690 (C).Google Scholar
6 Act 108 of 1996.Google Scholar
7 See Rylands v Edros supra fn. 5.Google Scholar
8 See, for example, Mthembu v Letsela 1997 (2) SA 936 (T) at 944.Google Scholar
9 See supra fn. 1.Google Scholar
10 Ibid.Google Scholar
11 See South African Law Commission Report on Customary Marriages of 1998 (Project 90 the Harmonisation of the Common Law and the Indigenous Law) 130.Google Scholar
12 See report of the South African Law Commission on Marriages and Customary Unions of Black Persons of 1986 (Project 51).Google Scholar
13 See s 2 (1-4) and s 1 (iii) of the Act.Google Scholar
14 See supra fn. 11 at 95.Google Scholar
15 See s 3 (3)(a).Google Scholar
16 S6 of the Act.Google Scholar
17 See Age of Majority Act 57 of 1972, s1.Google Scholar
18 See the Transkei Marriage Act of 1978, 29, 37-39; the Kwazulu Code and the Natal Code of Zulu law, 27(3). These provisions were repealed by section 13 of the Act. For the discussion of the position before the commencement of the Act see Bennett, T.W. A Sourcebook of African Customary Law, Cape Town: Juta & Co., 1991. 317-37 pp.; Sinclair, J.D., The Law of Marriage, Cape Town, Juta & Co., 1996. 247-250 pp.Google Scholar
19 The application of certain provisions of the Matrimonial Property Act 88 of 1984, which governs civil marriages contracted under common law, extends to customary marriages as well.Google Scholar
20 That is marriages contracted in accordance with the Marriage Act 25 of 1961, which were the only marriages that received full legal recognition until the commencement of the Recognition of Customary Marriages Act.Google Scholar
21 Act 120 of 1998, s 7(6) and (8).Google Scholar
22 Ibid. S 7(1).Google Scholar
23 Ibid. S 7(4).Google Scholar
24 The Act does not, however, prohibit mediation of marital disputes by traditional methods (see s8 (5)).Google Scholar
25 See 8(1)(2) of the Act.Google Scholar
26 According to Mbata, the presiding officers in traditional institutions comprising of chiefs and headmen's courts are exclusively men (Mbata, Likhapha Gender Research Project Bulletin vol. 4/99 summer 5-6).Google Scholar
27 See supra fn. 11.Google Scholar
28 S 8 (4) (e) of the Act, which incorporates s 7 (1) (2) of the Divorce Act 70 of 1979.Google Scholar
29 Sees 8 (4) (a) of the Act, which extends the application of the relevant provisions of the Divorce Act of 1979 to customary marriages as well.Google Scholar
30 See s 7 (4).Google Scholar
31 S 7(8).Google Scholar
32 S 7 (7)(a)(i-iii).Google Scholar
33 S 7 (7)(b)(i-iii)).Google Scholar
34 S 7 (9).Google Scholar
35 See section 4 of the Act.Google Scholar