Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa

• Jurisdiction: South Africa
• Pages: 292-317
• Citation: 2013 Acta Juridica 292
• Date: 15 August 2019
• Published date: 15 August 2019
• Author: Lea Mwambene

Form over function? The practical

application of the Recognition of Customary

Marriages Act 1998 in South Africa*

LEA MWAMBENE

†

AND HELEN KRUUSE

‡

‘Wemust begin to think of family policy in terms of the functions we want the

family to perform and to leave behind our obsession with form’

(Martha Fineman ‘Masking dependency: the political role of family rheto-

ric’(1995) 81 VirginiaLaw Review 2181 at 2203).

The Recognition of Customary Marriages Act 120 of 1998 is a major

legislative measure for the development of customary marriages in line with

the constitutional principle of equality, specif‌ically for women. The article

explores the interactions between this ideal in the Act with empirical observa-

tions and the latest judicial decisions concerning its application. It considers

various examples of the lack of protection of women in relationships of a

customary nature, and it concludes that both the state and courts favour a

formal or def‌initional approach to customary marriage. In considering alterna-

tive approaches that could adequately protect vulnerable parties, two conclu-

sions emerge: First, the article recommends a wholesale revision of the South

African family law approach from a focus on form to dependency.Second (and

as a short-term measure), the article advocates for the putative marriage

doctrine to be applied in the customary marriage context to protect many

women who are denied access to ‘customary marriage’ as a form, and as a

result, all of the benef‌its that f‌low from such marriage.

I INTRODUCTION

The Recognition of Customary Marriages Act 120 of 1998 (hereafter ‘the

Act’) was passed with the aim, inter alia, of providing for the equal status

and capacity of spouses, specif‌ically women.

1

The Act is therefore a major

legislative measure for the development of customary marriages in line

* We would like to acknowledge f‌inancial assistance received from the University of the

WesternCape Senate Research Funds to pursue this topic.

†

Diploma in Nursing, LLB (Hons) (Malawi), LLM, LLD (UWC); Senior Lecturer,

University of the WesternCape.

‡

BA, LLB, LLM, PGDHE (Rhodes); Research Associate, Community Law Centre,

University of the WesternCape.

1

See preamble to theAct.

292

2013 Acta Juridica 292

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with the constitutional principles of equality.

2

In this article, we explore

the interactions between this ideal in the Act with empirical observations

and the latest judicial decisions concerning its application.

3

In considering

the (mis)application of the provisions of the Act by both the Department

of Home Affairs

4

and courts, we question, in the f‌irst part of this paper,

whether this laudatory aim has been met. Welook at the various examples

of non-protection of women. For example, we note the refusal of Home

Affairs’ off‌icials to register customary marriages where the husband is not

present or is deceased, despite clear statutory provisions to the contrary.

We also note a particularly formal approach taken by courts when

determining the validity of a customary marriage, leading to harsh

consequences.

In the second part of the paper we tentatively conclude that both the

state and courts favour a formal or def‌initional approach to customary

marriage, despite the Constitutional Court’s explicit endorsement (if not

practice) of the functional approach to family law in general. This formal

approach considers only the def‌inition of marriage, and whether parties

meet this ‘form’ or ‘def‌inition’ when determining rights and obligations

f‌lowing from a relationship. In the light of this conclusion, in the last part

of the paper, we explore potential alternatives that could adequately

protect women. In particular, we look at ways in which vulnerable parties

can be protected notwithstanding the validity of their relationship as a

‘marriage’. While we recommend a wholesale revision of our family law

in general, we realise that this is a long-term project. In the meantime, we

advocate for an alternative that could protect most women who are

denied access to ‘customary marriage’ as a form, and as a result, all of the

benef‌its that f‌low from such marriage.

II CHANGING THE CONTOURS OF THE DEBATE: FROM

EQUALITY TO DEPENDENCY

There has been little question that the main focus in the customary

marriages debate is the equality right, as contained in s 9 of the Constitu-

2

C Himonga ‘The advancement ofAfrican women’s rights in the f‌irst decade of democracy

in South Africa: the reform of the customary law of marriage and succession’2005 Acta Juridica

82 at 84.

3

These empirical observations rely on the important socio-legal research conducted in

2003 and 2011 by researchers in Kwazulu-Natal and the Western Cape respectively. See

M Mamashela and T Xaba ‘The practical implications and effects of the Recognition of

Customary Marriages Act No. 120 of 1998’ Research Report No. 59 (2003) available at

http://sds.ukzn.ac.za/f‌iles/rr59.pdf, accessed on 30 March 2012. See also, in general, Women’s

Legal Centre ‘Recognition of Customary Marriages’ (2011) available at http://www.wlce.co.

za/morph_assets/themelets/explorer/relationship%20rights/general/

Recognition%20of%20Customary%20Marriages.pdf, accessed on 3 November 2011.

4

The Department of HomeAffairs is responsible for the implementation of the Act and thus

we look at the particular conduct of its off‌icials in relation to theAct. The Department of Home

Affairs is hereinafter referred to as the ‘state’for ease of reference.

293FORM OVER FUNCTION?

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