The advancement of African women’s rights in the first decade of democracy in South Africa: The reform of the customary law of marriage and succession
| Jurisdiction | South Africa |
| Published date | 15 August 2019 |
| Author | Chuma Himonga |
| Pages | 82-107 |
| Date | 15 August 2019 |
| Citation | 2005 Acta Juridica 82 |
The advancement of African women’s rights
in the first decade of democracy in
South Africa: The reform of the customary
law of marriage and succession
CHUMA HIMONGA*
University of Cape Town
I INTRODUCTION
The place of customary law in the new constitutional dispensation in
South Africa has been the subject of much debate in legal literature and
elsewhere. Most notable for the purposes of this article have been the
debates about the relationship between the previously dominant legal
system, the common law, and customary law in the context of law
reform;
1
the application of the Constitution to customary law, especially
the question whether the Bill of Rights applies to customary law directly
or indirectly
2
and conflicts between customary law and constitutional
rights.
3
This article contributes to these debates by critically analysing the
methods adopted by the courts and the legislature to reform customary
law and the problems they raise for the advancement of women’s human
rights.
The three-fold aim of the article is, firstly, to discuss the approaches the
South African legislature and courts have taken to advance the rights of
women under the customary law of marriage and succession and to bring
this system of law in line with the Constitution and international law;
secondly, to consider factors that may adversely affect the implementa-
tion of these new laws; and, thirdly, to suggest ways of counteracting
* LLB (Zambia) LLM PhD (London); Professor, Department of Private Law,University of
Cape Town.
1
See, for example, M Pieterse ‘It’s ‘‘ablack thing’’: upholding culture and customary law in
a society’ (2001) 17 SAJHR 364 and ‘Killing it softly: Customary law in the new constitutional
order’ (2000) 33 De Jure 35; C Himonga & R Manjoo‘What’s in a name? The Identity and
Reform of Customary Law in South Africa’s Constitutional Dispensation’ in Governance in
African Tradition in M O Hinz (ed) (2005) (forthcoming).
2
See, for example, T W Bennett Customary Law in South Africa (2004) 91, C Rautenbach
‘Some comments on the status of customary law in relation to the Bill of Rights’ (2003) 14
Stellenbosh Law Review 107.
3
See, for example, F Kagnas & C Murray ‘The contest between culture and gender
equality under South Africa’sinterim Constitution’ (1994) 21 Journal of Law and Society 409; W
van der Meide ‘Gender equality v Right to culture’ (1999) 116 SALJ 100; C Himonga,
‘Implementing the rights of the child in African legal systems: The Mthembu journey to
justice’ (2001) 9 International Journal of Children’s Rights 89–122.
82
2005 Acta Juridica 82
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these factors. Obviously, the discussion of the factors in question is
anticipatory in nature, but one hopes that their identification will serve a
useful purpose in relation to considerations of future law reform and in
generating hypotheses for further research into the effectiveness of state
interventions in this important area of the law.
The legislature and the courts in South Africa have made attempts to
advance the rights of women under customary law in the areas of
marriage and succession in accordance with the Constitution and the
international conventions that South Africa has ratified. The approach
both the legislature and the courts have taken to reform customary law is
to replace it with South African common law with little accommodation
of customary law.
In this article I will attempt to show that factors related to the approach
taken to reform customary law and the inaccessibility of the new laws
threaten to reduce the new laws to paper rights that are of little, if any,
real benefit to the majority of women.
The focus of the article is on the Recognition of Customary Marriages
Act
4
(hereafter referred to as the Act), which reformed the customary
law of marriage and the decision of the Constitutional Court in Bhe v
Magistrate Khayelitsha.
5
For the purposes of this paper the decision in Bhe
and the Recognition of Customary Marriages Act will be referred to as
the new law or laws.
To distinguish customary law from the common law and statutory law
that apply to people who do not live under customary law, I use the term
common law to refer to both common law and statutory law.
6
This helps
to separate the two legal systems clearly, and to show how common law,
as a whole, has influenced the reform of customary law. The article also
refers to official customary law and living (unofficial) customary law. The
former denotes the form of customary law that is recorded in textbooks,
court precedents and codified in legislation, while the latter means the
4
Act 120 of 1998, which came into force on 15 November 2000.
5
2005 (1) BCLR 1 (CC); 2005 (1) SA 580 (CC). Bhe was heard together with two other
cases. These were Shibi v Sithole and Minister for Justice and Constitutional Development and South
African Human Rights Commission and Women’s Legal Centre Trust v The President of the Republic of
South Africa and Minister for Justice and Constitutional Development. Both the Shibi and Bhe cases
concerned the customary law of succession embodied in the Black Administration Act 38 of
1927 and the constitutionality of the principle of primogeniture. The only difference between
them is that the female excluded from succession to the deceased’s estate in Shibi was the
deceased’s sister as compared to the deceased’s daughters in Bhe. On the other hand, the
applicants in South African Human Rights Commission applied for direct access to the
Constitutional Court to have section 23 of the Black Administration Act and the regulations
promulgated thereunder declared unconstitutional, on the ground that its provisions infringed
the rights to equality and human dignity, and the Court granted direct access to the applicants.
6
A somewhat similar use of this term is adopted in other literature on African customary
law. See for, example, Bennett’s discussion of conflicts between common law and customary
law in Bennett (n 2) 49.
83REFORM OF CUSTOMARY LAW
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