The history of the creation of the Customary Law of Marriage and Divorce in the Natal Colony, Zululand and KwaZulu from 1869 to 1985

• Author: Mamashela, M.
• DOI: https://doi.org/10.47348/FUND/v27/i2a1
• Citation: (2021) 27(2) Fundamina 1
• Pages: 1-37
• Published date: 01 March 2022
• Date: 01 March 2022

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https://doi.org/10.47348/FUND/v27/i2a1

ARTICLES

THE HISTORY OF THE CREATION

OF THE CUSTOMARY LAW OF

MARRIAGE AND DIVORCE IN THE

NATAL COLONY, ZULULAND AND

KWAZULU FROM 1869 TO 1985

Mothokoa Mamashela*

Before 1875, as the Natal Secretary for Native Affairs, Shepstone

constituted the Court of Appeal for cases from magistrates’ courts.

He did so, he claimed, in his capacity as “induna” to the Supreme Chief,

a practice said to be in keeping with customary law. From the Secretary

of Native Affairs’ Court there was, theoretically, a right of appeal to

Lieutenant-Governor-in-Council, but this was very seldom exercised.

Combining executive and judicial functions in this manner, Shepstone

could, by virtual at, declare what customary law was, and effect changes

as he desired.1

* I would like to thank the staff of the KZN Archives, the KZN Law Society

library and the UKZN library for their support and assistance in identifying

and locating most of the material consulted for this research.

1 Welsh 1971: 164.

(2021) 27(2) Fundamina 1

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MOTHOKOA MAMASHELA

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https://doi.org/10.47348/FUND/v27/i2a1

ABSTRACT

This contribution discusses the creation of an ofcial, colonial version

of the customary law of marriage and divorce in the Natal colony and

Zululand by the colonial administration. Traditional African institutions,

hereditary traditional leaders and their courts were replaced with

magistrates and British ofcials at public and administrative levels.

Customary law was codied, thus robbing it of its diversity, exibility

and dynamism.

In traditional customary law a marriage was constituted in several

ways: arranged, forced, woman to woman, sororate and levirate

marriages occurred. However, the Natal colonial administration prohi-

bited these types of marriages, viewing them as repugnant to the

administration’s sense of morality and justice. A customary marriage

was also family-centred and processual; it united two families and not

only two individuals, and it took a long time to come into existence.

This characteristic of a customary marriage was also drastically

changed by the Natal colonial administration by removing it from the

purview/control of the family to the individuals themselves in that the

bride and groom were encouraged to choose their partners and to give

their consent freely to their own marriage. Marriage and divorce were

individualised and the couple’s families were gradually left out.

The principle regarding irretrievable breakdown of a marriage was

replaced with the guilt principle. In addition, ve common-law grounds

for divorce were introduced into the customary law of divorce, and the

inquisitorial procedure was replaced with the adversarial one.

Patriarchy, one of the tenets of customary law, was diminished

through legislation that whittled down the excessive powers that fathers

had over their children. The legislation sought to endow women and

children with basic human rights and the gradual recognition of their

property rights. Colonial administrative changes meant that polygyny

and ilobolo were discouraged; that marrying more than one wife was

seen as enslavement of women; and that the transfer of ilobolo was

misinterpreted as the selling of women.

Keywords: Creation of customary law; customary law of marriage;

customary law of divorce; forced marriage; arranged marriage;

ofcial witness; repugnancy clause; codication of customary law;

exemption from customary law; supreme chief; ilobolo; Natal colonial

administration

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THE CUSTOMARY LAW OF MARRIAGE AND DIVORCE

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https://doi.org/10.47348/FUND/v27/i2a1

1 Introduction

“Customary law is a set of norms which the actors in a social

situation abstract from practice and invest with binding authority;

it derives from social practices that the community concerned

accepts as obligatory.”2 In its original form, customary law was

unwritten. Consequently, it was dynamic, exible and adaptable

to development. It is submitted that reducing customary law to

writing had the effect not only of creating an ofcial, colonial

version of customary law, but also of fossilising it. The creation of

the ofcial version of customary law in both the public and private

domains by the colonial government and the African male elders in

some African countries is well documented.3 In the colony of Natal,

the colonial project resulted in the creation of an ofcial version of

customary law and in the destruction of the African legal system

and African way of life. As a result, the African legal system was

supplanted with Roman-Dutch law. African customary law was

turned on its head, and so were the lives and relationships of the

African people. Patriarchy, a form of social organisation in which

men wield much power over their respective societies in general, and

over their families in particular, was heavily criticised and disrupted.

A communal ethic was supplanted with an individualistic one, and

an inquisitorial procedure was replaced with an adversarial one. The

principle of primogeniture, which gives preference to the rst-born

male child in the law of succession, was replaced by the equality of

siblings and the development of property rights for married women.

This contribution discusses the various laws, codes, procla-

mations and statutes that destroyed a traditional legal system of

customary law and replaced it with Roman-Dutch law in the colony

of Natal, Zululand, KwaZulu and the later KwaZulu-Natal. The

focus of this contribution is on private law, family law and, in

particular, the law on marriage and divorce.

2 The origins of the creation of customary law

in the colony of Natal

The annexation of the colony of Natal by Britain in 1843 resulted

in it having three legal systems, namely that of Roman-Dutch

2 Hamnett 1975: 14 as cited in Bennett 2004: 10; Ocran 2006: 467.

3 Chanock 1985: passim; Kerr 1958: 82–100; Nhlapo 1991: 135–146.

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