Using Margaret Archer's sociological concepts of structure, culture, and agency to investigate the dissemination of customary marriage literature in South African Higher Education Institutions

• Jurisdiction: South Africa
• DOI: 10.17159/2225-7160/2025/v58a2
• Author: Mpho Paulos Bapela,Vineeni Mthombeni
• Pages: 14-31
• Date: 01 May 2025
• Published date: 01 May 2025
• Published By: University of Pretoria

14 2025 De Jure Law Journal

Using Margaret Archer’s sociological

concepts of

structure, culture,

and

agency

to investigate the dissemination of

customary marriage literature in South

African Higher Education Institutions

Mpho Paulos Bapela

LLB, LLM, LLD

Senior Lecturer, School of Law, University of Limpopo

Vineeni Mthombeni

LLB

Candidate Attorney

SUMMARY

Before colonialism, apartheid, and democracy, customary marriages were

regulated by customs and practices under living customary law. The

advent of these systems introduced official customary law. This

introduction brought about changes to customary marriages, which are

known and understood by the people of South Africa who subscribe to

living customary law. The existence of official customary law as a result of

actions from colonialism, apartheid, and democracy impacted the

literature of customary marriages that is disseminated by South African

Higher Education Institutions (HEIs). These institutions disseminate

customary marriage literature that often fails to capture the lived realities

of African South African people. This led to the subjugation and

marginalisation of the literature of customary marriages as practised by

most South African people under living customary law. Unavoidably, the

status quo concerns epistemological access to customary marriage

literature based on living customary law. Against this backdrop, this paper

adopts a multidisciplinary approach to investigate what led to the status

quo and how the status quo could be changed. This will be done using

Margaret Archer’s sociological concepts of structure, culture, and agency,

typically known as Margaret Archer’s Morphogenesis Theory. In this

contribution, this theory mainly denotes the relationship between the

systems and interactions through systemic conditioning.

1Introduction

In South Africa, the literature on customary marriages is found in two

different versions of customary law i.e., living customary law and official

customary law. There exists sufficient literature that provides the

How to cite: Bapela & Mthombeni ‘Using Margaret Archer’s sociological concepts of structure, culture, and

agency to investigate the dissemination of customary marriage literature in South African Higher Education

Institutions’ 2025 De Jure Law Journal 14-31 http://dx.doi.org/10.17159/2225-7160/2025/v58a2

Dissemination of customary marriage literature in SA Higher Education Institutions 15

difference between these two versions.1 The Constitutional Court has, on

several occasions, recognised living customary law as a legitimate form

of customary law in the post-apartheid legal system.2 The court further

indicated that where official customary law conflicts with living

customary law, living customary law prevails. However, living customary

law should be developed in line with the Constitution. The obsession to

develop living customary law in line with the Constitution often creates a

situation where the courts avoid developing living customary law in line

with customary law but opt to whip it into shape using common-law

lenses.3 In consequence, an official customary law is formed. Hence,

Charnock rightly averred that official customary law is the combination

result of actions by colonial, apartheid, and post-apartheid officials.4

Unlike living customary law, official customary law often bears little

resemblance to the lived experiences of African people on the ground.5

Despite failing to resemble the lived realities of African people who

practice customary law, HEIs in South Africa disseminate customary law

literature predominantly centred on official customary law and not living

customary law.6 This tends to render the literature based on living

customary law unimportant or non-existent in South African HEIs.

Consequently, African students are subjected to literature that alienates

them from their lived reality. Maithufi and Maimela lament the

inadequate period of tuition dedicated to customary law. They argue that

it affects the effective dissemination of customary law literature.7 Based

on what this paper has presented thus far, we have considered

itessential to adopt Margaret Archer’s sociological concepts of structure,

culture, and agency to investigate customary marriage literature

disseminated in South African HEIs.

This investigation seeks to answer two questions i.e., (a) why HEIs in

South Africa still disseminate customary marriage literature that is

centred on official customary law and not living customary law and (b)

what could be done to ensure the dissemination of customary marriage

literature that is centred on living customary law in South African HEIs.

1 Diala “The Concept of Living Customary Law: A Critique” 2017 Journal of

Legal Pluralism and Unofficial Law 144; Himonga and Bosch “The

Application of African Customary Law under the Constitution of South

Africa: Problems Solved or Just Beginning” 2000 South African Law Journal

319 and Sanders “How Customary is African Customary Law?” 1987 The

Comparative and International Law Journal of Southern Africa 406.

2 See Alexkor Ltd v Richtersveld Community 2004 5 SA 460 (CC) para 51; Bhe v

Magistrate, Khayelitsha 2005 BCLR 1 (CC) para 43 and Mayelane v

Ngwenyama 2013 4 SA 415 (CC) para 23.

3Bhe v Magistrate, Khayelitsha para 43.

4 Chanock “Neither Customary nor Legal: African Customary Law in an Era

of Family Law Reform” 1989 International Journal of Law, Policy and the

Famil y 75.

5Bhe v Magistrate, Khayelitsha para 87.

6 Himonga and Diallo “Decolonisation and Teaching Law in Africa with

Special Reference to Living Customary Law” 2017 PELJ 16.

7 Maithufi and Maimela “Teaching The ‘Other Law’ In A South African

University: Some Problems Encountered and Possible Solutions” 2020

Obiter 8.