Guided Transformation of Customary Marriage Practices in South Africa

Abstract

This article discusses the complementary roles of the South African state and community institutions in transforming customary marriage practices to reflect changing socio-economic circumstances and to meet constitutional values contained in the Bill of Rights. It also reflects on the interaction between customary law, legislation dealing specifically with customary law, and the Constitution. Customary laws of marriage are living laws and may be interpreted, applied and, when necessary, amended or developed by the legislature and courts or by the impacted communities. Before the enactment of the 1996 Constitution, customary marriage practices were only recognised by the courts if they were not repugnant to public policy or natural justice and common law principles. This repugnancy test did not allow South African courts to develop African customary laws. Since 1996, the test for recognition of customary marriage laws has been the Constitution. Legislative reforms of customary marriage practices have occurred through the enactment of the Recognition of Customary Marriages Act 120 of 1998, the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 and more are anticipated in ongoing efforts of the South African Law Reform Commission. Section 211(2) of the Constitution also allows traditional leaders to reform their own customs and to bring them into line with the norms and values of the Constitution. In this article, I assess the complementary efforts of the legislature, courts, and traditional leaders in amending the communities’ customary marriage practices to reflect modernity and to meet constitutional values.