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CHAPTER 2

THE PROBLEM

Marriage is an institution common to all peoples, yet, because apartheid predisposed South Africans to think in terms of cultural difference rather than similarity, we have more than one system of marriage law. Recognition of cultural difference in this way would have been unobjectionable, had separateness implied equal treatment, but South African law has always favoured civil and Christian marriage on the understanding that only a ‘voluntary union for life of one man and one woman to the exclusion of all others’ is a true marriage. Customary marriages are potentially polygynous, and in consequence they have consistently been denied full recognition.

One of the consequences of this bias has been the neglect of customary law. No attempt has been made to keep it in step with changing social and legal conditions. Tainted by apartheid, and exposed by modern scholarship to be a distortion of genuine community practice, the so-called ‘official code’ of customary law is now seriously out of keeping with current social norms and the Bill of Rights.

The new Constitution presents an opportunity to rethink legal dualism and the prejudices of the past. A state dedicated to the eradication of apartheid and to the equal treatment of all individuals, whatever their race, gender or social origin, should in principle have one marriage law. Hence we need to consider how real and significant the differences between common and customary law are and whether a programme can be devised to harmonize South African legal traditions into a uniform code of marriage law.

The significance of long-established cultural practices, however, cannot be completely ignored. Sections 30 and 31 of the Constitution entitle both individuals and groups to practise and participate in the cultural life of their choice, which would include the right to live by customary law. Thus, while some rules should apply to all marriages, in certain areas spouses should be free to follow their cultural preferences.

The proposals below were based on consideration of common social problems, fundamental human rights and recommendations made by courts, scholars and the South African Law Commission.^[1] People everywhere, whatever marriage they may have contracted, experience similar domestic problems, whether spousal violence, disputes over child custody or financial support. Instead of attempting to construct new laws in abstract, it seems more sensible to fashion rules aimed at resolving the problems typical of all marriages.

These rules must take account of the Bill of Rights, which in some instances will override both customary and common law. The most important constitutional norm is the requirement of equal treatment, which will frequently be in conflict with the patriarchal principles pervading much of customary law. Although it is as yet undecided when customary law or the equality clause should prevail, if customary rules are generalized or if they are vague and contradictory, the norm of non-discrimination will inevitably give direction to the formation of more appropriate rules.

In addition to those Constitutional provisions directly applicable to marriage - s15 (3) -the topic is also regulated by norms contained in various international conventions, all of which have a bearing on the future development of South African law. Of particular importance are the 1981 Convention on Elimination of Discrimination against Women (CEDAW) and the 1990 UN Convention on the Rights of the Child, both of which have been acceded to by South Africa.

This issue paper has also been guided by certain judicial decisions not to apply customary law where it was incompatible with natural justice or public policy^[2] and the South African Law Commission's 1985 Report on Marriages and Customary Unions of Black Persons (Project No 10), which made recommendations to bring customary marriages into line with modern legal standards. In several respects, therefore, the foundation has already been laid for reform of marriage law.

[1] Including reforms instituted by the Natal and KwaZulu Codes, Proclamation R151 of 1987 and Act 16 of 1985 (Z), respectively, and the Transkei Marriage Act 21 of 1978.

[2] E.g. Gidja v Yingwane 1944 NAC (N&T) 4; Linda v Shoka 1959 NAC 22 (NE). See also section 1(1) of the Law of Evidence Amendment Act 45 of 1988.