|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South African Law Commission |
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
2.1.1 In accordance with its title - `the Harmonisation of Common Law and Indigenous Law' - the Project Committee began its task with the aim of creating a uniform code of marriage law that would be applicable to all South Africans. It felt that, because marriage is an institution common to all cultures, all marriages no matter what their particular forms would exhibit certain broad similarities.
2.1.2 As responses to the Issue and Discussion papers were to show, this aim struck a ready chord with several individuals and organizations.[1] Participants at a discussion group sponsored by the Law Faculty of the University of Fort Hare in Bisho, for instance, used an image that seemed especially appropriate: `a house with many doors'. In other words, there should be one marriage `house' with a set of minimum requirements and consequences that could be entered into through as many cultural and religious `doors' as the Muslim, Hindu, Jewish, African and other communities might wish.
2.1.3 Experiences of colonialism, segregation and apartheid in South Africa, however, have predisposed us to stress the differences between the civil marriage, on the one hand, and other cultural and religious forms of marriage, on the other. One consequence of this thinking was to maintain an undue distinction between customary and common law: marriages by African rites were subject to customary law and civil unions were generally subject to the common law. Another consequence was the privileged position enjoyed by civil unions. State policy was based on an understanding that only a `voluntary union for life of one man and one woman to the exclusion of all others' was a true marriage.[2] Because customary marriages were potentially polygynous, they could not be classed as true marriages.
2.1.4 Recognition of the cultural differences underlying this division would perhaps have been unobjectionable, if difference had implied equal treatment. But, in South Africa, the general policy of legal dualism was part and parcel of apartheid: one advanced law applicable to whites and a `poor' law applicable to Blacks. Thus, for most Africans the enforcement of customary law implied the oppressive regime of the Department of Native Affairs and the Native Administration Act.
2.1.5 South Africa's new Constitution provided the opportunity to make a break with the past. As soon as the Interim Constitution was enacted, the government sent a clear message to the country that discrimination would no longer be tolerated. This message must be repeated in any future marriage code, since legislation has an important educative and standard-setting function for any society in transition. A state dedicated to the equal treatment of all individuals, whatever their race, gender, or social origin, should in principle have one marriage law. Equality will bring not only a new respect for the African legal tradition but also an improvement in the position of women and children, two groups previously disadvantaged by the old regime.
2.1.6 Aside from the constitutional principle of equal treatment, the goal of forging a ingle marriage law had other, more technical reasons. Apartheid policies had led to a proliferation of legislation on family law. When Transkei, Ciskei, Bophuthatswana and Venda acquired `independence' from South Africa, the new entities used their legislative autonomy to enact far-reaching reforms of domestic law: a Marriage Act in Transkei,[3] a Succession Act in Bophuthatswana[4] and various decrees governing recognition of marriage and marital relationships in Ciskei.[5] These enactments presumably applied to marriages of people domiciled in the TBVC states.
2.1.7 Under the National States Constitution Act,[6] homelands with only partial independence could also legislate on marriage in the areas for which they were established. KwaZulu, for instance, used its power to promulgate a fresh version of the Code of Zulu Law, in which several changes were effected to matrimonial law and the status of women.[7] Other homelands passed legislation on various aspects of family law and succession.[8] It was obscure when and to whom the latter category of laws should apply.[0]
2.1.8 As marriage laws proliferated, so too did the conflicts between them. Not surprisingly, confusion resulted. Hence, action was immediately taken under the Interim Constitution to rescind the apartheid statutes that had fragmented South Africa[0] and licensed its `burgeoning and volatile lawmaking bodies'.[0] Legislation already passed by the former national homelands and TBVC states, however, was expressly preserved until repealed.[0] In 1996 most, but not all of these laws were then repealed by the Justice Laws Rationalisation Act.[0]
2.1.9 In spite of these efforts to unravel the legal tangles of the past, various problems remain unsolved. One lingering uncertainty is whether still valid laws, such as portions of the Transkei Marriage Act and the KwaZulu/Natal Codes, are subordinate to national legislation (particularly the Marriage and Matrimonial Property Law Amendment Act).[14] Another uncertainty is when individuals should be deemed subject to customary or common law. (This, of course, is a chronic problem that is always present when a country recognizes two or more systems of personal law; but in South Africa the problem has become unduly complex.)[15] In short, the result of South Africa's experiments with legal pluralism has been confusion and uncertainty.
2.1.10 The Commission felt that marriage is an area where citizens should be in a position to know what their rights and duties are.[16] A single code of law would go part of the way to meeting this requirement.
2.1.11 The Commission was forced, however, to abandon its initial objective. No matter how sound the arguments in favour of a unified marriage law, a measure of dualism was inevitable. As will become apparent below, compromise on the issue of unification was not simply a matter of expediency. On the one hand, cultural pluralism is guaranteed by ss 30 and 31 of the Bill of Rights and, on the other, we need to eradicate former prejudices against African cultural institutions.
2.1.12 When the Commission looked to the north of our borders, it found that the cause of legal unification had lost impetus and had been abandoned. When African states gained their independence, proposals to create a single code of laws to be administered by one body of courts[17] had generated much political debate.[18] As in South Africa, it was hoped that, if differences were eradicated, standards in the administration of justice would be improved and national unity would be promoted[19] and, as in South Africa, the demand for unity was a reaction against the racism of the colonial past.[20]
2.1.13 Ideals were soon to be compromised.[21] Plans to unify substantive laws foundered on the dilemma of which law to take as the basis for a new regime: the received European law or an indigenous system? Nearly all the independence movements insisted on a better deal for African customary law:[22] it was a national heritage, something to be protected and cultivated. But, if customary law was to be adopted, which particular system of the potentially many customary laws recognized in the state should be elevated to the privileged position of the new code?
2.1.14 Although plans for full-scale unification were generally discarded, there were some exceptions. Ivory Coast, for instance, all but abolished customary law in favour of a new code of civil law.[23] So, too, did the former imperial government of Ethiopia.[24] As might be expected, the approach in the anglophone countries was not nearly as radical. True to the common-law tradition, these states contented themselves with piecemeal legislation on specific topics. Several acts were produced on succession,[25] but the approach to reform of marriage and divorce was more tentative.
2.1.15 The reform process began in 1961 in Ghana,[26] where a new divorce law was eventually promulgated.[27] The legislative initiative then faltered.[28] Seven years later, Kenya set up a commission on marriage and divorce. Here, too, the Commission's recommendations had little success.[29] The work of the Kenyan Commission was not wasted, however, since its Report provided a foundation for the 1971 Tanzanian Law of Marriage Act.[30]
2.1.16 This enactment, the most thorough-going reform of marriage law in the common-law jurisdictions of Africa, integrated customary, Islamic and common-law rules on marriage and family law into a single code. The Act allowed two kinds of marriage - polygamous (Islamic or customary) and monogamous[31] - both having broadly the same consequences (which were derived from English law). For example, spouses were deemed to have separate estates during marriage, and, on separation or divorce, the courts were given a qualified discretion to distribute the assets acquired during the marriage by joint effort.[32] Divorce was permitted only on the irreparable breakdown of a marriage.[33]
2.1.17 In 1978, inspired partly by the Tanzanian experiment, Transkei also attempted an integrated code of marriage law. Its Marriage Act,[34] however, did not go as far as the Tanzanian law in creating a uniform legal regime. While most of the consequences of marriage, notably marital property,[35] status of wives,[36] divorce[37] and custody and guardianship of children,[38] were common to both customary and civil marriages, in other areas, such as essential requirements,[39] the two types of marriage preserved their separate identities. The most dramatic innovation was to make all marriages, whether civil, Christian or customary, potentially polygynous.[40]
2.1.18 Legal anthropologists had an obvious interest in these reforms. The results of their studies sent the well-meaning legislators a discouraging message. Regardless how desirable the political and social goals of legal unification may be, reforms will become paper law if they do not fall into a receptive community.[41] Research on the legislative programmes in Africa is in no sense comprehensive or complete, but from available evidence it seems clear that customary law still governs people's everyday lives (and, of course, it is still regularly applied by traditional authorities).[42]
2.1.19 Law-givers should perhaps have expected a somewhat disappointing outcome, because it is well known that family law is an area notoriously resistant to outside interference.[43] Many case studies have shown that reforms are acted upon only when the intended beneficiaries are educated and capable of asserting their legal rights. In fact, far from welcoming the intervention of legislators, oppressed people are usually resigned to putting up with the burdens they know and have learned to cope with.[44]
2.1.20 A sub-discipline of anthropology, legal pluralism,[45] has repeatedly shown that, whatever the dictates of state law, any authentic, `living' customary regime will by definition persist. We can therefore count on legislation being reliably applied only by authorities under direct state supervision. In areas where the influence of the state is weak, customary institutions will continue to flourish in the way they always have.[46] And, of course, traditional laws will not be readily abandoned by those, such as senior males, who stand to lose their positions of privilege and authority.
2.1.21 The limits inherent in what the law can do to uplift and protect vulnerable parties in marriage suggested to the Commission that it would be inadvisable to ignore customary institutions. Thus, for instance, even if lobolo and polygyny seemed contrary to the ideal of spousal equality, they are so deeply rooted in the African consciousness that it would be impossible to enforce any prohibition.
2.1.22 Conversely, of course, the respect now due to the African legal tradition demands serious consideration of customary law. Criticisms have been made, especially by traditional leaders,[047] and by the discussion group sponsored by the Law Faculty of the University of Fort Hare at Bisho that the Commission gave the common law a superior role in its Discussion Paper.[48] This superiority, however, is more apparent than real. The phrase `common law' was indeed used frequently in the Commission's preparatory documents, but it was `common law' in the widest sense, which included both Roman-Dutch law and legislation.
2.1.23 Extending the scope of statutory reforms to customary marriage should imply no particular preference for the western over the African cultural tradition. These statutes attempted to correct serious legal and social problems that had been allowed to develop under the Roman-Dutch regime (which itself was, and still is, in need of adjustment to comply with the Bill of Rights).[49] For no particularly good reason, the reforms were not applied to customary marriages, even though Africans were experiencing the same social problems.
2.1.24 It must be appreciated that no single legal system can offer the perfect model for reform, because `family law is everywhere in turmoil, in a state of flux and conceptual disarray'.[50] Thus, instead of brooding over the somewhat abstract debate about unification of laws or the cultural provenance of new rules, the Commission took as its point of departure the need to solve common social problems. People from all communities, whatever their personal law or the type of marriage they have contracted, experience spousal violence, they dispute about custody of children and they seek to claim financial support. Our search should be for an effective means of remedying these problems, means that will offend neither the aim of unification nor that of cultural pluralism.
2.1.25 In summary, the proposals set out below reflect the Commission's purpose to establish a set of minimum requirements for contracting a valid marriage and uniform consequences for all marriages, while allowing certain distinctively African traditions to continue. Some of these proposals had to be modified between publishing the Discussion Paper and this Report, as thinking on the subject of unification in the Project Committee itself shifted. That change should occur was inevitable.
2.1.26 For a start, further research and discussion with members of the public indicated at least three different interpretations of the concept of unification. For some it meant no more than one statute on marriage containing a special chapter on customary law. For others it meant a set of minimum requirements for all unions that could then be celebrated according to a variety of religious or cultural rites. For others still, it implied a uniform set of consequences applicable to all marriages.
2.1.27 The Commission finally arrived at a decision that, no matter how worthy the cause of unifying marriage law (in the second and third senses above), a single code would entail the assimilation and possible loss of customary law. In addition, maintaining a degree at least of cultural pluralism was overwhelmingly supported by the public.
2.1.28 The Commission's decision to retain a distinctly customary form of marriage should not, however, imply that the ideal of unification has been permanently abandoned. We recognize that our work is the first step in a process of reform. (The Commission was conscious of the fact that its recommendations might influence subsequent work on other, as yet unrecognized unions, especially Islamic, Hindu and other religious forms of marriage.) Through experience and further study, understanding of the problems will deepen, and the cause of legal unity may be pursued in future legislation.
2.1.29 The Commission was acutely aware of the urgency with which reform was needed. Wrongs of the past had to be righted. Customary marriages deserved immediate recognition and the position of women and children required urgent attention. It was considered undesirable in principle to delay these reforms while work proceeded on other allied marriage issues.
2.1.30 In drawing up its proposals the Commission obviously deferred to the overriding requirements of the Bill of Rights and to South Africa's obligations to implement the international human rights conventions it has ratified. As it happens, the foundations for much of this work had already been laid. Through scholarly research, judicial decisions[51] and the Law Commission's Report on Marriages and Customary Unions of Black Persons (1985), many useful recommendations have been made on how to bring customary marriage law into line with human rights.
2.1.31 A further invaluable source of ideas has been the observations of the concerned groups and individuals who responded to the Issue and Discussion Papers published in 1996 and 1997. These suggestions have been most welcome, not only for indicating the attitudes and requirements of the public but also for giving much-needed information on the current state of customary law.
2.2.1 In its work with customary law, the Commission ran into an immediate problem: how to decide whether customary rules are valid and authentic. Custom has commendable qualities. The greatest is its `dynamism reflected in the spirit or tolerance, dialogue, and consultation which bear out custom as a process whereby claims and disputes are negotiated'.[052] Unfortunately, this same quality becomes a weakness when customary law is required to conform to the system and certainty of a predominantly western legal culture.
2.2.2 Customs vary from community to community.[53] They are imprecise, flexible and liable to constant and subtle change. Not only is the law diverse and volatile but it also exists in at least two versions. The version usually relied upon by courts and other state organs is a so-called `official' law. This collection of rules has been called into question by modern scholarship on the grounds that it is tainted by apartheid, out of date and a distortion of genuine community practice. In consequence, a distinction is now generally drawn between `official' and `living' law, the latter denoting law actually observed by African communities.[54]
2.2.3 In other parts of Africa empirical studies of the laws being administered in higher and lower courts have highlighted differences between these two versions. One would expect judges in the higher courts to be more sensitive to individual rights, but, ironically, they are hesitant to depart from the strictly patriarchal, `traditional' version of customary law in the official code.[55] Instead, women are more likely to receive a sympathetic hearing in chiefly courts, notwithstanding the fact that these tribunals are controlled by traditional rulers.[56] The explanation is not necessarily that traditional courts are deliberately trying to advance the cause of women. Rather, it seems that the vagueness and flexibility of custom allows them to respond more directly to shifts in local attitudes and practice than the higher courts.
2.2.4 This divergence in the laws (and the judicial attitudes to them) is inevitable, given the coexistence of two different legal traditions. The `official' version of customary law has its origin in the colonial administration's attempt to eliminate the uncertainties of custom by reducing it to writing. The Natal Code of Zulu Law[57] was an early example of this initiative. By the end of the nineteenth century, when judgments handed down by the Native High Court in Natal and the Native Appeal Court in Transkei were reported, judicial precedents were yielding new sources of written law.[58] These formal sources were continually being supplemented by the work of anthropologists and legal writers.
2.2.5 Although the state's demand for known and certain rules has been amply supplied, critical jurisprudence has revealed that much of the work done during the colonial and apartheid eras was directed by, or at least disposed towards, the interests of the state.[59] The legitimacy of former systems of justice depended on customary law being cast as a tradition, a regime derived from an autonomous, pre-colonial African society. Thus, the `official' version of customary law described less what people previously did (or were actually doing) and more what the government and its chiefly rulers thought they ought to be doing. As several historians of customary law have said, it is an `invented tradition'.[60]
2.2.6 The ideological slant of the `official' version is evident not only in its content but also in its form. Authors of customary law have cast it in the language of western law. Women, for instance, have been described as `minors' under the `guardianship' of their husbands and fathers or they were said to be subject to `marital power'. Less obvious than these linguistic distortions, but equally misleading, was the certainty and precision given to customary law.[61] The basis of any custom is an accepted social practice, which means that the rules are continually, though often imperceptibly, changing. Through devices of stare decisis, codification and restatement, however, customary law was fixed until formally changed by the law-maker.[62]
2.2.7 Vital questions in any inquiry into customary law, therefore, will be whether the rules were derived from the `invented African tradition', whether they were deformed in the process of fitting them into a western legal mould and, most important, whether they now lag behind social practice. In principle, only the rules grounded on contemporary social practice should be deemed valid.
2.2.8 Notwithstanding its shortcomings, the `official' version cannot be dismissed out of hand. In the first place, a genuine system of custom can never be immediately accessible to those who are not living in the communities concerned. Only a participant observer, such as an anthropologist, has direct access to customary law; outsiders must always rely on second-hand accounts.[63] In the second place, precedents of the former Black Appeal Courts can yield valuable lessons on how to reconcile two legal traditions. These decisions can be instructive, for example, in showing whether customary law conformed to fundamental human rights, and, if it did not, showing what adjustments could be made.
2.2.9 In the third place, much of the `official' version will persist for the simple reason that we have no other, more reliable account of customary law. It is true that litigants are not bound by rules from this source. They are free to allege a better version by calling proof of a new or more authentic custom.[64] But, if a party doing so does not meet the standards required for proving custom,[65] then the `official' version will prevail for want of better evidence.[66]
2.2.10 Many people felt that, before engaging in this Project, the Law Commission should have mounted a nation-wide survey of customary law in order to establish which customs are still observed and which serve the interests of the African community. Attractive as this proposition seemed, it was, for reasons both theoretical and practical, not feasible.
2.2.11 Any written statement of customary law would represent the rules at a particular time. Unless regularly updated, such statements inevitably fall behind social practice, becoming new `official' versions of the law. Moreover, no matter how sensitively compiled, a statement always runs the risk of reflecting current policies and biases (and may thus be later criticized for distorting social practice).
2.2.12 More prosaic objections to restating customary law concern time and cost. Such projects are probably easier to undertake in countries with small populations and relatively uniform systems of customary law. (The restatement project in Botswana, for instance, was completed by a single person in only four years.)[67] Given the diversity of South Africa's systems of customary law, however, restatement would be an immense task.
2.2.13 Even if resources were available, it would be a mistake to assume that the restatement would be a final and definitive account of all systems of customary law in South Africa. What legal status would the restatement enjoy? Should it be preferred to the writings of anthropologists? How would it relate to existing precedent and codified law? Would its existence preclude parties from leading evidence of new rules to the contrary?
2.3.1 The development of a customary marriage law will obviously have to comply with South Africa's new Constitution.[68] Although the Constitution has no provisions specifically aimed at marriage,[69] the various rights and freedoms enshrined in the Bill of Rights, such as freedom of association and the freedom to pursue a religion or culture of choice,[70] provide the foundations of a basic family law.
2.3.2 Of special relevance in this regard are the principles of equality and non-discrimination. Section 9(1) of the Constitution declares that `Every person shall have the right to equality before the law and to equal protection of the law', and s 9(2) provides that `No person shall be unfairly discriminated against, directly or indirectly' on grounds, inter alia, of gender, sex or age. Many aspects of customary law - which generally endorses the patriarchal traditions of Africa - could now be in conflict with these provisions.
2.3.3 Marriage is also regulated by existing public policy and various international conventions. The most important treaties are the 1981 Convention on Elimination of Discrimination against Women (CEDAW), the 1990 United Nations Convention on the Rights of the Child and the 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages. Because South Africa has ratified these conventions, it now has international obligations to adjust its domestic law accordingly.
2.3.4 Customary law received little attention during the drafting of South Africa's interim and final Constitutions.[71] In the final Constitution, however, it was given express mention in s 211(3), which declares that the courts must apply customary law `when that law is applicable', but subject to any legislation specifically dealing with it and also subject to the Constitution.[72]
2.3.5 A literal interpretation of s 211(3) suggests that any rule of customary law in conflict with the Bill of Rights must automatically give way to the latter. Testing the constitutional validity of rules of private law, however, involves a more flexible approach. Three inquiries are necessary: when is the Constitution applicable to private relationships; do circumstances warrant limitation of fundamental rights; and how are the abstract and generalized terms of these rights to be construed in a South African context? In answering these questions, a measure of discretion is introduced into what would otherwise be an entirely mechanical process.
2.3.6 The first question is whether the Bill of Rights should apply horizontally (ie to relationships of citizens amongst one another) or whether it should be applicable only vertically (ie to relationships between citizens and the state). The drafters of the final Constitution seem to have opted for horizontal application by providing in s 8(2) that a provision in the Bill of Rights will bind natural persons `if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right'.[73]
2.3.7 The word `applicable' in this clause could be interpreted in such a way that the fundamental rights should be deemed to apply only when organs of state were involved. Such a reading would, however, defeat a clear intention. A sensible approach to a provision as ambiguous as this would be to follow jurisprudence abroad,[74] where constitutional norms have been extended from their traditional sphere of vertical operation only by way of exception. Courts have had to consider the nature of the right concerned and the offending rule - matters already provided for in s 8(2) - together with social context.[75]
2.3.8 This more circumspect approach to horizontality requires both a policy decision on the extent to which the state should intervene in domestic relations and a legal assessment of how constitutional rights should relate to one another. The right to equal treatment, for instance, must be weighed against the right to culture.[76] Implicit in this balancing of interests is the further inquiry of limitation: whether one right may limit application of another or whether a rule of private law may limit a constitutional right.
2.3.9 In this regard, the clauses allowing freedom to pursue a culture of choice, namely ss 30 and 31 of the Constitution, contain express limitation provisos to the effect that they are subject to the Bill of Rights. Hence, an argument of culture alone may not limit application of the right to non-discrimination. If recognition of customary law is to be something more than an empty gesture towards the African cultural tradition, however, application of the Bill of Rights must be construed in such a way that a set of western values does not become dominant,[77] merely by reason of the fact that the customary rule is different.
2.3.10 We have a forbidding precedent from the colonial era of customary law being all but eliminated in the cause of western moral standards. In the former Transvaal, while the government was prepared to apply laws and customs of the African population,[78] it deemed polygyny and lobolo `uncivilized'.[79] As a result, the courts `bastardised almost the entire Native population ... deprived practically every Native father of guardianship or other rights to his children [and] ... destroyed any equitable claim in property'.[80]
2.3.11 No one in South Africa today would wish this fate on customary law. At the same time, the state cannot abdicate its responsibility to protect its citizens and to improve their lot in life. In deciding which aspects of customary law are to be deemed unconstitutional, obvious targets would be rules of the `official' version that owe little to an authentic African tradition or to contemporary social practice. In so far as they fall foul of the Bill of Rights, they must be deemed invalid. Moreover, where no settled rule can be distilled from social practice or where rules are vague and contradictory, constitutional norms must fill what is in essence a gap in the law.[81]
2.3.12 Finally, when considering application of the Bill of Rights, the Commission was conscious that a balance had to be struck between an over-zealous, interfering state and domestic privacy. In a society of many cultures and religions, the freedom to pursue a culture or belief of choice in the home must be respected, and the dominant ideology must be one of tolerance. Indeed, most plural societies generally refrain from expressing a common morality. They confine themselves `to defining the current outer limits of permissible diversity ... while leaving maximum room for choice and ... individual liberty'.[82]
[1] Inter alia, the Commission on Gender Equality, the Women's Lobby and the Gender Research Project (CALS).
[2] The classic formulation in Hyde v Hyde & Another (1866) LR 1 PD 130 was accepted into South African law by Seedat's Executors v The Master (Natal) 1917 AD 302 and repreated in Ismail 1983 (1) SA 1006 (A). See Dlamini (1985) 102 SALJ 701 at 708.
21 of 1978. Sections 42 to 50 (inclusive) of this Act were repealed by s 3 of the Justice Laws Rationalisation Act 18 of 1996, as read with Schedule II.
[4] 3 of 1982, as amended by the Intestate Succession Law Amendment Act 13 of 1990. This has been repealed by s 3 of the Justice Laws Rationalisation Act 18 of 1996, as read with Schedule II.
[5] The Customary Law Amendment Decree 23 of 1991 and the Matrimonial Property Decree 7 of 1992. The latter decree was repealed by s 3 of the Justice Laws Rationalisation Act 18 of 1996, as read with Schedule II.
[6] Section 3, as read with the First Schedule, of Act 21 of 1971.
[7] Act 16 of 1985 (Z). In Natal, Zulu law is contained in a similar Code, differing only in detail from the KwaZulu version. The current version of the Code was promulgated in Proc R151 of 1987.
[8] All of which have been repealed by the Justice Laws Rationalisation Act 18 of 1996.
[0] 9 Private international law (and the concept of domicile) might have been relevant to decide this question, but the National States Constitution Act implied that laws passed by the national states were enforceable only against `citizens', as defined in s 3 of the National States Citizenship Act 26 of 1970.
[010] Schedule 7 of the Constitution of the Republic of South Africa Act 200 of 1993.
[0] 11 See Bekker in Sanders The Internal Conflict of Laws in South Africa 38 and the hypothetical examples given by Sinclair The Law of Marriage 208 fn 7.
[012] Section 229 of the Interim Constitution and Schedule 6(2) of the 1996 Constitution.
13 Notwithstanding this Act, Schedule 6(2) of the 1996 Constitution explicitly subjects all these laws to the Constitution and the Bill of Rights. See Mqeke (1995) 112 SALJ 343, for instance, on the complex question of the constitutional validity of various provisions in the Transkei Marriage Act.
[14] 3 of 1 988. Other South African laws, such as the Divorce Act 70 of 1979 and the Matrimonial Property Act 88 of 1984, were extended to the entire `national territory' by s 2 of the Justice Laws Rationalisation Act 18 of 1996. See Sinclair (n11) 129-31.
[15] And such complexity would infringe the fundamental right to certain and intelligible laws. See Van der Vyver (1982) 15 CILSA 312-14.
[16] A point made by T S B Jali in commenting on the Issue Paper.
[17] This principle was adopted prior to independence, at a 1953 conference of judicial advisers at Makerere College in Uganda. See Brooke (1954) 6 J Afr Admin 69ff and Allott (1965) 14 ICLQ 366.
[18] To A topic on which R W Skosana made several useful observations.
[19] Cotran (1963) 1 J Mod Afr Studies 214.
[20] See Spalding et al (1970) 2 Zambia LJ 85-98.
[21] Spalding op cit 79ff and Opoku (1976) 9 Verfassung und Recht 65. Most of the new governments eventually had to settle for unification of the courts, but even here concessions had to be made to pluralism, since no African state could afford to dispense with the courts run by traditional leaders.
[22] Elias Nature of African Customary Law Preface. See, too, Women and Law in Southern Africa (WLSA) Uncovering Reality 11, citing Rwezaura and Chanock 1991 AJ 53-4.
[23] By Law No 64-375 (on marriage) and Law No 64-376 (on divorce and judicial separation).
[24] See David (1962-3) 37 Tulane LR 187.
[25] For example, the Wills and Inheritance Act 25 of 1967 (Malawi), Law of Succession Act 1972 (Kenya) and Intestate Succession Act 91 of 1989 (Zambia).
[26] When the government published a White Paper on Marriage Divorce and Inheritance No 3/61.
[27] The Matrimonial Causes Act 367 of 1971 introduced the irretrievable breakdown principle and an informal conciliation procedure.
[28] The Ghanaian White Paper proved influential in a Ugandan commission on marriage, divorce and the status of women, but the only substantive change made to Ugandan law was a Customary Marriage (Registration) Decree 16 of 1973, which required registration of all marriages and certain minimum requirements for customary unions.
[29] See Bennett & Peart 1983 AJ 154-5.
[30] 5 of 1971. For commentary see Read (1972) 16 JAL 19.
[31] Section 10(1).
[32] Read op cit 32. Section 56 introduced various improvements to the status of women, whereby wives were given full capacity to hold and dispose of property, make contracts and sue and be sued in contract or delict.
[33] Read op cit 33.
[34] 21 of 1978. For general commentary, see Bekker Seymour's Customary Law in Southern Africa 255-62 and Van Loggerenberg 1981 Obiter 1.
[35] Section 39(1) provided that all marriages, whether customary or civil, were out of community of property.
[36] According to s 37 women were invariably deemed to be under the guardianship of their husbands.
[37] Section 43, as read with s 48, provided the same grounds for divorce for both types of marriage.
[38] Section 45 provided that these issues were to be regulated by the common law.
[39] Chapters 2 and 3.
[40] Section 3.
[41] On the Tanzanian Law of Marriage Act, for instance, see Rwezaura (1983-4) 1/2 Zimbabwe LR 85 and Rwezaura & Wanitzek (1988) 2 Int J Law & Family 20.
[42] Which, according to Welsh et al in Armstrong Women and Law in Southern Africa 105ff, was what happened in Mozambique. Other commentators have observed that laws available to ameliorate the status of women were simply ineffective, because they were operating in a culture that was impervious to legal reform. See Nhlapo in Armstrong op cit 51 and May Zimbabwean Women chs 12 and 13.
[43] See Bennett 1991 AJ 32 and, particularly, Allott The Limits of Law 196-202.
[44] See Cheater (1989) 16 Zambezia 105, for example.
[45] For background on the body of research that has come to be called `legal pluralism', see Griffiths (1986) 24 J Legal Pluralism 1, Merry (1988) 22 Law & Soc R 869 and the collection of papers in Allott & Woodman People's Law and State Law.
[46] Griffiths op cit 3 therefore refutes the idea that `law is ... the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions'. The contributors to Morse & Woodman Indigenous Law and the State document the widespread dualism of this nature.
47 Notably the House of Traditional Leaders (Eastern Cape), which felt that `harmonization' should not entail forcing customary law into a western mould. Instead, `harmonization' should mean borrowing western institutions compatible with African culture[.]
[48] Members of the discussion group felt that the Commission had proposed not unification but a take-over, namely, a new South African `statutory marriage'. (The Department of Land Affairs also felt that customary marriage should be recognized parallel to and not as part of civil marriage.) In order to counteract the tendency to give common law a leading role, the discussion group said that the consequences of marriage should not stray too far from the expectations of the parties.
The Gender Research Project (CALS) in its response to the Issue Paper, for instance, said that common law cannot be taken as the standard against which to judge customary law. See the list in Glendon Transformation of Family Law 307 of major problems still awaiting solution in western legal systems.
[50] Sinclair (n11).
[51] Especially decisions not to apply customary law where it was incompatible with natural justice or public policy (a proviso currently contained in s 1(1) of the Law of Evidence Amendment Act 45 of 1988).
52 WLSA (n22) 8[.]
[53] See Molokomme in Women and Law in Southern Africa (WLSA) The Legal Situation of Women in Southern Africa 13, for example, regarding the capacity of women in Botswana.
Sanders (1987) 20 CILSA 405ff.
[55] See, for example, the findings of Women and Law in Southern Africa (WLSA) Stewart (ed) Inheritance in Zimbabwe. And, for a specific study, see Maagwi Kimito v Gibeno Werema CA Civ App 20/84 (unreported), which is discussed by Bakari (1991) 3 Afr J Int & Comp L 549ff.
[56] See Armstrong et al (1993) 7 Int J of Law & Family 328, and the studies by Ndulo (1985) 18 CILSA 90, Coldham (1990) 34 JAL 67. Cf Griffiths (1984) 22 J Legal Pluralism 1 regarding traditional courts in Botswana.
[57] The first version was promulgated in 1878. It has been revised several times, in 1891, 1932, 1967 and 1987. Any customary law in conflict with the Code is superseded: Molife 1934 NAC (N&T) 33 and Ndhlovu v Molife 1936 NAC (N&T) 33.
[58] The Native Appeal Court, established by the Black Administration Act 38 of 1927, functioned as successor to the Natal and Transkei courts. Decisions of the NAC continued to be reported until shortly before it was abolished by Act 34 of 1986.
[59] Kuper Anthropology and Anthropologists 99ff. Cf Gluckman in Fortes & Patterson Studies in African Social Anthropology 21ff.
[60] A concept introduced to the study of law in Africa by Chanock Law, Custom and Social Order. The adjective `invented' is meant to warn us that writers were creating a past that did not in fact exist. See further, on South Africa, Burman (1979) 12 Verfassung und Recht 129 and Gordon (1989) 2 J Historical Sociology 41.
[61] Bennett Application of Customary Law in Southern Africa 23. Thus, as Chanock wrote in (n60) chs 10 and 11, the subtle and fluctuating obligations of African marriage were refashioned into rights and duties that brought it into line with a western legal discourse.
[62] See the discussion by Hamnett Chieftainship and Legitimacy 10-13 of qualities that typify `customary' law.
[63] Traditional rulers are different. Because their courts are not socially removed from the cases being adjudicated, they are more likely to be aware of changes occurring in the law.
[64] Either under a proviso to s 1(1) of the Law of Evidence Amendment Act, that customary law may be applied only if it `can be ascertained readily and with sufficient certainty', or under s 1(2), which states that `[t]he provisions of subsection (1) shall not preclude any party from adducing evidence of the substance of a legal rule contemplated in that subsection which is in issue at the proceedings concerned ....'
[65] For which, see Mazibuko 1930 NAC (N&T) 143, Ex parte Minister of Native Affairs: in re Yako v Beyi 1948 (1) SA 388 (A) at 394-5 and Masenya v Seleka Tribal Authority & Another 1981 (1) SA 522 (T) at 524.
[66] See, for example, Ruzane v Paradzai 1991 (1) ZLR 273 (SC) at 278.
[67] Schapera produced his Handbook of Tswana Law and Custom between 1934 and 1938.
[68] Constitution of the Republic of South Africa 1996.
[69] See Sinclair (n11) 71 esp fn 176.
[70] Sections 18,15, 30 and 31, respectively.
[71] This oversight is apparent in s 8(3), which enjoins the courts to develop only common law to give effect to or to limit the fundamental rights.
[72] As Professor A J Kerr (Rhodes University) pointed out, however, under 1(1) of the Law of Evidence Amendment Act 45 of 1988 the courts were formerly obliged to apply and take judicial notice of customary law.
[73] Section 8(1) provides that the Bill of Rights applies `to all law, and binds the legislature, the executive, the judiciary and all organs of state'.
[74] In particular those in the United States, Canada and Germany, since the laws of these countries have exerted a considerable influence on the formation of our Constitution.
[75] The leading South African case, Du Plessis & others v De Klerk & another 1996 (5) BCLR 658 (CC), also rejected a uniform doctrine of horizontality, although in the context of the 1993 Interim Constitution. See too Mthembu v Letsela & another 1997 (2) SA 936 (T), which considered the extent to which customary law actually prejudices women and children.
[76] Adv D Singh contended that, where two provisions of the Constitution conflict, the one which provides the greater positive benefit [presumably to the individual] should prevail. This argument is in line with Kaganas & Murray (1994) 21 J Law & Society 415-17 and 424-5, who looked to the general tenor of the Constitution, and concluded that it favoured an individual right to non-discrimination rather than a group right to culture.
[77] Although, as the Legal Resources Centre (Durban) pointed out, it is not strictly speaking customary law that is protected, but culture, language and religion. Bennett Human Rights and African Customary Law chs 1 and 2 explores the relationship of culture to customary law in the context of the 1993 Interim Constitution.
[78] Provided, according to s 2 of Law 4 of 1885, that they were compatible with `general principles of civilization'.
[79] R v Mboko 1910 TPD 445 at 447 and Kaba v Ntela 1910 TPD 964 at 969, respectively.
[80] Stubbs P, reported in (1929) 1 NAC (N&T) 1. See too Meesadoosa v Links 1915 TPD 357 at 361.
[81] In German law this is known as the Drittwirkung of constitutional principles to private law. See Bennett (n77) 38-40.
[82] Glendon (n49) 14.
SAFLII:
|
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/other/zalc/report/1998/4/1998_4-CHAPTER-2.html