The Advancement of African Women's Rights in The First Decade of Democracy in South Africa The Reform of The Customary Law of Marriage and Succession

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South Africa: The reform of the customary law of marriage and succession
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The advancement of African women's rights in the first decade of democracy in South Africa:
The reform of the customary law of marriage and succession
2005 Acta Juridica 82
Chuma Himonga*
University of Cape Town
I Introduction
The place of customary law in the new constitutional dispensation in South Africa has been the subject of much debate in legal literature and
elsewhere. Most notable for the purposes of this article have been the debates about the relationship between the previously dominant legal
system, the common law, and customary law in the context of law reform; 1 the application of the Constitution to customary law, especially the
question whether the Bill of Rights applies to customary law directly or indirectly 2 and conflicts between customary law and constitutional
rights. 3 This article contributes to these debates by critically analysing the methods adopted by the courts and the legislature to reform
customary law and the problems they raise for the advancement of women's human rights.
The threefold aim of the article is, firstly, to discuss the approaches the South African legislature and courts have taken to advance the
rights of women under the customary law of marriage and succession and to bring this system of law in line with the Constitution and
international law; secondly, to consider factors that may adversely affect the implementation of these new laws; and, thirdly, to suggest ways
of counteracting
these factors. Obviously, the discussion of the factors in question is anticipatory in nature, but one hopes that their identification will serve a
useful purpose in relation to considerations of future law reform and in generating hypotheses for further research into the effectiveness of
state interventions in this important area of the law.
The legislature and the courts in South Africa have made attempts to advance the rights of women under customary law in the areas of
marriage and succession in accordance with the Constitution and the international conventions that South Africa has ratified. The approach
both the legislature and the courts have taken to reform customary law is to replace it with South African common law with little
accommodation of customary law.
In this article I will attempt to show that factors related to the approach taken to reform customary law and the inaccessibility of the new
laws threaten to reduce the new laws to paper rights that are of little, if any, real benefit to the majority of women.
The focus of the article is on the Recognition of Customary Marriages Act 4 (hereafter referred to as the Act), which reformed the customary
law of marriage and the decision of the Constitutional Court in Bhe v Magistrate Khayelitsha. For the purposes of this paper the decision in Bhe
and the Recognition of Customary Marriages Act will be referred to as the new law or laws.
To distinguish customary law from the common law and statutory law that apply to people who do not live under customary law, I use the
term common law to refer to both common law and statutory law. 6 This helps to separate the two legal systems clearly, and to show how
common law, as a whole, has influenced the reform of customary law. The article also refers to official customary law and living (unofficial)
customary law. The former denotes the form of customary law that is recorded in textbooks, court precedents and codified in legislation, while
the latter means the
customary practices or norms observed by people living under customary law in their day to day lives. These forms of customary law are often
different from each other.
II The reform of customary marriage law and the law of succession
The reform of customary law in South Africa since 1994 has come through two major vehicles, namely, the Act and the decision in Bhe.
In response to constitutional values and human rights, 7 especially the right to equality and nondiscrimination, 8 Parliament passed the Act
with the aims, among others, of ridding the customary law of marriage of features that discriminated against women and of creating an
equitable marital relationship for men and women. The Act sought to achieve its objectives by, firstly, creating a new customary marriage that is
contracted in terms of the Act and, secondly, by extending certain provisions of the Act to marriages concluded before the Act came into force
and that are otherwise governed by customary law. The outstanding feature of the new law, however, is that it is largely an extension of the
rules of marriage under common law. Consequently, the new customary marriage not only resembles its commonlaw counterpart, but it is in
several respects governed by the common law. If we were to take an extreme position, the new marriage might as well be described as the
'common law African customary marriage'.
Similarly, the majority decision in Bhe abolished the customary law of succession codified by the Black Administration Act 9 and its regulations
and replaced it with the common law of succession. The latter will regulate succession to the deceased estates previously governed by
customary law until the legislature passes legislation to regulate customary succession. By applying the common law the Court got rid of the
official customary law which discriminated against women.
The following discussion of the Act and the decision in Bhe highlights the way the customary law of marriage and succession have been
changed and replaced by the common law.
(1) The extension of the common law by the Act
The Act provides for two types of customary marriage. Firstly, all customary marriages that were in existence at the time the Act came into
force and are valid under customary law are valid for all legal purposes. This is a transitional arrangement only, in that once all the marriages in
this category have been dissolved, and the consequences of such dissolution have been dealt with, the part of the Act that deals with these
marriages will cease to be relevant. Secondly, the Act recognises marriages that are concluded in accordance with customary law after the
commencement of the Act and which comply with its requirements. 1 0
As already stated, the new customary marriage is regulated in several important respects by the common law. The Act imports common law
explicitly (ie by applying rules lifted verbatim from the common law or by reenacting the common law in the Act with minor changes) in the
areas of minors' marriages, the status of the spouses, proprietary consequences of marriage, and divorce and its consequences. Because of
this, a customary marriage entered into after the commencement of the Act is a new marriage, which bears very little resemblance to a
customary law marriage as it existed before the commencement of the Act. It must be pointed out, however, that the South African Law
Commission's Special Project Committee on Customary Law (hereafter referred to as the Committee) that conceived the Recognition of
Customary Marriages Bill disclaimed any intention on the part of the legislature of subjecting customary law to the common law for the purpose
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merely of ensuring that the latter dominated the former. The Committee makes this clear in the following statement:
'Extending the scope of statutory reforms to customary marriage should imply no particular preference for the western over the African cultural
areas of minors' marriages, the status of the spouses, proprietary consequences of marriage, and divorce and its consequences. Because of
this, a customary marriage entered into after the commencement of the Act is a new marriage, which bears very little resemblance to a
customary law marriage as it existed before the commencement of the Act. It must be pointed out, however, that the South African Law
Commission's Special Project Committee on Customary Law (hereafter referred to as the Committee) that conceived the Recognition of
Customary Marriages Bill disclaimed any intention on the part of the legislature of subjecting customary law to the common law for the purpose
merely of ensuring that the latter dominated the former. The Committee makes this clear in the following statement:
'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 RomanDutch regime
(which itself was, and still is, in need of adjustment to comply with the Bill of Rights). For no
particular reason, the reforms were not applied to customary marriages, even though Africans were experiencing the same social problems. 1 1
In other words, Parliament used existing law to solve the problem of inequitable family relationships under customary law similar to those
problems that existed under common law. This notwithstanding, the approach adopted by the legislature may cause problems for the
acceptance and implementation of the new law as argued in section III below.
In the following sections I examine the major areas of customary marriage to which the common law has been extended by the Act. 1 2
(a) Minors' marriages
The marriageable age is 18 years for both girls and boys, 1 3 but the Act imports the commonlaw provisions which enable minors (persons under
the age of 21 years) below this age to marry with the special permission of the Minister or his or her delegate. 1 4 The Act also requires the
consent of both parents to the marriage of minors, 1 5 but the provisions of the Marriage Act are used to regulate the replacement of parental
consent to the marriage of a minor when such replacement is necessary, as well as the legal effects of the lack of such consent. 1 6
(b) Legal status of the spouses
Section 6 of the Act provides for the legal capacity of women to be equal to that of their husbands. It states:
'A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property systems governing the
marriage, full status and capacity, including the capacity to acquire assets and dispose of them, to enter into contracts and to litigate, in addition
to any rights and powers that she might have at customary law.' 1 7
In addition, the Act provides that despite the rules of customary law, the age of majority of any person is determined in accordance with the
Age of Majority Act, 1 8 which sets the age of majority at 21 years for everyone. 1 9 Thus the perpetual minority and legal incapacity of married
women, as well as the subjection of women to the husband's marital power, which typified customary law (especially codified or official
customary law 2 0), are no longer features of the new marriage. But, again, the common law (the Age of Majority Act) was used to achieve this.
(c) Proprietary consequences of marriage
Section 7 regulates the proprietary consequences of marriages and because of my special reference to this section later in this paper, it is
necessary to discuss it in detail here.
Section 7(2) makes community of property, and of profit and loss, the automatic and primary matrimonial property regime applicable to a
monogamous marriage (and to a customary marriage that has been converted to a civil marriage 2 1). The provisions of the Matrimonial Property
Act 2 2 (MPA) that apply to civil marriages in community of property 2 3 also apply to these marriages. Thus, unless community is excluded by an
antenuptial contract, a monogamous customary marriage is entered into in community of property and is regulated in this regard entirely by the
common law. Except for specific types of property that are excluded, 2 4 the spouses own the matrimonial property jointly and they have equal
powers of administration of the joint estate. 2 5
Section 7(2) furthermore alludes to a marriage out of community of property and out of profit and loss 2 6 where the parties to the marriage
have entered into an antenuptual contract. Interestingly, however, the Act does not explicitly provide for the application of the accrual system,
27
although it appears from other provisions that parties are free to enter into marriages out of community of property that are subject to the
accrual system in appropriate circumstances set out in the MPA. According to s 2 of the MPA, all marriages out of community of property and of
profit and loss concluded after it came into operation are subject to the accrual system 'except in so far as that system is expressly excluded
by the antenuptial contract'. However, in terms of the MPA, a marriage out of community of property can only be created by antenuptual
contract. It would appear therefore that parties to a new customary marriage can conclude a marriage out of community of property in terms of
an antenuptial contract, and that the accrual system will apply to the marriage if it is not expressly excluded by the antenuptial contract.
The effect of a marriage out of community of property but subject to the accrual system is that, although the parties own their property
separately during the marriage, they are entitled to share the accrual upon the dissolution of the marriage, according to prescribed rules. 2 8 On
the other hand, a marriage out of community without the accrual system entitles the spouses to a separate ownership of their respective
property.
The Act imports the provisions of the MPA or its concepts to regulate the new marriage in other situations, such as the change of the
property system by spouses who are parties to monogamous marriages 2 9 or when a man enters into a further customary marriage. 3 0 With
regard to the latter, the Act provides that the man intending to marry another woman is required to make an application to the court to approve
'a written contract which will regulate the future matrimonial property system of his marriage'. 3 1 The procedure to have this contract approved
involves the courts and much bureaucratic red tape, 3 2 which create problems of access discussed later.
The intended effect of s 7 on the proprietary consequences of the marriage is that women should have rights to matrimonial property that
they did not have before the enactment of the Act. The procedures built into the Act for the cases in which a man takes a subsequent wife are
similarly intended to protect the matrimonial property rights of the spouses through the intervention of the court in the drawing up of the
contract to regulate the future matrimonial property system and the distribution of the existing matrimonial property between the spouses. In
particular, the procedures are intended to protect the property interests of women whose husbands subsequently marry other women.
The property consequences of marriages concluded before the Act came into force continue to be governed by customary law, 3 3 but the
parties are free to adopt any of the new property regimes by following prescribed procedure. 3 4 This involves an application by the spouses to a
court jointly for leave to change the matrimonial property system which applies to their marriage or marriages. Again, the intervention of a court
in the change of matrimonial property regimes from the old to the new is intended to protect the interests of vulnerable marriage partners,
especially women, who in patriarchal social settings tend to occupy inferior positions in bargaining processes involving relations between men
and women.
(d) Divorce
The Act has abolished the customary law method of dissolving marriages out of court by the families of the spouses and by other traditional
institutions. 3 5 All marriages must now be dissolved by a court order on the ground of irretrievable breakdown of the marriage, which is one of
the grounds for divorce under common law. 3 6 The dissolution of the new marriage by courts seems to ensure that the rights of divorced women
are protected. Leaving the dissolution of marriage to traditional institutions may result in the continued application of customary law regulating
divorce and its consequences to the new marriage, which may not always be to the advantage of women. This is particularly the case if one
considers the dominance of men in traditional dispute forums 3 7 and
the likelihood that these men would seek to reinstate customary patriarchal norms favourable to their positions in marriage and society.
are protected. Leaving the dissolution of marriage to traditional institutions may result in the continued application of customary law regulating
divorce and its consequences to the new marriage, which may not always be to the advantage of women. This is particularly the case if one
considers the dominance of men in traditional dispute forums 3 7 and
the likelihood that these men would seek to reinstate customary patriarchal norms favourable to their positions in marriage and society.
(e) Consequences of divorce
The consequences of divorce are also largely regulated by the common law. Generally, the redistribution of the matrimonial propriety under
common law is determined by the type of property system 3 8 adopted for the marriage.
Firstly, a marriage in community of property entitles the spouses to an equal distribution of the matrimonial property upon the dissolution of
the marriage. The spouses share their joint estate equally.
Secondly, in a marriage out of community of property but subject to the accrual system, upon the dissolution of the marriage 3 9 the spouses
share equally in the growth of their respective estates. In terms of s 3(1) of the MPA, the sharing of the accrual is effected by giving the
spouse whose estate shows a smaller growth than the estate of the other spouse a claim 'for an amount equal to half of the difference
between the accrual of the respective estates of the spouses'. 4 0
Finally, as a marriage out of community of property without the accrual represents a complete separation of the parties' property, each
spouse is entitled to his or her own property upon the dissolution of the marriage. 4 1
Furthermore, the court has the same powers in relation to the property of the spouses as those exercised by a court under the Divorce Act
4 2 upon the dissolution of a civil marriage. 4 3
Similarly, the common law applies to the custody and guardianship of children on divorce. The court will not make an order of divorce until it
is satisfied that satisfactory arrangements have been made with regard to the welfare of the children as required by the Divorce Act. 4 4
Compared to the patriarchal and 'gendered' system of official customary family law in force before the Act came into being, 4 5 the new law
has advanced the rights of women considerably. But it is also clear from the provisions of the Act that there is very little left of the customary
law in the new marriage law. The only prominent feature of customary law the Act has preserved is polygyny. However, the extent of the
recognition of this customary institution should not be exaggerated. This is because polygyny is no longer a significant aspect of customary law.
4 6 The other important feature of a customary marriage, lobolo, has not been abolished, but its significance to the marriage contract is not
clear. Although the Act provides that the new marriage must be concluded in accordance with customary law, 4 7 the fact that the Act does not
make specific reference to lobolo being a requirement for marriage makes it doubtful whether nonpayment would ever make a marriage
defective. 4 8
From the foregoing discussion of the changes in the law introduced by the Act, it seems that the new marriage may be described as almost
completely alien to black South Africans living under customary law while the existing customary marriages are fundamentally changed in many
respects. It is the argument of this paper that this has implications for the implementation of the new law and the protection of the rights of
women who are, apparently, intended to be the main beneficiaries of this law. The new law is likely to be difficult to implement and, therefore,
of little use to most women. Before I develop this argument, however, it is necessary to consider the extension of the common law to the
customary law of succession by the Bhe decision.
(2) The extension of the common law by the courts
Before the decision in Bhe, the Intestate Succession Act 4 9 applied to intestate estates to which s 23 of the Black Administration Act (BAA) 5 0
did not apply. 5 1 The estates that were excluded from the application of the Intestate Succession Act consisted of (a) movable property of a
black 'allotted by him to or accruing under customary law to any woman with whom he lived in a customary union or to any house', 5 2 (b) '[a]ll
land in a tribal settlement held in individual tenure upon quitrent conditions by a Black' 5 3 and (c) estates of blacks that devolved under
regulation 2(e) of the BAA. These estates were distributed under customary law in accordance with s 23(1) and (2) of the BAA and regulation
2.
A particularly controversial aspect of the customary law of intestate succession was the principle of male primogeniture, which excluded
women from succession and inheritance and also preferred older over junior males as heirs. This principle was embodied in the BAA and its
regulations. 5 4 It came under constitutional scrutiny in Bhe, which
declared it to be unconstitutional. The importance of this decision merits its discussion in detail.
In Bhe the Constitutional Court set aside the High Court orders in two of the cases which were joined in Bhe, in order to accommodate the
broader issues canvassed in the third case, South African Human Rights Commission. The Court sought to fashion an order that would 'protect
partners to monogamous and polygamous customary marriages, as well as unmarried women and their respective children'. 5 6 More specifically,
it held, firstly, that s 23 of the BAA and the relevant regulations 5 7 were discriminatory, contrary to s 9(3) of the Constitution, and not
'reasonable and justifiable in a democratic society based on dignity, equality and freedom'. 5 8 It accordingly invalidated the statutory provisions
and regulations concerned.
Secondly, it held that the exclusion of women and extramarital children from inheriting in terms of the principle of primogeniture amounted to
unfair discrimination against these classes of people contrary to s 9(3) of the Constitution, and that the principle of primogeniture also violated
the rights of women to dignity, contrary to s 10 of the Constitution. 5 9
Thirdly, the Court declared s 1(4)(b) of the Intestate Succession Act to be unconstitutional, because it excluded from the application of s 1
of that Act any estate or part of the estate to which s 23 of the BAA applied. This opened the way for the Court to make an order replacing
the impugned provisions of the BAA and the regulations and the principle of primogeniture with the Intestate Succession Act. In reaching this
decision, the Court considered the appropriateness of substituting customary law with the Intestate Succession Act in the light of arguments,
inter alia, that the application of the Act in such an approach would obliterate customary law (inconsistently with the position it enjoys in the
Constitution), and that the Act would not take into account situations arising under customary law. 6 0 The Court found support in the proposals
of the South African Law Reform Commission Project 90 Committee's report on the Customary Law of Succession to get around both of these
arguments. It stated that 'the Law Reform Commission's proposals . . . are based on the assumption that the Intestate Succession Act, suitably
adjusted, is capable of accommodating much of the
customary law of succession'. 6 1 Accordingly, the Court modified s 1(1)(c)(i) and (4)(f) of the Intestate Succession Act 6 2 to accommodate

polygynous marriages with the following results: (a) the determination of a child's share must have regard to the existence of more than one
surviving spouse; (b) provision must be made for each surviving spouse to inherit the minimum; 6 3 and (c) all the surviving spouses are to share
the estate equally where the estate is not enough to provide the prescribed minimum to each of the surviving spouse. 6 4
A further modification of the Intestate Succession Act sought to enhance the 'spontaneous development of customary law' 6 5 (presumably
this was a reference to living customary law) through the device of family agreements. The Court held that the application of the Intestate
Succession Act would not 'preclude an estate devolving in accordance with an agreement reached among all interested parties but in a way
that is consistent with its provisions'. 6 6 However, the Court was careful to further protect weak family members in negotiations for such
agreements. It stated:
'Having regard to the vulnerable position in which some of the surviving family members may find themselves, care must be taken that such
agreements are genuine and not the result of exploitation of the weaker members of the family by the strong. In this regard, a special duty rests
on the Master of the High Court, the magistrates and other officials responsible for the administration of estates to ensure that no one is
this was a reference to living customary law) through the device of family agreements. The Court held that the application of the Intestate
Succession Act would not 'preclude an estate devolving in accordance with an agreement reached among all interested parties but in a way
that is consistent with its provisions'. 6 6 However, the Court was careful to further protect weak family members in negotiations for such
agreements. It stated:
'Having regard to the vulnerable position in which some of the surviving family members may find themselves, care must be taken that such
agreements are genuine and not the result of exploitation of the weaker members of the family by the strong. In this regard, a special duty rests
on the Master of the High Court, the magistrates and other officials responsible for the administration of estates to ensure that no one is
prejudiced in the discussions leading to the purported agreements.' 6 7
The application of the Intestate Succession Act was also justified by the expressed need of avoiding a lacuna in the law that would be created
by the invalidation of the customary law. 6 8
Fourthly, with regard to the application of the court order, the Court held that, in fairness and justice, the order invalidating the impugned
provisions should be applied retrospectively to 27 April 1994. This would ensure that in respect of the estates of the people who died after the
interim Constitution became operative, all affected women, men and children would benefit from the decision. The only exceptions are those
estates in which the transfer of ownership to a bona fide heir 6 9 was completed before the date of the Court's order, and the deceased estate
was not subject to litigation to challenge the constitutional validity of the customary law of inheritance.
Finally, the Court addressed the question of administration of estates. It held that the Master of the High Court is no longer precluded from
dealing with estates of blacks that were previously regulated by the impugned provisions, and that, except for estates that were being wound
up in terms of s 23 of the BAA at the time of the order, all estates would be wound up in terms of the Administration of Estates Act in the
future. 7 0
In this regard Bhe adds to the reform of the law on administration of estates started by the Constitutional Court decision in Moseneke v The
Master. In that case the Court invalidated the provisions of the BAA 7 2 that differentiated between the administration of deceased estates of
blacks and other people as being unfairly discriminatory and thus contrary to the Constitution. The estates affected were, however, only those
estates of Blacks which devolved in accordance with the common law, not those that devolved under customary law. The latter fell into two
groups: deceased estates which contained only movable property, which could be administered and distributed in terms of customary law
without state intervention, 7 3 and deceased estates which contained immovable property which were distributed according to customary law
but administered by a representative appointed by a magistrate. 7 4 After Bhe, both categories of estates would be administered under the
Administration of Estates Act. Thus the Court extended the common law on administration of estates to estates that were previously
administered under customary law with or without the magistrate's intervention.
However, Moseneke did not concern the rights of women or gender discrimination per se. In this respect, the Court found that there was 'not
enough material before [it] to justify an investigation into complex questions thrown up by the intersection of race, gender, culture and class'.
7 5 Because of this, the case is not considered further in this article. 7 6
Two of the remedies rejected by the Court in Bhe are worthy of note as they relate to the advancement of women's rights. Firstly, the Court
refused to suspend the declaration of invalidity to a future date until Parliament had rectified the problem, because this would condemn those
(women and extramarital children) who had suffered unfair discrimination in the past to the mercy of the legislature, which has already been
considered to be 'dragging its feet' in legislating on the problem. 7 7 Until the legislature enacts appropriate legislation to regulate succession
under customary law, the Intestate Succession Act will apply to the distribution of black intestate estates that were previously governed by s
23 of the BAA, as an interim measure. 7 8
Secondly, the Court declined to develop the offending customary law in accordance with the spirit, purport and objects of the Bill of Rights
7 9for three reasons. The first reason is the difficulty of determining the true content of the current customary law. The second is that adopting
this approach would have entailed the development of customary law on a case by case basis, which is not only very slow but creates other
problems, such as uncertainty in the law and the lack of uniformity in the application of the law by the courts. 8 0 Thirdly, even though the Court
did not provide any reasons for this, it considered the legislature to be best suited to deal with the defects in the customary law of succession.
The implications of the court's refusal to develop customary law are considered further in the next section of the paper.
To sum up, the Bhe decision, like the Recognition of Customary Marriages Act, represents a landmark development in the protection of women
from genderbased discrimination under customary law. Until the legislature intervenes, women ordinarily subject to the official customary law
that was abolished by the Court will share the benefits their sisters have enjoyed under the common law of succession. Moreover, considering
that the decision of the Court has removed the pressure on the government to redress gender and racial inequalities in the law of succession
through legislation, it is unlikely that Parliament will enact the legislation contemplated by the Court in the near future.
We can therefore expect that the decision of the Court will represent the law for some time to come.
However, notwithstanding its merits, there is a sense in which the decision in Bhe will not benefit most women living under customary law.
This is that the official customary law that was changed by the Court is often different from the living customary law, which in reality regulates
the lives of most women living under customary law, especially in rural areas. This means that living customary law escaped constitutional
scrutiny. It also means that the Court's decision has little or no bearing on these women's realities. The remoteness of the decision from the
people will most likely require more effort and resources to implement it than would have been the case if the decision had been concerned with
living customary law. Moreover, had it been possible for the Court to consider living customary law, it might have found a way to develop it in a
manner that does not alienate the communities that live under this system of law from the new law. This is especially so since living customary
law may already have developed in ways that accommodate egalitarian constitutional values. 8 1
The question whether the Court in Bhe could, in fact, have dealt with living customary law is debatable and beyond the scope of this paper.
III Threats to the effective implementation of the new law
A general observation about law reform in Africa is the lack of forward planning regarding problems of implementation of the law after reform has
taken place. This is rather unfortunate considering the fact that law is not selfimplementing. This is more so in the areas of family law and
succession where resistance to reform is tied up with power struggles between women and men in the context of patriarchy that tend to
reduce the laws aimed at protecting women to mere paper laws. Apart from the likelihood that implementing officials and judicial officers at
various levels will not be fully conversant with the new law and its administration, there may be bureaucratic and accessibility problems,
resistance among communities and other problems all of which militate against the implementation of the new law. 8 2 In order to avoid such a
prospect, the implementation of the law should be projected as a key component of law reform programmes.
In this section I reflect on three factors that may threaten the effective
implementation and operation of the new laws and which may need to be addressed for the benefit of the people they aim to protect.
It should also be observed that these factors do not stand alone. Bonthuys' incisive analysis of the Bill of Rights and developments in family
law in the new dispensation has brought to view, among other things, the courts' uncritical and superficial engagement with customary law and
its development, as well as how this approach has undermined the constitutional rights of women living under customary law. 8 3 The failure of
the courts in customary law cases adds to the challenge of protecting individual rights.
It is worth emphasising, as stated earlier, that these factors are anticipatory in nature and that much of their value may lie largely in serving
as hypotheses and cautionary guidelines for future research and law reform respectively.
The first two factors to be discussed are related and concern the method of reforming customary law by replacing it with the common law
that was adopted both by the legislature and the Court in Bhe while the last one is of a general nature.
its development, as well as how this approach has undermined the constitutional rights of women living under customary law. 8 3 The failure of
the courts in customary law cases adds to the challenge of protecting individual rights.
It is worth emphasising, as stated earlier, that these factors are anticipatory in nature and that much of their value may lie largely in serving
as hypotheses and cautionary guidelines for future research and law reform respectively.
The first two factors to be discussed are related and concern the method of reforming customary law by replacing it with the common law
that was adopted both by the legislature and the Court in Bhe while the last one is of a general nature.
(1) The Eurocentric approach
Judging from their reactions to the bills on the reform of the customary laws of marriage and succession, it would appear that traditional leaders
are opposed to the approach to the reform of customary law that simply replaces customary law with the common law. In 1998, the traditional
leaders objected to the proposed replacement of the customary law of succession by the common law on the ground that the approach taken
was Eurocentric. This followed the introduction of the Customary Law of Succession Amendment Bill 8 4 in Parliament. This Bill sought to change
the customary law of succession by extending the common law of succession embodied in the Wills Act 8 5 and the Intestate succession Act
8 6to black estates previously governed by section 23 of the BAA. The Bill is reported to have met a 'hostile reaction from traditional leaders,
notably those of the Eastern Cape House. . . . [T]he House . . . declared itself "fundamentally opposed to the Eurocentric approach which is
prevalent in [our] country" and decried the extension of RomanDutch law principles to customary law.' 8 7
The Congress of Traditional Leaders of South Africa (Contralesa) apparently also objected to the Recognition of Customary Marriages Bill in
1998, just before the Act was passed, on the same grounds. 8 8
The disagreement of the local leaders of communities living under customary law with the method of the reform of customary law may in turn
result in the leaders and their communities or sections of these communities frustrating the implementation of the new laws.
Although it cannot be established to what extent the views expressed by traditional leaders on the Succession and the Recognition of
Customary Marriages Bills respectively reflected those of their people, it can be expected that traditional leaders who oppose the new laws on
the basis that they sideline their customary law and culture in preference for RomanDutch law, as argued in relation to the above Bills, will
exert considerable influence on how these laws are received and implemented in their communities. In these circumstances, broadbased
information dissemination and public education programmes may help towards effective implementation of the new laws, but it is doubtful that
these strategies would readily diffuse or adequately address this problem to the benefit of the women in these communities.
It seems there are plausible reasons why traditional leaders oppose what they referred to as the Eurocentric approach above.
Apart from the importance of customary law to the existence of traditional leadership, traditional leaders' opposition to the approach the
reform of customary law under consideration may be understood against the background of the negotiations regarding the recognition of
customary law by the Constitution.
The literature on the constitutionmaking process indicates that the place that customary law occupies in the Constitution, especially with
regard to the rights to equality and nondiscrimination, was the subject of negotiation mainly between two protagonists — traditional leaders
and the women's rights lobby groups. 8 9 This background seems to indicate the importance of the place of customary law in the new
dispensation and to certain sections of the black population, as well as the expectation by the latter that customary law would continue to
exist as part of the legal system subject to the Constitution and legislation specifically dealing with customary law. 9 0 Any approach to the
reform of customary law that seeks to abolish this system of law or to replace it with the common law
by the legislature, is likely to be seen and resisted by traditional leaders and sections of their communities as a breach of good faith by the
state and its institutions. 9 1
Presumably, traditional leaders would have been more receptive to the proposed bills mentioned above if they were not Eurocentric but
showed sensitivity to customary law in line with its changed status in the new dispensation.
On the other hand, it may be argued that, because the recognition of customary law by the Constitution is subject to both the Constitution
and legislation, traditional leaders and their communities have no basis for objecting to the Recognition of Customary Marriages Act on the basis
of beach of good faith. In other words, the Constitution, which is the product of the negotiations referred to, explicitly states, in chapter 12,
that the continued existence of customary law is subject to the Constitution as well as to legislation. 9 2 The Constitution, therefore, allows the
legislature to reform customary law by legislation, such as the Recognition of Customary Marriages Act.
A counter argument may, however, be made to the effect that the reference to the recognition of customary law by the Constitution through
legislation in chapter 12 or any other part of the Constitution cannot be understood to include legislation that merely or largely superimposes
the common law over customary law. The whole purpose of the new constitutional dispensation is to move the South African society from the
old social and legal orders in which the social institutions and legal systems of some communities were simply disregarded or outlawed by the
common law. Furthermore, a constitution that recognises customary law in its provisions could not have contemplated legislation that simply
abolishes large components of this system of law with a stroke of the pen and replaces them with the common law. Any legislation dealing with
customary law within the current constitutional framework must, as much as possible, permit the continued existence of customary law which
does not offend the values of the Constitution, and it must take a culturallysensitive approach. To do otherwise would amount to the use by
state institutions of legislation for what it was not intended by the Constitution — killing customary law in all sorts of ways, such as simply
abolishing it or replacing it by the common law — in the name of the Constitution and law reform. In this respect, it is submitted that if the
legislature had tried hard enough in its reform of the customary
law of marriage, it would have come up with legislation that is compatible with the cultural and legal diversity guaranteed by the Constitution,
but yet more accommodative of customary law than the Act. 9 3
The sum of this argument is that traditional leaders and their communities may obstruct the effective implementation of the new laws of
marriage or succession if they do not identify with them and if they see them to be an imposition of common law on customary law that flies in
the face of the new status the Constitution has promised to their law. The obstruction may take different forms, including simply ignoring the
law or actively undermining practical activities aimed at their implementation, such as, for example, public education and the dissemination of
information about the new laws.
Related to this argument are the expectations that may have been created by the Constitution and the courts regarding the status of
customary law in the new dispensation elaborated. This is elaborated upon in the next section.
(2) The historical factor
Customary law occupied both a limited and inferior position to the dominant legal system, the common law, in the colonial and apartheid legal
systems. In the area of family law, for example, the civil marriage was the only marriage that had full legal recognition in the former Republic of
South Africa. 9 4 Customary marriages or unions, as they were officially known, 9 5 were generally not fully recognised by the common law. One
of the main reasons for this was that they were potentially polygynous and, therefore, contrary to public policy. 9 6
The end of apartheid and the beginning of a new constitutional dispensation in 1994 may, however, have created new expectations about the
place that customary law would occupy in the legal system. The Constitution recognises the right of everyone 'to participate in a cultural
life of their own choice'. 9 7 As customary law is undeniably a part of the African cultural tradition, 9 8 the protection of the right to culture by

the Constitution amounts to the protection of customary law as a right (albeit indirectly). Other constitutional provisions equally entrench
customary law's existence in the legal system. 9 9 The expectations in question may have been reinforced by the elevated status of customary
law in the Constitution in comparison with the inferior position this system occupied in relation to the common law in the preconstitutional era.
place that customary law would occupy in the legal system. The Constitution recognises the right of everyone 'to participate in a cultural
life of their own choice'. 9 7 As customary law is undeniably a part of the African cultural tradition, 9 8 the protection of the right to culture by

the Constitution amounts to the protection of customary law as a right (albeit indirectly). Other constitutional provisions equally entrench
customary law's existence in the legal system. 9 9 The expectations in question may have been reinforced by the elevated status of customary
law in the Constitution in comparison with the inferior position this system occupied in relation to the common law in the preconstitutional era.
100
Early Constitutional Court decisions also somewhat heightened these expectations by making pronouncements on the inclusion of customary
law as a source of the values of the legal system. The judgment of Sachs J in S v Makwanyane and Mchunu, is quite revealing in this regard,
and it is therefore worth referring to in detail.
Sachs J was concerned that the source of values of the new jurisprudence took account of the values of the whole of the South African
society. He said: 'I wish firmly to express my agreement with the need to take account of the traditions, beliefs and values of all sectors of
South African society when developing our jurisprudence.' 102 He goes further to say that:
'the secure and progressive development of our legal system demands that it draw the best from all the streams of justice in our country. This
would include benefiting from the learning of those judges who in the previous era managed to articulate a sense of justice that transcended the
limits of race, as well as acknowledging the challenging writings of academics such as the late Dr Barend van Niekerk, who bravely broke the
taboos on criticism of the legal system. Above all, however, it means giving long overdue recognition to African law and legal thinking as a source
of legal ideas, values and practice. We cannot, unfortunately, extend the equality principle backwards in time to remove the humiliations and
indignities suffered by past generations, but we can restore dignity to ideas and values that have long been suppressed or marginalised.' 103
Sachs J was also emphatic in stating that legal pluralism, including the religious and indigenous system of law, was recognised by the
Constitution and, in particular, that 'indigenous law, like common law, shall be recognised and applied by the courts, subject to the fundamental
rights
contained in the Constitution and to legislation dealing specifically therewith.' 104
Referring to the way courts should interpret the Bill of Rights, he said 'all courts must promote the values of an open and democratic society
based on freedom and equality . . . . One of the values of an open and democratic society is precisely that the values of all sections of society
must be taken into account and given due weight when matters of public import are being decided.' 105 He then quotes from Paul Sieghart who
points out that 'the hallmarks of a democratic society are pluralism, tolerance and broadmindedness'. 106
Finally he said:
'It is a distressing fact that our law reports and legal textbooks contain few references to African sources as part of the general law of the country.
That is no reason for this Court to continue to ignore the legal institutions and values of a very large part of the population, moreover that section
that suffered the most violations of fundamental rights under previous legal regimes . . . has the most to hope for from the new constitutional
order.' 107
If these statements in any way represent some of the expectations about the place customary law was to be given in the legal system of
South Africa, then its replacement by the common law in resolving conflicts between customary law and the Constitution may not readily be
countenanced by interested parties, especially the communities that consider customary law to be their system of law. Moreover, within the
historical context of South Africa, the replacement of customary law by the common law may be seen as a preference, once more, for the
values of one sector of the South African society over another, a preference which was rejected by the High Court in Ryland v Edros. Ideally, no
one would be justified in entertaining such a view in a case where the replacement of customary law by the common law is done by legislation
(as is the case with the Act), for in a democracy Parliament and its legislation represent the will of the majority. However, even in this case, the
ideal often seems to get lost sight of when it comes to the implementation of the law in the affected communities. People may simply ignore the
legislation concerned if they do not identify with it, and reduce it to mere paper law that has no relevance to their lives or the lives of those it
intended to protect. 109
For these reasons it appears that any reform of customary law by the legislature should seek to incorporate as much of customary law and
its values as are not in conflict with the Constitution and, in any case, avoid doing unnecessary violence to this system of law. 110 As Pieterse
argues 'the values underlying our constitutional dispensation do not necessarily implicate the abolition of customary law, but rather serve to
assist courts [and the legislature] in monitoring and encouraging change in sociocultural patterns of behaviour which would bring such
behaviour in line with the underlying values of the Constitution'. 111 Furthermore, 'the Bill of Rights mandates at least that customary law is not
abandoned outright in favour of common law when law reform is conducted. Rather, what is required in instances where cultural practices or
institutions do not reflect the spirit purport and objects of the Bill of Rights is for them to be transformed or developed in accordance with s
39(2) of the Constitution'. 112
Thus, the courts cannot simply efface customary law and replace it with common law whenever it conflicts with the Constitution. This is not
compatible with their Constitutional mandate as far as the development of customary law is concerned. In this respect, the minority decision 113
in Bhe is worthy of note, in that it attempted to develop customary law rather than simply replacing it with the common law. It suggested the
development of the official version of the principle of primogeniture that was before the court by 'removing the reference to a male so as to
allow an eldest daughter to succeed to the deceased estate.' 114
In doing this it was supported by the Constitutional Court's decision in Carmichele v Minister of Safety and Security and Another. The
following statement is pertinent:
'The Carmichele case applies equally to the development of indigenous law. Where a rule of indigenous law deviates from the spirit, purport and
objects of the Bill of Rights, courts have an obligation to develop it so as to remove such deviation. This obligation is especially important in the
context of indigenous law. Once a rule of indigenous law is struck down, that is the end of that
particular rule. Yet there may be many people who observe that rule, and who will continue to observe the rule. And what is more, the rule may
already have been adapted to the everchanging circumstances in which it operates. Furthermore, the Constitution guarantees the survival of the
indigenous law. These considerations require that, where possible, courts should develop rather than strike down a rule of indigenous law.' 116
The minority also held that customary law should be applied alongside the common law in the concrete setting of social conditions presented by
each particular case. 117 Although the case by case approach was disapproved of by the majority decision on the grounds that it is a slow
method of redressing injustices suffered by the litigants before the courts, and that it does foster legal uniformity and certainty, it nevertheless
contributes to efforts aimed at securing the status of customary law within the broad vision of the Constitution discussed above.
Moreover, it is debatable whether, given the constitutionally protected cultural and legal pluralism, the values of uniformity and certainty in
the law should not be subjected to constitutional scrutiny as hindering the creation of laws that are respected and implemented by the
communities in which they operate. Because it is culturally sensitive, the approach taken by the minority seems to provide a basis on which
people living under customary law can be persuaded to respect the new laws and to promote their implementation.
However, this is not to suggest that the approach of the minority is altogether beyond criticism. For example, its conclusion that the law that
is applied to the distribution of a deceased estate should be determined by the agreement of interested parties 118 does not take account of
the power dynamics in decisionmaking within the family that often work against women's interests.
(3) Inaccessibility of the new law
The extension of the common law to customary law problems inevitably introduces complex legal procedures that are not only unknown to
customary law dispute resolution mechanisms and most people living under customary law but also render the new law inaccessible to ordinary
South Africans. The complexity of the legal procedures therefore makes a mockery of the protection of women's rights in practice. Examples
may be drawn from the regulation of the matrimonial property rights of both polygynous marriages and the marriages entered into before the Act
came into force discussed above.
The extension of the common law to customary law problems inevitably introduces complex legal procedures that are not only unknown to
customary law dispute resolution mechanisms and most people living under customary law but also render the new law inaccessible to ordinary
South Africans. The complexity of the legal procedures therefore makes a mockery of the protection of women's rights in practice. Examples
may be drawn from the regulation of the matrimonial property rights of both polygynous marriages and the marriages entered into before the Act
came into force discussed above.
In the discussion of the property consequences of the marriage in terms of section 7 above, it was stated that a man who wishes to marry
an additional wife or wives must follow a prescribed procedure leading to the approval by the court of a contract which will regulate the
matrimonial property of his polygynous marriage. As already pointed out, this procedure involves the courts and bureaucratic red tape. This
procedure may well deter people from entering into polygynous marriages in the first place and thereby protect the property interests, at least,
of the existing wife, but it is not difficult to see how impractical and unaffordable it makes the new law for most people. For example, every time
a man marries a new wife, he and his wives, who have to be joined to the proceedings, must go through the complex and expensive High Court
procedures and incur the necessary legal representation costs. This is not to mention the great distances those in the rural areas might have to
cover to reach the nearest High Court or family court, as the case may be, to process their matrimonial property contract applications, and the
consequent transportation costs. And whether or not many people are likely to know or understand these highly complicated legal procedures is
another matter. 119 Should this not be the case, however, people will simply carry on marrying as they have always done as though the Act did
not exist. Thus, while the Act represents theoretical victories for women in marriage, it may mean little or nothing to their lived experiences.
IV Conclusion
The legislature and the courts in South Africa are to be commended for descending into the arena of conflicts between customary law and the
Constitution, in order to protect the rights of vulnerable members of families, especially women and children, in the areas of marriage and
succession. However, the effectiveness of their intervention will be measured by the extent to which the implementation of the new laws
benefits the women in practice. This paper has attempted to identify the method of the reform of customary law itself as one of the likely major
sources of implementation problems, together with the related issue of inaccessibility of the new laws. Clearly the discussion of the issues in
question is not conclusive, but it is hoped that it will act as a starting point for future research into the operation of the new laws and their
impact in transforming the lives of women in line with constitutional principles and
values, as well as providing a basis for the consideration of future state interventions in the reform of customary law.
Furthermore, the paper has hopefully brought to view a dimension of the uncritical superficial approach of the courts to customary law 120
that has a serious bearing on the extent to which women living under customary law may enjoy their human rights under the Constitution and
international human rights instruments that South Africa has ratified. 121
* LLB (Zambia) LLM PhD (London); Professor, Department of Private Law, University of Cape Town.
1 See, for example, M Pieterse 'It's "a black thing": upholding culture and customary law in a society' (2001) 17 SAJHR 364 and 'Killing it softly: Customary law
in the new constitutional order' (2000) 33 De Jure 35; C Himonga & R Manjoo 'What's in a name? The Identity and Reform of Customary Law in South Africa's
Constitutional Dispensation' in Governance in African Tradition in M O Hinz (ed) (2005) (forthcoming).
2 See, for example, T W Bennett Customary Law in South Africa (2004) 91, C Rautenbach 'Some comments on the status of customary law in relation to the
Bill of Rights' (2003) 14 Stellenbosh Law Review 107.
3 See, for example, F Kagnas & C Murray 'The contest between culture and gender equality under South Africa's interim Constitution' (1994) 21 Journal of Law
and Society 409; W van der Meide 'Gender equality v Right to culture' (1999) 116 SALJ 100; C Himonga, 'Implementing the rights of the child in African legal
systems: The Mthembu journey to justice' (2001) 9 International Journal of Children's Rights 89122.
4 Act 120 of 1998, which came into force on 15 November 2000.
5 2005 (1) BCLR 1 (CC); 2005 (1) SA 580 (CC). Bhe was heard together with two other cases. These were Shibi v Sithole and Minister for Justice and
Constitutional Development and South African Human Rights Commission and Women's Legal Centre Trust v The President of the Republic of South Africa and
Minister for Justice and Constitutional Development. Both the Shibi and Bhe cases concerned the customary law of succession embodied in the Black
Administration Act 38 of 1927 and the constitutionality of the principle of primogeniture. The only difference between them is that the female excluded from
succession to the deceased's estate in Shibi was the deceased's sister as compared to the deceased's daughters in Bhe. On the other hand, the applicants in
South African Human Rights Commission applied for direct access to the Constitutional Court to have section 23 of the Black Administration Act and the
regulations promulgated thereunder declared unconstitutional, on the ground that its provisions infringed the rights to equality and human dignity, and the Court
granted direct access to the applicants.
6 A somewhat similar use of this term is adopted in other literature on African customary law. See for, example, Bennett's discussion of conflicts between
common law and customary law in Bennett (n 2) 49.
7 South Africa has ratified a number of international conventions, which demand the protection of the human rights of women and children in various areas,
including family law. Among these is the Convention on the Elimination of All Forms of Discrimination against Women. This Convention obliges states parties to
accord to women equality with men before the law and a legal capacity equal to that of men in civil matters (art 15). It also requires states to 'take all
appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations' (art 16(1)). Thus men and women are to
have the same rights, among others, to choose a spouse and to consent to the marriage, to own, acquire, manage, enjoy and dispose of property, and to have
guardianship of their children. The Convention further states that the betrothal and marriage of children shall have no legal effect and demands that states take
all necessary action, including legislation, to specify a minimum age for marriage (art 16(2)). It should be noted that although the South African Parliament has
not passed any legislation incorporating these conventions into domestic law, the Constitution states that 'when interpreting the Bill of Rights, a court, tribunal or
forum . . . must consider international law' (s 39(1)(b)).
8 Section 9(1), (3), (4) provides that everyone is equal before the law and has the right to equal protection and benefit of the law and that neither the state
nor any person may unfairly discriminate against anyone on grounds, inter alia, of gender, sex, pregnancy, marital status and culture.
9 Note 5.
10 See ss 2 (1) (2) (3) (4) and 1(iii) of the Act. Section 4(9) of the Act however provides that registration under the Act of a customary marriage is not
essential to its validity.
11 South African Law Reform Commission Project 90 (1998) Harmonisation of the Common Law and the Indigenous Law Report on Customary Marriages 16.
12 Due to limitations of space the customary law (at least in its official form) that was replaced is not discussed. A discussion of various aspects of this form of
customary family law before the coming into operation of the Act may be found in standard works on customary law and family law generally of that period, such
as T W Bennett (1991) A Sourcebook of African Customary Law 144300, J C Bekker Seymour's Customary Law in Southern Africa 5ed (1989) 96214, J Sinclair
Law of Marriage (1996) 239262 and N J J Olivier et al Indigenous Law (1995, 2003 reprint) 686.
13 Section 3(1)(a)(i) of the Act.
14 See s 3(4) of the Act, which is in similar terms as s 26(1) of the Marriage Act 25 of 1961.
15 See s 3(3)(a) of the Act. This is similar to s 24 of the Marriage Act.
16 See s 3(3)(b) and (5) of the Act, which import ss 25 and 24A of the Marriage Act respectively.
17 Section 6 of the Act.
18 Act 57 of 1972.
19 Ibid s 1.
20 See Black Administration Act (n 5) s 11(3)(b); Transkei Marriage Act of 1978 ss 29, 3739; the Kwazulu Code and the Natal Code of Zulu Law s 27(3)
respectively. These provisions were repealed by s 13 of the Act. For a discussion of the legal position before the Act see Bennett (n 12) 31737; Sinclair (n 12)
247250.
21 See s 10(2) of the Act.
22 Act 88 of 1984.
23 That is, chapter III on the joint estate of the parties in marriages in community of property and its management, and ss 18, 19, 20 on damages excluded
from community and recoverable from the other spouse, liability for delicts committed by spouses, and the power of the court to order the division of the joint
estate.
24 See D S P Cronje & J Heaton South African Family Law 2ed (2004) 7173.
25 Ibid 7787.
26 Marriages out of community of property but with community of profit and loss, in which the spouses retain their separate property acquired before the
marriage but have a joint estate in respect of profit and loss in the marriage, are considered to be very rare. See Cronje & Heaton (n 24) 97. They are therefore
not discussed in this paper.
27 See the reference to the accrual in s 7(7)(i) of the Act.
28 That is, the rules set out in ss 410 of the MPA.
29 See s 7(5). The relevant provision of the MPA, s 21, applies. This section provides that spouses may jointly apply to the High Court for permission to
change their matrimonial property system. The Court will grant the permission if it is satisfied that '(a) there are sound reasons for the proposed change; (b)
26 Marriages out of community of property but with community of profit and loss, in which the spouses retain their separate property acquired before the
marriage but have a joint estate in respect of profit and loss in the marriage, are considered to be very rare. See Cronje & Heaton (n 24) 97. They are therefore
not discussed in this paper.
27 See the reference to the accrual in s 7(7)(i) of the Act.
28 That is, the rules set out in ss 410 of the MPA.
29 See s 7(5). The relevant provision of the MPA, s 21, applies. This section provides that spouses may jointly apply to the High Court for permission to
change their matrimonial property system. The Court will grant the permission if it is satisfied that '(a) there are sound reasons for the proposed change; (b)
sufficient notice of the proposed change has been given to all the creditors of the spouses; and (c) no other person will be prejudiced by the proposed change'.
Once it has approved the change of the matrimonial property, the court will authorise the spouses to enter into a notarial contract by which their future
matrimonial property system will be regulated 'on such conditions as the court may think fit'.
30 Section 7(7) of the Act, which imports the concept of 'accrual'.
31 Ibid.
32 See ss 7(a)(iiii), 7(b)(iiii), 7(8) and 7(9) of the Act.
33 Section 7(1) of the Act.
34 See s 7(4)(a) of the Act.
35 The Act does not, however, prohibit mediation of marital disputes by traditional methods (see s 8(5)).
36 See s 8(1)(2). Interestingly the Act does not deal with the dissolution of marriage by the death of a spouse. The assumption seems to be that the marriage
is dissolved automatically by the death of one or both spouses. But this is not always the case in customary law. For example, in communities that practice
levirate marriages or 'widow inheritance', the marriage may continue with another person after the death of one spouse. Unless the silence of the Act is
considered to mean that all marriages are now dissolved by divorce only, the implications to women of the Act's silence on this matter would be that widows may
be married to another person in a marriage which is not regulated by the Act. Such women would therefore not benefit under the Act. There is therefore a need
for the legislature to clarify this matter.
37 The presiding officers in chiefs and headmen's courts are mainly men (L Mbata (1999) 4 Gender Research Project Bulletin: The Centre Applied Legal Studies
56).
38 See Cronje & Heaton (n 24) 127146.
39 See s 3(2) of the MPA (n 22).
40 For the rest of the rules on the calculation and sharing of the accrual see ss 410 of the MPA (n 22).
41 Spouses are, of course, free to enter into an agreement on how their property is to be distributed differently from their matrimonial property system. See
Cronje & Heaton (n 24) 127.
42 Act 70 of 1979.
43 See s 8(4)(a) of the Act, incorporating ss 7, 8, 9 and 10 of the Divorce Act, as well as s 24(1) of the MPA, which concerns the distribution of the matrimonial
property of a minor whose marriage has been dissolved for the lack of parental consent.
44 See s 8(4)(d) of the Act, which incorporates s 6 of the Divorce Act (n 42). The court also has power to rescind, suspend or vary the order for maintenance,
custody or guardianship of the children in accordance with s 8 of the Divorce Act n 42).
45 For a detailed discussion of the official customary law of marriage in operation before the Act came into operation, see references in (n 12). For a
discussion of this subject after the Act came into force, see Bennett (n 2) 187293.
46 According to the findings of the Committee (n 11) and L Mbatha (see 'Summary of findings on how Black South Africans marry' unpublished), the practice of
polygyny is dying out. The latter study was done in three of South Africa's provinces (Gauteng, North West and Northern Province) and it included an urban/rural
variable. It is undated, but it appears that it was conducted shortly before the enactment of the Act in 1998.
47 See s 3(1)(a)(ii) of the Act.
48 The Act does not mention lobolo as one of the requirements for a valid marriage. According to the Committee, '[l]obolo should not be deemed essential for
the validity of customary marriages. If parties wish to give lobolo, they should be free to do so, but payment or nonpayment will have no effect on the spouses'
relationship or on their rights to any children born of the marriage'. See South African Law Reform Commission (n 11) 61.
49 Act 81 of 1987.
50 Note 5.
51 See s 1(4)(b) of the Intestate Succession Act (n 49).
52 Section 23(1) of the BAA (n 5).
53 Section 23(2) of the BAA. Section 2 of the Upgrading of Land Tenure Act 112 of 1991 (read with schedule 1) provides for the upgrading of quitrent to
ownership. This part of the BAA had therefore already been overtaken by events at the time of Bhe. Regulation 2 issued under the BAA provided as follows:
'If a Black dies leaving no valid will, so much of his property, including immovable property, as does not fall within the purview of subsection (1) or subsection (2)
of section 23 of the Black Administration Act shall be distributed in the manner following:
(a) . . .
(b) If the deceased was at the time of his death the holder of a letter of exemption issued under the provisions of section 31 of the Act, exempting him from
the operation of the Code of Zulu Law, the property shall devolve as if he had been a European.
(c) If the deceased, at the time of his death was —
(i) a partner in a marriage in community of property or under antenuptial contract; or
(ii) a widower, widow or divorcee, as the case may be, of a marriage in community of property or under antenuptial contract and was not survived by a
partner to a customary union entered into subsequent to the dissolution of such marriage, the property shall devolve as if the deceased had been a European.
(d) When any deceased Black is survived by any partner —
(i) with whom he had contracted a marriage which, in terms of subsection (6) of section 22 of the Act, had not produced the legal consequences of a marriage
in community of property; or
(ii) with whom he had entered into a customary union; or
(iii) who was at the time of his death living with him as his putative spouse;
or by any issue of himself and any such partner, and the circumstances are such as in the opinion of the Minister to render the application of Black law and
custom to the devolution of the whole, or some part, of his property inequitable or inappropriate, the Minister may direct that the said property or the said part
thereof, as the case may be, shall devolve as if the said Black and the said partner had been lawfully married out of community of property, whether or not such
was in fact the case, and as if the said Black had been a European.
(e) If the deceased does not fall into any of the classes described in paragraphs (b), (c) and (d), the, property shall be distributed according to Black law and
custom.'
(a) . . .
(b) If the deceased was at the time of his death the holder of a letter of exemption issued under the provisions of section 31 of the Act, exempting him
from the operation of the Code of Zulu Law, the property shall devolve as if he had been a European.
(c) If the deceased, at the time of his death was —
(d) When any deceased Black is survived by any partner —
(e) If the deceased does not fall into any of the classes described in paragraphs (b), (c) and (d), the, property shall be distributed according to Black law
and custom.'
54 That is, s 23(10)(a), (c) and (e) and regulation 2(e) of Regulations for the Administration and Distribution of the Estates of Deceased Blacks GN R200 of
February 1987. The principle was considered in Mthembu v Letsela [2000] 3 All SA 219 (SCA) but the case was decided on a different basis.
55 Bhe and Shibi.
56 Para 120.
57 Notes 52 and 53.
58 See s 36 of the Constitution, which provides for the circumstances in which the rights in the Constitution may be limited.
59 See paras 9194.
60 See paras 118 and 119.
61 Para 120. The Commission's proposed Intestate Succession Bill seeks to establish a uniform system of Intestate succession that will be regulated by a
modified Intestate Succession Act to accommodate customary law.
62 These sections provide for a child's share for a surviving spouse in a monogamous marriage and the calculation of a child's share of the estate.
63 Para 125.
64 Ibid.
65 Para 130.
66 Ibid.
67 Para 130.
68 See para 107.
69 That is, the heir who was unaware that the constitutional validity of s 23 of the BAA was being challenged.
70 See paras 131133.
71 2001 (2) SA 18 (CC).
72 That is s 23(7)(a) and Regulation 3(1) GN R200 of February 1987.
73 The exception was where, in terms of Regulation 2 to the Black Administration Act, a magistrate held an enquiry into a deceased African's moveable
property governed by customary law and appointed a representative to the estate.
74 See Olivier et al (n 12) 172173.
75 Para 30.
76 For a detailed discussion of this decision and the consequent legislative reform of the law on administration of estates of Blacks, see C Rautenbach 'The
administration of Black estates: Life before and after 5 December 2002' (2004) 67 THRHR 216228.
72 That is s 23(7)(a) and Regulation 3(1) GN R200 of February 1987.
73 The exception was where, in terms of Regulation 2 to the Black Administration Act, a magistrate held an enquiry into a deceased African's moveable
property governed by customary law and appointed a representative to the estate.
74 See Olivier et al (n 12) 172173.
75 Para 30.
76 For a detailed discussion of this decision and the consequent legislative reform of the law on administration of estates of Blacks, see C Rautenbach 'The
administration of Black estates: Life before and after 5 December 2002' (2004) 67 THRHR 216228.
77 See para 114. The legislature is said to be 'dragging its feet' since the first Bill to reform the customary law of succession was introduced to Parliament in
1998, but was later withdrawn. No other legislative action has been taken to reform the substantive customary law of succession other than the ongoing
investigation by the South African Law Reform Commission. (see South African Law Reform Commission Discussion paper 93 Project 90 on the Law of Succession
(2000).
78 Para 115.
79 See s 39(2) of the Constitution. This section states: 'When interpreting any legislation, and when developing the common law or customary law, every
court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.'
80 See paras 111 and 112.
81 See the allusion to this by the minority decision in Bhe (para 175) and L Mbatha 'Reforming the Customary Law of Succession' (2002) 18 SAJHR 259 at 271.
82 J Stewart & C Himonga Report on the Review of Gender and Law Programmes in Zimbabwe and Mozambique unpublished (2002) 26.
83 E Bonthuys 'The South African Bill of Rights and the development of family law' (2002) 119 SALJ 748 at 757761, 7789. See also Himonga (n 3).
84 Cited in South African Law Commission Discussion paper 93 (n 77) x.
85 Act 7 of 1953.
86 Note 48.
87 South African Law Commission (n 77) xxi.
88 Personal communication with L Mbatha, who attended the meeting of the Portfolio Committee for Justice in November 1998 at which Contralesa made its
submissions on the Bill. (It has not been possible to examine Contralesa's written submissions to the Committee.)
89 See, for example, Kagnas & C Murray (n 3).
90 Perhaps this negotiation was merely an indication, as some may argue, of the fact that customary law would not go away as many negotiators thought it
would. But the fact that it could not simply go away shows the importance attached to the issue by the protagonists and their respective perceived needs to
ensure that their own interests in the issue received the support of the Constitution.
91 See also A J Kerr 'Customary law, fundamental rights and the Constitution' (1994) 111 SALJ 720.
92 See ss 211 and 212 of the Constitution.
93 On how the Act could have been more accommodative of customary law see, Pieterse 'Killing it softly' (n 1) 4247.
94 In contrast, in some of the former socalled selfgoverning and independent territories like KwaZulu and the Transkei, customary marriages were
recognised as marriages for all purposes since 1967 and 1978 respectively (see C M R Dlamini 'The ultimate recognition of the customary marriage in South
Africa' (1999) 20 Obiter 14).
95 See s 35 of the BAA (n 5).
96 See, for example, Santam v Fondo 1960 (2) SA 467 (A). Marriages concluded under systems of religious law, which permit polygyny, such as Hindu and
Muslim marriages, were and continue to be in this position, although there are discussions towards recognising them fully, in the light of s 15(3) of the
Constitution. For a limited recognition of these marriages see, for example, Ryland v Edros 1997 (2) SA 690 (C) and Amod v Commission for Gender Equality
and Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA).
97 See ss 30 and 31 of the Constitution.
98 See Bennett (n 2) 7880.
99 See, for example, the whole of chapter 12 and s 15(3) (1) (a) of the Constitution.
100 See references above (n 96).
101 1995 SA (3) 391 (CC).
102 Para 361.
103 Paras 364365.
104 Para 366.
105 Para 368.
106 Ibid.
107 Para 371.
108 Note 96.
109 In any case, the meaning of the concept of representation in political theory is complex and not free from debate. For detailed discussion, see H F Pitkin
The Concept of Representation (1967). Consequently, the idea of representation is not always helpful in understanding why communities, which are represented
by democratic structures in formalistic terms, consider some legislative actions as not reflecting their views or accommodating their experiences in the area of
the action(s) concerned.
110 In this connection, one awaits with great interest the outcome of the ongoing investigation on the reform of customary succession law by the South
African Law Commission (n 77).
111 Pieterse 'Killing it softly' (n 1) 47.
112 Pieterse 'It's a "black thing" ' (n 1) 392.
113 This point is also discussed by the author elsewhere (see Himonga & Manjoo (n 1)).
114 Para 222.
115 2001 (4) SA 938 (CC), 2004 (2) BCLR 133 (CC).
116 Para 214.
117 Para 236.
118 Para 239.
119 And one hopes that this problem will not be dismissed lightly as being the result of poor legal draftsman or bad law. It is, in my view, the result of
imposing a system of law (the common law) that may be good for some people but not for others, because of its lack of sensitivity to their realities, including the
reality concerning the laws that regulate their lives at the local level.
120 See Bonthuys (n 83) and Himonga (n 3).
121 The descriptions of the main features of the Recognition of Customary Marriages Act and of Bhe in this paper are drawn from C Himonga & R Manjoo (n
1).

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customary law of succession'. 6 1 Accordingly, the Court modified s 1(1)(c)(i) and (4)(f) of the Intestate Succession Act 6 2 to accommodate

life of their own choice'. 9 7 As customary law is undeniably a part of the African cultural tradition, 9 8 the protection of the right to culture by

life of their own choice'. 9 7 As customary law is undeniably a part of the African cultural tradition, 9 8 the protection of the right to culture by

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