African customary marriages in South Africa and the intricacies of a mixed legal system: judicial (in)novatio or confusio?

• Author: Rautenbach, Christa
• Position: Symposium: Mixed Jurisdictions

South Africa has a mixed legal system comprised of transplanted European laws (the core being Roman-Dutch law, subsequently influenced by English common law) and indigenous laws, referred to as customary law. This mix is also evident in South Africa's marriage laws, which can roughly be divided into two categories: civil marriages or unions, and African customary marriages. Since 1994, the developments in these two categories of marriage have been revolutionary. The case law reads like a jurisprudential chronicle of factual situations never contemplated by the legislator, and the judiciary must resort to innovation to solve the intricacies of a constitutionalized mixed legal system. To deal with the challenges posed by the interaction of two seemingly equal legal systems in one legal sphere, the courts have followed a variety of approaches including legal positivism, the application of common law principles, and, more recently, the notion of transformative constitutionalism. The primary aim of this essay is to discuss the sometimes innovative and at other times confusing approaches followed by the judiciary in dealing with the complexities created by a mixed legal system, especially with regard to marriages between Africans.

L'Afrique du Sud a un systeme de droit mixte, comprenant un heritage de lois europeennes (venant essentiellement du droit romanoneerlandais, influence ensuite par la common law anglaise) et des lois autochtones, ou droit coutumier. Ce melange est evident lorsqu'on regarde les lois sud-africaines du mariage, qui peuvent etre divisees en deux categories : mariages ou unions civiles, et mariage coutumier africain. Depuis 1994, les developpements de ces deux categories de mariage ont ete revolutionnaires. La jurisprudence se lit comme une chronique de situations factuelles jamais envisagees par le legislateur, et le judiciaire doit faire preuve d'innovation pour resoudre les complications resultant d'un regime constitutionnel de droit mixte. Pour repondre aux defis poses par l'interaction, dans une seule sphere juridique, de deux systemes de droit en apparence egaux, les tribunaux ont suivi plusieurs approches, incluant le positivisme juridique, l'application de principes de common law et, plus recemment, la notion de constitutiormalisme transformateur. Le principal objectif de cet article est de discuter des approches parfois innovantes ou encore deroutantes que suivent les tribunaux afin de regler les complications creees par un systeme de droit mixte, particulierement dans le domaine du mariage entre Africains.

Introduction I. Legal Framework for Marriages between Africans: Setting the Scene A. Customary Marriages between Africans B. Civil Marriages or Unions between Africans II. Addressing African Customary Marriages: Judicial Approaches A. Legal Positivism: The Easy Way Out? B. Common Law Principles: Potjiekos Mix? C. Transformative Constitutionalism: Knight in Shining Armour? Conclusion: Is There Method in the Madness? Introduction

Since 1994, legal developments in South Africa's mixed legal system (1) have been revolutionary. (2) Marriage law, in particular, has undergone groundbreaking changes over the last few years. In the South African context, the term "marriage law" deals with marriages or marriage-like unions that can broadly be divided into three categories. The first category includes so-called "civil marriages" which are regulated by the Marriage Act, 1961 (3) and by common law principles. (4) These marriages are monogamous and may only be entered into by heterosexual couples, regardless of their cultural or religious background. (5) For more than five decades, only these marriages were recognized as valid marriages; all other unions that did not fit the bill, including African customary marriages, (6) were treated with suspicion and contempt. The first bill of rights, (7) passed in 1994 and followed by the second and final one in 1996, (8) had an almost immediate influence on traditional views of what constitutes a marriage.

After a long line of judicial decisions challenging traditional views of what constitutes a marriage relationship and what consequences it engenders, (9) the second category came to life on 30 November 2006 with the passing of the Civil Union Act, 2006. (10) This act allows heterosexual and same-sex couples to enter into a so-called "civil union" regardless of their cultural or religious background. (11) The requirements for, and consequences of, civil unions are similar to civil marriages, but neither form allows polygyny (marriage between one man and more than one wife). Religious marriages, such as Muslim and Hindu marriages, remain unrecognized under South African law. (12)

This brings us to the third category and the main point under discussion: African customary marriages. In the past, these marriages were recognized only for limited purposes. (13) Again, with the bill of rights as a catalyst, the situation quickly changed, first owing to the courts and then to the legislature. (14) Most notably, the Recognition Act (15) came into operation on 15 November 2000. (16) The purpose of this act, as stated in its title, is to give statutory recognition to monogamous and polygynous customary marriages (17) and to specify the requirements for a valid customary marriage. (18) In addition, the Recognition Act addresses issues such as registration, (19) proprietary consequences, (20) dissolution, (21) the capacity of spouses, (22) and ability to change marriage system. (23)

African couples (24) thus have several choices of marriage regime. They may either conclude a civil marriage under the Marriage Act, a civil union under the Civil Union Act, or a monogamous or polygynous customary marriage under the Recognition Act. The latter only applies if both spouses are African.

At the Second World Society of Mixed Jurisdiction Jurists Conference (25) it was illustrated that, although the Recognition Act regulates African customary marriages, the act actually follows a hybrid approach that reflects both customary and common law characteristics. (26) At first glance, the combination of these two legal systems seems to be conciliatory, harmonizing the different marriage systems in South Africa. A second glance, however, reveals that the practical implementation of the provisions of the Recognition Act has been less harmonious than anticipated. Judicial interpretation to date reflects a discord between law and reality. The relevant issues often come to the fore upon the death of one of the spouses, most notably the husband, where more than one wife remains behind to fight for legal recognition as a spouse. The case law reads like a jurisprudential chronicle of factual situations never contemplated by the legislator, and the judiciary is forced to resort to innovation to solve the intricacies of a constitutionalized mixed legal system. Recently, the Constitutional Court in Gumede v. President of Republic of South Africa referred to this disharmony by stating (in the context of customary marriages):

At one level, the case underlines the stubborn persistence of patriarchy and conversely, the vulnerability of many women during and upon termination of a customary marriage. At another level, the case poses intricate questions about the relative space occupied by pluralist legal systems under the umbrella of one supreme law, which lays down a common normative platform. (27) Facing the challenges posed by the interaction of two seemingly equal marriage systems in one legal sphere, the courts have followed a variety of approaches to African customary marriages, including legal positivism, (28) the application of common law principles, (29) and, more recently, the notion of transformative constitutionalism. (30) This essay discusses the sometimes innovative, and at other times confusing judicial approaches to these complexities, focusing on the courts' approach to African customary marriages in a mixed legal system that caters to cultural diversity. We begin with a brief historical discussion of the prevalence of customary marriages in South Africa, (31) followed by an overview of civil marriages or unions between Africans. (32) The discussion then proceeds to examine three judicial approaches to African customary marriages. (33) It is not our intention to give a detailed analysis of all the cases dealing with the issues to date. We focus our attention on three recent cases, each following a different judicial approach, to illustrate some of the complexities that arise in a mixed legal jurisdiction.

1. Legal Framework for Marriages between Africans: Setting the Scene

   It is necessary to give a brief historical overview of the recognition of the different marriage regimes pertaining to Africans in South Africa. A distinction should be drawn between customary marriages and civil marriages or unions between Africans. Africans are in a unique position to choose which legal system, the common or the customary law, should apply to them. All other population groups are subject to the common law and must choose between the Marriage Act (civil marriage) and the Civil Union Act (civil union). (34) They cannot opt for a marriage under the Recognition Act.

   1. Customary Marriages between Africans

      When British colonists arrived on South African soil in the nineteenth century, they round a polygynous marriage system that was foreign to them. (35) Missionaries condemned these marriages as a form of slavery where women were bought and sold by the payment of lobolo (bride-wealth). (36) The true character of African customary marriages, being an arrangement between families where lobolo was seen as an expression of appreciation for the upbringing of the daughter, as well as a measure to ensure that she was treated properly by her husband and his family, was not immediately evident. The customary marriage was a forma1, though unwritten, arrangement between two families. It was...