Customary Marriage: Missteps Threaten the Constitutional Ideal of Common Citizenship

Abstract

This article examines the role of customary law in the South African legal system in the context of the Constitution’s attempts to foster cultural diversity and a common citizenship. The article notes that the treatment of cultural rights by the legislature and the courts is an important indicator of how embedded the ideal of common citizenship is in South Africa after 25 years of democracy. Using the customary law of marriage to explore the impact of court decisions on this area of the law, the article concludes that there is cause for concern, especially in the determination of validity of marriage, which is in a state of disarray due to conflicting interpretations of the provisions of the Recognition of Customary Marriages Act. It suggests that the search for certainty in customary marriage is misplaced, urging instead an understanding of the processual nature of living customary law as opposed to treating this law as rule-centred. The article concludes by proposing that two core essentials should determine the validity of a customary marriage: the lobolo process and integration of the bride. The key consideration is that these two must be defined widely in the spirit of the values that underlie marriage for the community in question.