Customary marriages and the South African Constitution

Abstract

Post-apartheid South Africa has been reimagining and reforming its laws and institutions. Customary law(s) in that country have not escaped these reformative efforts. These reforms have had ramifications for customary marriage, especially as to its legal requirements and constitutionality under the new South African Constitution. The Constitution, which is anchored on values of equality and respect for human dignity and freedom, declares invalid any law or practice that contravenes these values. Some of the customary law practices and customs, such as polygamy and lobola, have been generating strong academic curiosity and examination. Against this background, the chapter interrogates the constitutionally of customary marriage in the light of the South African Constitution, 1996. It draws attention to the fact that during the colonial period, customary practices were interpreted through the common law lens and that this led to distortions of customary practices. The chapter argues that, when examined in context of the Constitution, many of the customary practices will meet the values of human dignity, equality, freedom, and justice that animate the South African Constitution.