The constitutionality of section 7(1) of the Recognition of Customary Marriages Act: Ramuhovhi v President of the Republic of South Africa

Abstract

ABSTRACTIn Ramuhovhi v President of the Republic of South Africa (2016), a South African High Court declared section 7(1) of the South African Recognition of Customary Marriages Act (1998) (hereafter the RCMA) which regulates the proprietary consequences of polygamous marriages entered into prior to the commencement of the RCMA unconstitutional. This article examines a number of issues raised by this judgment. It explores the court's constitutional analysis of section 7(1) of the RCMA and argues that the analysis should have examined the living customary law on the matter. The dichotomy between official and living customary law raised in the judgment is reflected upon and the court's obvious preference for official customary law is highlighted. The court's failure to develop living customary law is critiqued and it is argued that the court of first instance is better placed than the Constitutional Court to develop customary law. Lastly, the article analyses the interim remedy provided by the court. It argues that while the remedy may acknowledge the communal nature of ownership in customary law, its practical implementation is questionable.