Abstract
With the South African Constitution recognising customary law as part of South Africa's legal system, debates arose as to the application of the equality principle within custom, as many customary practices were seen as discriminatory. The Recognition of Customary Marriages Act 120 of 1998 was the first piece of legislation that was enacted to address gender inequality within customary law, specifically customary marriages. Future litigation on the topic was deemed to be straightforward, entailing the mere interpretation and application of applicable provisions. However, what has emerged from litigating on the customary law of marriage is how litigators, and especially the participating amicus curiae, diverge on the litigation strategy to use. The article explores the relevance and importance of amicus curiae participation within a constitutional framework and establishes whether such participation has contributed to ensuring that women living under customary law's claims to culture and equality are understood in the right context.
Highlights
Amicus curiae is a well-established concept in law
Some have chosen to focus on a rights-based approach that relies on the rights to equality and dignity to prove that an infringement has occurred, as illustrated through the Gumede v President of the Republic of South Africa judgment with the Women’s Legal Centre (WLC) as amicus curiae.[21]
The Constitutional Court confirmed the Supreme Court of Appeal (SCA)’s decision that the RCMA did not prescribe any consent requirement for a valid second or subsequent customary marriage, and followed the National Movement for Rural Women (NMRW)’s and Commission for Gender Equality (CGE)’s arguments that it was necessary to determine the content of custom, which justified its call for further evidence in this regard.[94]
Summary
With the South African Constitution recognising customary law as part of South Africa’s legal system, debates arose as to the application of the equality principle within custom, as many customary practices were seen as discriminatory. The Recognition of Customary Marriages Act 120 of 1998 was the first piece of legislation that was enacted to address gender inequality within customary law, customary marriages. What has emerged from litigating on the customary law of marriage is how litigators, and especially the participating amicus curiae, diverge on the litigation strategy to use. The article explores the relevance and importance of amicus curiae participation within a constitutional framework and establishes whether such participation has contributed to ensuring that women living under customary law’s claims to culture and equality are understood in the right context
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