Towards an Afrikan Approach in Resolving the Conundrum Between a Civil and Customary Marriage

Abstract

Since the dawn of colonialism, customary marriages have been considered inferior to civil marriages. The treatment of customary law as inferior, has racial connotations, as the colonists viewed Africans as barbaric. Since the Constitution of the Republic of South Africa, 1996 took effect, the Constitutional Court pledged a commitment to afford Afrikan jurisprudence an independent identity to prevent it from being viewed as inferior to the common law. Section 10 of the Recognition of Customary Marriages is problematic because it states that a customary marriage can be overridden by a civil marriage. The courts’ argument that customary law and common law enjoy equal status is not true when one considers how courts have relied on the common law in customary law disputes. South Africa needs a decolonised option because judicial pronouncements and legislation have reaffirmed the superior state of the common law, as introduced by the colonists. Developments in the wake of the death of king Zwelithini, who was in a polygynous marriage, have implications for the debate whether a customary marriage concluded after a civil ceremony is valid, or whether a civil marriage and a customary marriage could co-exist. A solution is needed for this conundrum, because declaring customary marriages invalid is not beneficial to women married under this system.