The essence vindicated? Courts and customary marriages in South Africa
Loading...
Date
2017
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
Pretoria University Law Press
Abstract
This article describes different approaches in which courts have
determined the validity of customary marriages under the Recognition of
Customary Marriages Act in order to address the historical injustices of
vulnerable parties in a customary marriage. These approaches are drawn
from selected cases decided after the Act came into effect and consist of
two scenarios, namely, ‘judicial notice’ and ‘proof’ of customary law.
These approaches produce considerably distinct results. On the one hand,
where courts adopt the approach of ‘judicial notice’ and apply official
customary law, the inevitable result has been the invalidation of
marriages. On the other hand, if the approach has emphasised the
recognition of the essence of customary law, courts have validated these
marriages and protected vulnerable parties. These results may support (at
least partly) the theory by various scholars that the Constitution
envisaged that courts will be applying living customary law in order to
fulfil their constitutional obligations.
Description
Keywords
Customary marriages, Validity, Judicial notice, Proof of customary law, Living customary law
Citation
Mwambene, L. (2017). The essence vindicated? Courts and customary marriages in South Africa. African Human Rights Law Journal (AHRLJ), 17: 35 - 54.