Page 13 - SAReform Book

Summary Research Report 11 2.1 Knowledge of the laws
In every area of our investigation, participants clearly demonstrated a lack of knowledge about the legal system, legal and state institutions, and legal concepts and principles.
In many cases, the participants did not know that they had a choice of how they could register their marriage — ie according to which legal system — and they demonstrated how unaware they were of the differences between or the consequences of registering a marriage according to civil law or custom- ary law. This lack of knowledge led to confusion about registering a marriage with traditional leaders and the Department of Home Affairs (DHA), and the belief that the DHA is for the registration of civil marriages only. Some of these problems were identified in earlier research carried out shortly after the commencement of the RCMA. Fifteen years after the passing of the Act, these problems are still prevalent. This demonstrates the systemic nature of the state’s failure to reform customary marriage.
In other cases, participants were unable to differentiate between the marital property regimes they could choose from and were therefore unaware of the different consequences flowing from such regimes if a marriage is dissolved. There are significant consequences of such gaps in the understanding of legal processes. For instance, women receiving divorce summonses would sign ‘papers’ without understanding the legal consequences of their actions. In another instance, a wife who had been deserted and who no longer knew where her husband was did not know that she could still institute divorce proceedings.
The problem of lack of knowledge of the law can be solved if the state continues to offer broad education to the public regarding the changes in the law and the specific attributes of the RCMA and the law governing succes- sion. A good practice is the display of posters on the changes to the law of succession brought about by Bhe at the entrances of some of the premises of the Masters of the High Court. Our findings show that members of the public turn to different state institutions, seeking information about their rights. The state could therefore offer this information at a range of state institutions.
2.2 Ill-conceived definitions of customary law events
The study found that the RCMA and the Bhe rules have inadequately addressed how civil law remedies they have incorporated apply to customary law. Concepts such as ‘in community of property’, ‘antenuptial contracts’, ‘joint estate’, ‘accrual system’, ‘inheritance’, ‘matrimonial home’, and so on impose definitions on customary law events and matters that are ill-con- ceived.6 For example, the civil law concept of inheritance takes precedence over ‘need’ as the primary determinant of benefit from family property under customary law. Moreover, community of property makes little sense in a
6 See also Mamashela ‘New families, new property, new laws: The practical effects of the Recognition of Customary Marriages Act’ (2004) 20 South African Journal on Human Rights 616.