Page 14 - SAReform Book

12 Reform of Customary Marriage, Divorce and Succession in SA
context where the majority of the intended beneficiaries live in poverty. Needless to say, this property system is impossible to apply in a polygynous marriage because it entails that each spouse obtains an undivided and indivis- ible half-share in all property acquired and all liabilities incurred by either spouse.
The consequence of inadequate attention by the RCMA and the Bhe rules to how civil remedies apply to customary law is evident from the questions that individuals had concerning, for example, marital property regimes. Partici- pants in our research were unsure of who had a claim to a matrimonial home, particularly where the home originally belonged to the husband’s family through inheritance. Thus, what this and other studies7 show is that it is not sufficient for the state to simply add civil law concepts or remedies to the realm of customary law without radically altering the meanings and practices embedded in this system of law. In order to rectify this problem, the RCMA and the succession rules should be amended and should draw upon other mechanisms found in customary law on the ground. However, this solution requires further research to identify the precise and appropriate mechanisms for this purpose.8
2.3 Parallel formal and informal legal processes dealing with customary matters
The study found that parallel state and informal systems of regulation of customary marriages, divorce and succession are taking place. For example, there are non-designated RCMA officers (who are traditional leaders) register- ing marriages without taking their records to Home Affairs, thereby creating two systems of registration. Similarly, marriages continue to be dissolved informally, contrary to the provisions of the Act, in the same way as estates are administered by families outside the framework of the Bhe rules. The major problem is that the operation of these parallel systems is uncoordinated and unrecognised by the state. Not only does this cause confusion among different actors but, in some cases, the state leaves out local services and community-based solutions that would otherwise serve the needs of the people, particularly the needs of people in rural areas. For these reasons, we recommend that some aspects of these parallel systems be recognised and co-ordinated with the central state system. The power of the law and the implementation of the new laws may be enhanced by other local modes of access and by extending the law into other state institutions. For instance, the state could empower actors within the DHA and the South African Police Service to provide people with the correct information regarding the RCMA and its consequences. We will return to recommendations for the recognition of specific areas of parallel regulation in the various sub-headings in the next section.
7 Ibid.
8 The ongoing empirical studies by postgraduate students on various aspects of the RCMA and the Reform of Customary Law of Succession and the Regulation of Related Matters Act under the auspices of the Chair will contribute to this endeavour.