Page 16 - SAReform Book

14 Reform of Customary Marriage, Divorce and Succession in SA confirm this repertoire of norms by developing customary law as provided for
in s 39(2) of the Constitution.
3.1.2 Lobolo as symbolic capital
This study confirms existing research on the significance of lobolo as a source of symbolic capital connected to ‘grounded’ notions of women’s right to dignity and respect as perceived by some women who adhere to the practice.10 Although black women are not a homogeneous group with identical views about lobolo, this study has shown that there is a distinct group of women whose voices were not heard by the South African Law Commission and human rights lobbyists, who advocated the exclusion of lobolo from the marriage requirement provisions of the RCMA.11 This finding points to the importance of the proper representation and participation of everyone in customary law reform processes that affect them, especially women who are ‘at the centre of the struggle surrounding the definition and use of tradition’.12
3.1.3 Vulnerable position of minors in marriages
The study found a view that favoured a parallel system of marriage for minors. According to this view, minors could marry in accordance with customary law and could register their marriages in terms of the RCMA after attaining majority. Clearly this view is not only contrary to the Act, which does not envisage a parallel system of marriage, but it sanctions child mar- riages, which contravene other laws in the country, such as s 3 of the RCMA and the Children’s Act.13
3.1.4 The good and bad practices of the courts
The study found both good and bad practices adopted by the courts in their interpretation of the provisions of the law on the requirements for a valid marriage. The first practice concerns the consent of the parties to the marriage required by the RCMA. The study found that the courts make two assump- tions when applying this requirement, both of which may not reflect the reality. The first assumption is that the consent of the family to the marriage implies the consent of the parties. The second is that the participation of the parties in the negotiation of the marriage implies their consent to their mar- riage.14 However, the first assumption overlooks the dual nature of consent to a customary marriage in which both the prospective spouses and their respec- tive families must give their separate consents. With regard to the second assumption, this study found that parties to the marriage do not generally participate in the negotiation of lobolo, one of the critical processes leading to
10 Shope (n 9).
11 South African Law Commission (Project 90: The Harmonisation of the Common Law and the Indigenous Law) Report on Customary Marriages (August 1998).
12 Shope (n 9) at 65.
13 Act 38 of 2005. It should be noted that this Act also applies to the children born in customary marriages.
14 See Justice College Customary Marriages Bench Book (February 2004) 3–16.