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Summary Research Report 15
the agreement to conclude a customary marriage. There is therefore no sound basis for these assumptions. This leads to the recommendation that the state must pay attention to the question of consent of the parties to the marriage to ensure that vulnerable members of families, including children, are protected from forced marriages.
Secondly, there is evidence from the findings that the ghosts of the common law and official customary law continue to creep into the adjudication of post-RCMA disputes. For example, in some post-RCMA cases the courts employed the technique of precedent in exactly the same way as they would do in hearing a case under the common law, to which that doctrine belongs. In other cases, the courts relied on precedent from pre-RCMA marriage, thereby importing pre-constitutional dispensation official customary law into the RCMA domain. The courts need to be alert to the ways in which their practices are not complying with the RCMA. They must also be aware that customary marriage processes and rituals differ from one ethnic group to another. In these circumstances, the courts cannot always simply take one case and apply it as precedent in another case.15 Thirdly, in some cases, the courts disregarded Western influences on the marriage process as ‘smaller parts of the ceremonies’. The courts should take cognisance of the fact that customary law evolves and that the process of its evolution may be influenced by other cultures. The courts should also be encouraged to learn from other courts that recognise the idea of the evolution of customary law. In this respect, the study found that some courts have relied on the evolving nature of living customary law to determine the requirements of a valid customary law marriage within the context of changing social and economic conditions, such as those due to urbanisation
Finally, the study found exemplary decisions that the courts should emu- late. One of these is Southon v Moropane,16 which concerns the attention the judge paid to the details of the case in determining the validity of a customary marriage. Other examples are the Constitutional Court decisions in Gumede v President of the Republic of South Africa17 and Mayelane v Ngwenyama,18 which support the principle of equality in customary marriages. These exem- plary cases should be used as ‘good law’.
3.1.5 The role of the family in the contract of marriage
It is evident from both the court decisions reviewed and the practices of people on the ground that meeting the requirements of a customary marriage under the RCMA involves not just the prospective parties to the marriage but their families as well. The involvement of the families is central to the negotiation of the marriage, particularly with regard to lobolo and the handing over of the wife to her husband’s family. The predominance of the family and
15 See also Himonga & Pope ‘Mayelane v Ngwenyama and Minister for Home Affairs: A reflection on wider implications’ 2013 Acta Juridica 318–38.
16 Case No 14295/10 [2012] ZAGPJHC 146 (18 July 2012). 17 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC).
18 2010 (4) SA 286 (GNP).