Page 18 - SAReform Book

16 Reform of Customary Marriage, Divorce and Succession in SA
the greater role played by it in marriage negotiation than by the parties to the marriage is also evident from cases in which neither of the prospective spouses took part in the negotiation of their marriages, leaving the whole process to their families or elders. From the perspective of the role of the family as found by this study, the suggestion in existing research that the parties to a marriage can change the requirements for a marriage cannot be supported.19 However, we argue that customary law should be developed in accordance with s 39(2) of the Constitution to permit parties who wish to be involved in the negotiation of their marriages, especially with regard to lobolo, to do so, and thereby to exercise their right to fully consent to their marriage as required by the RCMA. Arguably, the issue of consent evokes the constitutional right to dignity to which parties to a marriage are entitled.
The centrality of lobolo to the marriage also raises its significance to the proof of the existence of the marriage. Yet, the prospective parties to the marriage — to whom it would be left to prove the existence of the marriage in certain instances, especially for inheritance purposes — are excluded from the negotiation process that determines both the actual payment and the amount to be paid. This aspect of living customary law exacerbates the uncertainty associated with the existence of a customary marriage. In most cases, this is to the disadvantage of women as widows or as claimants of the material resources of the marriage upon divorce. The living customary law concerned must therefore be developed to facilitate proof of the existence of a marriage.
3.1.6 The role of traditional leaders in marriage negotiation
The study found that traditional leaders were not involved in the negotiation of marriages, but in most cases they were informed after the negotiations had taken place. In a few cases, the chief played the role of a witness to the negotiations and the conclusion thereof through the registration or physical inspection of lobolo cattle for the parties to the marriage who drove the lobolo cattle to the chief’s kraal for this purpose. These roles make traditional leaders potential sources of evidence in matters concerning the proof of the existence of a marriage in the event that the validity of a marriage that they were informed about or witnessed is disputed. Our argument is that traditional leaders may play a positive role in some aspects of the implementation of the RCMA.
3.1.7 Broader strategies for proving the existence of customary mar- riages
The findings of this study on the way marriages are negotiated in practice, particularly with regard to the involvement of the family, suggest that the Department of Justice (through the Bench Book) should direct the courts to pay particular attention to the involvement of the families of the parties in
19 See,forexample,Nongogo‘RecognitionofCustomaryMarriagesAct’NewsandViews for Magistrates (August 2001) cited as Customary Marriages Bench Book Justice College, Department of Justice and Constitutional Development (2004) 17.