Page 20 - SAReform Book

18 Reform of Customary Marriage, Divorce and Succession in SA
and who understand the requirements for registering a customary marriage, as opposed to registering a civil marriage.
We recommend, therefore, that the state should train registering officers working within these two systems to be able to identify and register the correct marriage. We also recommend that the DHA should grant full access to researchers to review the processes involved in registering customary marriages.
3.2.2 The roles of traditional leaders and family members
Our research has uncovered the pivotal role that traditional leaders (non- designated RCMA officers) play in creating systems of ‘registration’ to pro- vide protection for mainly female spouses in customary marriages. This encouraging finding leads us to recommend that traditional leaders and their role in the registration of marriages should be recognised. Their operations will, however, need to be co-ordinated with the central system of registration. The RCMA does not expressly state who can be designated as a registering officer. Given that traditional leaders and churches are playing a role in registering customary marriages, it would be beneficial to build on this. While we could encourage more people into the central state system, it is unlikely, based on our findings, that this system could cater for the needs of all people living under customary law.
The findings also show that traditional leaders do not generally witness the conclusion of a marriage. In most cases, these leaders are informed of a marriage later, but they are not witnesses to its conclusion. Therefore we recommend that traditional leaders should not be required by the DHA to be witnesses to the conclusion of a valid marriage for registration purposes. Furthermore, to expect traditional leaders to accompany members of the public to a government institution to register a marriage amounts to over- regulation. This clogs the system and forces people to incur undue expenses. It is sufficient for members of the family to be present because they are the people directly involved in the conclusion of a customary marriage. Members of the family can be required to be present to testify to the existence of a marriage. In this way what is happening in practice would accord with the official registration system.
Since not all participants obtained lobolo letters at the point when a valid marriage came into existence, lobolo letters should not be required by the officials to register the marriage. Requiring individuals to produce a lobolo letter at the time of the marriage registration amounts to creating requirements for marriage that do not exist on the ground. These requirements act as a deterrent to registering a customary marriage. It should be sufficient to have a declaration by the negotiators, in the presence of an official, outlining the lobolo situation. The declaration should be an agreement of some kind as to how the lobolo is being handled, ie what was agreed at the negotiations, not a declaration that lobolo has been paid. A declaration by the family members should be sufficient and can act as an agreement as to how the lobolo is being handled.