Page 25 - SAReform Book

Summary Research Report 23
tion forums should be used. However, these practices do not uphold the principles of the RCMA, and further training is essential to inform traditional leaders about the new laws.
We recommend that the state should empower or capacitate other state institutions or agents (such as the police and the DHA) to assist with informa- tion regarding the RCMA. These support systems would need to be integrated into the state divorce procedures for the courts to be more effective. This recommendation is not intended to downplay the importance of the courts or the law, but to improve the administration and operation of the law through other arenas at the local level.
Finally, the research found that there is consonance between the principles of the RCMA and living customary law in two major respects. The first is that living customary law has adapted in such a way that it embraces the voice of the child in custody matters. The second is that turning to the court to resolve maintenance disputes is regarded as the proper way to handle such disputes.
3.5.2 Inside the courts
In the significant cases, such as Gumede, there is some scrutiny by the judge of the circumstances of the case. Moseneke J explained that ‘the court must examine all the circumstances relevant to the customary marriage and in particular the manner in which the property was acquired, controlled and used by the parties’. In such cases, the full discussion of the issues and reasons for the judgment are also available to the parties without them having to incur further costs. This is not the case in the majority of the case files that we examined, in which there was very little discussion of, or justification or direction for, the specific orders on record. Parties requiring the entire pro- ceedings of the court in their case must have the record transcribed at their own cost, thereby increasing the cost of litigation.
In addition, in some cases the courts did not issue appropriate remedies or apply the correct matrimonial property systems to the matters before them. The court ought to be the place for the correct enforcement of the RCMA. The problem of not ensuring that the principles of the RCMA are upheld is exacerbated when the matter is not defended. Since our general findings show that people do not always link legal procedures with the protection of their own interests, we recommend a different method of adjudicating undefended family matters. Instead of the courts taking an umpire role, they must ‘descend into the arena’ and play a more investigative role, ie ask themselves what is in the best interests of the person who is not defending the case. In this way, the justice system will ensure greater protection for vulnerable members of the family.
Furthermore, how the parties carry out the ‘division of the estate’ is not currently being supervised and this creates a certain degree of doubt about whether the RCMA is protecting, in a practical way, spouses whose marriages have failed. Courts must be more proactive in assisting the parties with the liquidation of their estates.