Page 32 - SAReform Book

30 Reform of Customary Marriage, Divorce and Succession in SA
straints, and geographical challenges in relation to the location of the courts with the relevant jurisdiction.
For the foregoing reasons, we recommend that the state takes an active role in ensuring that dispute resolution mechanisms prescribed by the RCMA actually work in order to support family members in their conflict manage- ment. The steps to be taken should include eliminating the structural and access barriers as stated above. The state should also take steps to remove the structural barriers by providing appropriate public education and information dissemination concerning the RCMA and the procedures necessary to claim the rights it confers on married couples, as well as by providing court services in areas where people live. This could include mobile court facilities.
3.7.2 Informal mediation of family disputes
With regard to the mediation of disputes before the dissolution of the mar- riage, our study found that neither the traditional leaders nor the married parties’ families provide effective dispute resolution mechanisms for mar- riages in trouble. Arguably, the state cannot create a family law regime based on the RCMA in which it does not support the parties in resolving their disputes, whether during the marriage or at the time of the dissolution of the marriage. Given that the state, through the judicial system and the RCMA, provides support to couples who dissolve their customary marriages when they turn to state courts for assistance, we question whether the state has provided support to such couples at too late a stage in the breakdown of their marriage. The mediation of disputes at the informal level needs to be strength- ened. Since neither the families nor traditional leaders are able to play this role, the state should establish mediation forums or agents that are perceived to be independent and impartial for disputing parties to use. The RCMA’s provision on this is, in our view, broad enough, and provides for the mediation of disputes whether or not there is a formal process in progress. The provision states that nothing in the section providing for the dissolution of marriage in a court ‘may be construed as limiting the role, recognised in customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law, of any dispute or matter arising prior to the dissolution of a customary marriage by a court.’30
Thus, any community member who is recognised by a given community as playing a role in mediating family disputes in accordance with its customary law can perform the role of a mediator in family disputes envisaged by the RCMA. Community members with potential to mediate disputes could there- fore be identified and capacitated to do this work through relevant training and sensitisation concerning issues of gender equality in the management of marital and succession disputes in the community.
4. Conclusion
In 1998 the state introduced the RCMA, which came into operation in 2000. This legislation was aimed at both the recognition of customary marriages and
30 Section 8(5) of the Act.