Page 33 - SAReform Book

Summary Research Report 31
the reform of customary law in order to ensure gender equality and to protect the rights of the child in customary marriages. This lofty initiative was followed by another monumental attempt to reform the customary law of succession by judicial intervention, resulting in the application of a modified version of the Intestate Succession Act of 1987 (common law) to estates previously governed by customary law. The findings in this study raise a wide range of issues in relation to the operation of the reformed laws of marriage and succession. The insights gained into the way in which both individuals and communities regulate their lives reflect in some cases the principles of the new law. In other instances the study has shown how individuals and commu- nities are responding to changes in the law. In this respect it is important to bear in mind how practices on the ground relate to each other. The findings improve our understanding of how law reform affects communities, how effective it is, and, equally importantly, how it can be improved to benefit the people for whom it was intended. In addition to revealing the challenges connected to the various topics investigated, the report has revealed some of the more systemic problems that need to be considered when thinking about how best to protect the rights of the people that the RCMA and the Bhe rules seek to protect. Four of these may be mentioned.
First, people need to know about the new laws. They need to understand the rights and choices that the new laws offer them when regulating aspects of their lives. The findings show that there are varying degrees of lack of knowledge regarding the content of the new laws amongst individuals, the Department of Home Affairs, court officials and traditional leaders. Awareness of the new laws is not sufficient on its own. If individuals do not understand the content of the new laws, and the corresponding opportunities, choices or rights they offer, they will not be able to implement them effectively and derive the intended benefits from them. Moreover, the new laws are complex and it is not surprising that the study found that the majority of the participants did not know about or understand or use them.
Secondly, people need to be able to navigate the new laws and know how the different institutions can support them in implementing the laws governing marriage, divorce and matters of intestate succession. There are multiple institutions involved in regulating the personal relationships and lives of individuals living according to customary law. The courts, the DHA, tradi- tional leaders, families and the church all play a role in assisting individuals with implementing different aspects of the new laws, but it is not always clear which institution is responsible for dealing with the various matters under consideration. More specifically, the responsibilities of the different institu- tions sometimes overlap. Therefore, it is not surprising that there is a great deal of ‘institutional confusion’. Needless to say, there are also very practical considerations that have to be taken into account to ensure that individuals can access the different institutions.
Thirdly, individuals need to accept the legitimacy of the new laws, ie indi- viduals need to agree with the concepts and principles that the new laws espouse. The implementation of the new laws will be more effective if the