Page 9 - SAReform Book

1. Introduction
In this report we discuss the findings of our research on the operation of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) and the rules of succession developed by the Constitutional Court in Bhe v Magistrate, Khayelitsha1 (the Bhe rules). We also make recommendations on how to improve the implementation of these two laws (hereafter referred to as the new laws).
1.1 Aims and methodology of the study
The study sought to explore how the new laws were being implemented through the eyes of individuals living according to customary law, a range of state institutions, including the courts and the Department of Home Affairs, and traditional leaders. The aim was to unearth both compliance with and dissonance from the RCMA and the Bhe rules. The ultimate goal of the research was to investigate whether and to what extent the new laws of marriage and succession are protecting the rights of the people for whom they were intended, and to offer recommendations for meeting any challenges identified.
Under the new constitutional dispensation, legal reform in the areas of customary marriage and succession created new regulations for the personal lives of many individuals in South Africa. Although a number of studies have investigated the success of the laws regulating marriage, divorce and succes- sion, they have very seldom provided a holistic account of the implementation of the new laws in the different areas of marriage, divorce and succession, and from the perspective of the different social actors involved. The report high- lights several significant issues that require immediate attention in order to improve the implementation of the laws.
The research was conducted under the auspices of the DST/NRF Chair in Customary Law, Indigenous Values and Human Rights (the Chair) at the University of Cape Town by the following researchers: Chuma Himonga, who led the study and also holds the Chair; Elena Moore of the Department of Sociology at the University of Cape Town; and the National Movement of Rural Women under the directorship of Likhapha Mbatha.
The study is one of the Chair’s major projects and is in its second phase of research. The study began in 2011. It soon became clear that understanding the social reality of customary law would require not only a combination of legal and sociological input but, most importantly, input from the communi- ties and individuals living according to customary law. Therefore an interdis- ciplinary research project was initiated involving the fields of customary law, legal pluralism and sociology. Himonga, Moore and the National Movement of Rural Women conducted 20 months of fieldwork in six provinces.
The methodology employed in the study is discussed in detail in chapter 2 of the book Reform of Customary Marriage, Divorce and Succession in South Africa.
1 2005 (1) SA 580 (CC).
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