Mayelane v Ngwenyama and Minister for Home Affairs: a reflection on wider implications

by | Sep 26, 2019 | ACTA, ACTA 2013

Mayelane v Ngwenyama and Minister for Home Affairs: a reflection on wider implications

Authors Chuma Himonga, Anne Pope

ISSN: 1996-2088
Affiliations: Professor of Law in the Department of Private Law, University of Cape Town. She holds the South African National Research Foundation Chair in Customary Law; Associate Professor in the Department of Private Law, University of Cape Town
Source: Acta Juridica, 2013, p. 318 – 338

Abstract

The recent Constitutional Court decision in Mayelane v Ngwenyama and Minister for Home Affairs raises several interesting issues concerning customary marriage and related aspects. In particular, the commentary reflects on the scope and effect of the decision, methods of ascertainment of customary law and the measures needed to balance and protect the competing rights of a first wife and subsequent polygynous wives in a customary marriage. Further issues include consideration of use of the mero motu powers of the Court and of the realities of the implementation of judicial decisions and other efforts directed at legal change. The authors conclude that the decision makes a valuable contribution to this line of jurisprudence insofar as ascertainment of living customary law is concerned but also that it misses important opportunities to clarify and guide issues relating to women who marry under customary law.

Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

Form over function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa

Authors Lea Mwambene, Helen Kruuse

ISSN: 1996-2088
Affiliations: Senior Lecturer, University of the Western Cape; Research Associate, Community Law Centre, University of the Western Cape
Source: Acta Juridica, 2013, p. 292 – 317

Abstract

We must begin to think of family policy in terms of the functions we want the family to perform and to leave behind our obsession with form’ (Martha Fineman ‘Masking dependency: the political role of family rhetoric'(1995) 81 Virginia Law Review 2181 at 2203).

Twelve years later: how the Recognition of Customary Marriages Act of 1998 is failing women in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

Twelve years later: how the Recognition of Customary Marriages Act of 1998 is failing women in South Africa

Authors Roxanne Juliane Kovacs, Sibongile Ndashe, Jennifer Williams

ISSN: 1996-2088
Affiliations: Reading Philosophy, Politics and Economics at the University of York. She worked as an intern at the Women’s Legal Centre in 2012; Attorney at the International Centre for the Protection of Human Rights (INTERIGHTS). She was an attorney at the Women’s Legal Centre from 2002 until 2007; Director of the Women’s Legal Centre in Cape Town. She is an admitted attorney and conveyancer
Source: Acta Juridica, 2013, p. 273 – 291

Abstract

In this contribution we discuss how the Recognition of Customary Marriages Act (RCMA) is failing women. We start by discussing the importance of the recognition of customary marriages and the problems associated with their recognition. We then investigate the challenges presented by s 4 of the RCMA, which stipulates that all customary marriages must be registered within a certain time period. We also examine the role of lobolo and the requirements for entering a customary marriage, which are unclear under the RCMA. Finally, we show that the legislation does not adequately provide for women in polygynous marriages. This contribution is a determined call to amend the RCMA and to re-open the debate on how best to regulate customary marriages.

When non-registration becomes non-recognition: examining the law and practice of customary marriage registration in South Africa

by | Sep 26, 2019 | ACTA, ACTA 2013

When non-registration becomes non-recognition: examining the law and practice of customary marriage registration in South Africa

Authors Monica de Souza

ISSN: 1996-2088
Affiliations: Researcher at the Centre for Law and Society, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2013, p. 239 – 272

Abstract

The Recognition of Customary Marriages Act 120 of 1998 provides legal recognition to traditional African marriages and sets up a process whereby these marriages are formally registered with the Department of Home Affairs. With reference to testimonies from Msinga, a rural district of KwaZulu-Natal, this article examines how the current registration process is out of touch with reality and difficult to comply with, especially in respect of polygamous marriages. Customary marriages therefore often remain unregistered. While customary marriages are legally valid despite not being registered, in practice registration has become the threshold for recognising the existence of these marriages when marital status is in question. As a result, non-registration is effectively non-recognition and deprives women and children of the significant benefits and protections associated with marriage. More broadly, the article will argue that the registration process actually undermines several of the Act’s objectives — leaving women living in rural, customary law contexts in a vulnerable position.

Renegotiating intimate relationships with men: how HIV shapes attitudes and experiences of marriage for South African women living with HIV: ‘Now in my life, everything I do, looking at my health’

by | Sep 26, 2019 | ACTA, ACTA 2013

Renegotiating intimate relationships with men: how HIV shapes attitudes and experiences of marriage for South African women living with HIV: ‘Now in my life, everything I do, looking at my health’

Authors Diane Cooper, Elena Moore, Joanne E Mantell

ISSN: 1996-2088
Affiliations: Associate Professor, Women’s Health Research Unit, School of Public Health and Family Medicine; Lecturer, Department of Sociology, University of Cape Town; Senior Research Fellow, Centre of Social Science Research; Professor of Clinical Psychology in Psychiatry, HIV Center for Clinical and Behavioral Studies, New York State Psychiatric Institute and Columbia University, New York
Source: Acta Juridica, 2013, p. 218 – 238

Abstract

This paper explores marriage attitudes and practices among Xhosa-speaking women living with HIV (WLHIV) in Cape Town, South Africa. It reports on a study that assessed the fertility intentions of a cohort of people living with HIV, aimed at informing an HIV care intervention. It draws on qualitative data generated from 30 successive interviews with WHLIV in wave 1, 23 interviews in wave 2 and 20 follow-up interviews in wave 3. Gender inequality, marriage and HIV are strongly intertwined. Broader layers of South Africa’s history, politics and socio-economic and cultural contexts have consequences for the fluidity in intimate relations, marriage and motherhood for WLHIV. Key and conflicting themes emerge that impact on marriage and motherhood. Firstly, marriage is the ‘last on a list of priorities’ for WLHIV, who wish to further their children’s education, to work, to earn money, and to achieve this rapidly because of their HIV-positive status. We demonstrate that the pressure women face in marriage to bear children creates a different attitude to and experience of marriage for WLHIV. Some WLHIV wish to avoid marriage due to its accompanying pressure to have children. Other WLHIV experience difficulties securing intimacy. WLHIV may find it easier to seek partners who are also living with HIV.Apartner living with HIV is perceived as sharing similar fertility goals. In this study, HIV accentuates existing issues and highlights new ones for WLHIV negotiating intimacy. The findings contribute to the existing knowledge base regarding the fluidity of marriage and fertility intentions within the dynamic context of living with HIV. These are likely to have broader relevance in currently rapidly urbanising and economically developing countries with high HIV prevalence in southern Africa.