Reflections on the recognition of African customary marriages in South Africa: seeking insights for the recognition of Muslim marriages
Authors Waheeda Amien
Affiliations: Senior Lecturer, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2013, p. 357 – 384
In 1998, South Africa enacted the Recognition of Customary Marriages Act 120 of 1998 (RCMA), which for the first time in the history of the country afforded legal recognition to African customary marriages. The enactment of this legislation was effected in accordance with section 15(3)(a) of the Constitution of South Africa 1996. Through the same constitutional provision, the South African government proposes to enact legislation to afford legal recognition to Muslim marriages. The draft legislation recommending the recognition and regulation of Muslim marriages is known as the Muslim Marriages Bill (MMB). The MMB has generated a fair amount of controversy within the South African Muslim community and broader civil society. In this paper, I undertake a comparative analysis of the RCMA and MMB with the specific aim of deriving lessons from the recognition of African customary marriages for the recognition of Muslim marriages. A reflection on the manner in which African customary marriages have been recognised and regulated reveals that the approach considered for the recognition and regulation of Muslim marriages must be impact-focused and context-driven. In particular, to advance constitutional rights and norms, I show that attention must be paid to the position of marginalised and vulnerable groups within the Muslim community, including women and children. At the same time, I demonstrate that in drafting legislation to recognise Muslim marriages, many competing interests are at play. As such, it may be necessary to entertain reasonable compromises to ensure that the legislation is enacted and that it contains the potential to safeguard the rights of the more marginalised members of the Muslim community.