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Summary LCP4804 - Advanced Indigenous Law (LCP4804)
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1 Discuss marital rights in the context of polygamy within the South Africanlegislation pre-democracy. Use case law to show the emancipation of women in
the Constitutional Court.
In terms of the BAA (which was the national policy), alongside the Natal Code of Zulu Law,
the concept of marital rights declared that all black women were perpetual minors. Perpetual
minority demands the handing over of the woman from the guardian (her father) to guardian
(the husband) during marriage proceedings because of being considered a minor. The latter
code provides that the husband is the owner of matrimonial property and the wife owes him
the duty of respect. In the Gumede case, these provisions were found to be inconsistent
with the constitutional right to equality and are invalid. Other than these negative and
disruptive roles, there is no further role for these old order statutes.
With regards to the polygamous nature of customary marriages, the husband had all
the rights as well as the power to marry as many wives as he wanted, whereas women had
no competing rights since they were regarded as perpetual minors.
The Constitutional Court cases which are relevant here are:
Gumede Case – which discussed property rights in the context of divorce.
• The Recognition of Customary Marriages Act was unconstitutional as it excluded
customary marriages concluded pre-recognition from the marital regime of ICOP. This
meant that such women upon divorce were not entitled to any marital property.
• This case was not explicitly brought before the court in a polygamous nature, however it
is important to take note that all customary marriages are potentially polygamous.
Mayelane Case – Permission of first wife is a requirement
• the court in this case set a precedent that in order for a man to marry more women
according to customary law, that he requires the permission of the first wife.
, 2 How did the outlawed marital legislation hinder the status of indigenous
women?
The Black Administration Act declared that all black women were perpetual minors.
Perpetual minority demands the handing over of the woman from the guardian (her father) to
guardian (the husband) during marriage proceedings because of being considered a minor.
Section 23 of the BAA states: “ Before the Act came into being customary marriage was not
recognised as a marriage in law. It was known as a customary union where spouses did not
enjoy marital rights. Black women were perpetual minors who could be discarded simply by
their husbands marrying other women by civil rites.”
In terms of the Kwazulu Act on the Code of Zulu law and the Natal Code of Zulu Law, that
these statutes have no contribution to make in the development of post-apartheid customary
law. Without section 23 of the BAA, the male primogeniture problems in Mthebu, Shilubana
and Bhe would not have happened.
Prior to coming into operation of the Recognition of Customary Marriages Act 120 of 1998,
customary marriages were subject to limited recognition in South Africa as a result of their
potentially polygamous nature. Before to the Act coming into being customary marriage was
not recognised as a marriage in law. It was known as a customary union where spouses did
not enjoy marital rights. Black women were perpetual minors who could be discarded simply
by their husbands marrying other women by civil rites.
The English definition of marriage as a ‘voluntary union for life of one man and one woman’
set out in the case of Hyde v Hyde and Woodmansee was imported into South African law
in the case of Seedat’s Executors v The Master (Natal). The Court felt that it could
not recognise customary marriages because, being potentially polygamous, they offended
against public policy. Failure to recognise customary marriages in the common law courts
had serious consequences for African family life.
Dlamini lists the kinds of hardship that were visited on African families by this exclusion:
a) Spouses married in terms of customary law were not considered to be husband and
wife. They therefore did not owe each other a duty of support.
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