The essence vindicated? Courts and customary marriages in South Africa

Abstract

This article describes different approaches in which courts have determined the validity of customary marriages under the Recognition of Customary Marriages Act in order to address the historical injustices of vulnerable parties in a customary marriage. These approaches are drawn from selected cases decided after the Act came into effect and consist of two scenarios, namely, ‘judicial notice’ and ‘proof’ of customary law. These approaches produce considerably distinct results. On the one hand, where courts adopt the approach of ‘judicial notice’ and apply official customary law, the inevitable result has been the invalidation of marriages. On the other hand, if the approach has emphasised the recognition of the essence of customary law, courts have validated these marriages and protected vulnerable parties. These results may support (at least partly) the theory by various scholars that the Constitution envisaged that courts will be applying living customary law in order to fulfil their constitutional obligations.