1. INTRODUCTION

In this chapter, I intend to examine the issue of the customary law of marriage in South Africa and how it has fared at the hands of the courts and, to a lesser extent, the legislature, since the advent of democracy. I argue that more needs to be done to embed customary law, in general, in the South African legal system, and that the disarray currently noticeable in the area of marriage law, especially the issue of the essentials for validity of customary marriages, is not helping to achieve this purpose. The driving idea behind these musings is the belief that not enough care is being taken to consider the future of customary law when its rules, as currently perceived, are sought to be applied, especially in the South African courts.

Paradoxically, the situation has not necessarily been improved by the development of the bench into an institution that is increasingly more demographically representative of the South African population. This area requires more research but, from a scan of the decided cases, it seems that, on occasion, the improved numbers of judges with ‘insider’ knowledge of customary law is sometimes an obstacle, where there is sometimes over-deployment of ‘local knowledge’ in the dilemma that Bennett describes in the words, ‘the courts reached an unhappy compromise between taking judicial notice of customary law and requiring proper proof’.

I argue that the way this branch of the law has been treated in the courts represents a missed opportunity for embedding customary law in the mainstream of the legal system of a new South Africa, as the Constitution intended, or at the very least, to raise its profile as a serious player.

The chapter starts offby establishing the link between culture and customary law, adopting the view that particular sections of the Constitution confirm that the recognition and application of customary law are among the cultural rights protected by the Constitution. Next, the chapter undertakes a brief review of the notion of ‘living’ customary law, with a view to bringing out some of its less-appreciated pitfalls, illustrating these with an in-depth look at some examples.