National Research Foundation Chair in Customary Marriage

On 11th and 12th February, the National Research Foundation Chair in Customary Law at UCT*, Prof. Chuma Himonga, in collaboration with Dr. Elena Moore and the National Movement of Rural Women, hosted a workshop on the findings of a study on The Operation of the Recognition of Customary Marriages Act (RCMA) and Rules of Intestate Succession in the Constitutional Court decision in Bhe v Magistrate Khayelitsha. The Dean of the Law Faculty, Professor Pamela Schwikkard, opened the workshop. After a presentation from the Director of the National Movement of Rural Women, Likhapa Mbatha, the researchers (Chuma Himonga, Elena Moore and Kirsty Button) presented six papers on the preliminary findings of the study. The researchers presented the key issues challenging the implementation of the (RCMA) and the intestate succession rules.  The findings demonstrate that the ascertainment of the existence of a customary marriage continues to be a difficult matter, as there is considerable diversity of views regarding the effect of full or part payment of lobolo on the existence of a valid marriage, and on whether agreement for the payment of lobolo as opposed to actual payment is sufficient to conclude a marriage. The findings also show that gender equality is not always enhanced by the intervention of family members or traditional leaders. In addition, the findings highlighted how the private regulation of divorce and the dissolution of a customary marriage continue, despite the presence of the RCMA, and it continues to place women and children at risk. Another finding points to the considerable dissonance between the Bhe rules of succession and the practices of inheritance on the ground. The workshop was attended by a range of legal scholars, sociologists, legal officials, policy makers and NGO activists. The researchers are following some issues that emerged at the validation workshop as they complete the write up of the findings.

*This work is based on research supported by the South African Research Chairs Initiative of the Dept. of Science & Technology and the National Research Foundation. Any opinion, findings, conclusions or recommendations are that of the authors and therefore the NRF or DST do not accept liability with regard thereto.