Examining the role of the legislature and judiciary in the context of Traditional and Religious Personal and Family Systems in South Africa
This paper addresses the role the legislature and the judiciary play in protecting the rights to culture and freedom of religion in the context of traditional and personal law systems. The argument is that they have not. The paper first focuses on the historical context in which the right to culture and freedom of religion arose. The majority African, coloured, and Indian populations were denied these rights which impaired their livelihood and dignity. Their most intimate relationships were not recognised as customary and religious marriages were declared ‘immoral' due to the potential for polygyny in these marriages. However, with the advent of the Constitution, the Recognition of Customary Marriages Act 120 of 1998(‘RCMA'), the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (‘RCLSA') were enacted to recognise and regulate African customary law. However, these Acts do not provide sufficient protection for the right to culture as first, the RCLSA fails to preserve African concepts that underline customary rules of succession and has instead imported common law notions of succession. Secondly, section 3(1)(b) of the RCMA has created many problems for the judiciary to ascertain and apply the requirements of a customary marriage. The judiciary has taken an inconsistent approach in cases pertaining to the requirements of a customary marriage, namely the payment of lobolo and the ‘handing over' of the bride. This inconsistent approach, coupled with the judiciary's failure to develop African customary law has mainly affected women. Their marriages were declared invalid due to the judiciary's inconsistency, resulting in their inability to seek relief through legislation such as the Intestate Succession Act 81 of 1987. Thus, the failure of the legislature and judiciary to apply and enforce living customary law has resulted in insufficient protection being afforded to individuals enforcing their culture. The legislature and judiciary have also failed to provide sufficient protection for the right to freedom of religion and women's rights. The legislature has failed to enact legislation that recognises and regulates Muslim marriages. The judiciary has provided some relief to vulnerable Muslim women by extending legislation to include them as spouses and eventually providing common law recognition to Muslim marriages in Women's Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23. However, this is not sufficient protection as there is no regulation of Muslim marriages which allows for the maintenance of gender-discriminatory practices. This affects women in these marriages as ulamā bodies often adopt traditional and conservative interpretations of Islamic law such as arbitrarily issuing talaq certificates without consulting the wife. The failure of the legislature to enact legislation that recognises and regulates Muslim marriages violates South Africa's international and regional obligations to ensure equal rights between spouses. Thus, the legislature and the judiciary have failed to provide sufficient protection for the right to culture and freedom of religion in the context of traditional and religious personal law systems.
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