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n Acta Juridica - The advancement of African women's rights in the first decade of democracy in South Africa : the reform of the customary law of marriage and succession
The place of customary law in the new constitutional dispensation in South Africa has been the subject of much debate in legal literature and elsewhere. Most notable for the purposes of this article have been the debates about the relationship between the previously dominant legal system, the common law, and customary law in the context of law reform; the application of the Constitution to customary law, especially the question whether the Bill of Rights applies to customary law directly or indirectly and conflicts between customary law and constitutional rights. This article contributes to these debates by critically analysing the methods adopted by the courts and the legislature to reform customary law and the problems they raise for the advancement of women's human rights.
The three-fold aim of the article is, firstly, to discuss the approaches the South African legislature and courts have taken to advance the rights of women under the customary law of marriage and succession and to bring this system of law in line with the Constitution and international law; secondly, to consider factors that may adversely affect the implementation of these new laws; and, thirdly, to suggest ways of counteracting these factors. Obviously, the discussion of the factors in question is anticipatory in nature, but one hopes that their identification will serve a useful purpose in relation to considerations of future law reform and in generating hypotheses for further research into the effectiveness of state interventions in this important area of the law.
The legislature and the courts in South Africa have made attempts to advance the rights of women under customary law in the areas of marriage and succession in accordance with the Constitution and the international conventions that South Africa has ratified. The approach both the legislature and the courts have taken to reform customary law is to replace it with South African common law with little accommodation of customary law.
In this article I will attempt to show that factors related to the approach taken to reform customary law and the inaccessibility of the new laws threaten to reduce the new laws to paper rights that are of little, if any, real benefit to the majority of women.
The focus of the article is on the Recognition of Customary Marriages Act (hereafter referred to as the Act), which reformed the customary law of marriage and the decision of the Constitutional Court in Bhe v Magistrate Khayelitsha. For the purposes of this paper the decision in Bhe and the Recognition of Customary Marriages Act will be referred to as the new law or laws.
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