The Recognition of Customary Marriages Act 20 of 1998 (hereon RCMA) was enacted in terms of S15(3) of the Constitution, with the purpose of regulating the legal status of customary marriages which also sought to legitimise future and existing customary marriages. This was done through civil registration provided that certain requirements are met such as age; voluntary consent; and the negotiation and celebration according to Customary Law practices.
The development of customary law in line with constitutional values carries with it the undeniable risk of alteration of the law, for example, the Recognition Act incorporates large amounts of common law, such as the Matrimonial Property Act and Divorce Act, to regulate Customary Law marriages.
In terms S4 of the RCMA, parties have a duty to register their marriage even though this does not affect the validity of their marriage. Such requirements are viewed as a manner to change indigenous laws into Western laws.
South African legislative interventions seek to develop Customary Law in line with constitutional values and eradicate discriminatory Customary Law practices through for example, the Recognition Act which addresses the limitations imposed on women and provides that spouses have equal status and capacity ending the minority status of women and the impediments to their ownership of property.
In Ramuhovhi and Others v President of the Republic of South Africa and Others  ZACC 41 and Minister of Justice and Correctional Services v Ramuhovhi and Others  ZACC 44, the Constitutional Court declared that all customary marriages are in community of property irrespective of the date they were contracted. In addition, it was granted that spouses will have joint and equal ownership and equal rights of management and control over their marital property.
S8(1) of the RCMA governs the dissolution of a customary marriage by way of a divorce. The ground for divorce in Customary Law marriages terms of the Recognition of Customary Marriages Act 20 of 1998 concluded before or after 15 November 2000 is the irretrievable breakdown of the marriage.
In terms of S7(1) of the RCMA, a customary marriage concluded after the commencement of the RCMA is regarded as a marriage in community of property excluding an Antenuptial Contract. Furthermore, a customary marriage is considered to be out of community of property where there is an Antenuptial Contract entered into.
In terms of S7(4) of the RCMA, a customary marriage concluded prior the commencement of the RCMA is required to change their matrimonial regime which will be affected by way of a court order that may include conditions such as the conclusion of a contract governing the future matrimonial consequences of their matrimonial regime.
The Constitutional Court in Bhe v Magistrate, Khayelitshaprovided an interim solution for women in which the Intestate Succession Act would temporarily apply to indigenous women whilst the legislature works on enacting appropriate legislation that would regulate their Customary Law rights.
Section 10 of the Constitution which has given effect to S6 of the RCMA, provides for women to have an equal legal capacity as their spouses and may act independently such as acquiring and inheriting property in terms of Customary Law and may dispose of assets. Therefore, women have equal legal right to the estate and have an equal share thereof upon dissolution.
Much can be said about the legislative reform towards customary marriages which can be (to some extent) positive towards transformation and recognition of rights but certain cultural values and practices paid the price of being subordinate to universalist values and human rights.
Even though the RCMA was aimed at improving the status quo of customary marriages, it also came about with certain issues and to some sort distorted the values and principles of African Customary Law with more Westernised norms to accommodate universalist human rights and values. Therefore, the Recognition of Customary Marriages Act 20 of 1998 negates to rather harmonise and develop the legal systems, further provide a comprehensive understanding, and amend where needed and not prejudice or severe the cultural differences.
The writer concurs with the notion that, although the courts have tried to bring Customary Law of Succession in line with the Constitution, such an effort may be misconstrued to impose the Common Law upon Customary Law values.
Considering the above, the rights of individuals practicing their cultural beliefs should be harmonised and balanced with open-mindedness and sensitivity of all cultures and the development of Customary Law whilst maintaining legal certainty and consistency with constitutional values.
 Constitution of the Republic of South Africa, 1996.
 Osman, F “The Consequences of Statutory Regulation of Customary Law: An Examination of South African Customary Law of Succession and Marriage” (2019) PER/PELJ (22)
 Section 4(6) of RCMA
 Diala, AC & Kangwa, B “Rethinking the interface between customary law and constitutionalism in sub-Saharan Africa” (2019) De Jure Law Journal 52(2)
 Osman, F ‘’The Consequences of Statutory Regulation of Customary Law: An Examination of South African Customary Law of Succession and Marriage’’ (2019) PER/PELJ (22)
 Diala, C and Kangwa, B ‘Our Law are better than yours: The future of legal pluralism in South Africa’ (2019)
 Maithufi, P “The requirements for validity and proprietary consequences of monogamous and polygynous customary marriages in South Africa: Some observations” (2015) De Jure Law Journal, 48(2), 261-279
 Bhe v Magistrate, Khayelitsha (2004) (2) SA 544 (C).
 Kgopotso, M. and Charles, M. “The implementation of customary law of succession and common law of succession respectively: With a specific focus on the eradication of the rule of male primogeniture” De Jure (Pretoria) (2020) 53(1) Pretoria.
 Constitution of the Republic of South Africa, 1996
 Kgopotso, M. and Charles, M. “The implementation of customary law of succession and common law of succession respectively: With a specific focus on the eradication of the rule of male primogeniture” De Jure (Pretoria) (2020) 53(1) Pretoria
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE).