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ISBN: 0-621-27723-1 Closing date for comment 19 January 1998 |
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CONTENTS
CHAPTER 6 CONSEQUENCES OF MARRIAGE
The South African Law Commission was established by the South African Law Commission Act, 1973 (Act 19 of 1973).
The members of the Commission are -
The Honourable Mr Justice I Mahomed (Chairperson)The Honourable Mr Justice PJJ Olivier (Vice-Chairperson)
The Honourable Madam Justice JY Mokgoro
Professor RT Nhlapo
Adv JJ Gauntlett S
Ms Z Seedat
Mr P Mojapelo
The Secretary is Mr W Henegan. The Commission's offices are on the 8th floor, 228 Visagie Street, Pretoria. Correspondence should be addressed to:
The Secretary
South African Law Commission
Private Bag X668
PRETORIA 0001
Telephone: (012) 322-6440
Telefax: (012) 320-0936
E-mail: pvwyk@salawcom.org.za
Internet site: http://www.law.wits.ac.za/salc/salc.html
The project leader responsible for this project is Professor RT Nhlapo.
This Discussion Paper (which reflects information gathered up to the end of June 1997) was prepared to elicit responses and to serve as a basis for the Commission's deliberations, taking into account any responses received. The views, conclusions and recommendations in this paper are accordingly not to be regarded as the Commission's final views. The Discussion Paper is published in full so as to provide persons and bodies wishing to comment or to make suggestions for the reform of this particular branch of he law with sufficient background information to enable them to place focussed submissions before the Commission.
The Commission will assume that respondents agree to the Commission quoting from or referring to comments and attributing comments to respondents, unless representations are marked confidential. Respondents should be aware that the Commission may in any event be required to release information contained in representations under the Constitution of the Republic of South Africa, Act 108 of 1996.
Respondents are requested to submit written comments, representations or requests to the Commission by 19 January 1998 at the address appearing on the previous page. The researcher will endeavour to assist you with particular difficulties you may have. Comment already forwarded to the Commission should not be repeated; in such event respondents should merely indicate that they abide by their previous comment, if this is the position.
The researcher allocated to this project, who may be contacted for further information, is Mr PA van Wyk. The project leader responsible for the project is Professor RT Nhlapo.
The Commission is indebted to Professor TW Bennett (a member of the project committee) who undertook the research for this Discussion Paper.
SUMMARY OF RECOMMENDATIONS AND REQUESTS FOR COMMENTS
The following recommendations are made in this Discussion Paper:
1. In order to remove the anomalies created by many years of discrimination, customary marriage must now be fully recognized. To do so will comply with ss 9, 15, 30 and 31 of the Constitution, provisions which suggest that the same effect be given to African cultural institutions as to those of the western tradition. (See par 3.1.9.)
2. When spouses marry both by customary and Christian (or civil) rites to allow both forms of marriage equal effect would create irreconcilable conflicts and legal confusion. Hence the consequences of the union should be determined by the law expressly chosen by the parties. If the parties did not express any choice, a court may apply the law that is consonant with their cultural orientation (as indicated by their lifestyles and other relevant factors) and with the rites and customs governing their marriage. For greater legal clarity in the future and to protect the position of women in monogamous marriages, the law should discourage, rather than encourage, any 'mixing' of the systems. (See par 3.2.11.)
3. Legislative provision must be made for a minimum set of essential requirements for marriage. (See par 4.1.5.)
4. The main requirement for a valid customary marriage should be the consent of the spouses. (See par 4.2.10.)
5. Traditional wedding ceremonies and the formal handing over of the bride should also be considered optional. Together with bridewealth, however, these institutions will serve to identify a union as one celebrated according to African rites. (See par 4.4.6.)
6. All customary marriages should be registered. The Commission is sympathetic to the complaint that customary marriage is uncertain and difficult to prove. If registration were made compulsory, however, it would be difficult to decide on an appropriate penalty to induce compliance. To rule that unregistered unions are void would work great hardship for the spouses and would deprive many existing unions of potential validity. On the other hand, more people should be encouraged to register their marriages, and to this end the traditional authorities should be constituted registering officers. (See par 4.5.11.)
7. In order to ensure that the spouses' consent is properly informed, a minimum age for marrying should be fixed for all persons in the country. (See par 5.1.10.)
8. Underage children should nevertheless be permitted to contract a marriage on terms prescribed in the Marriage Act. (See par 5.1.11.)
9. Under the Constitution and the United Nations Convention on the Rights of the Child, a parent's power to consent to marriage must be exercised only in the child's best interests. Accordingly, a guardian may not unreasonably prevent a ward's marriage. Instead, consent of a guardian should be deemed necessary to remedy deficiencies in the judgment of minors. Thus, marriages by children below age, where such consent was not supplied, should be voidable at the instance of a spouse or guardians concerned. (See par 5.2.13.)
10. Existing statutory and common-law rules regulating the consent of absent or incompetent guardians should now be extended to marriages by customary law. (See par 5.2.14.)
11. To avoid unfair discrimination on the ground of gender, parental consent should be deemed to include the consent of both the father and mother of an underage child. (See par 5.2.15.)
12. The prohibition of marriage between persons on account of their relationship by blood or affinity should be decided by the systems of law to which they are usually subject. (See par 5.3.3.)
13. For various reasons, especially the difficulty of enforcing a ban and the fact that polygyny appears to be obsolescent, customary marriages should continue to be potentially polygynous. (See par 6.1.17.)
14. Reform in the area of spousal relations is now needed to harmonize customary law with social changes in South African society and to give effect to the principle of equal treatment contained in s 9 of the Constitution and CEDAW. (See par 6.2.1.8.)
15. Women should be deemed to have contractual capacity, locus standi and proprietary capacity (and in consequence delictual capacity) on a par with men. It is therefore recommended that section 11(3)(b) of the Black Administration Act be repealed. In addition, to cure many years of uncertainty, provision must be made that the Age of Majority Act applies to persons subject to customary law. (See par 6.2.2.20.)
16. To discharge its obligations under CEDAW and the Constitution, legislation should provide that spouses have equal capacities and powers of decision-making. Such legislation will entail a repeal of section 27(3) in the KwaZulu/Natal Codes and section 39 of the Transkei Marriage Act (which both declare that wives are under the marital power of their husbands). (See par 6.2.2.21.)
17. While age of majority legislation can free people to engage in commercial and other dealings with the world at large, it cannot protect their acquisitions from other members of their own family. It is therefore recommended that individual proprietary capacity now be placed beyond doubt. A clear legislative statement is needed that everyone be deemed capable of owning and possessing property and that full ownership in individual acquisitions be recognized. (See par 6.3.1.16.)
18. Full ownership in individual acquisitions will involve consequential alteration to the existing rules on the delictual liability of family heads. While control of property and liability in delict are intimately connected, this is an issue that should be attended to by the courts (as happened in the past) rather than the legislature. (See par 6.3.1.17.)
19. In order to supply a lack of rules in customary law on the management of family estates, the common-law rule governing a spouse's power to bind the other's estate for household necessaries should be extended to customary law. A spouse should be liable to contribute to necessaries for the joint household pro rata according to his or her financial means. A spouse who contributed more in respect of necessaries than he or she was liable to contribute, should have a right of recourse against the other spouse. Moreover, remedies in the KwaZulu/Natal Codes for restraining or deposing a person who mismanages a family estate should be made available to all members of the family. (See par 6.3.2.7.)
20. Spouses should have the power to enter into an antenuptial contract to vary the automatic property consequences of marriage. (See par 6.3.3.4.)
21. In keeping with previous law on this topic, the Commission recommends that spouses be considered to be married out of community of property, but subject to the current statutory rules permitting courts to order an equitable distribution of their estates on divorce. (See par 6.4.19.)
22. On the question whether the matrimonial property system, namely out of community of property, should apply only to marriages entered into after legislation is passed, the Commission was persuaded by the argument that prospective law reform might constitute unfair discrimination against the spouses of earlier marriages. On the other hand, the Commission was also concerned about upsetting rights already acquired under existing marriages. Particular comment is therefore requested on whether or not proposed legislation should operate prospectively. (See par 6.4.18 - 6.4.20.)
23. The private regulation of divorce in customary law places women and children at risk. It is therefore recommended that no marriage may be terminated except by decree of a competent court. (See par 7.1.16.)
24. The current anomalous position that magistrates' courts and the courts of traditional leaders have jurisdiction over customary divorces (and Black Divorce Courts have jurisdiction over divorces prosecuted by Africans married by civil or Christian rites) should be ended as soon as possible. All divorce actions and actions about other family-law issues referred to in this Discussion Paper should be processed through the family courts. The Commission also recommends that family courts be instituted as a matter of urgency. (See par 7.1.17.)
25. Traditional authorities should be entitled to exercise conciliation powers prior to a divorce action. (See par 7.1.18.)
26. Only one ground of divorce should be entertained: irretrievable breakdown of the marriage. In exercising their discretion under this principle, courts should take into account pre-divorce conciliation procedures available in customary law and appropriate cultural norms governing marital behaviour. They should not, however, favour husbands at the expense of wives. (See par 7.2.7.)
27. Either spouse should be competent to apply for divorce. If a spouse is unable to prosecute the action unaided, the court should appoint a curator ad litem (a kind of guardian appointed to protect the interests of that spouse during the litigation). Certain progressive reforms made to the common-law divorce procedure, such as the appointment of a family advocate, should be extended to customary marriages. (See par 7.3.11.)
28. In spite of numerous problems of enforcement, maintenance should in principle be available to the spouses and children of customary marriage, both stante matrimonio(during the marriage) and on divorce. (See par 7.4.7.)
29. In accordance with s 28(3) of the Constitution and the United Nations Convention on the Rights of the Child, the child's best interests should govern all aspects of custody, guardianship and access to children. Because the best interests principle has no specific content, cultural expectations may be accommodated by the courts. To avoid unfair discrimination against women, mothers should have equal rights to children. (See par 7.5.12.)
30. If marriage must comply with certain predetermined criteria, a concept of nullity is by implication introduced to customary law. There would, however, be no need to specify grounds for nullity. It is recommended that a court granting an order of nullity should be entitled to make suitable arrangements for the protection of vulnerable parties (and return of bridewealth if necessary). (See par 8.5.)
The Commission requests particular comment on the following issues:
1. Bridewealth is synonymous with marriage in African tradition. Once a husband had fulfilled his obligations under a bridewealth agreement, he and his family would have full rights to any children born to the wife. Hence, if a divorce were granted the children would remain under the care and guardianship of the father. Mothers were allowed custody, but they did not acquire a right equivalent to that of the father. In view of the prohibition on gender discrimination under section 9 of the Constitution and under the Guardianship Act, 1993, both spouses should have equal rights and powers over minor children. The questions arise whether the fate of children should depend on payment of bridewealth, and whether the courts should be allowed to take other factors into account when considering awards of custody and guardianship over children. Specific comment is invited on the following issues.
* Should bridewealth have a purely social function: as a token of appreciation or a mark of the cultural attributes of a marriage? In this case, bridewealth would be an optional element in marriage, analogous to the solemnization of marriages by religious rites.
* What effect should bridewealth agreements have on the validity of marriage, the rights and duties of the spouses towards one another or their rights to children?
* Should a wife's guardian be allowed to use the customary remedies for enforcement of a bridewealth agreement, ie 'impounding' the wife and/or withholding guardianship of children? (See par 4.3.4.10.)
2. Minimum ages should be fixed at which prospective spouses may be presumed mature enough to give their consent to marriage. The minimum ages established in the Marriage Act are 18 for men and 15 for women. Differentiation between the ages at which males and females can marry may be considered to constitute unfair discrimination on the ground of sex; in the past this differentiation was justified by the commonly held belief that boys and girls mature physically at different ages. Whether valid or not, this justification will be superseded if South Africa decides to ratify the African Charter on the Rights and Welfare of the Child (which specifies a minimum age of 18 for both men and women). The Commission requests particular comment on this issue. (See par 5.1.12.)
3. On the question whether the proposed legislation should apply only to marriages entered into after legislation is passed, the Commission is concerned that prospective law reform might constitute unfair discrimination against the spouses of earlier marriages. On the other hand, the Commission is also concerned about upsetting rights already acquired under existing marriages. Particular comment is therefore requested on whether or not the proposed legislation should operate prospectively. (See par 6.4.20.)
CONTENTS
CHAPTER 6 CONSEQUENCES OF MARRIAGE
A. Excerpt from the Issue Paper
B. Problem analysis
C. Submissions
D. Evaluation
E. Recommendation
F. Request for comment
1.1 Origin of the investigation
1.1.1 In 1986 The Commission published a report on its investigation into the marriages and customary unions of Black persons (Project 51). Two Bills were recommended in the report. The first resulted in the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. The second Bill dealt with the customary marriages of Black persons. With regard to this Bill the Commission recommended that further consultations with the leadership of the TBVC states and the self-governing states should take place. After a series of high level meetings the proposal that the so-called customary union be recognised as a valid marriage was endorsed: however, on 10 April 1992 the Minister ordered that the implementation of the Bill be suspended until the constitutional position of the TBVC states and the self-governing territories was clarified.
1.2.1 The matter was subsequently referred to the newly-formed Project Committee on the Harmonisation of the Common Law and the Indigenous Law, whose term of office lapsed together with that of the Commission.
1.3.1 The new Commission, at a meeting on 23 and 24 February 1996, approved the reconstitution of the Project Committee and the ranking proposed by the outgoing committee which had identified the law of marriage and divorce as a priority area. The new Project Committee had its first meeting on 7 June 1996 at which it decided to revive the issue of customary marriage. To this end the committee developed an issue paper which set out the nature of the problem in respect of customary marriages, and a range of proposals for addressing the problem: chief among these was that the law should grant full recognition to customary marriages, confirming the position adopted by the Commission in its 1986 report. An allied aim of the Issue Paper was to seize the opportunity offered by the recognition of customary marriages to improve the position of women and children within these marriages.
1.2 The Issue Paper and Responses to it
1.2.1 The Issue Paper on customary marriages was published on 31 August 1996, with 31 October 1996 set as the closing date for comments. This date was very quickly compromised as various role players requested extensions. A process of countrywide workshops to explain and discuss the paper, set in motion by the Deputy Minister, also contributed to the decision to maintain flexibility in respect of the closing date. The deadline ultimately shifted to 30 April 1997.
1.2.2 In the new Commission's working methodology, an Issue Paper represents the first public announcement of an investigation. It aims to set out the Commission's view of the perceived problem, and the possible solutions, and it invites comment on the Commission's approach. It thus tries to involve the public at the very beginning of an investigation in the hope that feedback will help the Commission to settle preliminary issues, such as those relating to the scope of the project and the approach. Experience has shown that most respondents do not make the distinction between preliminary matters and matters of substance. It thus becomes necessary to sift carefully through the responses to separate those that are relevant to the purposes of the Issue Paper and those substantial recommendations which properly belong to the next stage in the process - ie the Discussion Paper.
2.3 37 written responses to Issue Paper 3 were received. (See Annexure B ). They came from a variety of sources and many were stimulated by the workshops on the Issue Paper which were conducted in different parts of the country. The scale of the response has made it impossible to include all replies. Hence, in the interests of brevity, especially when most people agreed with the proposals made by the Commission in the Issue Paper, only replies raising pertinent new issues will be mentioned. These are dealt with in the body of the Discussion Paper, in the relevant section, rather than separately.
A. Excerpt from the Issue Paper
6.1.1 The issue paper contained the following discussion of and recommendations on polygyny:(316)
"Although customary marriages should be recognized on the basis of the constitutional right to culture, it is necessary to distinguish areas where human rights prevail. A perennially controversial issue in this regard is a husband's right to take more than one wife. While very few men are in fact polygynists, the polygynous potential of customary marriage has for many years been the main obstacle to its recognition, and it is still questionable whether polygyny should be tolerated in view of the constitutional commitment to gender equality.
The concern that polygyny tends to lower the status of women, in a symbolic sense at least, is widespread. None the less, an outright ban on polygyny would be inadvisable, for it would be extraordinarily difficult to enforce. Moreover, there is some evidence that in a patriarchal world, where there is no economic, social or political equality between men and women, it is the institution of marriage itself (whether monogamous or polygynous) which disadvantages women. On balance, the case does not seem to be conclusively made that a bilateral arrangement between one man and one woman is the only valid and morally defensible method of constituting a family in a multicultural society. It does not follow, however, that men should continue to enjoy an unrestricted freedom to contract additional marriages to the detriment of their existing wives. The right of a first wife to object to any subsequent union contemplated by her spouse may have to be recognised."
B. Problem analysis
6.1.2 Under customary law a man may marry as many wives as he wishes, and, because wives were a source of wealth and status, polygyny was said to be the goal of all men.(317) Yet, even in the past, polygyny was unlikely to have been a common practice.(318) Today it lingers as a potential rather than an active practice, for very few men can now afford more than one wife.(319)A form of de facto polygyny is more usual, whereby migrant workers marry a wife in the rural areas and later informally take a second woman in the city.(320) The freedom to have more than one wife has long been condemned, and heated debate on the issue persists, as was indicated by the fact that nearly all replies to the Issue Paper dealt with this topic.
C. Submissions
6.1.3 Predictably, very few female respondents to the Issue Paper were in favour of polygyny.(321)The National Human Rights Trust reported that, from a snap survey in Empangeni, 80 per cent of women were against polygyny while 70 per cent of men were in favour. Those in support of the institution claim that it performs valuable social functions.(322) A woman who might otherwise remain unmarried can be legally absorbed into a domestic unit, and a man who might be tempted to commit adultery (and risk the breakdown of his marriage) may instead contract another valid union.(323)
6.1.4 As to whether polygyny is a positive or negative force in society, Prof C R M Dlaminicompared divorce. He said that divorce works considerable hardship on women, but for no obvious reason it is construed as a lesser evil than polygyny. Amongst his other arguments in favour of polygyny is that any element of wrongfulness in the institution is vitiated by consent, ie, if a woman is prepared to waive her constitutional right to dignity in her own interest, why should she not be free to do so? The Constitution should protect, not take away existing rights (ie, the right to contract polygynous marriages), and the state should not decide for individuals the relationships they may form. Judge S S Ngcobo commented that the fact that polygyny is practised unconstitutionally cannot make the institution itself unconstitutional. He suggested upgrading the status of women rather than banning polygyny.
6.1.5 Although many of the current opponents of polygyny echoed the moral objections of the past, the main charge today is purely secular: that polygyny infringes the constitutional prohibition on discrimination against women.(324) Polygyny can also be used as a justification for abandoning older women who are past child-bearing age, whereas in monogamous marriages women are protected from abandonment by divorce laws.(325)
6.1.6 Respondents claimed that women of polygynous marriages tended to suffer material prejudice. While subsequent unions redounded to the benefit of the first wife (who gained in status and extra hands to do domestic chores), the junior wives had less status, more work and their children fewer entitlements to property on inheritance.(326)
6.1.7 Some respondents suggested that, although the state should not ban polygynous unions, it should refuse to register them.(327)
6.1.8 An idea put forward in the Issue Paper, that the consent of the first wife of a potentially polygynous marriage be obtained before the husband could contract a subsequent union, was supported by the Law Commission Workshops (Western Region) and (Eastern Cape) and A M Moleko. Other respondents objected to this proposal. The Gender Research Project(CALS) noted that the first wife's right would be interpreted as no more than a right to be informed that her husband intended taking an additional wife, and that a woman in a secure marriage relationship would be most unlikely to withhold consent. Furthermore, both the Gender Research Project (CALS) and Women in Law in Southern Africa have discovered that the customary ideal of consultation is no longer being realized in the living law, and Prof C R M Dlamini noted that to refuse consent would be to risk divorce or subsequent marital discord. The Gender Research Project also felt that women are seldom in a position to give a properly informed consent, since men often misrepresent their true marital status and women are heavily influenced by their precarious economic position.
D. Evaluation
6.1.9 The claim that polygyny infringes the constitutional prohibition on discrimination against women implies two different arguments: that men have a right which women lack and that a conjugal relationship structured on one husband and several wives inevitably results in prejudice to women. If men have a right that women do not, application of a principle of non-discrimination could require either abolishing the male right or allowing women to take more than one husband. The former of these alternatives will be explored below. The latter enjoys little serious support. Polyandry is not accepted in any of the cultural or religious traditions of South Africa and to introduce it as a solution to objections against polygyny appears arbitrary and contrived.
6.1.10 The argument that polygyny works to the prejudice of women is a more complex issue. It is no doubt true that having several wives may give men an unwarranted sense of status and greater opportunity for sexual gratification, and that women in compound families are more likely to be thrown into competition, and therefore conflict, over resources.(328)
6.1.11 Polygyny alone, however, is not the cause of female subordination nor is it directly responsible for abuses suffered by women.(329) Rather, it is one factor contributing to the patriarchal nature of a society. Furthermore, the argument that polygyny prejudices women must be viewed in light of claims referred to by respondents that the institution performs valuable social functions.(330)
6.1.12 Deciding whether a legal rule or institution constitutes infringement of the constitutional right to equal treatment very often leads to a balancing of interests, a process that entails consideration of broader social, political and economic issues. Investigation of the social effects of legal institutions, however, should be adopted only with caution. In deciding whether polygyny constitutes unfair discrimination, for example, we need to be careful that we are not drawn into an examination of its manifest and latent social functions, since this is likely to be a complex and inconclusive inquiry.
6.1.13 We must also appreciate that only the first wife of a customary marriage suffers direct prejudice, since she is the person who may be compelled to submit to subsequent unions against her will. (And even she can protect herself by insisting on a civil or Christian marriage.) A later wife (or wives) has a choice in the matter. None the less, many people question how real a woman's choice is, because her freedom must be evaluated in terms of the alternatives available: given current socio-economic conditions, women can gain access to resources (especially to land) only through their attachment and submission to men.(331) Economic and social pressures undoubtedly drive women into less than perfect marriages, but these pressures cannot be legally controlled. The best the law can do is to ensure that spouses consent to marriage.
6.1.14 A ban on polygyny would be inadvisable. On the one hand, it would be impossible to prevent husbands from taking additional wives, on the other, men would be encouraged to engage in informal unions,(332) which offer women and children no legal protection at all. Hence, the suggestion made by some respondents that the state should not ban polygynous unions but should rather refuse to register them, seems unwise. This proposal would result in the creation of a new set of 'limping' marriages, similar to the 'discarded families' created under section 22(7) of the Black Administration Act. As a similar colonial experiment in the Transkeian territories showed, the intended beneficiaries of the legislation, women, were put at risk.(333) Instead, it seems preferable to allow the gradual process of disuse to take its course.(334)
6.1.15 We noted above that an interim compromise with the principle of non-discrimination was suggested in the Issue Paper: that the consent of the first wife of a potentially polygynous marriage be obtained before the husband may contract a subsequent union.(335) This rule would complement the customary practice that, if a man wants to marry again, he should at least consult his senior wife (or wives).(336)
6.1.16 It was also noted above that respondents raised various objections to this proposal. They considered that the first wife's right would be interpreted as no more than a right to be informedthat her husband intended taking an additional wife, that a woman in a secure marriage relationship would be most unlikely to withhold consent and that women are seldom in a position to give a properly informed consent. The common point of these observations is accepted: that legislating a right for the first wife might create 'paper law'. In addition, it would be difficult to formulate a suitable penalty if a husband were to contract the second marriage notwithstanding his first wife's refusal to approve it. The Commission felt that declaring the second marriage invalid would constitute such a grave departure from customary law that few people would pay any attention to the penalty.
E. Recommendation
6.1.17 It is recommended that for various reasons, especially the difficulty of enforcing a ban and the fact that polygyny appears to be obsolescent, customary marriages should continue to be potentially polygynous.
Endnotes
316. At p 4 - 5.
317. Marwick 38.
318. Wilson in Krige & Comaroff Essays on African marriage 133-4 and 138-9.
319. See Moller & Welch Polygamy and Well-being 60. Cf Armstrong et al (1993) 7 Int J Law & Family 338.
320. In fact, there is every reason to believe that polygyny is obsolescent and that in time it will disappear. See Women and Law in Southern Africa (WLSA) Uncovering Reality 25. In fact, most of the criticisms from women's groups target this particular practice and highlight the plight of the rural wife. (It is also worth remembering that the precarious position of the first wife was due, not to polygyny, but to the refusal in South African law to recognize customary marriage.
321. Adv J Y de Koker, The Women's Lobby and the Rural Women's Movement, for example were against.
322. Which were ably put by Prof C R M Dlamini in his response to the Issue Paper and in 1991 AJ 77-9.
323. See Dlamini (n6) 342-3 and 77-9. This point was also made by Mrs I Kumalo (Pierre Odendaal en Kie).
324. This also emerges from the work of the international Committee on the Elimination of Discrimination Against Women, set up under art 17 of CEDAW. See Kaganas & Murray 1991 AJ 126. See, more generally, Simons African Women ch 8 and Dlamini (1989) 22 CILSA 330.
325. WLSA (n5) 27-8.
326. WLSA (n5) 24.
327. A proposal by J Heaton (which also found support with the Gender Research Project (CALS)).
328. As indicated by the Gender Research Project (CALS) and WLSA (n5) 26.
329. The same is true of bridewealth. Cf Becker & Hinz Marriage and Customary Law in Namibia 118-19.
330. Prof C R M Dlamini and Mrs I Kumalo (Pierre Odendaal en Kie).
331. Armstrong et al (n4) 336-7.
332. Kaganas & Murray 133. According to Becker & Hinz 63, this is happening in Namibia.
333. Simons 1958 AJ 339.
334. And, one of the reasons put forward in Ismail 1983 (1) SA 1006 (A) at 1024 for refusing to recognize polygynous marriages - the problem of creating a suitable matrimonial property system - can be met by a system of separate estates. Judge S S Ngcobo pointed out, however, that to take account of an accrual regime all wives would have to be joined as parties to a divorce action.
335. Which was derived from the 1968 Kenyan commission on marriage. For comment see Read (1969) 5 East African LJ 116.
336. See Wanda (1988) 27 J Legal Pluralism 130, who discusses the elevation of this practice to a legal duty in three unreported cases from Malawi.