AN ABUSE OF CUS­TOM­ARY LAW?

Men some­times use cus­tom and cul­ture to op­press women. Do they not know women have the same rights, asks Mo­didima Maanya

CityPress - - Voices & Careers - Maanya is an advocate and for­mer civil ser­vant

In re­cent years the courts have had to deal with dis­putes in­volv­ing the va­lid­ity or other­wise of cus­tom­ary mar­riages. Of­ten th­ese dis­putes arise when one of the par­ties to the mar­riage dies. The dis­putes are usu­ally about who has the right to bury the de­ceased or who in­her­its the es­tate. In the past cou­ple of weeks a woman whose cus­tom­ary law hus­band died ended up in court to as­sert her rights. It is re­ported that at the time of his death, they were es­tranged. How­ever, upon hear­ing of the death of her hus­band, she im­me­di­ately – on the same day – re­turned to their home.

But it is re­ported that her fa­ther-in-law drove about 400km and took full con­trol of his son’s house. Part of taking con­trol, as it turns out, was to change the locks of the house.

In ef­fect, and as the court later found, she had been evicted from the house. This led to an ur­gent ap­pli­ca­tion in the high court. The hus­band’s fam­ily be­lieved she was not the law­ful wife as cer­tain rites were not per­formed to fi­nalise the cus­tom­ary mar­riage, which, they felt, meant she had no right to get in­volved and/or take con­trol of his be­long­ings.

Be­fore this dis­pute, there had been sev­eral court hear­ings and judg­ments clar­i­fy­ing what qual­i­fies as a cus­tom­ary mar­riage; even cases when the par­ties had not com­plied with all the rites. There was, there­fore, no con­fu­sion about what con­sti­tutes a valid cus­tom­ary mar­riage. And this was es­pe­cially so be­cause both par­ties in this case had ac­cess to le­gal ad­vice.

Be­cause the law was al­ready set­tled at the time of the dis­pute, one should ques­tion what truly prompted the dis­pute to war­rant an ur­gent high court ap­pli­ca­tion. Any­one with ac­cess to le­gal ad­vice would know it could not have been about whether the woman was the law­ful wife.

But pa­tri­archy is as vi­cious now as it was many moons ago, re­gard­less of how our lives have changed in that time. Even though we know women have the same rights as men and are equal in front of the law and so­ci­ety, many men con­tinue to treat women as in­fe­ri­ors.

A cus­tom­ary mar­riage is ini­ti­ated by the man’s fam­ily. They ap­proach the woman’s fam­ily and ask for her hand in mar­riage. They pay lobola. Once an agree­ment ex­ists and cer­tain rites are per­formed be­tween the par­ties, the cou­ple is re­garded as mar­ried un­der cus­tom­ary law. If ei­ther of the par­ties do not ad­here to the agree­ment, the other has mech­a­nisms to en­force it. Of­ten the fam­i­lies meet to dis­cuss the is­sues in dis­pute and, un­less they are extremely se­ri­ous, a so­lu­tion is usu­ally found.

The same ap­plies when the mar­ried par­ties have prob­lems. The fam­i­lies in­ter­vene to find so­lu­tions. They should not cause or be part of the prob­lem. They are there only to re­solve the prob­lem. That is the cus­tom. In this case if all the steps to con­sum­mate the mar­riage were not im­ple­mented, what did the groom’s fam­ily do to en­sure com­pli­ance? What if the groom’s fam­ily ac­cepted what might have been con­sid­ered “breaches”? The an­swer raises fun­da­men­tal ques­tions about the prac­tice of cus­tom­ary law. Do we pick and choose what we want or do we ap­ply the full spec­trum of what makes up cus­tom­ary law?

Cus­tom­ary law is not just about spe­cific prac­tices. It is an in­sti­tu­tion with var­i­ous el­e­ments. It is not about who you are but how you prac­tise and em­brace th­ese el­e­ments.

It not only has rules but pro­cesses – in­clud­ing dis­pute res­o­lu­tion pro­cesses. When a dis­pute arises, there are pro­to­cols to fol­low to re­solve it. Evict­ing a wife with­out ex­haust­ing the pro­cesses is not cor­rect. The same pro­cesses ap­ply to both par­ties in the mar­riage and the same dis­pute res­o­lu­tion must ap­ply.

The de­ci­sion to marry un­der cus­tom­ary law is that of the par­ties TALK TO US

Cus­tom­ary mar­riages – and civil mar­riages – give the same rights to men and women. Do you agree? SMS us on 35697 us­ing the key­word LAW and tell us what you think. Please in­clude your name and province. SMSes cost R1.50. By par­tic­i­pat­ing, you agree to re­ceive oc­ca­sional mar­ket­ing ma­te­rial and not of their fam­i­lies. The fam­i­lies are there to give ef­fect and sup­port the de­ci­sion by the par­ties to marry.

Mar­ried par­ties have their own rights. Cus­tom­ary mar­riages were not in­tended to be any less in­fe­rior to other mar­riages. They are mar­riages in their own right and no amount of pa­tri­archy must de­ter­mine the rights of the par­ties con­cerned.

Women have the same rights as men in a cus­tom­ary mar­riage. Any at­tempt to in­voke cus­tom­ary law to re­duce the rights and per­pet­u­ate his­tor­i­cal stereo­types de­signed to op­press women must be re­jected re­gard­less of who is in­volved.

Our Con­sti­tu­tion recog­nises hu­man rights, prime among them rights to equal­ity and hu­man dig­nity. Our courts are en­joined to ap­ply cus­tom­ary law in the ad­ju­di­ca­tion of such dis­putes. And if the par­ties can­not re­solve their is­sues in any other way, they are en­ti­tled to take the mat­ter to court.

But are th­ese dis­putes re­ally about cus­tom­ary law or is cus­tom­ary law a con­ve­nience in mat­ters of this na­ture?

If par­ties are mar­ried un­der cus­tom­ary law why would they not use the pro­cesses of­fered to pre­vent and re­solve dis­putes? Why, if the par­ties ad­here to cus­tom­ary law, would they not use the dis­pute res­o­lu­tion pro­to­cols be­fore run­ning to the courts?

One of the fun­da­men­tals of cus­tom­ary law is that it is a fam­ily­based sys­tem in which the fam­ily is the cen­tre of author­ity. It is not about in­di­vid­u­als but a broader re­la­tion­ship.

One won­ders where th­ese fam­i­lies are when dis­putes arise. Surely if they be­lieve in cus­tom­ary law, they should use it to re­solve con­flicts? The cul­ture of en­ti­tle­ment that a fa­ther re­tains all rights and pow­ers even over his mar­ried son man­i­fests a dan­ger­ous, ag­gra­vated ver­sion of pa­tri­archy. As with all other man­i­fes­ta­tions of pa­tri­archy, it sim­ply points to the fact that of­ten cus­tom and cul­ture are used to op­press women. Cus­tom­ary law can­not con­tinue to be a tool of op­pres­sion in a demo­cratic so­ci­ety. A man does not have the right to de­cide what hap­pens to a woman.

This case – as with many sim­i­lar ones – demon­strates an on­go­ing per­va­sive cul­ture of the op­pres­sion of women at the hands of men, even in mod­ern life. It ex­em­pli­fies the on­go­ing per­va­sive cul­ture that heaps the blame on women.

Cus­tom­ary law must not be used as a con­ve­nience for those who have no leg on which to stand. Those who ex­ploit the flu­id­ity of cus­tom­ary law are not do­ing it jus­tice. The courts will have to be tougher with those who abuse the sys­tem of cus­tom­ary law for self­ish ends. The Con­sti­tu­tion recog­nises cus­tom­ary law for those who prac­tice it and not those who con­ve­niently want to ben­e­fit from it.

If the par­ties had con­cluded a civil mar­riage what would the fight have been about? One is left guess­ing.

PHOTO: ROSETTA MSIMANGO

Jab­u­lani Tsambo (in­set). HHP’s wife, Ler­ato Sen­gadi, pays her last re­spects at the Mat­la­long Ceme­tery in Mahikeng

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