Staying together doesn’t equate marriage
Ignorantia juris non excusat Ignorance of the law is not an excuse and furthermore, an important ethical principle is that “one cannot change rules of the game as soon as they realise they are losing the game”, in order to fit the rules to their own personal objectives.
These important precepts pertinently address many superfluous arguments emanating from failure to understand, comprehend and adhere to customary laws.
The number of court cases, brought afore due to failure and misunderstanding of the customary law, are growing exponentially. With the recent death of hip-hop artist, Jabulani “HHP” Tsambo, his “stay in partner”, Lerato Sengadi, like many others in her situation are left to defend the status and condition of their relationship. And worst, some are not even allowed to come near the grave site. In response to the quagmire, Sowetan columnist, Palesa Lebitse (So much wrong in customary marriage law needs to be fixed: November 6 2018) commits a fallacy of adhominen in an attempt to criticises the system. There is nothing wrong with the customary law as it is applied with respect to marriages, but the understanding of the system. The main problem lies with prominent and “educated” people in our communities. Seemingly, they fail to objectively assess situation and feed communities what they perceive to be right and correct.
Critical thinking seems to be a very absent quality when it comes to assessment of systems applicable in our communities.
Lebitse was quick to observe what appears to be wrong with customary law, yet could not find anything wrong with the RomanDutch law that is perpetually recolonising African people and forcing the latter to abandon who they are and should be. Lebitse should have started with the criticism of the imposition of the Roman-Dutch/English. The logic behind customary law, tradition and practices is never highlighted in any debate but a penchant for total destruction and annihilation. The irony is that many African people are quick to criticise the system without understanding its logic and objective.
A while back, I argued in The Star newspaper that traditional medicines should not go through test tubes to check their validity. We can’t use one system as a bench mark to test another system for the latter’s validity? If traditional medicines never worked, then the African populace will have gone extinct due to illnesses a long time ago before coming into contact with white people.
Asians have allowed the existence of both western and traditional to co-exist with the majority of citizens preferring traditional methods. In Africa, especially SA, we want to supplant a system with another when we fail to merge.
Lebitse argues customary law is wrong using the Roman-Dutch law as the yardstick, as if the latter system is perfect. Roman-Dutch law was imposed onto Africans and the system used repugnance clauses. The system never acknowledged the legitimacy of Africans and their legal systems. Thus it becomes a wrong tool to correct customary laws. We can’t conclude that people are married customarily by virtue of staying together without lobola/magadi negotiations and completion of the ceremony.
■ Mnisi is a Sowetan reader