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The "official" version of customary law vis-a-vis the "living" Hananwa family law

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dc.contributor.advisor Bekker, J. C.
dc.contributor.advisor Rautenbach, C. (Christa)
dc.contributor.author Rammutla, Chuene William Thabisha
dc.date.accessioned 2013-10-03T10:24:10Z
dc.date.available 2013-10-03T10:24:10Z
dc.date.issued 2013
dc.identifier.citation Rammutla, Chuene William Thabisha (2013) The "official" version of customary law vis-a-vis the "living" Hananwa family law, University of South Africa, Pretoria, <http://hdl.handle.net/10500/10614> en
dc.identifier.uri http://hdl.handle.net/10500/10614
dc.description.abstract The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal. Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him. However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009.The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes. The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law. en
dc.format.extent 1 online resource (xv, 241 leaves)
dc.language.iso en en
dc.rights University of South Africa
dc.subject Bill of Rights en
dc.subject Capacity to act en
dc.subject Capacity to litigate en
dc.subject Divorce en
dc.subject Emancipation en
dc.subject Engagement en
dc.subject Extramarital children en
dc.subject Customary marriage en
dc.subject Group rights en
dc.subject Individualisation en
dc.subject Individual rights en
dc.subject Intestate succession en
dc.subject Legal capacity en
dc.subject Lobolo en
dc.subject Maintenance en
dc.subject Marital children en
dc.subject Marital guardianship en
dc.subject Natal guardianship en
dc.subject Polygamy en
dc.subject Polygyny en
dc.subject Polyandry en
dc.subject Spousal consent en
dc.subject Spousal equality en
dc.subject Parental consent en
dc.subject.ddc 346.15068
dc.subject.lcsh Domestic relations -- South Africa
dc.subject.lcsh Customary law -- South Africa
dc.subject.lcsh Marriage customs and rites -- South Africa
dc.subject.lcsh Marriage law -- South Africa
dc.subject.lcsh Polygamy -- Law and legislation -- South Africa
dc.subject.lcsh Common law marriage -- South Africa
dc.subject.lcsh Gananwa (African people) -- Legal status, laws, etc.
dc.title The "official" version of customary law vis-a-vis the "living" Hananwa family law en
dc.type Thesis en
dc.description.department Public, Constitutional, and International Law en
dc.description.degree LLD (International and Constitutional Law)


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