Authored By: Ayanda Nelisiwe Thebehali
University of South Africa
Abstract
The Recognition of Customary Marriages Act 120 of 1998 (RCMA) was enacted to provide legal recognition and protection to customary unions in South Africa, particularly to safeguard women’s constitutional rights to equality and dignity. While the Act sought to reform patriarchal elements of customary law, gaps in implementation, lack of awareness, and inconsistent application continue to undermine its effectiveness. This article evaluates the extent to which the RCMA advances women’s rights within both monogamous and polygamous unions, drawing on constitutional provisions, landmark case law, and judicial interpretation. It argues that although the RCMA has significantly advanced formal protections, it remains ineffective in practice due to structural barriers, weak enforcement, and lack of public awareness. The article concludes with recommendations for reform, including enhanced awareness campaigns, legislative clarity, and stronger institutional mechanisms.
Introduction
Customary marriages form an integral part of South Africa’s pluralistic legal system. Historically, these unions were marginalised under colonial and apartheid law, with discriminatory provisions that denied women equal rights. The enactment of the RCMA marked a turning point by aligning customary marriage law with constitutional values of equality and human dignity. However, despite its progressive aims, questions remain regarding its practical impact.
This article critically examines the RCMA’s effectiveness in protecting women’s rights. It argues that the Act has successfully introduced equality in theory but has not bridged the gap between law on paper and law in practice, especially for rural women who face systemic barriers. Through an analysis of statutory provisions, constitutional principles, and judicial interpretation, this paper evaluates whether the RCMA adequately safeguards women’s rights and proposes reforms to close the gap between legislation and lived realities.
Legal Framework
The RCMA recognises both monogamous and polygamous customary marriages, subject to requirements of age, consent, and celebration according to custom.¹ Section 6 grants wives equal legal status with their husbands, overturning the patriarchal notion of women as perpetual minors. Section 7 regulates proprietary consequences, providing that marriages entered into after the Act’s commencement are in community of property unless otherwise agreed.² Section 8 stipulates that dissolution may only occur through a court order on grounds of irretrievable breakdown.³
These provisions advance constitutional rights enshrined in sections 9 (equality), 10 (dignity), and 28 (children’s rights) of the Constitution.⁴ However, ambiguities in the Act’s deference to “living customary law” and inconsistent enforcement mechanisms have given rise to disputes and unequal protection.
Judicial Interpretation
Courts have played a pivotal role in developing the RCMA’s scope:
- Gumede v President of the Republic of South Africa and Others [2008] ZACC 23, 2009 (3) BCLR 243 (CC): Declared s 7(1) unconstitutional, extending community of property protections to women in monogamous unions entered before 2000.⁵
- Mabuza v Mbatha [2003] 1 All SA 706 (C), 2003 (7) BCLR 43 (C) (WCC): Recognised that omission of rituals such as ukumekeza did not invalidate a marriage, reflecting the evolution of customary practices.⁶
- Tsambo v Sengadi [2020] ZASCA 46 (SCA): Clarified that living customary law determines validity, recognising unions where consent and celebration were established despite incomplete rituals.⁷
- Ramuhovhi v President of the Republic of South Africa [2018] ZACC 41, 2018 (2) BCLR 217 (CC): Extended community of property protections to women in polygamous marriages.⁸
These judgments show the judiciary’s progressive role in aligning customary law with constitutional rights. Yet, they also reveal Parliament’s slow response in amending unclear provisions, leaving women vulnerable in the interim.
Critical Analysis
Despite significant advances, the RCMA faces persistent shortcomings:
- Registration and Awareness: A large proportion of customary marriages remain unregistered, weakening women’s ability to enforce their rights. Studies reveal that many women are unaware that either spouse may register the marriage.⁹ Administrative barriers, such as uncooperative registration officers, exacerbate this problem.
- Ambiguities in Customary Practice: The Act’s reliance on “living customary law” without statutory clarity fosters litigation. For example, disputes over whether lobolo or the handing over of the bride is essential continue to undermine certainty.¹⁰ While flexibility respects cultural variation, it risks inconsistent outcomes.
- Polygamous Marriages: Judicial developments like Ramuhovhi provide constitutional protection, but the RCMA’s silence on pre-2000 polygamous unions created years ofuncertainty.¹¹ Women in rural areas remain at a disadvantage, as enforcement mechanisms often fail to protect their property rights.
- Implementation and Access to Justice: Socio-economic barriers, lack of legal literacy, and costs of litigation restrict women’s ability to rely on the RCMA.¹² Even when rights exist, enforcement is uneven, disproportionately disadvantaging marginalised women.
Recent Developments
In Sithole v Sithole [2021] ZACC 7, 2021 (5) SA 34 (CC), the Constitutional Court struck down discriminatory provisions of the Matrimonial Property Act, reinforcing women’s rights in customary marriages.¹³ The Court ordered Parliament to amend relevant provisions of the RCMA to align fully with constitutional principles, particularly in relation to polygamous unions.¹⁴ These developments signal continued judicial activism in bridging gaps left by the legislature.
Suggestions / Way Forward
To ensure the RCMA achieves its transformative purpose: – Legislative Clarity: Parliament must explicitly define validity requirements to reduce litigation and uncertainty. –
Awareness Campaigns: Public legal education, especially in rural areas, is essential. Radio programmes, community workshops, and partnerships with traditional leaders could expand awareness.
Administrative Reform: Registration processes should be simplified, with penalties for officials who refuse lawful registrations.
Judicial and Institutional Support: Ongoing judicial vigilance is necessary, alongside training for magistrates and registration officers to ensure consistent enforcement. – Balancing Culture and Rights: Customary practices should be respected but must always yield to constitutional guarantees of equality and dignity.
Conclusion
The RCMA represents a landmark in recognising customary marriages and advancing women’s rights in South Africa. Through constitutional alignment and progressive case law, significant strides have been made. However, the Act’s effectiveness is undermined by registration failures, ambiguities in customary law, and lack of public awareness.
This article argues that the RCMA has succeeded in formal reform but not yet in substantive transformation. To close this gap, legislative precision, broader access to justice, and institutional reform are required. Only then can the RCMA realise its intended goal: to ensure that women in customary marriages enjoy equal status, dignity, and constitutional protection in both law and practice.
Reference(S) / Bibliography (OSCOLA Style)
Legislation
Constitution of the Republic of South Africa, 1996.
Recognition of Customary Marriages Act 120 of 1998 (South Africa).
Matrimonial Property Act 88 of 1984 (South Africa).
Cases
Gumede v President of the Republic of South Africa and Others [2008] ZACC 23, 2009 (3) BCLR 243 (CC).
Mabuza v Mbatha [2003] 1 All SA 706 (C), 2003 (7) BCLR 43 (C) (WCC). Ramuhovhi v President of the Republic of South Africa [2018] ZACC 41, 2018 (2) BCLR 217 (CC).
Sithole v Sithole [2021] ZACC 7, 2021 (5) SA 34 (CC).
Tsambo v Sengadi [2020] ZASCA 46 (SCA).
Books
C Rautenbach, Introduction to Legal Pluralism in South Africa (6th edn, LexisNexis 2021). T Nhlapo and C Himonga (eds), African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives (Oxford University Press Southern Africa 2014).
Journal Articles
P Bakker, ‘Gender Equality in Customary Marriages: Is the Deregulation of Customary Marriages the Solution?’ (2023) Acta Juridica 152.
E Johnson, ‘The Active Role of South Africa’s Constitutional Court in Advancing Women’s Rights’ (2023) Acta Juridica 273.
RJ Kovacks, S Ndashe and J Williams, ‘Twelve Years Later: How the Recognition of Customary Marriages Act of 1998 is Failing Women in South Africa’ (2013) Acta Juridica 273.
Internet Sources
South African History Online, ‘Customary Marriages in South Africa: Understanding The Recognition of Customary Marriages Act of 1998’ (26 August 2019)
https://www.sahistory.org.za accessed 21 August 2025.
¹ Recognition of Customary Marriages Act 120 of 1998, s 3.
² ibid, s 7.
³ ibid, s 8.
⁴ Constitution of the Republic of South Africa, 1996, ss 9, 10, 28.
⁵ Gumede v President of the Republic of South Africa and Others [2008] ZACC 23, para 35. ⁶ Mabuza v Mbatha [2003] 1 All SA 706 (C), para 26.
⁷ Tsambo v Sengadi [2020] ZASCA 46, para 30.
⁸ Ramuhovhi v President of the Republic of South Africa [2018] ZACC 41, para 52. ⁹ RJ Kovacks, S Ndashe and J Williams (n 11) 278.
¹⁰ Mabuza v Mbatha (n 6) para 30.
¹¹ Ramuhovhi v President of the Republic of South Africa (n 8) para 56.
¹² Johnson (n 11) 279.
¹³ Sithole v Sithole [2021] ZACC 7, para 44. ¹⁴ ibid, para 50.
