On The Conflict And Resolution Of South Africa Customary Marriage Law

The customary law of South Africa, as a South African native law, is the set of customs and conventions that the South African indigenous nations have been following. The law is a part of their culture. It has existed long before the arrival of the European colonizer. Its influence on the daily lives of the tribes, especially on the marriage, is great. As the South African society is developing, the background that the customary law relies on changed, therefore the systematic flaw of the marriage policy has become apparent and it turned out to be obstructing to the modernization of the society. The main problem that the customary marriage law has comes from the internal and the external.The so-called internal conflicts are mainly the conflicts of the marriage forms and the conflicts of the lobola. According to the customary marriage law, marriage in South Africa includes monogamy, polygamy, levirate, sororate etc. This marriage forms have usually been affected by the economic status and therefore contradict the principle that marriage should be free of will. The conflicts of the lobola are mainly reflected in the values of the gifts. Livestock and money are both accepted forms of the gifts however the existence of the two types of gifts makes the return of the gifts difficult when the marriage is terminated. The amount of the gifts is also directly determining the status of the women in the marriage and life.The external conflicts are reflected in the application of the customary law and the common law. The common law is an imported law from UK in the colonization period. It is dramatically different from the customary law of South Africa in the marriage, the effectiveness of the marriage, the jurisdiction, the distribution of the property etc. Due to the lack of guidance as to which law is to obey when the two exist at the same time, individuals right is usually infringed in the application of the law.Therefore, in order to resolve the internal and external conflicts of the South African customary law and to prevent the customary law to break away from the modernized practice and the human rights. The republic of South Africa started to acknowledge the existence of the customary law as a part of a culture, this also applies to the equality principle and the declaration of the human rights. The promulgation and application of the customary marriage law in 1998 is a milestone in the codification of the customary law. This law modified the stipulated the application of the customary law and procedure, therefore making all the marriage under the customs legal.