The Dissolution of a Customary Marriage: Women and the Traditional Court System in South Africa

Abstract

Traditional courts remain influential both due to the fact that communities support them as a legitimate mechanism to solve disputes and because they are accepted and recognised constitutionally. They offer numerous advantages, including their accessibility, legitimacy, speedy resolution of disputes and their dispensing of restorative justice enabling community cohesion and peace. Although it can be argued that customary law is deeply rooted in patriarchal norms and practices, and lack the sensitivity and knowledge to rule on gendered matters, women in rural communities continue to make use of them and these court’s rulings have an impact on their lives. This chapter aims to interrogate the specific matter of the return of lobolo (ukukhetha) and dissolution of a customary marriage. It also discusses the conflict concerning customary law as living law that is not only fluid and flexible but constantly changing over time and contextually and community-specific. This allows an examination of how positive cultural practice can permeate the traditional justice system for the protection of women who use traditional courts and also the negative norms and practice that undermine women’s access to these courts and contribute to poor justice outcomes.