Guided Transformation of Customary Marriage Practices in South Africa




change management, community systems, customary marriage, traditional leaders, repugnancy test, cultural transformation


This article discusses the complementary roles of the South African state and community institutions in transforming customary marriage practices to reflect changing socio-economic circumstances and to meet constitutional values contained in the Bill of Rights. It also reflects on the interaction between customary law, legislation dealing specifically with customary law, and the Constitution. Customary laws of marriage are living laws and may be interpreted, applied and, when necessary, amended or developed by the legislature and courts or by the impacted communities. Before the enactment of the 1996 Constitution, customary marriage practices were only recognised by the courts if they were not repugnant to public policy or natural justice and common law principles. This repugnancy test did not allow South African courts to develop African customary laws. Since 1996, the test for recognition of customary marriage laws has been the Constitution. Legislative reforms of customary marriage practices have occurred through the enactment of the Recognition of Customary Marriages Act 120 of 1998, the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 and more are anticipated in ongoing efforts of the South African Law Reform Commission. Section 211(2) of the Constitution also allows traditional leaders to reform their own customs and to bring them into line with the norms and values of the Constitution. In this article, I assess the complementary efforts of the legislature, courts, and traditional leaders in amending the communities’ customary marriage practices to reflect modernity and to meet constitutional values.


Baldwin, K. 2016b. The Paradox of Traditional Chiefs in Democratic Africa. Cambridge: Cambridge University Press.

Cooperative Governance and Traditional Affairs. 2008. “The White Paper on Local Government.” 9 March 1998. LexisNexis South Africa, 2021 edition. (accessed January 6, 2023).

Department of Home Affairs, South Africa .2021. “Green Paper on Marriages in South Africa.” (Government Gazette No. 44557). (accessed October 31, 2021).

Department of Social Development, South Africa .2011. “Green Paper on Families: Promoting Family Life and Strengthening Families in South Africa” (Government Gazette No. 34657, Notice 756 of 2011), 23. (accessed on November 3, 2021).

Galpin, T.J. 1996. The Human Side of Change: A Practical Guide to Organization Redesign. 1st edn. San Francisco, CA: Jossey-Bass.

Judson, A. 1991. Changing Behaviors in Organizations: Minimizing Resistance to Change. Cambridge, MA: Basil Blackwell.

Rautenbach, C. and Bekker, J.C. (Eds). 2014. Introduction to Legal Pluralism in South Africa. 4th edn. Durban: LexisNexis.

Bakker, P. 2018. “Integration of the Bride as a Requirement for a Valid Customary Marriage: Mkabe v Minister of Home Affairs [2016] ZAGPPHC 460.” PER / PELJ 2018(21).

Baldwin, K. 2013. “Why Vote With the Chief? Political Connections and Public Goods Provision in Zambia.” American Journal of Political Science 57(4):794–809.

Bekker, Jan and Buchner-Eveleigh. 2017. “The Legal Character of Ancillary Customary Marriages.” De Jure 80–96. (accessed November 6, 2022).

Osman, F. 2019. “The Consequences of the Statutory Regulation of Customary Law: An Examination of the South African Customary Law of Succession and Marriage.” PER 22 (1).

Hargreaves, O.M. 2011. “Practice-ing Behaviour Change: Applying Social Practice Theory to Pro-environmental Behaviour Change.” Journal of Consumer Culture 11:79–99 (accessed on February 7, 2022).

Kanyane, M.H. 2007. “The Paradox Between Local Government and Traditional Leaders in South Africa: Bridging the Divide.” Journal of Public Administration 42 (3) 317–323.

King, M. 1993. “The “Truth” About Autopoiesis.” Journal of Law and Society 20 (2).

Lewin, K. 1947b. “Group Decisions and Social Change’. In Readings in Social Psychology. Edited by Newcomb, T. M. and Hartley, E. L, 197–211.New York: Henry Holt.

Posel, D. 1987. “The Meaning of Apartheid before 1948: Conflicting Interests and Forces within the Afrikaner Nationalist Alliance.” Journal of Southern African Studies 14(1).

Thomas, P.J., and Tladi, D.D. 1999. “Legal Pluralism or a New Repugnancy Clause.” The Comparative and International Law Journal of Southern Africa 32 (3): 354–63. (accessed November 6, 2022).

Martinéz, C. 1986. “Report to the UN Sub-Commission on the Prevention of Discrimination of Minorities.” Indigenous Voice

Minister for Provincial and Local Government. 2003. “The White Paper on Traditional Leadership and Governance.” July 2003 (accessed January 6, 2023).

South African Law Reform Commission (SALRC). 2021. “Project 144, Single Marriage Statute.” Discussion Paper 152. (accessed November 3, 2022).


Black Administration Act 38 of 1927 [Repealed]. (accessed January 6, 2023).

Constitution of the Republic of South Africa [South Africa], 10 December 1996, chapter 12, (accessed January 6, 2023).

Recognition of Customary Marriages Act, No. 120 of 1998, 15 November 2000, (accessed January 6, 2023).

Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, 19 April 2009, (accessed April 25, 2024).

Traditional Leadership and Governance Framework Act 41 of 2003, (accessed January 6, 2023).

Case Law

Fourie and Another v Minister of Home Affairs and Another 2005 (3) SA 429 (SCA)

Gumede v President of the Republic of South Africa and Others 2008 (CCT 50/08) ZACC 23.

Mabuza v Mbatha 2003 (7) BCLR 743 (C).

Machika v Mthethwa 2013 (55842/2011) ZAGPPHC 308.

Mashia Ebrahim v Mahomed Essop (1905 TS 59) (Transvaal Supreme Court Reports).

Mayelane v Ngwenyama and Another 2013 (4) SA 415 (CC).

Pilane and Another v Pilane and Another 2013 (4) BCLR 431 (CC)

Ramuhovhi and Others v President of the Republic of South Africa and Others 2018 (2) SA 1 (CC).

Shibi v Sithole and Others 2005 (1) SA 580 (CC).

Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC).

South African Human Rights Commission and Another v President, Republic of South Africa and Another 2005 (1) BCLR 1 (CC).

Tsambo v Sengadi: In re Tsambo Jabulani 2020 (224/ 19) ZASCA 46.



How to Cite

Wara, George. “Guided Transformation of Customary Marriage Practices in South Africa”. Journal of Law, Society and Development, 20 pages.



Received 2023-07-26
Accepted 2024-05-09
Published 2024-06-10