Women and Justice: Keywords

Domestic Case Law

Negulu v. Serugga High Court of Uganda (2013)

Divorce and dissolution of marriage

Here, the Court held that failure to register a customary marriage did not necessarily invalidate it and that one can be considered customarily married as soon as the customary ceremonies of a tribe have been performed.

Hosho v. Hasisi High Court of Zimbabwe (2015)

Harmful traditional practices, Property and inheritance rights

This was a dispute involving property in the name of the plaintiff and occupied by the defendant. The plaintiff sought an order for the eviction of the defendant, claiming that he had lawfully acquired the property. The defendant claimed that she was the rightful owner as the surviving spouse of the previous owner of the property through an unregistered customary law union. The court held that defendant had no right to the property as there was no concrete evidence supporting the existence of her customary marriage. The court explained that although the absence of a formal marriage certificate is not fatal to the recognition of a customary law union in matters of inheritance and constitutional protections for surviving spouses and children, the union must be proven to exist. Payment of a roora/lobola, or bride price, remains the most cogent and valid proof of a customary union/marriage, particularly where it has not been formally registered because the ceremony itself involves representatives from both families and others who could attest to the process having taken place. Furthermore, there is often documentary evidence of what had been paid and what remained to be paid. Here, the court held for the plaintiff because there was no evidence of a roora/lobola payment and the defendant could not prove her customary marriage to the deceased.

Jezile v. State High Court of South Africa: Western Cape Division (2015)

Domestic and intimate partner violence, Forced and early marriage, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The appellant was convicted in a regional magistrates' court of one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault against a 14-year-old schoolgirl, whom he had married in accordance with customary marriage laws. After she ran away from the appellant, the appellant took the complainant to Cape Town by taxi, where they resided with the appellant's brother and his wife. There, the incidents of rape and assault occurred. The appellant raised as one of his defenses and as a ground of appeal that the alleged rapes took place in the context of a customary arranged marriage, or ukuthwala. According to expert evidence, ukuthwala was an irregular form of initiating a customary marriage. Experts have stated that, in its traditional form, ukuthwala was consensual and innocuous, but there existed an 'aberrant' form in which young girls were abducted and often raped and beaten to force them into marriage. The magistrate held that the matter was not about ukuthwala and its place in our constitutional democracy, but about whether the state had shown that the accused had committed the offences he was charged with and, if so, whether he acted with the knowledge of wrongfulness and the required intent. The court held that child-trafficking and any form of abuse or exploitation of minors for sexual purposes is not tolerated in South Africa’s constitutional dispensation. Furthermore, it ruled that the appellant could not rely on traditional ukuthwala as justification for his conduct because practices associated with an aberrant form of ukuthwala could not secure protection under the law. Thus, the Court could not find that he did not traffic the complainant for sexual purposes or that he had committed the rapes without the required intention  ̶  even on the rather precarious grounds of appellant’s assertion that his belief in the aberrant form of ukuthwala constituted a 'traditional' custom of his community.

Die appêlant is skuldig bevind in 'n streek magistraat hof op een geval van mensehandel, drie gevalle van verkragting, een geval van aanranding met die opset om ernstige liggaamlike skade te berokken en een geval van algemene aanranding teen ’n 14 jarige skoolmeisie met wie hy getroud is volgens die gebruiklike huwelikswette.  Nadat sy weggehardloop het van die appèllant, het die appèllant die klaer per taxi na Kaapstad geneem waar hulle by die broer van die appellant en sy vrou gewoon het.  Daar het die voorval van verkragting en aanranding gebeur.  Die appèllant het as verdediging en op gronde van ’n appel beweer dat die sogenaamde verkragting plaas gevind het binne konteks van ’n gebruiklike gerëelde huwelik of ‘ ukuthwala’. Volgens kundige getuienis was ukuthwala ’n onreëlmatige vorm om ’n gebruilike huwelik te begin.  Kenners meen dat ukuthwala in sy traditionele vorm, konsensueel en onskuldig was maar dat daar ’n afwykende vorm bestaan waarin jong meisies ontvoer en dikwels verkrag en geslaan is om hulle tot die huwelik te dwing.  Die landdros het gesê dat die aangeleedheid nie oor ukuthwala en die plek daarvan in ons grondwettige demokratse gaan nie maar wel of die staat bewys het dat die beskuldigde die misdrywe gepleeg het waarvoor hy aangekla is en indien wel, of hy opgetree het met die wete van onregmatigheid en die vereiste opset(intent).  Die hof het beslis dat mensenhandel of uitbuiting van minderjariges vir seksuele doeleindes nie geduld word in Suid-Afrika se gondwetlike bedeling nie.  Verder het dit beslis dat die appèllant nie op die tradisionele ukuthwala kon staatmaak as regsverdediging vir sy optrede nie omdat prakyke wat verband hou met ’n afwykende vorm van ukuthwala nie beskerming onder die wet verkry nie. Die Hof kon dus nie bevind dat hy die klaer nie vir mensenhandel met seksuele doeleindes gebruik het nie en dat hy die verkragtings sonder die verwagte intensie gepleeg het nie - selfs op die taamlike onveilige gronde van die bewering van die appellant dat sy geloof in die afwykende vorm van ukuthwala, ’n tradisionele gewoonte in sy gemeenskap is.

Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (2008)

Divorce and dissolution of marriage, Gender discrimination, International law, Property and inheritance rights

Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage.  Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes.  She was always the primary caregiver of the children.  After forty years, the marriage broke down irretrievably.  Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension.  In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court.  Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely.  The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages.  In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid.  The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW.  It held that the two provisions are patently discriminatory, unfair, and not justifiable.  In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment.  The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”

Nxumalo v. Ndlovu Supreme Court (2011)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The executor of the estate of a deceased man (the appellant) brought an application to the High Court for a declaration that the civil marriage to the respondent was bigamous and invalid because of a number of pre-existing customary marriages between the deceased and three other women. The deceased considered the marriages over when the women left him and never returned. The deceased had executed a will and later four codicils. The High Court found that the respondent’s civil law marriage was a lawful marriage in community of property, and the will was declared null and void. The appeal is of the order of the High Court. The Supreme Court heard testimony from one of the wives married to the deceased under customary law and from experts in Swazi law and custom relating to the dissolution of customary marriages. The Supreme Court found in favour of the appellant. The decision of the High Court was set aside and the Master of the High Court was to appoint a suitable and proper person to administer the deceased estate. This case is important as it illustrates the importance and status of Swazi law.

Public Ministry and Civil Party Mawazo Safi v. Mewnyibamba Kabale & Passy Nyakura Court of Greater Instance of Bukavu (2001)

Divorce and dissolution of marriage

The “Civil Party” brought allegations of adultery against her husband and the “cohabitant”, claiming her husband abandoned her to live with the cohabitant despite her earlier marriage with her husband in 1980.  The Civil Party and her husband had three children before he moved away. A dowry was regularly paid on the marriage throughout and no party contests the 1980 marriage.  As such, the marriage could generally qualify under Congolese law as a ‘monogamous customary marriage’ under the law of November 30, 2000, which does not require the date of the marriage or any registry number to be filed with the State.  The Civil Party’s husband and his cohabitant claim the civil party knew and authorized their cohabitation because she refused to relocate with her husband when his work required him to do so and that she visited them at their home, all of which she contests.  Despite the lack of contest by any party to the prior marriage and recognition that a monogamous customary marriage exists here, the Tribunal suspended the case until the marriage was registered because Article 380 of the Congolese Family Code requires a ‘monogamous customary marriage’ to be registered before either party can exercise rights in court. (Available on pages 136-137 on linked site.)

Nkabane v. Nkabane High Court of Lesotho (1987)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, Gender-based violence in general, Property and inheritance rights

The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman.   The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.

Theko v. Theko High Court of Lesotho (1982)

Divorce and dissolution of marriage

The plaintiff-wife sought the dissolution of her marriage to the defendant on the grounds of his previous marriage under the Sotho custom.  The Court declared the marriage to be null and void on the grounds that the plaintiff agreed to the marriage through fraud, believing that the defendant was unmarried at the time and would not have agreed to the marriage if she had known the truth.