key to the study guide - Name

Can discriminatory
elements be justified
ito the limitation
clause?
The last matter to consider is whether the infringement of gender equality
and the right to dignity by the above-mentioned two elements of
customary marriages is justifiable in terms of the limitation clause (s 36) of
the Constitution. This issue is discussed on pages 210±211 of your
prescribed textbook.
ACTIVITY
Draw a distinction between the constitutional arguments for and against
the recognition of customary marriages.
Arguments for the recognition of
customary marriages
FEEDBACK
(1) Customary law is part of culture.
Sections 30 and 31(1) of the
Constitution protect the right to
culture and section 9(3) and (4) of
the Constitution enshrines the
right not to be unfairly discriminated
against on the ground of
culture.
(2) Customary marriages are part of
tradition, and section 15(3) provides
for the recognition of marriages
concluded under any
tradition.
QUESTIONS
Arguments against the recognition
of customary marriages
(1) Some elements of customary culture
infringe the right to sex and
gender equality, and infringe on
women's right to dignity.
(2) Some of the traditional practices
regarding customary marriages infringe
sex and gender equality and
violate the right to dignity.
NB: Make sure you can answer these questions properly. They are
designed to test your knowledge of the study material in this
study unit.
. Introduction
(1) Why were customary marriages invalid in terms of our common
law? Briefly explain your answer.
(2) To which extent did the Recognition of Customary Marriages Act
120 of 1998 change the common-law position?
(3) When did the Recognition of Customary Marriages Act come into
operation?
. The legal requirements for a valid customary marriage
(4) Briefly set out the legal requirements for a customary marriage
which is entered into after the coming into operation of the
Recognition of Customary Marriages Act.
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