PATRIARCHY AND THE BILL OF RIGHTS

Abstract

In this note the writer has deliberately avoided dealing with the heavily contested issues relating to the substantive rights and duties of spouses in marriages as these issues have already been dealt with in recent legislation (see s 6 of the Recognition of Customary Marriages Act 120 of 1998). This Act has incorporated some provisions of the Matrimonial Property Act (88 of 1984). The thorny issue of succession will soon be satisfactorily resolved in terms of the recommendation of the South African Law Commission.
This note is about African religion and the role played by the elders in that context. In a recent decision of the Constitutional Court, religion has been defined as a means of giving content to the constitutional value of human dignity in an open and democratic society (see the judgment of Ngcobo J in Prince v President of the Law Society of the Cape of Good Hope 2002 3 BCLR 231 (CC)). There is no general agreement as to what constitutes religion (see the definition adopted by Nafzinger “The Functions of Religion in International Legal System” in Jaris and Evans (eds) Religion and International Law (1999) 158).