The topics presented are neither obscure nor extensive. In essence, the question is whether the High Court`s decision of constitutional annulment should be upheld. The outcome of this investigation depends on whether the impugned provisions unfairly discriminate against the applicant and other women in a similar situation. If so, the next question would be whether there is a justification that protects the provisions from constitutional inconsistency. Finally, if unjust discrimination is found and cannot be justified, the Court must issue a decision of constitutional invalidity, including all decisions that may be just and equitable.16 The adaptation of customary law serves a number of important constitutional purposes. First, this process would ensure that customary law, such as law or common law, is aligned with our law and supreme values and brought into line with international human rights standards. Second, adaptation would save customary law and rid it of its stunted and stolen past. Finally, it would fulfill and reaffirm the historically plural character of our legal system, which now stands under the aegis of a supervising law – the Constitution. In this regard, we must be aware that an important objective of our constitutional enterprise is to be “united in our diversity”.

28 In its quest for social cohesion, our Constitution protects and celebrates differences. It plays an important role in generously guaranteeing cultural, religious and linguistic practices, provided that they do not conflict with any right in the Bill of Rights.29 Therefore, it must be reiterated that it is a legitimate objective to have a thriving constitutional customary law that coexists with common law and legislation.30 Although this provision is not directly applicable in this case, It serves as an example of how concern for the possible interests of third parties can be dealt with by legislation during the transitional period. This provision protected the legal consequences arising from acts, omissions or facts prior to the abrogation of marital authority. To the extent necessary, the invalidity order that we must issue may contain a provision that essentially corresponds to section 11 (4) of the Matrimonial Property Act. I believe that the interests of third parties that may be affected by the amended matrimonial property regime with respect to ordinary marriages prior to recognition can also be safeguarded by including a provision allowing a party to appeal to a court of competent jurisdiction if negative consequences arise from the order we have made. The Constitution does not define customary law. The Recognition Act does that. It defines customary law as “customs and customs traditionally observed among the indigenous African peoples of South Africa and forming part of their culture”.31 Difficult questions may arise as to the scope of customary law, to whom it binds and, in particular, whether persons other than indigenous African peoples may be bound by customary law.32 Fortunately, That question will be decided another day. To have to. In view of my conclusion as to the applicant`s right to equality, it is not necessary to clarify whether the discrimination is also based on race or whether one of the parties is not bound by customary law.

Both consider themselves spouses in a customary marriage and bound by the codified customary law of KwaZulu-Natal. However, before turning to the equality argument, I detour to end a debate that took place during the hearing on this issue. The discussion was prompted by a written submission on behalf of Ms. Gumede that her main complaint stems from customary law and is therefore the matrimonial property regime to which she is subject, which discriminates against her because she is a woman. A related question that arose was why it should then be necessary to extend the provisions of Article 7 para. 1 and 2 of the Recognition Act must be declared void if the mischief concerned is governed by customary law.