Who's Afraid of Polygamy? Exploring the Boundaries of Family, Equality and Custom in South Africa

Abstract:     
South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. This Article examines the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, it focuses on the Recognition of Customary Marriages Act, a statute that purports to regulate customary marriages, including the establishment of such marriages, as well as their termination. The Article evaluates the influence of this statute, if any, on gender equality, and whether its purported protection of women in polygamous marriages in fact results in such protection.

Keywords: South Africa, polygamy, equality, constitutional law, indigenous law, gender equality, gender

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