Research Project Description
In 2012, Elena, joined Prof. Chuma Himonga’s team within the DST-NRF Chair in Customary Law, Indigenous Values and Human Rights to embark on a national study set to explore how the reform of customary laws (Recognition of Customary Marriages Act and laws relating to succession) were being implemented through the eyes of the individuals living according to customary law, a range of state institutions, including the courts and the Department of Home Affairs, and traditional leaders. The aim was to unearth both compliance and dissonance with the RCMA and the Bhe rules. The ultimate goal of the research was to investigate whether and to what extent the new laws of marriage and succession are protecting the rights of the people for whom they were intended, and to offer recommendations for meeting any challenges identified. The research project was undertaken by the National Research Foundation Chair in Customary Law in collaboration with the National Movement of Rural Women (NMRW). In 2018 and 2019, Elena replaced Prof. Himonga as the DST-NRF Chair in Customary Law, Indigenous Values and Human Rights at the University of Cape Town and continued to embark on a range of projects relating to customary law matters and family dynamics.
How was the research done?
A mixed methods socio-legal methodological approach was chosen in order to understand and evaluate how the RCMA was perceived and experienced by those living under customary law. In addition to detailed doctrinal analysis, a detailed qualitative study was conducted in six South African provinces, namely: Eastern Cape, Kwazulu-Natal, Mpumalanga, Limpopo, North West and Gauteng. The first five of these provinces were selected on the basis that they contained settled, rural communities living under customary law. Gauteng was selected on the basis that it contained peri-urban areas, which represented an intersection of both rural and urban communities.
Writing
Publications
The book is the first study to provide a holistic account of the implementation of new laws intended to benefit millions of South Africa in the fields of marriage, divorce and succession from both the perspective of the state and other social actors in these fields. The significance of this study is that it is the most comprehensive study on the operation of the laws under study in terms both of geographical coverage (having been conducted in six provinces of the country) and contributing to the paucity of empirical research on the areas investigated. Moreover the study was a collaboration with two key stakeholders, namely the National House of Traditional Leaders and the National Movement for Rural Women. Through it’s approach and the inherent nature of customary law, the project and Chair has promoted and developed the scholarship of engagement at the University.
Journal Articles
Several articles examined deeper sociological questions regarding the gender and racialised impact of the reform of customary marriage.
Public Engagement
Expert Opinions: The validity of a customary marriage
In 2019 I was involved in three High Court divorce cases which all questioned the validity of a customary marriage at a time when the applicants were seeking a divorce. In each case, I was asked to write an expert opinion regarding the validity of a customary marriage. One of the main issues in each of these cases discussed the importance of the handing over of the wife by her family to the husband and family of the husband (or what is also referred to as the integration of the wife into her husband’s family) as central to the conclusion of a valid customary marriage.This issue was also featured in the Tsambo v Sengadi case (HHP). For more on this issue see the recent SCA appeal judgement.
Supreme Court of Appeal Judgement
Tsambo v Sengadi
In 2018, we worked closely with the Children’s Institute to publish a chapter in the Child Gauge. The Child Gauge is an annual publication of the Children’s Institute, University of Cape Town. It aims to report on and monitor the situation of children in South Africa, in particularly the realisation of their rights. For the first time in 11 years, the publication included a chapter on Living Customary Law and Families in South Africa.
Moore E & Himonga C (2018) Living Customary Law and Families in South Africa. In: Hall K, Richter L, Mokomane Z & Lake L (eds) South African Child Gauge 2018. Cape Town: Children’s Institute, University of Cape Town.
The State of South African Fathers Report report provides a description of the state of fathers in South Africa in the overview, and then examines fatherhood in the first 1,000 days of a child’s life. The 2018 report explicitly uses an appreciative approach to document the importance of fatherhood for children, families and society by focusing on positive examples, and gives an opportunity for new voices to join the community of researchers, activists and others working on fatherhood. In 2018, I contributed a small write up on the fathers and the dissolution of customary marriage.
The report is published by Sonke Gender Justice and UNICEF SA as part of their Engaging South African fathers: The MenCare Child Care and Protection programme, produced by Sonke Gender Justice and supported by UNICEF SA. I am currently authoring and leading a chapter for the 2021 State of South African Fathers Report, working together with scholars and Sonke Gender Justice.
We were invited to share our findings with members of the Dept. of Justice, Home Affairs and the National House of Traditional Leaders. We produced a short booklet on the findings in three languages (English, IsiXhosa and Sesotho) and the booklet was disseminated amongst the National Movement of Rural Women’s network, the judiciary, legal practitioners, and Sonke Gender Institute.
In the News
Generation, Gender and Negotiating Custom in South Africa
Human rights and cultural practices
Customary wives in fight against marital abuse
Customary law can pose problems for widows
Inheritance: women are still cut out
What happens when customary marriage goes wrong?
Customary marriage: is the law working?
Demographic Changes & Family Wellbeing in Africa: Expert Group Meeting
Families and Societies Working Group: December Writing Retreat
Wellcome Career Award: A Research Programme on Family Caregiving of Older Persons in Southern Africa
On the radio
Students and Theses
- Kagiso Maphalle, (2017 – ) Children’s Rights in Woman-to-Woman Marriages: A Study of Pedi Ngwetsi Ya Lapa Customary Marriage. Co supervisor with Prof. Danwood Chirwa.
- Zandile Ndebele (2017 – ) Taxing black middle-class South African families and the potential for intergenerational wealth creation. Co-supervising with Prof. Tracy Gutuza.
- Tendai Mutembedza (2019 – ) Understanding masculinities and practices related to early marriages in Zimbabwe. Co-supervising with Prof. Shose Kessi
- Simamnkele Dingswayo (2020) When families come together: The relational dynamics of power when bringing children into the marriage in isiXhosa families.
- Jill Chidisha Samukimba (2018-2020) Inhlawulo and the role of customary practices in father involvement. (Under examination)