CONTRADICTIONS between customary and Roman law seem to deepen with many of the legal rulings in our courts.
Indigenous customs seem to take a back seat to laws that often undermine the authentic African way of life.
A case in point is the ground-breaking High Court ruling on the right of unmarried men to register their children.
This amends an earlier understanding that it is the preserve of the mother to do so.
At face value, the judgement is in the interest of children who may otherwise end up being ‘beasts of no nation’.
The judgement considered children whose mothers may have died, who have been adopted or who are classified as street children.
But this decision contradicts a well-established South African custom that a child belongs to the family, not an individual.
In this regard, a child born out of wedlock belongs to the mother’s family pending the father owning up by paying ‘damages’.
To eliminate the notion that the ‘damages’ cost is not merely a money-making scheme, the value is predetermined by the community.
Its use is two-pronged – on the one hand it is for the upkeep of the child, while on the other it establishes the child’s lineage.
According to custom, the girl’s family approaches the man’s family to report the ‘damage’. Alternatively, the man may pre-empt the complaint by approaching the girl’s family and taking responsibility.
In both scenarios, the two families would normally move the process to marriage. But, owing to dispersal of families due to all forms of unrest, such approaches are sometimes unworkable.
In the event the man doesn’t take responsibility through paying the ‘damages’ and marrying the girl, the baby receives the mother’s surname. This is also the case if the father’s identity cannot be established.
Custom, it must be made abundantly clear, operates in this manner for two reasons – to ensure the father takes responsibility and, most importantly, to avoid inbreeding.
It is for these reasons that a concerted effort is made to trace the father’s family.
The High Court decision, at face value at least, gives the father a blank cheque to register the child, thereby bypassing the safeguards.
Sexual intercourse between children and older men is more commonplace than one would think in our country, but this decision seems moot on this.
If a report of child pregnancies in Gauteng is anything to go by, the court ruling leaves much to be desired.
According to the report, 23 000 young girls became pregnant between March 2020 and April 2021, the youngest range being between 10 to 14 years.
If anything, this ruling is likely to give an extra string in the armoury of men whose responsibilities to their actions are questionable.
It would help if and when these decisions are taken, efforts are made to determine what works in terms of customary systems.
Gender-based court decisions and laws have no place in a democratic country that prides itself on respecting and upholding individual rights, especially as we celebrate Heritage Month.
*Dr Khaya Gqibithole is a lecturer in the English Department at the University of Zululand
