discriminates in the exercise of the right to culture is therefore unconstitutional.
Such a discriminatory provision may nevertheless be lawful however, if it can be brought under the limitation clause in s 36(1) FC, where courts can limit the right to gender equality if it is ‘reasonably justifiable in a democratic society’. In this matter the South African courts, like in the case of Dow v Attorney General, should take the stand that the constitution shall be interpreted in compliance with international human rights law. Art 2, 5 and 15 of CEDAW, for instance, directly direct states parties to accord equal legal capacity for men and women and take appropriate measures to modify or abolish customs that discriminate women. The argument that discrimination on grounds of gender can be held to be reasonably justifiable in a democratic society shall therefore be dismissed, or the courts will violate international human rights law.
This thesis sympathises with the understanding of culture as a constantly evolving, dynamic body that is continually in a process of contestation, rather than a uniform and static one. Cultural values in a particular era are challenged by up-springing sub-cultures which question the dominant cultural norms. Culture can therefore not be seen as a given factor but rather as a creative process of social and economical relationships open to opportunistic manipulation. The subordinate position of women in customary law can be seen as one example of such manipulation. Consequently there lies a danger in accepting values, practices and arguments merely on the basis of their claim to a traditional, cultural pedigree. Furthermore the customary law conflict needs to be reconceptualised. It is not a struggle between the rights to equality and culture in the sense that one value has to win out. Rather it is an intra-cultural conflict between different interest groups battling to alter power relations within their very culture – a dynamic culture that is constantly changing.
One indication that these power relations are changing, at a formal level at least, in the direction of empowering women is the RCMA. This Act can also be seen as part of the answer to the last question posed in the introduction: What is being done to improve the status of women in customary law? The former non-recognition of customary marriages on the basis of their potentially polygamous nature had the effect that persons married under customary law were not legally regarded as husband and wife. Consequently they could not owe each other a duty of support, their children were regarded as illegitimate and if a man concluded a civil marriage with another partner during the subsistence of a customary one, it had the effect of automatically discarding the first wife and children. The RCMA aims at changing this relationship by harmonising African customs and tradition with the constitutional commitment to gender equality. It gives women married in customary law equal status with their husbands, capacity to contract and litigate in court and the right to acquire and own property. It recognises both monogamous and polygynous marriages as valid. In polygynous marriages the consent of the previously married wives is a requirement before the husband can marry a new bride. The Act works retrospectively and thus !77