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Marriage and Extra-Marital Sexuality: The Dialectics of Legal Change among the Kgatla

Published online by Cambridge University Press:  28 July 2009

John L. Comaroff  and
Simon Roberts
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Extract

In paying tribute to the pioneering work of Isaac Schapera on Tswana law we return to one of his earliest and possibly least quoted studies, “Premarital Pregnancy and Native Opinion: A Note on Social Change-”, and explore the recent transformations which have characterised the perception and management of extra-marital sexuality among the Kgatla. We shall suggest that these transformations are the product of a wider process: namely, the spread of monogamy within a society organised in terms of the assumption of polygyny. In doing so we shall seek to demonstrate that the analysis of one substantive problem in the field of legal anthropology may illuminate a number of fundamental social principles.

Type
Research Article
Information
Journal of African Law , Volume 21 , Issue 1: SPECIAL NUMBER IN HONOUR OF ISAAC SCHAPERA , Spring 1977 , pp. 97 - 123
Copyright
Copyright © School of Oriental and African Studies 1977

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References

1 (1933) 6 Africa 59–89, hereafter cited as Schapera 1933.

2 On the contemporary incidence of polygyny in the Kgatleng see: , Schapera, “The Social Structure of the Tswana Ward”, (1935) 9 Bantu Studies 203–234;Google Scholar, Schapera and , Roberts, “Rampedi Revisited: Another Look at a Kgatla Ward”, (1975) 45 Africa 258–279.Google Scholar

page 98 note 1 Schapera 1933, at pp. 64–68.

page 98 note 2 Schapera 1933, at pp. 68–70.

page 98 note 3 , Schapera, A Handbook of Tswana Law and Custom, London, 1938, pp. 130–134.Google Scholar

page 98 note 4 The available evidence suggests that the Kgatla seldom tolerated enduring or explicit informal associations; a couple could not set up an autonomous household without the approval of their respective kinsmen, an approval which would have brought the relationship within the ambit of marriage (see below).

page 99 note 1 See “The Social Structure of the Tswana Ward” cited in footnote 2, page 97 above.

page 99 note 2 Ibid.

page 100 note 1 This rule concerning compensation was announced by Linchwe I, probably in 1909. It is not clear, however, whether it represented the formalisation of an existing practice or an entirely new piece of legislation. The difference is held to be significant by the Kgatla themselves: the latter requires an official pitso (public assembly) in order to be recognised; whereas the former may occur in the context of everyday kgotla meetings and hearings.

page 100 note 2 We are grateful to Professor Schapera for making this unpublished case record available to us.

page 101 note 1 See “Rampedi Revisited: Another Look at a Kgatla Ward”, cited in footnote 2, page 97 above.

page 101 note 2 See “The Social Structure of the Tswana Ward” cited in footnote 2, page 97 above.

page 102 note 1 The register of the Chief's kgotla at Mochudi indicates that women appeared without supporting agnates in only four of the thirty-five cases involving pregnancy claims heard between 1955 and 1970.

page 104 note 1 This case history is compiled from accounts given by Kgatla and Tlokwa informants to Roberts during February, 1973, and from the record of the dispute heard by the Chief's kgotla at Mochudi (No. 3 of 1961).

page 107 note 1 This case history is based on accounts given to Roberts by members of the Tlagadi kgotla in February, 1973; and upon the case record at the Chief's kgotla (No. 26 of 1963).

page 108 note 1 This case is documented as No. 9 of 1962 at the Mathubudukwane ward kgotla, and as No. 43 of 1962 at the Chief's kgotla. Mokoke's statement quoted in the text is a verbatim record of the substance of his judgment.

page 108 note 2 Again here the relationship between the definition of marriage and extra-marital sexuality provided the context of argument and judgment. That Legwale saw the case as one involving marital breakdown is further indicated by the fact that he appears to have reported it to the Chief's kgotla, for appeal purposes, as Kgafela v. Kgafela; in other words, Leruarua's married name was entered. We reserve discussion of this question for the next section, however.

page 109 note 1 Case No. 103 of 1963 at the Chief's kgotla, Mochudi. Roberts also discussed this case at length with Amos Pilane and many Kgatla informants, including Mokgatle.

page 110 note 1 It should be noted that here again a particularly large order is used to demarcate a normative innovation.

page 111 note 1 Case No. 51 of 1965 at the Chief's kgotla, Mochudi.

page 112 note 1 See Sahlins, M., Culture and Practical Reason, Chicago, 1977, for a recent exposition of the relationship between cultural logic and historical process.Google Scholar

page 112 note 2 See, for example, those contained in Krige, E. J., and Comaroff, J. L. (eds.), Essays on African Marriage in Southern Africa (forthcoming). Particularly, those by Sansom on the Pedi, Murray on the Sotho, Wilson on the Xhosa and Krige on the Lovedu.

page 113 note 1 This is discussed in detail in Roberts, S. A., “The Kgatla Marriage: concepts of validity” in Roberts, S. A. (ed.), Law and the Family in Africa, The Hague, 1977;Google Scholar Comaroff, J. L., and Comaroff, J., “The Management of Marriage in a Tswana Chiefdom” in Krige, E. J., and Comaroff, J. L. (eds.), ibid.; Comaroff, J. L., “Bridewealth and the control of Ambiguity in a Tswana Chiefdom” in Comaroff, J. L. (ed.), The Meaning of Marriage Payments (forthcoming). We have also devoted a chapter to the subject in a volume on Tswana law which is currently in preparation. The present description is a brief, and less than adequate, summary of these analyses. For present purposes, however, we are compelled to treat these issues as established elsewhere.

page 114 note 1 Recent analyses—e.g. those of Webster (Chopi) and Murray (Sotho) in Krige, E. J., and Comaroff, J. L. (eds.), ibid.—confirm that the definitional ambiguity may be a more common feature of marriage systems than is often supposed.

page 114 note 2 The tendency to view definitional ambiguity as a transient phase of the marriage process (and, therefore, as being of secondary significance) is widespread. Of course, this may empirically be the case, as Kuper, A., in “The Kgalagari and the jural consequences of marriage”, (1970) 5, Man (N.S.), 466–82, suggests for the Kgalagari. However, there is a danger in applying western folk models uncritically and assuming that ambiguity must be removed at some point; indeed, this assumption may have led researchers to “discover” jural definition where it does not in fact exist. But, more immediately, it has led to a serious reduction: the pretence that ambiguity need not be explained at all. While we do not seek to explain it here—for present purposes, establishing its presence is sufficient—attempts are made in the references quoted in note 1 on page 113 above.

page 115 note 1 See Comaroff, J. L., and Comaroff, J., loc. cit.

page 116 note 1 See for example, Barth, F., “Descent and Marriage Reconsidered” in Goody, J. (ed.), The Character of Kinship, London, 1973;Google ScholarMurphy, R. F., AND Kasdan, L., “The Structure of Parallel Cousin Marriage”, (1959) 61 American Anthropologist 17–29, and “Agnation and Endogamy”, (1967) Southwestern Jnl. of Anthropology 23.Google Scholar

page 116 note 2 Cf. Peters, E. L., “Aspects of Affinity in a Lebanese Maronite Village” in Peristiany, J. (ed.), Mediterranean Family Structures, London, 1977.Google Scholar

page 116 note 3 See Comaroff, J. L., and Comaroff, J., loc. cit.

page 117 note 1 For a full discussion of the relationship between political competition amongst agnates and the manipulation of rank, see Comaroff, J. L., Competition for Office and Political Processes among the Barolong boo Ratshidi. Unpublished Ph.D. thesis, University of London. Although it concerns a different chiefdom, the processes described in that account are broadly similar to those with which we are concerned here.Google Scholar

page 117 note 2 Particularly when seniority among a man's sons determined access to a position of authority, the matrilateral kinsmen of the heir could attain a position of considerable influence; for mother's brothers tend to become close advisers of any office-holder. Therefore, the agnatic kin of a woman who was recognised as principal wife could have much to gain from her rank.

page 118 note 1 Of course, a man may sometimes find it difficult to withdraw, due to pressures exerted by the woman herself or her kin. Under these conditions, he must either face a law suit or cease his efforts to maximise in the field of marriage.

page 119 note 1 If cohabitation was not construed by the woman as following upon a promise of marriage (and, therefore, her acceptance that a legitimate union was about to be formed), she had no normative basis for her claim. Hence, in all the relevant disputes, such a promise was invoked and the marriage process held to have been aborted prematurely by the man. That the chiefs accepted this reasoning is clear from the earlier case histories.