Customary marriages are infamous for upholding patriarchal norms. Before South Africa became a constitutional state, customary marriages were recognised in the Black Administration Act 38 of 1927 (“BAA”), the Natal Code of Zulu law and the Transkei Act. Since 1996, section 15(3) of the Constitution of the Republic of South Africa authorises the legislature to pass legislation recognising customary marriages.

Under the BAA, customary marriages amounted to the wife or wives having minority status. Among other consequences, this gave women no capacity to enter into contracts and prohibited them from owning property.

The Recognition of Customary Marriages Act 120 of 1998 (“the Act”) came into effect on 15 November 2000. Customary marriages entered into before this date, including polygamous marriages, are still recognised as valid marriages. However, those entered into after this date must meet the requirements set out in section 2 of the Act to be deemed valid. One of these requirements is that the parties entering into a customary marriage must be over the age of 18. Parties younger than 18 may enter into a customary marriage with the consent of their parents or legal guardian, a minister or office in the public service authorised to give consent, or a judge.

The Act’s main objective is to correct the inequality set by any previous recognition of a customary marriage. Section 6, which stipulates that women are equal both in status and capacity, can be considered a direct attempt to reconcile section 15(3) and section 9 of the Constitution. While section 15(3) of the Constitution enables the legislature to recognise customary marriages, section 9 recognises that everyone is equal before the law. Furthermore, section 9 of the Act states that a woman gains majority status upon entering into a customary marriage or at the age of 21.

As a further step in recognising customary marriages and promoting equality in customary marriages, the legislature has passed an Amendment Bill in response to the Constitutional Court, deeming sections 7(1) and (2) of the Act to be unconstitutional in the matter of Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16) [2017] ZACC 41 (30 November 2017). Section 7(1) provides that “the proprietary consequences of customary marriages entered into before the commencement of this Act continue to be governed by customary law”. Under customary law, wives have no marital property rights. This means that women who entered into customary marriages before the Act was enacted in November 2000 still lack marital property rights.

In Ramuhovhi, the deceased had entered into polygamous marriages with three women as well as two civil marriages, one of which was terminated by divorce and the other declared null and void by the Supreme Court. His civil law wife who had had her marriage declared null and void claimed that a customary marriage was later concluded. The deceased left a will naming this wife as the executrix of the estate and his wife in community of property. The executrix was the registered owner of an undivided half share in immovable property. According to the will, all his wives and children were to benefit from the deceased’s half share.

The deceased’s children challenged the constitutional validity of section 7(1) on the basis that it unfairly excluded their mothers from ownership of the estate accumulated by the deceased. They asked the court to declare the executrix’s half share invalid.

The court found that section 7(1) of the Act was discriminatory on the basis of gender, race, and ethnic or social origin as it inexplicably perpetuates inequality between husbands and wives in both monogamous and polygamous marriages that were concluded prior to the enactment of the Act. Furthermore, section 7(1) is in direct conflict with section 9(3) of the Constitution. The Constitutional Court held that the discrimination was unjustified and therefore deemed section 7(1) to be inconsistent with the Constitution.

The court gave Parliament 24 months to change legislation and bring it in line with the Constitution. However, the interim remedy for the legislative shortfall would be that husbands and wives in polygamous marriages concluded prior to the enactment of the Act must equally share rights of ownership, management and control of marital property.

In July 2019, the Recognition of Customary Marriages Amendment Bill was approved by Cabinet. The Bill aims to eliminate the gender-based discrimination that seems to have formed the foundation of both polygamous and monogamous marriages entered into before the Act came into effect. As a result of the Bill, spouses in customary marriages will now have joint and equal proprietary rights over marital property, with husbands no longer enjoying exclusive rights. Furthermore, children will now be able to inherit from their mothers.

2019 marks a quarter of a century of democracy in South Africa. As such, the Bill brings the Act in line with South Africa’s ideals of an equal society. It does away with old practices that removed the autonomy of women in customary marriages and adequately sets out to address the fact that women and children are left in a vulnerable position when a spouse passes away. The Bill sets out to empower women and give them autonomy in their marriages and at the death of their spouses. It is a positive step forward in creating a non-discriminatory and equal society for all.

By Nobuhle Sibiya

LindsayKeller candidate attorney