Before the establishment of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), there were many controversial and unequal positions regarding the position of women in a customary marriage. This however, does not imply that the RCMA alleviated all the inequalities, despite its aim to do so.
What is a Customary Marriage?
In South Africa a customary marriage is understood as being entered into in accordance with the traditions and customs of indigenous African customary law. There exist certain requirements that must be complied with in order to conclude a valid customary marriage; while a civil marriage is seen as a marriage concluded between 2 parties, and must be monogamous in order to be valid, customary marriages differ as polygamy is permissible. A customary marriage is not only concluded between 2 individuals, but also extends to their respective families. Unlike civil marriages, customary unions occur gradually and are not concluded by single event such as a ceremonial signing of an official document. Thus, a marriage in terms of customary law is a familial matter which does not require the approval of an officiator in order to be regarded as valid.
Despite its aims of legislating customary marriages, the RMCA has received much criticism and has been highly problematic in its application, particularly with concern for its impact on women who enter into customary marriages. The following sections outline the evolution of customary law legislation in South Africa, and presents a critique of the Act with respect to its impact on gender equality and the rights of women.
Origins and Evolution of the Recognition of Customary Marriages Act (1988)
Before the new 1996 Constitutional dispensation, legislation for customary marriages was already in place. A woman in a customary marriage was deemed to be a minor, and of a lower status than her husband and she was thus subject to his marital power. This was the position in terms of section 11(3) of the Repeal of the Black Administration Act (BAA), section , and the Natal Code of Zulu Law of 1985. The BAA applied to customary marriages only, and as result, in terms of the position for African women, it placed prohibitions on property which could be owned. This resulted in the women being unable to acquire credit, they would have limited contractual capacity and limited access to courts. Later, Section 11A was incorporated into the BAA and although it improved the legal position of women in terms of their legal capacity to acquire leasehold and ownership, it did not extend to their legal status. An attempt to better the position was made in both Zulu Codes which stated that women over the age of 21 were considered legal majorities. However, Section 27(3) of the Natal Code (1985) complicated the position by stating that a married woman is subject to the control of her husband. So even though she could be seen as a legal adult, she again acquired the status of a minor upon marriage. The Transkei Act was enacted to recognise both customary and civil marriages, however, marital power in terms of civil marriages was abolished in 1999 in Prior v Battle.
It is clear that the legislative framework had the consequence of encouraging the ‘patriarchy principle’ (the notion that men are privileged over women) by affording senior men control. It became apparent that there was a dire need for law reform, which began when the new Constitution came into effect in 1996. In terms of section 15(3) of the Constitution of the Republic of South Africa (1996), the parliament was authorised to pass legislation which would recognise customary marriages. Further, a duty was placed on the government to promote and encourage diversity in terms of culture and religion and to eliminate laws that discriminated against customary marriages.
The purpose of the RCMA, passed in 1988, was to improve the position of women by using measures that brought customary law in line with the provisions of the Constitution as well as South Africa’s international human rights commitments. It is evident that the main objective is to improve the position of women; whereas before, women were considered subordinate and inferior, the new legislation (section 6 of the Act) expressly states that women in a customary marriages are on equal footing with their husbands in both status and capacity.
However, despite intentions of the RCMA, there are inconsistencies and uncertainties with regards to the position of women in customary marriages in the Act. The RCMA has thus not been successful in reconciling the equality clause in terms of the Constitution on the one hand, and the customary law which governs a customary marriage on the other.
Critique of the RCMA
As it was previously stated, section 6 of the Act provides for equality among both parties to a customary marriage. This was further improved by section 9, which provides for the application of the Age of Majority Act. This Act states that upon reaching 21 or entering into a civil or customary marriage, a woman becomes a major. Formally, these sections appear to remove the inequality to some extent. This is due to the fact enacting a law which states that the husband and wife has equal status, and actually obtaining this in practice are often not a matter of simple implementation. In rural areas, for example, where husbands are absent, the woman still has the power to sell livestock - which in the past could only be done with her husband’s consent. Unfortunately, while this knowledge would be useful to women, the law and its amendments is not much publicised, therefore rendering it beneficial only if women in customary marriages were aware of it.
Another aspect that requires clarity is the position of wives in customary versus polygamous marriages, and whether their respective status’ are considered equal. In the Act, the words “in addition to any rights that she may have at customary law” have been contentious .This is due to the fact that they have different statuses and ranks in the marriage thus there are different interpretations to this issue. It could be that because all the wives have the same legal status as their husband, there is no subsequent distinction in terms of rank. Another possibility could be that even though the section provides equality, the words, could imply that the status of each wife is maintained.
It is the opinion of some authors that this section does not come close to the social reality. There is nothing which states that the section is to be applied retrospectively and as a result, it must be accepted that this is the case. Women would only therefore be in control and have ownership over assets personally acquired after the commencement of the Act.
Another problematic aspect afforded by this section is that the RCMA uses the term ‘polygamy,’ referring to cases in which both a husband and wife is allowed to have multiple partners. The Act, however, only permits the husband to have multiple wives. If the RCMA were to be applied in line with the equality status afforded by section 6 then it would consequently mean that women would also be entitled to have more than one husband.
4.2 Matrimonial system governing the marriage
Before the RCMA commenced, the patriarch had effective control over the family, land and in some instances, personal property. This had a detrimental effect on women in general and wives in particular. Women were granted only the right to prevent their husbands from moving property from the house if it was not substantiated with a good reason. The RCMA thus now provides 3 possible matrimonial systems which could be applicable. Firstly, in community of property and of profit and loss; secondly, out of community of property with the accrual system and thirdly, out of community of property without the accrual system. In terms of application, any of these 3 matrimonial systems would be suitable to a marriage that is monogamous but only the last possibility would be suitable in the event of a polygamous marriage.
In terms of section 7(1) the RCMA provides the traditional patrimonial system for all marriages entered into before the Act came into operation. This evidently means that where the marriage was concluded before the Act commenced, the traditional customary law will be applicable. However, section 7(4) does afford a certain level of protection where the spouses in a customary marriage concluded before the commencement of the Act. They may apply jointly to a court for leave to change the matrimonial property system that applies to their marriage, subject to certain satisfactions of the court. Even though this possibility exists, it is seldom that spouses use this; spouses are required to apply jointly, and in certain cultural contexts it may be difficult for a wife to persuade the husband to let go of his control and sole discretion in the marriage. Furthermore, the application process is expensive and where there exists a lack of information and education, it makes this option in accessible to those who it was intended to help.
Section 7(1) becomes problematic when considering that even though section 6 affords equal status, the proprietary implications are not altered with respect to customary marriages which have been concluded before the commencement of the Act. This indicates that the drafters of the RCMA had the opportunity to equalise the position before and after commencement and failed to do so. This is due to the fact that women are given equal status in terms of section 6, but section 7 excludes them from exercising their right in terms of section 6 as the marriage is regulated by traditional customary law.
This conflict was settled in Gumede v President of the Republic of South Africa wherein the court held that section 7(1) was discriminatory and stated that all monogamous customary marriages are marriages in community of property. It is clear that this position stands only in terms of monogamous marriages, thus the conflict between section 6 and polygamous marriages still remain. The RCMA also states that the polygamous marriages will be “governed by customary law” but it does not clarity and provide guidelines as to what exactly a customary law marital property system consists of.
4.3 Registration of the marriage
Section 4 of the RCMA places a duty on the spouses to a customary marriage to register their marriage within the specific time period. However, it further states that upon failure to do so, the validity of the marriage will not be affected. This indicates a contradiction which has the potential to render the compulsory aspect of the provision ineffective. It is seen that the registration process was intended to be purely administrative but in practice, it is the deciding factor as to whether the customary marriage is considered valid. By way of example, it would not be possible to make claims for benefits or divorce if the marriage is not registered irrespective of the fact that there is a provision in the RCMA which states that no link between registration and validity exists.
In Baadjies v Matubela, the court dismissed the application for maintenance due to the fact that the applicant was unable to provide a certificate proving the registration of their customary marriage. The same occurred in the case of the Road Accident Fund v Mongalonkabinde, which stated that a marriage certificate would be conclusive proof of a customary marriage.
The crucial problems with the registration of the marriage is the impact that this provision has on women. The RCMA states that either spouse can apply, although in practice the registering officers require both to be present. Case studies have shown that this has been difficult to implement, as a woman will be refused a divorce application, for example, if her husband is not present. Thus, should a woman wish to apply for divorce on grounds of domestic abuse, the husband may complicate proceedings simply by not accompanying her for the application.
In Ngwenyama v Mayelane and Another , the Constitutional Court considered the issue arose when the wife wished to register a new marriage, but could not do so due to the fact that there was already a marriage that was registered between her deceased husband and another woman. The court held that the consent of the first wife is necessary for the validity of the second marriage. By requiring this, it affords the most meaningful way of protecting her rights in the marriage. It is clear that the decision is consistent with RCMA in terms of Section 6 and 7. However, the shortcoming of the decision was that the court only paid regard to the protection of the rights of the first wife and consequently disregarded the rights of the second wife. The competing rights of the two women should be balanced. One could argue that the reason is because the court does not consider the second wife to be a wife as there is no valid legal marriage. However, in terms of the constitutional rights of the women, this should be considered.
There is no reliable way for a woman to inform herself of the existence of a marriage before she enters into a marriage and it cannot be expected of the first wife to inform her either. Therefore, in terms of this decision by the court, the subsequent wives are disadvantaged and prejudiced. However, it was stated by the Court that whoever is married under customary law inevitably voluntarily places herself at legal risk.
It is clear that even though the RCMA was aimed at alleviating the issues of the past, it also brought along with it subsequent issues that places uncertainty on the interpretation and application of various of its provisions. This shows that there is a dire need for an amendment of the Act in order to address these uncertainties and contradictions, especially where women in customary marriages are concerned.