Picture source: Gallo Images/Getty
The Recognition of Customary Marriages Amendment Act 1 of 2021 (the RCMAA) came into operation on the 1 June 2021. It amends s 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (the RCMA) following the Constitutional Court (CC) judgments in Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC) and Ramuhovhi and Others (Maphumulo as Intervening Party) v President of the Republic of South Africa and Others (Trustees of the Womens’ Legal Centre Trust as amicus curiae) 2018 (2) BCLR 217 (CC).
Section 6 of the RCMA provides that ‘a wife in a customary marriage has on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law’.
However, s 7(1) of RCMA provided that the proprietary consequences of a customary marriage entered into before the commencement of the Act (hereafter, old marriages) continued to be governed by customary law.
Section 7(2) sought to only regulate post-Act customary marriages (hereafter, new marriages) as being in community of property unless agreed otherwise (for example, by means of an antenuptial agreement).
Therefore, s 7(1) discriminated against women married prior to the commencement of the Act. Section 7 was a contradiction of s 6 of the RCMA because s 6 gives equal status to spouses but s 7(1) took it away by implying that the property of women in ‘old’ customary marriages would continue to vest in their husbands. As a result, several legal scholars criticised this discrimination.
JM Pienaar asserted that, despite a husband and wife being granted equal status in s 6, the proprietary implications that had previously disempowered women remained unaltered for ‘old’ marriages that constituted the majority of customary marriages (JM Pienaar ‘African customary wives in South Africa: Is there spousal equality after the commencement of the Recognition of Customary Marriages Act?’ (2003) 14 Stellenbosch Law Review 256 at 264). As a result, Pienaar found the continued regulation of ‘old’ customary marriages by customary law, to have had an extremely negative impact on the position of women and considered it imperative for s 7(2) to be amended in order to similarly place women in ‘old’ customary marriages in the same proprietary position as those in ‘new’ marriages (Pienaar (op cit) at 271).
Thus, s 7(1) and (2) of the RCMA had disregarded many women who were already in customary marriages, as it only changed the proprietary position of post-Act customary marriages. As a result, these two provisions were constitutionally challenged in the Gumede (for pre-Act monogamous customary marriages) and Ramuhovhi (for pre-Act polygamous customary marriages) cases.
In the Gumede case, Mrs Gumede and her husband concluded a customary marriage in 1968 that lasted for over 40 years. During the marriage, Mrs Gumede maintained the family household and children as her husband did not permit her to work (paras 6 – 7).
Before their divorce was granted, Mrs Gumede challenged first, s 7(1) of the RCMA that provided that ‘the proprietary consequences of a customary marriage entered into before its commencement continued to be governed by customary law’. Secondly, she challenged the two provincial statutes (KwaZulu Act on the Code of Zulu Law 16 of 1985 and Natal Code of Zulu Law (published in Proclamation R151 of 1987)) that provided that the husband is the family head and owner of all family property, which he may use in his exclusive discretion. The interpretation of these codified provincial Acts meant that a wife in an ‘old’ customary marriage did not have any claim against the family property during or on the dissolution of the marriage (para 11). The parties in this case were subject to the KwaZulu Act which applied where they were domiciled and this codified customary law subjected a woman married under customary law to the marital power of her husband, who was the exclusive owner and had control over all family property (para 33).
The CC confirmed the High Court’s decision that both the codified customary laws namely, the KwaZulu Act and Natal Code, were discriminatory on the listed ground of gender (para 34). This was based on the fact that these provisions discriminated between a wife and husband by subjecting only the wife in a customary marriage to unequal patrimonial consequences and also, the RCMA differentiated between a customary wife who was married before and after the Act (para 34). Therefore, the court held that the impact of the discrimination in s 7(1) and (2) is that it considered Mrs Gumede together with other customary wives married prior to the commencement of the Act as ‘incapable or unfit to hold or manage property’ and this excluded them from economic activities in ‘economic activity in the face of an active redefinition of gender roles in relation to income and property’ (para 35). Henceforth, the court found the codified customary laws governing marriages concluded prior to the enactment of the RCMA to strike at the very heart of the protection of equality and dignity that the Constitution affords to all, including women, as this marital property system rendered ‘women extremely vulnerable by not only [depriving] them of their dignity but also rendering them poor and dependent’ (para 36). The court held that the complete exclusion of a customary wife in the owning of ‘family property unashamedly demeans and makes vulnerable the wife concerned’. Thus, it is discriminatory and unfair (para 46). Consequently, the High Court’s order that the impugned provisions regulating the patrimonial consequences of ‘old’ customary marriages unfairly discriminated against women on grounds of gender was confirmed by the CC (para 49).
However, despite the court confirming the invalidity and unconstitutionality of the provisions impugned by the court a quo, it was held that such invalidity is limited to monogamous customary marriages, and it does not extend to pre-Act polygamous marriages. The court decided that ‘polygamous [marriages] will be regulated by customary law until parliament intervenes’ (para 56). One cannot help but wonder whether the court’s hesitance in extending the same protection to polygamous marriages could have been because it foresaw the possible practical problems that may ensue when attempting to apply an in community of property system to polygamous marriages. The Ramuhovhi case later dealt with the discrimination insofar as it pertains to pre-Act polygamous marriages.
In this case, the applicants were children of the deceased, their father was deceased and had been married to their respective mothers in terms of Venda customary law. As a result, the Venda customary law was applicable by virtue of s 7(1) of the RCMA.
In the court a quo, the applicants argued that due to the applicable Venda customary law and the application of s 7(1) that subjected pre-Act customary marriages to customary law rules, their mothers (customary wives) were excluded from ownership of the estate amassed by the deceased. It was submitted that this discrimination caused prejudice to the deceased’s customary wives and children. As per the Venda customary law, the rights or control over marital property could not vest in the hands of wives (para 9).
The High Court found women in polygamous marriages to be continuously excluded from the management, control, and ownership of marital property. Section 7(1) of the RCMA was found to be discriminatory on grounds of gender, race, ethnic or social origin, insofar as it excluded women in polygamous marriages from the protection afforded to women in monogamous marriages (para 9).
The CC similarly found s 7(1) to first, unfairly discriminate against women in ‘old’ polygamous customary marriages, and secondly, to be inconsistent with the relevant human rights instruments and constitutional provisions of equality and dignity. It stated that ‘not owning or having control over marital property renders wives in pre-Act polygamous marriages particularly vulnerable and at the mercy of husbands’ (para 42).
The court held that the effect of s 7(1) was that it perpetuated inequality between husbands and wives in pre-Act polygamous customary marriages, which is what ss 6 and 7(6) aim to completely end (para 35). Since this perpetuation of inequality was considered to be similar to that of pre-Act monogamous customary marriages as per the Gumede decision, the court’s reasoning had to apply equally to pre-Act polygamous customary marriages (para 36). This discrimination was found to violate women’s right to dignity for being considered unfit to manage property as their husbands (para 38). Section 7(1) was found to limit the right to ‘dignity and the right not to be discriminated against unfairly’ (para 43).
The CC granted an interim order until the legislature intervenes and decided that both the husband and wife would have a joint and equal right to manage, control and own the house, whereas the husband and all wives will exercise joint control, management and ownership over the family property (para 71).
Therefore, s 7(1)(a) of the RCMA now regulates the ‘proprietary consequences of a customary marriage … entered into before the commencement of this Act’ by bestowing parties with joint and equal ownership to, and rights of management and control of, marital property.
Currently, ‘customary marriages … are automatically in community of property’ provided there is no antenuptial contract stating otherwise (para 31). Prof Papa Maithufi opined that an automatic community of property system in customary marriages may be contrary to the intention of the parties. This is because the parties may intend to conclude an antenuptial contract after the delivery of lobolo or transfer of the bride, when it is clear that the parties will conclude a customary marriage. The parties may find it too early to register their antenuptial contract before the marriage, so that they can avoid financial costs of an antenuptial contract should the marriage not be concluded. One solution may be to allow parties a period of three months to regulate their matrimonial property system after the delivery of lobolo, failing which an in community of property regime will automatically apply to their marriage (Aubrey Manthwa ‘Lobolo, consent as requirements for the validity of a customary marriage and the proprietary consequences of a customary marriage – N v D (2011/3726) [2016] ZAGPJHC 163’ (2017) 38 Obiter 438 at 443 – 444).
The RCMAA replicated the Ramuhovhi decision by providing terms such as ’”joint and equal” ownership and rights of management and control’, without explaining the terms or expanding on what the court granted as interim relief (Fatima Osman ‘The recognition of Customary Marriages Amendment Bill: Much ado about nothing?’ (2020) 137 SALJ 389 at 396). The provisions are unpalatable because of the failure to articulate the parameters of parties’ rights, the consequences of the exercise of rights to property, and an explanation of how the order operates within the current marital proprietary regimes (Osman (op cit) 396). It, therefore, remains unclear whether the order created a community of property regime with several parties and whether parties have an undivided third or quarter share in the joint estate (Osman (op cit) 396).
Osman showed concern about the implementation of the Recognition of Customary Marriages Amendment Bill B12 of 2019 (now the RCMAA), in that the legislature failed to engage and clarify how contemporary assets (such as pension money, provident fund money or commercial property) would be classified (Osman (op cit) 402). This would result in courts having to classify property or individual’s claims to property based on outdated official definitions of customary property. For example, house property was historically defined to include the earnings of the various members of the household, but currently, it will be absurd and unconstitutional for an individual’s earnings to be owned, managed, and controlled by the married couple of the house (Osman (op cit) 403).
In conclusion, it is disappointing that it took more than 20 years for the amendment of the RCMA to take place despite the fact that its proprietary provisions had not sufficiently protected women in ‘old’ customary marriages. However, the amendment has successfully attempted to address the historical injustices faced by women and it is expected of the legislature to engage further on certain issues that remain unclear and unresolved.
Nozipho Lethokuhle Ndebele LLB LLM (Private law) (UFS) is an LLM graduate in Cape Town.
This article was first published in De Rebus in 2022 (Oct) DR 10.
