Since the promulgation of the Constitution of the Republic of South Africa, 1996, our country has been declared to be a democratic state and in remedying the previous discrimination and distinctions drawn between various groups of people, certain sections in the Constitution as well as other Acts giving effect to the Constitution have been introduced. An example is s 211 of the Constitution, and this section provides that customary law and civil law have equal footing and standing for those who subscribe to them, and none is superior to another.
The Recognition of Customary Marriages Act 120 of 1998 (RCMA), which was promulgated in 2000 demonstrates s 211 of the Constitution insofar as customary marriages of the indigenous people of South Africa are afforded the same protection and validity as civil marriages, which were previously accepted to be superior and the only legally recognised marriages in South Africa. The RCMA recognises customary marriages that were entered into prior to the promulgation of the Act as well as marriages that are entered into after the commencement of the Act, and certain elements of the Marriage Act 25 of 1961, apply mutatis mutandis to customary marriages.
Section 10(2) of the RCMA seems to undo the above and has far-reaching consequences that are illegal, unenforceable and contrary to public policy. It is not clear what the legislature’s intention in the insertion of s 10(2) was. However, it contradicts s 211 of the Constitution and infringes several of the constitutional rights envisaged in the Bill of Rights as well as undermining statutes such as the Marriage Act, Matrimonial Property Act 88 of 1984 (MPA) and Divorce Act 70 of 1979, among others. This section provides that parties to a monogamous customary marriage are allowed to convert their marriage into a civil marriage, which will thereafter be governed by the Marriage Act.
This conversion and/or substitution of a customary marriage for a civil marriage seems to envisage the parties simply abandoning the customary marriage and entering into a civil marriage, which will thereafter be their recognised marriage. This is incorrect because it leads to the dissolution of the customary marriage without a divorce and there is no division of the joint estate (where the customary marriage was in community of property), and in case where the substituted marriage also alters the matrimonial regime (whether from in community of property to out of community of property or vice versa), s 21 of the MPA is not used, and the section exists to bridge such changes in a legally acceptable manner, giving proper notice to the parties’ creditors and other interested parties and ultimately, the courts giving direction and order to change applicable the marital regime.
This section of the RCMA takes away the powers of the courts, the rights of creditors and gives them to the parties of the customary marriage with no legal basis to do so, which undermines all other marriages which are obligated to go through the courts to terminate their marriage or in cases of alteration of the marital property regime applicable. Section 10(2), therefore, conflicts on the right to equality, unfairly discriminates on other types of marriages on the grounds of marital status, gender, sexual orientation and religion.
In the recent case of JRM v VVC and Others (Pretoria Attorneys Association as Amicus Curiae) [2024] 3 All SA 853 (GP), the Gauteng Division of the High Court in Pretoria had to give judgment on whether the parties were married in terms of customary or civil law. The parties concluded a customary marriage without an antenuptial contract in 2011 and were, therefore, married in community of property (as this is the default position), and approximately eight years later, the parties concluded an antenuptial contract with the inclusion of the accrual system, such contract was registered, and the parties were thereafter married in a civil marriage in 2021. The marriage eventually broke down and in the divorce proceedings, the husband argued that the spouses were married out of community of property in a civil marriage while the wife disputed the validity of the antenuptial contract and subsequent civil marriage insofar as the intention of the marriage was to defraud her of her right to claim her half share of the joint estate which existed in the customary marriage, which was the marriage that should be recognised between them.
The husband relied on s 10(2) of the RCMA for the conversion of the customary marriage to a civil marriage. The wife argued that without a division of the joint estate, the antenuptial contract entered into essentially vested all of the assets in the husband as he had majority of the assets, and she would no longer have a claim to her half share in the joint estate by the simple erasure of the customary marriage which was in community of property. This section demonstrated in this case, that women continue to be the poorer spouse in the marriage and further marginalizes them in favour of the husband, an issue that the Constitutional Court (CC) has addressed in Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) that such a position should not be perpetuated by statutes but must endeavour to remedy and reduce the gap, especially where black women are concerned, who are considered to be the ‘marginalised of the marginalised’ (EB (born S) v ER (born B) and Others and a related matter 2024 (1) BCLR 16 (CC)).
Another issue that arose before the Pretoria High Court was the nature of the contract entered into between the parties prior to the conclusion of the civil marriage and the question is whether such a contract amounts to an antenuptial contract or a postnuptial contract. In the case of an antenuptial contract, the legal force and effect thereof takes off on the conclusion of a marriage but the contract must be signed and executed prior to the conclusion of the marriage. This would mean that the contract in this case was unenforceable insofar as the contract was entered into during the subsistence of the customary marriage, there was no formal dissolution of the customary marriage and the parties were already married under a different marital regime that had opposite consequences. The court held that there is a possibility that the execution and registration of an antenuptial contract had the effect of dissolving the joint estate and allocating the assets therein to the party who introduced the assets in the joint estate, this argument is misguided insofar as an antenuptial contract does not hold more validity than an existing marriage, such a contract is null and void and it is impossible to separate the assets of a joint estate by the mere existence of an antenuptial contract.
Regarding the law relating to a postnuptial contract, parties who are already married, whether in or out community of property, may apply to the High Court for a change of their marital regime and may do so once the court has given an order to change the marital regime to one out of community of property, including the registration of a postnuptial contract, which may thereafter be entered into and registered with the relevant Registrar of Deeds. In this case, the parties were already married and were entitled to approach the court to request a change of the matrimonial property system applicable in terms of s 21 of the MPA and confirmed in Honey v Honey 1992 (3) SA 609 (W), and could thereafter enter into a postnuptial contract on the strength of the court order and thereafter would have been married out of community of property in a customary marriage, and such a court order and postnuptial contract would have dealt with the division of the joint estate in a manner that benefits both spouses.
In this case, it is clear that the parties failed to enter into an antenuptial contract or obtain the necessary directions to enter into a postnuptial contract, and therefore, the civil marriage should fail due to a lack of a legally recognised matrimonial property regime as well as the substitution of a customary marriage for a civil marriage. In the judgment handed down on 10 June 2024, the court found that the parties are married in community of property to each other in terms of the customary marriage, and further declared s 10(2) of the RCMA to be unconstitutional and will be referred to the CC for confirmation.
In conclusion, it is not clear what the legislature intended with s 10(2) of the RCMA but the facts of JRM v VVC have opened a can of worms and demonstrated that certain groups of people could be above the law and simultaneously usurp the powers of the courts and enforce them themselves, and this is a stark contrast of the values of the rule of law together with the checks and balances on which the Constitution has laid its foundation. The views of the CC are heavily anticipated on whether the court will confirm the invalidity of s 10(2), which, unlike other statutes, was drafted and promulgated within the constitutional advent.
Vuyo Sobantu LLB (UKZN) is a legal practitioner at Stowell and Co Inc in Pietermaritzburg.
This article was first published in De Rebus in 2024 (November) DR 18.
