Modern Traditional Marriage and Matrimonial Regimes: The Legal and Practical Implications of the Recognition of Customary Marriages Act
‘Beyond the Constitution, the Recognition [of Customary Marriages] Act is the starting point of this equality analysis. It must be understood within the context of its legislative design. Its avowed purpose … is to transform spousal relations in customary marriages. The legislation not only confers formal recognition on the marriages but also entrenches the equal status and capacity of spouses and sets itself the task of regulating the proprietary consequences of these marriages. In doing so, the Recognition Act abolishes the marital power of the husband over the wife and pronounces them to have equal dignity and capacity in the marriage enterprise.’1
The Constitutional Court in the case, Gumede v President of the Republic of South Africa recognised that the introduction of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) was a monumental step in addressing gendered inequality within marriage, and the marital power of the husband, by providing for equality between spouses. Despite the RCMA being an elegant solution with the potential to safeguard women from many of the material difficulties inherent in polygamy, there is an equally high risk of the RCMA being a paper solution, which fails to provide relief to a sector of society with the least access to a court.2
According to Statistics SA, the number of customary marriages registered in 2013 was 3 498, which declined from a total of 4 555 recorded in 2012, and accounts for approximately 2.15 per cent of the total number of marriages registered (customary and civil) in 20133. It should be noted that although there are currently no accurate statistics pertaining to the number of unregistered customary marriages, it is reasonable to assume that some of the reasons that could be attributed to the dwindling number of registered customary marriages include the lack of knowledge and resources among the majority of rural and urban women to whom the RCMA would apply, as well as reports of the failure of officials of the Department of Home Affairs to assist members of the public to register their customary marriages because theyare not adequately informed of the terms of the RCMA.4
The Legal Resources Centre (LRC) has applied the RCMA to assist women who are spouses in polygamous customary marriages so that their patrimonial interests are secured, without negatively impacting on other spouses in the marriage. This article focuses on the case of Nxumalo v Mchunu, which illustrates the complexities associated with customary law litigation, as well as the practicalities of polygamous matrimonial property regimes.
One of the chief remnants of apartheid in South Africa is disrupted African family life. During apartheid, there was no complementary government policy on preserving African family life. The major priority was the prevention of further African urbanisation, while simultaneously ensuring that an adequate labour supply was available in the urban areas. The ‘influx control’ aim was to keep African families in the rural areas and to ensure that African labour only entered the cities on a temporary basis.5
Urban residential rights were granted in terms of the Blacks (Urban Areas) Consolidation Act 25 of 1945. In terms of this Act, where a couple wished to marry but the man did not have urban rights, the woman would legally lose hers if they married. Where a man had urban rights, his wife could only join him if he was born in a town/worked continuously in a town for more than 10 years or had approved accommodation in the area. The result was that many wives were prevented from joining their husbands, which resulted in many men entering into second or third marriages with women already residing in the cities.6
In terms of traditional customary law, upon marriage, a man was entitled to arable land and a residential site. The land belonged to the whole community; therefore he did not own it in a private law sense. He was only a ‘caretaker’ who administered it on behalf of all the family members. Registration of a marriage was not obligatory in rural areas as family elders were usually always available to testify to the celebration of a marriage. In the context of control of property residing with the family head, and the rejection of the private law property concept, it would appear that proof of the marriage was not integral for the purposes of specific benefits.7
One of the consequences of the codification of customary law was the creation of a new version of customary law which gave the husband absolute powers over the family property. He became the ‘owner’ of the property. As a result, the wife’s control and access to the family property depended on her husband alone and not the family or community.
The Black Administration Act codified the status of marital women as being a permanent minor. Her entire life was spent under the guardianship of her male relatives. The matrimonial regime that automatically applied to customary marriages was out of community of property, with the husband holding the marital power.8 The introduction of the KwaZulu Act on the Code of the Zulu Law9 slightly altered the position in favour of women’s rights by recognising women’s rights in terms of property, inheritance, succession and guardianship.
The misapplication of customary law in the previous dispensation, combined with increased urbanisation and economic and social transformation, sparked the legislature’s promulgation of the RCMA. The RCMA would purportedly recognise traditional African culture, and address the equality and proprietary rights of women in a customary marriage in a manner that was consistent with the spirit, purport and objects of the Constitution.
LITIGATION IN TERMS OF THE RCMA
The LRC has been involved in numerous cases that have aided women in customary marriages in accessing their right to the level of equality inherent in civil marriages. Most recently, the LRC obtained an order in the Durban High Court in the case Nxumalo v Mchunu and Four Others, which recognised the rights of a first wife in a customary marriage, whose husband entered into two other marriages subsequent to their marriage.
Two aspects of polygamous customary marriages under the RCMA will be discussed: firstly, the issue concerning the consent requirement by the first wife in order to assert validity of the second marriage, and secondly, the consequences that follow for failure to comply with the section 7(6) matrimonial property system contract.
NXUMALO v MCHUNU AND FOUR OTHERS
On 28 May 2012, SN married BM, a well-known KwaZulu-Natal radio DJ on a popular radio station. They were married at Nkandla by the Induna of the Cunu Traditional Council in accordance with Zulu customary law. Lobola had been negotiated and paid for in full before the ceremony took place. The ceremony included the “handing over ceremony” and was celebrated in accordance with customary law. In terms of Section 7(2) of the RCMA, ‘a customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses’ (unless such consequences are specifically excluded in an ante-nuptial contract).
Section 7(3) provides for the relevant sections of the Matrimonial Property Act 88 of 1984 to apply to a customary marriage, giving customary law wives equal standing as civil marriage wives.
The customary marriage between SN and BM was not registered with the Department of Home Affairs but, in terms of section 4(9) of the RCMA, this does not invalidate the marriage. At the time of the marriage, SN and BM already had two minor children together, and now have three children, aged seven-, six- and one years old.
When SN was pregnant with their third child, she found out that her husband had entered into a second customary marriage with another woman, LK. This ceremony was also held at Nkandla and entered into in terms of customary law, despite SN not having given consent. The second wife and BM have a two-year-old child together.
During October 2013, SN was informed by a third party, NM, that she too had married SN’s husband on 15 October 2014 at the Department of Home Affairs. This marriage fulfilled all the requirements of a valid civil marriage. It is uncertain whether the husband had any knowledge of the effect that this civil law marriage would have on his other marriages, but in the absence of a court order declaring otherwise, this marriage would effectively supersede both the first and second unregistered customary marriages (not unlike the position under The Native Administration Act10).
An application was launched in the Durban High Court for an order declaring that the second customary marriage and the civil marriage entered into by BM subsequent to his first marriage with SN, be declared invalid and void ab initio. LRC further requested that SN be entitled to register her customary marriage to BM with the Department of Home Affairs and that BM fulfil the requirements for a matrimonial contract as set out in Section 7(6) of the RCMA before any further customary marriages are entered into. Although the case was initially opposed by the third wife, she subsequently withdrew her opposition and the order was granted as prayed for. Both the first and second customary law wives were present in court on the date of the hearing in support of the application.
Section 3(2) of the RCMA is clear that a civil marriage cannot coexist simultaneously with a customary marriage unless the spouses are exclusively married to each other. It stipulates that ‘save as provided in section 10(1), no spouse in a customary marriage shall be competent to enter into a marriage under the Marriage Act, during the subsistence of such customary marriage’. In terms of section 10(1), when there is only one customary marriage, the spouses in that marriage may contract into marriage under the Marriage Act with each other, as provided for in section 10(1) of the Act.
LACK OF CONSENT OF THE FIRST WIFE
In the absence of an annulment, and in the event of death of the husband, only the third wife would have been lawfully recognised as having any patrimonial interest in their husband’s estate, as her marriage was the only one recorded with the Department of Home Affairs.
In Mayalane v Ngwenyama11, the applicant had married her late husband in terms of customary law and the marriage was never registered. After her husband died, the applicant learnt that he had concluded a second customary marriage with another woman. She then brought an application to declare the second customary marriage invalid.
The LRC represented the Commission for Gender Equality and the Rural Women’s Movement as the Second and Third amici curiae in the Constitutional Court. The LRC made submissions regarding the appropriateness of developing customary law to bring it in line with Section 39(2) of the Constitution, which requires that when interpreting any legislation, and when developing the common law or customary law, every court must promote the spirit, purport and objects of the Bill of Rights. It was submitted that the consent of the first wife should be a prerequisite for the validity of subsequent marriages. But the consequence of non-compliance with this rule should not automatically be the invalidity of the second marriage. An appropriate remedy will depend on all the circumstances of the case.12
It was further argued that permitting subsequent marriages without the existing spouse’s knowledge would be a severe and unjustifiable violation of her right to equality, dignity, freedom and security of the person, privacy, property and health. If the spouse does not know of the new marriage, she is unable to consider or protect her position.13
While permitting additional marriages without consent violates the rights of the existing wives, visiting the new marriage with automatic invalidity would have serious negative consequences for the new wife. She too may have been in a vulnerable position where marriage provided her with economic and social benefits. Automatic invalidity either before or after the husband’s death would place them both in a vulnerable position.14
Taking into account the fact that marriage is a highly personal and private contract, the Constitutional Court found it would be a blatant intrusion on the dignity of one partner to introduce a new member to that union without obtaining that partner’s consent15. The court found that the consent of the first wife is a necessary dignity and equality component of a further customary marriage. Section 3(1)(b) of the RCMA16 means that, from now on, further customary marriages must comply with the consent requirement. A subsequent marriage will be invalid if consent from the first wife is not obtained.17
MATRIMONIAL PROPERTY REGIME IN POLYGAMOUS MARRIAGES
Traditionally, a man was responsible in every situation for providing for a woman and her children (who together formed a ‘house’ to which property accrued). The husband had obligations to protect the interests of each house, and his heirs inherited his obligations to provide for widows remaining under the heir’s control.18
The RCMA now regulates the matrimonial property regime applicable to polygamous customary marriages and requires a court’s approval after consideration of the relevant circumstances to protect each party’s interests. Section 7(6) provides that ‘a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriage’. Section 7(7) takes this further by directing that, in the case of a marriage in community of property or which is subject to an accrual system, the court must terminate the matrimonial property system which is applicable to the marriage and order a division of the property. Moreover, it will take into account all the relevant circumstances of the family groups which would be affected if the application is granted. A court may refuse the application if, in its opinion, the interests of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract.
The main objective of section 7 is the equitable distribution of family property to all affected members of the family, particularly the first wife and her children.19
When interpreting the consequences of the failure to comply with section 7(6), the Supreme Court of Appeal in Ngwenyama v Mayelane20found that the requirements for the validity of customary marriages are found in section 3 of the RCMA and that the consequences of non-compliance with section 7(6) were adequately met by treating subsequent customary marriages as being marriages out of community of property. This overturned the High Court’s interpretation that compliance with section 7(6) was an obligatory requirement for the validity of subsequent customary marriages. The Constitutional Court in Mayalane v Ngwenyama agreed with the interpretation of the SCA and held that section 7 does not deal with validity requirements, but only deals with the applicable matrimonial regime. To interpret it as imposing validity requirements over and above those set out in section 3 would undermine the scheme of the Act.21
Had SN remained the only spouse of BM, her customary marriage would be considered to be in community of property, and she would be entitled to an undivided and indivisible half share of the joint estate. If BM wished to enter into a civil marriage with anyone other than SN, it would have been necessary for him to first obtain a decree of divorce from SN. Should he have wished to enter into any subsequent customary marriages, in applying Mayalane, he is required to get consent from SN prior to entering into the marriage. Given that no matrimonial property regime contract was entered into, if the reasoning of the Supreme Court of Appeal (SCA) is applied, the subsequent two marriages would be considered out of community of property. Although this affords protection to the first wife, it could place the second and third wives in a prejudicial position based on the husband’s failure to apply for a contract, which is no fault of their own.
From Mayelane, it is clear that the Constitutional Court has adopted an approach that has clarified the terms of the RCMA, specifically dealing with the requisite consent of the first spouse in a customary marriage. The case of SN v BM was a rare application, as all parties were still alive. In previous cases, applications to assert customary marriage rights were brought posthumously when dealing with benefits of the deceased’s estate. The gap between practice and law is never fully closable22. Migrant labour, the exclusion of women and children from urban areas, and the enforced separation of families has created a framework within which modern family obligations have often been ignored.23
Although the practical application of the RCMA has been sporadic and sometimes ineffectual in the past, the recent developments presented in this article highlight that, when properly applied, the RCMA ensures that women are given the opportunity to access equal matrimonial rights, bridging the lacuna between the law and the lived reality of present-day South African women.
- Gumede (born Shange) v President of the Republic of South Africa and Others 2009 (3) BCLR 243 (CC) at par. 32
- South African Journal on Human Rights, Volume 16 (2000) Notes and Comments: Confronting Custom in the New South African State: An Analysis of the Recognition of Customary Marriages Act 120 of 1998
- Mothokoa Mamashela and Thokozani Xaba ‘The Practical Implications and Effects of The Recognition of Customary Marriages Act’
- Urban Black Law – being a series of articles by a team of authors, first published in ACTA JURIDICA 1984 ‘The Interaction of Legislation Relating to Urban Africans and the Laws Regulating Family Relationships’ S B Burman at page 92
- Ibid at page 96
- Lea Mwambene and Helen Kruuse ‘Form over Function? The practical application of the Recognition of Customary Marriages Act 1998 in South Africa’ at 298
- Urban Black Law – being a series of articles by a team of authors, first published in ACTA JURIDICA 1984 ‘The Interaction of Legislation Relating to Urban Africans and the Laws Regulating Family Relationships’ S B Burman at page 94
- Act 6 of 1981
- Native Administration Act 38 of 1927
- Mayelane v Ngwenyama and Another (Womens’ Legal Centre Trust and others as amici curiae) 2013 (8) BCLR 918 (CC)
- Mayelane v Ngwenyama and Another Heads of Argument on behalf of the Second and Third amicus curiae at par. 10
- Ibid, at par. 58
- Ibid, at par. 66
- Mayelane v Ngwenyama and Another (CC) at par. 74
- Section 3(1)(b) of RCMA: ‘For a customary marriage entered into after the commencement of this Act to be valid, the marriage must be negotiated and entered into or celebrated in accordance with customary law’
- Ibid, at par. 85
- ‘The Interaction of Legislation Relating to Urban Africans and the Laws Regulating Family Relationships’ S B Burman at page 92
- Mothokoa Mamashela and Thokozani Xaba ‘The Practical Implications and Effects of The Recognition of Customary Marriages Act’
- Ngwenyama v Mayelane & another (474/11)  ZASCA 94 at par. 37 – 38
- Mayelane v Ngwenyama and Another (Womens’ Legal Centre Trust and others as amici curiae) 2013 (8) BCLR 918 (CC) at par. 42
- Heinonline 1991 Acta Juridica 52 1991 ‘Law, State and Culture: Thinking About “Customary Law” After Apartheid’ Martin Chanock at page 55
- Ibid at page 63