Recognition of Customary Marriages Bill Submission to the Justice Portfolio Committee
22 September 1998
INTRODUCTION
EXECUTIVE SUMMARY
EQUALITY AND CULTURE
EQUALITY AND CULTURE
INTERNATIONAL OBLIGATION
THE BILL
RECOMMENDATIONS
1.Introduction The Commission on Gender Equality (CGE) is an independent statutory body established in terms of Section 187 of the Constitution of South Africa Act 108 of 1996.
The CGE is constitutionally mandated to promote and protect gender equality. The powers and functions of the CGE are set out in the Commission on Gender Equality Act No. 39 of 1996 ("the act"). In terms of section 11(1) of the act, the CGE must, inter alia, evaluate any laws or proposed legislation affecting or likely to affect gender equality and may make recommendations with regards thereto.
The CGE is committed to the eradication of any cultural or religious practices and social stereotypes, which have the effect of discriminating against women.
2. Executive Summary In principle, the CGE welcomes the recognition by the South African Law Commission ("SALC") that it is necessary to review systems of customary law and remove those aspects that may discriminate against women. The CGE also recognises the importance of preserving customary laws and culture, particularly in light of the treatment these laws have received under the past regime. However we do advocate an approach that, while giving value to customary laws and culture, will also incorporate the values of equality, human dignity and freedom that are enshrined in our Constitution. It is important that the practice of cultural beliefs and the implementation of customary laws do not inhibit progress that has been made, and still needs to be made, to liberate women from the bonds of patriarchy.
The CGE therefore cautiously welcomes the Recognition of Customary Marriages Bill ("the Bill") for the legal recognition it intends according to marriages entered into in accordance with indigenous law or traditional rites. However the CGE has certain reservations about the ability of the Bill to bring customary law in line with the provisions of the Constitution and South Africa's international obligations and the implications therefore for gender equality.
The CGE has highlighted in this submission certain key issues that are raised in the proposed legislation and which, in its opinion, are fundamental to the debate about the future of customary law and its impact on women.
3. Equality and Culture Traditionally the institution of customary law has not benefited women. Women bear the brunt of most of the discriminatory cultural practices especially within the family law context. In general, customary practices are partriachal and consequently discriminatory as they keep women in a status of perpetual minority.
Customary law has rarely, if ever, afforded women equal decision making powers within the marriage relationship. Women lack control over the marital property, their rights to custody and guardianship of their children are limited, they are often not able to freely enter into a marriage and choose a spouse, and their rights that flow from divorce or at the dissolution of marriage are also limited. These problems are further compounded by the fact that these marriages have not enjoyed legal recognition, thus denying women recourse to the formal legal system.
The enactment of the interim Constitution Act 200 of 1993 paved the way for the recognition of cultural, religious and customary norms and practices. Section 15(3) of the Constitution of the Republic of South Africa Act 108 of 1996 gives recognition to marriages concluded under any tradition, or a system of religious, personal or family law.
The challenge to the legislature now is to marry the two rights - the right to equality and the right to cultural and traditional practices. This can only be achieved by recognising customary practices in a way that they do not treat as women as inferior second class citizens.
On 27 February 1994, the general wishes of the women were expressed when the Women's National Coalition adopted the Women's Charter for Effective Equality. Article 9 of the Charter clearly articulates this view :
"Article 9: Custom, culture and religion, insofar as these impact on the status of women in marriage, in law and in public life, shall be subject to the equality clause in the Bill of Rights."
4. International Obligations On 15 December 1995, South Africa adopted without reservation the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).
Article 5 of CEDAW provides specifically for the removal of social and cultural practices, which are based on the idea of inferiority or superiority of either of the sexes or on stereotyped roles for men and women. This Article further recognises that, even if women's legal equality is guaranteed and special measures are taken to promote their de facto equality, another level of change is necessary for women. States should strive to remove the social, cultural and traditional patterns which perpetuate gender role stereotypes and which are mostly prevalent in the traditional concept of women's role in the domestic sphere.
Article 16 of CEDAW addresses the problem of discrimination against women in the private sphere, including discrimination in the area of family law. Long-standing cultural or religious practices are the basis of discrimination against women in the private sphere and in family law and these are the most difficult areas to penetrate and the most resistant to change. In order to bring about change, States Parties have been called upon to firstly take appropriate measures to amend or eliminate existing laws relating to marriage and the family, which discriminate against women. State Parties must also take steps to actively ensure that women are able to exercise the same rights as men, including the right to freely enter into a marriage and choose a spouse.
By ratifying CEDAW, South Africa has opened herself up to international scrutiny and is accordingly obliged to put into place laws that are in conformity with the principles of CEDAW and other international conventions on the status of women. At the 19th session of CEDAW, the Committee on the Elimination of Discrimination Against Women, in considering reports submitted by States Parties under article 18 of the Convention made the following remarks when considering the report by South Africa:
"Ad paragraph 19 The Committee expresses concern that in spite of the legal measures put into place, de facto implementation of such laws and policies have yet to be achieved in many areas. It also notes with concern the continuing recognition of customary and religious laws and their adverse effects on the inheritance and land rights of women and women's rights in family relations.
Ad paragraph 20
The Committee recommends that the Government complete, as a matter of priority, the adoption of legislation as well as ensure its effective implementation in order that women's de facto and de jure equality will be guaranteed. It also recommends that a uniform family code in conformity with the Convention be prepared in which unequal inheritance rights, land rights and polygamy are addressed, with the aim of abolishing them."
5. The Bill The CGE sets out below the key issues raised by the Bill.
Single v dual system of marriage
It is in the context set out the above that the CGE advocates a single system of marriage that has specific "core" requirements, which would be included in a single Marriage Act, to apply equally to everybody regardless of which system of family law they ascribe to. In this way persons wishing to marry need only comply with the core requirements. Where these requirements have been met, all marriages will have the same legal recognition. And the same consequences will flow from the relationship.
The CGE therefore expresses its concern that the review conducted by the SALC on customary law was not being conducted within a holistic framework and may lead to a piecemeal approach. The Bill needs to consider as a whole the issues relating to religious family law, customary law marriages, same sex relationships, universal partnerships/cohabitation and civil marriages.
The CGE accordingly supports a single system of marriage in which there are certain fundamental "core" requirements, which should be legislated. The following requirements should be included in a single marriage Act:
Consent of the parties The parties contemplating marriage must give their consent freely and voluntarily. If consent was as a result of duress, undue influence or deliberate misrepresentation, then such marriage shall be null and void at the instance of the coerced party. This provision could go a long way in eliminating arranged and forced marriages.
Registration of the marriage The Bill should consider licensing as marriage officers tribal authorities, religious leaders and persons of authority in a particular area. This will allow for greater freedom and will particularly benefit those women living in rural areas.
There is also a need to put into place education and public awareness programmes to educate communities about the measures in place and their rights and obligations in terms of the new law and to ensure that marriage officers are aware of their obligations to register marriages.
Standardisation of the age of consent The betrothal of children and the marriage of children shall have no legal effect if a minimum age of consent is stipulated. The CGE supports the Convention on the Rights of the child in setting the minimum age of consent at 18 years.
The CGE does have concerns that such a unified system that places more obligations on persons could lead to reluctance on parties, particularly men, to marry. Accordingly we urge the SALC to urgently investigate methods of protecting persons who choose to cohabit outside of legally recognised relationships. The SALC is also called upon to review the existing Marriage Act and bring it in line with the Constitution and international conventions.
Polygamy
Section 6 of the Bill recognises the previous unequal status between spouses in a customary law union and remedies this situation by providing that the wife in a customary marriage is in all respects a status equal to that of her husband. The CGE particularly welcomes the explicit recognition by the Bill of the equality of women.
Despite this commitment to equality in terms of Section 6, there are specific indications with relation to the institution of polygamy, that the Bill has overlooked this requirement of equality.
Section 2(3) of the Bill allows the continued practice of polygamy, existing polygamous marriages and future polygamous unions and continues to offer them recognition. The Bill therefore perpetuates gender inequality by continuing an institution which benefits men at the expense of women, in the name of culture. Research indicates that women are not happy with the practice because they believe that it demeans women and is discriminatory against them as it only benefits men. Many women also have serious concerns about polygamy because of the threat of AIDS and the transfer of sexually transmitted diseases.
The CGE therefore rejects the practice of polygamy and regards such practice as discriminatory. Acknowledging however that there may be social and economic factors and unequal power relationships between men and women which force women into polygamous marriages, the CGE advocates a system that will offer full legal protection to those women and children. Succession rights in polygamous marriages should be regulated by the Succession in Customary Law Amendment Act. The CGE further recommends a system that will enable the parties to enter into legally enforceable agreements.
Lobola
The concerns the CGE has about the practice of lobola are based on the commercialisation of the practice by unscrupulous fathers and male relatives. In particular, the CGE is concerned about the ways lobola is being used to discriminate against women. For example, more or less lobola will be paid for a woman depending on her academic qualifications.
Accordingly, the CGE rejects the practice of lobola to the extent that it is used to commodify women. However insofar as the practice does value women and give social recognition to the marriage, the CGE supports the view that lobola should not be abolished through legislation. Rather it should not be a legal requirement for marriage, but an extra legal requirement that parties can choose to incorporate, should they so wish. This provision will enable parties to conclude valid marriages if they satisfy all the other core requirements despite there being conflict with regard to the amount of lobola to be paid or if the prospective groom cannot afford the lobola requested. In this regard we commend the Bill for not making payment of lobola a legal requirement.
The CGE does wish to express its concern on the issue of lobola with regard to section 8(7)(c). This section provides that the court may, when making an order for the payment of maintenance, take into account any payment made in accordance with customary law. This provision appears to ignore the fact that the duty of parents to maintain their children is a common law obligation that does not flow from some private arrangement between families regarding lobola. The CGE believes that the "best interests of the child" principle should be the determining factor in all matters where the rights of children are concerned.
Even with spouses, at the dissolution of the marriage, the amount of lobola paid should not be considered in relation to the husband's maintenance obligations towards his wife, as lobola is not paid directly to the wife but to her family. Accordingly this provision should be removed from the Bill.
6. Recommendations Incorporation of International Conventions and Regional Charters in a Uniform Code of Marriage which shall give legal recognition to all marriages regardless of the family law system chosen by the parties.
Establishment of mechanisms which give legal recognition to unions where parties exercise an extra-legal option not to marry.
Standardisation of the age of consent to a minimum requirement of 18 years in line with the Children's Charter and the Convention on the Rights of the Child.
A continued review of all systems of customary law to remove aspects that are or may be discriminatory to women.
Implementation of educational programmes and public awareness campaigns to sensitise society about societal stereotypes, cultural, and religious practices, which have the effect of discriminating against women.
Compiled by Bessie Bulunga
Legal researcher
September 1998