COMMENTS OF THE HOUSE OF TRADITIONAL LEADERS, EASTERN CAPE PROVINCE ON RECOGNITION OF CUSTOMARY MARRIAGES ACT

INTRODUCTION
1. On 7 August 1998 the Honourable Minister of Justice referred the Bill together with Customary Law Succession Bill, 1998 to the House for comment.

2. The Bills having been tabled to the House was referred by the House to its Standing Committee on Legislation.

3. The Committee having considered the Bill submitted its report to the House for its consideration and adoption.

COMMENTS
4.1 DEFINITIONS
4.1.1 "Court"
Traditional courts should be included in the definition of "court". It should be remembered that we objected to the certification of the Constitution because the Constitution is silent about our courts. Furthermore our courts have been trying cases of this nature and they continue doing so. Traditional leaders and their councils are in a better position to try cases of this nature. In view of the aforesaid there is no reason why the definition of a "Court" should not include Traditional Leaders Courts.

4.1.2 "Registration Officer"
In our submission to the S A Law Commission we stated that such marriages including "lobolo" paid should be registered in the offices of traditional authorities and relevant registers should be kept. We therefore propose that the definition of the registering officer should expressly include secretary of a traditional authority

4.2 RECOGNITION OF CUSTOMARY MARRIAGES
4.2.1 causes 2(1), (2) and (3) are supported.
4.2.2 This clause as drafted is vague. According to our customary law the status of husband and wife cannot be equal "in all respects". This clause may have adverse effect on fundamental norms and principles underlying customary law and for this reason cannot be supported.

We propose that this clause should be drafted thus:
"The wife in a customary marriage should enjoy all the privileges and status in accordance with traditional and culture of the family."

5. REQUIREMENTS FOR VALIDITY OF CUSTOMARY MARRIAGES
Save to state that payment of "lobolo" and "bogadi" etc. must be expressly provided for in clause 3(1)(b) this clause is supported.

6. REGISTRATION OF CUSTOMARY MARRIAGES
The provisions of this clause are supported.

7. DETERMINATION OF AGE OF MINOR
The provisions of this clause are supported.

8. PROPRIETARY CONSEQUENCES OF CUSTOMARY MARRIAGES
AND CONTRACTUAL CAPACITY OF SPOUSES
8.1 The provision of this clause incorporates into our legal system the principle of Roman-Dutch Law and individual ownership and undermines our communal ownership and principles underlying customary law.

8.2 The principle of community of property and of profit and loss and consequences thereof are foreign in customary law and will bring about untold misery and confusion. Furthermore the principles of Customary law that guarantees family unit will be undermined.

8.3 The provisions of Matrimonial Property Act No. 88 of 1984 introduces Roman-Dutch Law and to extend the provisions of the Act to customary law marriages is an ... to customary law and the principles underlying such a law.

8.4 The propriety consequences of a customary marriage may differ from tribe to tribe and for this reason it is not proper to set a standard norm. Be that as it may we are of the view that wives under customary law should be protected against egotistic and arbitrary decisions of universal heirs who, against the custom, sometimes are property of the house to the detriment of the other house.

8.5 Furthermore "ubukinga" beast is a sole property of the wife and designed for a specialised role to assist the wife and can't even be attached on execution of a debt of a family. We mention this to indicate that in our legal system there are norms and values that are so fundamental and cannot be changed.

8.6 We are consequently not supporting the provisions of this clause.

9. DISSOLUTION OF CUSTOMARY MARRIAGES
The provisions of Section 6 of Divorce Act No.70 of 1979 and Mediation in Certain Divorce Matters, Act No. 24 of 1987 do not include the principles underlying customary law.

The divorce as understood in Roman-Dutch legal system is not the same as divorce as understood under customary law.

We must stress that according to customary law, a marriage is not a simple affair between two individuals, it is a matter primarily between two families.

There is a customary practice similar to divorce and is known as "ukukhetha" custom and this involves two families and husband and wife.

We are consequently of the view that the grounds for dissolution of a customary marriage must exist and that mediation process which involves suitors ("onozakuzaku") must precede the dissolution of a customary marriage.

The provisions of this clause must be re-drafted and must incorporate principles underlying customary law.

Consequently the provisions of this clause cannot be supported.

10. AGE OF MAJORITY
The provisions at this clause cannot be supported. The rules of customary law should determine the age of majority.

11. CHANGE OF MARRIAGE SYSTEM
We do not support the provisions of this clause for the same reasons set out above.

Furthermore, it is annoying to note that the mere contracting of a marriage in terms of marriage Act of 1961 automatically dissolves customary marriage. This fortifies our view that our customary law including practices as subjected to apartheid legislation and Roman-Dutch law.

12. REGULATIONS
We propose that the Minister should be empowered to make regulations in consultation with the Houses of Traditional and the Council of Traditional Leaders.

13. REPEAL OF LAWS
We note that the provisions of customary law that are codified in Transkei Marriage Act No.21 of 1978 are not incorporated in the Bill which seeks to repeal the Act.

It would appear to us strange that the Government seems to prefer a grand apartheid legislation.

14. SHORT TITLE AND COMMENT
The provisions of this clause are supported.

15 CONCLUSION
15.1 We wish to record our sincere thanks to Honourable Minister of having deemed it fit to afford us this early opportunity to comment on the proposed Bill.

15.2 We hope that our comments and concerns wilt be taken into account when the next text is submitted to Parliament.

15.3 Our comments to this Bill should not be regarded as waiver to our rights to comment to the Bill after the Bill has been introduced to Parliament.

ADOPTED BY THE HOUSE OF TRADITIONAL LEADERS, EASTERN CAPE
IN BISHO ON THE DAY OF SEPTEMBER 1998

NKOSI M NONKONYANA (ZANEMVULAI)
CHAIRPERSON: HOUSE OF TRADITIONAL LEADERS
EASTERN CAPE PROVINCE