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3.1.1 Recognition of customary marriages in South Africa is still governed by legislation passed sixty years ago: the Black Administration Act.[1] This Act drew a careful distinction between `marriages' and `customary unions',[2] giving the latter full recognition only for purposes of litigation in courts of traditional leaders. Although certain statutes were later to treat customary unions as valid marriages for purposes of the statute in question,[3] we have the peculiar position in South Africa that, so far as the common law is concerned, customary unions are not recognized.[4]
3.1.2 The anomalies that flow from this situation were exposed in dependants' actions for damages caused by the death of a breadwinner.[5] If a suit had been initiated in a court established under the Black Administration Act,[6] the claim might succeed, because the marriage was fully recognized in that tribunal.[7] Actions brought in the ordinary courts, however, were bound to fail.[8] In 1963, the patent absurdity and injustice of this situation provoked legislative intervention. Customary unions were recognized for claiming `damages for loss of support from any person who unlawfully causes the death of the other partner'.[0]
3.1.3 Another consequence of the refusal to recognize customary unions was the overriding effect given to civil marriages. A person married by customary law could nullify his or her union simply by marrying again in a church or civil registry.[10] Husbands in particular[11] had an easy method of ridding themselves of their wives without having to go through a regular divorce procedure.[12] Conversely, the logic of the principle that a customary marriage was not a true marriage meant that, if a spouse of a civil union purported to marry another person by customary rites, the second union would be null and void.[13] The union would not bigamous, however, since customary marriages were not recognized as marriages under the criminal law.[14]
3.1.4 In 1985 the Law Commission recommended full recognition for customary marriages.[15] Partial reform followed three years later when legislation was passed to provide that civil marriages could no longer supersede existing customary unions.[16]
3.1.5 That customary marriages should be given full recognition is a principle now governed by the Bill of Rights. Section 15(3)(a) of the Constitution authorizes Parliament to promulgate legislation recognizing `marriages concluded under any tradition, or a system of ... personal or family law'. In Ryland v Edros,[17] a case concerned with recognition of Muslim marriages,[18] the court noted the spirit of tolerance on which the Constitution was based. Tolerance would suggest that our legal system permit religious and cultural diversity, a proposition which has explicit support in ss 30 and 31 of the Constitution itself, for these clauses allow individuals and groups the freedom to participate in and pursue the culture of their choice.
3.1.6 Although the wording of s 15 is permissive (`This section does not prevent legislation recognising ...'), it could be argued that the government has a constitutional duty to recognize customary marriages. Ryland v Edros, for instance, said that non-recognition of Muslim marriages would violate the right to equality between cultural or religious groups. In addition, it could be argued that implicit in the state's duty to allow free pursuit of culture is a further duty to recognize institutions basic to the culture concerned.[19]
3.1.7 It was evident from responses to the Issue and Discussion Papers that recognition of customary marriages was overwhelmingly supported.[20] Hence, in light of both legal principle and public opinion, the Commission felt that customary marriages should be legally recognized. It would follow that couples who celebrate their marriage according to customary rites will create a union as valid as that celebrated in a Church or civil registry.
3.1.8 Simple as this proposal is, the Commission discovered that its implementation would not be straightforward. The first problem to be encountered was one that frequently arises when legal status is to be improved: should the reform be only prospective in its effect? The Department of Land Affairs and W du Plessis and C Rautenbach (Potchefstroom University)[21] argued that, if legislation recognizing customary marriages were to apply only to existing unions, wives and children would not benefit from the enhanced status associated with a fully recognized marriage.[22]
3.1.9 Reasonable as the argument seems, it cannot be accepted without qualification. Later in this Report the Commission will recommend that all customary marriages be registered. If recognition were to be retrospective in effect, the spouses of existing unregistered unions would be given a privileged position over the spouses of future unions who failed to comply with the registration requirement. This problem can be solved if another recommendation by the Commission is adopted: that no sanction be attached to non-registration. Otherwise, the only equitable solution to would be to require spouses of existing marriages to have their unions registered if they wish to benefit from the provisions of the new marriage laws.
3.1.10 A second problem was noted by a Law Commission Workshop (in the Northern Province): what types of union should be recognized, in view of the fact that customary law has various marital associations, including so-called `ghost marriages', `woman-to-woman marriages', ukuvusa and ukungena unions? Strictly speaking, these unions - none of which is now common - do not constitute new marriages, for they are not accompanied by typical marriage ceremonies nor is lobolo paid. They function rather to prolong an existing marriage where one of the spouses has died (as in the `ghost marriages' and ukungena unions) or is unable to bear children (as in the ukuvusa unions).
3.1.11 Nevertheless, practical problems will arise because of the Commission's recommendation that all marriages be registered. The Workshop above asked whether the marital associations it mentioned would require registration. The answer would seem to be that, if no new marriage is created, registration will be unnecessary. Nevertheless, if a new spouse becomes party to an existing union, some formal recognition of that fact seems advisable. In this regard, attention would have to be paid to the nuances of customary law. Where the new partner is a permanent addition to a household (as in the case of ukungena unions) the registration certificate would have to be amended to reflect that fact, whereas a temporary arrangement (as in the case of ukuvusa unions) would not call for a special act of state recognition.
3.1.12 A third problem arose from an objection by the Commission on Gender Equality and Advs M Masipa, F Kathree and B Spilg (Society of Advocates of SA, Wits Division) that the Commission had not considered informal (or `de facto') unions. While these associations are becoming increasing common and while the Commission appreciated that marriage should ideally be viewed in the fullest social context,[23] its terms of reference restricted the scope of its inquiry to socially and legally recognized marriages. (This limitation was perhaps prudent; de facto unions raise such extensive problems that they can only be considered separately.)[24]
3.1.13 In order to remove the anomalies created by many years of discrimination, customary marriages, both existing and future unions, must now be fully recognized. To do so will comply with ss 9, 15, 30 and 31 of the Constitution, provisions which suggest that the same effect should be given to African cultural institutions as to those of the western tradition.
3.2.1 Once customary marriages have full recognition, the statutory amendment passed in 1988 to prevent civil marriages from automatically terminating customary unions will become redundant.[25] As our law now stands, spouses of an existing customary marriage may remarry one another by civil rites, provided that the man is not already partner to a customary union with another woman.[26] The converse situation - where the partner to a subsisting civil marriage contracts a customary-law marriage with a person other than the spouse of the civil union - is still governed by the common law. Since civil marriages are strictly monogamous, the second union (which earlier courts described as an `immoral contract')[27] is deemed null and void.[28]
3.2.2 If all marriages were to produce the same legal consequences, the form of a union would be irrelevant to deciding what law governed its effects.[29] According to the proposals made below, however, a cardinal difference will continue to distinguish customary from civil or Christian marriages: the husband's entitlement under customary law to take more wives.[30]
3.2.3 If the spouses celebrate their marriage according to only one form, this difference will cause no legal problems, but, if the same spouses marry according to two rites, complications are bound to occur. So-called `dual marriages' are in fact quite common,[31] and many variations on the theme are possible. A couple may celebrate a traditional wedding and then, on the same day, they may have it blessed in Church or celebrated again in a civil registry office. The rites may be reversed: a civil marriage may be followed by an African ceremony. The lapse of time between these rites may be days or years.
3.2.4 What is more, the acts by which the parties purport to marry may vary. A lobolo agreement is usually negotiated before a civil or Christian ceremony.[32] Or the parties might combine a lobolo agreement, a traditional wedding ceremony and the Christian rite. Professor A J Kerr (Rhodes University) said that, in these circumstances, the Christian rite is a blessing, not a marriage,[33] because the Churches are not prepared to give the sacrament of marriage to a potentially polygynous union.
3.2.5 In all these situations, an awkward question then arises: which rite should be given precedence in order to determine the legal consequences of the spouses' marriage? This question becomes even more difficult to answer when it is appreciated how hard it is to define exactly what is meant by `customary marriage' for purposes of reform legislation.
3.2.6 Until recently, the answer to the problem of dual marriage in South Africa was to allow a union by civil rites an overriding effect.[34] This view was prompted in part by the superior position enjoyed by Christian marriage and in part by the understanding that it operated as an indication of the spouses' orientation towards western culture.[35]
3.2.7 We are not bound to continue this approach. Both the customary and the civil marriages could be treated as equally valid, as is the case in Lesotho[36] and Swaziland,[37] but the result of according equal status has been legal confusion.[38] What law determines the spouses' rights and duties?[39] One scholar[40] urges a utopian merger of the two legal regimes, but this is easier said than done, since not all consequences of the marriages can be reconciled, in particular questions of monogamy and polygyny.[41]
3.2.8 Under the Transkei Marriage Act, husbands of civil or Christian marriages could validly contract additional customary marriages.[42] (The effect of the second union was to convert the legal status of the wife married by civil or Christian rites from common to customary law.)[43] Nevertheless, the possibility of validly contracting two different types of marriage was carefully regulated by the Act. In the first place, because a civil marriage did not automatically terminate a customary union,[44] any rights acquired during the subsistence of customary marriage were specially protected.[45] In the second place, to avoid creating intractable problems about joint estates in polygynous marriage the husband's right to remarry was conditional upon his first union being out of community of property.[46]
3.2.9 The Commission acknowledged the impossibility of enforcing both common- and customary-law regimes simultaneously. It follows that, if parties marry under two rites, one form of marriage has to be given precedence. This approach does not necessarily, of course, reflect popular understanding nor was it endorsed by all the Respondents to the Discussion Paper, such as the Department of Justice, the Rural Women's Movement and participants at the discussion group hosted by the Law Faculty of the University of Fort Hare at Bisho.[47] But, once it is accepted that marriages will not produce the same set of legal consequences, dual marriage becomes unworkable and a decision must then be made as to whether customary- or common-law consequences will ensue.
3.2.10 The changes of status and the legal complexity of the Transkeian legislation on this question do not recommend that approach. The existing rule under South African law (ie that the civil form should prevail) could, of course, be retained, partly to extend greater protection to women and partly for the sake of certainty and continuity. Adv N Cassim supported this proposal, suggesting that registration certificates should be endorsed to show that a couple had contracted their marriage by civil rites.[48] The converse solution (put forward by the House of Traditional Leaders in the Eastern Cape) was to deem performance of traditional rituals - regardless of a later civil ceremony - conclusive proof of a customary marriage. Both of these options, however, seem arbitrary.
3.2.11 Other solutions are feasible. The later (or possibly the earlier) marriage could be declared the principal union for purposes of determining legal consequences, but this approach, too, seems arbitrary. The House of Traditional Leaders (Northern Province) and the Department of Justice suggested leaving the choice to the spouses.[49] This appears the most attractive solution, because it gives full effect to spousal consent and the freedom to marry, both of which are fundamental principles of human rights law.
3.2.12 Unfortunately, allowing the spouses to decide the consequences of their marriage was not free of problems. The Gender Research Project (CALS), for instance, noted that the question of what law to apply to the consequences of marriage usually arises when the spouses quarrel or when one dies or disappears. Evidence of the couple's decision may then be difficult to obtain (and the testimony of relatives is inevitably tainted by self-interest).
3.2.13 The optimum solution to this difficulty, and one supported strongly by Professor Kerr, would be to require the spouses to state expressly in advance of the marriage ceremony whether their union was to be customary or civil.[50] This decision could then be recorded in the registration or marriage certificate. Whether the average couple would be in a position to make such a far-reaching decision, however, is debatable. The Gender Research Project (CALS) suggested training marriage officers so that they could counsel parties in making the appropriate choice. [51] The Commission therefore worked on an assumption that few people would make an express statement of intent.
3.2.14 In the absence of any clear statement of intention, the courts would be obliged to infer an intent from the couple's marital relationship, which would entail consideration of their general cultural orientation and lifestyle. The discussion group hosted by the Law Faculty of the University of Fort Hare at Bisho supported a flexible (or facilitative) approach, but it considered a lifestyle test meaningless in practice. How is a predominant lifestyle to be inferred from those who are attached to both a notionally western culture and to their village communities? It felt that, in spite of the appearance of a civil marriage, the expectations of all the parties involved - including the spouses' families - will usually indicate that a civil marriage was grafted onto a traditionally run household.[52]
3.2.15 The Commission finally decided, after much debate, to accept that people have a right to marry in ways that reflect their allegiances to various cultural traditions, even though this leads to difficult legal dilemmas, and that in practice they will continue to do so. The Commission was also mindful of the need to assign an appropriate legal regime to the marriage without assuming any one marriage form to be superior to the other.
3.2.16 Furthermore, it became clear that the issue of the conversion of a marriage from one form to another was closely linked to the question of dual marriages. Accordingly, the Commission decided to make recommendations that take both problems into account.
3.3.1 If cultural and religious diversity is to be permitted in South Africa’s marriage law and if maximum content is to be given to the spouses’ freedom to marry, the question arises whether they should be allowed to convert one form of marriage into another. The Tanzanian Law of Marriage Act is a rare example of special provision being made for this eventuality. Spouses in that country could change customary or Islamic marriages into Christian unions by joint declaration in court. Christian marriages were given a privileged position, for marriages celebrated in Church could not be converted while the parties continued to profess the Christian faith. In its Issue Paper the Law Commission made a proposal that a similar option be introduced to South Africa: spouses should be permitted to convert their marriage, provided that the conversion did no injury to the interests of third parties.
3.3.2 The Organised Labour Workshop supported the Commission’s proposal and so too did participants at the discussion group hosted by the Law Faculty of the University of Fort Hare at Bisho. The latter group felt, however, that only conversion from customary to civil marriage should be allowed, with no possibility of reversing this choice.
3.3.3 Professor Kerr, on the other hand, questioned the viability of conversion. He noted both the difficulty of determining who would qualify as an interested third party and the complexity of effecting consequential changes to the matrimonial property regime. Wives may also find themselves in an invidious position: they may be forced to agree to change from a monogamous to a polygynous form of marriage under threat of their relationship breaking down.
3.3.4 The Commission noted these arguments together with the fact that we have no indication of how the Tanzanian procedure works in practice (or how often it is invoked). The Commission accordingly resolved to make the following recommendations on both the issues of conversion and of dual marriages.
C. Recommendation
3.3.5 Parties should be allowed, in the case of a dual marriage, to make an express declaration as to which legal regime should regulate their marriage.
3.3.6 Conversion from a customary marriage to a civil marriage, but not vice versa, should be allowed. This right should be based not on the alleged superiority of any one marriage form, but rather on the practical consideration that movement from a more open-ended and facilitative arrangement to a stricter and more highly-regulated regime makes better sense than the reverse would do. It can be reasonably assumed that the parties consciously intended, for reasons of their own, to submit themselves to the stricter rules.
[1] 38 of 1927.
[2] Section 35 of the Black Administration Act 38 of 1927, as amended by s 9 of the Black Administration (Amendment) Act 9 of 1929, provided that: `"Customary union" means the association of a man and a woman in a conjugal relationship according to Black law and custom, where neither the man nor the woman is party to a subsisting marriage; "marriage" means the union of one man with one woman in accordance with any law for the time being in force in any Province governing marriages, but does not include any union contracted under Black law and custom' or any union under the provisions of the Natal and KwaZulu Codes.'
[3] Section 5(6) of the Maintenance Act 23 of 1963, s 1 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, s 1 of the Income Tax Act 58 of 1962, s 21(13) of the Insolvency Act 24 of 1936 and s 27 of the Child Care Act 74 of 1983. See further Sinclair The Law of Marriage 252-5.
[4] By special legislative amendments they were recognized in KwaZulu/Natal (by s 36 of the Codes) and in Transkei (by ss 1 and 2 of the Marriage Act 21 of 1978).
[5] See Kerr (1956) 73 SALJ 402-8.
[6] Namely, the commissioners' courts or one of their courts of appeal. These courts were abolished by Act 34 of 1986.
[7] Kanyile v Mbeje 1939 NAC (N&T) 25 and Zitulele v Mangquza 1950 NAC 249 (S).
[8] See Mokwena v Laub 1943 (2) PH K64 (W) and Santam v Fondo 1960 (2) SA 467 (A) at 470-4.
[09] Section 31 of the Black Laws Amendment Act 76 of 1963. Even so, the marriage had to be proved by `a certificate issued by a commissioner', a technical requirement that frustrated many otherwise unassailable claims. See Dlamini (1984) 101 SALJ 34-9 and Kerr (1984) 101 SALJ 224-7.
[10] Nkambula v Linda 1951 (1) SA 377 (A). See Peart (1983) 16 CILSA 40-1.
[11] Although wives, too, could automatically terminate their customary unions by this method: Njombani v Tshali 1952 NAC 62 (S).
[12] Because the `discarded' wife was put at risk, the legislature intervened, in s 22(7) of the Black Administration Act 38 of 1927, to protect `the material rights of any partner' of a subsisting customary union.
[13] Gwalata 1932 NAC (N&T) 51, Ntseki 1933 NAC (C&O) 61, Xalisa 1942 NAC (C&O) 103, Zulu v Mcube 1952 NAC 225 (NE), Sogoni v Jacisa 1970 BAC 76 (S) and Qitini v Qadu 1981 AC 42 (S).
[14] Zonyane v Rex 1912 EDL 361.
[15] Report on Marriages and Customary Unions of Black Persons (1985) para 11.2.
[16] Section 1 of Act 3 of 1988, amending s 22 of the Black Administration Act.
[17] 1997 (1) BCLR 77 (C).
[18] Which have suffered even worse discrimination in South African law than customary marriages.
[19] Bennett Human Rights and African Customary Law 114.
[20] The Gender Research Project (CALS), however, said that the Commission was proposing recognition of customary marriages at the wrong time, because most Africans considered customary marriages inferior. It felt that not only would a single marriage law unify a divided country but that the current dual system confuses spouses (since men tend to want customary unions and women civil unions).
[21] Who said that proprietary rights already acquired should continue to be protected, although spouses should be allowed to change to the new property system.
[22] The Council of SA Banks, however, said that a sufficient period of time should be allowed to enable institutions to change their standard form contracts and procedures.
[23] The Commission on Gender Equality felt that this was an important issue because women's improved status might result in fewer men being prepared to marry. The Commission also said that the Law Commission should have conducted its review within a far broader framework to include Muslim and Jewish marriages (and of course de facto unions).
[24] The problem of distinguishing de facto unions from customary marriages is considered below in par 4.1.8 et seq.
[25] Section 1 of Act 3 of 1988. The Law Commission's Report on Marriages and Customary Unions of Black Persons para 11.2.7 proposed this amendment to the common law.
[26] Because the 1988 amending legislation was not retrospective, discarded spouses of customary marriages that had been dissolved before 2 December 1988 continue to receive the dubious protection of s 22(7) of the Black Administration Act, namely, a civil or Christian marriage does not disturb their material rights.
[27] See Moshesh v Matee 4 NAC 78 (1920) and Sogayise v Mpahleni 1931 NAC (C&O) 13.
[28] Zulu v Mcube 1952 NAC 225 (NE), Sogoni v Jacisa 1970 BAC 76 (S) and Qitini v Qadu 1981 AC 42 (S). But the union is not bigamous, because customary marriages were not recognized as full marriages: Zonyane v Rex 1912 EDL 361.
[29] A point made by the Law Association of Zambia.
[30] Other differences will also remain, notably the spouses' relationships with third parties, but these cannot be resolved by legislation. The husband's obligation to his father-in-law under a lobolo agreement is one difference and another is the husband's customary right to sue his wife's lover for damages for adultery. Mdodana & another v Nokulele 2 NAC 138 (1911) and Mtshengu v Mawengu 1954 NAC 172 (S) held that, in cases of civil marriage, common law applies to cases of abduction or enticement on the understanding that these actions arise out of an interference with conjugal rights established by the marriage. Cf Poulter Legal Dualism in Lesotho 64-5.
[31] A point confirmed by W du Plessis and C Rautenbach (Potchefstroom University). See further Prinsloo et al 1997 De Jure 314.
[32] See, for example, Raum & De Jager Transition and Change in a Rural Community 55ff and Koyana Customary Law in a Changing Society 27ff.
[33] Professor Kerr said that he knew of no Christian Church that would allow a person to go through a Christian marriage ceremony if that person claimed to be entering (or to have entered) a potentially polygynous marriage at the same time. He also pointed out that the result of a lobolo agreement and a Christian ceremony was not two marriages, but two rites confirming the same union.
[34] Which spouses might have intended, because Christian marriage offered women important secular benefits, notably of course monogamy: Phillips Marriage Laws in Africa 29.
[35] Hence, the form of the marriage subjected the spouses and their children to common law. Cole (1898) 1 NLR 15 (supported in Asiata v Goncallo (1900) 1 NLR 41) held that, if people married in Church, it would be `sufficient to show that ... the marriage contract and all the consequences flowing therefrom should be regulated exclusively by [common] law'.
[36] Majara v Majara & others CIV/APN/138 of 1989 (unreported), for instance, held that a Christian marriage contracted after a valid and subsisting customary marriage was null and void. See Rugege (1991) 7 Lesotho LJ 73 for commentary.
[37] In Dube v R 1970-76 SLR 93, a man who had married in South Africa by civil rites subsequently married another woman in Swaziland under customary law. He was convicted of bigamy. In Ex parte Ginindza & another 1979-81 SLR 361, a man who had married by civil rites during a customary marriage managed to have the civil marriage declared void (so that he could remarry his second wife under customary law). See Nhlapo Marriage and Divorce in Swazi Law and Custom 29ff, who considers the cases in Swaziland since the decisions in R v Mabuza & another 1979-81 SLR 8 and Dladla v Dlamini 1977-78 SLR 15 established the equal status of customary and civil marriages.
[38] Bennett Application of Customary Law in Southern Africa 198-9.
[39] See Maqutu (1983) 16 CILSA 378 and Contemporary Family Law of Lesotho 44ff.
[40] Poulter (n30) 34ff.
[41] Nhlapo (n37) 36.
[42] Act 21 of 1978. To placate established Churches, s 9 of the Act allowed ministers of religion the right to refuse to solemnize marriages which did not conform to their religious tenets.
[43] Section 38. Hence, if a man became party to more than one marriage, irrespective of whether one of the marriages was a civil one, the status of his wives and children was to be regulated by customary law.
[44] Section 1 of the Act, which contained definitions, made it clear that all marriages were on an equal footing.
[45] By s 3(2).
[46] Section 3. And subsequent customary unions were out of community.
[47] The latter group regarded the Commission's initial proposal to discourage dual marriages as authoritarian and unworkable, since the two forms serve people's strongly felt needs to be married under two systems. The group felt that legal regulation of marriage should reflect people's interests, not a sense of legal order.
[48] Organised Labour seems also to have supported this approach on the basis of a solution employed in Botswana.
[49] Which was the effect of the judgment in Mabitle v Mochema 1971-3 LLR 271. This position was endorsed by the House of Traditional Leaders (Eastern Cape).
[50] Professor Kerr said that the Marriage Act should make it obligatory for marriage officers to ask a couple at any time within a month before the marriage ceremony whether they agree to enter into a marriage under the Act. If they do agree, the ceremony may take place, and registration of the union under the Act would be proof of the spouses' decision to enter into a monogamous marriage.
[51] And if traditional leaders are to be used as marriage officers, the Research Project suggested that they should be authorized to perform civil as well as customary marriages.
[52] The Women's Lobby also alluded to the difficulty of determining cultural orientation in these circumstances. Couples who have a foot in each cultural camp, so to speak, might be unable themselves to describe their own cultural leanings. Possibly for this reason the Lobby felt that, once married in customary law, a couple should not be allowed to enter into another form of marriage.
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