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5.1.1 Because customary law emphasized family rather than individual interests in marriage, the families would be entitled to arrange the marriages of their offspring. If the head of a family could choose whichever boy or girl seemed most suitable for a good match, it followed that there could be no fixed rules prescribing the age or capacities of the prospective spouses, because the rules would have derogated from parental power.[1]
5.1.2 Nevertheless, because one of the main purposes of marrying was to bear children, a minimum requirement was that the couple were over the age of puberty. Attainment of puberty varies from person to person, and, in societies where age cannot be fixed precisely, the usual practice was simply to wait until spouses were physically mature.[2]
5.1.3 In the case of a prospective husband, full adult capacity was linked to an ability to discharge the responsibilities for a new family unit. This ability was only achieved over a period of time, and it depended on an accumulation of factors, notably physical and intellectual maturity and a degree of economic self-sufficiency.
5.1.4 In many cultures, the transition from child- to adulthood was more exactly marked by an initiation ceremony.[3] Today attitudes to initiation vary. In some cases the tradition has lapsed,[0] in others it has been transformed into a requirement that young men go to work in the mines or cities.[0]
5.1.5 The pragmatic approach of customary law to capacity suggests that, although the spouses had to be generally capable of sustaining a marital relationship, the most basic requirement was probably puberty.[0] Unfortunately, such pragmatism allows the unscrupulous guardian to manipulate children to his own advantage. Because status is so uncertain, he can deny a ward the rights and powers that come with majority.[0]
5.1.6 Women especially are at risk. They were never deemed fully adult in the legal sense, hence they always had to obtain their guardians' consent in order to marry. As a result, no matter how old or responsible a woman might be, the guardian could postpone her marriage indefinitely for his own mercenary purposes.
5.1.7 Interference of this kind obviously contravenes an individual's freedom to marry when and whom she chooses, but the issues are not so clear cut. While, on the one hand, it is the spouses' consent that is of the essence of a valid marriage, on the other, parents have a legitimate interest in ensuring that underage children make a sensible match. The question, therefore, is when parents should be entitled to override their children's wishes.
5.1.8 Issues of consent, capacity and age are all closely linked. To ensure that future spouses are capable of formulating a proper consent to marry and to prevent guardians from exploiting their children, setting a minimum age for marriage becomes a necessary step towards securing individual human rights.[0]
5.1.9 Although parental control of marriage is a sensitive issue in African communities, since any attempt to regulate the spouses' age or capacity to marry inevitably diminishes the parents' powers, the vast majority of the respondents to the Issue and Discussion Papers accepted the principle of fixing a minimum age.[0] The House of Traditional Leaders (Eastern Cape) was one of the few exceptions. It felt that no minimum age should be stipulated, but that, in the case of arranged marriages, the children should be old enough to appreciate the consequences of their acts.
5.1.10 That a minimum age should be prescribed for marriage is already established in international human rights law. The Convention on Elimination of All Forms of Discrimination against Women (CEDAW)[0] and the Convention on Consent to Marriage[0] both require states parties to take legislative action to specify a uniform minimum age. But these treaties do not stipulate what the age should be.
5.1.11 It was on the question of an appropriate age that the Commission encountered the greatest measure of disagreement amongst members of the public.[0] People were understandably at odds over when precisely an individual could be deemed sufficiently mature to undertake the serious responsibilities of married life.[0]
5.1.12 Various options exist. In the first place, the existing rules in the Marriage Act on minimum age could simply be extended to cover customary marriages. The Act lays down ages of 18 for men and 15 for women.[0] Adv N Cassim supported this option and so, too, did the House of Traditional Leaders (Free State).[0]
5.1.13 The different ages prescribed for men and women under the Marriage Act assume, of course, that boys and girls will physically mature at different rates. If procreation is seen as the exclusive purpose of marriage, then this distinction could perhaps be maintained. But marriage today involves much more than procreation (in particular spousal companionship and economic cooperation).[0] When seen in this light, the age distinction in the Marriage Act could be regarded as unfair discrimination between the sexes.[0]
5.1.14 To avoid discrimination, an overwhelming majority of respondents urged a single age for men and women.[0] The Commission endorsed this view, but the question still remained: what should the minimum age be? According to the Age of Majority Act,[0] full adult capacity is attained at 21, and there was some support for this rule.[0] Most respondents, however, came out in favour of the age of 18.[0]
5.1.15 Accepting the age of 18 would have the advantage of bringing South Africa into line with the rules of international human rights law. The United Nations Convention on the Rights of the Child,[0] the Constitution[0] and the African Charter on the Rights and Welfare of the Child[0] all specify 18 as the age for determining the transition from child- to adulthood.
5.1.16 Respondents to the Issue and Discussion Papers had other, more material arguments for adopting this age. The Department of Land Affairs said that land reform policies operate on the understanding that only people over 18 qualify for grants. The National Coalition for Gay & Lesbian Equality[0] and Dr H M de Vetta expressed a more general view that women's education and employment opportunities would be seriously harmed if they could be married before reaching 18.
5.1.17 In the circumstances, the Commission accepted that the minimum age for determining capacity to marry should be fixed at 18 for both men and women.
5.1.18 Nevertheless, if the freedom to marry is to be fully realized in our law, then a boy or girl who is under age should still be entitled to contract a marriage in the appropriate circumstances. The rules in the Marriage Act, which are designed to regulate such situations, could conveniently be extended to customary marriages.[0] Prospective spouses would need to obtain the written permission of the Minister of Home Affairs, together with their guardians' consent.
C. Recommendation
5.1.19 To ensure that prospective spouses are mature enough to formulate a proper consent to marry and to remedy the uncertainty in customary law, a minimum age of 18 for marrying should be fixed for all persons in the country. Underage children should nevertheless be permitted to contract a marriage on terms prescribed in the Marriage Act.
5.2.1 A father's power to control his children's marriages is synonymous with the African cultural tradition. This principle was encoded in the `official' version of customary law, which provides that the consent of a guardian, especially the bride's guardian, is an essential element of all customary marriages.[0]
5.2.2 The bride's guardian, however, is well placed to abuse his power. Because he is the person who requests and receives lobolo, he may seriously obstruct his ward's freedom to marry. He could prevent a union by refusing her suitor's offer of lobolo or he could make unreasonable demands. Alternatively, he could encourage marriage with a suitor of his own choice by accepting whatever lobolo the man offered. The daughter was not completely helpless, of course. She could ask senior males in her family to intercede on her behalf, but she had no formal method of compelling her guardian to give consent to her marriage no matter how unreasonable or avaricious his motives for withholding it.[0]
5.2.3 As we have seen above, international human rights law regards the consent of the spouses as of the essence of marriage. A parent's power to intervene in marriage has accordingly been restricted to assisting underage children make the correct decisions. This reduction of powers is evident in the evolution of western systems of family law, where the function of parental control over marriage changed from parents negotiating marriage on behalf of a child to parents approving and ratifying a match already made.[0]
5.2.4 The `official' version of customary law, however, did not treat the family head's control over marriage in a way that would have protected vulnerable wards.[0] In the case of men, provided that a prospective husband was over the age of puberty, his father's consent was unnecessary.[0] Conversely, in the case of women, regardless of the individual bride's age or actual capacity, her guardian's consent was always deemed essential.[0]
5.2.5 Some of the failings of the `official' version were corrected in KwaZulu/Natal[0] and Transkei.[0] Major women in both provinces may contract their own marriages. Moreover, in KwaZulu/Natal a guardian may not unreasonably withhold consent, since `district officers' may administratively investigate any complaint and authorize marriages they think suitable.[0] Elsewhere in South Africa, however, a woman's only method of avoiding the requirement of parental consent is to enter a civil marriage.[36]
5.2.6 Under the Constitution[37] and the United Nations Convention on the Rights of the Child,[38] all powers associated with guardianship must now be conceived in the child's interests. It follows that the exercise and extent of a guardian's power to decide the marriages of his children must be read subject to this limitation.
5.2.7 Such an understanding of the proper role of guardians is, in any event, consonant with the ideal in customary law, where the need to obtain parental approval was supposed to be aimed at ensuring favourable circumstances for a new marriage. Once the spouses' match had been accepted, they could look forward to the support and protection of their families. Several members of the public confirmed this view.
5.2.8 In its Discussion Paper, the Commission recommended that minor children should still look to their guardians for approval of a proposed marriage.[39] When children attained the age of consent,[40] however, it was proposed that parents may neither insist on a particular spouse nor prevent a marriage which the ward was determined to contract.[41] In consequence, women in particular would be entitled to contract marriage without their guardians' support.[42]
5.2.9 These proposals met with considerable public opposition. Although the Department of Justice and the Law Commission's Provincial Workshops accepted the spouses' consent as a minimum requirement for marriage, they said that parents and families (especially the bride's family) could not be excluded from the formation of a marriage if it was to be considered truly `customary'.[43] This argument was endorsed by the House of Traditional Leaders (Eastern Cape) and by the national Traditional Leaders Workshop, who stressed that the process of obtaining parental consent performs the vital social function of providing a supportive context for new marriages.
5.2.10 The Gender Research Project (CALS) agreed with these views. It said that the key role played by guardians reflected a conviction that parents and kin groups had to be included in marriage negotiations if the ultimate union was to be fully valid. Indeed, allowing guardians such power had the positive social function of embedding marriages in the broader social network of two families. Thus the Rural Women's Movement said that `marrying a family is protective of a woman'.
5.2.11 In this regard, the Traditional Leaders Workshop observed that the Discussion Paper had unduly restricted the issue of parental consent by talking only of the prospective spouses' parents. In fact, senior kinsmen are normally involved in marriage, and in customary law their approval would also be considered necessary.[44] What is more, if marriage of a traditional leader were contemplated, the consent of the whole nation would be required.
5.2.12 Sympathetic though the Commission was to these views, it felt that it could not maintain the customary rules of parental (or familial) consent for all marriages. To do so would risk constitutional review on the ground of an infringement of human rights. To some extent respondents' objections may be met if a common-law rule is adopted. Minor children below 21 still require their parents' approval if they wish to conclude a fully valid marriage. Although the absence of this approval is not a fatal defect, the union will be voidable at the instance of an aggrieved guardian.[45]
5.2.13 The Commission also recommended extending certain other statutory rules about parental consent to customary marriages. For instance, if a child's guardian were unobtainable or incapable, the child could make application (in the first instance) to the commissioner of child welfare.[46] If a parent unreasonably withheld consent, the child could apply to court for leave to marry.[47]
5.2.14 The Organized Labour Workshop and the House of Traditional Leaders (Eastern Cape) felt that the importation of statutory and common-law rules was unwarranted. It was argued that customary procedures for designating a guardian where a child's father was absent or incapable should not be excluded. This proposal has considerable merit, for there are useful mechanisms in customary law to ensure that no dependant is left without the protection of a guardian.
5.2.15 According to customary law the senior male members of a family would be entitled to supply consent to a child's marriage. Whether they should be allowed exclusive powers, however, is questionable. The constitutional principle prohibiting discrimination on grounds of sex or gender would imply that mothers (and if necessary senior kinswomen) may also function as guardians.[48] In addition, the Guardianship Act,[49] which gives both spouses equal powers and rights over minor children, suggests that not only fathers but also mothers have the power to give or withhold consent to a ward's marriage.[50]
5.2.16 A consequence of allowing mothers to supply the consent necessary for their children's customary marriages would be to allow them to arrange lobolo. Under the KwaZulu/Natal Codes,[51] de jure emancipated women already have this power.[52]
5.2.17 Finally, a Law Commission Workshop in KwaZulu/Natal observed that, if both parents may consent, a deadlock-breaking mechanism should be made available to cater for situations where the parents cannot agree. The most appropriate solution to this problem would be to allow interested parties to appeal to a court (whether a family or traditional court).
C. Recommendation
5.2.18 To bring customary law into line with the Constitution and the United Nations Convention on the Rights of the Child, a parent's power to consent to marriage must be exercised only in the child's best interests. It would follow that guardians may not unreasonably prevent their wards' marriages and that the consent of a guardian should be deemed necessary to remedy deficiencies in the judgment of minors. Marriages of children below age, where such consent was not supplied, should be voidable at the instance of a spouse or the guardians concerned.
5.2.19 Existing statutory and customary-law rules regulating the consent of absent or incompetent guardians should be applicable to marriages by customary law.
5.2.20 To avoid unfair discrimination on the ground of gender, parental consent should be deemed to include the consent of both the father and mother of an underage child.
5.3.1 Common and customary law both agree on the prohibition against marriage between ascendants and descendants of the same patriline. The common law would also agree with the extension of this rule by most Nguni peoples to marriage with persons related through any of the four grandparents.[53]
5.3.2 The Sotho-Tswana regime, on the other hand, does not so strictly distinguish affinal relatives from relatives by blood. While the prohibition against marriage between men and women related in the direct line of descent remains,[54] any relative on the father's or the mother's side is marriageable. Certain unions, typically between cross-cousins, are positively encouraged.[55]
5.3.3 In the rules governing the spouses' relative capacity to marry, it is apparent that not only are there differences between the common and customary law but there are also differences between systems of customary law. Can these different conceptions about permitted and prohibited marriage partners be accommodated in a unified code of marriage law?
5.3.4 Although relative capacity is a morally charged issue involving incest taboos,[56] we have no evidence that rules on this topic have been the source of any social or legal problems.[57] Respondents to both the Issue and Discussion Papers were noticeably silent on the matter.
5.3.5 Given the sensitive nature of forbidden and preferred marriages, however, the Commission felt that relative capacity should continue to be determined by the cultural or religious nature of a marriage chosen by the spouses.[58] Thus spouses who choose to celebrate their union according to customary rites would be bound to observe customary rules prohibiting marriage between certain kinfolk.
C. Recommendation
5.3.6 The spouses' relative capacity to marry one another should continue to be governed by customary law.
[1] In any event, rules governing capacity are imposed when the state or Church begins to take an interest in marriages: Reuter Native Marriages in South Africa 105-10.
[2] Holleman 72, Van Tromp 35-6, Van Warmelo & Phophi 159, Krige Zulu 103, Roberts 23, Campbell (1970) 3 CILSA 216-17.
[3] With some peoples, notably the Zulu, Pedi and Tswana, initiation ceremonies were assimilated to service in military regiments. Hence, it was only after completion of this duty that recruits were permitted to marry. See Krige Zulu 106-17, Schapera Handbook 104-17, Roberts 24 and Mönnig 119ff esp 124.
[04] Mayer in De Jager Man: Anthropological essays presented to O F Raum 7ff. Nevertheless, as Wilson & Mafeje Langa and Pauw Second Generation 88-9 show, even in urban settings, initiation ceremonies may persist.
[05] McAllister in Mayer Black Villagers in an Industrial Society 243 and Hammond-Tooke Bhaca Society 82.
[06] Olivier et al Die Privaatreg van die Suid-Afrikaanse Bantoetaalsprekendes 9 and Van Warmelo & Phophi 159.
[07] Thus facilitating child marriage or denying children the right to marry or to acquire their own property. See Uzodike (1990) 4 Int J Law & Family 88.
[08] And should be seen as linked with the state's policy, under s 29(1) of the Constitution, that all children be given an education.
[09] As the Law Association of Zambia said, if underage children were allowed to marry, abuse of parental powers would continue unchecked.
[010] Article 16(2).
[011] Article 2.
[012] The Legal Profession Workshop felt that we should be concerned with the protection of children rather than with fixing an age of maturity.
[0] 13 Although the Law Commission's Provincial Workshops, for instance, supported setting a minimum age, opinions varied from 14 years, 18 for both (Northern Province, KwaZulu/Natal, Eastern Cape and Mpumalanga), 18 and 15 (North Western Province), 21 and 18 to 21 for both (Mpumalanga) and 21 for both spouses (Northern Cape).
[014] Section 26 of the Marriage Act 25 of 1961. The Law Commission's Workshop (Western Region) supported this rule. A snap survey by the National Human Rights Trust, however, indicated that 80 per cent of the men and women questioned felt that the marriageable ages of both boys and girls should be increased - a view shared by the Law Commission's Workshop (Central Region).
[015] With the caveat that when South Africa ratified the African Charter on Children's rights, a uniform age of 18 should be adopted for everyone. S G Abrahams recommended an age of 16 for women and 18 for men and the House of Traditional Leaders (Northern Province) recommended 18 and 21, respectively.
[016] Women and Law in Southern Africa (WLSA) Uncovering Reality 20.
[017] Under s 9(3) of the Constitution.
[018] These included Professor J C Bekker, the Department of Land Affairs, the Gender Research Project (CALS), the National Coalition for Gay & Lesbian Equality, the National Human Rights Trust and the Commission on Gender Equality.
[019] 57 of 1972.
[020] From the Office on the Status of Women (Northern Province), which noted that, if this age were adopted, there would be no need to bother about parental consent. Amongst the Traditional Leaders opinion ranged from the age of 18 to 21, although most favoured 18.
[021] The Gender Research Project (CALS), W du Plessis and C Rautenbach (Potchefstroom University), the Department of Welfare and Population Development, A J Louw, the Department of Land Affairs (Workshop held at Wonder Waters assisted by Gender Research Project CALS), the Legal Profession Workshop, the Women's Lobby and Organised Labour.
[022] Article 1. Principle II of the United Nations Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages of 1965, however, proposes 15 (cited in G van Bueren (ed) International Documents on Children (1993) Martinus Nijhof 91).
[023] Section 28(3). This rule was endorsed by the Law Commission's Workshop (Eastern Cape) and the Women's Lobby.
[024] Article 21 provides that: `Child marriage and the betrothal of girls and boys shall be prohibited and effective action, including legislation, shall be taken to specify the minimum age of marriage to be eighteen years and make registration of all marriages in an official registry compulsory.' South Africa's ratification of the latter Charter is at present under consideration.
[025] The Coalition questioned whether consent at 15, even if supplemented by parental approval, would constitute informed consent.
[026] Section 26 of Act 25 of 1961. The Gender Research Project (CALS), however, felt that extending this Act to customary marriages smacks of `westernizing' customary marriage.
[027] See s 38(1) of the KwaZulu/Natal Codes. See, too, Bekker Seymour's Customary Law in Southern 106.
[028] Cf Phillips & Morris Marriage Laws in Africa 102-3.
[0] 29 Glendon State, Law and Family 24-5. The conception of guardianship correspondingly changed, so that it now operates for the benefit of the ward rather than for the benefit of the guardian and family.
[0] 30 Unlike the modern common-law rule in South Africa which deems a guardian's approval necessary only to cure defects in the judgment of minors. Law Commission Advancement of the Age of Majority para 3.1.
[031] Except for KwaZulu/Natal, where his consent is required under s 38(1)(b) of the Codes.
[032] Gcina v Ntengo 1935 NAC (C&O) 21 and Dlomo v Mahodi 1946 NAC (C&O) 61.
[0] 33 Although without prejudice to the rights of any person normally entitled to lobolo: s 38(2) and (3) of the Codes.
[034] Section 38(1)(a)(ii) of the Transkei Marriage Act 21 of 1978.
[0] 35 Section 38(1)(a) of the Codes. Under s 39 the district officer may make an appropriate order regarding the amount of lobolo payable.
[36] But then, presumably, only if she had attained the age of majority under the Age of Majority Act 57 of 1972.
[37] Section 28(2).
[38] Article 3(1).
[39] A principle supported by all the respondents who addressed this question in the Issue Paper. Research by the Gender Research Project (CALS) revealed that in practice familial consent could always be provided. Hence, where parents refused to represent their children in lobolo negotiations, a substitute was found from other members of the extended family. Their suggestion that mechanisms for the substitution of consent by other family members, where parents unreasonably withheld consent, is a sensible one that could be met by allowing consent to be given by a parent or `other appropriate guardian'.
[40] In addition, it should be noted that, under s 7 of the Age of Majority Act 57 of 1972, because a person becomes a major on marriage, widows, widowers and divorcees do not require consent to remarry, even if they are under the age of 21.
[41] To do so would be contrary to the freedom to marry. See art 16 of the Universal Declaration of Human Rights.
[42] One of the major reasons why guardians withhold consent - payment of lobolo - will become irrelevant if lobolo is not essential to the validity of the union.
[43] The question posed by a Law Commission Workshop in KwaZulu/Natal - whether families do not also have legitimate interests to be protected - is met by the principle that a child's interests are deemed to be of paramount importance.
[44] The Traditional Leaders added a further dimension to this issue by noting that traditionally the ancestors' approval was also required.
[45] Or at the instance of an underage spouse, as suggested by J Heaton. A Law Commission Workshop in KwaZulu/Natal suggested that a marriage should not be voidable at the instance of a fraudulent minor who had lied about his or her age or about having the guardian's consent.
[46] Section 25(1) of the Marriage Act 25 of 1961.
[47] Section 25(1) and (4) of the Marriage Act. The National Human Rights Trust noted that, if the applicant wished to contract a customary marriage, the court would need a further power to determine any lobolo payable.
[48] The House of Traditional Leaders (Eastern Cape), however, felt that the argument of unfair discrimination in the Discussion Paper was uncalled for and misplaced.
[49] 192 of 1993. This Act was evidently intended to supersede customary law, since s 1(1) provides that: `Notwithstanding anything to the contrary contained in any law or the common law ....'
[50] Section 1(2) of the Guardianship Act already provides that each parent is independently entitled to exercise any right or power associated with guardianship, except in matters regarding consent to marriage, when the consent of both parents is required unless a competent court orders otherwise.
[51] Section 59.
[52] According to the Zimbabwe decision in Katekwe v Muchabaiwa 1984 (2) ZLR 112 (S), women may gain considerable powers to arrange marriage once they are deemed majors. Dumbutshena CJ found that, when a woman attained the age of 18 years, she was completely emancipated. Thus he held (at 127) that a father no longer had an independent legal entitlement to demand lobolo when his daughter married. Cf Ncube (1983-4) 1 & 2 Zimbabwe LR 217ff.
[53] Van Tromp 36, Krige Zulu 156 and Hunter 184-6. Levirate and sororate unions are by implication not permitted: Van Tromp 37. Cf s 37 of the KwaZulu/Natal Codes.
[54] And marriage is prohibited between a man and his aunts, nieces, stepdaughters, step-sisters and their daughters: Mönnig 194, Matthews (1940) 13 Africa 9-12, Campbell (n2) 218, Poulter Family Law and Litigation in Basotho Society 74-5, Schapera Handbook 125-7 and Coertze 211-19.
[55] See further on the Tswana law Schapera Handbook 127-8, Roberts 25-6 and Lye & Murray Transformations on the Highveld 115ff (for both the Sotho and Tswana). See Van Warmelo & Phophi Part I 8-61 on the Venda and Krige & Krige 142-4 on the Lovedu.
[56] Not only is marriage between persons related within the prohibited degrees forbidden but usually also sexual intercourse: Mhlanga v Msibi 1930 NAC (N&T) 80 at 82, Nyawo 1936 NAC (N&T) 12 and Mountain v Mandla 1946 NAC (C&O) 38.
[57] In any case, where family ties have weakened, as in urban areas, rules tend to be less rigourously enforced. Doubtless the spread of Christianity has also affected traditional African conceptions of forbidden and preferred relations. See Wilson & Mafeje (n4) 76, Mair in Phillips Survey of African Marriage and Family Life 12-13 and Pauw (n4) 113-4 and 125-6.
[58] This is an area in which it would seem appropriate to invoke the freedom to pursue a culture or religion of choice under ss 30 and 31 of the Constitution.
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