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6.1.1 Under customary law a man may marry as many wives as he wishes. Because wives were a source of wealth and status, polygyny was said to be the goal of all men.[1] Yet, even in the past, polygyny was unlikely to have been a common practice.[2] Today it lingers as a potential rather than a reality, since very few men can now afford more than one wife.[3] A form of de facto polygyny is more usual, whereby migrant workers marry a wife in the rural areas and later informally cohabit with a second woman in the city.[4]
6.1.2 None the less, the freedom to have more than one wife has long been condemned, and heated debate on the issue persists, as was indicated by the fact that nearly all replies to the Issue and Discussion Papers dealt with this topic.[5] Predictably, very few women were in favour of polygyny.[6] From a snap survey in Empangeni, for example, the National Human Rights Trust reported that 80 per cent of women were against polygyny and 70 per cent of men were for.
6.1.3 Those in support of polygyny claim that it performs valuable social functions.[7] A woman who might otherwise remain unmarried may be legally absorbed into a domestic unit, and a man who might be tempted to commit adultery (and risk the breakdown of his marriage) may instead contract another valid union.[8]
6.1.4 In assessing whether polygyny is a positive or negative force in society, Professor C R M Dlamini (University of Zululand) compared divorce. Although everyone recognizes that divorce works considerable hardship on women, it is considered, for no obvious reason, as a lesser evil than polygyny. Professor Dlamini argued that any supposed wrongfulness in polygyny should be deemed to be vitiated by consent: if a woman is prepared to waive what may be a constitutional right in her own interest, why should she not be free to do so?[9] Judge S S Ngcobo also felt that the fact that polygyny is practised unconstitutionally cannot make the institution itself unconstitutional.[10]
6.1.5 Although many of the current opponents of polygyny repeated the moral and religious objections of the past,[11] today the main charge is purely secular: that polygyny infringes the constitutional prohibition on discrimination against women.[12] Discrimination, of course, implies that women suffer material prejudice, and, in this regard, respondents could offer many examples.
6.1.6 Thus, polygyny is said to be used as a justification for abandoning older women who are past child-bearing age. (In monogamous marriages, of course, these women would be protected by divorce laws.)[13] Men who marry more than one wife usually support only the last-married wife (or the women and children they happen to be living with). While subsequent unions redounded to the benefit of the first wife (who gained in status and extra hands to do domestic chores), the junior wives had less status, more work and their children fewer entitlements to property on inheritance.[14] The Department of Land Affairs Workshop held at Wonder Waters (assisted by Gender Research Project CALS) said that polygyny had a critical impact on land reform programmes.
6.1.7 The claim that polygyny infringes the constitutional prohibition on discrimination against women implies two different arguments: that men have a right which women lack and that a conjugal relationship structured on one husband and several wives inevitably results in prejudice to women.
6.1.8 If men have a right that women do not, application of a principle of non-discrimination could require either abolishing the male right or allowing women to take more than one husband. The former of these alternatives will be explored below. The latter - which was put forward in `tit-for-tat' style by certain of the Law Commission's Provincial Workshops[15] and the Office on the Status of Women (Northern Province) - enjoys little serious support. As the Legal Profession Workshop said, polyandry is not accepted in any of the cultural or religious traditions of South Africa and to introduce it as a solution to objections against polygyny appears contrived.[16]
6.1.9 The argument that polygyny must inevitably harm women is a more complex issue. It is no doubt true that having several wives gives men an unwarranted sense of status and a greater opportunity for sexual gratification. It is also true that women in compound families are more likely to be thrown into competition, and therefore conflict, over resources.[17] But polygyny on its own is not the cause of female subordination nor is it directly responsible for abuses suffered by women.[18] Rather, it is one factor contributing to the patriarchal nature of a society.
6.1.10 Deciding whether a legal rule or institution constitutes infringement of the constitutional right to equal treatment very often leads to a balancing of interests, a process that entails consideration of broader social, political and economic issues. In this regard, the argument that polygyny prejudices women must be weighed against certain respondents' claims that the institution performs valuable social functions.[19] Investigation of the social effects of legal institutions, however, should be adopted only with caution. In deciding whether polygyny constitutes unfair discrimination, for example, we need to be careful that we are not drawn into an examination of its manifest and latent social functions, since this is likely to be a complex and inconclusive inquiry.
6.1.11 We must appreciate that, strictly speaking, only the first wife of a customary marriage suffers direct prejudice, since she is the person who may be compelled to submit to subsequent unions against her will. A later wife (or wives) has a choice in the matter, and even the first wife can protect herself by insisting on a civil marriage.
6.1.12 None the less, many people questioned how real a woman's choice is, because her freedom must be evaluated in terms of the alternatives available to her. Given current socio-economic conditions, women can gain access to resources (especially to land) only through their attachment and submission to men.[20] There seems to be no legal answer to this problem. Economic and social pressures undoubtedly drive women into less than perfect marriages, but the law cannot be expected to control these pressures. The best that can be done is to ensure that spouses consent to marriage.
6.1.13 Whatever the merits of arguments and excuses for polygyny, overall public sentiment was that it should no longer be supported. Some of the respondents (Law Association of Zambia and the Law Commission's Workshops at Mpumalanga, the Northern Cape and the North West) suggested banning the institution outright. Most people, however, thought that a prohibition would be inadvisable. Not only would it would impossible to enforce, but men would also be encouraged to engage in informal unions,[21] which offer women and children no legal protection at all.
6.1.14 Hence the majority of the respondents (notably the Houses of Traditional Leaders in the Free State and the Eastern Cape) were in favour either of allowing the practice to die out of its own accord or of assisting to phase it out (the Women's Lobby[22] and Dr H M de Vetta). The latter proposal, of course, implies some form of state intervention.[23] The problem then arose of finding an appropriate (ie an effective) form of intervention.[24]
6.1.15 Exacting some type of proprietary penalty was one suggestion. The Commission on Gender Equality, for instance, proposed dividing the husband's estate equally between the wives on dissolution of marriage.[25] The Law Commission's Provincial Workshops and the Gender Research Project (CALS) suggested a serial division of the estates. The Legal Profession Workshop, on the other hand, recommended a more active sanction: that husbands should be required to support their families and that wives should be given adequate proprietary protection. Complementing this proposal, the House of Traditional Leaders (Eastern Cape) stressed that polygynists should respect cultural practices, which would mean treating each household fairly and entering into more marriages only if all the households could be fully maintained.
6.1.16 Another type of legal intervention, put forward by Adv N Cassim, J Heaton and supported by the Gender Research Project (CALS) and the Department of Justice, was to register only a man's first marriage.[26] Any proposal that the state should not register polygynous unions, however, seems unwise, because it would result in the creation of a new set of `limping' marriages, similar to the `discarded families' created under section 22(7) of the Black Administration Act. As a similar colonial experiment in the Transkeian territories showed, the intended beneficiaries of such legislation (women) are the ones who ultimately suffer.[27] A suggestion was made by the Department of Justice that special legal protections should be offered to wives who knowingly (or presumably unknowingly) entered polygynous unions, but this would amount to visiting no sanction at all on polygynous marriage.
6.1.17 Instead, it seems preferable to allow the gradual process of disuse to take its course.[28] In the interim, a compromise with the principle of non-discrimination was suggested in the Issue Paper: that the consent of the first wife of a potentially polygynous marriage be obtained before the husband is entitled contract a subsequent union.[29] The Commission suggested this rule because it corresponds to the principles of customary law: if a man wants to marry again, he should at least consult his senior wife.[30] (Subsequently we were informed by the Gender Research Project (CALS)[31] that the traditional ideal of consultation is no longer part of the `living law'.)
6.1.18 The Commission's suggestion was supported by the Legal Profession Workshop, the Law Commission's Workshops in the Western Region and Eastern Cape and A M Moleko. Other respondents objected. The Department of Justice observed that in practice the husband's duty to consult is treated as no more than a formality,[32] and in any case, as the Gender Research Project (CALS) said, women in secure marriage relationships would be most unlikely to withhold their consent. (Professor C R M Dlamini pointed out that the first wife risked at best marital discord and at worst divorce.) The Gender Project added that wives are seldom in a position to give a properly informed consent, since men often misrepresent their true marital status and women are heavily influenced by their precarious economic position.
6.1.19 The Commission accepts the common point of these objections: that legislating a right for the first wife might create `paper law'. What is more, it would be difficult to formulate a suitable penalty if a husband were to contract the second marriage notwithstanding his first wife's refusal to approve it. To declare the second marriage invalid would constitute such a grave departure from customary law that few people would pay any attention to the penalty.
6.1.20 It should be noted that, if several other recommendations made in this Report are adopted, the position of the wife in a customary marriage will be stronger than before. Formal recognition of her equal proprietary, contractual and decision-making capacity and locus standi, the confirmation of her majority status and the removal of the marital power over her, should all conduce to the improvement of her bargaining position on major family issues. Education and economic empowerment above all else are the true emancipators, and where they exist they are infinitely more potent protections against practices such as polygyny than potentially unenforceable state laws.
6.1.21 One final point needs to be made. The public debate over polygyny invariably ignores or underplays the crisp constitutional issue, which is not about the intensity of public feeling for or against but rather involves an objective assessment of the practice. Is it discriminatory ? If so, is it unfairly discriminatory ? Even so, does it find protection under the limitation clause,[33] or the clauses on religion[34] or culture[35] or any other provision in the Constitution ? The answers to some of these questions may have to await a ruling by the courts, especially the Constitutional Court.
6.1.22 Judging from the emerging constitutional jurisprudence on issues of culture, customary law and religion, the courts are not prepared to strike down a customary practice merely because it is controversial or is under attack from various interest groups. These recent judgments[36] suggest that it is now unsafe to assume that a kind of hegemonic western orthodoxy will prevail over African customs which do not fit comfortably within the dominant cultural frame. More seems to be needed; namely, that the custom in question must, on a cold, objective assessment, fail all the tests set out in the Constitution.
6.1.23 In these circumstances it would be dangerous to assume (without further investigation) that any customary practice, such as polygyny, initiation or the levirate (to name a few of the more topical ones) are ‘obviously’ unconstitutional. And it would be unwise in the extreme to pre-empt possible rulings on these issues by the hasty prohibition of polygyny in customary law, when the same issue may weigh heavily in debates about religious marriages, which are themselves soon due for recognition.
6.1.24 A not insignificant factor in this debate is the question of appearances. Currently there is considerable controversy in South Africa over other emerging family forms such as same-sex relationships and cohabitation. These raise complex issues of a legal and moral kind which are far from resolved. To rush in with an irrevocable ban on the one peculiarly African mode of constituting a family, while entertaining public debate on these other forms runs the risk of sending the wrong message to a large part of the South African population.
6.1.25 Customary marriages should continue to be potentially polygynous. This recommendation is made for several reasons, the most important of which are the difficulty of enforcing a prohibition and the fact that polygyny appears to be obsolescent.
6.2.1.1 Traditionally, senior African men enjoyed a generous authority that is usually captured in the term `patriarchy'. This is a vague concept, but it generally denotes the totality of rights and powers that men are entitled to exercise over their wives and daughters. Formerly, women subject to the common law suffered under a similar patriarchal tradition,[37] but over the years the South African legislature introduced a series of acts designed to upgrade the status of women.[38] True to the pattern of such reforms, no attention was paid to customary marriages.[39] Spousal relations in these unions, therefore, continued to be governed by customary law.
6.2.1.2 In a traditional system of customary law, a man's position as head of a family would have entailed weighty responsibilities to care for those under his control. As customary law was translated into an `official' version, however, these responsibilities were played down. Greater emphasis was placed on a man's powers and the corresponding incapacities suffered by his subordinates.[40] `Official' customary law now represents some of the worst features of the `invented tradition'.
6.2.1.3 Unfortunately, the `living law' is no better condition, since it is both nebulous and contradictory.[41] This situation could perhaps have been expected, for marriage generates various vague expectations and responsibilities of a social or moral nature which are not readily amenable to legal regulation.[42] In consequence, it is far from clear what the rules of contemporary customary law are. None the less, popularly held views on gender roles are influencing people's views about what the law ought to be.[43] These views are in turn drawn from the patriarchal traditions of African culture, which husbands take as a broad justification for their entitlements.
6.2.1.4 Men's claims are usually linked to payment of lobolo, for they argue that if they paid lobolo they should have full power over their wives.[44] In Zambia, for example, people say that, because a husband paid lobolo, he should be entitled to any income derived from his wife's full-time employment. Formerly, she would have worked in the fields for her husband; by going out to work, she deprives him of this service. He therefore takes her wages as compensation.[45]
6.2.1.5 On the same understanding, husbands may claim the right to chastise their wives and to demand sexual favours at will, or the power to make decisions in matters such as adopting birth-control measures, buying and selling the family house, educating children and allowing wives to go out to work.[46] Although in practice a wife may exercise considerable powers of her own, it is generally supposed that her husband is head of the family with no more than a moral duty to consult his wife on matters of major importance.[47]
6.2.1.6 The widely held assumption that all the claims made by men are endorsed by the law is in many cases groundless. With the exception of marital rape,[48] none of the issues mentioned above has been properly tested in court and many of them were never contemplated in the past. It follows that contemporary male views about their legal powers have no real foundation in `tradition', especially since women have long since outgrown the social and economic constraints that used to be imposed on them.
6.2.1.7 The customary law governing spousal relations is in such an uncertain state that legislative intervention is invited. Reform is needed to bring the law into line with socio-economic changes in South African society and to give effect to the principle of equal treatment in s 9 of the Constitution[49] and the Convention on the Elimination of Discrimination against Women (CEDAW).[50]
6.2.2.1 Before any attempt is made to create a more equitable marital relationship, the general legal status of women must be upgraded. According to the `official' version of customary law, women (especially the wives of customary marriages) have no capacity to hold and dispose of property, contract and sue or be sued in court.
6.2.2.2 Deprivation of capacity rested on a belief that women were not versed in the ways of the world. It followed that they needed the help of a male guardian when dealing with people outside the family. By drawing an analogy with children,[51] the courts have tended to assimilate African women to the status of minors in common law.[52] Full capacity is regarded as a senior male preserve.
6.2.2.3 Women are not allowed to bring legal actions in their own names. If they were to do so, a hallowed principle of customary law would be destroyed,[53] one that goes `to the very root of Native custom'.[54] Women are supposed to be ignorant of the forensic arts and thus in need of someone to argue their cases for them. Here the common-law institution of minority seems to have influenced customary law. A woman cannot (formally at least) be denied her action; she merely requires assistance to bring it.[55] If her guardian does not appear in court with her, a curator ad litem will be appointed.[56]
6.2.2.4 Women also lack contractual capacity.[57] If we are to judge from the surprising dearth of cases on this topic, however, their lack of power has occasioned no particular social or legal problems. The few judgments available seem to indicate that women have again been treated like minors at common law.[58]
6.2.2.5 The most serious female incapacity is proprietary. Although women throughout Africa have always played a vital part in food-production, they are usually denied control over land and livestock (the means of producing food). From the general principle that women are subordinate to men, the courts then extrapolated a rule that women have no capacity to hold or deal with property. Women were like `minors' subject to `guardianship'.[59]
6.2.2.6 Having arrived at this conclusion, the courts could have construed female incapacity to deal with property in the same protective manner as a minor's incapacity under common law.[60] But African women were given no such benefits. In fact, the meaning of proprietary incapacity in customary law is uncertain. It could denote absence of a power to acquire property, the freedom to use and dispose of it, the right to vindicate it or all three. The courts have never specified which.[61]
6.2.2.7 In 1943, legislation was introduced to amend the customary law governing contractual capacity and locus standi. Section 11(3) was inserted into the Black Administration Act to give all those subject to customary law the capacity to conclude common-law contracts and the locus standi to sue or be sued for debts arising out of the common law. This section provided that:
`The capacity of a Black person to enter into any transaction or to enforce or defend his rights in any court of law shall, subject to any statutory provision affecting any such capacity of a Black, be determined as if he were a European ....'
6.2.2.8 In 1985, by the insertion of s 11A, the Black Administration Act was again amended to give women the power to acquire the then newly enacted statutory rights in African townships (especially 99-year leaseholds created under Act 90 of 1985). This amendment, however, had no effect on women's general contractual or proprietary capacity.
6.2.2.9 Generally speaking, s 11(3) did not change capacity for contracts and debts governed by customary law.[62] Furthermore, because the main clause of the section refers to `a transaction', it implies that capacities associated with delicts and property were excluded (although on occasion the courts held that claims relating to property should be governed by the common law, and so locus standi was determined by the same system).[63]
6.2.2.10 Any powers given to women in the main part of s 11, were largely nullified by a proviso in s 11(3)(b), which provided that:
‘a Black woman (excluding a Black woman who permanently resides in the province of Natal) who is a partner in a customary union and who is living with her husband, shall be deemed to be a minor and her husband shall be deemed to be her guardian.’
This provision was a distortion typical of the `official' version of customary law. The common-law concepts of minority and guardianship could not capture the actual nuances of female status, and, even when s 11(3)(b) was promulgated, it did not reflect the social reality that many married women were living independent lives.
6.2.2.11 Quite apart from the unwarranted legal burdens it imposed on women, s 11(3)(b) has been the source of much confusion, for it depended on a woman being married by customary law and `living with' her husband, two qualifications that were ambiguous and difficult to apply. In the first place, customary marriages could not be defined with precision. In the second place, the meaning of the phrase `living with' was obscure. (The courts refused to interpret it literally.)[64]
6.2.2.12 Finally, it was not clear whether customary or common law had to be used to identify the woman's guardian.[65]
6.2.2.13 It is obvious from the above that the customary law governing female capacity is in urgent need of reform. The easiest issue to begin with is s 11(3)(b) of the Black Administration. No one has argued for its retention. To the contrary, the call has come from many quarters, particularly the Rural Women's Movement and the Centre for Applied Legal Studies (Wits), to have it repealed. The section has already been abolished in KwaZulu,[66] where wives of customary marriages now enjoy a common-law contractual capacity and locus standi. There can be no argument in favour of this anomaly of the past.
6.2.2.14 The capacities of women could be further enhanced by a ruling that the Age of Majority Act applies to persons subject to customary law.[67] Several respondents to the Issue Paper, namely the Women's Lobby, Professor J C Bekker and the Gender Research Project (CALS) called for a wider application of this Act. Because majority status empowers generally, women over the age of 21 would automatically acquire full capacity as emancipated adults on a par with men.
6.2.2.15 It has long been a moot point whether the Act overrides customary law.[68] (Similar doubts about the effect of age of majority legislation have arisen in other African countries.)[69] In order to dispel uncertainty, Natal and KwaZulu had to pass special amendments to the Codes to provide that the Age of Majority Act had supervening force.[70] Reform of spousal relationships now provides a suitable occasion for recommending that the lead taken in that Province be followed nationwide.
6.2.2.16 The Council of SA Banks has urged that all contractual undertakings entered into under existing laws should continue to be governed by those laws until the contracts come to their conclusion or are renegotiated. This request (which aims at ensuring legal certainty) would accord with general legislative principles and is therefore supported by the Commission.
6.2.2.17 Application of the Age of Majority Act to women married by customary law will still not have the effect of empowering women under the age 21. Hence, a more general reform seems to be required. Article 15(2) of CEDAW, which is directly relevant to proprietary and contractual capacity and locus standi, obliges South Africa as a party to the Convention to:
‘accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.’
6.2.2.18 Provision should therefore be made that men and women will henceforth enjoy the same legal capacities. Once this has been done, the way is clear for establishing equality within the marital relationship, in particular, equal powers of decision-making over birth control, the rearing of children and the purchase and alienation of family property.[71]
6.2.2.19 This proposal attracted general approval from the public. It was opposed mainly by the House of Traditional Leaders (Eastern Cape),[72] which felt that the husband, as a link to the ancestors, should be formal spokesperson and head of the family. Nevertheless, as an exception to customary principles, the House supported a wife's contractual capacity[73] and locus standi.[74] In a telling aside, however, it said that there was no need to legislate about spousal equality, since in practice it already exists.
6.2.2.20 After South Africa had signed CEDAW, the old common-law rule that husbands had marital power over their wives was abolished, first for non-Africans, who married after the commencement of the Matrimonial Property Act,[75] and then for Africans, who married by civil rites after the commencement of the Marriage and Matrimonial Property Law Amendment Act.[76] Abolition was made retrospective by s 29 of the General Law Fourth Amendment Act.[77]
6.2.2.21 In spite of these amendments, it is still not clear whether the further common-law principle that the husband is head of the family, and thus has overriding powers of decision-making for all issues common to the marital consortium, was also repealed.[78] The Commission felt that, whatever the state of the common law, all wives, regardless of the form of marriage, should now have powers and rights equal to those of their husbands.[79]
6.2.2.22 The Commission appreciates that these recommendations involve a substantial break with the African patriarchal tradition. However, as the Gender Research Project (CALS) and the Rural Women's Movement said, if particular married couples feel happier with that tradition, they are still free to structure their relationships accordingly. But the general principle should remain that wives are no longer legally bound to accept their husbands as family heads and sole decision-makers.
6.2.2.23 From these recommendations it follows that the sections in the KwaZulu/Natal Codes[80] and the Transkei Marriage Act,[81] that husbands have marital power over their wives, must be repealed.[82] Moreover, the Legal Resources Centre (Durban) pointed out that, in order to ensure clear protection of women's rights, s 22 of the KwaZulu/Natal Codes should also be repealed.[83]
6.2.2.24 Women should be deemed to have contractual capacity, locus standi and proprietary capacity (and in consequence delictual capacity) on a par with men. It is therefore recommended that section 11(3)(b) of the Black Administration Act be repealed.
6.2.2.25 In addition, to cure many years of uncertainty, clear provision should be made that the Age of Majority Act applies to persons subject to customary law.
6.2.2.26 In compliance with South Africa's obligations under CEDAW and the Constitution, legislation should be passed to provide that spouses have equal capacities and powers of decision-making. Such legislation will entail the repeal of sections 22 and 27(3) in the KwaZulu/Natal Codes and section 39 of the Transkei Marriage Act.
6.3.1.1 Control of property is the key to social empowerment,[84] and, had married women acquired clear rights and powers over property, their overall position would have been much improved. Unfortunately, property relations happen to be one of the least explored areas of customary law.[85] Aside from empirical research in the Cape,[86] we have little direct information on the `living law'.[87] While it is quite likely that many women, especially those who are single, widowed or divorced, independently work for and hold property, the vagueness of customary law allows men to invoke patriarchal tradition to their own advantage.[88]
6.3.1.2 It is the absence of information that may account for the Traditional Leaders’ Workshop reaction to the Issue and Discussion Papers. They could see nothing offensive in customary law, since they totally rejected a claim in the Issue Paper that women do not own property. Evidently, a custom is emerging whereby some traditional courts in KwaZulu/Natal award the house to a wife (and children) on divorce and order the husband to leave. The Traditional Leaders in fact called for more research, saying that differences between laws were apparent and that legislative change should not be supported for its own sake.[89]
6.3.1.3 It is quite understandable why customary law should be so vague on questions of property. Before colonization, there would have been little need for an elaborate code of rules, because people had a relative abundance of food and land, and the economy was geared mainly to subsistence. An individual's responsibility to support dependants was given far greater emphasis.[90] It was inevitable, then, that customary law would have few rules specifying rights to property.
6.3.1.4 The rules that entered the `official' code were predicated upon polygynous households and the need in such circumstances to keep estates strictly separate.[91] On marriage, each wife established a house that, according to the date of marriage, was ranked in relation to the other houses.[92] Within the family, rights to an item of property were determined by the position of the person acquiring and having regular control over it and the use to which the item would be put.
6.3.1.5 The courts therefore drew two distinctions, one between personal property and goods attracting wider family interests and the other between property in each house and a general family estate.[93] Things of an intimate nature, which served only the interests of the holder, such as wearing apparel, tools and weapons, were deemed to be personal, and could therefore be used and disposed of without reference to anyone else.[94] On a similar basis, gifts given by a husband to his wife became her own property,[95] and so too did the livestock given to ensure her spiritual protection.[96] Productive property, on the other hand, especially large livestock, attracted family interests.[97] This property was generally not subsumed under the personal category.
6.3.1.6 The status of the person acquiring property also helped to determine whether it should be treated as house or family estate. Anything obtained by or through a member of a house accrued automatically to the house concerned. Traditional items in this category were the lobolo given for a daughter's marriage, the damages paid for her seduction and the acquisitions of children.[98] Today, a significant source of house property is a wife's earnings, since whatever a woman earns after marriage is deemed to belong to her husband.[0]
6.3.1.7 Apart from property accruing automatically to a house, a family head could make specific allotments.[100] An important item in this regard, especially in rural areas, would be the agricultural fields allotted to wives by the head of the household.[101] Family dependants, and women in particular, generally had no right to demand land from the traditional authorities.[102] Their access to land was indirect, derived from a duty incumbent on heads of households to provide them with the means of support. Thus every wife, on marriage, would be entitled one or more plots of land on which to grow food for herself and her children.[103]
6.3.1.8 All the assets in a house estate fell under the husband's overall control, to be administered for the common good.[104] In the first instance, therefore, a family head had to maintain the wife and children in the house concerned.[105] But he could also call upon house property to settle his own lobolo debt and any damages due for wrongs committed by members of the house.[106] Thereafter, he was free to use house property to satisfy his personal wants and needs.[107]
6.3.1.9 Any unallotted property, together with the family head's earnings, accrued to the family estate. A family head could obviously use this property in his discretion for his own needs, but his duty to support dependants would in practice take precedence. The major difference between family and house property, therefore, lay in a rule that the head of the family could not divert house property from one house to another without obtaining prior approval of the wife in the house affected.[108] Otherwise, when the family head died, his main heir inherited the family estate and the heirs of each house inherited the estate within that house.
6.3.1.10 The customary principle that acquisitions accrue to a house has serious implications for modern working women, because it gives family heads an almost unmitigated control over their wives' income. Occasional rights that women traditionally enjoyed to livestock of ritual significance are irrelevant in modern economic contexts.
B. Evaluation
6.3.1.11 Nothing has been done in South Africa to adjust customary law to changes in the economic relationships of family members.[109] The courts were reluctant to interfere with the privileges of patriarchy, which they saw as the basis of a `valuable asset in Native Law', namely, communal support.[110] This timid attitude to law-making, however, has resulted in a code of obsolete rules. All the provisions regulating control of property in polygynous households, for instance, have no bearing on the requirements of modern marriages, which are nearly all monogamous.[111]
6.3.1.12 On occasion, the courts applied the common-law age of majority to Africans, thereby allowing individuals certain powers over property. In the former Transkeian Territories,[112] for example, where special provision was made for all persons over the age of 21 to become majors, it was held in two cases that the age of majority introduced `individual ownership of property as opposed to family ownership'.[113] Unfortunately, it is debatable whether these decisions were correct. Granting majority clearly gives individuals the power to hold property, but it does not necessarily give rights (opposable against the head of the family).[114] In other words, the law of persons cannot cure the deficiencies of the law of property.
6.3.1.13 While most respondents to the Discussion Paper, such as Organised Labour, seemed to accept that gender equality should determine proprietary capacity and more generally proprietary relations of the spouses, the House of Traditional Leaders (Eastern Cape) felt that the notion of individual ownership offended the communal ethic of customary law. The House charged the Commission with forcing customary law into conformity with western values. This objection is taken (especially the House's accusation that the Commission was imposing a new kind of repugnancy clause), but to allow customary law to persist in its present form is to ignore social realities and to invite constitutional review on the ground of gender discrimination.
6.3.1.14 The Commission therefore considers that an individual's full ownership in his or her acquisitions should now be formally recognized. Implementing this recommendation will involve consequential changes to the existing rules on the delictual liability of family heads, because control of property and liability in delict are intimately connected.[115] But such changes should be attended to by the courts (as happened in the past) rather than the legislature.
6.3.1.15 Finally, note was taken of the Gender Research Project's (CALS) concern, which was shared by many women, that organs of state should show no gender bias when responding to claims put by individuals, families and communities for return of land. Gender equity in the allocation of land is a matter of special significance in South Africa,[116] but it is an issue that cannot be considered in a law on marriage. It involves the powers of traditional leaders and therefore falls to be considered in a different context.[117]
6.3.1.16 While age of majority legislation can free people to engage in commercial and other dealings with the world at large, it cannot protect their acquisitions from other members of their own family. It is therefore recommended that individual proprietary capacity now be placed beyond doubt. A clear legislative statement is needed that everyone be deemed capable of owning property with the result that full ownership in individual acquisitions will be recognized.
6.3.2.1 Linked to the paucity of rules on property in customary law is an absence of rules designed to regulate management of family estates. It was (and still is) assumed that heads of households have an almost complete discretion in their control of family and house property. (This power complements their authority to represent the family in dealings with third parties.) The main limitation on a family head's management of house and family estates was a general duty to maintain dependants, which would in practice be enforceable only through complaints to family elders.
6.3.2.2 Problems related to an over-generous power of management can arise in two situations. In the first, if a family head were to dissipate assets through negligence or incompetence, family members would have few formal mechanisms to restrain him. His wife's ultimate remedies would be desertion or, as a last resort, divorce.
6.3.2.3 The KwaZulu/Natal Codes introduced provisions to regulate this situation. A minor may initiate an `administrative enquiry' through a district officer or traditional ruler to obtain an order that the family head desist from using the minor's income `unreasonably'.[118] Alternatively, any interested person may have a family head suspended if he was handling family property `foolishly or prodigally',a right which is similar to applying for a common-law declaration of prodigality.[119]
6.3.2.4 The KwaZulu/Natal remedies need to be generalized in the sense that any family member should be entitled to restrain the actions of the person with control over property in which that member has an interest. Although the existing measures of divorce or suspension from office are too drastic,[120] they will probably become less important when family members are given ownership in their own acquisitions. Aggrieved individuals will then be entitled to bring proprietary actions to prevent the family head from disposing of their assets.[121]
6.3.2.5 In the second situation, if the family head were absent or otherwise unable to discharge his duties, his wife had no automatic authority to deal with property. It is true that she might be installed as an `eye' or `keeper' of the household to attend to day-to-day disbursements in her husband's absence,[122] but if no such arrangement had been made, the wife would be subject to one of her husband's senior agnates.[123] Once wives are given equal powers of decision-making equal to those of their husbands, problems of authority to manage the marital estate in the case of absent or incompetent husbands will, however, be solved.
6.3.2.6 Remedies in the KwaZulu/Natal Codes for restraining or deposing a person who mismanages a family estate should be made available to all members of the family and these remedies should be applicable nationwide.
6.3.3.1 It has always been assumed, without any particular reason, that only partners to civil or Christian marriages could conclude antenuptial contracts. Although the House of Traditional Leaders (Eastern Cape) said that this institution was foreign to customary law, Africans like everyone else in South Africa have freedom to contract. The spouses of customary marriages should therefore be entitled to enter into an antenuptial contract.[124]
6.3.3.2 This freedom must, of course, be exercised within the permissible bounds of the Bill of Rights. Hence the Gender Research Project (CALS) pointed out that antenuptial contracts would be subject to judicial review if they contained clauses discriminating on grounds of gender.
6.3.3.3 W du Plessis and C Rautenbach (Potchefstroom University) pointed out that certain difficulties regarding antenuptial contracts will occur in the case of polygynous marriages. When a husband concludes a contract with his second wife, should he obtain the consent of his first wife? Should the second wife have sight of the first wife's contract? The Commission felt that these were issues of detail that would best be solved by the courts.
6.3.3.4 Spouses should have the power to enter into an antenuptial contract to vary the automatic property consequences of marriage.
6.3.4.1 In former times, an individual's economic welfare would have depended on the support of kinfolk and to a lesser extent on neighbours and traditional rulers. Women, in particular, were always dependent on men for support. Today, however, most people are responsible for their own livelihoods[125] (although rising unemployment has forced increasing numbers to seek social welfare benefits from the state).[126]
6.3.4.2 Problems in the spouses' proprietary relations usually surface on divorce. During marriage, both partners work jointly to support the family, but if the marriage breaks down the remnant family faces a drastic fall in income relative to its needs, which remain at a fairly high level. The burden of satisfying these needs then falls on the least qualified and most poorly paid spouse: the former wife.[127]
6.3.4.3 Because customary law is still based on the understanding that an individual's primary source of support is the extended family, the maintenance of wives and children is of little consequence.[128] Both in law and common perception, women are supposed to rely on men, who therefore carry the full responsibly for supporting them. Reality, however, seldom corresponds to the law or popular belief.[129]
6.3.4.4 Poverty and the attenuation of family ties have made women and children economic burdens to their families. Hence, on the break-up of marriage, women are likely to find themselves at a serious disadvantage. While their employment opportunities are far worse than men's and their pay lower, gender roles dictate that mothers must raise children, while husbands retain guardianship (with its attendant benefits).[130] Women therefore find that, unaided, they must support not only themselves but also their offspring.[131]
6.3.4.5 When confronted with a similar problem, western legal systems reacted in two ways: by extending the husband's liability to maintain his wife and children beyond the termination of marriage and by giving the wife a share of the matrimonial estate. The former solution was prospective, working on an assumption that the spouses had a perpetual duty to maintain one another.[132] The latter solution was retrospective, founded on proprietary rights established automatically (or by contract) at the time of marriage.
6.3.4.6 Far-reaching changes are necessary to the present regime of customary law to make some provision for the financial needs of wives and children.[133] As was indicated above, according to the `official' version, women generally lack proprietary capacity and there are few rules that would be appropriate to regulating contemporary divorce problems.[134] Instead, by assigning a wife's earnings to the category of house property (which is deemed to belong to the husband), this version of customary law in effect deprived wives of almost all property.
6.3.4.7 It is quite possible that the `living' customary law is already evolving towards remedying the financial problems of divorced women. Research conducted by the Women and Law in Southern Africa Project into property consequences of divorce in Zambia,[135] for example, indicated that, while customary law did not endorse the idea of maintenance, certain lower courts in urban areas were ordering husbands to pay lump sums of `compensation' on divorce. The purpose of these orders was partly to protect women who had been divorced without good cause and partly to compensate them for services they had rendered during marriage.
6.3.4.8 The first step towards creating a fairer proprietary regime in marriage would be to give wives full proprietary capacity. Once women can acquire property on their own account, the way is open to deciding a matrimonial proprietary regime. This is a complex subject even in the common law, which now permits at least four different possibilities.[136]
6.3.4.9 In practice the nature of the property system is of little account during an harmonious marriage, since problems tend to emerge only when the union is dissolved. Hence, the Commission's main goal was to ensure an equitable distribution of assets on breakup of the marriage.[137] Most respondents, in particular the Law Commission's Workshops (Central Region, Eastern Cape and Southern Region) and the Rural Women's Movement, supported this aim. Only the House of Traditional Leaders (Eastern Cape) found no need for an equitable distribution, on the ground that property belonged to the entire family in perpetuity.
6.3.4.10 The Commission felt that it was immaterial whether estates were held separately or in community during marriage, provided that the economically weaker spouse was suitably protected on divorce. Statutory procedures for ensuring this protection are already available for civil marriages, namely, an automatic accrual regime,[138] forfeiture of benefits,[139] recognition of the wife's contribution as homemaker and child-rearer[140] and consideration of future benefits (such as pensions and retirement annuities).[141]
6.3.4.11 In the case of African marriages, the tendency in the past was to assume that spouses would be more likely to accept a separation of estates.[142] And, as R W Skosana said, if polygyny is accepted, separate estates would be the regime most compatible with a compound household. Judge S S Ngcobo, too, felt that polygyny would be inconsistent with community of property. The Commission therefore recommended in the Issue Paper that customary marriages be deemed to be out of community (unless the parties chose otherwise by an antenuptial contract).[143]
6.3.4.12 The Commission was quite unprepared for the strength of opposition to its proposal. Both the National Human Rights Trust and the Gender Research Project (CALS) objected to a suggestion in the Issue Paper that Africans were culturally predisposed to having separate estates. The House of Traditional Leaders (Eastern Cape) said that holding property out of community contradicted the communal ethic of customary law. Participants at the Department of Land Affairs Workshop at Wonder Waters Conference (assisted by Gender Research Project CALS)[144] felt that holding separate estate could be destructive of marriage as an institution, for it would signal a shift in values and responsibilities (especially for men). It said that customary values favour community of property, since every family member is entitled to support from the common estate.
6.3.4.13 The Law Commission's Provincial Workshops throughout the country, the Rural Women's Movement, the Commission on Gender Equality, the Gender Research Project (CALS), the Women's Lobby, the Legal Profession Workshop and the Department of Land Affairs[145] were agreed that the automatic property regime should be in community. In the circumstances, the Commission felt that it had to bow to opinion and recommend instead that community of property be the automatic proprietary regime.
6.3.4.14 At this point, it should perhaps be noted that, since 2 December 1988, all civil and Christian marriages between Africans (or between an African man and a woman of another racial group) are automatically in community of property and profit and loss.[146] For those who are already married out of community, a court granting a divorce has a measure of discretion to distribute property equitably.[147]
6.3.4.15 If the spouses are to be deemed to be married in community, then obvious problems will arise in the case of polygynous marriages. Several respondents to the Discussion Paper had solutions to offer. The Legal Profession Workshop felt that only the first marriage could be in community; subsequent unions would have to be out of community.[148] The Rural Women's Movement proposed a serial division of the joint estate as the husband took additional wives. The Law Commission's Workshops held in the Eastern Cape and Gauteng (and some focus groups) also supported the idea of serial division of property. For instance, A would marry B in community. When he married C, A and B's property would be divided into equal shares. A would then have to use his share to start up an estate with C, and so on.[149]
6.3.4.16 The Registrar of Deeds, on the other hand, said that not more than one marriage in community of property could feasibly exist at a time. To hold otherwise would cause difficulties for land registration and the administration of estates. W du Plessis and C Rautenbach suggested that, in line with customary ideas of property relations, each spouse's `personal' property should be treated as out of community, and `house' property (including the house itself) should go to the relevant spouse (and her children) on dissolution of the marriage.
6.3.4.17 The Commission was unable to assess the viability of these options. The prospect of each spouse in a compound family holding property jointly poses novel legal issues.[150] It is possible that, along the lines of the Transkei Marriage Act,[151] the husband's right to remarry should be conditional upon his first union being out of community of property.[152] Other solutions to the problem are possible and further time is necessary to consider them.
6.3.4.18 A critical question relating to any reform of proprietary regimes is whether the legislation should operate prospectively or whether it should include the estates of spouses already married under the old regime. (As indicated by the Council of SA Banks, third parties in particular will be affected.) Sinclair[153] and the Gender Research Project (CALS) argue that the constitutional guarantee of equality requires women and men to have equal access to marital property, and to suggest that women be denied this right on the basis of their ethnicity and the date on which they married would be unconstitutional.
6.3.4.19 Sinclair reasons as follows: Parliament changed the former common-law regime by the Matrimonial Property Act of 1984, because it regarded that regime as unsatisfactory and unfair to women. Courts were therefore given a discretion when distributing marital estates to avoid the inequity (that is especially likely to arise in cases of separation of estates) of one spouse leaving the marriage empty-handed. Sinclair says that to condemn spouses married before 1984 to an admittedly unfair regime on the ground of the date of their marriage is unsound as a constitutional principle for differentiating between people in identical circumstances.[154]
6.3.4.20 The Commission was persuaded by the argument that prospective law reform might constitute unfair discrimination against the spouses of earlier marriages. On the other hand, it was also concerned about upsetting rights already acquired under existing marriages. It therefore requested special comment from the public.
6.3.4.21 Those who responded to this request were fairly evenly divided. The House of Traditional Leaders (Free State), Dr H M de Vetta, Adv N Cassim, the Gender Research Project (CALS),[155] the Women's Lobby[156] and the National Coalition for Gay & Lesbian Equality were in favour of property laws operating retrospectively. The Law Association of Zambia, the Houses of Traditional Leaders (in the Northern Province and Eastern Cape), W du Plessis and C Rautenbach, A J Louw and S G Abrahams were against. Several of the latter, however, said that, within a specified period of time, spouses should be permitted to register a change of property regime under the new law if they wished.
6.3.4.22 The spouses of customary marriages should be deemed to be married in community of property, subject to their freedom to alter this regime by antenuptial contract and subject to the current statutory rules permitting courts to order an equitable distribution of their estates on divorce.
6.3.4.23 Provision should be made for allowing the spouses to alter their property system after new legislation on customary marriages comes into force.
[1] Marwick 38.
[2] Wilson in Krige & Comaroff Essays on African marriage 133-4 and 138-9.
[3] See Moller & Welch Polygamy and Well-being 60. Cf Armstrong et al (1993) 7 Int J Law & Family 338.
[4] In fact, most of the criticisms from women's groups target this particular practice and highlight the plight of the rural wife. It is also worth remembering that the precarious position of the first wife was due, not so much to polygyny, but rather to the non-recognition of customary marriage.
[5] Although there is every reason to believe that polygyny is obsolescent and that in time it will disappear. See Women and Law in Southern Africa (WLSA) Uncovering Reality 25.
[6] Adv J Y de Koker, the Women's Lobby and the Rural Women's Movement, for example, were against.
[7] Professor C R M Dlamini put forward several substantial arguments in his response to the Issue Paper and in 1991 AJ 77-9.
[8] See Dlamini (1989) 22 CILSA 342-3 and (n7) 77-9. This point was also made by Mrs I Kumalo (Pierre Odendaal en Kie).
[9] Thus he argues that the Constitution should protect, not take away existing rights (ie, the right to contract polygynous marriages) and that the state should not decide for individuals the relationships they may form.
[10] He suggested upgrading the status of women rather than banning polygyny.
[11] And amongst Religious Leaders feelings on the issue are still strong. On the one hand, polygyny was considered unconstitutional, on the other, it was recognized as part of customary marriage and impossible to ban effectively.
[12] This also emerges from the work of the International Committee on the Elimination of Discrimination Against Women (CEDAW), set up under art 17. See Kaganas & Murray 1991 AJ 126. See, more generally, Simons African Women ch 8 and Dlamini (n8) 330.
[13] WLSA (n5) 27-8.
[14] WLSA (n5) 24.
[15] At Mpumalanga, the Northern Cape and the North West Province.
[16] At the Law Commission's Workshop in the Northern Province, participants agreed that the right of polyandry was an `invented culture'. But the Workshop felt that so many of the Commission's proposals (for instance, on registration, locus standi and contractual capacity) were invented that one more would scarcely matter.
[17] As indicated by the Gender Research Project (CALS) and WLSA (n5) 26.
[18] The same is true of lobolo. Cf Becker & Hinz Marriage and Customary Law in Namibia 118-19.
[19] Professor C R M Dlamini and Mrs I Kumalo (Pierre Odendaal en Kie).
[20] Armstrong et al (n3) 336-7.
[21] Kaganas & Murray (n12) 133. According to Becker & Hinz (n18) 63, this is happening in Namibia.
[22] Which suggested that polygyny be phased out over five years for new marriages and over fifty years for existing marriages.
[23] In this regard, the Department of Land Affairs Workshop held at Wonder Waters Conference (assisted by Gender Research Project CALS) suggested making polygyny a matter for provincial government.
[24] Although Judge Albie Sachs, for instance, had serious doubts about recognizing polygyny, he did not think that the state should intervene directly to penalize or prohibit existing marriages. The Law Commission's Provincial Workshops offered a novel idea: rather than penalize the man, consider penalties for the wife who unreasonably withholds her consent. After all, she was aware that she entered a potentially polygynous marriage.
[25] The Commission felt that if polygyny were allowed to continue women and children should be legislatively protected.
[26] Some added a qualifier that existing polygynous marriages should be registered and that the rule of non-registration should be applied only to future unions.
[27] Simons 1958 AJ 339.
[28] The House of Traditional Leaders (Eastern Cape) supported this recommendation.
[29] This idea was derived from the 1968 Kenyan commission on marriage. For comment see Read (1969) 5 East African LJ 116.
[30] See Wanda (1988) 27 J Legal Pluralism 130, who discusses the elevation of this practice to a legal duty in three unreported cases from Malawi.
[31] Whose research findings were supported by the Women in Law in Southern Africa Project.
[32] A point confirmed by the Gender Research Project (CALS), which said that the first wife's right is interpreted as a right to be informed that her husband intends taking an additional wife.
[33] Section 36(1).
[34] Section 15(3).
[35] Sections 30, 31.
[36] See Ryland v Edros 1997 (2) SA 690 (C) where Farlam J, in the Cape Provincial Division, held that the Constitution had introduced such a basic change in the values of South Africa that a contract based on an unrecognised Islamic marriage could no longer be considered invalid solely for the reason that potentially polygynous marriages are not recognised in South African law; Mthembu v Letsela and Another 1997 (2) SA 936 (T) where Le Roux J, held that the rule of male primogeniture in the customary law of succession does discriminate between persons on the grounds of sex or gender but not unfairly since the heir had an obligation to support the widow and other dependants of the deceased; Nyanisile Bangindawo and Others v The Head of the Nyanda Regional Authority and Another HC (TK) Case No 2185/95 where Madlanga J dismissed an application based on the unconstitutionality of the Regional Authority Courts Act 13 of 1982 (TK), seeking to have a conviction and sentence of a Regional Authority Court in Transkei set aside. The judgment is particularly instructive in the parts where Madlanga J dismisses arguments that these courts are unconstitutional because ‘the presiding officers are not legally trained’ and because they follow a ‘truncated procedure’ which is unlike that followed in the magistrates’ courts. The learned judge opines that this is like “comparing apples and potatoes” and does not assist the court at all.
[37] In this regard, Professor J C Bekker argues that female oppression is widespread in all societies and that customary law should not on its own be held accountable.
[38] The Matrimonial Affairs Act 37 of 1953, the Divorce Act 70 of 1979 and the Matrimonial Property Act 88 of 1984.
[39] The strict segregation of marriage law was finally bridged in the 1985 Law Commission report on Marriages and Customary Unions of Black Persons, where it was recommended (in para 11.4ff) that the consequences of customary marriages should be amended in various significant ways to bring them into line with civil marriage.
[40] Hence men were simply deemed `owners' of property rather than trustees or administrators. Cf the call by Organised Labour for a clear distinction between administration and ownership.
[41] We also suffer from having very little current empirical information. The anthropological accounts given in Van Tromp 97-109, Mönnig 216-17, Holleman 202-11, Clerc (1938) 12 Bantu Studies 94ff, Poulter Family Law and Litigation in Basotho Society 167ff and Campbell (1970) 3 CILSA 328-31 are all dated.
[42] In the case of civil marriages, too, most of the duties between spouses are merely hortatory: Sinclair The Law of Marriage 423.
[43] Thus Nhlapo in Women and Law in Southern Africa (WLSA) The Legal Situation of Women in Southern Africa 99 says that Swazi tradition dictates that women be obedient, submissive and humble and compliant to their proper roles as child-bearers, food-producers and household managers.
[44] A point made by Adv J Y de Koker. See, too, Molokomme and Seeiso et al in WLSA (n43) 16 and 52, respectively.
[45] Himonga et al in WLSA (n43) 156-7.
[46] See, for example, Seeiso et al in WLSA (n43) 65.
[47] Molokomme in WLSA (n43) 15. Hence, Adinkrah (1990-91) 30/31 J Legal Pluralism 16 says that the claim that women had an inherent right to influence all major decisions in the family is pure rhetoric.
[48] See S v Ncanywa 1992 (2) SA 182 (Ck) and S v Ncanywa 1993 (2) SA 567 (CkA). Section 5 of the Prevention of Family Violence Act 133 of 1993 outlawed marital rape, however, and s 1(2) makes the Act applicable to customary marriages and cohabitations.
[49] This would be a situation where horizontal application of constitutional rights should be encouraged, for customary law often lacks specific rules of its own.
[50] Article 5(a) of the Convention provides that states parties are obliged: `To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women.' See also art 16(1)(c)-(g), which deals specifically with spousal relations.
[51] Molokomme in WLSA (n43) 13.
[52] Which was hardly surprising, given the status of women under Roman-Dutch common law before the reforms of the Matrimonial Affairs Act 37 of 1953. See Clark in Visser Essays on the History of Law 188-9.
[53] Kutuka v Bunyonyo 4 NAC 302 (1920).
[54] Mashinini 1947 NAC (N&T) 25.
[55] Ngcamu v Majozi 1959 NAC 74 (NE). Cf Zondi v Southern Insurance Association Ltd 1964 (3) SA 446 (N).
[56] Cele & another v Cele 1957 NAC 144 (NE), Ndlala v Makinana 1963 BAC 18 (S) and Phakathi v Phakathi & another 1966 BAC 48 (NE).
[57] Ndhlovu 1954 NAC 59 (NE).
[58] As, for example, in Zwane v Dhlamini 1938 NAC (N&T) 278.
[59] Conversely, the courts never questioned the capacity of independent men: Chanock (1991) 32 J Afr History 80-1.
[60] A boy or girl over the age of seven can acquire ownership of property if this improves his or her position. Guardians have the power to administer their wards' estates, but they are obliged to act bona fide in the minor's best interests.
[61] Bennett Human Rights and African Customary Law 87.
[62] Under s 11(3)(a).
[63] Maqula 1950 NAC 202 (S), Nhlanhla v Mokweno 1952 NAC 286 (NE) and Kunene 1953 NAC 163 (NE).
[64] Tofu v Mntwini 1945 NAC (C&O) 83 at 84.
[65] Kerr (1965) 82 SALJ 487 and (1973) 90 SALJ 4.
[66] By s 119 of the KwaZulu Code (Act 13 of 1984).
[67] 57 of 1972. A recommendation to this effect was made in clause 14(3) of the draft bill appended to the Law Commission's Report on Marriages and Customary Unions of Black Persons.
[68] In Mnyandu 1974 BAC 459 (C), Mpanza v Qonono 1978 AC 136 (C) at 139 and Khumalo v Dladla 1981 AC 95 (NE), the courts appear to have thought that it did. Besides, all statutes supersede the common law and later statutes repeal earlier ones. See Bekker (1975) 38 THRHR 394. But the legislature gave no indication of intending the Age of Majority Act to replace customary law or to repeal s 11(3) of the Black Administration Act (the earlier enactment).
[69] Molokomme and Nhlapo in WLSA (n43) 14 and 131, respectively. The one exception is Zimbabwe, for which see Stewart et al in WLSA (n43) 170 and Armstrong (1988-9) 27 J Family L 344-6.
[70] Section 14 of the Codes.
[71] The problem of spousal violence is already catered for by the Prevention of Family Violence Act 133 of 1993. D M Hlajoane noted a further issue of equality to be attended to. Spouses in customary marriages do not qualify for a deceased spouse's share of pension benefits on divorce, because the Divorce Amendment Act 1989 applies only to civil marriages.
[72] Its arguments that CEDAW is eurocentric and a violation of the constitutional rights of the African people is met by the specific limitation imposed on cultural rights in ss 30 and 31 of the Constitution.
[73] Provided the wife earned a separate income and contracted in consutation with the husband.
[74] Provided women were sued only as income earners on matters unconnected with tradition.
[75] Act 88 of 1984.
[76] Act 3 of 1988.
[77] Act 132 of 1993.
This principle was included in s 13 of the Matrimonial Property Act 88 of 1984, and it is questionable whether it was repealed by the General Law Fourth Amendment Act 132 of 1993. See Sinclair (n42) 132-3.
[79] The Department of Land Affairs Workshop held at Wonder Waters Conference (assisted by Gender Research Project CALS) noted, however, that notwithstanding full contractual capacity and equal participation in decision-making, a woman's ability to acquire credit will be limited if the consent of both spouses is needed in transactions affecting joint property.
[80] Section 27(3). This section contains a proviso that, if the spouses were married by civil or Christian rites, they may exclude marital power by antenuptial contract. In the normal course, s 27(3) would be overruled by Act 132 of 1993, but for no good reason the Codes are usually assumed to be immune from national legislation on family law.
[81] Section 39 provides that marital power may not even be excluded by antenuptial contract.
[82] Consistent with its general stance on the position of women in the family, the House of Traditional Leaders (Eastern Cape) opposed abolition of the marital power and s 39 of Transkei Marriage Act.
[83] This section provides that: `The inmates of a family home irrespective of sex or age are in respect of all family matters under the control of and owe obedience to the family head.'
[84] Hirschon Women and Property/Women as Property 1, Howard Human Rights in Commonwealth Africa 199 and Armstrong et al (n3) 343.
[85] Not only did the courts shy away from judicial law-making but, as Professor J C Bekker says, this aspect of female status has been interpreted in such a way as to inflict severe disadvantages on women. See, too, Becker & Hinz (n18) 77.
[86] By Professor S B Burman and associates. Notable monographs are Burman & Barry Divorce and Deprivation in South Africa (1984) Second Carnegie Inquiry Paper 87, Burman (1987) 1 Int J Law & Family 206 and Burman & Berger (1988) 4 SAJHR 194 and 334.
[87] In other parts of Southern Africa, however, early anthropological accounts are gradually being supplemented by more up-to-date fieldwork. See WLSA's research, notably vol II The Legal Situation of Women in Southern Africa. Contributors to this volume confirm general observations made in this Report.
[88] Molokomme in WLSA (n43) 16, for instance, says that there is no specialized matrimonial property regime in Botswana; much depends on the whim of the husband. Interesting fieldwork conducted in northern Namibia by Becker & Hinz (n18) confirms patriarchal dominance, although one might have expected matrilineal kinship and uxorilocal residence to yield greater female powers.
[89] A view that would be shared, to some extent, by the Organised Labour Workshop, which called for an identification of flaws in the system justifying interference (but with the aim of ensuring parity).
[90] Bennett (1997) 9 Afr J of Int and Comp L 91-2.
[91] So that, on the death of the family head, the heir to each house would inherit a separate estate.
[92] See Maganu 1938 NAC (N&T) 14 and Sijila v Masumba 1940 NAC (C&O) 42. Sections 68 and 69 of the Codes establish the hierarchy of houses in KwaZulu/Natal.
[93] See s 1(1) of the KwaZulu/Natal Codes, Sijila's case supra at 44-7 and Zulu 1955 NAC 107 (NE).
[94] So far as the wife is concerned, this rule is supported in Yimba 1940 NAC (N&T) 35, R v Njokweni 1946 NPD 400, Xakaxa v Mkize 1947 NAC (N&T) 85, Mpungose v Shandu 1956 NAC 180 (NE) and Dhlamini 1967 BAC 7 (NE).
[95] Monelo v Nole 1 NAC 102 (1906) and Mpafa v Sindiwe 4 NAC 268 (1919).
[96] The rule was not invariable, however. Section 78 of the KwaZulu/Natal Codes regards the mbeka beast given by the Zulu, an important gift symbolizing the woman's family and their ancestors, as house property. With the Xhosa, on the other hand, although there was some conflict in the courts about a similar institution (the ubulunga beast), the balance of authority favoured the husband as owner. See Rarabe 1937 NAC (C&O) 229 at 232, Kilasi v Matshaka 1944 NAC (C&O) 99 and Zilwa v Gagela 1954 NAC 101 (S). For further comments see Olivier Die Privaatreg van die Suid-Afrikaanse Bantoetaalsprekendes 159-61 and Koyana Customary Law in a Changing Society 55-9.
[97] This finds expression in a legal presumption that `ownership in all cattle within the kraal vests in the kraalhead' until the contrary is proved: Cili 1935 NAC (N&T) 32 at 33.
[98] Mfazwe v Modikayi 1939 NAC (C&O) 18 at 22 and Mofokeng 1948 NAC (C&O) 20.
[099] This view originated in the Transkei from the decision in Sixakwe v Nonjoli 1 NAC 11 (1896). See too Fanekiso v Sikade 5 NAC 178 (1925) at 180 and Mpantsha v Ngolonkulu & another 1952 NAC 40 (S). Similar rulings emanated from the Transvaal: Mkwanazi 1945 NAC (N&T) 112 at 114. Only two cases were prepared to make an exception. In Majomboyi & another v Nobeqwa 2 NAC 63 (1911) and Logose v Yekiwe 4 NAC 105 (1919), the courts held that the earnings of a wife living apart from her husband did not accrue to him. The position in KwaZulu/Natal is governed by ss 13, 19, 20 and 78 of the Codes, which are discussed in Masuku v Kunene 1940 NAC (N&T) 79.
[100] See the definition of `house property' in s 1(1) of the KwaZulu/Natal Codes, Fanekiso v Sikade 5 NAC 178 (1925) and Mguguli 1966 BAC 53 (S).
[101] See Soni 1951 NAC 366 (NE) at 368 and Dodo v Sebasaba 1945 NAC (C&O) 62.
[102] Although there is ample evidence from various parts of southern Africa to show that independent women are in fact being allowed to hold land on their own account. See, for example, Schapera Native Land Tenure in the Bechuanaland Protectorate 150, Letsoalo Land Reform in South Africa 20 and Sheddick Land Tenure in Basutoland 164.
[103] Dependent widows, mothers and possibly even divorcées or adult unmarried daughters would also be entitled to claim a plot. See Kuper African Aristocracy 149, Schapera Handbook 202 and Native Land Tenure op cit 46 and 81-2, Mönnig 153, Wilson & Mills Keiskammahoek Rural Survey vol4 10 and Duncan 87 and 90-1.
[104] Hunter 121-2 and ss 19 and 20 of the KwaZulu/Natal Codes.
[105] Tonose 1936 NAC (C&O) 103, Phalane v Lekoane 1939 NAC (N&T) 132, Sijila v Masumba 1940 NAC (C&O) 42 and Mbekushe v Dumiso 1941 NAC (C&O) 57. This duty would traditionally include providing lobolo for the oldest son of the house (Rubushe v Jiyane 1952 NAC 69 (S) and Cheche v Nondabula 1962 NAC 23 (S)) and furnishing a daughter's trousseau (Bekker Seymour's Customary Law in Southern Africa 75 and 147).
[106] See generally Bekker op cit 74-7 and Olivier (n96) 151ff.
[107] See Sitole 1945 NAC (N&T) 50 and Ngcobo 1946 NAC (N&T) 14.
[108] Together with the eldest son if he were old enough: Fanekiso v Sikade 5 NAC 178 (1925). Transfer of property from one house to another creates an obligation for the recipient household to repay the debt: Sijila v Masumba 1940 NAC (C&O) 42 at 45, Mbuli 1939 NAC (N&T) 85 and ss 20 and 21 of the KwaZulu/Natal Codes.
[109] As Simons (n12) 195 says, a traditional rule - that women practising as diviners, herbalists and midwives kept whatever they earned - could have been developed by the courts to include wages and earnings, but in South Africa creative judicial law-making of this nature did not occur. Cf Himonga et al in WLSA (n43) 158 regarding Zambia.
[110] Mfazwe v Modikayi 1939 NAC (C&O) 18. See too Mlanjeni v Macala 1947 NAC (C&O) 1-2 and Ngqulunga 1947 NAC (N&T) 84.
[111] See Murray Families Divided 116-18.
[112] Section 39 of Procs 110 and 112 of 1879 and s 38 of Proc 140 of 1885.
[113] Ndema 1936 NAC (C&O) 15 and Mlanjeni v Macala 1947 NAC (C&O) 1.
[114] Cf s 14 of the KwaZulu/Natal Codes, as read with the definition of `family property' in s 1(1). See, too, Dhlamini 1960 NAC 49 (NE).
[115] Bennett in Sanders Southern Africa in Need of Law Reform 18ff.
[116] Marcus (1990) 6 SAJHR 179-80. Article 14(2) of CEDAW obliges states parties to ensure that rural women have the right to equal treatment in land matters and agrarian reform.
[117] Similarly, Professor A J Kerr's point - that a rule deeming everyone capable of owning property and giving full ownership over individual acquisitions would involve consequential alteration to the rules on the liability of family heads for delicts committed by family members - is a matter to be dealt with in the law of delict.
[118] Section 19.
[119] Section 30(1). Under s 30(2) a complaint may be made to a district officer and an administrative inquiry may then be held.
[120] Similarly, in Ghanaian customary law, the only remedy that members of the family formerly had against the head of a family was to have him removed from office: Abude & others v Onane & others (1946) 12 WACA 102 at 104. Section 1 of the Head of the Family Accountability Law of 1985 tempered the law, however, by providing that a family head was accountable to the family and that he could be required to file an inventory of property. See Daniels (1987) 31 JAL 103ff and Kludze (1987) 31 JAL 107ff.
[121] Although family members are always protected by the personal right to claim support, real rights give better protection to the individual and take account of the disintegration of the bonds of kinship.
[122] Cebekulu v Sitole 1944 NAC (N&T) 48. If necessary, according to Mpahlwa v Mcwaba 4 NAC 302 (1919), she could sue for return of property.
[123] In any event, she would not be permitted to dispose of valuable assets, such as cattle, without first consulting one of her husband's senior male relatives: Qolo v Ntshini 1950 NAC 234 (S).
[124] In practice, of course, the observation by the Gender Research Project (CALS) is correct: that antenuptial contracts (which originated in affluent societies to protect the assets of wealthy men) will do little to benefit the poor.
[125] See Glendon and Sen in Meulders-Klein & Eekelaar Family, State and Individual Economic Security vol 13 ff and 70ff, respectively, and Land in Freeman State, the Law and the Family 25.
[126] The welfare system in South Africa, however, is still so basic that it does not nearly meet the needs of the indigent. See Burman & Barry (n86) 10 and Burman & Berger (n86) 197.
[127] See Davis et al (1983) 13 Family L 217ff.
[128] To this end, lobolo was seen as provision of security for the wife if she had to return to her natal family.
[129] See generally Armstrong Struggling over Scarce Resources 43-4.
[130] What is more, as Burman & Barry (n86) 6-8 show, African women in South Africa felt the effects of apartheid most keenly.
[131] Problems which are exacerbated by shortage of accommodation and child-care centres. See further Burman (1987) 1 Int J L & Family 210-11.
[132] See Gray Reallocation of Property 282. This solution is examined below in Chapter 7 in the context of divorce.
[133] In Zimbabwe, for example s 7(1) of the Matrimonial Causes Act 33 of 1985 gave courts granting a divorce the power to order division of a matrimonial estate, paying due regard to such matters as the contributions made `by looking after the home and caring for the family' (s 7(3)(e)). Under s 16 these reforms were extended to customary marriages. See Ncube in Armstrong Women and Law in Southern Africa 9 and 12ff, Stewart et al in WLSA (n43) 176 and Armstrong (1988-9) 27 J Family L 346-7. See Rwezaura (1988) 2 Int J Law & Family 11-12 and 16-18 for reforms in Tanzania.
[134] Ncube and Nhlapo in Armstrong (n133) 11 and 45, respectively.
[135] Himonga et al in WLSA (n4) 151ff. See further Himonga in Armstrong (n133) 56ff and Mabula (1988-9) 27 J Family L 332-3.
[136] With many more variations by way of antenuptial contract. See Hahlo The South African Law of Husband and Wife 154-5.
[137] This principle is inherent in the customary notion that the two families' interests should be fairly balanced, taking into account, as Professor A J Kerr noted, the relative fault of the spouses.
[138] Under ss 2 and 3 of the Matrimonial Property Act 88 of 1984.
[139] Under s 9 of the Divorce Act 70 of 1979.
[140] The Gender Research Project (CALS) called for due cognizance to be taken of this factor.
[141] Under ss 7(4) and 7(a) of the Divorce Act 70 of 1979.
[142] Section 22(6) of the Black Administration Act 38 of 1927, therefore, deemed Africans who contracted civil or Christian marriages to be married out of community. See Olivier (n96) 246 and the Report of the Law Commission on Marriages and Customary Unions of Black Persons para 10.2.7. The same rule was adopted by s 39(1) of the Transkeian Marriage Act 21 of 1978 and the Tanzania Law of Marriage Act (for which see Read (n29) 32).
[143] The Registrar of Deeds felt that in this case, where immovable property had been acquired by the wife but registered in the name of her husband, provision should be made to allow transfer into the wife's name.
[144] Some participants, however, felt that a regime out of community could be an effective way of protecting women's property from abusive husbands.
[145] Which felt that, because most women do not work and have no property of their own when they marry, the out of community regime could condemn them to permanent poverty.
[146] Section 1(e) of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 (which repealed s 22(6) of the Black Administration Act 38 of 1927). Section 2 provides that marriage by antenuptial contract produces separation of estates, subject to an accrual regime, unless the latter is expressly excluded. In addition, both spouses have equal, concurrent powers to administer the joint estate: s 11 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988.
[147] The courts' power arose from an amendment to s 7 of the Divorce Act 70 of 1979 (by s 36 of the Matrimonial Property Act 88 of 1984), a power that was expressly extended to African civil marriages by s 2 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. The reform legislation did not, however, repeal s 22(7) of the Black Administration Act, which preserves the material rights of the so-called `discarded' wife, ie, the woman whose customary marriage had been nullified by her husband's subsequent civil marriage to another woman. Section 7(5)(a) of the Divorce Act was amended (by s 2(b) of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988) to include as one of the factors the courts are required to take into account in determining the extent of assets to be transferred `any obligation that the husband may have under s 22(7) of the Black Administration Act'. As Sinclair (n42) 232 says, this section obliges a court dissolving a civil marriage to take account of s 22(7) rights when deciding the extent of any assets to be transferred to the wife of the civil marriage.
[148] The rationale for this approach was that only the first wife may have had expectations of monogamy. Subsequent wives would be aware of the type of union they were contracting.
[149] W du Plessis and C Rautenbach took a similar approach to `family' property. Thus, if A who is already married to B wants to marry C, the family property would have to be divided between A and B. If A marries a third wife D, the family property would have to be divided amongst A, B and C, because all the spouses would have contributed to this estate.
[150] Judge S S Ngcobo pointed out, for instance, that in order to take account of an accrual regime all wives would have to be joined as parties to a divorce action.
[151] 21 of 1978.
[152] Section 3. Subsequent customary unions were out of community.
[153] Sinclair (n42) 143ff.
[154] Sinclair (n42) 144. See also her discussion of the Law Commission proposals in its Report on Review of the Law of Divorce Project 12 of 1990.
[155] Which said, however, that the legislation should be retrospective only if the property regime were in community.
[156] Which suggested that the courts should decide on disputed issues affecting already acquired rights. The Lobby, however, felt that various subsections of s 7 in the Draft Bill attached to the Discussion Paper, namely, subsections (1), (2), (4) and (5), should be retrospective.
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