CHAPTER 1

INTRODUCTION

1.1 Origin of the investigation

1.1.1 In 1986 the Commission published a report on its investigation into the marriages and customary unions of Black persons (Project 51). Two Bills were recommended in the report. The first resulted in the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. The second Bill dealt with the customary marriages of Black persons. With regard to this Bill the Commission recommended that further consultations with the leadership of the TBVC states and the self-governing states should take place. After a series of high- level meetings the proposal that the so-called customary union be recognized as a valid marriage was endorsed: however, on 10 April 1992 the Minister ordered that the implementation of the Bill be suspended until the constitutional position of the TBVC states and the self-governing territories was clarified.

1.1.2 The matter was subsequently referred to the newly-formed Project Committee on the Harmonisation of the Common Law and the Indigenous Law, whose term of office lapsed together with that of the Commission.

1.1.3 The new Commission, at a meeting on 23 and 24 February 1996, approved the reconstitution of the Project Committee^[1] and the ranking proposed by the outgoing committee, which had identified the law of marriage and divorce as a priority area. The new Project Committee had its first meeting on 7 June 1996 at which it decided to revive the issue of customary marriage. To this end the committee developed an issue paper which set out the nature of the problems in respect of customary marriages and a range of proposals for addressing these problems. The main proposal was that full recognition should be granted to customary marriages, in confirmation of the position adopted by the Commission in its 1986 report. An allied aim of the Issue Paper was to seize the opportunity offered by recognition of customary marriages to improve the position of women and children within these marriages.

1.2 The Issue Paper and Responses to it

1.2.1 The Issue Paper on customary marriages was published on 31 August 1996, with 31 October 1996 set as the closing date for comments. This date was very quickly compromised as various interested parties requested extensions. A process of countrywide workshops^[2] to explain and discuss the paper, set in motion by the Deputy Minister, also contributed to the decision to keep the closing date flexible. The deadline ultimately shifted to 30 April 1997.

1.2.2 In the new Commission’s working methodology, an Issue Paper represents the first public announcement of an investigation. It aims to set out the Commission’s view of the perceived problem, and the possible solutions, and it invites comment on the Commission’s approach. It thus tries to involve the public at the very beginning of an investigation in the hope that feedback will help the Commission to settle preliminary issues, such as those relating to the scope of the project and the approach. Experience has shown that most respondents do not make the distinction between preliminary matters and matters of substance. It thus becomes necessary to sift carefully through the responses to separate those that are relevant to the purposes of the Issue Paper and those substantial recommendations which properly belong to the next stage in the process: the Discussion Paper.

1.2.3 37 written responses to Issue Paper 3 were received.^[3] They came from a variety of sources and many were stimulated by the workshops on the Issue Paper, which were conducted in different parts of the country. The scale of the response has made it impossible to include all replies. Hence, in the interests of brevity, especially when most people agreed with proposals made by the Commission in the Issue Paper, only replies raising pertinent new issues will be mentioned. These are dealt with in the relevant section of the body of the Discussion Paper, rather than separately.

1.3 The Discussion Paper and Responses to it

1.3.1 The Discussion Paper on Customary Marriages was published on 29 August 1997 with 19 January 1998 set as the closing date for comments. As a result of requests from the public, and in order to accommodate additional workshops on the document, the closing date was shifted to 28 February 1998. Written responses, initially slow, began to increase in volume, especially after the publicity generated by the workshops.

1.3.2 By the time of the preparation of this report, 27 written responses had been received.^[4] This number does not include those responses to the Issue Paper, which had covered matters of substance relevant to the Discussion Paper. Again the responses represented a wide range of opinions from individuals, government departments, non-governmental organizations and the business sector. Following the style adopted in preparing the Discussion Paper, the responses in this report are considered in the body of the text under the relevant section and not separately, although an overview of both the written comments and the workshop discussions is given below so that the whole consultation process can be viewed in perspective.

1.3.3 In addition to the written responses the Project Committee benefited greatly from the workshops that were conducted around the country between November 1997 and February 1998. In all, thirteen one-day workshops were held,^[5] one in each province, plus four national ones in Pretoria which targeted the legal profession, organized labour, traditional leaders and religious leaders, as focus groups. A pre-Christmas round-table discussion in Bisho organized by the Law Faculty of the University of Fort Hare yielded useful criticism of the draft Bill.

1.4 Written comments: an overview

1.4.1 The written responses to the Discussion Paper (as well as those directed at the Issue Paper) indicated overwhelming support for recognition of customary marriages as valid marriages for all purposes in law. There was also a fair amount consensus over such matters as the fixing of a set of essential requirements and minimum ages, registration and the issue of marriage certificates and addressing long-standing concerns over the capacity of women within customary marriages (especially their proprietary capacity).

1.4.2 This is not to say that no voices were raised in fundamental objection to the whole project. There were, and many of them were motivated by a belief that the new South Africa required a uniform marriage law. It was felt that maintenance of duality in marriage systems was divisive and somewhat ‘racist’.^[6] Such a view was expressed by the Gender Research Project of the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand. The Commission for Gender Equality, too, criticized what it called a ‘piecemeal’ approach which failed to take advantage of the chance to deal holistically with Islamic marriages, Jewish personal law, cohabitation and customary law. The common strand in these criticisms is the view that a uniform marriage law would promote national unity. It is not clear, however, whether the submissions contemplated a unitary marriage with a single compulsory set of consequences (but with various optional forms of entry) or simply an omnibus marriage statute accommodating, in different chapters, the various types of marriage. The Commission’s response to both versions of the criticism is given in the next chapter.

1.4.3 Criticism of a different kind came from respondents who felt that the proposals contained in Discussion Paper 74 were too ‘western’ and ‘Eurocentric’. It was interesting, in view of the previous paragraph, that this group of respondents was united in its insistence that duality of marriage laws should be maintained. Support for this viewpoint came from the House of Traditional Leaders (Eastern Cape), the House of Traditional Leaders (Northern Province), the Bisho Round Table, the Organized Labour Workshop, the Religious Leaders’ Workshop, the Traditional Leaders’ Workshop, the Northern Province Workshop and the Eastern Cape Workshop.

1.4.4 Several strands can be discerned in the argument. The first, exemplified by the House of Traditional Leaders (Eastern Cape), is found in a call for any reforms in marriage law to use African values as the starting point, encouraging ‘cultural borrowing’ from western values only when those values are not repugnant to African norms and when their incorporation improves the quality of life of indigenous people. Secondly, in more concrete terms, the concern is that the Commission’s proposals on spousal and parental consent, on marital power, property and ante-nuptial contracts are concepts alien to African culture and to customary law. This goes hand in hand with an argument , by the Bisho Round Table Discussion for instance, which sees these proposals as so radical that what is created is no longer a customary marriage but a new South African ‘statutory marriage’, which needs only to be extended to civil marriages to qualify as the country’s uniform code.^[7]

1.4.5 There was surprisingly little divergence of opinion about the Commission’s reluctance to prohibit polygyny by law: many respondents, however, supported some form of state regulation of the practice. The same was true of lobolo. The vast majority of respondents indicated that it should be an optional cultural attribute of the marriage with no legal effect on either the children of the marriage or the validity of the marriage.

1.5 Workshops and meetings: an overview

1.5.1 The workshops were conducted under the auspices of the Gender and Children Directorate of the Department of Justice as a joint venture with the Law Commission. They were organized and run through the provincial Gender Units of the Department as information-dissemination and information-gathering exercises. The Department took the opportunity to unveil and explain its draft Gender Policy Considerations and the Project Committee did the same with its Discussion Paper on Customary Marriages. Although a bias in favour of women’s NGOs and Departmental employees was evident in many of the gatherings, an attempt was made to invite a significant number of men and rural people.

1.5.2 The trend set by the written responses was confirmed by the workshops: there was general agreement that recognition of customary marriages was long overdue; that these marriages should be registered; that they should be governed by rules relating to consent and minimum age; that the reality of polygyny should be acknowledged; that the legal capacity of women should be improved; that lobolo should be optional and that divorces should be granted only by courts of law. The disagreements, too, tended to follow the same pattern as the letters. Thus, against a general consensus on non-prohibition of polygyny were ranged some voices of dissent (notably the Northern Cape Workshop and the North West Workshop). Similarly, the emerging consensus on making lobolo optional was strongly challenged by some who felt that it was an essential element in the validity of a customary marriage (the KwaZulu-Natal Workshop and the national Traditional Leaders’ Workshop).

1.5.3 Of the remaining issues - mostly matters of detail - opinion was divided on implementation: who should be the registering officers? should they have a role in counselling intending spouses? whose consent should be relevant in the formation of marriage? should conversion from one marriage form to another be allowed? On the question of consequences, too, opinion was divided over such issues as whether a husband should obtain the consent of his wife (or wives) before he marries again; whether traditional courts should grant divorces or merely exercise conciliation functions. The most contested questions included the kind of property regime appropriate for a customary marriage.

1.6 Conclusion

1.6.1 The Commission emerged from the consultation experiences convinced that its initial premise - that customary marriages should now be recognized as a matter of urgency - had been vindicated. It also became clear during the process that there was a tension between different interpretations of the effect of the new Constitution on marriage and other personal laws. The different expectations arising from these interpretations ultimately resolved themselves into a tug-of-war between those who would claim a constitutionally-protected cultural right to lead their domestic lives according to a relatively familiar customary law and those who believe that any reform initiative must now give due consideration to the Bill of Rights and to South Africa’s international obligations. The Commission proceeded on the principle that its proposals stand a chance of success only if they reflect the concerns of both.

[1] Which consists of the following members:

Professor TR Nhlapo (Chairperson); Madame Justice JY Mokgoro; Professors TW Bennett & CRM Dhlamini; Ms L Baqwa; and Advocate F Bosman.

[2] See annexure E.

[3] See annexure E.

[4] See annexure C.

[5] See annexure D.

[6] Typical of this view is a statement by the Women’s Lobby: ‘It is regrettable that the Law Commission believes South Africa is still at the stage where we are unable to amalgamate under one unifying system with optional provisions. In our view the Bill perpetuates racial divisions’.

[7] For supporters of this viewpoint, the merit of such a code would lie in its being based loosely on African values but catering for everybody. The pure customary marriage would remain outside this scheme and would be recognised as a parallel system.

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