SUMMARY OF RECOMMENDATIONS

The following recommendations are made in this Report:

1. In order to remove the anomalies created by many years of discrimination, customary marriages, both existing and future unions, must now be fully recognized. To do so will comply with ss 9, 15, 30 and 31 of the Constitution, provisions which suggest that the same effect should be given to African cultural institutions as to those of the western tradition.

(See par 3.1.13)

2. Parties should be allowed, in the case of a ‘dual marriage’, namely, a marriage celebrated by both customary and civil rites, to make an express declaration as to which law should regulate their marriage. (See par 3.3.5)

3. Conversion from a customary marriage to a civil marriage, but not vice versa, should be allowed. This right should be based not on the alleged superiority of any one marriage form, but rather on the practical consideration that movement from a more open-ended and facilitative arrangement to a stricter and more highly-regulated regime makes better sense than the reverse would do. It can be reasonably assumed that the parties consciously intended, for reasons of their own, to submit themselves to the stricter rules. (See par 3.3.6)

4. In order to define customary marriage it is recommended that legislative provision be made for a minimum set of essential requirements, chief amongst which should be the consent of the prospective spouses. In most cases the ‘customary’ nature of a marriage may be inferred from the inclusion of certain typical practices, such as a lobolo agreement, a traditional wedding ceremony or the involvement of the spouses’ families. Since these practices differ among the various systems of customary law in South Africa, however, it is recommended that any legislative provision should be flexible enough to allow for groups to marry according to their own customary laws. (See par 4.1.13)

5. Registering officers should be required to explain to prospective spouses the difference between customary and civil marriage (namely, the different consequences and implications), and then endorse the fact that the couple heard and understood the explanation on the marriage certificate. (See par 4.1.14)

6. It is recommended that the main requirement for a valid customary marriage should be the consent of the spouses and that registering officers should be required to determine the fact of a spouse's consent. (See par 4.2.15)

7. The giving of lobolo should not be prohibited nor should any restrictions be imposed on the amount payable. (See par 4.3.2.8)

8. Lobolo should not be deemed essential for the validity of customary marriages. If parties wish to give lobolo, they should be free to do so, but payment or non-payment should have no effect on the spouses' relationship or on their rights to any children born of the marriage. (See par 4.3.3.14)

9. Because the giving of lobolo will have no effect on the validity of marriage, an agreement to pay may only be enforced by the usual judicial processes. Courts granting divorces should have jurisdiction to order return of lobolo subject to the deductions permitted in customary law. (See par 4.3.3.16)

10. Traditional wedding ceremonies and the handing over of the bride should not be considered essential for the conclusion of a valid customary marriage. Together with lobolo, however, these institutions will serve to identify a union as one celebrated according to African rites. (See par 4.4.10)

11. Customary marriages should be registered to ensure that marital status is made more certain and easier to prove. (See par 4.5.17)

12. Although registration should be compulsory, no obvious penalty exists to induce compliance. To rule that unregistered unions are void would work great hardship for the spouses and would deprive many existing unions of potential validity. Hence, where a marriage has not been registered, the parties should be permitted to allege other forms of proof of its existence. (See par 4.5.18)

13. To encourage more people to register their marriages, the traditional authorities should be constituted registering officers. (See par 4.5.19)

14. To ensure that prospective spouses are mature enough to formulate a proper consent to marry and to remedy uncertainty in customary law about marriageable age, a minimum age of 18 for marrying should be fixed for all persons in the country. Underage children should nevertheless be permitted to contract a marriage on terms prescribed in the Marriage Act. (See par 5.1.19)

15. To bring customary law into line with the Constitution and the United Nations Convention on the Rights of the Child, a parent's power to consent to marriage must be exercised only in the child's best interests. It would follow that guardians may not unreasonably prevent their wards' marriages and that the consent of a guardian should be deemed necessary to remedy deficiencies in the judgment of minors. Marriages of children below age, where such consent was not supplied, should be voidable at the instance of the spouse or the guardians concerned. (See par 5.2.18)

16. Existing statutory and customary-law rules regulating the consent of absent or incompetent guardians should be applicable to marriages by customary law. (See par 5.2.19)

17. To avoid unfair discrimination on the ground of gender, parental consent should be deemed to include the consent of both the father and mother of an underage child. (See par 5.2.20)

18. The spouses' relative capacity to marry one another should continue to be governed by customary law. (See par 5.3.6)

19. 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. (See par 6.1.25)

20. 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. (See par 6.2.2.24)

21. 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. (See par 6.2.2.25)

22. In compliance with South Africa's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women 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. (See par 6.2.2.26)

23. While the age of majority legislation (referred to in par 21 above) 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. (See par 6.3.1.16)

24. 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. (See par 6.3.2.6)

25. Spouses should have the power to enter into an antenuptial contract to vary the automatic property consequences of marriage. (See par 6.3.3.4)

26. 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. (See par 6.3.4.22)

27. Provision should be made for allowing the spouses to alter their property system after new legislation on customary marriages comes into force. (See par 6.3.4.23)

28. Because the private regulation of divorce in customary law places women and children at risk, it is recommended that all marriages may be terminated only by decree of a competent court. Once this principle is accepted, courts will have the power to ensure that wives and children are given necessary procedural protections and the power to apply appropriate rules on division of marital estates, post-divorce maintenance and custody and guardianship. (See par 7.1.20)

29. The current situation that magistrates' courts and the courts of traditional leaders have jurisdiction over customary divorces (and Black Divorce Courts have jurisdiction over divorces sought by Africans married by civil or Christian rites) should be ended as soon as possible. All divorce actions and actions about other family-law issues referred to in this Report should be processed by the family courts. (See par 7.1.21)

30. Before a divorce action is instituted in the family courts, traditional authorities should be entitled to attempt a reconciliation of the spouses. (See par 7.1.22)

31. Only one ground of divorce should be available: irretrievable breakdown of the marriage. In exercising their discretion under this principle, courts should take into account pre-divorce conciliation procedures available in customary law and appropriate cultural norms governing marital behaviour. They should not, however, favour husbands at the expense of wives. (See par 7.2.8)

32. Either spouse should be competent to apply for divorce. If a spouse is unable to prosecute the action unaided, the court should appoint a curator ad litem. Progressive reforms made to the common-law divorce procedure, such as the appointment of family advocates, should be extended to customary marriages. (See par 7.3.11)

33. In spite of numerous problems of enforcement, maintenance should in principle be available to the spouses and children of customary marriage, both stante matrimonio and on divorce. (See par 7.4.11)

34. In accordance with s 28(3) of the Constitution and the United Nations Convention on the Rights of the Child, the child's best interests should govern all aspects of custody, guardianship and access to children. Because the best interests principle has no specific content, the courts may take into account relevant cultural expectations when deciding a child's future. (See par 7.5.15)

35. To ensure the principle of equal treatment, mothers should have fully recognized rights to their children. (See par 7.5.16)

36. If marriage must comply with certain predetermined criteria, a concept of nullity is by implication introduced to customary law. While there is no need to specify grounds for nullity, courts adjudicating on the validity of marriage should be empowered to issue orders dealing with distribution of the partners’ estates, custody and guardianship of children and return of lobolo. (See par 8.1.5)

SAFLII: | | Terms of Use | Feedback
URL: http://www.saflii.org/za/other/zalc/report/1998/4/1998_4-SUMMARY.html