A victory for Women in Customary Marriages
This article was overseen by Fasken Johannesburg partner and head of the Pro Bono Practice Group, Sushila Dhever.
The South African government is amending the law concerning customary marriages to bring it in line with constitutional jurisprudence. On 24 July 2019, Cabinet approved the submission of the Recognition of Customary Marriages Amendment Bill of 2019 to Parliament. The Bill is currently under consideration by the National Assembly. Fasken candidate attorney Mr. Selby Mathebula writes about these changes.
On 24 July 2019, Cabinet approved the submission of the Recognition of Customary Marriages Amendment Bill of 2019 to Parliament. The Bill is currently under consideration by the National Assembly.
The Bill brings section 7(1) and (2) of the Recognition of Customary Marriages Act (RCMA), 1998 (Act 120 of 1998) in line with the judgment of the Constitutional Court in Gumede v President of South Africa , which declared these provisions constitutionally invalid. These sections discriminated unfairly against women in customary marriages. Women who were married before the commencement of the Act had their matrimonial property system governed by customary law and were not automatically entitled to rely on an in community of property matrimonial property regime.
The Bill provides for the equal treatment of women in pre-Act monogamous and polygamous customary marriages. The amendments eliminate the gender-based discrimination in polygamous marriages entered into before the commencement of the RCMA of 1998. Spouses will now have joint and equal proprietary rights over their marital property. This means that husbands will no longer have exclusive proprietary rights over marital property to the detriment of their wives. Children can also benefit as they will be able to inherit from their mothers as well.
In Gumede v President of South Africa the Constitutional Court declared sections 7(1) and (2) of the RCMA of 1998 invalid insofar as it stipulated that the proprietary consequences of marriages entered into before the commencement of the Act were to be governed by customary law.
Although the judgement was considered a milestone by many, the declaration of invalidity of sections 7(1) and (2) applied solely to monogamous customary marriages; the question on the proprietary consequences of polygamous customary marriages entered into before the commencement of the RCMA of 1998 ("pre- Act Polygamous Marriages") was not dealt with.
Almost a decade later the Constitutional Court, in Ramuhovhi and Others v President of the Republic of South Africa and Others, was inevitably called upon to pronounce on the question of the proprietary consequences of pre-Act Polygamous Marriages and whether the differentiation between women in pre-Act Polygamous Marriages and women in post-Act Polygamous Marriages was justified.
The Constitutional Court declared sections 7(1) and (2) of the RCMA of 1998 to be constitutionally invalid because it discriminated unfairly against women in pre-Act Polygamous Marriages on the basis of gender, race and ethnic or social origin. The Constitutional Court granted an interim order declaring the sections invalid, and affording parliament 24 months (which ends on 30 November 2019) to bring the RCMA in line with our current constitutional dispensation. The interim order grants joint and equal ownership, management, control and the exercise of other rights over the marital property to a husband and wife/wives.
Should the RCMA of 1998, not be amended by parliament by 30 November 2019, the interim order made by the Constitutional Court would become a final order.
The Bill amends section 7(1) and (2) of the Act by removing the proprietary consequences of all pre-Act Polygamous Marriages from being governed by customary law and grants the same benefits as the interim order of the Constitutional Court which are joint and equal ownership, management, control and the exercise of other rights over the marital property to a husband and wife/wives.
However, the Constitutional Court held that these amendments in terms of section 172(1)(b) of the Constitution do not invalidate a winding up of a deceased estate that has been finalised or the transfer of marital property that has been effected unless the property in question was subject to a legal challenge. This is also supported by the transitional provisions accompanying the Bill.
Another amendment proposed by the Bill is bringing the definition of “traditional leader” in line with the definition contemplated in the Traditional Leader and Governance Framework Act, 2003 (Act No. 41 of 2003).
The Bill is a huge stride in improving the proprietary rights of women. However; it will be interesting to see how the courts grapple with property disputes that arise as a result of the amendment; and whether women will be able to implement these newly acquired rights. Also interesting to note is the role of the courts in developing the Customary law so that it is in line with the Constitution. These amendments are as a direct result of orders granted by the Constitutional Court.
For full amendments go to: http://www.justice.gov.za/legislation/bills/2019-RCMA-Bill.pdf