EQUAL RIGHTS IN CUSTOMARY MARRIAGES

The Constitutional Court has confirmed a 2017 interim order that Wives married in polygamous customary marriages will continue to enjoy Joint and Equal ownership, control and management and other rights over the family and matrimonial properties.

Women married in polygamous customary relationships before the introduction of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998) will officially and finally receive the same rights as women in customary marriages concluded after the introduction of the Act. The aforesaid Act came into effect on the 20th November 1998. An application was brought to the Constitutional Court by the Minister of Correctional Services, for an extension of the date upon which a section of the Recognition of Customary Marriages Act 120 of 1998 pertaining to polygamous customary marriages would finally be declared invalid.

In November 2017, the Constitutional Court in Ramuhovhi and Other vs President of the Republic of South Africa and Other 2018 (2) SA 1 (CC), held that section 7(1) of the Act, which regulates the proprietary consequences of customary marriages, was inconsistent with the Constitution, and invalid on the basis that it discriminates unfairly against women in polygamous customary marriages. The Constitutional Court on 26th November 2019 ruled, and consequently dismissed the Minister’s Application.

 

7  Proprietary consequences of customary marriages and

                                       contractual capacity of spouses

(1) The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law.

The Constitutional Court upheld the Thohoyandou High Court’s 2016 decision, which held that section 7(1) of the Act differential proprietary consequences of pre- and post-act marriages to be unconstitutional. In terms of the Act, polygamous customary marriages concluded before the commencement of the Act in 1998 would automatically be deemed to be concluded “out of community of property”. However this differs from marriages concluded after the commencement of the Act, which are regarded as in community of property with the exception of polygamous customary marriages, wherein Parties would have to make an application before the High Court to determine the propriety rights of the spouses to the polygamous marriage.

The Constitutional Court however suspended the constitutional invalidity of the section 7 (1) for a period of 24 months to allow Parliament to amend the Act and correct the defect. During this period of suspension, an interim order was made which had the effect that Wives and not only Husbands in polygamous customary marriages entered into before the commencement of the Act would enjoy, “Joint and Equal Ownership, management and control over matrimonial properties in respect of family immovable and movable properties. Each spouse in a polygamous customary marriage would also retain exclusive rights to her or his personal property”.

This was a departure from customary law as it applied before the commencement of the Act, which gave the Husband exclusive control and ownership of all matrimonial properties, irrespective of whether the marriage was polygamous or monogamous. The order gave Parliament until 29 November 2019 to pass Legislation to remedy the defect, finding it procedurally and substantial correct to leave it to Parliament to finally decide how to regulate the proprietary regime of customary marriages entered into before the commencement of the Act.

The Constitutional Court order unequivocally stated that should Parliament fail to amend the defect by the specified date, the interim order would be made final.  In the month of October 2019, only six (6) weeks before the expiry of the suspension, the Minister of Correctional Services applied to the Constitutional Court for an extension of the period until November 2020 to enact remedial legislation.

The Minister cited “inevitable interruptions” as the reason for the delays, describing 2018 and 2019 as “atypical years in the legislative process due to 2019 election which changed the ordinary deadlines for government departments to submit bills to be passed”.

In a unanimous decision handed down by Justice Nonkosi Zoliswa Mhlantla on Tuesday, 26th November 2019 the Minister’s application was dismissed, the court finding that in light of the sufficient time afforded to Parliament to address this issue, it had failed to justify a reason for an extension. The court placed emphasis on compliance with court orders. “It is imperative to the rule of law and the functioning of our constitutional democracy that court orders are respected,”

Disclaimer: This article is general information and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.

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