Maithufi, I P; Moloi, Geraldine-Maureen --- "Reforming Customary Family Law: the South African Experience" [2002] ALRCRefJl 9; (2002) 80 Australian Law Reform Commission Reform Journal 42

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Reform Issue 80 Autumn 2002

This article appeared on pages 42 – 46 of the original journal.

Reforming customary family law: the South African experience

By Professor I P Maithufi and Geraldine-Maureen Moloi*

The recognition of customary family law — in particular polygamous or potentially polygamous marriages and the enforcement of their consequences — has been a thorny issue in South African law.

On 15 November 2000, the Recognition of Customary Marriages Act 120 of 1998 came into operation, after an investigation by the South African Law Commission of the legal position of customary marriages.¹ Before this enactment, customary marriages were not recognised as valid marriages for all intents and purposes of the law.

The basis for the non-recognition of customary marriages was that they were polygamous in nature. Polygamous or potentially polygamous marriages were, in terms of the then South African legal system, regarded as against principles of public policy or natural justice.² Even consequences flowing from these marriages could not be enforced as this was regarded as an indirect recognition of these marital relationships.³ The only marriage that was recognised by the law was a civil marriage which is defined as:

“... the legally recognised voluntary union of one man and one woman, to the exclusion of all others while it lasts.”⁴

Any form of marital relationship that did not comply with this description was not recognised nor could its consequences be enforced. A civil marriage was granted more protection than all other forms of marital relationships in the sense that where parties to these marriages contracted a civil marriage with each other, this had the effect of dissolving the previous marriage between them. In the same manner, if one of the parties to these marriages contracted a civil marriage with another person, the previous marriage was dissolved.⁵

The position outlined above continued to exist until the passing of the Recognition of Customary Marriages Act. The purpose of this legislation, as set out in its long title was to:

(a) accord recognition to customary marriages;

(b) specify requirements for valid customary marriages;

(c) provide for the equal status and capacity of the spouses;

(d) provide for proprietary consequences of customary marriages; and

(e) regulate registration and dissolution of customary marriages.

Eventual recognition

The main aim of the Act was to bring to finality the long overdue question of the recognition of customary marriages for all intents and purposes. This was necessitated by the present constitutional dispensation, which provides for equality of all men and women and people of all races.⁶ The Constitution also provides for the enactment of legislation aimed at recognising the following forms of marital relationships:

(a) marriages concluded under any tradition, or systems of religious, personal or family law;

(b) systems of personal and family law under any tradition or adhered to by persons professing a particular religion.7

The Act now provides that a marriage that is valid at customary law and existing at the date of its commencement is recognised for all purposes. The Act also lays down the requirements for the validity of customary marriages. It provides that a customary marriage contracted after the date of commencement is recognised for all purposes as a valid marriage, provided it complies with these requirements. A prohibition is placed on a person who is already married by custom contracting in a civil marriage with another person. Spouses in a customary marriage may, however, contract a civil marriage with each other.

In terms of the Act, customary marriages are in community of property and of profit and loss, unless the husband is a spouse to more than one customary marriage. These consequences may be excluded by means of an ante nuptial contract. A husband who wishes to contract another customary marriage has to make an application to court to approve a written contract, which will regulate the future patrimonial consequences of his marriages. If the application is granted, the court must terminate the matrimonial property system applicable to the existing marriage and effect a division of the joint estate in the case of a marriage in community of property, or a marriage that is subject to the accrual system. The court is furthermore empowered to effect an equitable distribution of property and to take into account all relevant circumstances of the family groups that would be affected if the application is granted. The court is also authorised to refuse the application.

The spouses to customary marriages have equal status and capacity. This is in keeping with the Constitution, which provides for equality before the law and equal protection and benefit of the law.⁸

Customary marriages are now dissolved by a decree of divorce on the ground of irretrievable breakdown. A decree of divorce may only be granted if the court is satisfied that the marriage relationship between the parties has reached such a stage of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them. Previously, a customary marriage could be dissolved without an order of court.

Customary marriages are in terms of this Act placed on the same footing as civil marriages. They have the same consequences and can only be dissolved by order of a competent court. The spouses to these marriages have the same capacity and status as spouses of civil marriages.

It is also worth mentioning that the South African Law Commission is presently investigating the legal position of Islamic marriages.⁹ It is hoped that in the not too distant future these marriages will also enjoy the same legal recognition and protection as civil marriages. Another investigation closely connected to this relates to domestic partnerships.¹⁰ An Issue Paper in this respect has been published by the Commission and a report will be finalised once public comments have been received and evaluated.

Reform of the customary law of succession

The law of succession is inextricably linked to marriage in the sense that the reform of one inevitably demands that the other has to be reformed too. Immediately after the reform of the law relating to customary marriages, the South African Law Commission commenced an investigation aimed at reforming the customary law of succession. As in the case with customary marriages, the purpose is to reform the customary law of succession in accordance with the new constitutional order. The reform is necessary as the application of the customary law of succession appears to be discriminatory on the basis of gender and age.¹¹ In a landmark decision in this respect, the court held that the rule of primogeniture applicable in the customary law of succession did not unfairly discriminate on the grounds of gender and age as the heir was obliged to maintain the widow(s) and other children of the deceased.¹² The heir to the deceased estate is the eldest surviving male relative who in the normal course of events is the eldest son. The other children of the deceased and their mother(s) do not have the right to succeed according to this rule.

Furthermore, as a result of South Africa’s obligation under the Convention on the Elimination of All Forms of Discrimination Against Women, the legislature is under a duty to amend any of its laws that may infringe the principle of gender equality.¹³ The duty is once more repeated in the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.¹⁴

The Constitution also provides that customary law must be applied subject to the Constitution and to any legislation that specifically deals with customary law.¹⁵ Thus customary law has to be read and interpreted subject to the Bill of Rights¹⁶ and any relevant legislation.

The investigation

The investigation into the reform of the customary law of succession was launched with the publication of an Issue Paper entitled Succession in Customary Law in April 1998. The Issue Paper generated immediate public interest and elicited oral as well as written responses.

As a result of the public interest shown and responses to this paper, the Department of Justice was placed under severe pressure to develop a draft Bill entitled the Customary Law of Succession Amendment Bill of 1998. The Bill sought to extend the principles of succession embodied in the Intestate Succession Act of 1987¹⁷ to all persons in South Africa irrespective of race, gender or age. A decision was, however, taken not to proceed with the Bill after it received a hostile reaction from interested persons, particularly traditional leaders.

At the same time, the South African Law Commission was preparing a Discussion Paper on the same issue. In the meantime, litigation relating to the constitutionality of the application of the customary law of succession continued. This was in the case of Mthembu v Letsela,¹⁸ which began in the Transvaal Provincial Division and finally culminated in the decision of the Supreme Court of Appeal.¹⁹

In all these hearings, the dispute revolved around the constitutionality of the customary rule of succession that, on the basis of male primogeniture, prevents women from inheriting. As already indicated above, the court found that the rule was not unfairly discriminatory because of the concomitant obligation of the heir towards the widow and the rest of the dependants of the deceased. The court declined an invitation to develop the customary law rule in accordance with section 35(3) of the interim Constitution in such a way that it does not discriminate between men and women and commented as follows:

“Any development of the rule would be better left to the legislature after a full process of investigation and consultation, such as is currently undertaken by the Law Commission.”²⁰

This investigation is currently at an advanced stage. Comments have been received from all interested parties and workshops held all over the country. The Commission envisages that a report will be finalised during the course of this year.

The recommendations

Among the most important recommendations of the Commission with regard to the reform of the customary law of succession is the amendment of the Intestate Succession Act of 1987. The proposed draft Bill provides that upon a person’s death, the estate has to dissolve in accordance with that person’s will or where there is no will, according to the law of intestate succession prescribed by the Intestate Succession Act. This would apply to all intestate estates including the estates of persons who had contracted a customary marriage that subsisted at the time of death.²¹ In terms of these recommendations, the surviving spouse will be entitled to inherit the deceased’s house and personal belongings. Where the deceased owned more than one house, it is recommended that the surviving spouse inherit one house of such spouse’s choice.²²

In terms of the present Intestate Succession Act of 1987, the surviving spouse of a customary marriage is not an heir to the intestate estate of his or her deceased spouse. It is thus recommended that the definition of a spouse be extended to include also a spouse or spouses of customary marriages.

If the deceased is survived by a spouse but not a descendant, the spouse will inherit the intestate estate. Where the deceased is survived by more than one spouse, the spouses will inherit the estate in equal shares.²³

The draft Bill contains the following recommendations in the case of a deceased who is survived by a spouse or spouses and a descendant or descendants:

(a) Where the deceased is survived by one spouse and a descendant or descendants, such spouse will inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister by notice in the Gazette, whichever is greater.

(b) Where the deceased is survived by more than one spouse and a descendant or descendants, such spouse will inherit a child’s share of the intestate estate or so much of the intestate estate in equal shares as does not exceed the amount fixed by the Minister by notice in the Gazette, whichever is greater.²⁴

The amount fixed by the Minister in terms of the Intestate Succession Act of 1987 is currently R150,000. In the case of a large estate, the surviving spouse would thus be entitled to this or more. In the case of estates worth less than this amount, the surviving spouse would be the sole beneficiary to the exclusion of other dependants of the deceased. As customary marriages are in community of property and of profit and loss, the surviving spouse will also be entitled to a half of the joint estate in addition to a child’s share in the case of a monogamous marriage. In the case of polygamous marriages, surviving spouses would be entitled to a child’s share only and a house each.

The Draft Bill for the Amendment of the Customary Law of Succession also recommends the abolition of any rule of customary law that obliges an heir to maintain the dependants of the deceased and to settle the debts of the deceased. This is understandable as all dependants of the deceased, including the spouse or spouses, will be regarded as heirs without any distinction as to age and gender. The proposed draft Bill also recommends the repeal of all acts and proclamations dealing with the customary law of succession.

Conclusion

South Africa is in the process of reforming its family law to reflect the rich cultural diversity it is identified with. As it is faced with a plurality of legal systems, which before the adoption of the present constitutional dispensation did not enjoy the same status, the Constitution now empowers the legislature to adopt legislative and other measures to end any form of discrimination based on culture, tradition, race, ethnic origin, gender, sexual orientation, religion or language.²⁵ The Recognition of Customary Marriages Act of 1998 is one of the attempts to achieve this goal. The legal position of Islamic marriages is also receiving the attention of the South African Law Commission. Furthermore, great progress has been made with regard to the reform of the customary law of succession as indicated in this discussion. It is envisaged that this reform process will enable the legislature to enact legislation that reflects the views, needs and aspirations of the majority of the South African population.

*Professor I P Maithufi is a full-time Member of the South African Law Commission and a Professor of Law at the University of Pretoria.

Geraldine-Maureen Moloi is a researcher with the South African Law Commission, working on the investigation into customary law.

Endnotes

1. See South African Law Commission Report on Customary Marriages (1998) The Commission, Pretoria.

2. Ismail v Ismail 1983 1 SA 1006(A); Nkambula v Linda 1931 1 SA 377(A).

3. Seedat’s Executors v The Master (Natal) 1917 AD 302. See, however, Ryland v Edros 1997 2 SA 690(C).

4. J Sinclair The Law of Marriage Vol 1 Juta 1996 305; Hyde v Hyde and Woodmansee (1886) LR 1 P&D 130 133.

5. Malaza v Mndaweni 1975 BAC (C) 45.

6. Republic of South Africa Constitution Act 108 of 1996, Section 9.

7. Ibid, Section 15(3).

8. Ibid, Section 9.

9. See South African Law Commission Islamic Marriages and Related Matters Discussion Paper 101 (2001) South African Law Commission, Pretoria.

10. See South African Law Commission Domestic Partnerships Issue Paper 17 (2001), South African Law Commission, Pretoria.

11. Act 108 of 1996, Section 9.

12. Mthembu v Letsela [2000] ZASCA 181; 1997 2 SA 937(T); 1998 2 SA 675(T); [2000] 3 All SA 219(SCA). See also Zondi v President of the Republic of South Africa 2000 2 SA 49(N) and Moseneke v Master of the High Court [2000] ZACC 27; 2001 2 SA 18(CC).

13. Article 13.

14. Act 4 of 2000.

15. Act 108 of 1996, Section 211(3).

16. Ibid, Chapter 2.

17. Act 81 of 1987.

18. Mthembu v Letsela [2000] ZASCA 181; 1997 2 SA 937(T); 1998 2 SA 675(T); [2000] 3 All SA 219(SCA).

19. Mthembu v Letsela [2000] ZASCA 181; [2000] 3 All SA 219(SCA).

20. Ibid, 230.

21. Proposed Draft Bill for the Amendment of the Customary Law of Succession, Section 2(1) and (2).

22. Ibid, Section 2(3)(a) and (b).

23. Ibid, Section 3(a) and (b).

24. Ibid, Section 3(c).

25. Act 108 of 1996, Section 9(2).