Recognition of Customary Marriages Amendment Bill [B12 – 2019]

The Portfolio Committee on Justice and Correctional Services invites you to submit written submissions on the Recognition of Customary Marriages Amendment Bill [B12 – 2019:

The purpose of the recognition of Customary Marriages Amendment Bill is to amend the Recognition of Customary Marriages Act, 1998, so as to:
▪ Further regulate the proprietary consequences of customary marriages entered into before the commencement of the said Act; and to
▪ provide for matters connected therewith.

Submissions must be received by no later than 21 November 2019.

Please indicate your interest in making a verbal presentation. Public hearings will be held in Parliament.

Comments can be emailed to Mr. V Ramaano at [email protected] by no later than Thursday, 21 November 2019

For Public hearings' dates and enquiries please contact Mr V Ramaano on tel (021) 403 3820 or cell 083 709 8427

Issued by Hon. Mr BG Magwanishe, MP, Chairperson: PC on Justice and Correctional Services

Issued by Hon. Mr BG Magwanishe, MP, Chairperson: PC on Justice and Correctional Services


Background
On 30 November 2017 the Constitutional Court handed down judgment in Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41 (the Ramuhovhi-case). The declaration of constitutional invalidity of section 7(1) of the Act by the High Court of South Africa, Limpopo Local Division, Thohoyandou, was confirmed by the Constitutional Court. The Constitutional Court held that section 7(1) of the Act is inconsistent with the Constitution and invalid in that it discriminates unfairly against women in polygamous customary marriages entered into before the commencement of the Act (pre-Act marriages), on the basis of gender, race and ethnic or social origin. Section 7(1) of the Act provides that the proprietary consequences of customary marriages entered into before the commencement of the Act continue to be governed by customary law, in terms of which wives have no right of ownership and control over marital property, which right is reserved solely for husbands. The declaration of constitutional invalidity was suspended for 24 months to afford Parliament an opportunity to correct the defect giving rise to the constitutional invalidity. Failure by Parliament to correct the defect within the time set, that is by 30 November 2019, will result in the interim order of the court becoming final. The Court considered the appropriate relief to be a suspension of the declaration of invalidity accompanied by interim relief. The Court found that this twin relief has the effect of granting immediate assistance to the vulnerable group of wives in pre-Act polygamous customary marriages, whilst also giving due deference to Parliament. The interim relief, in broad terms, is that a husband and his wives in pre-Act polygamous customary marriages must share equally in the right of ownership of, and other rights attaching to, family property, including the right of management and control of family property; and a husband and each of his wives in each of the marriages constituting the pre-Act polygamous customary marriages must have similar rights in respect of house property. In Gumede v President of the Republic of South Africa, [2008] ZACC 23; 2009 (3) SA 152 (CC); 2009 (3) BCLR 243 (CC), (the Gumede-case), the Constitutional Court declared section 7(1) of the Act to be constitutionally invalid insofar as it relates to de facto monogamous customary marriages, but left open the question whether section 7(1) was constitutionally valid insofar as it applies to polygamous customary marriages. Section 7(2) was also declared to be constitutionally invalid and it was ordered that the words ‘‘entered into after the commencement of the Act’’ be severed from the subsection