Recognition of Customary Marriages Amendment Bill: briefing

Community Safety, Cultural Affairs and Sport (WCPP)

16 July 2020
Chairperson: Mr R Allen (DA)
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Meeting Summary

Video: STANDING COMMITTEE ON COMM SAFETY, CULTURAL AFFAIRS AND SPORT, 16 JULY 2020, 18:00

Recognition of Customary Marriages Amendment Bill

In a virtual meeting, the Standing Committee was convened to receive a briefing from the Department of Justice and Constitutional Development on the Recognition of Customary Marriages Amendment Bill [B12-2019].

The Department said the amendments sought to bring the law into line with the Constitutional Court judgments of Ramuhovhi and Others v President of the Republic of South Africa and Others, and Gumede v President of the Republic of South Africa and Others, as well as the definition of “traditional leader” in the Traditional Leadership and Governance Framework Act 41 of 2003. Clause 1 of the Bill corrected the definition of “traditional leader.” Clause 2 remedied the unfair discrimination in the application of s7(1) proprietary consequences particularly discriminating against women, and the s7(2) distinction between a customary marriage entered into after and before the commencement of the Recognition of Customary Marriages Act. Clause 3 provided the Bill’s transitional provisions.

The Standing Committee questioned whether the amendments went far enough in also protecting the members of the lesbian, gay, bisexual, transgender, queer and questioning, intersex, asexual and more (LGBTQI+) community and women across cultural backgrounds. Members asked for clarity on the definitions of marital property, household property and family property in customary marriages in the Bill, as well as how the role of a traditional leader could be filled in the Western Cape where there were no traditional leaders. They also raised concern as to whether the Bill adequately covered the rights of women who were married in a civil ceremony to a man already polygamously married to other wives according to tribal customs.

After considering the Bill’s amendments, the Standing Committee considered the next steps and the options available for public participation. It resolved to negotiate a postponement with the National Council of Provinces (NCOP) in light of the pandemic conditions in order to ensure that public participation was conducted meaningfully for the constituents directly affected by the amendments.

Meeting report

The Chairperson emphasised the urgency of the meeting, saying that the province had received a specific timeframe from the National Council of Provinces (NCOP). The purpose of the meeting was to allow the Committee to receive a briefing from the Department of Justice and Constitutional Development (DOJ & CD) on the Recognition of Customary Marriages Amendment Bill.

Recognition of Customary Marriages Amendment Bill

Mr I Sileku (DA, Western Cape), the Standing Committee’s permanent delegate, gave Members a background to the briefing.

What the Bill sought to do was to give effect to two Constitutional Court judgments -- Ramuhovhi and Others v President of the Republic of South Africa and Others, and Gumede v President of the Republic of South Africa and Others, which found s7(1) of the Recognition of Customary Marriages Act (RCMA) to be inconsistent with the Constitution and invalid, in that the provision limited the right to human dignity, particularly for women. The effect of the section was that in a polygamous marriage, the spouse succumbed to the husband and had no real say. What was of importance in this discussion was to ensure that there was no discrimination between people who entered into customary polygamous marriages.

There had been questions on whether s7(1) affected Hindu or was Islamic marriages, and unfortunately this section dealt with indigenous customary marriages exclusively. The Department of Home Affairs (DHA) was currently tasked with looking at all marriages in the country and proposing amendments which would be put to the National Assembly for consideration, before eventually being presented to the Standing Committee. In terms of the technicality of the particular amendment and remedial legislation at hand, the Department would share some background on how s7(1) and (2) would change.

Ms Theresa Ross, State Law Adviser: Department of Justice and Constitutional Development (DOJ & CD), presented the briefing to the Committee on the RCMA Bill.

She said the Bill aimed to amend the RCMA by further regulating the propriety consequences and ownership rights in a customary marriage. It pertained to s7(1) and (2) of the RCMA being brought in line with the two Constitutional Court judgments of Ramuhovhi and Gumede. She reminded Members that the Constitutional Court, in the case of Ramuhovhi, had confirmed the decision of the High Court of South Africa, Limpopo Local Division, and held that section 7(1) of the RCMA was inconsistent with the Constitution because it discriminated unfairly against women in polygamous customary marriages which were entered into before the commencement of the Act, on the basis of gender, race and ethnic or social origin. The main concern addressed by the amendments was that s7(1) created a situation where women in customary marriages had no rights of ownership, and property ownership and control became the sole purview of the husband.

Ms Ross said that the Constitutional Court in the Ramuhovhi decision had found this to be the case specifically with Venda customary law, but it could not be said that this was not the case in other customary law. The court had declared s7(1) to be unlawful as it constituted unfair discrimination, and had ruled that women had the right to share, manage and control family and house property equally.

Clause 1 of the Bill amends the definition of “traditional leadership” in order to align it with the definition in the Traditional Leadership and Governance Framework Act 41 of 2003. It was necessary that there be consistency in the definition in all of the pieces of legislation.

Clause 2 of the Bill amended s7(1) of the RCMA in order to align it with the order of the Constitutional Court in the case of Ramuhovhi, where the Court ordered that the remedial amendments be in operation by 30 November 2019. The remedial amendments in Clause 2 sought to allow for joint and equal ownership, management and control over marital property and exclusive rights only over personal property. There had been calls to have the different categories of property defined in the Bill and the Department had taken the view to consult on these definitions more thoroughly through the DHA’s ongoing task to consolidate all marriage law and policy in South Africa, rather than delay the Bill further. The Department had made an application to the court for an extension of the deadline, but this had been rejected by the Constitutional Court.

Ms Ross explained that the interim order of the Ramuhovhi judgement had since become final, so it was now in the legislature’s hands to fulfil its mandate of putting this law into the statute book. Clause 2 of the Bill also amended s7(2) of the RCMA in order to align it with the Constitutional Court judgment in the 2009 case of Gumede. This amendment’s delay had regrettably been an oversight on the Department’s part, and had also been delayed because of several factors, including the 2009 election season. The Department had put in place a mechanism so that such delays on remedial legislation flowing from the Court were avoided, and judgments were better monitored in this effort.

Clause 3 contained the Bill’s transitional provisions.

Discussion

The Chairperson said he had received information from the Chief Director of Cultural Affairs in the Western Cape that there was no comment from them at this time.

Ms L Botha (DA) asked that the delegation clarify whether the RCMA Bill made provision for lesbian, gay, bisexual, transgender, queer and questioning, intersex, asexual and more (LGBTQI+) communities.

Mr P Marais (FF+) said that the principle of the Bill could not be rejected as it spoke to equality and women’s rights protection. The problem he had was that he was in principle against customary marriages, where one man had as many wives as he would like without being able to support these wives and the family, and those women and children became the state’s burden. This was the start of poverty. He had no problem with the Bill, but if customary marriages had to be the new norm. He would have to accept this. However, in principle he could not support customary marriages as a whole.

Ms A Bans (ANC) asked for clarification on Clause 1 of the Bill, which referred to an amendment of the word “traditional leader.” She highlighted that the Western Cape Provincial Parliament did not have a National House of Traditional Leaders, and asked if provision was made for the Western Cape, and for the delegation to clarify what options the province would have at its disposal for customary marriages. In light of the Ramuhovhi judgment’s interim order having since become final, she also asked for clarity on the Standing Committee’s role in the legislative process.

The Chairperson said Ms Ross had mentioned that each spouse maintained exclusive rights over his or her personal property, and asked for clarity on the definitions of marital property, house property and family property. He raised a concern that without any clear definition, a husband could potentially define property as personal property to avoid the property being part of the full estate.

Department’s response

On the inclusion of the LGBTIQ community in the Bill, Ms Ross responded that the Bill applied to everyone. It provided that proprietary consequences would no longer be dealt with in customary law, and this was protection enough for the LGBTIQ community. She emphasized that although the amendments may be new, this was not a new piece of legislation, but rather a Bill amending an Act that was in existence. These amendments in the Bill would be merged with the RCMA so that it further regulated customary marriages. Where there were members of the LGBTIQ community who married in terms of customary law and in polygamy, the Bill would apply to them because it applied to everyone. She said that it was a question of the implementation of the law and education, and that nonetheless the Bill would be a law of general application.

Regarding traditional leaders, she emphasised again that the Bill was not a new law, but rather effected only corrections to a law that was already in existence. The Bill did not deal with a marriage, because customary marriages were already recognised, since the RCMA took effect on 15 November 2000. The Bill itself did not deal with marriages but rather with the proprietary or ownership consequences thereof. She emphasised that customary marriages were not new and had been in existence. From 1998, these marriages had been recognised marriages.

On the definition of the traditional leader, she said that the relevance of a traditional leader in the Bill reflected the fact that traditional leaders had a role to play in the marriage because some customary marriages needed to be registered. The process of customary marriages through “lobola” would involve a letter of some sort, as was issued by a traditional leader. This was why it was necessary to amend the definition to put it into line with the Traditional Leadership and Governance Framework Act 41 of 2003. The amendment of “traditional leadership” in the Bill did not mean that it would apply to the Western Cape, but rather that it would apply where traditional leaders existed.

On the definition of personal property, Ms Ross said that personal property in this context represented the personal effects of an individual. In the presentation, she had indicated that calls had been made that the Bill should define the different categories of property, but the Department had been faced with the challenge of a lack of consistency across groups and cultures as to what the different categories of property meant. When the Department made consultations on the Bill, this issue had been raised with the relevant stakeholders, which included traditional leaders, and there had been a lot of disagreement on what these terms meant. The view had been taken -- also in the Portfolio Committee meeting -- that defining these terms without the benefit of a comprehensive consultation may lead to unintended consequences. It had been thought prudent that because the DHA was busy with the larger project of reforming and reviewing marriage in South Africa, during that consultation process these issues on the definition of property could be aired so that common ground could be found on what these terms meant. Because of the diversity of cultures in South Africa, it was likely that these terms meant different things in different cultures, and a comprehensive consultative process on this point would delay the Bill further when the remedial legislation should have been put in place by November 2019, as per the court order.

On the Ramhuhovhi judgment’s interim order being final, she responded that because the court had decided that s7(1) was unconstitutional and discriminatory against women, the court had given an order that the words in the provision that were found to be problematic should be severed from the provision. She said that this became the law the minute the Constitutional Court made its decision. She said that this influenced the Constitutional Court’s decision to reject the application to extend the deadline, as an extension would be ineffective because the interim order had been made final. What remained was for the legislature to fulfil its role of legislation making, and to put this order in the statute books.

Follow-up questions

Ms Bans asked that her questions be considered again so that she could better understand the amendments. Her understanding was that the Western Cape was different from other provinces when it came to traditional leadership, and she asked whether the province was catered for in the Bill since traditional leaders had a role to play in customary marriages.

The Chairperson asked whether the delegate was able to provide some examples of the unintended consequences if the different categories of property were defined. He could see how, if those clauses addressing property were not defined, a husband in a polygamous marriage could categorise property as personal property so that it still remained in his sole control.

Responses

Ms Ross responded that an example of unintended consequences was exactly what the Chairperson had alluded to, where the husband categorised property at his will. What was important was that in terms of the Bill and the relevant court order, the husband had lost the exclusive and sole control of the property. Also, the intention was not to discard the proposal to define these terms, but rather to subject these terms to more extensive consultation, as the initial consultation had revealed that stakeholders could not find common ground on the definition of these terms. The view held by the Department was that before these terms could be put into the statute book, stakeholders needed to be consulted extensively without the further delay of the amendments at hand.

On the question of the role of traditional leaders, she understood the concern that there were no traditional leaders in the Western Cape, even though customary law was practiced. The role of traditional leaders was to further facilitate the validation of a customary marriage, be it the issuance of a letter on lobola, or the registration process of a customary marriage. A customary marriage needed to be registered with the DHA, and the non-registration of a customary marriage did not invalidate the marriage. A problem might arise if a person in the Western Cape sought to get married customarily and wanted a traditional leader to facilitate the process. She emphasized that working with a traditional leader was a choice and not a requirement, and people could go straight to the DHA to register a marriage without the facilitation of a traditional leader.

Further discussion

Mr Marais raised his concern on a potential situation where a man could marry two or three women, and then seek to marry another woman from another culture who decided to marry in a church or through civil law. He asked whether in that scenario, the customary marriages got precedence over a marriage in community of property, or whether the spouse from the civil marriage got her half of the estate, and the other half was divided between the spouses in the customary marriages. He asked for clarity on whether the law addressed such a situation.

Ms Ross responded that the situation Mr Marais had raised was not covered in the RCMA Bill, because it only sought to give effect to the court order in the case of Ramuhovhi. A subsequent customary marriage did not invalidate a previous customary marriage. On whether a customary marriage invalidated a subsequent civil marriage, she referred to the creation of a will. She said that through a will, it was the choice for any person to distribute their assets in a manner in which they pleased. This was a tricky question, because it brought up the question of which marriage invalidated which marriage. A person who was already married in terms of customary law could proceed and marry in terms of civil law. She emphasised that the amendments protected spouses in regard to the proprietary consequences of the marriage.

Mr Makubela Mokulubete, State Law Advisor,  also responded to Mr Marais, and said the answer lay in s7(6) of the existing RCMA. It provided that “a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of this Act must make an application to the court to approve a written contract which would regulate the future matrimonial property system of his marriages.” He said that this was a short answer to Mr Marais’ question, and stressed that the Bill being considered by the Standing Committee aimed to deal with the orders in the Ramuhovhi and Gumede judgments. The Bill did not deal with other aspects which were dealt with in the Act itself.

Mr Marais said his question had been answered in a way that did not solve his problem. His question was about a man who married a woman not of his culture through civil law in community of property after having married, say, four wives through customary marriage. He wanted to know about the position of the other four wives married through customary law, and whether the law provided that they should divide the other half of the estate that was in community of property through the civil marriage between them.

Mr Mokulubete said he understood Mr Marais’ question to have been answered. The contract that must be in writing to regulate the future property regime, should be authorised by the court so as to make how the property regime in the polygamous marriage would apply, clearer. That was as far as an explanation could go.

The Chairperson thanked the delegation for their attendance and excused them. The Standing Committee may call upon the delegation again to design the public participation process.

Actions and recommendations

The Chairperson allowed for input from the Standing Committee’s Members and procedural officers.      

Mr Marais said the Committee had to think deeply about this Bill, because the delegation had answered him by leaving it up to the magistrate to decide, and magistrates could not make law. The province’s own legal department needed to examine the Bill. The Committee was trying to enact justice and equal rights for all women, yet the Bill leaves out people who marry across different cultural lines. He raised his scenario again, and emphasised that he was asking whether the law improved the right to equality for all women. The Committee should throw this question back to the legal department so that it eventually accommodated women of all cultures.

The Chairperson responded that the Bill was still in its initial process. There would be a public participation process after the briefing, and thereafter a negotiating mandate and a final mandate.

Adv Romeo Maasdorp, Legal Advisor: WCPP, raised three points. He said a Recognition of Customary Marriages Act had been in place since 1998 that had been considered, interpreted and applied by the Constitutional Court when it dealt with the cases of Ramuhovhi and Gumede. The Act had been deemed as constitutionally valid when it was passed. Because of the application of that Act, the Limpopo High Court had found that there was unfairness in terms of the proprietary consequences emanating from the application of the Act, where certain spouses were discriminated against for whatever reason. The WCPP was not currently dealing with the RCMA, but rather with the two court judgments from the Constitutional Court intended to equalize the regime pertaining to marital consequences. The Committee was engaging with that Bill to consider whether the consequences of those judgments could and should be properly infused in the already existing RCMA. He assumes that Members, in dealing with the amendment Bill, were familiar with the principal Act.

He had no questions on the amendment Bill, because the substance of this amendment Bill was effectively effecting a court judgment pertaining to the marital regime before 1998 and after 1998. The Committee was obliged to consider whether these consequential amendments properly reflected the legal decision and the rationale of the two judgments, as the substance of the Bill was uncontroversial. The only matter pending was the issue of the definition of particular terms, and he echoed the indication from Ms Ross that the Bill was out of time already. The Committee was seized with the decision as to whether the Bill’s amendments effectively, properly and unambiguously gave effect to the Constitutional Court judgments on Ramuhovhi and Gumede. With this question in mind, he had no doubt that the amendment gave effect to the rationale behind the Constitutional Court judgments. He advised the Committee that there should be no reservation about supporting this amendment of the principal Act.

Mr Marias assured Mr Maasdorp that he had done his homework on the matter, and argued that the Constitutional Court could also err, which was why these cases had come before the Court again. If the Committee was not willing to discuss these issues, then the Constitutional Court would be called on to amend the Act another three or four times. He understood that the purpose of the Act was to ensure that all women were treated equally, but raised concern as to whether the amendment provided for equal treatment across cultures. He emphasised that he was asking a different question on whether the amendment was intended to protect customary marriages between the Nguni tribe or, at the same time, other marriages not belonging to the Nguni tribes.

The Chairperson thanked Mr Marais for clarifying his question, and responded that that was not a question that would be opened up at this meeting.

Ms Botha welcomed the input from Adv Maasdorp. The Committee had to get to the constituents that this law would affect, which raised the issue of public hearings. The next step and the timelines should reflect the consideration of input from where it really mattered.

Adv Maasdorp amplified that the role that the WCPP played after the briefing was to popularise the amendment to people who had a direct, material and legitimate interest in the consequences and substance of the Bill. The public participation process would have to be conducted to reach the various cultural groupings living in the Western Cape. Once there were those submissions, the WCPP could gather again to say that the Bill was supported, was supported with qualifications, or was not supported because it did not go far enough. The public participation process was likely to bring up the concerns raised by Mr Marais, and the public participation process would be the appropriate next step in order to guide the WCPP’s negotiating mandate.

Mr Sileku said that after a briefing, the WCPP would decide on how to go about its public participation process so that when a decision was taken on the WCPP’s negotiating mandate and final mandate, its input would be well informed. The Department was currently engaging with briefings for all the provinces, and once the Department had exact timeframes on when the final mandate would be required, this would be communicated to the provinces. Should there be a need for an extension for public participation, this would be accommodated in light of the pandemic circumstances because legally, without proper public participation, the Bill might not be approved.

The Chairperson asked Mr Ben Daza, Senior Procedural Officer: WCPP, to brief the Committee on the possible way forward regarding the public participation process.

Mr Daza said the Committee would have to decide on its form of public participation in light of the pandemic conditions. It was up to the Committee to decide on the options to call for written submissions, oral submissions and virtual public hearings. In terms of resources, the WCPP had allocated WhatsApp numbers to procedural officers so members of the public could also make oral submissions by using voice notes. The request was that the Committee decide on how the public participation process would be conducted, in line with the meeting from yesterday.

Mr Marais said that he saluted Adv Maasdorp for having come on board with a fuller understanding of his intention. Regarding the public participation process, he said that if the WCPP was not going to give the public an executive analysis of what this amendment was about, then it would be ineffective to call on lay persons to submit opposition to a document drafted by an advocate. Public participation would be meaningful only after the Committee provided a layman’s explanation to the public when they were invited to make submissions, explaining what the amendment sought to do and the specific impact on specific persons. He emphasised that people could not be expected to engage in a public participation process without being fully informed.

Mr Sileku said that what was important was what Ms Botha had alluded to, which was reaching different constituencies. In light of the pandemic protocols and circumstances, he was concerned about how provinces would go about facilitating public participation. If a particular constituency that would be affected by the amendment was computer-savvy or clued up on the use of WhatsApp or virtual meetings, the question arose as to what other options could be looked at to achieve maximum participation. He raised the experience in the processes of the Integrated Development Plan (IDP), which had not been ideal, because five out of 3 000 members in a ward would comment and then it would be resolved that the community had participated because notices and SMSes had been sent out with an invitation to participate. These were the issues that needed to be considered so that, for example, where this amendment was going to affect a woman who was already in a customary polygamous marriage and had been discriminated against for all these years, she should be informed that there was an amendment to remedy the rights imbalance should something happen within her marriage, and should be empowered to participate in the public participation process.

Ms Botha agreed with Mr Marais that when the WCPP embarked on publishing the advertisement for public participation, there should be a half or full page summarising in laymen’s terms what the amendments in the Bill were, so that the constituencies most affected would understand the amendments. In terms of the challenge of in-person meetings due to the pandemic circumstances, she said that the WCPP needed to get the buy-in of municipalities to assist so that constituents could be supported to access data. She was proposing that the WCPP consider facilitating multiple virtual public hearings in addition to accepting written submissions through WhatsApp or e-mail.

Mr Daza said that what normally happened in public hearings was that the province would request the national Department to present to assist the members of the public to understand the amendments in question. The other option was to have the Committee, on behalf of the WCCP, to request the National Council of Provinces (NCOP) to have the process postponed because of the pandemic circumstances in order to facilitate proper public participation. He said the people most affected by this Bill would not be able to make meaningful submissions on the amendment. This was a tricky option, as the NCOP needed five provinces to move forward, and if five agreed, then the NCOP would go ahead.

Ms Botha suggested that perhaps, at the Chairperson’s earliest convenience, a letter could be written to the NCOP requesting a postponement.

The Chairperson said he would also lean towards the option of a postponement.

Mr M Xego (EFF) seconded the proposal for more time. He said the Committee had a responsibility to have a certain position in terms of the negotiating and final mandate, but there could be no position without meaningful public participation.

The Chairperson said that he would be engaging with the procedural officers the first thing in the morning regarding the postponement, and would be in contact via e-mail.

The meeting was adjourned.




 

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