Recognition of Customary Marriages Amendment Bill: Department response to Negotiating Mandates

Meeting report

The Chairperson said the Committee had received the negotiating mandates on the Recognition of Customary Marriages Amendment (RCMA) Bill [B12-2019] (National Assembly – sec 76) and the Department’s responses to comments raised by the provinces. All provinces indicated they were in favour of the Bill except the Western Cape which indicated that it was not in favour of the Bill.

Summary of negotiating mandates and Department’s Response: RCMA Bill
Ms Theresa Ross, State Law Adviser, Department of Justice and Constitutional Development (DOJCD), spoke to the summary of negotiating mandates on the Bill. She said the Bill contained four clauses and comment had been received from the provinces on clauses one and two only.

Clause 1
On Clause 1, Gauteng had submitted that the definition of “traditional leader” should be revised to align it with the definition as contained in the Traditional and Khoi-San Leadership Act (TKLA), No. 3 of 2019, once this Act has commenced.

The Department responded that the TKLA has not been implemented and that it was not known when it would be. It was safer to use a general definition that would cover any other relevant legislation on traditional leadership roles. It proposed ‘‘traditional leader’’ to mean any person who, in terms of customary law of the traditional community concerned, holds a traditional leadership position and is recognised in terms of the applicable legislation providing for such recognition”. This definition was consistent with the definition proposed in the Traditional Courts Bill. It said that during consultations there was no agreement on what these terms meant and the DHA was busy with a review of the marital regime. It said the definitions would benefit from comprehensive consultations.

Clause 2
On Clause 2, the Eastern Cape House of Traditional Leaders submitted that a definition of what constitutes “personal property”, as indicated in clause 2(1)(c), should be inserted in the Bill in order to avoid any confusion that the parties who are getting married must build their own so that they do not develop the family home, while Limpopo, Gauteng, Free State, KZN, and Eastern Cape submitted that all marital properties; house, family and personal property should be defined.

The Department responded saying it had intentionally left these terms to be given its meaning as it exists in different parts of the country, as contemplated in customary law. If necessary, the courts would give meaning to the terms, on the strength of evidence placed before them on what the terms meant in a particular area of jurisdiction. In this way, jurisprudence would develop and adapt as customary law itself evolved. Defining complex customary law concepts without proper research and consultation could result in unintended consequences, to the detriment of women in customary marriages, whom the Bill aimed to protect. The Constitutional Court did not pronounce on the manner by which these terms should be interpreted and applied in practice.

Gauteng noted that there might not be universal definitions of the various property types across tribes and the Department of Justice should investigate whether these customary definitions aligned with the intentions of the Bill. The Department said it shared this view, hence its reservations.

KZN and Free State proposed definitions for “house property”; “family property”; “personal property” ; “Family property”; and “Marital property”. The Department said that the suggested definitions did not take the matters further and it was necessary to have more comprehensive research and consultation before coming up with definitions.

Limpopo submitted that imprecise words were used in parts of the text of the Bill which might lead to ambiguity in the interpretation of the Act. The words in question were ‘person’; ‘husband’; ‘wife’; “family property”; ‘house property’; and “personal property” which needed to be defined. It also noted that further research and analysis on the types of property under customary law was recommended in order to ensure proper alignment with the Bill of Rights and other legislation.
Ms Ross said the Department responded by saying that it felt there was no confusion in the use of the word ‘person’ in clause 2. The word “person”, being a spouse, could only mean husband in the context of the Bill and the Recognition of Customary Marriages Act (RCMA) at customary law. There was also no debate on whether there was any custom in South Africa that recognises that a woman can be a party in more than one customary marriage, or at least that debate has not surfaced and this was the wording that was used in the RCMA currently. It supported the call to define words through comprehensive and extensive research to avoid unintended consequences.

Limpopo also submitted that joint ownership, management and control of property in pre-RCMA polygamous marriages as proposed in the amendment Bill may create more confusion than intended or create uncertainties.

The Department said that the High Court and the Constitutional Court in the Ramuhohvi judgement made clear that there must be joint ownership, management and control of property between spouses in order to give effect to the principle of equality.

Limpopo submitted that house property and family property would always overlap because the husband was the common denominator. The Department responded and said that it could not be confirmed that there would be an overlap between the types of property until research was done on the meaning of these terms ‘house property’ and ‘family property’. This argument was also used for Limpopo’s submission that it would seem that wives by virtue of being in community of property with the husband in their respective houses were also impliedly in community of property with one another to a certain extent.
Limpopo further submitted that notwithstanding the Ramuhovhi case, it was still not clear why a joint property regime would be the best option. The Department responded that a joint property regime in pre-RCMA polygamous marriages was decided in the case of Gumede v President of South Africa, in order to protect the proprietary consequences of spouses in the customary marriages before the Act. There was no reason why the same protection provided for in the Act could not be extended to persons in the same marriage regime who got married before the promulgation of the RCMA.

Limpopo submitted that more needed to be done to ensure that the issues of proprietary consequence in customary marriages were crafted carefully in order to be suitable for the marriages in question. Clause 2 might require revision in order for the proposed amendment to provide clear and adequate recourse concerning the proprietary regime for pre-RCMA polygamous marriages.

The Department responded that the court had already considered this situation in the Gumede case. The Bill places pre-RCMA customary marriage and post-RCMA customary marriages on the same footing in respect of proprietary consequences.

Limpopo submitted that the amendment of section 7(1)(2) of the Bill did not do away with some of the issues that perpetuates the inequalities that was embedded within customary marriages.

The Department responded saying that the Bill provides that spouses have equal rights in the ownership, control and management in joint properties to prevent the said inequalities.

Limpopo submitted that there seemed to be a disjuncture between the Bill and other existing legislation and that there was no clear link between the Bill and other legislation regulating customary marriages.

The Department responded that the Bill amended the RCMA, 1998, and this was the only Act that dealt with customary marriages. Every attempt was made to align the Bill with the judgement of the Constitutional Court in Ramuhovhi and the Gumede judgements.

The Eastern Cape submitted that in the case of a family home, the estate should be calculated and divided in equal portions. The party who wants to divorce his or her partner must be given his or her portion and the said portion must be divided into equal portions for the purposes of their divorce and that this arrangement must also consider the cultural adoptees.

The Department responded that the division of the estate in the event of divorce would be regulated by the settlement agreement between the parties. Adopted children, including those adopted in terms of customary law, were entitled to inherit from their adopted parents.

The Department said that there were general submissions around the need for public education; that traditional leaders should be given a role to play in the registration of customary marriages; that there was no consultation on the bill, but the Department disagreed with this statement and had records of the consultations to back it up.

Ms Ross said the short title still referred to 2019 and it would have to change as the Bill was being processed.

The Chairperson asked if this was also an amendment.

Ms Ross confirmed this.

The Chairperson said there would be an amendment on the short title of the Bill. She said that in a previous Bill, the Traditional Courts Bill, the Committee had tried to give a general definition and the definition should be consistent with the previous definition.

She noted that the Department of Home Affairs was embarking on processing a new marriage policy and that many comments were made by provinces which should be shared with the DHA. She said the provinces had called for the public’s education on the Bill and that the Department had said an educational initiative would be instituted.

The meeting was adjourned.