Customary Law Bills; Job Summit Panel Discussion: briefing

Customary Law of Succession Amendment Bill [B109-98]

[These bills can be accessed from http://www.polity.org.za/govdocs/bills/1998]

Ms L. Mbatha from the Centre for Applied Legal Studies (CALS) addressed the committee on the Customary Marriages Bill and answered questions. There was a short comment on the Customary Law of Succession Amendment Bill. Ms A Vincent from Job Summit proposals talked about proposals. The chairperson, Ms P Govender reviewed the committee’s work programme.

Recognition of Customary Marriages Bill

Ms Likhapha Mbatha, head of the section on Customary Law at Centre for Applied Legal Studies briefed the committee on the Recognition of Customary Marriages Bill, specifically focussing on rural women.

Section 1

CALS is concerned about accessibility – where will family courts be located? High courts are in urban centres, not near rural women.

CALS does not agree with the Bill’s definition of "customary law". This needs to be revisited. They suggest "customs and usages observed by African people of S.A." (omitting "traditionally"). This will accommodate changes developing in customary law. The courts should have the power to develop customary law as they do civil law.

Section 2. Recognition of Customary Marriages will improve lives of many people. But CALS felt rural women were against the recognition of polygamy. They are concerned that it would encourage men to cohabit, enter into unregulated polygamous relationships to avoid giving customary wives rights.

Section 3. CALS is happy with (i) 18 years requirement and (ii) that parents can no longer force children into unwanted marriages. This very is important. The Bill encourages parties to customary marriages to enter into civil marriages. This will benefit women because customary marriages are only recognised for certain purposes e.g. Workmen’s Compensation Act, but for other purposes they are not seen as valid, legal marriages.

Section 3(3)(a) makes provision that both spouses must consent to a minor child’s marriage.

CALS is against this. CALS wants one spouse to be able to give consent. This is because of the reality of many single-headed households (headed by women). These women are bringing up their children on their own but will not be allowed to decide this issue on their own.

Section 3(3)(b) extends Section 25 of Marriages Act. A commissioner or judge etc can give consent if parents fail to reach an agreement. This is a great breakthrough because parents may not agree e.g. on lobola.

Section 4 Customary marriage must be registered "within a reasonable time". Experience has been that some men use delaying tactics. Therefore section 4(4)(a) gives important protection as women can initiate proceedings. Certificates of registration are important to women.

Section 4(2)(a) CALS is concerned that courts might take into account lobola paid when setting maintenance. In the past, lobola was a safety valve for women and the children to use when marriages failed. If maintenance is based on that and there is no lobola left, it might contribute to the misery of poverty-stricken women. Clarity must be given on the date of marriage because if there are conflicts over date, there will also be conflicts over property.

Section 5 Determination by court of person’s age, important for the many children that are not registered.

Section 6 A most important section. Women married under customary law will be able to make decisions binding on the family, including decisions on the property they have amassed. For example they will be able to decide to sell a family cow for purposes of buying school uniforms for the children.

Section 7 Customary marriages entered into before the Act will continue to be out of community of property. After the Act, it will be by choice of the spouses whether it is in or out of community of property.

Section 7(5)(a) In order to enter into polygamy, a person must apply to court to freeze the matrimonial property accumulated by the customary marriage – to be re-divided between customary marriages and a written contract entered into. This will complicate entering into legal polygamy and may encourage men to "cohabit".

Section 7(5) c) CALS is concerned that with the division of property between customary law spouses, the family group could argue that the heir will be deprived of rights to property. The heir may claim that the agreement between wives interferes with his right to property – a very important right in customary law.

Section 8 Extends the Divorce Act, 1979, to customary marriages

Likhapa Mbatha concluded by saying that this was very important Bill. She suggested that the legislators must think about the drafting of forms for marriage registration, inventory and division of property which will simplify processes and that could be completed without the use of lawyers.

Customary Law of Succession Amendment Bill

This Bill extends the Intestate Succession Act to Africans. Before they were subject to the Black Administration Act, 1927. Ms Likhapa said CALS is very happy with the Bill except that it is concerned about the support of the surviving spouse.

The Chairperson, Ms Govender summed up the huge advance – that the old customary law made women minors who were unable to inherit or enter into contracts and legally represent themselves.

Questions by committee members

Ms F Hajaij asked whether marriages across groupings could be finalised? Section 4 states that marriage should be registered "within a reasonable time" which was too vague and the time period should be specified e.g. within 6 months.

How do rural women view the Bill and do they feel it is being imposed on them? Has CALS consulted young women e.g. young women’s networks, to get that input.

If the first wife is married in civil law, the second in customary law, what happens to the property?

Query about lobola – meaning property in cash or kind in definition (section 1)

Division of matrimonial property – does the evaluation include the man’s banking account when he goes into another marriage? Clause 6 is very welcome for women but one can anticipate that men will kick up a fuss. What happens if a man has signed a will in favour of his children? Will this be affected?

What has been the response from traditional leaders and what are the implications on the role of traditional courts?

Response from Ms L Mbatha:

- There had been no response from the traditional leaders but they were expecting opposition from them especially about equal status.

- Regarding traditional courts, the Black Administration Act is still the law, the traditional courts are part of the judiciary system with powers to deal with certain offences. CALS feel that they play an important role in rural areas and should be continued, but brought into line with the constitution. CALS hopes that the Law Commission is carrying out a separate investigation on traditional courts and will produce report.

- Regarding division of matrimonial property, if the parties are married in community of property, the salary, even the pension is part of the property. The inventory of property would include the salary of the month they go to court. Wills are personal and need a legal procedure to change this. If there is a marriage in community of property the will will deal with the man’s share.

CALS is satisfied with the Bill’s definition of lobola. In the past lobola comprised of cattle and now comprises of money.

- Ms Mbatha considered the one of the purposes of the Bill was to discontinue the practice of mixed types of marriages. In South Africa these had been desired to identify with another culture. Now civil law benefits were extended to customary law, therefore that need fell away.

CALS feels women in rural areas have to have a say with regard to what is happening to them. But because of lack of awareness, they do not know any better. Therefore CALS feels they must not be left to suffer because they are unaware. Before the Bill comes into effect it must be made know to them.

There had been no strategic endeavour by CALS to target young women in dealing with rural women. However the groups did include young people. She noted the value of targeting young women for future investigations.

This Bill only includes African groupings that were included in the Black Administration Act. Separate investigations will take place for other groups e.g. Muslims, Hindus.

Job Summit Proposals

Ms Govender announced the representatives of government, business, labour and community that would form the panel for the Job Summit panel discussion to be held on 21 September. Alex Irwin had accepted on behalf of the government.

This committee wanted to ensure that the Job Summit ensures that the position of women is improved. They needed to examine whether the proposals meet the needs of women who are in the majority in the country and yet are the most economically disadvantaged in the country.

Ms Anne Vincent from Job Summit Proposals spoke to the committee. She said there needed to be systematic, purposeful criteria to create the empowerment of women. Concrete programmes such as training centres for women, creches etc must be negotiated.

It was critical that an information programme should reach the rural areas to address the lack of information about business skills and the market. Women must have access to the communication centres. These must be relevant. For example in Columbia you could be illiterate, yet still able to use e-mail and communication centres due to imaging technology and touch screens.

Regarding jobs, do we mean creating formal jobs or mechanisms to empower women "to become architects of their own fate?"************

Key issues identified are:

Employment programmes should

tap people in the area of a project

open building processes to women

monitor project and key performance indicators

redistribute production to the rural areas

Major constraints are:

the disempowerment of women is structurally rooted

local government cannot solve this alone. Local governments are overstretched and struggling with delivery already without new issues such as gender.

Ways in which local government can help empower women are:

providing shelter, water, public transport

financial and technical support – child care support

more affirmative action

The triple role burden of women must be challenged.

Committee work programme

The chairperson reviewed the committee’s programme of work:

1. Domestic Violence Bill – members of the committee have been meeting with the Justice committee about its issues.

2. Sexual Offences Bill – they have met with the Law Commission and Justice Department. It will be tabled next year.

3. Sexual harassment – code completed by NEDLAC: most incorporated into the Employment Equity Bill

Maintenance Bill – they are in communication with the Justice committee, particularly about the issues of constitutionality

They are pursuing the issue of plain language, so that the Bill will be more accessible

Skills Development Bill - does this reflect the needs of women?

Maternity Benefits – they are communicating with the Labour Department about the exclusion of domestic workers. The report to parliament, shortly to be tabled, will be scrutinised.

The Panel Discussion – Business, Labour, Community representatives still have to confirm

Education – equity gender report to be incorporated in Cedaw Report.

The last meeting of the committee will be on the 2 November when its annual report and the Cedaw report will be presented

A critical issue is the elections and women – what legislative changes are still required for women as voters and candidates?

Customary Law provincial hearings should be held. It was finally agreed that they should work with the Public Education Department (PED ) to take a pilot project to two provinces i.e. Northern Province and Mpumalanga. Ms Govender suggested that the Gender Commission could proceed with hearings in KwaZulu-Natal and Eastern Province which are two crucial provinces.