Customary Marriages: Workshop

Documents handed out:

SA Law Commission: Workshop Outline on Customary Law of Marriage (Appendix 1)

The Harmonisation Of The Common Law And The Indigenous Law: Discussion Paper 74 : Customary Marriages: Summary Of Recommendations And Requests For Comments (Appendix 2)

Professor T Nhlapo, chairperson of the Project Committee on Harmonisation of Customary Law: South African Law Commission, said the Law Commission was attempting to recognise customary marriages in some way. It had issued a discussion paper which went around the country [see full discussion paper at: http://www.law.wits.ac.za/salc/discussn/discussn.html]. Since January 1996, a new approach has been used: holding meetings with the provinces to get feedback. Workshops with women's organisations have been held in every province. In some regions, women were intimidated by traditional leaders. The report on customary law will go from the Law Commission to Parliament in the form of a draft bill. Difficulties were noted with the issue of patriarchy. In rural areas, the Commission was accused of being too Western and in other areas, accused of the opposite approach.

In the March 1998 Project Committee meeting, many difficulties were brought up and the draft had to be reworked. The draft bill is now set to go to the Commission meeting in June.

Professor Nhapo spoke to these issues. It was necessary to distinguish between the official definition of customary law and the "living" version of customary law. A dual system does not operate in South Africa's Constitution as §15 of the Constitution gives the right to cultural and religious systems.

The workshops enabled them to get a sense of how rural women felt. Women are worried that "rocking the boat" may threaten their survival. Unified marriage law is ideal but does not operate anywhere in Africa. Professor Nhapo posed the question: Should some rules be common to all marriages but still allow for differences in culture and religion? A certain level of duality will have to persist in South Africa. The Commission has not yet arrived at a conclusion on the definition of customary marriage. What legal system governs dual marriages? It would be ideal to go by the law of choice. "Conversion" should only be allowed from customary to civil, not vice versa.

Liklapa Mbatha of CALS Gender Research Project at Wits University reported that the project has been engaged for seven years with rural women from Gauteng, Northern Province and the North West. Since South African society is already so divided, perhaps there should be a unified system. However, Africans should be allowed to marry in their traditional way (lobolo, traditional negotiations, etc.) Rural women insist that children should be able to participate fully in their own marriages and be aware of all the implications of customary marriages. Both rural and urban women believed that women must consent to their marriages but would like the parents to be involved. Professor Nhapo stated that it is the position of the Commission that there should be no consenting on behalf of children by parents. The Commission decided the minimum age of marriage to be eighteen with parental consent necessary for the marriage of a minor. Parental negotiations on marriage goods are essential for customary marriage.

Regarding polygamy, there can be no prohibition by law but the rights of women will be improved. The question of polyandry was raised but this is not an issue in South Africa.

A committee member noted that women do not have a strong voice and asked whether existing culture should be accepted just because it is traditional. It was also asked whether polygamy was not encouraging AIDS. The point was raised that the whole issue is really about gender equality; that a woman should have equal status with the man in whatever marriage she lives.

Professor Nhlapo stated that he did not say that the state must not intervene in questions of culture. However it can only decide whether a practice is unconstitutional ie discriminatory to women. The Commission expects that a woman over eighteen will no longer be regarded as a minor in customary law. He admitted that the Commission floundered on the question of a man taking a second wife without the permission of the first wife. Ms Mbatha pointed out that the Commission must consider that culture is not static, because traditionally when formulating law, the culture of the past is usually accepted.

A committee member stated that women are regarded as the property of men in customary law and women in polygamous situations are oppressed; it was asked should this not be protected against. Mrs. Camerer (NP) raised concern about the possibility of perpetuating the lower status of women in the proposals of the bill. Another member asked whether there should be a massive campaign to acquaint the worst victims, rural illiterate women, with the issues or whether the laws should come first. Ms. Govender (ANC) stated that at present, African women married under customary law are regarded as minors and that is why this bill is urgent. Next year many women M.P.s who have participated in the research on this issue will not be in parliament, so it is important to get this legislation passed this year. It is important for the voices of rural women to be heard. She asked how to get the reaction of women about the bill. It was suggested that community radio stations be utilised and also the Gender Commission, as well as outreach hearings. Ms Govender felt that all customary and religious marriages in existence be made legal.

Ms. Govender said a simple information package would be compiled before Parliamentary recess so that MPs could take them back to their constituencies to help inform all women of the issues. Women in all structures must be consulted - churches, stokvels, NGOs, and not just women's organisations. Women are trapped in customary marriages because of the lobola system. Women are at present being thrown out of their homes. A clear programme of action must be developed.

A Law Commission representative suggested that men should also be discussing the issue. There was debate as to whether the bill should be pushed through as a matter of urgency to give relief to women and then deal with the discussed today in the form of amendments.

Professor Nhlapo, referring to the questions raised, said that the earlier idea is to give traditional leaders two roles. Nobody is against registration of customary marriages and traditional leaders should be registration officers. Also they should be conciliators before a divorce. Polygamy is not believed to be necessarily good by the SA Law Commission but it would not be desirable to ban it at this stage. In the draft proposals, whatever type of marriage is entered into, the rights of women are addressed, so that any woman will be able to enter a customary marriage with confidence.

COMMITTEE ON THE IMPROVEMENT OF THE QUALITY OF LIFE AND STATUS OF WOMEN

PARLIAMENTARY WORKSHOP ON THE CUSTOMARY LAW OF MARRIAGE

20 May 1998, Parliament, Cape Town

I.INTRODUCTION

1.1 The process so far

* Pre-1996: the 1985 Report on the Marriages and Customary Unions of Black Persons

* Issue Paper: 31 August 1996 (ultimate closing date for comments: 30 April 1997)

* Discussion Paper: 29 August 1997 (closing date: January 1998, eventually 30 February 1998)

* Workshops (countrywide): 28 November 1997 - 23 February 1998

* Project Committee meeting: 30 March 1998 (result: a drastically reworked draft Report and draft Bill)

* Report: 27 June 1998 (full Commission meeting)

1.2 The emerging draft Report (and how it relates to the Discussion Paper)

* Different style: terminology, etc

* Different argumentation: the issue of a "unified" marriage law Differences in substance: (see below)

2. SUBSTANTIAL PROVISIONS

2.1 problem areas

2.1.1 Definition of customary marriage

* to distinguish from religious custom

* to clarify issue of parental consent and/or participation

* to clarify issue of registration and its effect

* to clarify the position of lobolo

2.1.2 Dual marriage

* what it is and what it is not

* allowing "conversion"

* assigning a legal regime

2.1.3 Consent

* individual consent

* parental consent

* link between consent(s) and minimum age

* link between consent(s) and definition of marriage

2.1.4 Polygyny

* effects of CEDAW and RSA Constitution

* practicalities of prohibition

* polyandry

2.1.5 Property regime

* in community or out of community

* polygyny and "serial division"

* accrual

* courts' discretion

2.1.6 Divorce

* custody, guardianship and maintenance

* lobolo and the question of children

2.2 Relatively uncontested areas

2.2.1 Recognition of customary marriages

* felt to be long overdue

* full recognition, not partial

2.2.2 Essential requirements for Customary marriages

2.2.3 Consent

* consent of the individual must be the basic minimum requirement

* other essentials may be added according to each system of customary law

* minors require parental consent: difficulty relates to parental participation in marriage of adults

2.2.4 Lobolo

* cannot be abolished

* its role must be defined: an optional cultural "extra" or an essential requirement?

2.2.5 Registration

* should be compulsory

* unregistered marriage should not be invalidated

* traditional leaders should be part of nation wide registering structures

2.2.6 Minimum age for marriage

* should be 18 for both parties (even for civil marriage)

2.2.7 Polygyny

* should not be prohibited by law

2.2.8 Women's capacity

* contractual and property holding capacity and locus standi (the ability independently to sue and be sued) should be on a par with men's capacity

* 5 11(3) (b) of the Black Administration Act should be repealed

2.2.10 Ante-nuptial contracts

* should be available to spouses to vary the automatic consequences of marriage

2.2.11 Prospective or retrospective operation of property regime?

* prospective with time afforded for others to opt for the new arrangements

2.2.12 Divorce

* must be granted by a court of law

* traditional leaders should have a role in the process (unclear: whether conciliation prior to divorce, or granting the order)

* single ground: irretrievable breakdown

2.2.13 Family Court

* should attend to all family matters, including those under customary law

2.2.14 Lobolo and children

* "best interests" principle should prevail

Appendix 2: THE HARMONISATION OF THE COMMON LAW AND THE INDIGENOUS LAW:

DISCUSSION PAPER 74 : CUSTOMARY MARRIAGES

SUMMARY OF RECOMMENDATIONS AND REQUESTS FOR COMMENTS

The following recommendations are made in this Discussion Paper:

1. In order to remove the anomalies created by many years of discrimination. customary marriage must now be fully recognized. To do so will comply with ss 9, 15, 30 and 31 of the Constitution, provisions which suggest that the same effect be given to African cultural institutions as to those of the western tradition. (See par 3.1.9.)

2. When spouses marry both by customary and Christian (or civil) rites to allow both forms of marriage equal effect would create irreconcilable conflicts and legal confusion. Hence the consequences of the union should be determined by the law expressly chosen by the parties. If the parties did not express any choice, a court may apply the law that is consonant with their cultural orientation (as indicated by their lifestyles and other relevant factors) and with the rites and customs governing their marriage. For greater legal clarity in the future and to protect the position of women in monogamous marriages, the law should discourage, rather than encourage. any 'mixing' of the systems. (See par 3.2.11.)

3. Legislative provision must be made for a minimum set of essential requirements for marriage. (See par 4.1.5.)

4. The main requirement for a valid customary marriage should be the consent of the spouses. (See par 4.2.10.)

5, Traditional wedding ceremonies and the formal handing over of the bride should also be considered optional. Together with bridewealth, however, these institutions will serve to identify a union as one celebrated according to African rites. (See par 4.4.6.)

6. All customary marriages should be registered. The Commission is sympathetic to the complaint that customary marriage is uncertain and difficult to prove. If registration were made compulsory, however, it would be difficult to decide on an appropriate penalty to ind~ce compliance. To rule that unregistered unions are void would work great hardship for the spouses and would deprive many existing unions of potential validity. On the other hand, more people should be encouraged to register their marriages, and to this end the traditional authorities should be constituted registering officers. (See par 4.5.11.)

7. In order to ensure that the spouses' consent is properly informed, a minimum age for marrying should be fixed for all persons in the country. (See par 5.1.10.)

8. Underage children should nevertheless be permitted to contract a marriage on terms prescribed in the Marriage Act. (See par 5.1.11.)

9. Under the Constitution and the United Nations Convention on the Rights of the Child, a parent's power to consent to marriage must be exercised only in the child's best interests. Accordingly, a guardian may not unreasonably prevent a ward's marriage. Instead, consent of a guardian should be deemed necessary to remedy deficiencies in the judgment of minors. Thus, marriages by children below age, where such consent was not supplied should be voidable at the instance of a spouse or guardians concerned. (See par 5.2.13.)

10. Existing statutory and common-law rules regulating the consent of absent or incompetent guardians should now be extended to marriages by customary law. (See par 5.2.14.)

11. To avoid unfair discrimination on the ground of gender, parental consent should be deemed to include the consent of both the father and mother of an underage child. (See par 5.2.15.)

12. The prohibition of marriage between persons on account of their relationship by blood or affinity should be decided by the systems of law to which they are usually subject. (See par 5.3.3.)

13. For various reasons, especially the difficulty of enforcing a ban and the fact that polygyny appears to be obsolescent, customary marriages should continue to be potentially polygynous. (See par 6.1.17.)

14. Reform in the area of spousal relations is now needed to harmonize customary law with social changes in South African society and to give effect to the principle of equal treatment contained in 5 9 of the Constitution and CEDAW. (See par 6.2.1.8.)

15. Women should be deemed to have contractual capacity, locus standi and proprietary capacity (and in consequence delictual capacity) on a par with men. It is therefore recommended that section 11(3) (b) of the Black Administration Act be repealed. In addition, to cure many years of uncertainty, provision must be made that the Age of Majority Act applies to persons subject to customary law. (See par 6.2.2.20.)

16. To discharge its obligations under CEDAW and the Constitution, legislation should provide that spouses have equal capacities and powers of decision-making. Such legislation will entail a repeal of section 27(3) in the KwaZulu/Natal Codes and section 39 of the Transkei Marriage Act (which both declare that wives are under the marital power of their husbands). (See par 6.2.2.21.)

17. While age of majority legislation can free people to engage in commercial and other dealings with the world at large, it cannot protect their acquisitions from other members of their own family. It is therefore recommended that individual proprietary capacity now be placed beyond doubt. A clear legislative statement is needed that everyone be deemed capable of owning and possessing property and that full ownership in individual acquisitions be recognized. (See par 6.3.1.16.)

18. Full ownership in individual acquisitions will involve consequential alteration to the existing rules on the delictual liability of family heads. While control of property and liability in delict are intimately connected, this is an issue that should be attended to by the courts (as happened in the past) rather than the legislature. (See par 6.3.1.17.)

19. In order to supply a lack of rules in customary law on the management of family estates, the common-law rule governing a spouse's power to bind the other's estate for household necessaries should be extended to customary law. A spouse should be liable to contribute to necessaries for the joint household pro rata according to his or her financial means.

A spouse who contributed more in respect of necessaries than he or she was liable to contribute, should have a right of recourse against the other spouse. Moreover, remedies in the KwaZulu/Natal Codes for restraining or deposing a person who mismanages a family estate should be made available to all members of the family. (See par 6.3.2.7.)

20. Spouses should have the power to enter into an antenuptial contract to vary the automatic property consequences of marriage. (See par 6.3.3.4.)

21. In keeping with previous law on this topic, the Commission recommends that spouses be considered to be married out of community of property, but subject to the current statutory rules permitting courts to order an equitable distribution of their estates on divorce. (See par 6.4.19.)

22. On the question whether the matrimonial property system, namely out of community of property, should apply only to marriages entered into after legislation is passed, the Commission was persuaded by the argument that prospective law reform might constitute unfair discrimination against the spouses of earlier marriages. On the other hand, the Commission was also concerned about upsetting rights already acquired under existing marriages. Particular comment is therefore requested on whether or not proposed legislation should operate prospectively. (See par 6.4.18 - 6.4.20.)

23. The private regulation of divorce in customary law places women and children at risk. It is therefore recommended that no marriage may be terminated except by decree of a competent court. (See par 7.1.16.)

24. The current anomalous position that magistrates' courts and the courts of traditional leaders have jurisdiction over customary divorces (and Black Divorce Courts have jurisdiction over divorces prosecuted by Africans married by civil or Christian rites) should be ended as soon as possible. All divorce actions and actions about other family law issues referred to in this Discussion Paper should be processed through the family courts. The Commission also recommends that family courts be instituted as a matter of urgency. (See par 7.1.17.)

25. Traditional authorities should be entitled to exercise conciliation powers prior to a divorce action. (See par 7.1.18.)

26. Only one ground of divorce should be entertained: irretrievable breakdown of the marriage. In exercising their discretion under this principle, courts should take into account pre-divorce conciliation procedures available in customary law and appropriate cultural norms governing marital behaviour. They should not, however, favour husbands at the expense of wives. (See par 7.2.7.)

27. Either spouse should be competent to apply for divorce. If a spouse is unable to prosecute the action unaided. the court should appoint a curator ad litem (a kind of guardian appointed to protect the interests of that spouse during the litigation). Certain progressive reforms made to the common-law divorce procedure, such as the appointment of a family advocate, should be extended to customary marriages. (See par 7.3.11.)

28 In spite of numerous problems of enforcement, maintenance should in principle be available to the spouses and children of customary marriage, both stante matrimonjo (during the marriage) and on divorce. (See par 7.4.7.)

29. In accordance with 5 28(3) of the Constitution and the United Nations Convention on the Rights of the Child, the child's best interests should govern all aspects of custody, guardianship and access to children. Because the best interests principle has no specific content, cultural expectations may be accommodated by the courts. To avoid unfair discrimination against women, mothers should have equal rights to children. (See par 7.5.12.)

30. If marriage must comply with certain predetermined criteria, a concept of nullitv is by implication introduced to customary law. There would, however, be no need to specify grounds for nullity. It is recommended that a court granting an order of nullity should be entitled to make suitable arrangements for the protection of vulnerable parties (and return of bridewealth if necessary). (See par 8.5.)

The Commission requests particular comment on the following issues:

1. Bridewealth is synonymous with marriage in African tradition. Once a husband had fulfilled his obligations under a bridewealth agreement, he and his family would have full rights to any children born to the wife. Hence, if a divorce were granted the children would remain under the care and guardianship of the father. Mothers were allowed custody, but they did not acquire a right equivalent to that of the father. In view of the prohibition on gender discrimination under section 9 of the Constitution and under the Guardianship Act, 1993, both spouses should have equal rights and powers over minor children. The questions arise whether the fate of children should depend on payment of bridewealth, and whether the courts should be allowed to take other factors into account when considering awards of custody and guardianship over children. Specific comment is invited on the following issues.

* Should bridewealth have a purely social function: as a token of appreciation or a mark of the cultural attributes of a marriage? In this case, bridewealth would be an optional element in marriage, analogous to the solemnization of marriages by religious rites.

* What effect should bridewealth agreements have on the validity of marriage, the rights and duties of the spouses towards one another or their rights to children?

* Should a wife's guardian be allowed to use the customary remedies for enforcement of a bridewealth agreement, ie 'impounding' the wife and/or withholding guardianship of children? (See par 4.3.4.10.)

2. Minimum ages should be fixed at which prospective spouses may be presumed mature enough to give their consent to marriage. The minimum ages established in the Marriage Act are 18 for men and 15 for women. Differentiation between the ages at which males and females can marry may be considered to constitute unfair discrimination on the ground of sex; in the past this differentiation was justified by the commonly held belief that boys and girls mature physically at different ages. Whether valid or not, this justification will be superseded if South Africa decides to ratify the African Charter on the Rights and Welfare of the Child (which specifies a minimum age of 18 for both men and women). The Commission requests particular comment on this issue. (See par 5.1.12.)

3 On the question whether the proposed legislation should apply only to marriages entered into after legislation is passed, the Commission is concerned that prospective law reform

might constitute unfair discrimination against the spouses of earlier marriages. On the other hand, the Commission is also concerned about upsetting rights already acquired under existing marriages. Particular comment is therefore requested on whether or not the proposed legislation should operate prospectively. (See par 6.4.20.)

ANNEXURE A

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

Words underlined with a solid line indicate insertions in existing enactments.

BILL

To make provision for the recognition of customary marriages entered into before or after the commencement of this Act as valid marriages for all purposes in law; to specify the requirements for contracting valid customary marriages; to regulate the registration of customary marriages; to regulate the legal consequences of customary marriages; to provide for dissolution of customary marriages; to specify the application of the Age of Majority Act, 1972; to amend the Black Administration Act, 1927, the Codes of Zulu Law in KwaZulu/Natal, 1985 and 1987, and the Transkei Marriage Act, 1978, in order to enhance the capacity of women; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

Definitions

1. In this Act. unless the context otherwise indicates-

(i) "court" means a family court established under the 1993 Magistrates' Courts Amendment Act 120 of 1993 and includes any competent division of the High Court of South Africa;

(ii) "guardian" means the person specified in the Guardianship Act 192 of 1993, and

failing any such guardian the person who would be considered guardian in customary law:

(iii) "registering officer" means any person or traditional authority appointed under section 2 of the Black Administration Act 38 of 1927 or the magistrate. or additional or assistant magistrate, of a district or area.

Recognition of customary marriages

2. A customary marriage entered into before or after the commencement of this Act shall be recognized as a valid marriage for all purposes in law.

3. (1) The requirements for a valid customary marriage are the following:

(a) the prospective male spouse must be over the age of 18 and the female

spouse must be over the age of 15 and both parties must consent to the

marriage;

(b) if the prospective male spouse is under the age of 18 or the prospective

female spouse is under the age of 15, such person must comply with the

provisions of section 26 of the Marriage Act 25 of 1961 to obtain consent

to enter into the marriage;

(c) if a prospective male spouse is above the age of 18 or a prospective

female spouse is above the age of 15, but is still a minor, that person must

obtain the consent of his or her guardian to enter into the marriage;

(2) The prohibition of marriage between persons on account of their relationship by

blood or affinity will be decided by the systems of law to which they are usually subject.

ALTERNATIVE DRAFT OF CLAUSE 3

3. (1) The requirements for a valid customary marriage are the following:

(a) the prospective spouses- must be over the age of 18 and must consent to the marriage;

(b) if a prospective spouse is under the age of 18, such person must comply

with the provisions of section 26 of the Marriage Act 25 of 1961 to obtain

consent to enter into the marriage;

(c) If a prospective spouse is above the age of 18, but is still a minor, that

person must obtain the consent of his or her guardian to enter into the

marriage;

(2) The prohibition of marriage between persons on account of their relationship by blood or affinity will be decided by the Systems of law to which they are usually subject.

Relationship of customary marriage and marriage by civil or Christian rites

4. (1) No person already married by civil or Christian rites may enter a valid customary

marriage with the existing spouse or with another person.

(2) Where spouses have simultaneously celebrated their marriage both by civil or Christian rites and by customary rites, the consequences of such marriage shall be determined according to the law which the spouses have expressly agreed should apply; failing such agreement. a court may take into account the following factors to determine which law prevails:

(a) the spouses' cultural orientation as indicated by their mode of life and other relevant factors; and

(b) those rites and customs which predominate in the spouses' marriage.

(3) A person who is already a spouse in a customary marriage (whether it is potentially or actually polygynous) may not subsequently marry an additional spouse by civil or Christian rites during the existence of the customary marriage.

Registration of customary marriages

5. (1) Within a reasonable time of celebrating their customary marriage spouses must

have their marriage registered under this section.

(2) A certificate of registration obtained under the Regulations contained in GN

R1970 of 25 October 1968 constitutes prima facie proof of a customary marriage.

(3) If no certificate of registration exists or if the facts attested to by the certificate

appear inaccurate, an interested person may request that a court, whether a family court or any other court, investigate the existence of a customary marriage and make an appropriate order.

(4) If the court finds that the marriage does exist, it must order confirmation of the

certificate of registration or that the marriage be registered immediately.

(5) For purposes of this Act, all traditional authorities appointed under sections 2(7)

and (8) of the Black Administration Act 38 of 1927 shall be competent to register customary marriages in accordance with the Regulations contained in GN R1970 of 25 October 1968.

The customary marriages of minors

6. (1) A prospective minor spouse who has no guardian or whose guardian is unable to, give consent or unreasonably withholds consent may none the less conclude a valid customary marriage by complying with section 25 of the Marriage Act 25 of 1961.

(2) If it is doubtful whether a person is a minor, a registering officer or any competent

court or commissioner of child welfare may determine that person's age.

(3) The court or commissioner of child welfare which approves a minor's marriage

under this section may order payment of a reasonable sum of bridewealth in accordance with the

system of customary law applicable to the marriage.

(4) A court may declare a customary marriage invalid on the ground that either of the spouses was a minor. An application for such an order may be brought by -

(a) either of the spouses to the marriage before he or she attains majority or within a reasonable time thereafter; or

(b) the guardian of a minor spouse provided that he or she takes action before the spouse attains majority and within a reasonable time of becoming aware of the existence of the marriage.

(5) A court granting an order under subsection (4) has the same powers that it would have under section 8(5) of this Act.

Legal consequences of customary marriages

7. (1) A wife of a customary marriage will have the same legal powers as her husband,

and for all purposes the spouses will have equal powers of decision-making.

(2) All property that a spouse brings into the marriage and all property that a spouse subsequently acquires will be deemed to be that spouse1s personal property.

(3) A customary marriage will not create a community of property or of profit and loss.

(4) A spouse is liable to contribute to necessaries for the joint household pro rata according to his or her financial means. Any spouse who contributed more in respect of necessaries than he or she was liable to contribute under this section has a right of recourse against the other spouse.

(5) The spouses may enter into an antenuptial contract to vary subsections (2), (3) and

(4) of this section. Such antenuptial contracts will be subject to the provisions of section 21 of the Matrimonial Property, 1984 (Act No.88 of 1984).

(6) This section will apply to all customary marriages whether they were entered into before or after the commencement of this Act.

ALTERNATE DRAFT OF CLAUSE 7(6)

7. (6) This section will apply to all customary marriages entered into after the commencement of this Act.

Dissolution of customary marriages

8. (1) A customary marriage will subsist until it is dissolved by the decree of a court as

defined in this Act.

(2) For purposes of this section a court may -

(a) appoint a suitably qualified person to represent spouses who appear

unable to conduct the proceedings themselves; and

(b) order that polygynous wives be joined as parties to the action.

(3) The provisions of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987) will apply to customary marriages.

(4) A divorce may be obtained upon the irretrievable breakdown of a customary marriage if a court is satisfied that the spouses have no reasonab1~ prospect of the restoring a formal marriage relationship.

(5) A court ordering dissolution of a customary marriage has -

(a) the same powers under sections 6.7. 8 and 9 of the Divorce Act 70 of 1979 as it would have had over a civil or Christian marriage.

(b) the power to order return of bridewealth according to the system of customary law applicable to the marriage, provided that the person who received bridewealth is joined in the action. and

(c) when ordering maintenance, the power to take into account any payment made under customary law.

Application and repeal of laws

9. The Age of Majority Act 57 of 1972 will apply to all persons subject to customary law.

10. (1) Section 11 of the Black Administration Act 38 of 1927, is hereby amended by the deletion of paragraph (b) of subsection 3.

(2) Section 22 of the Black Administration Act 38 of 1927, is hereby amended by the deletion of subsections (1) to (5) inclusive.

11. (1) Section 27 of the KwaZulu Act on the Code of Zulu Law. Act 16 of 1985, is

hereby amended by the deletion of subsection (3).

(2) Section 27 of the Natal Code of Zulu Law (Proclamation R1S1 of 1987). is hereby

amended by the deletion of subsection (3).

12. Sections 37 and 39 of the Transkei Marriage Act 21 of 1978, are hereby repealed. short title and commencement

13. This Act shall be called the Customary Marriages Act, 19.., and shall come into operation on a date fixed by the President by proclamation in the Gazette.

LIST OF RESPONDENTS ANNEXURE B

Judiciary

1. Judge 55 Ngcobo of the Cape of Good Hope Provincial Division of the High Court:

Magistracy

2. JJ Boshoff, Acting Magistrate Nelspruit;

3. Mr CPM Meyer, Additional Magistrate, Grahamstown;

4. Mr JJ Scherman, Magistrate, Pretoria North, District Wonderboom;

5. Mr Besana Skosana, Magistrate, Johannesburg (Convenor of 35 workshops in Gauteng involving 1185 people);

Law Societies

6. Attorney MJH Anderson on behalf of the Law Society of the Cape of Good Hope;

7. Attorney TSB Jali, of the firm Cox Yeats, who was requested by the Natal Law Society to submit a comment;

8. Attorney AM Moleko, of the firm AM Moleko & Co, who was requested by the Natal Society to submit a comment;

Attorneys

9. Attorney Iris Kumalo, of the firm Pierre Odendaal & Kie;

Societies

10. Advocate KK Mthiyane, SC, on the behalf of the Society of Advocates of Natal;

Individuals

11. Professor JC Bekker, formerly of Vista University;

12. Joshua Borias, Dobsonville;

13. Advocate Jeanne de Koker, Department of Private Law, Faculty of Law, Vista University;

14. Professor CRM Dlamini. Rector and Vice-Chancellor, University of Zululand.