When non-registration becomes non-recognition: examining the law and practice of customary marriage registration in South Africa
| Jurisdiction | South Africa |
| Published date | 15 August 2019 |
| Date | 15 August 2019 |
| Author | Monica de Souza |
| Pages | 239-272 |
When non-registration becomes non-
recognition: examining the law and practice
of customary marriage registration in
South Africa*
MONICA DE SOUZA
†
The Recognition of Customary Marriages Act 120 of 1998 provides legal
recognition to traditional African marriages and sets up a process whereby
these marriages are formally registered with the Department of Home Affairs.
With reference to testimonies from Msinga, a rural district of KwaZulu-Natal,
this article examines how the current registration process is out of touch with
reality and difficult to comply with, especially in respect of polygamous
marriages. Customary marriages therefore often remain unregistered. While
customary marriages are legally valid despite not being registered, in practice
registration has become the threshold for recognising the existence of these
marriages when marital status is in question. As a result, non-registration is
effectively non-recognition and deprives women and children of the signifi-
cant benefits and protections associated with marriage. More broadly, the
article will argue that the registration process actually undermines several of
the Act’sobjectives – leaving women living in rural, customary law contexts in
a vulnerable position.
I INTRODUCTION: AN EXAMPLE FROM KWAZULU-NATAL
In Msinga, a deeply rural and impoverished district of KwaZulu-Natal
situated in what was formerly the KwaZulu homeland, an elderly man is
in a polygamous customary marriage with three wives. His first two
marriages were registered at a local Magistrate’s Court long before the
advent of democracy and the introduction, in 1998, of the Recognition
of Customary Marriages Act.This was the legal process for the registration
* Thanks must be extended to the Secretary of the Mchunu Traditional Council, Noku-
lunga Mchunu, to the Council itself, and to the staff and friends of Mdukatshani, an NGO based
in the Msinga area, for alerting the Centre for Law and Society to the people and testimonies
that form the basis of this paper and for inviting us to do community workshops on customary
marriages. Without their patient support, guidance and hospitality this article would not have
been possible. Several people have assisted in the shaping of this article. For this, gratitude is
owed to Aninka Claassens, Pauline Peters, Nolundi Luwaya and other colleagues at the Centre
for Law and Society. Comments provided during the review of this article were equally useful.
Finally, acknowledgement must be made of the Women’s Legal Centre and Legal Resources
Centre, for providing skilled lawyers to accompany us into the field, and to Thabisile Nkosi, for
deftly translating and transcribing hours of audio recordings.
†
LLB LLM (UCT); Researcher at the Centre for Law and Society, Faculty of Law,
University of Cape Town.
239
2013 Acta Juridica 239
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of traditional African marriages under prior homeland and colonial
legislation in what is now the KwaZulu-Natal province. In the early
2000s he married his third, considerably younger, wife according to the
traditional laws and customs of the area. Wanting to register this marriage
as he had done before, he went to the Department of Home Affairs office
in town with all three of his wives and three witnesses to vouch for the
marriage – one from his family, one from his new bride’s family and a
representative of the traditional leader. Home Affairs refused to register
his third marriage, incorrectly saying that the law had changed so that
each man could only have one wife. He decided to ask the Magistrate if
this was true, since he had never heard about this change in the law.To his
understanding, the Magistrate confirmed what Home Affairs had mistak-
enly said, but advised him to get a lawyer to resolve his registration issues,
if he could afford one. Unfortunately, he could not. Yet, at present he
would still like to ensure that all three wives are registered so that there is
no conflict about marital property after his death. He wants each wife to
have her own property and has already taken steps toward this. His
youngest wife is particularly concerned with protecting the considerable
assets that she brought with her into the marriage. She had established her
own tuck shop before marrying her husband, and has since used proceeds
from the shop to buy a car, which has become part of the marital property.
For her, officially registering her marriage remains the best means by which
to avoid future disputes and to ensure that her in-laws accept her status.
What follows is an analysis of the legislative framework established for
customary marriage registration in South Africa, with a specific focus on
the registration of polygamous marriages. The story of this polygamous
husband and his three wives, along with testimonies from others living in
the same district, will be woven throughout what follows to illustrate the
practical impact of the registration procedures in one part of the country.
The analysis will begin with brief notes on the recognition of the legal
status of polygamous customary marriages in South Africa and progress
into a discussion of the significance of registering customary marriages,
the procedures to be followed for registration and whether these proce-
dures have been successfully implemented in practice. In particular, an
additional requirement for the registration of polygamous marriages will
be considered, in light of recent court jurisprudence. It will be argued
that, in practice, the strict and unrealistic registration process limits the
ability of persons to have their marriages recognised by others – with
particularly severe consequences for women and their children. Focus
will then shift to the historical development of the registration process in
order to examine the rationale for an additional registration requirement
in the case of polygamous marriages. Finally, certain flaws in the custom-
ary marriage registration framework – most starkly present in the proce-
240 MARRIAGE,LAND AND CUSTOM
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dure for registering polygamous marriages – will be highlighted. These
flaws indicate that the objectives of the Recognition of Customary
Marriages Act are actually being undermined by the registration proce-
dures that have been put in place by the Act.
II LEGALISING POLYGYNOUSCUSTOMARY MARRIAGES
IN SOUTH AFRICA
(1) Granting recognition to customary marriages
In post-apartheid South Africa, both monogamous and polygynous
1
customary marriages are recognised in terms of the Recognition of
Customary Marriages Act 120 of 1998 (hereafter, the ‘RCMA’ or ‘Act’).
2
In terms of the RCMA, customary marriages are those that are ‘con-
cluded in accordance with customary law’, where ‘customary law’ refers
to ‘the customs and usages traditionally observed among the indigenous
African peoples of South Africa and which form part of the culture of
those people’.
3
Prior to the Act’s promulgation, these marriages were given little legal
recognition in South Africa, and were referred to as ‘unions’rather than as
‘marriages’.
4
It is interesting to note that in KwaZulu-Natal customary
marriages seemed to enjoy greater recognition by the state than in other
parts of the country. Under the KwaZuluAct on the Code of Zulu Law
16 of 1985, customary marriages, including polygamous customary
marriages, were referred to as ‘marriages’ and a compulsory registration
1
The author will henceforth in this article mostly use the specific terms ‘polygyny’ and
‘polygynous’ (referring to a situation of ‘polygamy in which a man has more than one wife’)
instead of the broader terms ‘polygamy’ and ‘polygamous’(referring to ‘the practice or custom
of having more than one wife or husband at the same time’, emphasis added) because an
arrangement where one wife has more than one husband is not recognised in South Africa.
Definitions for ‘polygamy’ and ‘polygyny’ from C Soanes and A Stevenson (eds) Oxford
Dictionary of English 2 ed (2005) at 1364. The Recognition of Customary Marriages Act 120 of
1998 uses neither of these terms, instead making references such as ‘a spouse in more than one
customary marriage’(s 2(3)).
2
See the report of Women’s Legal Centre ‘Recognition of Customary Marriages’ (2011)
available at http://www.wlce.co.za/morph_assets/themelets/explorer/relationship%20rights/
general/Recognition%20of%20Customary%20Marriages.pdf, accessed 15 June 2013 at 6, for a
discussion of which customary marriages are not dealt with under the RCMA. The current
status of these marriages remains unclear.
3
RCMA at s 1. Note then that the Act deals specifically with the traditional marriage
customs and processes still observed by indigenous black South Africans and not with the
marriages of religious groups or the marriages of other indigenous groups in the country; see
J Heaton South African Family Law 3 ed (2010) ch 17 at 205, fn 1.
4
For a concise legal history of the status of customary marriages, see JY de Koker ‘Proving
the existence of an African customary marriage’ (2001) 2 Journal of South African Law 257 at
259–263. See also Heaton (n 3) at 205; M Horrell Laws Affecting Race Relations in South Africa
(1978) ch XXI; Ngwenyama v Mayelane and Another (474/11) [2012] ZASCA94 (1 June 2012)
paras 12 and 31; Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14 (30 May
2013) para 26; Gumede v President of the Republic of South Africa and Others 2009 (3) BCLR 243
(CC) para 16.
241WHEN NON-REGISTRATION BECOMES NON-RECOGNITION
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