Justice ministry misses ConCourt deadline over polygamous marriage law

26 November 2019 - 16:10 By Naledi Shange
The Constitutional Court has refused to give the justice ministry an extension to amend the Recognition of Customary Marriages Act.
The Constitutional Court has refused to give the justice ministry an extension to amend the Recognition of Customary Marriages Act.
Image: 123RF/SEBNEM RAGIBOGLU

The justice ministry has failed to meet a two-year deadline to change the law to protect women in polygamous marriages.

The country's apex court told the ministry to amend the Recognition of Customary Marriages Act (RCMA) to ensure the equitable distribution of assets should a spouse in a polygamous marriage die.

The court on Tuesday dismissed an application by justice minister Ronald Lamola for a year-long extension to finalise the law.

Lamola had applied for the extension six weeks ago. He provided several reasons for the failure to change the legislation, including that 2018 and 2019 were atypical years in the legislative process due to the national elections. He said the elections led to inevitable interruptions and changed the ordinary deadlines for government departments to submit bills to be passed.

Lamola said the bulk of the work had been done, and the process now largely rested with parliament. A few loose ends which needed to be tied up by his department included consultations with the National House of Traditional Leaders, given public interest in the Bill.

But the court said it had given sufficient time for the amendments to be made.

It further referred to the 2017 judgment, which had given provision of what should happen should the executive fail to deliver.

“This court [had] ordered that in the event that parliament failed to address the defect, this regime would continue to apply after the period of suspension,” the latest constitutional court ruling read.

The regime referred to states: “Wives and husbands will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property, and these rights shall be exercised as follows:

  •  in respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and
  •  in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.
  •  each spouse retains exclusive rights to her or his personal property.”

This ruling had been delivered following the court’s findings that the law that governed matrimonial property in customary marriages essentially discriminated against certain categories of women and was therefore unconstitutional.

Section 7(1) of the RCMA of 1998 provides that wives who entered into customary marriages before the act was passed do not have marital property rights.

The case stems from Musenwa Netshituka, who died in 2008. He had entered into polygamous customary marriages with three women and civil marriages with two other women.

One of the civil marriages ended in divorce and the civil marriage to Munyadziwa Netshituka in 1997 was declared null and void by the Supreme Court of Appeal in 2011.

Munyadziwa claims she later concluded a customary marriage with Musenwa.

He left a will in terms of which Munyadziwa, whom the will referred to as a wife married in community of property, was named as executor of the estate.

Munyadziwa, the other wives and all the deceased's children were to receive benefits from Musenwa's half share of the joint estate. The constitutional court said the reference to a joint estate stemmed from an apparent belief the deceased's marriage to Munyadziwa was in community of property.

Two biological children, whose mothers had entered into polygamous marriage, launched the constitutional challenge.

They argued that due to the application of Section 7(1) of the RCMA, their mothers were excluded from ownership of the estate amassed by Musenwa.

In the 2017 judgment by Justice Mbuyiseli Madlanga, the court said the effect of section 7(1) was to perpetuate inequality between husbands and wives in the case of marriages entered before the 1998 act.

"The situation of wives in pre-act polygamous customary marriages is one of lack of ownership and control of property within the marriage."

Madlanga had said this discrimination limited the right to human dignity of wives in pre-act polygamous customary marriages.


X