An alert reader of this Blog emailed to ask whether clauses 3(2) and 10(1) of The Recognition of Customary Marriages Act (Act no 120 of 1998) may not be unconstitutional because these provisions only allow men who marry in terms of customary law to marry more than one spouse.
It seems to me contradictory in nature, applying double standards and finally discriminating against persons amongst others on “ethnic … origin”, “marital status”, “sexual orientation” (taking “sexual orientation” in the widest possible interpretation of the words) and “religion, conscience, belief” – this is thus unconstitutional in terms of Clause 9(3) of the Constitution. By denying people married in terms of The Marriage Act, 1961, the right to conclude a legally binding traditional marriages with other women, it seems to also interfere with the right of freedom of association….
The prohibition of polygyny in practice denies a significant number of women the right to enter into a legally binding marriage with a man. Fact is that there are more women than men. The unbalanced numbers become worse the older people become, as women generally live longer than men. Even if it is only a possibility rather than the reality the prohibition of polygyny in the Marriage Act, 1961, denies possible surplus women the right of entering into a legally binding marriage with a man, de facto forcing such women to either live celibate or enter into an extramarital relationship with a married man with very little legal protection.
Is it the task of the state to prescribe to its citizens how many women may be legally married to one man or is it the task of the state to protect the rights of all persons equally who enter into a marriage relationship, irrespective of the number people involved?
Other readers have also defended the practice of polygamy and the provisions of the law which legally recognizes the practice, on the ground that women who enter into polygamous marriages choose to do so. The state has no right to interfere with the choices made by individuals regarding whom they wish to marry and whom not, so the argument goes, as this interferes with their right to freedom of association and their right to marry (which the Constitutional Court found in the Dawood case was implicitly protected by the right to human dignity).
First, the legal recognition of polygamous marriages is limited by the Ac to marriages concluded in terms of “customary law” which is defined in the Act as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. A white man raised in Sandton or Bellville will therefore not be able to enter into a legally valid polygamous marriage. As South African customary law generally does not recognize the right of women to take more than one husband (Modjadji the Rain Queen is said by some to be an exception), women – even those living in terms of African custom – will usually not be allowed to conclude polyandrous marriages.
Second, personally I tend to be a libertarian regarding the legal recognition of various forms of intimate relationships and if I was a member of the legislature I would argue for the expansion of the legal recognition of multi-partner marriages to include all South Africans – including marriages between more than two men or women and marriages between one women and many men, regardless of the customary law or common law traditions which might be applicable to the individuals involved.
As long as the law protects the rights of all the parties and ensures – as far as the law is capable of ensuring – that one or more of the parties to such an arrangement are not subjugated or discriminated against, there seems to be no inherent logical reason for the legislature not to extend the legal recognition of multi-partner marriages to all individuals who choose to enter into them.
Third, the question of choice is a complex one. Research has shown that the “choice” of a woman to enter into a marriage or not to enter into a marriage (or to enter into a polygamous marriage) is often circumscribed by the differences in economic power between the woman and the man and by culture and tradition which accords men more power than woman in intimate relationship choices. Many woman who wish to marry their partners do not marry because their male partners do not wish to marry because they fear the legal obligations that would flow from such a marriage.
The Volks v Robinson case in which Miss Robinson looked after her partner for 15 years but was denied any claim to be maintained by his deceased estate because he chose not to marry her when he was alive, is a good example of how a woman can be denied some financial and legal benefits because of her relative weak position vis-a-vis her partner.
The law should therefore protect such individuals who “choose” not to marry or who “choose” to enter into a polygamous marriage because without such protection they might well suffer sex and gender discrimination. The Recognition of Customary Marriages Act (as well as other legislation dealing with the financial consequences of marriage and its dissolution) attempts to provide such protection to women – even when such marriages are polygamous.
Fourth, the argument that section 3(2) and 10(1) of the Act discriminates against (i) woman who wish to marry more than one partner; (ii) individuals in same-sex relationships who wish to marry more than one partner; or (iii) individuals who do not live in accordance with African customary law but wishes to marry more than one partner is an intriguing one, but (I suspect) is an argument that will be rejected by the Constitutional Court.
Section 9(3) of the Constitution prohibits unfair discrimination and the Constitutional Court has argued that discrimination would be unfair if the different treatment has the effect of undermining the human dignity of those excluded. A court will weigh up all relevant factors and will look, in particular, at whether the group complaining of discrimination has suffered past discrimination in the context of the complaint and whether this “discrimination” may not be justified because it achieves an important governmental purpose.
I suspect the Court will argue the law as it stands achieves two important goals: it recognizes the traditions and customs of a particular section of the community whose traditions and customs have been disrespected by the apartheid state while also recognizing the general societal goal of limiting marriage to two individuals. At the same time, the law does not send a signal that those who are prohibited from entering multi-partner marriages are less worthy of concern and respect and does not fundamentally affect their human dignity.
Whether this is a good argument is debatable. However, judicial politics, which demands that courts should be slow to interfere in social arrangements and should try and defer to the legislative branch of government if the infringement of rights occasioned by social norms is not fundamental (as it clearly was in the case of the prohibition on same-sex marriage), mitigates against a judicial finding that would extend marriage to all who wish to enter into multi-partner marriages.
I would suspect that the court also fears the exploitation of marriage if the door is thrown open for anyone to marry anyone and as many people as he/she pleases. In my opinion the risk of these marriages being used for financial gain, citizenship etc. becomes much higher.
Details, always the details, and with ulterior motives abounding…
When the day comes that all citizens care for their country and the benefits and opportunities for all the citizens, regardeless of their hue… then we have a country to be proud of….
meanwhile….
I think that one desirable enquiry would be to determine whether the various legislative protections adequately protect women. That is, given that it is hardly inconceivable that a man could hold economic power over a woman, it seems that some women in thorny predicaments may enjoy token rights. And if it turns out that the currently recognised legislative protections do not adequately protect women given that it is practically impossible for many women to benefit from them, then the relevant powers that be may want to think up some solutions. For a start, the legislation may be in need of amendment. And a second approach to remedying this problem could be to introduce further and more generous legal aid tests so that more women could have some access to justice.
Women should be allowed to marry more than one man?
My reasoning is that if polygamy is permitted in terms of the law, then polyandry should be too. What’s sauce for the gander should be sauce for the goose too … or what? Also, why is polygamy restricted to “customary” marriages by current law? Surely this is just as discriminatory in terms of the Constitution as not permitting polyandrous marriages.
@ Lee Cahill
What could be the grounds for holding that the prohibition of polyandry in South Africa is unconstitutional?
I guess it is restricted to customary marriages merely because Apartheid legislation as opposed to customary law, prohibited it. Another reason why polygamy is constitutional could be that they know it would nonetheless be practised even if it could be declared unconstitutional and legally permitting it would enable the State to exercise a certain measure of control over the consequences that flow from polygamy and the RCM Act has attempted to do so. It is still quite rudimentary as my fellow blogger, Chris McDaniel, has ably observed and changes may be necessary to make its consequences more equitable to women who are the ones suffering because of uneven bargaining powers.
@Sine. In answer to your question, it’s a simple quid pro quo. As polygamy is permitted in terms of the law, but polyandry isn’t, surely this is a violation of Section 9 of the Bill of Rights, which guarantees equality before the law.
The argument is why, just because it’s “customary”, is polygamy permitted but polyandry isn’t? Also with reference to the BoR, why should only some men be permitted to enter into poylgamous marriages and not others? Does the fact that this practice is “customary” trump the provisions laid down for all South Africans in the Constitution?
@ Lee Cahill
Chris McDaniel raised similar arguments and I gave the following reply which I quote verbatim below;
@ Chris McDaniel
I am glad to know we are on track.
However, I need to tackle the following issues from your post (1) polyandry and (2) unconstitutionality of polygamy;
(1) Polyandry
1.1 The first problem we have here is that RSA legislation, notably the Marriage Act of 1961, prohibits marrying more than one spouse. This is part of our law and has been for quite some time (save of course the recent “legalisation” of polygamy by the RCMA in customary marriages) and polyandry would fly in the face of this established law. Polyandry, therefore, in order to succeed, would have to show that these laws are unfairly discriminatory and therefore unconstitutional. This is something that will not happen lightly. How is the prohibition of polyandry unfairly discriminatory?
1.2 The second one relates to the lack of any other basis upon which the introduction of polyandry could be based. It has historically and culturally never been part of our law or culture. What could the reason for introducing it now be?
(2) Unconstitutionality of polygamy
2.1 Polygamy is foundational to the culture of the majority of South Africans (blacks) and any attempt to declare it unconstitutional on flimsy grounds of being unfairly discriminatory is not likely to pass the stringent s36 of the Constitution test.
2.2 The other reason relates still to the s36 test, in the sense that there are other measures which could be taken, as the RCMA has done, to minimise the “unfairly” discriminatory effects of polygamy.
Thats constitutional democracy for you.
Oh the tangled webs we weave …
Just another thought … even if polyandry isn’t part of our history or culture, if polygamy is permitted within the framework of a constitution that protects equal rights, then the very fact that it IS permitted is surely grounds for arguing that polyandry should be permitted by equal measure.
i.e. : Should culture trump rights?
Sine says:
January 7, 2010 at 15:01 pm
(1) Polyandry
1.1 The first problem we have here is that RSA legislation, notably the Marriage Act of 1961, prohibits marrying more than one spouse.
The reason for this is your laws and your country “south africa” as you know it was founded on Christian believes, I believe Christianity is still the dominating religion here in South Africa.
Sine
“1.2 The second one relates to the lack of any other basis upon which the introduction of polyandry could be based. It has historically and culturally never been part of our law or culture. What could the reason for introducing it now be?”
There are actualy a few reasons but one has to dive in scientific research now.
Woman as we know them have historically and culturally been discriminated against in all cultures in all religions.
It is only up until modern times females are on an equal footing as man, they can vote, the can join the military and carry a service rifle and go to war, they can even start up or move up the ranks in business and become directors, CEO’s and so forth, Woman can even now run for presidency.
One of the prereqs for Polygamy is the economcal factor, can a Man support equaly more wives?
The same can be applied to a Woman who is financialy secure and is in a postion to support 5 husbands equaly.
The problem comes into play and this is the scientific bit, its called the laws of attraction. Ever since man lived in caves, females were attracted to the man who can bring the biggest meat home, the same is still applied in modern times, females are attracted to successful men. A scientific research was done in the states where they took 3 guys and gave them fake salary incomes basicaly their “NET WORTH” it noticed that a male who would be deemed attractive was deemed unattractive becuase he earned a lower salary than what an 18yr old can earn.
But yet this is the modern world where woman can now no longer rely on men to bring the biggest meat home, they can go out and get it themselves, so you will find females who marry men who earn a lower salary than a woman and the woman becomes the head of the household. The mere fact a woman is head of a household is once again against christian believes is God is head of man and man is the head of woman.
The other side of things is the very nature of Polygamy and the flaw involved in it is purly simple and that is it can be seen as discriminatory against men itself.
If there are 50% of females in society and 50% of males in society and polygamy is widly practiced. it becomes discriminatory towards men for equal chance for reproduction and breeding and the very nature why we actually here on earth to pass your genes on. The only way then to balance this out would be to introduce polyandry.
But as I mentioned the only way to introduce it would be by consensus.
Take gay relationships it wasnt cultural or historical in South Africa. only until modern times but yet it became legal for gay couples to marry, this only happend by consensus.
The way of life is changing if we take another approach we look at bisexuality. what about Bisexuals to marry?
It is perfectly ok for a man to be in a relationship with two bisexual girls ( How many men would love for this to happen?) but society frowns upon a woman involved in a relationship with a woman involved with 2 bisexual guys.
So the way I see it is polygamy is here to stay but it should also be balanced with polyandry
Prof, seeing that traditional aceptance seems to be important in the law accepting more than one spouse, how far will die hard hippies get with an argument that it is their tradition to live together in numbers and share beds?
And secondly isn’t it a bit rough saying the tradition of the rain queen having more than one male spouse should not be taken seriously as it is an exception? It is not an exception in that culture, is it?
@ Chris – agreed. If the right to polygamous unions is provided for in law, this should be appropriately balanced by the right to polyndrous unions. Whatever the history and background to polygamy, if men have the right to marry multiple wives, a similar right should extend to women. And these rights should extend to ALL men and women, not just to individuals from certain cultural groups.
@Fred – agreed too – why is Modjadi regarded as an exception if that’s the norm in her culture??
So, bottom line, we have a cultural precedent in SA for both polygamous and polyandrous unions, so why is only polygamy permitted in terms of the law??? A bit of selective law-making again …
Um … sorry … Ferd, not Fred
@ Chris McDaniel
I have no idea how you got here;
“So the way I see it is polygamy is here to stay but it should also be balanced with polyandry”
and my terrible headache did not help me either…
I am sorry but as a young Southern African, a woman nogal, I then wish to be burried alive! Imagine how out of control this country is, I know that, because even the very woman are confused,who are supposed to stand their ground and protect their daughters and those men that think this is a fashion statement, they have got one thing coming! One Question for them though ( HAVE YOU BEEN SICK FROM AN STI) OR ARE YOU THAT DEAD!
Someone please help me here. you know that we try so hard in this blatern reality! I mean it is so frustrating that nothing is right anymore! religion, politics marraige and everything that walks this planet! How do I then bring a soul in this world? I mean you are in a marraige you are bound to be afected, you are single you are still affected, for peace sake even if you are rebellious you are still bloody if not higly affected, where is the rewards to be in the straight and faITHFUL, WHEN YOU HAVE RAPE, POLOGAMY, A CHEATING MAN / OH FOR THAT MATTER A SEX EDDICTED PRESIDENT! Have you seen the ill that is flying in our communities, who the hell is going to repremand, oh please do not suggest them Priests!
All the above arguments have been very insightful and interesting. I am still not sure at the end of it all, why exactly having polyandry will make things any better or balance the practice of poligamy. It seems to me that basis of the argument is, if man within certain cultures can do it so should man in others and by logic, all women, given our democratic constitutionality. If this is indeed the argument, it seems pointless as it would in effect not change anything. There would surely have to a submission of truth that women will practice polyandry if it is legal – last I checked for many women, dealing with one man’s demands is hard enough so how will 3,4 or 5 be at a go be doing them any good. What is the positive impact expected to be?
I am ofcourse not arguing that polygamy is the best left alone. The very idea and practice of polygamy existed before and during the time colonial, union and apartheid governments. To better understand why it was left in place a reading of how different colonial powers decided to handle the beliefs and practices of their ‘colonial subjects’ is necessary. This is not to situate the argument in history but merely a general scope of why things are as they are.
The idea that polygamy is practiced by some priviledged man in some cultures is strange. Not all the cultures under Customary Law practice it, even though the relevant Customary Marriages Act (which most submit to) allows. This is why the defence by some in saying that ‘ it is my culture’ can be equally countered by others saying ‘ it is not my culture’ although both/all falling under Customary Law [if you do not know this, it is best to acqaint yourself with African cultures or get friends from each in South Africa - you will be surprised to note the differences].
The only thing that should be of concern, legally speaking, is whether there is any harm being caused – this is after all fundamental to deciding on the constitutionality of polygamy. So far only misinformed perceptions and speculation is what proponents for its unconstitutionality and the institution of polyandry seem to put forward [because i can't do it, it is not fair...whiny]. The practice of polygamy is not happenstance nor serendipitous – there is need to look at what social function it fulfills and whether this is contrary to the constitution, not because some people whose culture(s) do not allow for polygamy, now want it because there is section 9. We seem to forget that the common law is western-value based and the Marriages Act its by-product, so blame it on your culture if it does not let you swing. not the law.