The media reports that President Jacob Zuma will tie the knot for the fifth time today. Although his first wife died and he was divorced from his second wife, he is still married to two other wives and the new wedding will confirm President’ Zuma’s polygamous status.
It is often said that polygamous marriages are unconstitutional. The equality clause trumps the right to culture in the South African Bill of Rights and polygamy discriminates against women – so the argument goes – because it allows a man to marry many wives but not a woman to marry many husbands and because the emotional and financial position of the existing wives is said to be weakened when their husband takes another wife.
In practice this is probably true for many polygamous marriages as many men has both financial and physical power over their wives and act like tyrants and expect their wives to serve and obey them. But the law does mitigate against the harsh consequences of some marriages.
The Recognition of Customary Marriages Act no 120 of 1998 extends the state’s recognition and regulation of marriage to both monogamous and polygamous customary marriages. Where someone enters into a customary marriage they have a legal duty in terms of the Act within three months of entering into the marriage to have that marriage registered.
The financial position of the wife in a customary marriage is also safeguarded to some degree as section 6 of the Act states that:
A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the marriage, full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.
While some traditional patriarchs (and some other men who are not necessarily considered traditional patriarchs) will be rather surprised to hear that their wife or wives enjoy equal status with them after marriage in terms of the law and might not always adhere to this provision of the law, the Act clearly aims to limit the harsh discriminatory effect of traditional patriarchal practices on married women.
Section 7 of the Act also attempts to mitigate the negative effects of a polygamous marriage on existing wives and states that a husband in a customary marriage who wishes to enter into a further customary marriage with another woman must make an application to the court to approve a written contract which will regulate the future financial arrangements of the marriages.
When this happens the husband’s existing spouse or spouses and his prospective spouse must be joined in the proceedings and must in effect give permission for the further marriage. The court can amend any agreement to ensure that the existing wives are not prejudiced financially – even where such wives purports to consent to the terms of the new marriage.
Where the husband and his wives respect one another and get along and where the husband does not act like a tyrannical patriarch, this would mean that the wives would enjoy considerable protection from discrimination. The Act therefore goes a long way – on paper at least- in mitigating the discriminatory effect of polygamy.
It seems to me the real discrimination will be felt by one or more of the wives where the husband is not a kind man and where he does not respect the provisions of section 6 set out above or where the judicial officer shares the patriarchal views of the husband and fails to protect the financial and other interests of the existing wives. This happens – both in customary and civil marriages – and has just as much to do with culture than with the provisions of the law.
It seems to me that while one could make an argument that many women - of all races and whether they are in a polygamous marriage or not – are discriminated against when they enter into a marriage, the marriage per se could not be said to constitute unfair discrimination.
It is the cultural practices and assumptions and the view that many men (of all races and whether they are polygamous or not) have of women and their role in a marriage that is the true cause of much of the hardship of married woman.
Although South Africa’s Constitutional Court has not yet been asked to pronounce on the constitutionality of polygamous marriages, I suspect the court will take a nuanced approach to this issue and will try to accommodate the cultural practice while also requiring protection of women.
If the letter and the spirit of the Recognition of Customary Marriages Act are adhered to by all parties concerned – something that is not always happening at the moment and will only change as our culture changes – I am not sure a court will declare polygamy unconstitutional.
Does the law speak of polyandrous marriages? I often wonder if there are any polyandrous relationships out there.
(And then I wonder whether people lie awake wondering about the weakening of the emotional and financial positions of the existing husbands when the wife brings home another one.)
It’s not that it’s unconstitutional. It’s just plain common greed. Naked, unbridled greed.
Er, exactly as we’ve come to know the ANC. Same old, same old. Patriarchal chauvinism galore.
Culture se voet, it’s about lust among the ruins.
Prof, with respect, I think you have extended the matter a bit far. I think the fact that the constitution provides for the recognition of customary (to the extent that it accords with the constitution), is enough on its own.
This means the text does imply that there would be some portions of it (customary Law) that will not fully be in the same direction with the constitution. But for this, the question is not whether constitutional or not, but on the limitation clause.
By looking at your article, you seem not to be far from challenging the payment of LOBOLA on the basis of equality. This means there are certain qualities with which to refrain from practicing will result in something different from customary Law.
Remember this is customary Law we are talking about, and it has as its culture, only two genders with each having its specific role, and to me, the Concourt have to recorgnise these aspects if, it does recognise customary Law.
There is one thing I don’t understand. Polygamy is only legal under the banner of customary marriages. In other words, if you are not black then you cannot enter into a polygamous relationship as it is illegal?! Surely this is unconstitutional as this “privilege” is only extended to one group in the country.
I just find it very odd that this is never mentioned. Perhaps it has and I’ve missed the commentary on this.
Section 31 states that: “Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community- to enjoy their culture, practise their religion and use their language; and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.” If any cultural practice is discriminatory it is therefore not protected. That is why the customary law rule of primogeniture (male only inheritance) was declared unconstitutional. The question is therefore whether the customary law practice contravenes section 9 or not.
We see daily the many conflicts between our cultures in terms of beliefs, practices, lifestyles and perceived ethics.
Perhaps our Constitution didn’t go far enough. How for example does the Constitution deal with full Sharia law, which many Muslims desire, but not all fortunately. In Canada, registered Indian folk are granted Indian Courts, Indian Justice with laws unique to their culture and to social interaction on the reserve (think township for the term ‘reserve’. Note: Indian Natives evolved within a polygamous family structure subsequently destroyed by white priests, and two until the late 60′s, Canada practiced Apartheid. However, for major crimes Canadian Indians must stand before national Canadian justice.
I agree with purpledragon, that this right appears to only be extended to certain cultural groups and is thus unConstitutional in my opinion, and I say groups in this referance as polygamy is certainly part of Muslim and other cultures. Speaking hypothetically of course, I have a wife and a mistress of 9 years; I would like to ensure the mistress (who gives me great comfort) has legal rights at my passing. Since the wife and the mistress get along, hypothetically, why as a white can’t I marry the mistress without divorcing the wife who I still love and interact wity?
All hypothetical of course.
I know, I know, law! Its all in the details! But God Almighty, so many details.
Happy New Year.
@ Pierre
“It is often said that polygamous marriages are unconstitutional.”
From one extreme to another.
http://www.timeslive.co.za/news/africa/article248746.ece
Why is the question being asked in the first place. Is it not a liberal attempt at casting aspersions on African tradition?
Khosi: get a life… this is a discussion.
Khosi asks: why is this being questioned? Actually Khosi, I think it’s a vitally important question that seriously means to be asked. It’s about differences in culture, that which, and surely you recognize as such a huge problem in SA. And its a question about the law, how does law apply to various cultural groupings who have varying and sometimes adversarial approaches to each other, and various beliefs..
We’re looking for harmony, right, how can we all get together and co-exist harmoniously and beneficially within a multi racial society for the ultimate benefit of all, the poor included, and to the benefit of the country in general. Killing a bull cruelly offends some of us, so that’s a cultural difference. Polygamy, which is one sided (as in males has wives, but women don’t have husbands, as in the example of Tibet if you are interested, where women do have multiple husbands).
Why do we need to discuss this?; because we somehow have to come to terms with differences in our cultures to live together in peace and harmony At least, that’s my input on the matter.
Khosi, surely you’re not suggesting that polygamy is a uniquely African tradition?
I think it’s a liberal attempt at casting aspersions on Polynesian tradition. Those nasty liberals.
Khosi, the question is being asked because: (1) more than 50% of South Africans are woman and if polygamy is discriminatory it would potentially affect a majority of South Africans who would potentially be marginalized and oppressed by a powerful minority (a bit like apartheid but with black men doing the oppression). (2) How we manage the conflicts between traditional beliefs (in Rugby, in holding guns, in marrying more than one wife, in believing in our right to hit homosexuals or women, in discriminating against black people or atheists) and the dictates of a human rights culture based on the respect for the human dignity of all (so different from the apartheid state) is rather important. Maybe you disagree? I know many people of all races do disagree with my statement because they are men who wish to preserve their own patriarchal power at the expense of those who serve them like slaves. I assume you are not one of those men.
@ Pierre
“I know many people of all races do disagree with my statement because they are men who wish to preserve their own patriarchal power at the expense of those who serve them like slaves”.
I disagree with you. And I have zero “patriarchal power”.
My take is that this is about adult free choice (necessarily different from child brides or forced marriages).
What’s materially different about polygamy/polyandry vs “open marriages”?
BTW I know a few people in polyandrous relationships and that works just fine for them .
@ Pierre
“I am not sure a court will declare polygamy unconstitutional.”
I’m inclined to agree.
But might a court declare it discriminatory and that the law should be open to all groups and be gender neutral?
Frank Shearar says:
January 4, 2010 at 12:45 pm
Does the law speak of polyandrous marriages?
Hi Frank Polyandry is actually illegal in south africa its not accepted in any of the cultural or religious traditions of South Africa.
You guys also need to remember that only the first wife of a customary marriage suffers direct prejudice, since she is the person who may be compelled to submit to subsequent unions against her will but yet the constitution does offer her protection and even she can protect herself by insisting on a civil or Christian marriage.
I do not know much about customary law. Thus I will have to assume that as regards customary marriages, it is the case that men can have many wives whereas women are not entitled to have many husbands.
If this assumption is true, then it strikes me that customary marriages as they are presently recognised are discriminatory against women insofar as men enjoy a capacity which women do not. And given that the discrimination is based on sex or gender, it seems to be unfair. But this potential basis for constitutional invalidity notwithstanding, it seems to me that given the content of sections 6 and 7 of the Recognition of Customary Marriages Act (‘the RCM Act’), the Professor makes out a decent case in that the position of women who are party to civil marriages is not really stronger than the position of women who enter into customary marriages. Section 6 of the RCM Act, for a start, affords powers to women who enter into customary marriages that are enjoyed by women who conclude civil marriages. But husbands in the contexts of both customary or civil marriages could choose to be domineering and deny their wives those powers. And section 7 appears to serve as a useful check on prejudice to existing wives who are party to customary marriages – which is not to say that it is fail-safe but at least we have. Thus it seems to me that the Professor makes sense inasmuch as it is the harmful views held by many men (and not so much the institution of customary marriages given the protection accorded to women by the relevant legisalation) that is the truest problem here.
What if Zuma falls in love with a white woman. May he marry her as well?
@ Khosi
I was most probably the first person to read Prof’s post but I could not find the reason why the question was posed in the first place so I decided not to comment immediately. It is interesting how many people here are arguing that polygamy, which is practised almost exclusively by those who are not whites (or is it non-Europeans?) could be unconstitutional, yet adultery which is practised by Europeans as well, is not under question. Adultery has more adverse consequences than polygamy since the latter is regulated by law but it is not prohibited (in fact, adultery is protected since illegitimate children can now inherit from their parents). I am now beginning to wonder if polygamy is not outlawed in order to keep those who practice it (mostly non-Europeans), in line with European or Western way of life.
@ Leigh
“I do not know much about customary law. Thus I will have to assume…”
OK.
@ Koos
Of course he may since polygamy can be practised by all races. However, only as long as neither of them is a party to a subsisting valid civil marriage at the tiem of the customary marriage. This prohibition applies to all races even to President Zuma himself. The reverse is also true, i.e. you may have ten customary marriages and one civil marriage simultaneously provided the civil marriage is the last one you enter into. However, the last civil marriage will stop you from marrying any further and you need to annul it before marrying other customary wives.
Leigh says:
January 5, 2010 at 6:24 am
“But husbands in the contexts of both customary or civil marriages could choose to be domineering and deny their wives those powers”
I disagree with this, both spouses have a duty to support each other, if a husband tries to deny his wife powers, she is legally allowed to apply for a protection order or interdict on assets acquire by her or assests the wife wishes to dispose of acquired by her.
Sine says:
January 5, 2010 at 7:11 am
Your first paragraph is simply a load of crap, great legal minds in south africa black and white have made sure that customary marriages esp in polygamy have equal protection to that of civil marriages (western marriages).
last time i checked adultry is illegal in all countries
Chris McDaniel says:
January 5, 2010 at 7:22 am
“last time i checked adultry is illegal in all countries”
Here’s an interesting one.
Section 497 of the Indian Penal Code, 1860 :
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.”
It seems that adultery is ok there, except where the nice lady is married and her husband has not consented or connived. Of course if she pretends to be unmarried then there’s no issue.
Adultery might be immoral and grounds for divorce, but surely it’s not illegal. It’s not a criminal offence.
@ Chris McDaniel
“… customary marriages esp in polygamy have equal protection to that of civil marriages …”
Your statement I have quoted above may be accurate in as far as other marital consequences are concerned but it does not change what I have said above about the prohibition. Please revisit your customary law.
@ JMB
I am sure Chris McDaniel thinks he’s in Pakistan. In South Africa adultery is not illegal, it is counternanced by law instead as I have explained in my post above.
sorry let me clear it up illegal in the sense of marriage but JMB in the world of ripplys beleive it or not yes it is actualy illegal in a criminal sense in some countries even in certian parts of States.
was just pointing out Sine ” yet adultery which is practised by Europeans as well, is not under question”
this is wrong in a sense of marriage it is criminal and there are heavy penelties in divorces with regards to this
JMB says:
January 5, 2010 at 8:05 am
I think you are wrong, adultary is certainly illegal in South Africa. Our law recognises an action for damages against an adulterous third party. When you commit adultary you commit a delict, which makes it illegal.
It is interesting how others have a God given right to decide what is best for us and will stop at nothing to protect us from our individual free choices.
As long as the parties involved are happy why should we worry?
Gwebecimele says:
January 5, 2010 at 8:42 am
“As long as the parties involved are happy why should we worry?”
Indeed – as long as this is adult free choice, it’s really nobody’s business.
Chris McDaniel says:
January 5, 2010 at 7:22 am
“last time i checked adultry is illegal in all countries” – This needs to be qualified from a South African point of view
Adultery is no longer a criminal offence in South Africa [JMB's post of 8:05 above] since it has fallen in desuetude long ago – see the (very) old decison of Green v Fitzgerald 1914 AD 88. However, adultary is still recognized as illegal from a civil (private law) perspective [Chris' post of 8:41 above], but, in the light of the small amounts of damages awarded if adultary is sued for and, in the light thereof that adultary is mostly used to strengthen an action for divorce since it is no longer a requirement for a divorce action, I think the writing is on the wall for the illegality of adultary in RSA. It will remain a moral issue, but the legal nature thereof is diminishing fast.
Gwebecimele says:
January 5, 2010 at 8:42 am
Maggs Naidu says:
January 5, 2010 at 8:51 am
A woman, sharing her husband with other woman, and happy about it?
@ Chris.
Happy about it?
No idea.
But it certainly works for those whom I know for whatever their reasons are.
@ Chris
Our First Lady is happy about it.
Anonymouse says:
January 5, 2010 at 9:01 am
“It will remain a moral issue, but the legal nature thereof is diminishing fast.”
I hope not, in a sense it will always be regarded as “blue Law”
Sine let me educate you abit.
“which is practised almost exclusively by those who are not whites (or is it non-Europeans?) could be unconstitutional,”
Majority of whites are Christians hence its against christian believes even tho early christianity has steep roots in Polygamy King soloman had 300 wives however when the romans took over Polygamy was the first to go it is deemed “wrong” and against “God”.
but what you also fail to see the Mormons practice Polygamy. if you really want to get historical on this dive into the Hellenistic and Macedonian practice of polygamy…um how about the vikings??
so to bring this question back into play again:
“which is practised almost exclusively by those who are not whites (or is it non-Europeans?) could be unconstitutional,”
it is not a race issue but a religious issue, we’re coming from an evolutionary history that’s probably slightly polygamous. If we’re shifting toward monogamy, it’s so recent it hasn’t left an imprint on our genome. wake up sunshine
@ Mouse
Thanks for educating both Chris’s in this matter bro. I think the essential difference between us was that one was referring to criminal law (crime) whilst the other to civil (delict).
PS: @ Mouse
Bro, I am aware of the King Dalindyebo’s demands of secession from the Republic and have discussed same under http://constitutionallyspeaking.co.za/what-went-right-in-2009/ with fellow bloggers. Its very interesting indeed… Thanks bro.
@ Chris McDaniel
Bro, thanks for the (mis)education.
Firstly, not all of us South Africans subscribe to Christianity and our Constitution leaves enough space for that to exist. Therefore, a person whose conduct does not dovetail with the Christian religion does not translate to that conduct being unconstitutional. Therefore, the questioning of the constitutionality of polygamy on Christian grounds is discriminatory on the basis of religion and is unconstitutional. It is interesting to note that early Christians practiced polygamy. Now does that mean all people should now opt against polygamy since “modern” Christians view it as wrong? Hell no!
On the race issue, I have this to say: Europeans, in the sense I mentioned in my post, do not comprise a race. They are a band of different races (mostly originally from England – 1820 settlers and from Netherlands – 1652 Jan van Reebiek and some directly from Netherlands, Amsterdam like Hendrik Frensch Verwoerd) and therefore it is rather ignorant of you to even suggest that I was talking about race when I said Europeans and Non-Europeans. By using the latter, I wanted to bring into the equation other people who practise polygamy like Muslims. Well, I am wide awake and you are the one who needs to educate himself about South Africa before delving into giving apparently expert opinions about my country, yours being USA of course.
Sine
relax you to sensitive.
this is the issue I have well had now
“which is practised almost exclusively by those who are not whites (or is it non-Europeans?) could be unconstitutional,”
im just saying the reason for this is whites, majority are christians its just against the religous believe its a moral compass isnt it? yes of cause it would be unconstitutional to take that approach becuase the christians said so therefore its unconstitutional, the issue really at hand is the protection of females.
“yet adultery which is practised by Europeans as well, is not under question”
this to me is crap of cause its under question as I mentioned which I actually should of made alittle clearer is it is illegal in marriage,…whether you like it or not marriage is still a sacred institution and that the instituting of damages claim by an aggrieved spouse resulting from adultery is not outdated. Adultery, does not fit within the institution of marriage. Your laws acknowledges that one way of infringing on a married person’s rights, was to commit adultery with that person’s spouse.
Adultery also in terms of the country’s existing laws affects the aggrieved party’s dignity and other rights. it is a crime just like racism. Of cause its under question
“Adultery has more adverse consequences than polygamy since the latter is regulated by law but it is not prohibited (in fact, adultery is protected since illegitimate children can now inherit from their parents).”
you were doing fine there untill you put the rubbish in brackets since when is adultery protected? it is interesting to note adultry actually does have adverse consequences than polygamy. but then again men still cheat outside of polygamist marriages case in point Zuma.
“I am now beginning to wonder if polygamy is not outlawed in order to keep those who practice it (mostly non-Europeans), in line with European or Western way of life.”
this is a distorted way of thinking as I explained western and European law offer more protection to females and since you are correct this is south africa which its laws are founded on roman dutch and english laws which govern the people here and all are equal to the law of the land, it would make sense since this is modern times and females of “non european” up bringing have evolved in status in economy the laws that governed costumary marriages actually became a little outdated since there was such a progressive evolvment of civil marriages, the same laws that protect the “Europeans” of south africa should apply to the Non “Europeans” of south africa esp in marriage and esp if kids are involved.
Make sense?
@ Chris McDaniel
Thanks for your post bro I will try to tone down the emotions in my posts whilst retaining the substantive content thereof.
How do you propose declaring polygamy unconstitutional will protect females or at least be non-discriminatory? By legalizing polyandry, perhaps? Kindly provide the measures that should be taken to protect females from polygamy and how those measures will assist females…
“…it is a crime just like …” I vehemently disagree with this statement. In order for adultery to qualify as a crime, the State Prosecutor (not Plaintiff) has to be the one who arraigns the accused (not Defendant) before the court. The reason is that the accused would have committed an offence against the state not against a private individual. A good example would be swimming in a reservoir from which people of a certain town get their water supply. By doing that I have not committed any delict against a private individual but against the State, provided the authorities catch me before the contaminated water escapes to do damage or is drunk. This would be a crime. However, if that water escapes and a young boy drinks therefrom and suffers internal injuries or has an illness, it becomes a delict as well. This is not the case for adultery as it simply amounts to a delict not a crime…
In order to understand the “rubbish in brackets” you need to refresh your memory on our (South African not American) Law of Succession. In terms of our Law of Succession, an illegitimate child (born out of wedlock such as one born from adultery) may now inherit from the estate of both his or her parents. This is a recent development which occurred on the eve of the advent of the Constitutional dispensation. If this does not encourage adultery in the same way grants to children encourage women to get pregnant, then I do not know what does.
Pertaining to the last para, I really do not understand why polygamy should be attacked for being apparently unconstitutional. It is part and parcel of the culture of mostly non-Europeans and to declare it unconstitutional would be tantamount to making those who practise it subservient to Western culture with its monogamy.
Make sense?
@ Sne
“If this does not encourage adultery in the same way grants to children encourage women to get pregnant, then I do not know what does”.
It’s not clear how you arrive at that conclusion.
If anything it puts pressure on people to take responsibility for their actions.
As I see it, the children born of such relationships are consequences of, not participants in, the adultery and are therefore correctly protected in our law.
I think it can be both constitutional and unconstitutional (but exclusively of each other) depending on the position from which one views the mountain. If the two parties involved are consenting adults and taxpayers’ money is not affected- why worry? Me has come to understand and accept that people have different preferences. For instance I prefer piece jobs whilst someone else prefers a permanent one. Let us all make South Africa a den where all forms of diversity are accommodated and celebrated. I hope this does not impair my integrity, if it does then I retract my words or I plead with you to judge me based on my actions (not words) in relation to the interests you are safeguarding.
I took the liberty of asking two women I know, who have a culture of polygamy (Muslim and Black) what their thought are. Both ladies said it is someting they would find humiliating and degrading, but would have to accept their fate should their husbands decide to take another wife, or else they will be rejected by their families and the communities they live in. The Muslim women told me that she once thought that her husband was taking another wife, and it was like her worst nightmare coming true – she soon found out that it was just a misunderstanding.
Sine
In order to understand the “rubbish in brackets” you need to refresh your memory on our (South African not American) Law of Succession
tad condescending there arnt we
“may now inherit from the estate of both his or her parents.”
so is this the childs fault now?
” this does not encourage adultery in the same way grants to children encourage women to get pregnant, then I do not know what does.’
I dont see how it does to be honest. you remind me of those people who say smoking leads to drugs. or spooning leads to forking
for your second Para: adultery is a breach of contract, laws are inplace that to manage adultery. Adutlery is punishable it as crime there are laws
http://www.iol.co.za/index.php?art_id=iol1250839119394D452
Sine try stop coming across as cocky tit and just wake up to the fact marriage is something that builds people, its something people die for worship, it is simply there entire being. Problem is people like you have lost your moral compass and downplay this type of behaviour. when someone goes out and violates that, it is sick it is emotional rape, it is an emotional murder.
Just for the record i never said im against polygamy i actually dont really care, what i do care is that its pretty arrogent to say one lifestyle is better than the other.
Sine I find you to emotional to debate with, sorry
@ Chris McDaniel
“Sine I find you to emotional to debate with, sorry”
OK.
@ Chris McDaniel
It is unfortunate that you generalise about Muslim and black women and their communities. It is like saying I asked a white woman about her cheating husband and she said it was humiliating but because she would be rejected by her family and community if she wanted a divorce she wont divorce him.
From you statement I realise that you know very little of the black community. Because you had contact with one black woman about the issue you feel you know the black community.
The debate you guys are having is like the abortion one. Depending on which woman you ask you get a different answer. I don’t support either polygamy or abortion but I believe women have a right to chose and thats what we should respect.
Thomas says:
January 5, 2010 at 14:48 pm
Thomas I asked this question to two women to get their opinion. Where did you read in my post that I claim to know the Black community? I can’t find it. I might add that I have many Black friends and I interact with people of all races on a daily basis. I had Black friends since I was a young child. As a matter of fact, I went on holiday with a Black friend last year, where I had the opportunity to discuss many issues in depth. That is the way I was brought up. My parents had and still have Black friends. Yet I don’t claim to know the Black community all that well.
As far as your last paragraph goes, I agree that if a woman choses to share her husband, that should be respected. I’m still looking for a woman who would choose that (as opposed to accept her fate).
Prof,
I like the point of Male primogeniture as you raised it on your first comment on that it was declaired unconstitutional. I make my comments as follows:
If one looks at this issue, you are likely to think of the Shulubana Nwamitwa case, per Van der Westhuisen.
The chieftaincy is a family (surname) line matter. Now, in terms of the customary Law, when a woman gets married, the children she bears are not regarded as of her (woman) family, but belong to a man and they ordinarily have to use the surname of the Husband.
But, in the light of that case (Shilubana), a first born of a married female will have to come from a different family bearing even a different surname, to carry the duties as the chief within the chieftaincy that is of another surname. This, to me, sounds to be an even more confusion than the solution with which a court of Law is expected to bring.
Chris says:
January 5, 2010 at 15:25 pm
“As far as your last paragraph goes, I agree that if a woman choses to share her husband, that should be respected. I’m still looking for a woman who would choose that (as opposed to accept her fate)”.
Is it your view that Thobeka Mabhija Madiba did not choose to share her husband and that she accepted “her fate”?
Did perhaps, in the same vein, Monica Lewinski also accept her fate?
Would you kindly look into the Budget implications when the SA Head of State takes x wifes in customary marriage?
@ Chris
“or else they will be rejected by their families and the communities they live in.”
—————————————————————————————————
This statement to me seems to be either made up or not being entirely truthful by the black woman you talked to. I wouldn’t know anything about Muslims and won’t try to speak for that community. In the black community I know and have heard of many a case where a wife has not accepted the husband taking another wife and the community has not shunned or rejected her. This is why I get worried when generalisations which are not true are made; even by blacks themselves. There might be cases where this might happen but this is not the general trend.
I see that you don’t read Drum magazine. Please read the current Drum magazine about Mbogeni Ngema’s fiancée. Then search about his marriage to Lelethu Khumalo and why they split and let us know if the community rejected Lelethu? Find out more about the culture please.
Khosi is right.
It is time for white liberals to wake up, and realise they are in Africa.
Yes, Africans, Polynesians, and the Kings of Ancient Judea are equally abhorred by white liberals.
I suspect that “Botox” Zille is behind the shameless attack on African values – and we all know, from the ANCYL, about her de facto polyandrous all-male cabinet.
Chris, cheers for your response. My point was that the institution of marriage itself – be it in the context of civil or customary marriage – is perhaps not the truest problem here in many respects because it appears that these contracts provide for protections for women.
The more basic problem seems to be the harmful views held by men. A wife, as you make out, may have legal remedies to which she could resort if her husbands sought to deny her the enjoyment of her powers. But the point is that resort to such remedies costs money. Thus this seems to be another circumstance in which the difficulty of access to justice manifests itself. Regrettably, for many people, rights and remedies exist in books, judgements and statutes only. That is, they do not actually come to enjoy them. Thus I will stand by my point that the institutions themselves do not appear to be all that problematic in that they do seek to provide some protection for women. The problem – somewhat reformulated here – is that women may not be able to actually enjoy the powers and remedies that sources of law afford to them and this unfortunate phenomenon offers opportunities to domineering men to hold abusive sway in the household.
Sine, it is just as well that I have become fairly accustomed to you shallow, misguided analysis and ambiguous articulation. And I would be surprised to read that you accurately understood (a) that we I actually assumed and (b) the core thrusts of my post.
@ Leigh: January 6, 2010 at 6:06 am
YAWN…
Leigh says:
January 6, 2010 at 6:02 am
I tend to agree with the thrust of Chris’ comments that the wife in the polygamous relationship may well find herself between a rock and a hard place, that the consequences of remaining in a less than palatable relationship outweighs the consequences of abandoning it.
But here’s the thing that puzzles me – the latest addition to the harem is regarded in these discussions almost as a non-person, with neither free will nor free choice. It’s hard to believe that Monica Lewinski and Tiger Woods’ side shows were under the spell of an imposing society steeped in a patriarchal customs and traditions.
rather insightful: http://www.independent.co.uk/news/world/africa/the-big-question-whats-the-history-of-polygamy-and-how-serious-a-problem-is-it-in-africa-1858858.html
@ Sine
“Yawn.”
Sine is right.
Although concise, it is plain that Sine put a lot of work into this response.
Thomas says:
January 5, 2010 at 14:48 pm
lol Thomas you confussing me for the other chris, there are two chris’s on here it would seem. To the other chris, we need to start an army there are way to many chris’s in this country
The unrelenting attack on all things African will only cause one thing and that is the further division of all races in this country and around the world. Having said that I am not advocating that Africans and their practices not to be scrutinised or put under the microscope from time to time. However there is a trend emerging in many of these discourses, those in favour of a liberal lifestyle seem to think they have the right to pass judgment on other cultures and their practices.
Those who feel that their way of living is receiving a barrage of unwanted or unwelcome scrutiny from all corners in the media and blogosphere ,will most likely lean with their own(blacks defending other blacks or westerns defending pro western values), thus defeating the need for constructive dialogue and enlightenment.
All I am asking for, is for the light to shine on other issues such as, Muslims, Jews, State Security, the State of the Nation, infringement of personal rights, race profiling, Racism or Favoritism in SA Cricket etc and give us a break, just once it’s all I ask for.
Our marriage legislation seem to me to be applying double standards Clauses 3(2) and 10(1) of The Recognition of Customary Marriages Act, No 120 of 1998, allows for the recognition and registration of customary marriages provided the spouses are not married in terms of The Marriage Act, No 25 of 1961. In other words you may be legally married (to more than one) provided you are not legally married (to one) – an obviously self contradictory statement! It openly applies double standards and seemingly discriminates against persons a.o. on ethnic origin, marital status, sexual orientation, religion, conscience and belief and is thus probably unconstitutional in terms of Clause 9(3) of the Constitution. However, it does not mean that polygamy should be declared unconstitutional, as prof e De Vos has argued. The question, I think, we should answer in an objective, unemotional way, is whether the prohibition of polygamy in The Marriage Act of 1961 is constitutional. Is the prohibition of polygamy not also discriminating on the grounds of ethnic origin, marital status, sexual orientation, religion, conscience and belief? Should the state really prescribe how many women may be legally married to one man or simply protect the rights of everyone involved? Is the prohibition of polygyny not maybe also unconstitutional in terms of Clause 18, Freedom of Association?
Zagrijs Venter
@ theVillage boy with a diploma
Bro, I tend to agree with you. “Some among us” seem to equate being ‘unconstitutional’ with being ‘at odds with Western culture’. This is one thing I cannot tolerate.
I may not agree with marrying more than one wife but I will defend vigorously anyone who wants to marry more than one wife. I choose polygamy over adultery!
Sine and Village boy
I dont see anyone attacking all things african, I think this is a manifestation of your own imagenations.
If you read the fellow bloggers everyone is concerned with the protection of females in any marriage that seems to be the issue here.
Leigh says:
January 6, 2010 at 6:02 am
“is that women may not be able to actually enjoy the powers and remedies that sources of law afford to them and this unfortunate phenomenon offers opportunities to domineering men to hold abusive sway in the household.”
This im afriad you have a very good point and its not just here in South Africa, this is why legal aid should be dished out like you have with medical aid. I just think its more of a promotion that needs to woman in those situations what there rights are but as you mentioned none of this will help with out a good justice system
Sine says:
January 6, 2010 at 11:04 am
“I choose polygamy over adultery!”
I dunno Sne.
“Nice, single” I am told is an oxymoron.
Thanks Brother,
I couldn’t agree more with your last statement.
Very few Christians realize that so called “Western culture” about monogamy is NOT Biblical culture; it originated in ancient pre-Christian Rome and was only introduced into Christian and Jewish customs in the 2nd or 3rd century AD. The Bible does not only tolerate polygyny, but in fact commanded it. There is not a single text in the Bible which condemns or denies polygyny.
The Bible is not only emphatically against adultery, but also against divorce and remarriage. Yet it is amazing to see how people who accept and tolerate adultery, divorce and remarriage, but not polygyny. You may have sex with as many women as you like, produce children with different women (like Steve Hofmeyer), divorce as many times as you like and marry somebody else, as long as you are not legally married to two at the same time. What utter double standards and hipocrasy – condoning what God has categorically condemned and condemning what God has in fact condoned and commanded.
Zagrijs
@ Chris McDaniel
If we could be honest about the proposition of all things African being under constant attack, you would notice the trend that has developed in this blog which makes it very difficult to come to a general agreement on especially cultural issues or issues associated with black South Africans.
On the protection of females, I believe that is another pretext utilized to perpetuate the above mentioned objective. Moreover, I asked the following to you on “protection of females” that you are advocating for;
“How do you propose declaring polygamy unconstitutional will protect females or at least be non-discriminatory? By legalizing polyandry, perhaps? Kindly provide the measures that should be taken to protect females from polygamy and how those measures will assist females…”
@ Maggs
LOL
@ Village Boy
Village Boy is right.
There have been too many attacks on all things African
I have been especially disturbed by attacks on the practices of people who live in Algeria and Morocco on this blog.
(We all understand, of course, that Africa, although large, has one single “African” culture.)
Declaring the prohibition of polygamy in The Marriage Act, 1961, unconstitutional, thereby legalizing polygyny for everybody, would in fact PROTECT women and their children!
Fact: There are more women than men! The older we become the more unbalanced the numbers become. That leaves the surplus women with a limited number of choices: (i) celibacy, (ii) masturbation, (iii) lesbian sex, or (iv) an affair with a married man. Is it fair and right to deny a sexually health, straight women the opportunity or right to a legally binding marriage, simply because there are not sufficient number of unmarried men?
The women who go into an affair, de facto enter into a polygynous relationship. She knows it, live of the crumbs, rather than to be left with nothing. But she had very little or no legal protection.
The legally married spouse is also in a polygynous relationship, shares her husband, but usually doesn’t know it. Her rights are not respected, but there is very little that she can do it, except to divorce her husband (if she finds out) and claim compensation form the other woman (if the mistress has something that you could claim).
Legalizing polygyny would ensure that adulterous husbands cannot get away so easily anymore, but the mistress could demand legal marriage.
In my humble opinion, legalizing polygyny would go a long way to help the fight against HIV/Aids. If the number of women who are not in legally binding marriages decline, so might the number of extramarital encounters.
Zagrijs
Sine says:
January 6, 2010 at 11:34 am
since when is polygamy soly owned or invinted by africans? im not gonna be drawn into a race debate. as for your 2nd paragraph you either full of shit or your paranoid there is no pretext in trying to protection females rights to degrading african culture. get over yourself.
It is common cause that western law offers more protection to females why not offer the same protection in customary law?
as for 3rd paragraph, it is smelling like a tit for tat, did i mention that polygamy is unconstitutional? so i dont understand how i can provide measures to protect females from polygamy than the ones I already mentioned if the woman is not happy she can apply for a civil marriage. In any event the is a road which must be follwed with a court application if one wants to practice polygamy with concent of a judge
The issue is not to protect one from polygamy but rather to protect one in polygamy, make sense?
This discussion goes to the heart of our problem. For many decades we have been uprooted from our cultural practices to promote other peoples interests. Our family structure, relationships and ways of living were altered to create confusion and we need to bring back the good values we once had.
Marriage which was meant to be a family to family everlasting relationship has been reduced to a policy contract that matures on divorce. Children who are supposed to be looked after by both families are being used as manipulative pawns on how much I can squeeze out of him or her.
May be its time that we petition our govt to come up with a constitution that resembles African values.
I am not a polygamist but my Great Grandfather was and we nver had a divorce in the family until my generation.
Gwebecimele, you say: “For many decades we have been uprooted from our cultural practices to promote other peoples interests”
Please motivate your statement?
Zagrijs Venter says:
January 6, 2010 at 11:55 am
“Legalizing polygyny would ensure that adulterous husbands cannot get away so easily anymore, but the mistress could demand legal marriage.”
I think this is a wrong perception, even in Polygamy adultery still occurs, eg Mr Zuma
“In my humble opinion, legalizing polygyny would go a long way to help the fight against HIV/Aids.”
An opinion yes, but whether thats true or not is debatable
@ Chris McDaniel
The following, imo, is the most important aspect of your post so I will only focus on it;
“The issue is not to protect one from polygamy but rather to protect one in polygamy…”
I believe there is ample protection ito RCMA. What other protection do you consider necessary without destroying polygamy as understood and practised ito ‘customary law’ as defined in the RCMA?
PS: Earlier you said I was too emotional. Kindly check your last post to me and tone down your subsequent posts so that you also do not sink to that level of debate…
Chris McDaniel says:
I think this is a wrong perception, even in Polygamy adultery still occurs, eg Mr Zuma.
Correct! I didn’t say it would eliminate it, I said adulterous husbands wouldn’t “get away so easily anymore”. The mistress would be legally in a much better position to put her foot down to his abuse.
HIV/Aids thrives on promiscuity and the latter thrives in an undisciplined society. Legally binding marriage relationships introduces discipline into society, whether monogamous or polygamous. The more unmarried women in a society the better the chances would be that sexual ill discipline would occur. The more women one man is married to the less chances that he would be in any position to enter into extramarital affairs. As a “sister-wife” in a polygyous mormon marriage in the USA put it to a female news reporter: I know who my husband slept with last night. If he wasn’t with you, do you know whom he slept with?”
Sine
“I believe there is ample protection ito RCMA.”
Womans right should go further than just the RCMA
“What other protection do you consider necessary without destroying polygamy as understood and practised ito ‘customary law’ as defined in the RCMA?”
is it really?
http://www.mysinchew.com/node/32682
Zagrijs Venter says:
January 6, 2010 at 12:42 pm
Correct! I didn’t say it would eliminate it, I said adulterous husbands wouldn’t “get away so easily anymore”. The mistress would be legally in a much better position to put her foot down to his abuse.”
Zagrijs how is that any different from civil marriages?
“The more unmarried women in a society the better the chances would be that sexual ill discipline would occur.”
hey? thats a tad sexiest basicly you saying woman are sluts?
“The more women one man is married to the less chances that he would be in any position to enter into extramarital affairs.”
lol so but that would still be extramarital?? inorder to get more wives, I would imagen i would have to take a few female out on a date while married… have a romance connection in love then get married to the other person aswell? ….. so adutlery leads to polygamy
?
I, too, demand the adoption of a constitution embodying African values.
By this of course, I mean the age-old values of the Coptic communities of Egypt, as well as those of the Berber tribesmen of north Africa.
@ Chris McDaniel
Bro, exactly which rights are you saying should be extended to women and how?
Bro, thanks for the link and I find it does not contribute in anyway to the current discussion. For the record, the custom of ukuthwala has long ago been declared unconstitutional by the Concourt. We are discussing the custom called polygamy herein not ukuthwala. If there is a point you wanted to raise by “invoking” that link, then please restate it in clearer terms.
If that were not all, I hope you did not miss this part;
“In the old days men usually abducted women who were of marriage age, not minors. This is not culture,” said Mtuze, adding that in the past, girls who were abducted were not raped.
“The girl was kept safe until she accepted the love proposal from the man. Messengers were then sent to the parents of the girl to start lobola (dowry) talks,” said Mtuze.
@ Venter
I hope you are not requesting a lesson in colonization and apartheid.
@ Gwebecimele,
You don’t have to tell me anything about colonisation and apartheid and the wrongs committed.
However, it has become to easy in SA (Africa) to blame colonisation and apartheid with unmotivated, sweeping statements for all the miseries of black people.
Your statement implied that colonisation and apartheid uprooted you from your culture and forced you to follow other people’s culture. I want to know: How? Spell out which cultures were you forced to give up in favour of western culture?
@ Venter et Gwebecimele
The first one is the abolition of the customary law in favour of common and positive law (legislation in the form of Acts, Ordinances, Regulations, etc.).
The second one is the adoption of English and Afrikaans as the two official languages of RSA and the making of Afrikaans as the medium of instruction in RSA schools including those of blacks – or is it natives? – (remember Hector Peterson and 16 June 1976)
I do not think I need to include forced removals, establishments of homelands, etc as you may be catching my drift by now.
“Bro, exactly which rights are you saying should be extended to women and how?”
well um, my china, bro, bra, guy, my mate, my bloodclot…
every right imaginable…….. however you seem to be satisfied with just compounded womans rights in marriages just to the RCM act it goes further than that, look think out the box for a bit, how many females in rural areas are aware of the RCM act? let alone the amendments that come into place?
the reason why i posted that link is simple to show unothordox revival of ukuthwalwa ( of a culture) could you imagin the unorthordox revivial of forced marriages in polygamy or any other., which goes in line with what Pierre had to say:
“It seems to me the real discrimination will be felt by one or more of the wives where the husband is not a kind man and where he does not respect the provisions of section 6 set out above or where the judicial officer shares the patriarchal views of the husband and fails to protect the financial and other interests of the existing wives. This happens – both in customary and civil marriages – and has just as much to do with culture than with the provisions of the law.”
In conclusion the RCM act is clearly evolving yet at a snails pace more recently there were amendments made last year which gave more power to the woman. So clearly there are gaps and im sure more will slowly pop up.
@ Chris McDaniel
“…how many females in rural areas are aware of the RCM act? let alone the amendments that come into place?”
Would you then agree with me that, based in your quoted statement, the real problem is not polygamy but the lack of knowledge of the law by the people on whom the law is binding?
Would you agree further that instead of seeking to exterminate part of our customs and way of life, polygamy, the State should be more concerned with educating people, especially women, about the law and its benefits?
Would that not amount to effective protection?
Reverting to what Khosi and myself asked earlier as to why we were asking about the constitutionality of polygamy, are we not asking the wrong questions or looking at the wrong angles in tackling the negative consequences procured by polygamy?
Sine says:
January 7, 2010 at 14:14 pm
I think the concensus is not many people are really against polygamy here in south africa thats why im not debating the constitutionality of polygamy, its a life style, its like debating the constitutionality of homosexuals.
Your right we are asking the wrong questions, we should look at what more can be done with the promotion of females rights with in such a lifestyle and what more can be done to protect them.
Also If the females consensus is they want to marry more men, then by all means it needs to be legalized.
If the female consensus is Polygamy is a fundamental infringement on their rights taking into account all the legal protection involved, then im afriad polygamy needs to be declared outdated and unconstitutional, thats democracy for you.
Chris McDaniel says:
January 7, 2010 at 14:29 pm
hey Chris – this sounds pretty impressive.
“Also If the females consensus is they want to marry more men, then by all means it needs to be legalized.
“If the female consensus is Polygamy is a fundamental infringement on their rights taking into account all the legal protection involved, then im afriad polygamy needs to be declared outdated and unconstitutional, thats democracy for you.”
Dworky is MIA.
Please explain in a bit more detail, especially the “thats democracy for you” bit.
@ 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.
poligamy is constitutional and to those who prefer it as an institutional practice of marriage born out of all parties consenting to it, there should be no interference or negativity made against it. some of us grew up under those familiy arrangements and its still common practice in KZN including young fellows in their mid 20′s and above so long as they work. in the country-side like Melmoth, Nongoma, Nkandla, Mpangeni near Richards bay its still dominant to a point where those with single wives are like outcasts. customary marriage gives leeway for such and it was strengthened by parliament as to include the first wife to consent to a second sister to a husband. at least that right is fundamental. after all we are in Africa, its our practice!
@ Sine
1) Sine says: “The first one is the abolition of the customary law in favour of common and positive law (legislation in the form of Acts, Ordinances, Regulations, etc.).
I’m afraid that’s a sweeping statement. Be specific. Tell us: This and that customary law was abolished in favour of common law and positive law.
2) Sine says: “The second one is the adoption of English and Afrikaans as the two official languages of RSA and the making of Afrikaans as the medium of instruction in RSA schools including those of blacks – or is it natives? – (remember Hector Peterson and 16 June 1976)”
I don’t why you add the words “or is it natives?”. Anyway, the adoption of English and Afrikaans as official languages didn’t force anyone to throw away his or her own language. Yes, of cause forcing black pupils to learn through Afrikaans medium was wrong – just as wrong as Lord Charles Summerset’s and Milner’s attempts to force Afrikaans children to become English. But you leave a few important facts out, Sine. The first is that the apartheid regime changed the constitution to include indigenous language in those areas where it was the predominant language. Interpreters were always used where the state dealt with black people who preferred their own language. Wasn’t it for the insistance of the NP negotiators English would have been the only official language. When the NP rejected the ANC’s proposal of English only, the ANC turned around and came up with the current 11 languages proposal. But in practice English is de facto the only official language. When black children go to an Afrikaans medium school they insist on English medium – not their own indigenous language. Since 1994 to date Afrikaans medium shools’ numbers have declined from about 10000 to 300. The former Afrikaans schools are now English medium. All the indigenous languages are under threat of extinction. Why? Not because of colonisation and apartheid, Sine, but because of the free choice of black people in a free South Africa.
3) Sine says: “I do not think I need to include forced removals, establishments of homelands, etc as you may be catching my drift by now.”
It would have not been relevant, anyway, unless your definition of culture and mine differ.
Sine, I spoke out against apartheid years before the NP started talking about negotiations – not loud enough, but I did! Apartheid was wrong, but don’t blame apartheid for the fact that black people threw away their culture, They did it out of own free choice!
There is not a single nation in the world that was more oppressed than the Jews. They were forcibly removed from their land about 2500 years ago, scattered over planet earth, prosecuted, victims of mass genocide by Hitler and Stalin – you name it, and it has been done to the Jews. They were exposed to how many different cultures around the globe. Did they give up their culture? No they didn’t! A Jews is a Jew is a Jew – whether he/she lives in SA, US, Russia, Israel or wherever.
Zagrijs
@ Zagrijs Venter
“Tell us: This and that customary law was abolished in favour of common law and positive law.”
Are you really asking me to give you specific Apartheid legislation proving that the positive law contained therein altered and even abolished our culture as black people – or is it natives?
If you do not know the significance of the words “or is it natives”, then why are you fascinated by their use in my post? Just ignore them or give your opinion on what you infer I mean by adding them herein.
Unbelievable! You keep on referring to the practise of Apartheid by white (mostly Afrikaans speaking) people as ‘wrong’! This is completely out of line and undermines the damage (psychological, social, historical, economical, etc) that the Apartheid regime has done to this country. Not complimenting the cooker after being invited over by your neighbours to have dinner with them is wrong, not attending school meetings at your kind’s school is wrong, not returning the latest movie to the movie store after watching it is wrong and not returning the latest book to the library soon after the due date is wrong. However, Apartheid was not wrong! It was illegal and its perpetrators deserve to go to jail for it! Do not underplay it as such would mean you do not understand its effects on us black people in this country!
The introduction of indigenous languages in places where they were widely spoken was not an attempt by Apartheid whites to revive these languages nor to respect the cultures of those who spoke them but it was a lazy attempt to make the establishment of homelands more lucrative and acceptable to black people. Historically speaking, barring a few exceptions, whites in this country have only cared about their narrow minded interests and have co-operated with other races when those interests are under threat. Window dressing is a good example of what I am talking about (eg establishing a Board or Management with a few blacks (blacks as it the wide definition in the BEE Act) who have no power whatsoever in decision making in order to get tenders from the Govt for being BEE compliant).
“It would have not been relevant, anyway, unless your definition of culture and mine differ.”
How is being forcefully removed from one’s own home and forced to move to another place not relevant to a discussion about the disturbance of one’s culture and way of life? Maybe you should define culture…
“They did it out of own free choice!”
You are either ignorant or arrogant. I would say a bit of both.
“There is not a single nation in the world that was more oppressed than the Jews.”
Before we delve into any kind of discussion about Jews and South Africans, you need to draw convincing similarities between the two. Otherwise, Jews are irrelevant to this discussion. This, however, does not mean that I have accepted as facts what you have said about Jews.
Celtic “culture” was crushed when the Romans invaded Britain; when the Normans invaded in 1066, the emergent Anglo-Saxon “culture” was crushed. Today, British “culture” is being trampled by the more peaceful invasion of Poles, French and Germans, who seem to have taken up every second job in London.
African “culture” (I use quotes because there was and is no such thing as a unitary African culture anyway), was forever changes by the imposition of Christianity. It is being transformed again by global capitalism.
Is this so bad? What makes a “culture” worth preserving anyway?
Michael, it seems that your post discloses two related questions: the first appears to concern whether there is anything inherently objectionable about a culture changing; the second goes to what makes a culture worth preserving.
I think that any definition of the term ‘culture’ would embrace the position that a culture, at least in part, comprises views and practices to which certain people subscribe. And to turn to the first of your questions while at the same time drawing on the foregoing very general definition of culture, I have to say that there seems to be nothing which is inherently objectionable about a culture changing. The better inquiry seems to be whether the change that occurs is desirable. (And of course a concomitant question is: how might one determine whether the change that occurred is desirable?)
As regards your second question, it seems to me that the mere fact that views and practices are regarded as cultural cannot, of itself, lead to the conclusion that the views and practices in question are necessarily worth preserving. The reason for this is simple: the content of the views and practices have to factor in heavily as to whether they are worth preserving. That is, to argue that a practice or position is deserving of preservation simply because it is cultural (and that is often the implication of views put forward on this blog) is really just another way of saying that describing a practice or standpoint as cultural amounts to a blanket, impregnable defence. And two reasons as to why that viewpoint is unconvincing are that it precludes people who associate themselves with the culture from testing (a) the validity of their beliefs and (b) the extent to which their beliefs accord them benefit or relieve them of benefit.
Leigh, yes, I agree with your analysis.
Unless one is a radical relativist, one cannot take the position that anyone has the “right” to practice her culture – simply because it is her culture. As you suggest, one must be prepared to specify, in substantive terms, why that culture is worth preserving.
But this raises two very difficult issues.
First, by reference to what standard (a meta-culture?), could any single culture be evaluated as worthy of preservation or not? I fear that the liberal notion of a consensus based upon universal human interests is a fantasy.
Second, great tact is called for. When a member of a dominant culture challenges the adherent of culture that has been subverted through colonialism to “defend” that culture, it will always come across as presumptious bullying. Hence the reflexive resentments expressed on this blog.
@ Michael,
You make out that one difficult issue here is the question of what standard is to be referred to in determining whether any single culture is worthy of preservation. You also advance that the liberal idea of consensus based on universal human interests could well be a fantasy. I tend to agree that such consensus is rather a fantasy. That is, it could be the case that notions of safeguarding and promoting universal human interests are the most tenable standards by which we could evaluate whether a culture – or even just isolated aspects of a culture – is deserving of preservation. But as I have already made out, your point, as I understand it, seems a fair one: the consensus of which you speak is probably a fantasy. I think the reason for this is clear enough and I will elaborate by using an example: person X subscribes to a culture. Person X is deeply committed to her culture and tends to become angered by any comments about her culture that even begin to suggest criticism. And perhaps it should be said that given her culture’s history of subservience, her tendency to fiery defence is understandable. But what she does not do is consider the content of theories that advocate the promotion of universal human interests. She also fails to consider whether promotion of universal human rights could, at present, be the most defensible standard to be had. And further, she does not earnestly look at whether her culture limits any human interests.
You make out further that the activity of evaluating whether cultures (or even just isolated aspects of cultures) are worthy of preservation calls for much in the way of tact. I certainly agree. But I would raise a point here: while the critics of the culture ought to show a generous measure of tact (especially when the culture being subjected to the criticism has suffered a history of subservience), those respectful critics should recognise that the respondents also bear responsibilities – if we are prepared to assume that all participants to a debate about whether the culture is worthy of preservation are interested in meaningful discussion and if we can suppose also that the participants want to realise that object. That is, while the critics would do well to be tactful, the respondents would do well to be open-minded.
@ Sine
Leave Venter alone. I predicted that he/she requires a lesson on apartheid and colonialism and you provided an intro but he/she still can’t get it.
@ Venter
Read a bit of Charles Celliers and Max du Preez.
@ Gwebecimele on Venter
Bro, in Xhosa we say; “Ulwazi oluncinci luyingozi.”
Venter is venturing into areas which she knows zilch or at best very little about, and the unfortunate part is that she is not willing to admit that she may actually be less informed than she actually thought. This is making it very difficult for her to look at the “new” information dispassionately and then to review her position in view of this “new” information.
From where I am standing, she simply used to be one of the brainwashed Apartheid kids whose brothers and fathers were conscripted to “defend the country against terrorists” on the boarder and “whose deaths were a necessary sacrifice to bring democracy and civilization into South Africa.”
Indeed, Venter is owed a proper history lesson by those around her and those with whom she associates on a regular basis. Gwebecimele, you have now made me feel very sorry for her. Shame…
Piere please research before putting wrong info,J.G.Zuma’s first wife is alive,thats Makhumalo for you,the second committed suicide……and the constitution is made by the people and if this is acceptable amongst the people so be it,not to say i practise it
Thank you for all the comments and brain storming. This issue is now becoming a labour issue as well: let me explain. Yes, adultery is frowned upon, but your employer’s pension fund rule makes provision for all your children and mistresses to be noted should you pass away. However, because customary marriages is perceived to be only for non-white South Africans, an Afrikaans speaking white man is denied by his employer to add his mistress to his medical aid insurance – because THEY say it is not within his religion or his culture to have more than one wife. Now my question: culture is constantly changing and adapting to the new world around all of us. Should I now be bound by the Culture of my latest ancestors?
For me this issue boils down to equal rights for all genders. The Civil marriage in all its forms and with all its laws has not granted women equal rights in reality. Equal rights is PROTECTION. It is my wish to be unchained from the culture I am boxed into based on my latest ancestors, the colour of my skin and the language I am official know to speak at home.
Looking back at my family tree coming from Europe and North Africa, my ancestors are a rainbow nation in them self. Lately my ancestors were Afrikaans speaking Christians, previously they were Dutch/ German/ French decent, but their ancestors also included a dash of Moslem religion and many moons ago also hint of untamed barbarians.
In my view, religion and culture should not be used as criteria. We have judged people as being adulterers because they belonged to cultural groups where polygamy has not been practised lately. Saying that, Christians read the Bible – both old and New Testaments. King Solomon has had many wives and father Abraham had a child with Hagar –with permission of his wife Sarai. Christians are charged with committing adultery a few years after King Solomon and Father Abraham lived – from whom they decent . Makes you think about religion and culture as barometers for right and wrong, acceptable and despicable.
I hate listening to men arguing in favour of polygamy. All African women have their version of the statement “love only me”. African women know we get cheated on, know some of our men want to have other wives. Most of us (almost all of us) are NOT HAPPY WITH THAT.
@ Mpho
May be majority of men should not marry and that would give them freedom to date as many as they can. Marriage is not the problem here but REALITY in the form of polygamy, girlfriends, nyatsi etc is what we need to confront.
Good day to you all.
Sometimes is easy to judge things if you have not experienced them. Today I searched for answers because i am in a dilemma i myself never thought i will be in. I am a 35 years old woman, my huband passed four years ago. After a year i was ready to see other people and not one man has ever asked me out in this years until now. Not long ago a man saw me, can you imagine how that felt. I was over the moon. The man charmed his way into my heart and only to find out he is married. Now what do you do. I myself have judged people who date married people or marry more that one partner. But for the 1st time did not have a problem with polygammy. I did broke it off though after finding out and it was not easy. What went through my mind was why does God not protect us from all this? Why did he let me meet this wonderful man that can no be mine. Polygamy was there when the world began and it looks like its going no where.
Forgive me if i am off the topic.
But who are we to judge, laws are added and changed everyday. When is it all going to end. I myself can’t keep up.
Life is complicated and nobody will ever understand it until the end of it and hopefully we will meet our creator and he will provide us with answers. And i have a feeling we are all going to be shocked at what God wanted this world to be. Nobody can claim to know it all. I sometimes fail to explain what is happening in my own life. Discussions will always be there. But what i am learning is we have to love one another as we love ourselves. That is all we are required to do but we are all failing in this department. Only this kind of love can heal the world. Lets all aspire to perfect our love tfor one another.
I am glad i found this site.
Thank you.
Tebogo, thanks for your post. It is thought provoking indeed.
I have been married for twenty years and we dont have children. Medical procedures done confirmed my spouse can not naturally fall pregnant and we have tried several expensive invitro procedures with no luck.Fertility investigations confirm that there is nothing wrong with me and hence i have stayed in this marriage with a lot of faith up untill recently when my inner feelings are craving for my own blood siblings.I would have considered adoption if i was not able to have siblings of my own and that is the exact reason i would want to marry another person to be able to have children.I am not doing it out of fun but out of need as the time is ticking and i would not like to regret in future that i could have done something to fufill my happiness.I think it is unfair to pretend that i have a happy marriage when day in day out you have sleepless nights due to what you know you can have but can not have because of ethical and moral considerations.In the end one ends up pleasing the rest of the community without pleasing themselves.
Stephen says:
January 2, 2011 at 10:27 am
Hopefully you wont leave your wife to pursue your own needs/wants.
It is no fault of hers that she is unable to have children.
Forgive me but I think you have some soul searching to do……
And You Too says:
January 2, 2011 at 20:13 pm
Hey AYT,
Perhaps you ought to reconsider your advice.
Stephen’s confesses :
- “my inner feelings are craving for my own blood siblings”;
the dilemma being :
-”I am not doing it out of fun but out of need as the time is ticking and i would not like to regret in future that i could have done something to fufill my happiness”;
-”due to what you know you can have but can not have because of ethical and moral considerations” and
- “In the end one ends up pleasing the rest of the community without pleasing themselves”.
So there you have it.
But regarding fertility – I once knew a fellow who had an infertile mare, so he sent it to the abbatoir.
p.s My have a lemon tree that is 15 years old – it just won’t bear lemons. Should I cut the tree down?
@Maggs
You could always plant another tree if you want the lemons badly enough.
My opinion on polygamy is that it is wrong and as a woman I think its weakening to imagine that other women could live in such situations. It just doesnt make sense to me that a man could have as many wives as he desires and still “supposedly” be able to give them each equal attention. But my being completely against the practise of polygamy doesnt mean that I am ignorant to situations were taking another wife or husband because your current wife or husband cannot give you children. In that regard I mind my own business and try to understand… only because of the circumstances. Though personaly I would never want my husband to take another wife if I cannot give him children…rather live with it or please..leave me. In conclusion I am completely unwilling to even try and understand why a man or woman should have more wives/husbands, unless there are circumstances involved.
I have read the debate discussion extensively.
I note the views expressed, I would like to share my understanding of what culture is. It is what you choose to practice and will constantly change no matter how traditional you deem it to be.
When the President Stated that it was his culture I understood that being his own and not Nguni culture as some families have had this culture practiced traditionally.
My reason for considering it: I married wife number one we have a ten year girl – who decided to divorce due to my family pressure than us having a difference in opinion. With Customary Wife Two we have Girls 5 and 1,5.
Wife 1 comes back we discuss what went wrong, iron out that our divorce had nothing to do with us but the situation she was experiencing.
Now having forgiven her I want them all which is how i ended up reading all about it. I love them both to legally marry them.
Spanner in the work: there is no customary divorce unless the wife’s return the lobolla forwarded to them, and the Husband may not claim this back either. The joining ritual has no reversal.
Hi there,
I just have a question regarding the finances of polygamy. In 1993 a South African lawyer suggested that “the traditional custom of polygamy should not be forcibly or legally abolished. However, there should be an adoption of the law that in marriage, the wife becomes entitled to 50 percent of the property of the couple. If the man married again, he can share only his 50percent with his new wife, and so on” (Yuval Davis, Gender & Nation).
Was this enacted?
Thanks.
Polygamy is real & here to stay, it should be legal for all. I’m a yong black women who is for it 100%,watch this space it is about to take over the world……
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