Ordinary South Africans, as well as our courts, seem to have a schizophrenic attitude towards marriage. On the one hand many people – as well as our courts – seem to revere the traditional institution of marriage. From a young age boys and girls are told that getting married would be one of the ultimate milestones in their lives and when the day finally arrives (for some) their families often spend vast amounts of money on wedding dresses, catering and the other bells and whistles that would hopefully make the day a memorable, if rather an expensive, one.
Many fundamentalists Christians argue that marriage between one man and one woman to the exclusion of all others for life (or at least for as long as it lasts – ask Ray McCauley) is something sacred and God-given and rail against the Constitutional Court and Parliament for extended marriage to same-sex couples.
Despite the fact that section 9(3) of the Constitution states that no one may be unfairly discriminated against on the basis of marital status, our courts have also endorsed marriage as one of the prime organising features of our society (thus indirectly endorsing discrimination against couples who have not tied the knot). As Justice Albie Sachs wrote in his judgment in Minister of Home Affairs v Fourie dealing with discrimination experienced by same-sex couples excluded from the right to marry:
It should be noted that the intangible damage to same-sex couples is as severe as the material deprivation. To begin with, they are not entitled to celebrate their commitment to each other in a joyous public event recognised by the law. They are obliged to live in a state of legal blankness in which their unions remain unmarked by the showering of presents and the commemoration of anniversaries so celebrated in our culture. It may be that, as the literature suggests, many same-sex couples would abjure mimicking or subordinating themselves to heterosexual norms. Others might wish to avoid what they consider the routinisation and commercialisation of their most intimate and personal relationships, and accordingly not seek marriage or its equivalence. Yet what is in issue is not the decision to be taken, but the choice that is available. If heterosexual couples have the option of deciding whether to marry or not, so should same-sex couples have the choice as whether to seek to achieve a status and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. It follows that, given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way.
On the other hand, statistics show that more and more South Africans enter emotional and sexual relationships and live together without getting married or without planning to get married. The “choice” not to get married is often dictated by the skewed power relations between the parties in a relationship. Often men decline to marry their partner because they do not want to encumber themselves with future financial and other obligations, leaving the women in their lives vulnerable and – at the dissolution of the relationship – potentially in dire straits.
Parliament has adopted legislation that recognises polygamous customary marriages and attempts to regulate such marriages and protect the vulnerable partners in such unions – usually the wives – from the harsh consequences that might flow when such unions come to an end. Many other pieces of legislation have also extended legal rights usually associated with marriage to permanent life partners who are not married.
Section 7 of the Recognition of Customary Marriages Act emphasises the fact that all spouses in a customary marriage have equal status and capacity. This section is aimed at protecting both the existing spouse or spouses and the new spouses in a custmoray polygamous union by requiring that the husband must obtain the court’s consent to enter any further customary marriages. The court must also approve the proprietary arrangements of the polygamous marriage to protect all the spouses. Recently the North Gauteng High Court found in the case of Mayelane v Ngwenyama and Another that a failure to register such a polygamous marriage and obtain the court’s consent would make the subsequent polygamous marriage invalid in the eyes of the law.
After details of this judgment became known, newspaper reports speculated on whether President Jacob Zuma had complied with the mandatory provisions of section 7 of the Act. If he had not, the protections afforded by the Recognition of Customary Marriages Act to his subsequent polygamous marriage partners would not apply. President Zuma or any of his spokespeople have not yet commented on these speculations so its impossible to know whether he is complying with the law and whether his other wives are protected by the law or not.
Incidentally, it is rather peculiar that fundamentalist Christians who attacked the passing of the Civil Union Act because it extends full marriage rights to same-sex couples and is seen as a frontal attack on the traditional (Western) definition of marriage as being between one man and one woman, do not object to the provisions of the Recognition of Customary Marriages Act which extend the definition of marriage to include a union between one man and more than one woman. Maybe black people living under customary law are invisible to them and therefore do not count? Or is it just that American fundamentalist Christian groups who inspire and fund our own home grown activists are unfamiliar with these laws?
A report in City Press on Sunday that Gloria Bongi Ngema, President Jacob Zuma’s fiancée, accompanied him on the state visit to China, neatly illustrates the schizophrenic attitude many South Africans have towards marriage. It also casts doubt on the ability of the Recognition of Customary Marriages Act to protect subsequent spouses in a customary marriage and may pose questions about our President’s commitment to gender equality. But that is a topic for another day.
The presidency explained that full payment of lobola and the traditional ceremonies that accompany the payment had been made and that Ngema was thus viewed as his “fiancée and life partner”. She was thus entitled to the same privileges as Zuma’s other wives – Sizakele Khumalo, Thobeka Mabija and Nompumelelo Ntuli – as the government’s spousal policy now gave her the same status as his life partner and fiancée.
Although the legal requirements of section 7 of the Recognition of Customary Marriages Act had therefore not been complied with, Ms Ngema nevertheless had an official status as life partner of the President. If we leave aside for the moment that the law does not yet protect Ms Ngema and that there might therefore be serious problems with the ability of the law to protect vulnerable spouses in polygamous unions (just as there are serious problems with the law protecting vulnerable partners in non-marital life unions), one must concede that the official policy of the Executive regarding life partners is rather progressive.
Unlike the judges of the Constitutional Court (and – when it suits them – Christian fundamentalists) who have often claimed a special place and status for couples who have formally tied the knot, this policy recognises that practically many permanent relationships fulfil the role of what our law recognises (rather narrowly and unrealistically) as legal marriage.
It suggests that maybe it is time to rethink the way in which our law privileges those intimate relationships which have been formalised in law above other, just as worthy and important, relationships which have not been formalised by marriage – either in terms of the Marriage Act, the Civil Union Act or the Recognition of Customary Marriages Act.
Is it not time that we find a way to bring the law in line with the lived reality of millions of South Africans who are in permanent life partnerships but who are, for various reasons, not legally married? Should Parliament not urgently adopt legislation that extends the rights and privileges as well as duties associated with marriage to permanent life partners and do away with the anachronistic legal rules that punish some couples who do not have a piece of paper called a marriage license while rewarding and protecting others who do?
Should marriage not really be a private affair of little concern to the state, to be entered into at churches, mosques, synagogues, on wine estates or at other venues of choice, but without any legal significance? Should the law not, in a functional manner, recognise and regulate important intimate relationships with one or more life partners in order to protect the more vulnerable partner or partners – regardless of whether they had entered into a valid marriage or not? In this, our President seems to be leading the way. Should we not applaud him, rather than complain that he has taken his girlfriend on an official trip to China?
The individual and family will always be a unit of society and any proud nation should decide what kind of society they want to have in the future.
Pierre
Just a question, being the practical person that I am.
How would you define a “permanant relationship”, “permanant life partners” and if I an quote you an “important inimate relationship”.
Would one not have to be able to define these relationships to know which relationships will qualify and which not?
Looking at the purpose of marriage from the point of view of Ethics:
http://www.justiceharvard.org/index.php?option=com_content&view=article&id=49&Itemid=20
Haha! … after reading your header, Pierre, I was expecting an article analysing our economic courtship with a large country in the orient.
On state-regulated sex-based partnerships: I believe its time society grew up and disposed of the need for extra-special, state-defined contracts for relationships based on sex. Those who choose to dress in white, throw confetti and cash to the winds, sign personalised vows, can surely do so without the state dictating their contractual obligations.
If two or more adults decide to share property, then draft contracts to define their property partnership. If they decide to share investment and income, then draw up contracts to protect their rights as individuals within that arrangement.
Why do we need any separate definition of ‘marital’ contracts? Society has outgrown the primitive concept of marriage, when ’till death do us part’ was feasible with lifespans of 30-40 years.
The contracts that DO need special legal definition and state protection are the contracts between children and their parents. Separate the needs of children from adults who are simply choosing sexual partners.
“Should marriage not really be a private affair of little concern to the state, to be entered into at churches, mosques, synagogues, on wine estates or at other venues of choice, but without any legal significance?”
That is certainly something to think about. The parties can enter into a contract to rule aspects like obligations of the parties, should they want to attach legal significance to their marriage. For how many years have Muslims married in Mosques, with no moral decline, despite their “marriages” not being recognised by the State.
If you dont plan your demographics somebody will.
http://www.timeslive.co.za/africa/article631492.ece/Gaddafi-seeks-EU-cash-to-prevent-black-Europe
So, what you are saying is that the law should provide that parties who have been living together ostensibly as husband and wife that their relationship has certain legal consequences regardless of whether they are married? I foresee some interesting issues.
For instance – how long would they have to be together for it to apply? Could they contract out of it? Would people be inclined to break up just before the 6 month period or whatever it is, to avoid legal consequences?
http://spectator.org/archives/2010/08/23/why-young-black-males-are-not
At some point, we will have to come to grips with the fact that a very large percentage of our students fail because they lack a father and mother who value, encourage, support, and reinforced their efforts to learn. Common sense tells us that there is no surer recipe for the child to lag behind in learning than having to contend with the strain and disruption of a broken, dysfunctional family, where the parent or parents are so focused on themselves and their needs that they have little emotional energy to spare for the child’s needs. Before we can address the problems of public education, we have to address the problems of marriage and family. Only then can we begin the massive overhaul of cultural values that will be necessary to close the educational gaps in America.
I’m going to disagree with Belle’s frightfully shallow claim that society has outgrown the primitive conception of marriage – and by primitive, it’s pretty clear she means the notion of partnerships which terminate, in terms of the pact entered into by the parties, upon the death of one of them. Rather, a think a moderately arguable view is that fewer and fewer members of our society are grown up enough for marriage. And here, in fairly broad strokes, is why I say so: fewer and fewer people in our age of fleeting satisfactions and tawdriness are sincerely interested in the traits that people who dedicate themselves to sustaining healthy marriages can develop thereby. Some of those famously worthy traits are tolerance, moderation, perseverance and, perhaps most rarely amongst the abovementioned family of virtues, the ability to see beyond the skin-deep conception of beauty.
So while I’ll freely concede – as any reasonably right-minded person would have to – that marriage in life-long sense which incurred Belle’s misguided scorn is not for everyone, I would like to say that perhaps the wisest course is to consider both the drawbacks and benefits thereof before levelling sweeping criticisms against an institution which has much to offer people who have the strength for it.
I think “putative” should probably be the operative word. If you are seen to be a couple by the community then all the obligations should flow from that particular construct. In the absence of a contract you are in community of property.
Dear Pierre
I am in Namibia and don’t always get the time to read your stuff. I am not commenting on this particular article, but more general. I like your stuff – its to the point, humane, dignified and humorous.
Keep it up and may sanity prevail in South Africa.
Marriage in its true form, offers no harm but benefits to society and can only be defended and promoted. All those(few individulas) who cast doubt on this institution for personal interests are mischevous. We must not take extremes and make them norms for the sake of arguments.
Its certainly a worry that visits me on occasion. I thought that I had married, and divorced a number of times, although one wife is deceased, three times for those still alive without divorce. When I looked at SA residency and had to prove these occurrences to Home Affairs, low and behold, the Cdn authorities (true, believe it or not) had no record of any marriages or divorces, or even a death certificate for the dearly departed; its actually put off my residency for nearly a decade now.
Regardless, I married a South African 10 years ago, and we are married in every respect. However, her main interest was in women which I felt mature enough to accept and promptly found another SAfrican woman myself, while maintaining the marriage, who adored me and has now been living with me for nine years. With all of these others, they visit and we still love each other truly, but according to Canada they are not legal wives; still we all consider ourselves married and consort accordingly, and in peace and ease. Obviously a miracle.
Your post Prof has raised certain concerns. How do I insure equal beneficiary benefits to these women, and children, should the thinkable happen, my deceasement that is, (is that a correct word?). Your earlier blog article on testaments also concerned me.
Maintaining various women you love in your life is not easy, and I promise you, it wasn’t my intent, just life as I have found it. I’ve promised my lawyer I will see him soon, and we pass each other every school morning as we deliver children to the local model ‘C’ hoerskool, as a daily reminder that I must get into his office. Thought you might like a personal experience, thus I have spoken freely.
I’m not complaining. There are more marriage varieties on Earth than meets the eye, or those who are dogmatic.
PS: and what are not all schools in SA, ‘Model C’ schools?’.
‘What’ is meant to be ‘Why?’ Apologies.
As with everything else (eg. health care, education), once the state gets its grubby little paws on the institution of marriage, it transmutes gold into dross. Exactly what the state is doing in the marriage “business” is unclear. This is especially the case now, when marriage in whatever shape or form has been so debased as to be meaningless. For example, “life partners” have been accorded the same rights as married couples when comes to inheritance. What, exactly, is a “life partner” as opposed to a spouse? At what stage is a relationship considered to be sufficiently “long term” for a partner to qualify? The state should just butt out of people’s lives. If someone draws up a legal document to cover the disbursement of assets at divorce (or “splitting up”) or death, and these wishes are not enforced, only then is it appropriate to turn to the courts for redress. Otherwise there is no reason for the state to regulate one’s personal life.
A few other points:
1. “Maybe black people living under customary law are invisible to them and therefore do not count? Or is it just that American fundamentalist Christian groups who inspire and fund our own home grown activists are unfamiliar with these laws?”
Good observation, and probably true. However, it could also be a case of “the lesser of two evils”. Customary marriages are at least contracted between people of the different sexes, whereas “gay weddings” are a biological aberration.
2. Constant references to “fundamentalist Christians” may lull you and/or your uninformed readers into believing that only some fringe groups are against gay marriage. As research shows, no mainstream Christian groups support gay marriage, only fringe liberal groups. Of course, whether or not Christians who oppose gay marriage see it as correct/worthwhile to oppose this trend politically is a matter of dispute.
Here’s an example. Our local hoerskool for the past 13 or 14 years has had a 100% matric pass rate, this past year being the exception with 3 matric failures. This is a hoerskool with approximately 1,500 students and 80% colored and black students.
The feeling is the skool may never maintain the 100% pass rate again, however, it is obviously a superior teaching institution, and not a private skool.
We should insist that government have no less an intent than 90% matriculant pass rate, and its obvious how to achieve that, quality teaching and no acceptance of teaching groupings for failing this bench mark.
I can’t help but wonder who is picking up the maintenance tab on this growing harem of Presidential spouses? Perhaps we need legislation to start protecting the fiscus :p
Pierre,
You forgot to mention Sonono Khoza. Remember that it was reported that she was married to the father of her child, Jacob Gedleyihlekisa Zuma, by customary law.
Prof can you let me know what you think about this:
Portraits irk some in Cape courts
Sep 1, 2010 9:36 AM | By Sapa
According to an article on the Cape Times website the four photographs were put up some time last year, making the Cape High Court the only one in the country to display politicians’ pictures.
In April, the Cape Bar Council resolved that the photos be taken down, but they are still hanging.
Judges and legal practitioners are divided over the matter, with some saying it violates the separation of powers as established by the constitution.
Advocate Paul Hoffman, the director of the Institute for Accountability in Southern Africa, said the portraits violated section 165, sub-sections three and four of the constitution.
“How else are you going to ensure the independence of the judiciary? Never in history, not even during apartheid, were portraits of the president hung in a court of law. Why should we start now?” he asked.
Cape Judge President John Hlophe said they were put up while he was on long leave.
Sorry missed first paragraph:
Portraits irk some in Cape courts
Sep 1, 2010 9:36 AM | By Sapa
Portraits of President Jacob Zuma, Deputy President Kgalema Motlanthe, Justice Minister Jeff Radebe and Deputy Justice Minister Andries Nel displayed in the foyer of the Western Cape High Court are upsetting the legal fraternity.
Civil Society at its Best!
Right to Know Campaign
Stop the Secrecy Bill!
http://www.right2know.org.za/
Thomas
I think it is offensive to put up portraits of politicians or monarchs anywhere, especially in the courts.
The coat of arms and national flags on state property – nothing more.
Polticians must reminded they are common people and have no special value above the ordinary folk.
Next up is the Big Man Syndrome.
Anyway
How does customary marriage and the various off-spring relate to intestate succession?
Why would Gay people wish to get ‘Married’ with all it’s complications?
Why not draw up a contract which imposes the legal necesseties and call it a “Merriage”
That way even straight people can say ‘To hell with the old style Marriage’ I wish to ‘Merry’ my partner, what bliss?
And we can call polygamous unions a ‘Mirage’ because in most instances the husband is nowhere to be seen.
And Counting
The taxpayer
JZ’s family bill (over his salary and perks) is R15million per annum.
Another ANC dirty trick to blur the distinction between party and state.
“Who do I thank for this ID, which I collected today? Why, JZ, of course!”
Please join me in giving that Rogue’s Gallery the finger whenever you go into a state property.
Could someone please enlighten me – who is going to look after the interests of the non-/lesser-earning spouse and children in a long term relationship that is not regulated in law? Almost always one spouse takes on the larger share of domestic duties and childcare which restricts that spouse’s earning potential. I use spouse for want a a better term to describe a person in a long-term relationship (which as others have pointed out, also requires some definition).
I’m all for the State butting out of people’s private lives, but one cannot assume that all spouses are equally empowered to negotiate a fair deal for themselves. Even the “previously advantaged” reasonably educated middle-aged white conventionally married woman (PHEW!), who has been a homemaker for 30+years, without her own income, is really powerless economically. She cannot leave her husband, or get a divorce, unless he is willing to provide for her when she goes. How much more dis-empowered would many of today’s legally unprotected spouses be?
@ Brett 20.29pm : 2 1/2 years ago in the local Home Affairs office, I was sorely tempted to tear from the wall the portraits of the Prez, Minister, Dep. Min and DG and toss them in the trash. These portraits were carefully arranged by descending size.
Considering that my friend and I had spent 20 minutes in the queue to establish which queue she needed to be in to collect her passport (supposing it was ready), then 45 minutes in the wrong queue because of the hopeless signposting, and after 20 minutes in the correct queue we were receiving the message that the computer was offline and that unless you had the correct reference details with you no one could help you, my restraint was remarkable!
The passports and ID documents were “filed’ in bulk by the date received from Head Office, and once the official established which was the correct date, he searched through that batch to see if your document could be found! Fortunately my friend was able to establish by SMS the details she needed to get her passport, which was ready!
Not so fortunate was a young lady who needed her ID in order to take up her first job the following day. No one could tell if, or when, they would be able to help her, it all depended the computer system coming back on line sometime. That poor young woman was eventually escorted from the building by security staff after she became nearly hysterical and expressed some very unladylike opinions.
And there smiling down on us from the wall were the incompetents who couldn’t even organize a filing system which would function if the power was off!
Women wearing trousers will not be allowed entry into Zulu King Goodwill Zwelithini’s palace during the reed dance, the KwaZulu-Natal department of arts and culture said today.
They will not be allowed in. They will use their discretion as to whether to change and wear skirts. We recommend they put something on like a kanga,” said Vukani Mbhele, the spokesperson for arts and culture MEC Weziwe Thusi.
http://www.citypress.co.za/SouthAfrica/News/No-entry-for-trouser-wearing-women-at-reed-dance-20100906
http://www.sowetanlive.co.za/goodlife/2010/09/20/successful-women-do-not-value-marriage
With a huge number of foreigners in our country and exploited child support grant, we might need this law.
http://www.sowetanlive.co.za/news/world/2011/03/16/old-broke-and-a-foreigner-you-can-t-get-married
love is devine