Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
3 February 2010

Did the President lie about his “wives”?

Did President Jacob Zuma lie about his marital status in an official government document, or did he lie to the nation about the number of wives he is married to? And what is the legal status of President Zuma’s various formal and less formal liaisons with women who happens to be his sexual partners?

The Times reports this morning that a document purporting to be a copy of the application for a birth certificate for the latest Zuma baby has the answer “yes” in reply to the question: “Are the parents of the child married to each other.” The document is date stamped January 19 – two weeks after Zuma married Tobeka Madiba, who he then claimed to be his fifth wife.

At first blush it would appear that if The Times story is correct, Zuma either lied when he completed and signed the application for the birth certificate or that he lied when he stated that Tobeka Madiba was his third consecutive wife. It might of course be that some dark forces out to destroy Zuma fabricated the application for the birth certificate and forged Zuma’s signature on it. Stranger things have happened in this country. But this would only be the case if those forces are rather close to Zuma because the application contains the personal phone numbers of both Zuma and the mother of his child as this information was provided on the application.

However, there is also another manner in which to explain away the apparent lie. It might also be that Zuma had married the mother of his most recent child (as far as we know) in a private ceremony in terms of traditional Zulu custom but had not registered the marriage as required by the Recognition of Customary Marriages Act.

Mr Zuma would then be married in terms of Zulu custom, but not in terms of the law as set out by the Recognition of Customary Marriages Act. This would mean that he would be able to claim that, strictly speaking, he did not lie because he was legally married to only three women but married in terms of Zulu custom to four women. This would allow Zuma to claim that both the statements during his most recent wedding and the statements on the birth certificate application were true.

This last defence would be a good one as far as semantic gymnastics are concerned, but it would place a serious question mark over Mr Zuma’s assurances at Davos last week that he believed in the equality of women. It would also place a serious question mark over his respect for the law. This is because a spouse who enters into a customary marriage has a legal duty in terms of the Act to register that marriage within a period of three months.

More pertinently, where the husband is already married to one or more other wives, the Act places a duty on him to make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages.  The existing wives and prospective wife must be joined in such an application and they can make any input to the court. The court can then amend the contract in such a way that it would ensure an equitable distribution of the property between the spouses.

If the President (or anyone else, for that matter) entered into a customary marriage it would be extremely important for them to register the customary union and to make the necessary application to court to ensure that a contract providing for an equitable distribution of property is approved by the court. Failure to fulfil these legal obligations would fundamentally undermine the legal position of one or more of the wives and would display an utter lack of respect for women’s equality and would potentially subject one or more of the wives to humiliation and deprive them of their dignity.

As the Constitutional Court stated recently in the Gumede judgement, before the advent of the new Act  there was “a stubborn persistence of patriarchy and conversely, [this resulted in] the vulnerability of many women during and upon termination of a customary marriage”. The Act represents:

a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African people of this country… The legislation … seeks to jettison gendered inequality within marriage and the marital power of the husband by providing for the equal status and capacity of spouses….

The legislation not only confers formal recognition on the marriages but also entrenches the equal status and capacity of spouses and sets itself the task of regulating the proprietary consequences of these marriages. In doing so, the Recognition Act abolishes the marital power of the husband over the wife and pronounces them to have equal dignity and capacity in the marriage enterprise.

In order to establish whether President Zuma is a sexist patriarch or whether he really respects gender equality, it would be helpful if he told the nation whether he had indeed registered all his customary marriages as required by the Act and whether he has made an application to court to ensure an equitable distribution of property between the spouses. Obviously if he has not adhered to the law he would not only be showing a complete contempt for the law but also an inherent contempt for women.

On the other hand, if the President provided evidence of the fact that he had registered all his customary marriages and that he had been granted an order by the court confirming a fair arrangement regarding the distribution of property between the spouses, he would probably gain some new respect and his assurances at Davos about his support for gender equality might carry a little more weight.

As matters stand now, responsible citizens have far too little information to make informed decisions about the conduct of the President and what it says about his character (or lack of character). This is not our fault, but rather the fault of the President and his advisors who insist that this is a private matter.

Although the Presidency is now trying to avoid accountability by changing the subject to one of his alleged right to privacy, this is not a private matter – no matter what the Presidency and the ANC claims. If the President does not provide us with the necessary information people will jump to conclusions – whether those conclusions are correct or not – and the image and standing of our President will suffer as a result.

2015 Constitutionally Speaking | website created by Idea in a Forest