Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
4 January 2010

Is polygamy unconstitutional?

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.

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