As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP