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.
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?BACK TO TOP