The regulation of customary marriages in South Africa has come a long way, and continues to be on a path of continuous development. Indeed, societal norms and aspirations evolve with time, rendering the necessity for certain rules and principles to adapt to the changing needs of that particular society. In fact, in the landmark case of Gumede v President of the Republic of South Africa  ZACC 23 the Court stated that,
“Without a doubt, the chief purpose of the [Recognition Act] is to reform customary law in several important ways. The facial extent of the reform is apparent from the extended title of the Recognition Act. The legislation makes provision for recognition of customary marriages. Most importantly, it seeks to jettison gendered inequality within marriage and the marital power of the husband by providing for the equal status and capacity of spouses.”
Some adaptations (changes in the law) are to forestall circumstances of the future whereas some are to correct historical issues.
The Recognition of Customary Marriages Act 120 of 1998 [as amended] (RCMA) provided that the proprietary consequences of polygamous customary marriages that were entered into before the commencement of the RCMA, would continue to be governed by the customary law. The impact and import of this provision were not progressive, as it perpetuated the system that limited women’s capacity in matrimonial property affairs. Needless to say, this was against the ideals of the Constitution of the Republic of South Africa Act 108 of 1996, since it retrogressed what was aimed to be achieved by the abolition of the concept of the husband’s marital power by the Matrimonial Property Act 88 of 1984, let alone the Bill of Rights.
Recognition of Customary Marriages Act 120 of 1998:
7. (1) The proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law.
Under the customary law, historically, women were subjected to a concept known as the husband’s marital power. Basically, this means that husbands had superseding authority over the person and property of their wives. Women had limited capacity to enter into contracts and had to obtain the consent of their husbands to litigate.
Despite the abolition of the husband’s marital power concept as per the Matrimonial Property Act 88 of 1984 (MPA), the system could have persisted under section 7 (1) of the RCMA. Further, this is despite Section 7 being inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996 (constitution) to the extent that it denied women in polygamous customary marriages concluded before the commencement of the RCMA, equal protection pertaining to matrimonial proprietary rights as compared to men in general on one side and women in polygamous customary marriages after the commencement of the RCMA on the other. The case of Gumede v President of the Republic of South Africa  ZACC 23 had indeed dealt with the same issue, albeit regarding monogamous customary marriages entered into before the commencement of the Act.
Enter the Ramuhovhi case
The Constitutional Court (Concourt) in Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16)  ZACC 41 confirmed the judgment of the High Court (Limpopo) to the effect that section 7 (1) of the RCMA was unconstitutional as it worked against the attainment of matrimonial property rights for women in polygamous customary marriages entered into prior to the commencement of the RCMA.
In this case the applicants were the biological children of the deceased, Musenwa, who passed away in 2008. Musenwa had entered into customary marriages with Masindi, Diana and Tshinakaho. The children also submitted that Musenwa had entered into civil marriages with Mosele and Munyadziwa. Tshinakaho subsequently passed away in 2011 whilst Masindi passed away in 1995. It is not clear when Diana passed away but Mosele and Musenwa had divorced in 1984. In 2011, the Supreme Court of Appeal had declared the civil marriage between Musenwa and Munyadziwa null and void. However, Munyadziwa averred that she and Musenwa had later concluded a customary marriage.
The deceased left a Will in which he provided that Munyadziwa would be the Executrix and will benefit, together with Tshinakaho, Diana and all the children, his half share in his estate. The Will provided further that he is married in community of property to Munyadziwa. The main asset in the deceased estate was an immoveable property known as Why Not Shopping Centre, for which Munyadziwa was registered as an owner in undivided shares. The applicants therefore, sought to declare Munyadziwa’s half share ownership as invalid.
The Court found that the discrimination based on race, gender, marital status and equality is evident and thus the provision is unconstitutional in so far as it relates to matrimonial property affairs of polygamous customary marriages concluded before the commencement of the RCMA, is concerned. The Concourt held that the declaration of invalidity will be suspended for 24 months until the legislature makes the necessary amends.
The Amendment Act
The effect of the Ramuhovhi case above is that the legislature came up with an amendment act being the Recognition of Customary Marriages Amendment Act 1 of 2021, which commenced on 1 June 2021, which provides that,
‘‘(1) (a) The proprietary consequences of a customary marriage in which a person is a spouse in more than one customary marriage, and which was entered into before the commencement of this Act, are that the spouses in such a marriage have joint and equal—
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