In South Africa, a victory for women in and beyond customary marriages

On Wednesday, in the Durban High Court, in South Africa, women in customary marriage won a major victory. Although their names are known, we’ll call the woman SN and the man BM. In 2012, SN and BM were married at Nkandla, Kwa-Zulu Natal, by the Induna of the Cunu Traditional Council. The two were married in accordance with Zulu customary law. SN was 25 at the time of the wedding. The marriage was not registered with the Department of Home Affairs.

The following year, BM took a second wife in another customary ceremony. At the time, SN was “heavily pregnant with their third child.” According to SN, she was forced to attend the ceremony, but never agreed to the second marriage: “I was terribly unhappy with the unfolding events, but felt powerless to do anything about it. I resigned myself to being the first wife, even though I had not given my permission for the marriage.” That was 2013.

Soon after, SN discovered, via social media, that BM had married a third wife, this time in a civil ceremony, and that was the last straw. She sued to nullify both of the later marriages. On Wednesday, the High Court did just that and also ordered that SN be entitled to register her customary marriage.

The Mercury, which has followed this case throughout, called yesterday’s decision a blow to patriarchy: “Our choice of the story, then and now, was … to highlight an ongoing gender injustice that many other women probably suffer in silence and endure in the name of culture and tradition.” They argued that this case is “a matter of human rights and striking a blow against patriarchy and male privilege.”

In 1998, the South African Parliament passed the Recognition of Customary Marriages Act, or RCMA. While many, and especially those organizing for recognition of same-sex customary marriages, have seen too much vagueness in the description of “customary”, the law has been used to protect the rights and status of women in customary marriages. It set minimum age standards, and established formal structures of consent. Much of the early impetus for the law came in response to the non-recognition of customary marriages in the prior apartheid regimes and in the earlier English and Dutch colonial regimes.

According to the Legal Resources Centre, who represented SN in court, the key provisions in this case are Sections 7(2) and 3(2). Section 7(2) of the RCMA states that “a customary marriage … in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses.” Further, Section 3(2) of the RCMA states that a civil marriage cannot co-exist simultaneously with a customary marriage unless the spouses are married to each other, exclusively. Finally, the Matrimonial Property Act of 1984 gives customary law wives equal stand­ing as civil law wives.

SN realized that her husband’s continual marrying in complete violation of both customary and civil law meant he was an unreliable economic partner and that she could be, and most probably would be, out in the cold without a rand to her name. She also realized that she has rights, as a woman in a customary marriage.

None of this is new. In 2005, the Constitutional Court found the customary law rule that women are unfit and incompetent to own and administer property to be unconstitutional and a violation of women’s rights to dignity and equality. In 2009, the same court found that non-recognition of women’s right to ownership, including access to and control of family property, upon dissolution of a customary marriage, was discriminatory and, again, a violation of women’s Constitutionally protected rights. Repeatedly, Courts have protected women’s rights to property. Community is community, and the Constitution is the Constitution.

SN’s victory is both concrete and aspirational. Concretely, she has secured full recognition – as a woman, citizen, human being. She has secured her material well being, as much as that can ever be secured. At the same time, in her own words, she has protected the rule of “custom, customary law and the law of the country.” Aspirationally, the Legal Resource Centre put it best, “The LRC welcomes the order and hopes that it may encourage women in similar situations to register their own customary marriages. This would give effect to the purpose of the RCMA and address the historic gendered inequality within customary marriages.”

Last year, women stopped the Traditional Courts Bill, and that was a victory for all women. Now women have organized to enforce the actual rule of law of the Recognition of Customary Marriages Act, a victory for all women. SN helped turn women’s silence into a women’s thunderclap, and now, patriarchy is falling, every day. #PatriarchyMustFall


(Image Credit: Wikimedia)