Oct 18, 2021

Mawazo Writing Africa

Writing about the main

‘South Africans have been talking’, but courts will have the final say on marriage laws, says Aaron Motsoaledi

Principal wives in royal families must be recognised under South African law.

This is according to some stakeholders, commenting on proposed new marriage legislation. They say that the laws must recognise customary marriages practised in some African communities, including in royal families — and this will include recognition of principal wives.

Other stakeholders are pushing for the introduction of an inclusive customary and religious marriage legal framework for all polygamous marriages, including in Muslim, Hindu, Shembe and Khoisan communities.

This is according to home affairs minister Aaron Motsoaledi, who was speaking on Monday during a national colloquium on the country’s marriage policy. The sentiments come as the country explores legislative and policy initiatives which will soon be taken to parliament for processing and potential enactment into law.

Motsoaledi said his department conducted ministerial dialogues in 2019 and took the feedback to the cabinet — only for it to suggest that the department embark on a national dialogue in the form of a Green Paper.

“When we presented to cabinet the report of the ministerial dialogues, it said this was a very weighty matter that would change life and things as they are done in SA in terms of building families. Cabinet wanted South Africans to talk, and South Africans have been talking.

“The Green Paper has sparked a lot of public debate, causing most of us to confront our long-standing beliefs, sometimes in an uncomfortable manner. It is for the first time since the dawn of democracy that the nation is having a conversation on the key elements of an inclusive marriage regime,” he said.

Motsoaledi, however, said parts of the debate had disproportionately focused on single issues — something he said was not necessary. This was particularly the case with the controversial polygamy and polyandry part of the debate. Motsoaledi emphasised that neither suggestion had been part of the government’s proposals.

“While some stakeholders believed in the practice of polygamy, there were also those who opposed it. This equally applies to the practice of polyandry. Ironically, stakeholders who believed in polygamy were opposed to polyandry,” he said.

Meanwhile, some stakeholders pointed to discrepancies which continued to exist, including customary marriage laws.

“We won’t be exaggerating when we say that this is a watershed moment for the country because it has unveiled a lot of discrepancies presented by the current marriage legislation, which is not informed by an overarching policy based on constitutional provisions.

“The current legislation is a combination of colonial and apartheid era policies and a new law that was introduced post-1994 to redress historical injustices,” he said.

The minister pointed out several flaws in the current legislation. These include the Marriage Act 25 of 1961 as well as the Recognition of Customary Marriages Act 120 of 1998 — which he said was discriminatory.

“Despite the efforts of the state to redress the injustices of the past, all of the current acts still discriminate against some members of society and when challenged in courts, have been found wanting.”

These laws and others have led to unintended consequences, including fraudulent and marriages of convenience, he said.

“So, the proposed marriage policy aims to eradicate all forms of discrimination, uphold the constitutional obligations in pursuit of equality in various communities that have been sidelined or prejudiced, and stop the abuse of the marriage regime for nefarious reasons.”

The policy needed to enable other religious, cultural and social groups to solemnise marriages that are in accordance with their beliefs and values, according to some stakeholders.

The department’s deputy director-general, Thulani Mavuso, said more than 426 public written submission on the Green Paper were submitted by Sunday. Several more were expected to come through, according to Motsoaledi.

While stakeholders would not reach consensus on the policies, some cautioned the minister that there would be chaos if certain policies were not approved in the White Paper.

Responding to this, Motsoaledi said he had limited powers.

“You seem to be pushing things to me as if I have all the powers in the world, and I really wish I had the powers which you are giving to me … I want to remind participants that we are a constitutional democracy; the executive and even parliament do not have the last word. The last word is with the courts, that means anything that we differ on must be adjudicated by the courts,” he said.

The minister said his department would process all proposals and consolidate them in the official policy proposal of the government — the White Paper. This would be in line with the constitution and the country’s Vision 2030 outlined in the National Development Plan.

“Your commitment and dedication to this cause underscores our belief that it is beyond any dispute that this country needs a modern marriage policy. As you know, no legislation is cast in stone. After putting it into operation, we are going to discover things which we should have done differently,” he added.