Wives’ rights to be restored in amended act
CLAUSES in the constitution that deny wives who entered polygamous customary marriages before 1998 property rights are set to be expunged.
The Justice Department has invited public comments on the proposed amendments to the Recognition of Customary Marriages Act.
The act was passed in 1998 by then president Nelson Mandela, only to be declared invalid and unconstitutional by the Constitutional Court in November last year.
In its groundbreaking ruling, the Constitutional Court gave Parliament 24 months to correct the “patriarchal” and discriminatory clauses in the legislation.
Matodzi Ramuhashi and Thinamaano Netshituka, two grown children of the late Masewa Joseph Netshituka, from Venda, who married their mothers in customary marriages before 1998, challenged the legislation in court.
Their father’s major asset was the land in which the Why Not Shopping Centre is built. He had four wives, but entered into a civil union with only one of them.
He left control of immovable property this to Munyadziwa Joyce Netshituka, a wife he married in community of property.
In the ruling, Justice Mbuyiseli Madlanga questioned if traditional marriage practices in the country treated women justly when it came to property rights.
“Unsurprisingly, the parties (in this case) are agreed that Venda customary law – this being the law at issue here – vests no rights of ownership or control over marital property in wives,” Justice Madlanga wrote.
“The question then is: Does that customary law rule comport with our constitution and the values it espouses?”
The Justice Department said it was repealing the legislation because it “is inconsistent with the constitution and invalid in that it discriminates unfairly against women in polygamous customary marriages entered into before the commencement of the pre-act marriages, on the basis of gender, race and ethnic or social origin”.
This was the declaration of the Constitutional Court in November. In addition to terming the legislation as discriminatory, it also lambasted it for being patriarchal.
“The discrimination at issue here is so odious” that the act cannot be left as it is, said Justice Madlanga in the judgment.
“Wives in pre-act polygamous customary marriages would continue being subjected to the indignity and repugnant unfair discrimination of being unable to own and control marital property, and being at the mercy of their husbands,” he said.
In its public comment invitation, the department said the amendment process would see the court’s declaration suspended for two years.
“The declaration of constitutional invalidity is suspended for 24 months to afford Parliament an opportunity to correct the defect giving rise to the constitutional invalidity,” said the department.
The department gave the public until June 15 to make comments.
‘Discrimination at issue here is so odious that the act cannot be left as it is’