SIGNIFICANT AMENDMENTS TO THE RECOGNITION OF CUSTOMARY MARRIAGES ACT AFFECTING MATRIMONIAL PROPERTY RIGHTS

By Adv. Ria Rirhandu Matsala, Advocate of the High Court of South Africa and Member of the Cape Bar

There have been significant amendments to the Recognition of Customary Marriages Act 120 of 1998 (“the RCMA”) affecting matrimonial property rights. The amendments seek to give effect to the Constitutional Court judgments of Ramuhovhi and Others v President of the Republic of South Africa and Others (“Ramuhovhi”), [1] and Gumede v President of the Republic of South Africa and Others (“Gumede”).[2]

In Gumede, the issue before the Constitutional Court was that the RCMA provided that a customary marriage concluded after the commencement of the RCMA, being 15 November 2000, is automatically in community of property. The RCMA did not, however, provide for this property regime in respect of customary marriages concluded before the commencement of the RCMA (“pre-Act customary marriage”). Those marriages concluded before the commencement of the RCMA were subsequently governed by customary law. The effect of this was that a wife to a pre-Act customary marriage would not have any claim to the family property during or upon dissolution of the marriage.

The Constitutional Court found that sections 7(1) and (2) of the RCMA were discriminatory on the ground of gender as only women in a customary marriage were subject to the unequal proprietary consequences. Since no justification was found to exist, the discrimination was unfair. The Constitutional Court confirmed that section 7(1) of RCMA is inconsistent with the Constitution and invalid, to the extent that its provisions relate to monogamous customary marriages and found that the inclusion of the words “entered into after the commencement of this Act” in section 7(2) of the RCMA is inconsistent with the Constitution and invalid.

A decade later, the Constitutional Court in Ramuhovhi dealt with polygamous customary marriages entered into before the RCMA came into operation (“pre-Act polygamous customary marriages”). The Constitutional Court was called upon to determine whether the disparity between the marital property regimes in pre-Act polygamous customary marriages and in post-Act polygamous customary marriages was justified. 

In terms of section 7(6) of the RCMA, wives in post-Act polygamous customary marriages contract on an equal footing with the husband with regard to the future proprietary system that is to regulate the marriage. However, in terms of section 7(1) of the RCMA, the proprietary consequences of a pre-Act polygamous customary marriage are governed by customary law. Under customary law, the rights of ownership and control of marital property vest in the husband rendering wives in pre-Act polygamous marriages at the mercy of their husbands.

Madlanga J observed that: 

wives in pre-Act polygamous customary marriages… [were] 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. This, despite the avowed purpose of the [RCMA] which is, inter alia, to bring about equality between husbands and wives in customary marriages”.[3]

The Constitutional Court in Ramuhovhi held that the effect of section 7(1) is to perpetuate inequality between husbands and wives in the case of pre-Act polygamous customary marriages and consequently held that section 7(1) of the RCMA unjustifiably limited the right to dignity as well as the right not to be discriminated against unfairly. Section 7(1) of the RCMA was consequently declared constitutionally invalid. 

On 01 June 2021 the Recognition of Customary Marriages Amendment Act 1 of 2021 (“the RCMAA”) was promulgated to inter alia amend the RCMA to further regulate the proprietary consequences of customary marriages entered before the commencement of the RCMA. 

Section 7 of the RCMA has been amended by the RCMAA as follows:

(a) by the substitution for subsection (1) of the following subsection:

‘‘(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, [continue to be governed by customary laware that the spouses in such a marriage have joint and equal—

(i) ownership and other rights; and

(ii) rights of management and control, 

over marital property.

(b) The rights contemplated in paragraph (a) must be exercised—

(i) in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit

constituted by the house concerned; and 

(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.”[4]

Of particular significance, the words “continue to be governed by customary law” have been deleted from section 7(1) of the RCMA with the result that the proprietary consequences of a pre-Act polygamous customary marriage are no longer governed by customary law. Instead, as a result of the insertions to section 7(1) of the RCMA, spouses of a pre-Act polygamous customary marriage have joint and equal ownership, management, control and the exercise of other rights over the marital property. 

These developments are a significant breakthrough in addressing the unequal proprietary consequences that women in customary marriages were subject to; and in restoring the dignity of women in South Africa. The amendments to the RCMA are a reminder of the valuable words of Nelson Mandela at the opening of the first parliament in 1994: “freedom cannot be achieved unless women have been emancipated from all kinds of oppression”. 

By Adv. Ria Rirhandu Matsala, Advocate of the High Court of South Africa and Member of the Cape Bar


[1] Ramuhovhi and Others v President of the Republic of South Africa and Others (CCT194/16) [2017] ZACC 41; 2018 (2) BCLR 217 (CC); 2018 (2) SA 1 (CC) (30 November 2017).

[2] Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC) ; 2009 (3) SA 152 (CC) (8 December 2008).

[3] Ramuhovhi at paragraph [45].

[4] The words in bold type in square brackets indicate omissions from the RCMA and words underlined with a solid line indicate insertions in the RCMA. 

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