Johannesburg - Clauses in the country’s constitution that deny wives, who entered polygamous customary marriages before 1998 property rights, are set to be expunged.
The Justice Department has invited public comment on the proposed amendments to the Recognition of Customary Marriages Act passed in 1998 by then president Nelson Mandela, only to be declared invalid and unconstitutional by the Constitutional Court in November.
In its groundbreaking ruling, the Constitutional Court gave Parliament 24 months to correct the “patriarchal” and discriminatory clauses.
Matodzi Ramuhashi and Thinamaano Netshituka, two adult children of the late Masewa Joseph Netshituka of Venda who married their mothers in customary marriages before 1998, challenged the legislation.
They won against the state.
Their father’s major asset was the land on 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 this immovable property 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,” 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 finding the legislation 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 to afford Parliament an opportunity to correct the defect giving rise to the constitutional invalidity,” said the department.
The public has until June 15 to comment.