Notes from a Foreign Field: The South African Constitutional Court’s Decision on Gender Equality and Customary Marriages

(This guest post, on a recent judgment of the Constitutional Court of South Africa, is authored by Tim Fish Hodgson. Tim works on socio-economic rights, is based in Johannesburg and is a former law clerk of Justice Zakeria Yacoob. He is cricket nerd, a law jock and identifies as a heretic. He tweets from @TimFish42. He writes in his personal capacity.)

On 30 November 2017, the Constitutional Court of South Africa handed down an important judgment in Ramuhovhi, which consolidates and expands its body jurisprudence on gender equality in customary marriages and in terms of the recognition of customary marriages.

Ms Munyadziwa Netshituka, a black woman from South Africa’s poor, largely rural, Limpopo province was married to Mr Musenwa Joseph Netshituka. Ms Netshituka was not, however, the only Ms Netshituka to whom Musenwa was married. During his lifetime he concluded both civil and customary marriages with Munyadizwa and customary marriages with three other women: Tshinakaho, Masindi and Diana. Polygamous marriages are permitted in terms of Venda custom.

Musenwa died in 2008 and a dispute arose about how his property should be divided. In Venda customary law, ownership and control of marital property is reserved solely for husbands. However, Mr Netshituka’s will clearly indicated that he believed that he and Munyadizwa were married in community of property and had a “joint estate”. Indeed Munyadizwa was the registered as half-owner of valuable immovable property upon which the Why Not Shopping Centre is located.

When litigation was initiated, Munyadizwa was Mr Netshituka’s only remaining spouse at customary law (Tshinakaho, Masindi and Diana were all deceased). Upon Mr Netshituka’s death two of his sons (those of Tshinakaho and Masindi respectively) sought to challenge Munyadizwa’s right to ownership of this property in particular, and (as indicated above) they based their claim on Vedna customary law. And, if they had succeeded in proving the application of Venda customary law, this argument would have prevailed, potentially leaving Munyadizwa in a treacherous financial position.

Customary law in South Africa’s constitutional democracy

However, in South Africa’s constitutional dispensation customary law cannot be read in isolation. Venda customary marriages, like all other customary marriages, are also protected in terms of the Recognition of Customary Marriages Act (The Act). This includes both monogamous and polygamous relationships.

The Act was passed by Parliament in 1998 to give effect to the South African Constitution, which specifically contemplates protection of “marriages concluded under any tradition, or a system of religious, personal or family law”. This Act is therefore of considerable importance. According to the Constitutional Court, it:

“represents a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of the indigenous African people of this country.”

Moreover, as with all other laws, traditions and practices in South Africa, the provisions of the Act must comply with the Bill of Right’s powerful protection of equality. The “achievement of equality” is a founding value of the Constitution, which also entrenches the right to “equal protection and benefit” of the law. It explicitly outlaws discrimination based on both “gender” and “sex”. Furthermore, when customary law is inconsistent with the Constitution, courts are required to “develop” it to ensure that it “promote[s] the spirit, purport and objects of the Bill of Rights”.

Women in Munyadziwa’s position have frequently needed to call on these constitutional provisions to ensure their own protection in terms of customary law. Without them, the Act itself is insufficient. It treats different marriages differently with serious consequences for women. Section 7(1) of the Act regulates such consequences of marriages concluded before the Act’s commencement (“old marriages”) while section 7(2) of Act governs those concluded after the Act’s commencement (“new marriages”).

 The basic and disastrous difference is that while “new marriages” are treated as marriages in community of property (where all property is shared equally between the spouses), the proprietary consequences of “old marriages” remain regulated by customary law. To return to the facts of this case, Mr Netshituka’s sons were therefore relying on the fact that the present case featured an “old marriage”, and therefore, Venda customary law (and not the “community of property” regime under Section 7(1)) would apply.

 The Constitutional Court and customary marriages

 The Constitution Court can (and should) be criticised from a feminist perspective. It has failed to identify, disregarded or ignored gender-specific arguments presented to it by women more often than it should have. It has also handed down some startlingly regressive judgments. Its infamous judgment(s) in Jordan, for example, unanimously refused to strike down legislation criminalising sex work saying: “dignity of prostitutes is diminished not by [the law] but by their engaging in commercial sex work”.

Nevertheless, overall, it has through its jurisprudence committed itself to the protection of formal and substantive equality for women. It has also, at times, been alert to systemic sexism in the form of patriarchy. It has described gendered patterns of behavior and gender-stereotypes as “a relic and a feature of the patriarchy which the Constitution so vehemently condemns”. Its broad position on gender equality has been no different in cases on African customary law.

In 2008, in Gumede, the Constitutional Court had already declared section 7(1) to be unconstitutional to the extent that it applied to monogamous “old marriages”. In coming to this conclusion, it reasoned that this provision is “self-evidently discriminatory” on the ground of gender. It was emphatic that the continued application of the provision in the context of Ms Gumede, an isiZulu women living in the KwaZulu-Natal province, negatively “affected wives in customary marriages” because they “are considered incapable or unfit to hold or manage property”. Women, the Court continued, are “expressly excluded from meaningful economic activity in the face of an active redefinition of gender roles in relation to income and property”.

The task in front of the court in Ramuhovhi, then, was simply to decide whether its reasoning in Ms Gumede’s case on monogamous “old marriage” could be extended to Munyadziwa’s case on polygamous old marriages. Quoting heavily from Gumede the Court confirmed that section 7(1) of the Act “perpetuate[s] inequality between husbands and wives” in old marriages. More specifically, it found that the provision clearly had the effect of violating Munyadziwa’s right to dignity and her right not to be discriminated against based on her gender and marital status. As a result, the challenge to Munyadizwa’s right to own, inherit and control marital property thus failed.

In its judgment, the Court also considered whether s 7(1) could be saved by s 7(4) of the Act. Section 7(4) permits couples to “jointly” approach a court to change the matrimonial property system applicable to “their marriage or marriages”. The Court’s response speaks to a strong understanding of unequal power relations between men and women in South African society. Describing s 7(4) as “cold comfort, if not pie-in-sky” for most women the court reasoned:

“The fact of not owning or having control over marital property renders wives in pre-Act polygamous marriages particularly vulnerable and at the mercy of husbands. They cannot be in an equal-bargaining footing for purposes of reaching agreement to make an approach to court in terms of section 7(4). In fact, some may even be cowed not to raise the issue at all.”

To cap off this reasoning the court added that it “it does not require rocket science” to know that most women “may not even be aware of the existence of the provisions of section 7(4)”. This observation is undoubtedly correct. A mere 46% of South Africans have ever heard of the existence of either the Constitution or the Bill of Rights, while a depressing 10% of people had ever read the Constitution or had it read to them. If people do not know their fundamental constitutional rights it takes legal fiction of science-fiction like proportions to imagine these same people will know complicated, hidden provisions of laws on the statute books.

Customary law and colonialism

 It is worth noting that the Constitutional Court has been particularly careful to respect customary law and to acknowledge the genesis of its patriarchal problems in its judgments. These problems have their origins both in patriarchal African cultures and their “formalisation and fossilisation” but Dutch and British colonial powers and the apartheid government. Therefore, though the court does not deny that patriarchy “has always been a feature of indigenous society” in Bhe it observed that:

“At a time when the patriarchal features of Roman-Dutch law were progressively being removed by legislation, customary law was robbed of its inherent capacity to evolve in keeping with the changing life of the people it served, particularly of women. Thus customary law as administered failed to respond creatively to new kinds of economic activity by women, different forms of property and household arrangements for women and men, and changing values concerning gender roles in society. The outcome has been formalisation and fossilisation of a system which by its nature should function in an active and dynamic manner.”

The result was the development “a particularly crude and gendered form of inequality, which left women and children singularly marginalised and vulnerable” in African customary law which was “recorded and enforced by those who neither practised it nor were bound by it”. These people were white settler colonialists.

The Constitutional Court’s approach to these cases has therefore been to prefer to acknowledge the organic development of “living customary law” – which is developing in a diverse and dynamic manner constantly – instead of repeating the colonial approach of strictly imposing rules from the judges’ lofty positions.

The Court’s understanding of patriarchal power imbalances, combined with its recognition that “those who were bound by customary law had no power to adapt it”, has made it very receptive to women who have approached the court in search protection. It is also critical in dispelling the myth that black African cultures and customs are any more or less patriarchal then the rest of South African society. Patriarchy, the Court rightly observes, “has worldwide prevalence”.

Constitutional promises and constitutional realities

However, as is often the case, paper-based legal protection provides paper-thin protection to women in reality. As retired Justice Zakeria Yacoob has said, contrary to the popular belief of human rights lawyers and bourgeois elites in particular, “our Constitution did NOT create the society it envisaged”. In truth, no Constitution can. Such is the pernicious and ubiquitous impact of patriarchy amongst all customs, cultures and races in South Africa.

And so, almost 20 years after the formal recognition of customary marriages in terms of the Act, women such as Munyadziwa Netshituka bravely continue to approach South African courts clutching onto “the right to equal protection and benefit of the law”. They do so simply to access the rightful benefits of their marriages and life’s work. Sadly, they often also seek protection from both their marriages, families, communities and the law itself.

But translating the constitutional promise of gender equality into a constitutional reality cannot be the business of courts alone. A monumental societal shift is needed. Women like Ms Gumede, Ms Netshituka, Ms Bhe and Ms Shilubana all around South Africa are pushing for this change on daily basis. Too many men refuse to budge, accepting instead the continued spoils of patriarchy. For as long as we men – whether white Jewish men, black Venda men, or Indian Muslim men – continue to endorse and support patriarchy, women will have to continue to fight back using any means they have at their disposal.

To paraphrase the Constitutional Court’s rhetorical question in its judgment in Ramuhovhi, on of the key questions remains: “how many [men] would readily give up their position of dominance?” If the number does not increase dramatically, exponentially and urgently, for all the constitutional protection provided to women (and all the beautiful prose in the Constitutional Court’s judgments), they will continue experience the society in envisioned in the Constitution as elusive: more fiction than fact.

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