Minister Aaron Motsoaledi: Marriage Policy Dialogues

30 Aug 2019

 Keynote address by Home Affairs Minister Dr Aaron Motsoaledi for the Marriage Policy Dialogues

Programme Director;
Representatives from Chapter Nine Institutions;
Development Partners;
Government Departments;
Members of the media;
Ladies and gentlemen;          

I greet you all!   

Let me begin by expressing my sincere gratitude to everyone for being here today. As government, we cannot over-emphasise the importance of collaborating with partners like yourselves as we are unable to solve the complex challenges that confront our society today on our own.  

One wise and selfless woman, by the name of Mother Teresa, once said:  "none of us, including me, ever do great things. But we can all do small things, with great love, and together we can do something wonderful," close quote.  

As President Cyril Ramaphosa stated in the State of the Nation Address in July this year, this sixth administration is committed to building a social compact with various role players that will take our country forward.

In hosting these dialogues or Izimbizo, the Department is partnering, amongst others, with institutions of higher learning, government departments, the National House of Traditional Leaders, civil society organisations and the media.

As per the introductory remarks by the Acting Director-General of Home Affairs, Mr Thulani Mavuso, we hope that this process will lead to the realisation or the culmination of a new marriage policy for South Africa. It is envisaged that the new marriage policy will be taken to Cabinet, in March 2021, for approval after an extensive public consultation process has been undertaken.

We are starting a process to modernise our marriages laws to ensure that they adhere to the principles of the Constitution, which enjoins us to ensure that the State does not unfairly discriminate against any citizen.

Chapter Two of the Constitution reads as follows; “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

Currently, we have three laws which govern marriages in the country. So, if you are married in South Africa and your marriage is recognised by the Department of Home Affairs, it means that you were married either through;

  1. The Marriage Act 25 of 1961 (monogamous marriage for opposite sex couples);
  2. The Recognition of Customary Marriages Act 120 of 1998 (polygamous marriages for opposite sex couples); and
  3. The Civil Unions Act 17 of 2006 (monogamous partnerships for both same and opposite sex couples).


All of these acts still discriminate against some citizens. Part of the reasons include;

  • In 1994 South Africa inherited a marriage regime that was based on the Calvinist Christian tradition which stemmed from the era where the State and the church were mutually reinforcing, if not synonymous.
  • We also inherited the marriage regimes of the former homelands states such as Transkei, Venda, Bophuthatswana, Ciskei, Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa and Qwaqwa.
  • There are strong references in some of the laws governing marriage that harken to the religious marriage rituals practiced in the Christian marriages.
     

In the new era of democracy the values of equality and diversity underpin our quest for nationhood, and all religious and cultural practices are given equal recognition and status.

Instead of creating a harmonized system of marriage in South Africa, the State has sought to give recognition to different marriage rituals through passing a range of different marriage laws.

For an example, the current legislation does not regulate some religious marriages such as the Hindu, Muslim and other customary marriages that are practiced in some African or royal families.

The Recognition of Customary Marriages Act does not make provision for entering into a polygamous marriage with non-citizens. This poses a serious challenge when such marriages are entered into especially amongst the community members who are members of the same clan but are separated by a borderline.

The legislation does not make provision for couples who change their sex status but want to retain their marital status

While in terms of the African tradition chiefs/traditional leaders have a recognized role in the conclusion of a customary marriage, the legislation does not extend a similar responsibility to traditional leaders.

Given the diversity of the SA population it is virtually impossible to pass legislation governing every single religious or cultural marriage practice.

Your collective expertise, experiences, wisdom and indeed your views will go a long way in crafting and enriching a policy that will lay the ground for new legislation which is aligned and subscribes to the doctrine of the constitutional principles of equality and non-discrimination as per the Constitution of the Republic of South Africa. Through the consultations, we aim to identify key issues that should be addressed by the new marriage policy. 

It is against this background that I invite you, to actively participate in the dialogue today, which is being held under the theme: “Realisation of equality, human dignity and non-discrimination values in marriage law and practice.” Most importantly I appeal that you will continue to journey with us until the end goal is reached.

Our current marriage legislations have resulted in disparities and in some instances confusion as to which types of marriages can be legally recognised and which are not. For example, according to the Recognition of Customary Marriages Act No. 120 of 1998, the definition of a customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”. This does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.

I quote from a meeting summary of the Portfolio Committee Chaired by Advocate Bongani Bongo on the 2nd of July 2019:

Mr M Hendricks, (Al Jama-ah) explained that on his recent visit to a Home Affairs office with his grandson, he had received an excellent service, as they were served within 10 minutes upon arrival which he joked that the ‘padkos’ he had with him was not needed that day. However, pleasant the experience of that day was, Mr Hendricks, still described a sense of condemnation by our system as he said he felt that his dignity was being infringed upon – “from cradle to grave” – he described.

This according to Mr Hendricks, is caused by the fact that, when he was born he was classified by Home Affairs as being born out of wedlock because his parents had been married under Islamic Religious Law.  He himself is also married under Islamic Religious Law and should he pass on his death certificate will depict his marital status as that of a single man and this will make it impossible for his wife to access his estate or his assets. 

While, Hindu and other religious marriages can legally be concluded under the Marriage Act, unless they comply with all the legal requirements of the Act, they are not valid.

Ladies and gentlemen, it is such cases that give us the urgent impetus to address these disparities that exist as a result of the current existence of different legislation.

As we come to the end of Women’s Month, we are also cognizant that women bear the brunt of poverty in South Africa which also leaves them vulnerable, being manipulated into fraudulent marriages for their survival.

Evidence based on reported cases at DHA indicates that this practice is most prevalent in the big cities and amongst young women particularly students. It is for this reason that this practice needs to be placed under the spotlight to dissuade particularly young women from falling prey into marriages of convenience which compromises the National Population Register. 

In the scope of the investigation conducted by the SA Law Reform Commission, measures against such marriages have also been explored.  On the occasion of the department’s tabling of its Budget in Parliament on the 10th of July 2019, I highlighted, that as from the 1st of April 2018 to the end of June 2019, the Department came across 2132 fraudulent marriages.

Out of these, 1160 were found to be fake and were annulled by the Department. But 646 were found to be legitimate because our records show that the parties involved had signed the certificates and others even affixed their fingerprints. Such marriages can be dissolved through the courts.

Fighting fake marriages is close to my heart, as evidenced with a case of a victim of a fraudulent marriage, Ms Nomathamsanqa Swartbooi who struggled for 14 years to get assistance after discovering she was fraudulently married to a man she did not know and have never met.

Together, we can magnify our voice in sending out messages that will raise awareness, inform and educate the public about their rights and recourse should they find themselves in this very unfortunate situation of identity theft and fraud or instances of fraudulent marriages. We need to partner in efforts and campaigns that seek to warn the public of these matters.

Our messaging should encourage everyone to take the responsibility of protecting and safeguarding their identity documents at all times, Members of the public need to be made aware of these unscrupulous syndicates that unfortunately in some cases have been found to have worked with our very own officials and at times job agencies to commit this type of fraud.  These matters need to be reported urgently to the police and to their nearest Home Affairs office should they fall victim to the practice.

Ladies and gentlemen, as I conclude, I wish to reiterate the call made by our President during the State of the Nation Address, that we should all become social activists in our own rights in building this country into a better place for the now and for the next generation - shine in your own little corner with the light you have!

Thank you.

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