28 JUNE 2021

Thank you programme director, Deputy Director General of Home Affairs Mr Thulani Mavuso.

Director General of Home Affairs, Mr Tommy Makhode.

Our esteemed panel members;

Acting Chairperson of the National House of Traditional Leaders, iNkosikazi Nomandla Mhlauli.

Chairperson of the Commission for the Promotion and Protection of the Rights of Cultural, Religion and Linguistic Communities (CRL), Professor David Mosoma.

Commissioner for Gender Equality Ms Busisiwe Deyi.

Legal Counsel for the Freedom of Religion South Africa (FORSA) Advocate Nadene Badenhorst.

President of the Muslim Judicial Council, Mr Sheikh Erfaan Abrahams.

President of the South African Hindu Maha Sabha, Mr Aswhin Trikamjee.

Partners from all spheres of government, civil society and academia.

Members of the media.

Distinguished guests.

Warm greetings and thank you for taking the time out to participate in this National Colloquium on the Green Paper on Marriages in South Africa. Many of you have walked this path with us since 2019 when we started public consultations to garner inputs for formulating a policy framework that will regulate the marriages of all persons who reside in South Africa.

We recorded all your inputs and consolidated them into the contents of the Green Paper on Marriages. And as the Director General has said, I want to emphasise that contrary to popular belief, the Green Paper does not represent the policy stand of Government, but rather the Green Paper is a document that encompasses all the ideas that we got when we went to Ministerial Dialogues and put them out for discussion. During my Budget Vote speech, I summarised that the Green Paper is in my language is “a re boleleng” or let us talk. That is what it is all about. I must emphasise that after our Ministerial Dialogues, it is the Cabinet that insisted that we must go back to the Green Paper because South Africans must talk. As a Department, we thought that after the Ministerial Dialogues we had a fairer idea about coming up with a policy. When we presented to Cabinet the report of the Ministerial Dialogues, Cabinet said this is a very weighty matter that is going to change life and things as they are done in South Africa in terms of building families. Cabinet wanted South Africans to talk. And South Africans have been talking.  

Today is part of the journey to processing your proposals and to consolidate those inputs towards a White Paper. The White Paper is the policy proposals of Government. It means that South Africans are somehow converging and the Department is putting that convergence in a form of a document to show what most South Africans are saying.

Your commitment and dedication to this cause underscores our belief that it is beyond any dispute that this country needs a modern Marriage Policy. Thank you for inputs and active participation in this past, now in the present and in the future. As you know, no legislation is cast in stone. After putting it into operation, we are going to discover things which we should have done differently, we are going to come back to you to help us with amendments. That is why I mentioning the issue of the future.

Since we gazetted on 04 May 2021, the Green Paper has sparked a lot of public debate causing most of us to confront our long standing beliefs sometimes in an uncomfortable manner. Some of this debate has disproportionately focused on single issues, which was not necessary.

It is for the first time since the dawn of democracy that the nation is having a conversation on the key elements of an inclusive marriage regime. We won’t be exaggerating when we say that this is a watershed moment for the country. It is a watershed moment because it has unveiled a lot of discrepancies presented by the current marriage legislation which is not informed by an overarching policy based on constitutional provisions. The current legislation is a combination of colonial and apartheid era policies and new law that was introduced post-1994 to redress historical injustices.

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

Currently, marriages in South Africa are regulated through the following legislation:

The Marriage Act 25 of 1961 that regulates monogamous marriage for opposite sex couples. And as you know, it is based mostly on Christian principles to the detriment of other religions present within the borders of our country. And I’m not trying to find anything wrong with Christianity, I’m just saying because of the pre-1994 era we come from, when it came to religion, people used to think that South Africans belong to only one religion, the Christian faith, which we all know is not the case.
The Recognition of Customary Marriages Act 120 of 1998 that regulates polygamous marriages for opposite sex couples who are indigenous black South Africans.
The Civil Union Act 17 of 2006 that regulates monogamous partnerships for both same and opposite sex couples.

Despite the efforts of the State to redress the injustices of the past, all of the current Acts still discriminate against some members of society and when challenged in courts, it has been found wanting.

For instance, in December 2020, the Supreme Court of Appeal upheld the 2018 ruling of the Western Cape High Court which ruled that Muslim marriages must be legally recognised. The court further declared parts of the Marriage and Divorce Acts as unconstitutional.

The Constitution requires the Department of Home Affairs, as an institution of the State, to establish State capacity that provides marriage services (solemnisation and registration) impartially, fairly, equitably and without bias.

The draft policy is grounded on the following constitutional principles:

Section 9(1) of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law.
Section 9(3) of the Constitution provides that 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.
Section 9(4) of the Constitution provides that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
Section 9(5) of the Constitution provides that discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected.
Section 15(1) of the Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion.

So it is this tapestry of constitutional provisions that must be weaved together and to be brought into a harmonized marriage regime which will be acceptable to the Constitution of the country and to most people South Africans.

We also know that the current laws have resulted in unintended consequences such child marriages. We also know that we did not legislate against fraudulent marriages and marriages of convenience. The Department of Home Affairs experiences close to 2 000 fraudulent marriages every year. Marriages of convenience involve some people get married to South Africans in order to obtain certain documents and thereafter they are no longer interested in the marriage because they received what they wanted. Fraudulent marriages is where many women get married without knowing who they got married to and when. Home Affairs is dealing with all these issues but they were not specifically flagged in any of the legislation that presently regulate marriage in our country.

So, the proposed Marriage policy must aims to eradicate all forms of discrimination, uphold the constitutional obligations in pursuit of equality in various communities that have been side-lined or prejudiced and to stop the abuse of the marriage regime for nefarious reasons.

It must enable South Africans and residents of all sexual orientations, religious and cultural persuasions to conclude legal marriages that will accord with the principles of equality, non-discrimination, human dignity and unity in diversity as encapsulated in the Constitution. It must further enable other religious, cultural and social groups to solemnise marriages that are in accordance with their beliefs and values.

Through the process of thoroughly engaging different stakeholders who either play a role in the registration and solemnisation of marriages or who will be affected by the proposed changes, many differing viewpoints have emerged and sometimes opposing to each other.

For instance, certain stakeholders believe that marriage should only be between a man and a woman, in other words, marriage should be reserved for heterosexual couples. On the other hand, there were stakeholders who had an inclusive understanding of marriage that incorporates same-sex couples and gender non-conformists. According to these stakeholders, marriage is an institution that should be made accessible to all, irrespective of gender.

The issue of polygamy and polyandry was also topical and controversial during the engagements. While some stakeholders believed in the practice of polygamy, there were also those who opposed it. This equally applies to the practice of polyandry. Ironically, stakeholders who believed in the practice of polygamy (polygene) were opposed to the practice of polyandry. There were also stark differences about the manner in which marriages are entered into. For instance, some stakeholders stated that from a cultural perspective, marriage involves the coming together of two families, hence the importance of the requirement of negotiation and the involvement of the respective families. This, however, did not seem to be the prevailing view amongst stakeholders who entered into civil marriages and civil unions. Other stakeholders only emphasised the importance of consent between the parties who are getting married.

However, a common theme amongst all stakeholders, was that they were unanimous that children should not be permitted to enter into marriages irrespective of parental consent. Legal reform in this regard was called for. Stakeholders also unanimously articulated the need to protect the matrimonial property interests of women at the stage of divorce, particularly women in polygamous marriages. The issue of the recognition of Muslim, Hindu and Jewish marriages arose and stakeholders raised the urgent need for the State to recognise these marriages through legislative means.

In addition to these sentiments, key proposals that emerged from the engagements that are under consideration for inclusion into the White Paper were as follows:

  • The country must consider introducing an inclusive customary and religious marriage legal framework for all polygamous marriages, including Muslim, Hindu, Shembe, KhoiSans marriages.
  • The marriage legislation must enable the recognition of customary marriages that are practiced in some African communities, including royal families – this will include recognition of principal wives in royal families.
  • In keeping with section 9(3) of the Constitution, the legislation must make provision for all social, religious and traditional communities to apply to be designated as marriage officers. This means that people will have an option where they can go to Moshate or Musanda to have their marriage officially solemnised by a traditional leader, king or queen or any member of the royal family who is trained and certified by Home Affairs for such purposes.
  • t is proposed that the registration of customary marriages should be made compulsory. Further, to curb fraudulent registration of customary marriages, the law must make it compulsory for all spouses to appear before the registration authority. The provision that allow one partner to register marriage should only apply when the marriage is registered posthumously.
  • The country must consider adopting an inclusive marriage legislation that will accord all marriages a similar status. An omnibus legislation which is a single act that will contain different chapters of diverse set of legal requirements for civil marriages, civil unions, customary marriages and other marriages that are not accommodated by the current marriage legislation.

Our ultimate goal in this journey is to achieve legislation that will subscribe to the doctrine of the constitutional principles of equality, non-discrimination and human dignity as per the Constitution of the Republic of South Africa.

As I conclude, I would like to re-emphasize that the Green Paper is not the official policy position of government. It only articulates possible policy options or proposals that are based on inputs received from stakeholders. The White Paper, which will articulate the official position of government on the regulation of marriages in South Africa in line with the Constitution and our Vision 2030 as reflected in the National Development Plan, must strives to create a transformed and united country that is free from all forms of discrimination.

We believe that we are firmly on the path to achieving this goal with your active participation.

Thank you very much.