26 September 2019
My colleague, Honourable Deputy Minister Mr Njabulo Nzuza
The Acting Director-General of Home Affairs, Mr Thulani Mavuso
The President of the South African Interfaith Council, Mr Johnson Luphuwana
The President of the Islamic Council of South Africa, Mr. Sheik Thafier Najjaar
The President of Shree Pretoria Hindu Seva Samaj, Mr Ramesh Chhagan
The Executive Director of Freedom of Religion South Africa, Mr. Michael Swain
The National Coordinator of African Traditional Religion, Ms Phepsile Maseko-Temangwane
Secretary General of the Nazareth Baptist Church, eKuphakameni, Pastor Thetha Ngiba
Principal State Law Adviser at the SALRC, Mr. Pierre Van Wyk
Members of the media
Good morning and thank you for honouring our invitation to join us in this interactive session where we seek to develop a single Marriage Act. This is the second in a series of engagements which we be having with key societal role players as we work towards creating a marriage regime which will enable South Africans of different religious, cultural persuasions and gender backgrounds to conclude legal marriages that will be in line with the key provisions of the Constitution of our country.
Today we are deliberating with Religious leaders under the theme: “Equitable recognition of the right of all religions in the marriage law and practice.”
We have already engaged the gender and human rights activists. Over the coming weeks we’ll meet with traditional leaders, Khoisan Community Leaders, non-governmental organisations, academics and other government departments, including provincial governments.
It is an honour and a privilege to be addressing so many interfaith leaders. Given the recent developments in our country, it would be amiss of me if I did not request that we observe a moment of silence for all those women and children who have passed on at the hands of others, in most cases, at the hands of men. As faith leaders, you are often called upon to comfort the families and relatives of those who have departed under atrocious circumstances. As we observe the moment of silence, let us also invite divine powers to guide faith leaders as they console grieving families.
(Moment of silence)
Thank you very much.
Last week, President Cyril Ramaphosa called a joint sitting of Parliament on the crisis of violence in South Africa. While addressing this joint sitting, President Ramaphosa said; “South Africa is one of the most unsafe places in the world to be a woman, with levels of violence that are comparable to countries that are at war.
While it has its own specific causes and features, gender-based violence reflects a broader crisis of violence in our society.”
The President also called upon all sectors of society to work together to turn the tide against this period of uncharacteristic violence. As leaders in society, we must rise to the challenge put forward by the President by ensuring that we do all we can in our spaces to create an environment where women are and feel safe.
So, here we are, gathered in Ekurhuleni, trying to find ways of contributing to fighting the scourge of violence against women and to fighting broader discrimination.
We have an opportunity, through our work of unifying people by marriage, to explore how we can contribute to greater tolerance.
We must consider whether faith leaders can spot possible early signs of abuse when they give marriage counselling to prospective brides and grooms. And, importantly, what to do when they come across such instances. We must also consider how all faith leaders can contribute to early detection of possible violent streaks in people who intend to get married.
This journey we are undertaking is long. We expect to complete the modernisation of our marriage regime in 2021. But, given the urgency of the challenge in front of us, we may be able to identify actions we can implement through continuous engagements.
Our engagement in developing a new marriage regime must be guided by the Constitution which enjoins the State to 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.
The Constitution also states that everyone is equal before the law and has the right to equal protection and benefit of the law.
Therefore, it is unambiguous that our task is to come up with a Marriage Act which does not discriminate and is Constitutional.
Faith leaders, unlike other role players, have a deeper association with the Department of Home Affairs because some of them are marriage officers. We currently have 16 363 designated civil marriage officers throughout the country. Of these, 14 945 are faith leaders and only 1 418 are Home Affairs officials. For Civil Union marriages, we have 543 designated officers of which 309 are Home Affairs and 234 are faith leaders.
Each of our 412 offices has designated officers for customary marriages.
These marriage officers solemnise marriages using one of the three marriage laws of the country. These are;
- The Marriage Act 25 of 1961 which governs monogamous marriage for opposite sex couples;
- The Recognition of Customary Marriages Act 120 of 1998 which regulates polygamous marriages for opposite sex couples; and
- The Civil Unions Act 17 of 2006 caters for monogamous partnerships for both same and opposite sex couples.
The challenge we have is that even with all these laws, the marriage still discriminates against some sectors of society. Currently, there is no law which recognises the marriage practices and rites of Muslim, Jewish and Hindu faiths.
Another area of concern is that the existing laws prohibit people from marrying their relatives but there is no law which prohibit boys younger than 18 and girls younger than 16 from getting married. Most of the underage people who end up married are young girls. There were 25 390 divorces which were concluded in 2017. Statistics show that four out of 10 marriages ended in divorce before their 10th year anniversary. Most divorcees involved minors. In 2016 and 2017, there were 103 and 72, respectively, marriages which involved persons under 18 years.
This reality goes against the commitment we made as a country through the SADC Protocol on Gender and Development which calls for ending child marriages.
Another associated risk is that of child pregnancies usually led to maternal deaths. There is a high number of young girls who die after falling pregnant because their bodies are not fully developed to be able to carry children. Statistics suggests that those who successfully deliver babies have a chance of being divorcees or widows before they are 18 years old.
The second challenge I was confronted with shortly after I assumed office as Minister of Home Affairs in May was the scourge of fake marriages. I became aware of this challenge when the Wits Law Clinic threatened a class action for women who were married to people they had never met. I decided to approach the Wits Law Clinic to see how we can help their clients without prejudicing the legal recourse they wanted to pursue. In preparing for a meeting with them, I was informed that the Department receives around 2 000 queries of fake marriages a year. In the period between 01 April 2018 and 31 May 2019, the Department came across 2132 cases of fraudulent marriages. Of these 1160 were found to be indeed fake and were annulled by the Department. But 646 were found to be legitimate, even though undesirable, meaning that they can only be annulled through a court process.
These 646 cases are what we refer to as Marriages of Convenience. These occur when people marry each other for convenience. This happens between a South African and a none-South African. The South African, mostly a woman, is rewarded with huge sums of money and the non-South African gain easy citizenship through this marriage.
The marriages that we found to be truly fraudulent were 1160. Guess what, some of these happen because of fraud syndicates consisting of Home Affairs officials and some marriage officers outside Home Affairs. Such marriage officers knowingly submit fictitious marriages for registration and working with Home Affairs officials, such marriages get registered on the National Population Register. This practice used to be common mostly before 2013. Since 2013, each step in the marriage registration process is authenticated by the fingerprints of a Home Affairs officials. This enables us to pinpoint exactly which official was engaged in malfeasance.
Other ways in which these fraudulent marriages take place is through identity theft where syndicates posed as employment agencies who ask people to hand over all their documentation with a promise of securing them a job.
We also have instances where there is duplicated identity where somebody is impersonating another.
One of the things we need to consider as we develop this modern marriage policy is whether or not we should not introduce a requirement to have marriage officers renew their designation every five years. In our records, we have marriage officers who were designated as far back as 1920. The designation renewal could include a refresher course which would empower marriage officers with current legislation and practices.
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.
While in terms of the African tradition, chiefs or traditional leaders have a recognized role in the conclusion of a customary marriage, the legislation does not extend a similar responsibility to traditional leaders.
Our legislation does not make provision for couples who change their sex status while married under the Marriage Act of 1961 but who want to retain their marital status without going through divorce as required by the current law.
Given the diversity of the SA population it is virtually impossible to pass legislation governing every single religious or cultural marriage practice.
The Department of Justice and Constitutional Development is revising the Divorce Act to align it to the provisions of the Constitution. We are working with them to ensure that our work to develop a single marriage policy and their revision of the Divorce Act are aligned.
One of the key intended outcomes of both processes is to provide better protection to women in instances when marriages end up in divorce.
As I conclude, allow me to thank all of you for taking the time off your busy schedules to be here today. Your presence signifies, your continued commitment as faith leaders in the creation of a socially cohesive and inclusive society.
Many of us who were activists in the anti-Apartheid movement know very well the important role and selfless contributions that religious institutions played in the political changes in South Africa.
I look forward to the collaboration and collective wisdom that will benefit the drafting of this envisioned marriage policy.
I thank you.
Siya Qoza, 082 898 1657 Spokesperson for the SA Minister of Home Affairs
David Hlabane, 071 342 4284, media manager for the SA Department of Home Affairs
Issued by the Department of Home Affairs