11 October 2019
Honourable MEC for Social Development of KwaZulu-Natal, Ms. Nonhlanhla Khoza
Representative of the KwaZulu-Natal House of Traditional Leaders, Inkosi DZ Gumede
Chairperson of the National House of Traditional Leaders, Inkosi SE Mahlangu
Legal Advisor to His Majesty King Goodwill Zwelithini, Judge SJ Ngwenya
Chairperson of the Free State House of Traditional Leaders, Kgosigadi AG Moroka
Chairperson of the Eastern Cape House of Traditional Leaders, Nkosi M Nonkonyana
Chairperson of the Limpopo House of Traditional Leaders, Kgoshi KS Dikgale
Chairperson of the North West House of Traditional Leaders, Kgosi ME Mabe
Your Majesties, Kings and Queens
Chairperson of the Gender and Community Development Committee, Kgosi KB Sedumedi
Deputy-Chairperson of the CRL Commission, Dr. Sylvia Pheto
Members of the media
I am deeply humbled by the honour afforded to me this morning by the presence of so many of our traditional leaders as we seek to deepen and strengthen our Constitution by coming up with a marriage regime that reflects the dynamic and evolving society we have become since the advent of our democracy in 1994.
To avoid assuming that everybody know what the Department of Home Affairs does, allow me to start by explaining our work. The department has two main arms; the civic and migration. The civic arm registers people when they are born, when they turn 16 for an ID, get married and when they pass on. Immigration manages the movement of our people through our borders and deports those who are here illegally.
We are the only department where people have to visit at least four times – five times for those who travel internationally. We don’t call you, you come to us because we issue enabling documents.
His Excellency, Mr President Cyril Ramaphosa, while addressing the Annual Opening of the National House of Traditional Leaders in February this year, reminded us of the importance of traditional leadership in our society. He said: “Traditional leadership, however, not only represents a link to our past; it is also an essential part of our future.
“Our Constitution, which brought an end to decades of Apartheid and centuries of colonial occupation and humiliation, recognises the institution, status and role of traditional leadership in a democratic society…
“It sees traditional leadership as an instrument of development and progress, dedicated to improving the lives of the people of this country.”
Therefore, the process of marriage dialogues will lead us to a new, modern and Constitutional marriage policy and enabling laws which would recognise our multiple cultural practices, religious beliefs and gender preferences.
During this first phase of engagement, we are engaging leaders of people across various sectors because we believe that the leaders know what their people want and therefore will provide us as Government with accurate pointers of where we need to go on this policy.
After the initial engagement process, we’ll engage the broader public. We anticipate that the entire process will be completed in March 2021.
Today engagement with traditional leaders follows those which we have held with human, gender and children’s rights activists and most recently with religious leaders.
In the coming weeks, we will meet again with religious leaders in the Western Cape, the Congress of Traditional Leaders of SA (Contralesa) and Khoisan Community Leaders, non-governmental organisations, academics and other government departments, including provincial governments.
What is pertinent in these consultations is that; as South Africans we are different in many ways but we should be able to accommodate each other and uphold the principles of the Constitution to ensure that maximum value is derived from the process.
In the dialogue with religious leaders, I was asked at one of the dialogues whether the department is genuinely undertaking this consultation with the view of taking into consideration the inputs of stakeholders.
I want to emphasis that my answer is a simple yes. We will listen carefully and consider all inputs made. I can’t claim that everybody’s wishes will be in the final policy because we have to agree on what goes in. I appeal that we must be tolerant of other people’s views and beliefs. For an example, science and other cultures allow surrogacy but we look down on African cultures which do the same.
The one thing I know is that the final product must adhere to three Constitutional principles.
Firstly, it must adhere to the principle of equality across cultural, religious, gender and other beliefs.
The policy must also not discriminate against anyone and for whatever reason.
And lastly, it must respect human dignity of each person.
Currently, anybody who has a marriage recognised in law has married in one of the three types of marriages;
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.
Gaps that have been identified with the current legislation are that:
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 also 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. For an example, the community led by Inkosi Mandlenkosi Mahlalela of Mlambo Tribal Authority in Mbuzini in Mpumalanga is spread around three countries; South Africa, Mozambique and Eswatini. This community see themselves as one people. So they interact normally as people with little regard to colonial borders. Marriages across the border are normal here and in other communities separated by borders.
The legislation does not make provision for couples who change their sex status while married under the Marriage Act of 1961 but want to retain their marital status without going through divorce as required by the current law.
While in terms of the African tradition, chiefs or traditional leaders have a recognised role in the conclusion of a customary marriage, the legislation does not extend a similar responsibility to traditional leaders.
South Africa recognises customary marriages through the Recognition of Customary Marriages Act, which became effective in November 2000. To date there are 342 809 registered customary marriages on the National Population Register. The majority of these marriages, 333 387, are registered with one spouse. Another 8 410 are registered with two spouse. Marriages registered with three spouses to nine range from 814 to two. Only one is registered with 10 spouses.
In terms of the Act, 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”.
The Act provides as follows:
A customary marriage entered into before commencement of the Act and which is not registered in terms of any other law, should have been registered within twelve months after commencement of the Act or as per the extension period for late registrations granted by the Minister of Home Affairs from time to time
A customary marriage entered into after commencement of the Act, must be registered within a period of three months of the date of celebration or entering into the marriage or as per the extension period for late registrations granted by the Minister of Home Affairs from time to time.
In view of requests for late registrations of customary marriages, I have, in terms of the powers vesting in the office, extended the period of registration for both customary marriages entered into before and after commencement of the Act to be until 30 June 2024.
The Customary Marriage Act recognizes polygyny – which means that a husband – who has registered his marriage under the Act is permitted to register additional marriages under the Act, provided he addresses the regulations under the Act regarding his property.
That is, at his own cost, the husband has to get an order from a competent court that will regulate his future matrimonial property system.
Registered customary marriages are regarded by the law as being "in community of property."
Marriages that involve minors
The issues of marriages that involve minors remain a thorny subject in our country. 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 divorces 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 that usually leads 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 their 18th birthday.
Fraudulent marriages and marriages of convenience
In South Africa we receive around 2 000 queries of fake marriages a year. In the period between 01 April 2018 and 31 May 2019, the Department came across 2 132 cases of fraudulent marriages. Of these 1 160 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 gains easy citizenship through this marriage.
The marriages that we found to be truly fraudulent were 1 160. 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.
Where a woman claims to have been married off without her knowledge, the department would launch an investigation – under Operation Bvisa Masina – upon which if the marriage is indeed found to be fraudulent, it would then be expunged at no cost to the woman.
I thank you.