The constitutionality of the non-recognition of polyandry in the Recognition of Customary Marriages Act 120 of 1998

Abstract

Currently, the Recognition of Customary Marriages Act 120 of 1998 (hereafter the RCMA) recognises the practice of polygyny, wherein a man marries more than one wife, but does not recognise polyandry, wherein a woman marries more than one spouse. Therefore, the constitutionality of the non-recognition of the practice of polyandry in the RCMA is questionable as it may be inconsistent with the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). Therefore, this study purports to critically analyse the constitutionality of the non-recognition of polyandrous marriages in the RCMA. This said analysis is conducted through the application of the doctrinal method of research. The dissertation is divided into five parts. The first part consists of a background and a general introduction to the study. The second part contains a discussion of the general historical background of African customary law and its treatment, and how that impacted the practice of polygamy, including polyandry. The third part offers a discussion specifically on the exclusion of polyandry in the current law that regulates marriages in South Africa. The fourth part critically analyses the constitutionality of the non-recognition of polyandry in RCMA and the implication thereof on African women who wish to enter into legally recognised polyandrous marriages as part of their customs. The last part draws a general conclusion and further provides recommendations to address the research question and aim. The study demonstrated that although sections 2(3) and 2(4) of the RCMA in which polygamy is couched in gender-neutral language, they do not permit wives to have more than one husband/spouse at the same time.1 The wife may not take another spouse (man or woman) during the subsistence of her first marriage in a way that such subsequent marriage(s) will be legally recognised as valid under the RCMA. Based on the overall analysis, it is concluded that the non-recognition of polyandry in RCMA is unconstitutional insofar as it is discriminatory against African women and infringes 1When considering the RCMA in totality, it is more discriminating. Just like many authors, the RCMA seem to use a term polygamy in s 2(3) and (4) when referring to polygyny. This was not the oversight but the intention of the drafters of the RCMA. For instance, ss 7(1)(b)(ii) ss 7(4)(b), 7(5), 7(6) and 8(4)(b) of the RCMA are expressly couched in gender discriminate terms. their rights, including the right to equality, the right to culture, and the right to human dignity. Based on this conclusion, it is recommended that the RCMA needs to be reformed or amended to recognise the cultural practice of polyandry.