Zuma’s fifth wife: what’s the fuss?

2009-01-09 00:00

• MULTIPLE customary marriages are permitted in terms of the Recognition of Customary Marriages Act of 1998.

• A couple married in terms of customary law can re-marry each other in terms of the Marriage Act of 1961 (that is, a civil marriage), only if neither of them is a spouse in another customary marriage.

• Both acts make it illegal for anyone in an existing civil marriage to enter into another marriage, be it civil or customary.

• Section 30 of The Bill of Rights (Chapter 2 of the Constitution) gives everyone the right to participate in the cultural life of their choice.

• Section 31 (1) states that anyone belonging to a cultural, religious or linguistic community cannot be denied the right to “enjoy their culture, practise their religion and use their language”.

BUT:

• The Bill of Rights also contains an equality clause, which states that everyone is equal before the law and the founding values of the Constitution are human dignity, equality and the advancement of human rights and freedoms, non-racialism and non-sexism.

• The equality clause also outlaws discrimination on a number of grounds, including sex and gender.

Phathekile Holomisa, president of the Congress of Traditional Leaders of South Africa, said the Recognition of Customary Marriages Act seeks to give effect to “the reality that Africans do enter into polygamous marriages” and protects the rights of women in these relationships.

“The act was a compromise between those opposing African custom and those who believed it was necessary. I am one of the latter. If there was no such thing as polygamy, myself and others like me wouldn’t have been born. My grandfather, for example, had a number of wives.”

Amber Howard Cornelius, Justice and Women advocacy co-ordinator, said in practice the current system frequently leaves women in a precarious legal position, particularly after the death of the husband. She said that despite the laws prescribing marriages, some men enter into both civil and traditional marriages.

There is also concern about polygamy in the context of South Africa’s high rates of HIV/Aids.

“The more people [involved] the higher the risk,” she said. “And in terms of human rights … there’s an inherent inequity in polygamy which privileges the rights of men over those of women.”

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