Abstract

Keywords

Department of Home Affairs (DHA); customary marriages; Recognition of Customary Marriages Act (the RCMA); National Population Register (NPR); indigenous African people; civic services; marriages and divorces; Statistics South Africa; Kha Ri Gude; registration of customary marriages; civil marriages (umfazi we phepha); marketing.

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1 Introduction

South Africa is a very diverse country 1

* Matthews Eddie Nkuna-Mavutane. B Mil (HOD) BPA (Hons) MPA (US) LLB LLM (UNISA). Former Lecturer in Public and Mercantile Law, Stellenbosch University, South Africa. Email: menkuna@sun.ac.za. ORCiD: https://orcid.org/0000-0002-1710-3159. The article is derived from research for the LLM mini dissertation, titled The Effect of the Non-Registration of Customary Marriages on the Dissolution of the Estates of Deceased Persons. Much appreciation goes to Dr Babalwa Mtshau who was instrumental in putting the figures together.

** Juanita Jamneck. BLC LLB LLD (UP). Professor in Private Law at University of South Africa. Email: jamnej@unisa.ac.za. ORCiD: https://orcid.org/0000-0003-4282-7033.

1 Southon v Moropane (14295/10) [2012] ZAGPJHC 146 (18 July 2012) para 1; Ntlama 2009 Stell LR 333-356; Moodley Customary Law of Intestate Succession 60-71.

Legally, provision is made for civil marriages, customary marriages and civil unions. 3

3 All these marriages are regulated by the Marriage Act 25 of 1961, the Recognition of Customary Marriages Act 120 of 1998 (hereafter the RCMA) and the Civil Unions Act 17 of 2006.

A customary marriage is defined in section 1 of the Recognition of Customary Marriages Act 120 of 1998 (hereafter the RCMA) as "a marriage concluded in accordance with customary law". In the same section of the RCMA, customary law is defined as "the customs and usages traditionally observed among the Indigenous African people of South Africa and which forms part of the culture of those people". 7

7 Section 1 of the RCMA. The following authors have aligned themselves with this definition: Osman Administration of Customary Law 1; Rammutla "Official" Version of Customary Law 14; Moodley Customary Law of Intestate Succession 6-7; Wallis Primogeniture and Ultimogeniture 7-8; Nhlapo 2017 SAJHR 1; Chidoori 2009 Agenda 51; Rautenbach 2008 EJCL 2; Machedi 2020 De Rebus 14.

Ordinarily a marriage certificate is prima facie proof that a marriage exists. 8

8 Section 4(8) of the RCMA states that the certificate issued by the DHA serves as prima facie proof of the existence of such a customary marriage. Also see Road Accident Fund v Mongalo, Nkabinda v Road Accident Fund 2003 1 All SA 72 (SCA) (hereafter the Mongalo case) para 4; Herbst and Du Plessis 2008 EJCL 9; Chidoori 2009 Agenda 52; Machedi 2020 De Rebus 15; De Souza 2013 Acta Juridica 243; Sibisi 2023 Obiter 521.

To address the identified loophole and its adverse consequences, the authors will look at the mandate of the DHA in relation to customary marriages, the duty to register a customary marriage, the benefits of having a customary marriage registered, the reasons for failure to register customary marriages, and the adverse consequences associated with the non-registration of customary marriages. This will culminate in recommendations aimed at increasing the incidence of the registration of customary marriages.

2 The mandate of the Department of Home Affairs in relation to customary marriages

The DHA is the custodian of the South African National Population Register (hereafter the NPR) and is the only legal entity through which persons can be registered in the NPR. The NPR contains records of South African

citizens' births, adoptions, marriages, and deaths. 10

10 Joel 2022 AJDS 212. The National Population Register (NPR) records also include updates related to divorces and adoptions.

The DHA serves the population by being present in offices throughout the Republic of South Africa as well as in most foreign countries through 32 embassies and/ or missions headed by the Department of International Relations and Cooperation. 12

12 DHA 2022 http://www.dha.gov.za/images/AnnualReports/DHA-APP-202223-web-compressed.pdf.

As soon as a record is created in the NPR, an enabling document 15

15 Documents issued by the DHA include birth certificates, identity documents, passports, marriage certificates, residence permits, visas and death certificates. Some of these documents have a temporary version. Furthermore, the validity of temporary documents and certain documents are time-specific.

The DHA is legally mandated to register customary marriages. 16

16 DHA 2022 http://www.dha.gov.za/images/AnnualReports/DHA-APP-202223-web-compressed.pdf; Mamashela 2004 SAJHR 616; Herbst and Du Plessis 2008 EJCL 9; Mwambene and Kruuse 2015 IJLPF 238; Chidoori 2009 Agenda 52; De Souza 2013 Acta Juridica 243; West 2002 De Rebus 47.

in Figure 1. 17

17 These statistics are based on Statistics South Africa Statistic releases PO3O7, Marriages and Divorces, of 2008, 2010, 2015 and 2020. Extracted from the following: Stats SA 2009 https://www.statssa.gov.za/publications/P0307/P03072008.pdf; Stats SA 2011 https://www.statssa.gov.za/publications/P0307/P03072010.pdf; Stats SA 2017 https://www.statssa.gov.za/publications/P0307/P03072015.pdf; Stats SA 2022 https://www.statssa.gov.za/publications/P0307/P03072020.pdf.

After registering such a marriage the DHA must issue a marriage certificate which serves as prima facie evidence of the existence of the customary marriage and brings about legal certainty that a customary marriage was duly concluded. 18

18 Van Niekerk 2014 SAPL 495. This remains the case until it is proven that the marriage certificate was acquired through fraud. See the Mongalo case para 20; Chali v Rasello (683/2011) [2011] ZAFSHC 121 (4 August 2011) para 33.

Figure 1: Trends associated with the registration of customary marriages

Figure 2: Number of customary marriages registered per province between 2017 and 2021

Figure 3: Marriages concluded in either an unclassified area or outside RSA between 2017 and 2021

Figure 4: Number of registered customary marriages by year and place of registration

3 Contextualisation of the data presented re the mandate of the Department of Home Affairs in relation to customary marriages

The data presented above need to be contextualised in the light of the population to be served, the personnel capacity of the DHA, trends associated with the registration of customary marriages and reasons advanced for the non-registration of customary marriages. The last two items will be discussed as independent items since they are central to the research (paragraph 4 and 6).

In July 2021 it was estimated that there were 60 142 979 people in South Africa. 20

20 Stats SA 2022 https://www.statssa.gov.za/publications/P0302/P03022021.pdf. The Census of 2022 put the current population at 62 027 503 - see Stats SA 2022 https://census.statssa.gov.za/#/. Note that the statistics do not distinguish between citizens and residents. Furthermore, in relation to residents no distinction is made between illegal (undocumented) and legal (documented) residents.

identity document, getting married, or the registration of a death) or immigration services (applying for a temporary residence visa, entering or leaving the country, applying for a permanent residence permit or seeking refuge in the country). Over and above this estimated population, the DHA must also serve South Africans living abroad and non-nationals seeking to visit South Africa.

Statistics South Africa has estimated that 80.9% of this population is made up of indigenous Africans. 21

21 Stats SA 2022 https://www.statssa.gov.za/publications/P0302/P03022021.pdf.

As already stated, customary marriages must be registered by DHA personnel. As such, it is vital that the numbers of employees of the DHA are considered, as it in turn indicates the sheer volume of registrations and other duties they may have to deal with. As of 31 March 2021 the DHA had 8 541 employees. This represents 41.8% of its approved capacity of 20 430. In relation to services, there is an average of 38.28% of the approved structure on the ground. 22

22 DHA 2022 http://www.dha.gov.za/images/AnnualReports/DHA-APP-202223-web-compressed.pdf; Joel 2022 AJDS 215.

At the heart of the current research is the issue of the number of non-registered customary marriages and the reasons advanced for the non-registration of such marriages. These issues (among others) will be discussed in the next paragraphs, which discussion will assist in conveying an understanding the lack of compliance with the RCMA.

4 The duty to register a customary marriage versus the reality

Section 4(1) of the RCMA makes it mandatory for customary marriages to be registered with the DHA. Section 4(3) of the RCMA imposes two sets of dates for such registration, namely:

The RCMA made provision for the Minister of Home Affairs to set new dates for the registration of customary marriages (i.e. to give extensions) and several extensions have been approved since the RCMA came into effect. 25

25 De Souza 2013 Acta Juridica 249-253; Machedi 2020 De Rebus 14-15. According to Mwambene and Kruuse 2015 IJLPF 243, one of the previous due dates was 31 December 2010. According to Machedi 2020 De Rebus 14-15 and GN 1045 in GG 42622 of 8 August 2019, the most recent deadline is 30 June 2024.

The stipulated deadlines in the RCMA are hardly ever complied with (see Figure 1) and most customary marriages are registered long after their first year of existence. Linked to this non-compliance with the RCMA is the fact that the number of registered customary marriages is rapidly declining. Since 2003 the highest record was set at 20301 registered marriages in 2004. This record number may be attributed to some extent to the high demand for registration from persons who were customarily married prior to the RCMA. The lowest number recorded was 1558 in 2020. The decline may be linked to any of the following: the already stated peak in numbers when the RCMA came into effect, a lack of knowledge of the avenues for posthumous registration, spouses opting to convert their marriages into civil

marriages without registering the customary marriages, and the Covid-19 pandemic. Despite these noted possible reasons for failing to register customary marriages, Figure 1 shows that most customary marriages are registered after one year of their existence and as such, this shows that getting customary marriages registered timeously is problematic. 27

27 Section 4(3) of the RCMA states that customary marriages concluded after the coming into operation of the RCMA must be registered within three months of their conclusion. Statistics South Africa, however, does not use this period - it uses one year as a cut-off duration.

The data on the various Statistic South Africa P0307 reports cover customary marriages registered in South Africa (per province) and outside the country. A specific mention needs to be made of the two provinces that are ahead in terms of the registration of customary marriages.

Kwa-Zulu Natal has always led in terms of the number of customary marriages registered in the RCMA era (see Figures 2 and 4). This can be attributed to the fact that the Natal Code of Zulu Law (commonly referred to as the Zulu code) made provision for the registration of Zulu customary marriages. 28

28 Section 46 of the Natal Code of Zulu Law, Proc R151 in GG 10966 of 9 October 1987. Also see De Souza 2013 Acta Juridica 239-240, who states that prior to the RCMA, customary marriages in Kwa-Zulu Natal were registered at either DHA offices or at Magistrates' offices. She also relays the difficulty faced by husbands who were already in polygamous customary marriages prior to the RCMA. Such husbands are unable to register their new wives as they do not have a court approved contract as required by s 7(6) of the RCMA. This increases the number of unregistered customary marriages. The provision of registration was applicable in the Transkei, but in comparison to (Kwa-Zulu) Natal, the Transkei was never a province – it was a homeland. See s 33 of the Transkei Marriage Act 21 of 1978; Kambule v Master of the High Court 2007 3 SA 403 (E); Bekker Seymour's Customary Law 123; Maithufi 2009 De Jure 193.

A discrepancy is noted in relation to the above-mentioned reports. Certain recorded marriages are termed as unclassified in terms of place of registration (see Figure 3). The Statistics South Africa Statistic releases P0307 Marriages and Divorces of 2017 to 2021 reports do not elaborate on the reasons for this abnormality, but they may be attributed to the incorrect completion of the application for registration (the BI-1699), and/or the absence of certain geographic areas on the NPR. 31

31 See the Banda case paras 16 and 17. In this case the appellant inserted the word "unavailable" multiple times in the BI-1699. This is further explained in Van Niekerk 2014 SAPL 502.

Section 4(2) of the RCMA states that either spouse can register a customary marriage. This entails that either spouse can approach any DHA office to affect this obligation. 32

32 Section 4(2) of the RCMA; Ntsukunyane v Moleko (16595/2013) [2013] ZAGPJHC 170 (11 June 2013) (hereafter the Ntsukunyane case) para 43; De Souza 2013 Acta Juridica 249-253; Van Niekerk 2014 SAPL 496.

The regulations equate the registration of a customary marriage to the solemnisation of a civil marriage by requiring both spouses to be present with witnesses (from each family). 36

36 For a similarity between requirements found in Form A of GN R1101 in GG 21700 of 1 November 2000, see DHA Date unknown http://www.dha.gov.za/ index.php/civic-services/marriage-certificates.

Section 4(5) of the RCMA also makes it possible for a person with "sufficient interest" to have the marriage registered. 38

38 Van Niekerk 2014 SAPL 496.

Section 4(9) of the RCMA states that non-registration does not affect the validity of a customary marriage. 39

39 Mrapukana v Master of the High Court (6567/2007) [2008] ZAWCHC 113 (21 November 2008) (hereafter the Mrapukana case) para 31; Herbst and Du Plessis 2008 EJCL 9; Chidoori 2009 Agenda 52; De Souza 2013 Acta Juridica 243. See ND v MM (18404/2018) [2020] ZAGPJHC 113 (12 May 2020) para 10.

5 Benefits of the registration of a customary marriage

The registration of a customary marriage benefits the spouses, public entities and private entities in a number of ways. 43

43 Herbst and Du Plessis 2008 EJCL 9; Chidoori 2009 Agenda 52; Machedi 2020 De Rebus 15; De Souza 2013 Acta Juridica 243.

On a personal level, either spouse will have an easier task should he or she wish to divorce, as he or she would not have to prove the existence of a customary marriage prior to getting a divorce and having the assets of the marriage divided in line with the prescribed matrimonial property system. 45

45 See Southon v Moropane (14295/10) [2012] ZAGPJHC 146 (18 July 2012); LNM v MMM (2020/11024) [2021] ZAGPJHC 563 (11 June 2021). In both these cases the female spouses had to endure a lengthy contested divorce due to their husbands disputing that there was a valid customary marriage.

In relation to dealing with the affairs of a deceased person, it is easier to prove that the deceased was married to the surviving spouse (the claimant or beneficiary). Insurance and pension claims are also simplified as public and private institutions know who they need to deal with when their client has deceased. 46

46 Van Niekerk 2014 SAPL 495; Herbst and Du Plessis 2008 EJCL 9; Chidoori 2009 Agenda 52; Machedi 2020 De Rebus 15; De Souza 2013 Acta Juridica 243.

6 Reasons for the non-registration of customary marriages

Factors that have been found as reasons for the non-registration of customary marriages are shown in Figure 5 and explained below:

Figure 5: Reasons for the non-registration of customary marriages 47

47 See Nkuna-Mavutane Effect of the Non-Registration 108-125. Though not using the same headings, Sibisi 2023 Obiter 523-524 gives more or less the same reasons. He notes access to DHA services and offices, the situation of spouses (mostly in rural areas), the increased need to register if there is a material benefit, issues with the regulatory framework, an absence of knowledge about registration, and the confusing of registration with solemnisation.

6.1 A lack of a culture of registering customary marriages

There is a lack of a culture of registering customary marriages as is shown by the fact that most marriages are not registered in the first year of existence. If this were not the case, there would be a constant number of registered marriages per annum.

6.2 Poor legislative drafting

This paragraph addresses the regulatory contradiction about the person responsible for registering a customary marriage and section 4(9) of the RCMA.

A regulatory contradiction exists as to who can register a customary marriage because the RCMA itself states that either spouse can register a

marriage while its regulations, on the other hand, state that both spouses need to present themselves at a DHA office. The RCMA further mentions that a person with a "sufficient interest" in such a marriage may register it, but it fails to outline who such a person may be. 48

48 It is suggested that a person with "sufficient interest" may include blood relatives in line with the kinship of the spouses, which may include their children (major), parents and siblings, those who headed or led the lobolo negotiations. It may even include parties in the private sector such as creditors in instances where the spouses have acknowledged to creditors that they are married.

Furthermore, because section 4(9) of the RCMA provides that a customary marriage is valid despite its non-registration, a reluctance to comply with the registration provision in section 4(1) of the RCMA is caused indirectly. People are less likely to register their customary marriages because the lack of its registration has no effect on its validity. 49

49 Sibisi 2023 Obiter 523-524. This is evident in cases concerning the division of an estate and/or the posthumous registration of customary marriages. In the Mgenge case para 2 "[t]he First Respondent … had belatedly procured the marriage certificate a few weeks after the … death [of Mr Siphiwe Mgenge]". Though not stated directly, this put the respondent in the prime position when it came to the liquidation of the deceased's estate. Also see Mrapukana case; Nhlapo v Mahlangu (59900/14) [2015] ZAGPPHC 142 (20 March 2015) (hereafter the Nhlapo case); Mbungela v Mkabi 2020 1 All SA 42 (SCA) (hereafter the Mbungela case); and Tsambo v Sengadi [2020] JOL 47138 (SCA) (hereafter the Tsambo case).

6.3 Illiteracy and a lack of access to information

Illiteracy is still a challenge in South Africa. 50

50 This is acknowledged in the National Development Plan 2030 (South African Government 2013 https://www.gov.za/documents/national-development-plan-2030-our-future-make-it-work) (hereafter NDP) 322. Also see Osman Administration of Customary Law 52, 178, who deals with the issue in relation to the usage of documents provided by the Masters' Office. The Adult Education and Training Act 52 of 2000, previously referred to as the Adult Basic Education and Training Act, was supposed to address this matter. Osman's findings may be seen as prima facie evidence that the Department of Basic Education and Department of Higher Education must still increase its efforts to get more South Africans literate. Also see Mlambo, Ndebele and Zubane 2019 Journal of Public Administration 710.

6.4 Access to the DHA offices

Access to the DHA offices is a challenge known to most of the population of South Africa. 51

51 De Souza 2013 Acta Juridica 244, 247, 252; Joel 2022 AJDS 214; Sibisi 2023 Obiter 523-524.

Coupled with the non-distinction between solemnisation and registration are service-related matters. It is not always possible for all DHA offices to operate at one hundred per cent in relation to human resources, telecommunication lines and information communication technology. This also has an impact on the number of customary marriages that are eventually registered. 52

52 Joel 2022 AJDS 214.

Over and above these noted challenges, not all people are located within a ten-kilometre radius of a DHA office. The Northern Cape is a prime example, as the offices are scattered over a vast area of land (see Figure 6). This means that the majority of South Africans must travel long distances to access DHA services. More pressure is added to this by the so-called "triple challenges" South Africans are facing, namely "unemployment, inequality, and poverty". 53

53 These challenges are acknowledged by Mlambo, Ndebele and Zubane 2019 Journal of Public Administration 694; Sikwela, Tshuma and Tshabalala 2018 Journal of Public Administration 475.

Figure 6: DHA footprint through the Republic of South Africa 55

55 http://www.dha.gov.za/index.php/contact-us/bank-branches. This Uniform Resource Locater can be used to navigate the DHA offices by province.

6.5 The phenomenon of umfazi we phepha

The phenomenon called umfazi we phepha (the wife with a marriage certificate) occurs when a husband had a customary wife and, at a later stage, married another wife in terms of civil rites. 56

56 This occurred in the Nhlapo and Mrapukana cases.

being the female spouse. This is, however, not a common position in case law relating to the indigenous law of succession. 59

59 Chidoori 2009 Agenda 54; Mwambene and Kruuse 2015 IJLPF 249; De Souza 2013 Acta Juridica 246. In the Nhlapo case, a subsequent civil marriage was concluded without the applicant's knowledge or approval. This also occurred in the Mrapukana case. For a succession-related matter where the wife, despite having a customary marriage, married another man in terms of civil rites, see Ledwaba v Monyepao (HCAA06-2017) [2018] ZALMPPHC 61 (25 April 2018).

6.6 High regard for civil marriages

The phenomenon of umfazi we phepha is testament to the high regard held for civil marriages. The conclusion of a civil marriage has been used by some spouses to avoid the hardships and challenges mentioned in paragraph 7. Most people married in terms of customary law convert or change their marriage system from a customary to a civil marriage. 60

60 Ntsukunyane case; Bakker "Patrimonial Consequences" 72; De Souza 2013 Acta Juridica 246; Bennet Customary Law 236-239; Himonga et al African Customary Law 85-86.

This position is now entrenched in legislation. Section 10 of the RCMA makes such a conversion possible. Some spouses may opt for this conversion to avoid being party to a polygamous marriage. The inconvertibility of civil marriages and the legislative entrenchment of the convertibility of customary marriages make the conclusion of a civil marriage more desirable to some (or most) indigenous African spouses.

7 Adverse consequences of the non-registration of customary marriages

The following discussion deals with the adverse consequences of the non-registration of a customary marriage. Figure 7 below summarises these consequences.

Figure 7: Adverse consequences of the non-registration of customary marriages 61

61 Nkuna-Mavutane Effect of the Non-Registration 18-26. Though not using the same headings, Sibisi 2023 Obiter 523-524 gives more or less the same effects. He notes incorrect patrimonial benefits that may accrue to incorrect persons, unnecessary or opportunistic litigation, secret marriages, and struggles in proving claims of loss of support against third parties.

It has been shown that there is a pressing need to have customary marriages registered and that most of the time there is non-adherence to this prescription in the RCMA. It has been argued in literature and case law that the people most negatively affected by customary practices relating to marriage and succession are women and children. 62

62 Weeks 2015 Acta Juridica 215; Osman 2019 PELJ 17; Burman, Carmody and Hoffman-Wanderer 2008 SALJ 146. Also see Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa 2005 1 SA 580 (CC) (hereafter the Bhe case); Mthembu v Letsela 2000 3 All SA 219 (A) (hereafter the Mthembu case); Zondi v President of the Republic of South Africa 2000 2 SA 49 (N) (hereafter the Zondi case).

7.1 Consequences related to birth registrations and surnames

The hardships for a wife in a customary marriage and her offspring often commence with the registration of the birth. Such registration will be affected in the mother's (maiden) surname because the child cannot be registered in his/her father's surname in the absence of his father from the DHA's

offices. 63

63 De Souza 2013 Acta Juridica 243; Bennet Customary Law 308-309. Ss 9 and 10 of the Births and Deaths Registrations Act 51 of 1992 affirm the position on the use of the mother's surname. In the recently reported case of Centre for Child Law v Director General: Department of Home Affairs 2022 2 SA 131 (CC), ss 9 and 10 of the Births and Deaths Registrations Act 51 of 1992 were confirmed to be constitutionally invalid as a result of discrimination on the basis of marital status, sex and gender. The court also held that the discrimination violates s 28(2) of the Constitution, in that it failed to put the best interests of the child first. The court has made provision for fathers to be able to register their children in the absence of their mothers. This is noted, but it will not change the status quo. Women in unregistered customary marriages will still be unable to register their children under their spouses' surnames. From a jurisprudence and gender equality perspective, the ability of fathers to register children is a huge development and a step in the right direction. However, due to the existence of a culture of non-registration of customary marriages, it is less likely that fathers in unregistered customary marriages will make use of the development and register their children under their surnames. Previously such children were regarded as born out of wedlock - see the Mrapukana case para 21.

If there are no attempts to rectify this shortcoming this may cause issues in succession, especially if paternity is disputed. When searches are done in the NPR, such a child will not appear as the child of a deceased male spouse, and this would entail further processes to prove paternity. This means that the child's chances of inheriting intestate from his or her father without further investigations, tests and court processes are slim. The result of such non-registration of the marriage is that, if a claim is made for an intestate share or maintenance from the deceased's estate, the paternity of such a child will need to be proven prior to any claim succeeding. 65

65 Chidoori 2009 Agenda 52.

7.2 Illegal marriages

A further difficulty associated with the non-registration of customary marriages is that either spouse in such a marriage can conclude a subsequent marriage with a third person. These subsequent marriages are often concluded in terms of civil rites. In rare instances they may also take the form of (registered) customary marriages. As a result, such a spouse with a marriage certificate can claim burial rights and is often given

recognition by third parties over a spouse without a marriage certificate. 66

66 In relation to these challenges, see the Mrapukana, Nhlapo, Mbungela, Ntsukunyane, Mmutle, and Tsambo cases as well as Fanti v Boto 2008 2 All SA 533 (C).

7.3 Estate-related consequences

A problem associated with the non-registration of a customary marriage which is often found with regard to property left by a deceased is the so-called "property grabbing". Himonga explains that property grabbing occurs when

the deceased's relatives or customary-law claimants seek to inherit the deceased's property and actually take it away without at the same time accepting the collateral customary-law duty and responsibility associated with the deceased's role as husband and father and breadwinner of his household. Thus the deceased's relatives are said to 'grab' the property from the spouse and children and other dependents who almost certainly need it for their support. The term also signifies the often disorderly and violent manner in which the deceased's relatives conduct themselves towards the widows when taking away the deceased's property. 68

68 Himonga 1989 IJLPF 167. Also see Burman, Carmody and Hoffman-Wanderer 2008 SALJ 134; Osman Administration of Customary Law 199. Burman, Carmody and Hoffman-Wanderer 2008 SALJ 134 used the term "seizures" interchangeably with "property grabbing".

The description of property grabbing provided by Himonga should be seen against the background of an era when the principle of male primogeniture was applied. In terms of this principle, women were ineligible to inherit in terms of intestate succession. If a deceased male was survived only by a widow and daughters, his estate devolved to another male person such as the deceased's father, or if the father was predeceased the deceased's brother was next in line to succeed to such an estate. 69

69 Wallis Primogeniture and Ultimogeniture 13-14; Venter and Nel 2005 TSAR 87-88; Nhlapo 2017 SAJHR 7; Weeks 2015 Acta Juridica 215.

In principle there was nothing wrong with the system of male primogeniture. The successor was to take care of the family of the deceased and continue with his responsibilities to the family. However, the principle lost the character of being collective and became individualistic and those who succeeded no longer took care of the survivors. 70

70 Venter and Nel 2005 TSAR 87-88. The notion advanced prior to the constitutional era was that the widow, children and extended family members would be protected, provided for and cared for by whoever inherits. A similar point is found in the

of male primogeniture is well documented in case law. The principle has been declared unconstitutional and invalid on the basis that it violates the right to equality and human dignity of indigenous African women. 71

71 The Bhe case; the Mthembu case; the Zondi case.

With the evolution of time, the concept of property grabbing no longer depends on gender, as it did when Himonga described it. In the absence of the registration of a customary marriage the estate is likely to be grabbed by the in-laws of the deceased to the detriment of surviving spouses and their children or dependents. This often goes unchallenged due to issues associated with poverty and the lack of knowledge of the benefits granted by the legislative framework. 72

72 Burman, Carmody and Hoffman-Wanderer 2008 SALJ 136; Chidoori 2009 Agenda 52.

8 Recommendations aimed at increasing the incidence of registrations of customary marriages

Thus far it has been established that the DHA has a mandate to deliver civic and immigration services to the population and any other clients who might seek their services and must render services that enable people to register their customary marriages. These services are vital to the daily lives of indigenous African people and their dealings with various institutions.

The following shortcomings have been noted in relation to the registration of customary marriages: the number of registered customary marriages is declining, most of the registered customary marriages are registered after the three months required by the RCMA, and few marriages are registered within the first year of the existence of the customary marriage. The fact that timelines are also constantly changed is not beneficial to this situation. Furthermore, there are other legislative or regulatory hurdles in the registration mandate. The non-registration negatively affects the spouse(s) and children of such marriages.

It is clear from this summation that there is a need for more to be done to ensure that customary marriages are registered. With this in mind, problem-orientated recommendations are discussed below:

8.1 Creating a culture of the registration of customary marriages

The decline in the number of registered customary marriages shows that there is a lack of a culture of registering customary marriages. Issues such as the lack of knowledge about one's obligations in terms of the RCMA,

access to the DHA's services, an inadequate usage of the information communication technology available on the market, and a decline in the number of staff at the DHA may be attributed to this lack.

If these issues were to be addressed there would (hopefully) be an improvement in the number of registered customary marriages. The DHA needs to invest more in education and in the marketing of its customary marriage mandate. These two processes are intertwined - the success of one depends on the other.

From a legislative perspective, it is accepted that once a Bill becomes legislation, it has undergone public participation and the nation was duly informed of the existence of the law through the Government Gazette. But most South Africans do not read the Government Gazette. The DHA, as the main custodian of the RCMA, must educate the nation about the RCMA. This may be done through marketing initiatives such as television, radio, the internet, and cell phone communication. A mixed approach is required to yield positive outcomes.

The target market must be identified, and the most appropriate channel must be used to reach the target market. In order to reach the target market, the language used and the content created must be appealing. From the use of the identified marketing platforms (television, radio, the internet, and cell phone communication), the DHA can have a database that identifies spouses who are eligible to register their customary marriages. The DHA office managers could verify the data per region by searching the NPR and contacting those persons who need to be assisted with the registration of their customary marriages.

Presently, the education and marketing performed are not adequate to change the culture of non-registration. The DHA must take its services to the people. In other words, it must use what is termed izimbizo. As previously stated, this concept is related to the Batho Pele principles or "putting the people first" principles, 73

73 For a breakdown of these concepts see the Batho Pele White Paper (GN R1159 in GG 18340 of 1 October 1997); Ngidi Impact of Batho Pele Principles 35-43; Joel 2022 AJDS 210.

It is further acknowledged that the displacement of indigenous Africans for various reasons such as their engagement in migrant labour has had a dire effect on their access to government services and the quality of the services received. The DHA could take its services to the people by participating in izimbizo. It could use venues such as community halls, tribal offices, and mobile offices as routine service points to have a maximum impact through its izimbizos.

The internet could also play a vital role in changing the culture of non-registration. The DHA should take advantage of its availability as part of the solution. The social media are very freely used today, as the traditional usage of letters and phone calls has decreased. The DHA should immerse itself in the social media in order to further educate and assist with follow-ups on the registration of customary marriages.

In order to assist in this mission, the DHA should make its webpage zero-rated, which would increase its accessibility, even when potential users have no airtime or data bundles. This, in turn, would increase their access to information. Armed with knowledge, people would be able to initiate their requests to have their customary marriages registered on the internet in a fashion similar to that in which it is already possible to re-apply for identity documents and apply for passports for citizens who are 16 years and older. The platform currently used for these documents is called eHomeAffairs, 75

75 DHA Date unknown https://ehome.dha.gov.za/ehomeaffairsv3.

The DHA needs to attend to all the above initiatives and therefore the dwindling number of officials also needs to be addressed, or alternative methods need to be incorporated into the day-to-day operations of the DHA.

8.2 Enhancing the registration process

There is a need for the entire registration process to be enhanced by providing more access and simplifying the process. The DHA already has strategic partnerships with some members of certain religions, hospitals and banks in the country. This partnership promotes the principles contained in section 195 of the Constitution 76

76 Section 195(1)(b) of the Constitution states that "[p]ublic administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles: … [e]fficient, economic and effective use of resources must be promoted".

arm of the department. The mandate of these officials could be expanded to include the registration of customary marriages. As there are banks throughout the country and most are in shopping malls, there is room for this footprint to be expanded.

With regard to the relationship with faith-based communities, the DHA has trained willing priests to be marriage officers for civil marriages. These same officials could be voluntarily trained as designated persons to deal with the registration of customary marriages. The RCMA regulations make provision for such persons to be appointed by the Director General (DG) of the DHA. To date, the DG of the DHA has not appointed such persons. As with marriage officers, the DHA could train certain employees in traditional authorities (councils), priests, magistrates, or the like to serve as designated persons and to assist with registrations. Traditional leaders already officiate at customary marriages and if izinduna and other members of traditional councils were able to register customary marriages, these marriages could be instantly registered after their conclusion, thereby simplifying the process and ensuring registration.

That being said, priority should be given to persons who are based in areas where customary marriages are the norm, and these designated officials should be available over weekends, when the DHA offices are closed. These officials would bring additional hands to bear at a minimal cost to the DHA and would bring services to the people.

Access to the DHA's offices and services should further be expanded by addressing other external issues such as the installation of backup systems. This includes backup power for individual equipment and working areas as well as ensuring that the departmental internet connection is not always dependent on landlines but rather makes use of routers and satellite lines. This would ensure that even in worst-case scenarios the DHA would be able to serve its clients.

The last-mentioned points could be implemented to simplify the process for citizens and foster the much-needed culture of registration.

All the above efforts would need to be supported by the legislature. Parliament should hold the Minister and the DG of the DHA accountable for the decline in the number of marriages registered as well as for late registrations. These consequences would of course have to be supported by a sufficient budget to deal with the decline and ancillary matters related to the registration of customary marriages. Related to these solutions is the power to make RCMA regulations, which power is vested in the Minister of Justice. The RCMA should be amended to enable the Minister of Home

Affairs to make these regulations, since matters relating to the RCMA are within his/her ambit.

8.3 Legislative interventions

The first legislative intervention that needs to be addresses is the amendment of the regulatory contradictions contained in the RCMA and its regulations. The RCMA states that either spouse can register a customary marriage. The RCMA regulations, on the other hand, require both spouses to be present for registration. In line with the guidelines for the interpretation of statutes, regulations must always be informed by the principal legislation. This is not the case here. When one visits the DHA's offices one will be subjected to the RCMA regulations, which means that both spouses need to be present to affect such a registration. The authors recommend that regulation 2 be amended to allow either spouse to register a customary marriage.

An issue related to the above-mentioned promulgation of regulations and their vagueness is the provision that states that a person with "sufficient interest" may register a customary marriage - but the RCMA regulations do not expand on or explain who such a person might be. The regulations need to be drafted in such a way that they precisely define who has a "sufficient interest" and what process needs to be followed, should such a person wish to exercise this option.

Further legislative interventions to encourage the registration of customary marriages should include making non-compliance with such a duty an offence. Section 4(9) of the RCMA should be amended to include fines and/or imprisonment, and such an amendment could be set to come into operation when the extended deadline for the registration of customary marriages expires (currently on 30 June 2024).

8.4 Improving literacy

Initiatives were put in place to improve literacy with the advent of democracy. Programmes such as adult basic education and training (ABET), now referred to as AET, and Kha Ri Gude Mass Literacy Campaign (translating to "let us read") are in place. These initiatives have improved the literacy level but they have not yet reached all previously disadvantaged persons. 77

77 See NDP 322-333.

The effort to establish more widespread literacy must be intensified, and this calls for renewed and strengthened partnerships among employers, the

government, the private sector and civil society. For example, initiatives could be subsidised and flexible working conditions could be encouraged in order to help those who still cannot read and write.

8.5 Educating people on the value of customary marriages and the responsibilities imposed by the RCMA

Indigenous knowledge and practices are slowly dying. A matter associated with this worry is the devaluation of customary marriages. There is a need for the conscience of indigenous Africans to be awakened to the reality of their heritage. The Department of Sport, Arts, and Culture (hereafter the DSAC) needs to be required to assist in research related to indigenous knowledge and practices. This, in turn, would lead to a growth in cultural academic work such as books and journals. The department's contributions could be applied in books, plays, movies, and television series and could also be used in academic discourse at school and in the tertiary level of education.

The outcomes of this research could furthermore find their way through sport. Advertising spaces at well-attended sporting events could be used to market the registration of customary marriages. The DHA could collaborate with the DSAC in linking the above initiatives to the status and obligations of the RCMA. All the above efforts and initiatives could improve compliance with the requirements and duties imposed by the RCMA.

8.6 Dealing with the phenomenon called umfazi we phepha

Implementing the above recommendations would assist in stopping the phenomenon of umfazi we phepha or the so-called wife with a marriage certificate. This phrase refers to a wife who has a marriage certificate as a result of a subsequent marriage, which the husband entered into with the full knowledge that he was still a party to an existing customary marriage.

As shown in paragraph 6.6, there was and still is a high regard for civil marriages. Up until the late 1980's a civil marriage would prevail whenever there was a conflict with a customary marriage. 78

78 Linda v Nkambula 1951 1 SA 377 (A); Himonga et al African Customary Law 102-104; s 3(6) of the RCMA; Bennet Customary Law 207-208.

customary spouses in a monogamous marriage. 80

80 Section 1 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. See also Bennet Customary Law 240. This position is reiterated in the RCMA, see s 3(2).

Even though the legislature has done its part in bringing legal certainty on the issue of umfazi we phepha, it still remains a problem. It is suggested that the recommendations made in this paragraph (paragraph 8) should be used as a solution. More specifically, these efforts should include educating people on what the law requires of them, investing in literacy which will improve compliance and protection of rights, and creating a culture of the registration of customary marriages.

9 Conclusion

The aim of this research was to highlight the need for the registration of customary marriages, to acknowledge and encourage diversity and to offer possible solutions to the problems created by the non-registration of customary marriages. As part of our diversity, customary marriages are recognised by law but are required to be registered to have certain legal consequences. This requirement is hardly ever realised, however.

The registration of customary marriages is part of the mandate of the DHA and the department has an obligation to serve citizens and non-citizens inside as well as outside the country. This means that they have over 60 million clients and service points throughout the country (Civic Service offices and in the banking channels) as well as at various South African embassies and missions. Despite this large footprint, the DHA does not deliver improved services due to the challenges outlined above. A few issues have been noted in relation to the registration of customary marriages, namely that the number of registered customary marriages is decreasing on an annual basis, that most registered customary marriages are registered more than a year after they were concluded, that the DHA offices are inaccessible and that the registration process is tedious.

It has been shown that the benefits of having registered customary marriages outweigh the challenges experienced by those who fail to register their customary marriages. The benefits include legal certainty for all parties, decreased numbers of disputes about a deceased person's estate, fewer problems for divorcing parties in proving the existence of customary marriages, and easier routes to follow in resolving ancillary matters related to divorce disputes such as maintenance and custody.

Persons who fail to register their customary marriages are likely to experience numerous challenges such as the inability to register a child in the father's surname, negative psychological bearing on children (rejection by the in-laws), the expenses and humiliation associated with proving paternity before claiming an inheritance or maintenance, the need to prove the existence of a customary marriage before claiming an inheritance or maintenance, and the possibility of losing a share of the estate to in-laws and others engaged in property grabbing.

The non-registration of customary marriages, which causes these difficulties, is linked to issues which include a lack of a culture of the registration of customary marriages, poor legislative drafting, the absence of knowledge of the rights and benefits afforded through the RCMA, minimal access to the DHA's offices, and service delivery-related matters, as well as the existence of a marriage to a third party (umfazi we phepha) and the high regard in which civil marriages are held.

The phenomenon of umfazi we phepha was specifically also flagged. If all the suggested avenues are addressed, there would be an increase in the number of timeously registered customary marriages, and this in itself would close off the possibility of this phenomenon recurring over generations.

Problem-specific solutions were suggested for these challenges. These recommendations include an investment in education and the taking of marketing initiatives, taking the services rendered by the DHA to the people, taking advantage of the presence of the internet, increasing the DHA staff numbers at minimal cost, certain legislative efforts, and enhancing the registration process.

Among the solutions suggested, the issue of an alignment between the RCMA and its regulations was also discussed. Both these pieces of the regulatory framework need to enable either spouse to register a customary marriage and need to sufficiently address the concept of a person with "sufficient interest", as contained in the principal legislation.

The recommendations also dealt with literacy and, although it is acknowledged that the government has put initiatives in place to improve the literacy rate, these initiatives have not been sufficient as all intended beneficiaries have not been reached. As a result, there is a need for the project managers of education programmes to increase their efforts to engage all stakeholders. Businesses, employers and civil society are vital to the success of such initiatives.

In relation to access to the DHA's offices and services, numerous proposals have been put forward. At the heart of these proposals is a need to adhere to the Batho Pele principles and the fact that the DHA needs to get its services to the people through izimbizo, the appointment and utilisation of designated persons, by expanding the eHomeAffairs channel, and by the maximum utilisation of available strategic partnerships. Over and above these efforts, all its resources need to be able to function throughout challenges such as power and internet failures, and sufficient backup systems should be in place.

The last aspect that was addressed in the recommendations dealt with the fact that fewer people today have a high regard for customary marriages. This concern falls squarely in the domain of the DSAC, and they should invest money towards research and the publication of customary law-related content.

All the above recommendations and actions have one thing in common: they clearly illustrate that "business as usual" can no longer be the order of the day. The DHA and other government entities have a role to play in educating people and making certain that they are advantaged by the regulatory framework surrounding customary marriages, so that the adverse effects of the non-registration of customary marriages are minimised as far as possible.

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List of Abbreviations