INTRODUCTION
The Nederduitsch Hervormde Kerk van Afrika (NHKA),[1] as an interested party, welcomes the invitation by the Department of Home Affairs (DHA) to submit written comments on the Draft Marriage Bill of 2022, published in Government Gazette No 48914 on 7 July 2023.
These comments follow the order of the different provisions contained in the Bill, addressing identified limitations or discrepancies.
- DISCUSSION
2.1 We are of the view that legislation pertaining to marriage should be inclusive, to allow churches and other religious institutions, different faiths, non-believers, and the full diverse spectrum of cultures in our society to have their rights and freedoms respected while simultaneously being able to uphold and develop their own definitions and practices without undue interference by the government. This is the very nature of constitutional principles.
At the outset, we must state one cannot fault the object of the Bill, namely to rationalise the marriage laws regulating various unions and to prescribe certain requirements for the validity, solemnisation and registration of marriages as stipulated in section 2.[2] This is especially significant considering the legal uncertainty that has prevailed over the past few decades. The Bill effectively addresses the unjust disparities created by previous legislation, unifying different laws and streamlining processes for all stakeholders. If the Bill is promulgated into law, there will be uniformity in the recognition of all unions and marriages as the provisions of this legislation will prevail in all instances. This will ease the burden of litigation and ensure legal certainty in a currently volatile and uncertain milieu. It will also allow for equitable treatment of, and respect for, religious and customary beliefs in line with section 15 of the Constitution of South Africa.
Certain omissions from previous legislation, such as the abolition of formalities like section 29(2) of the Marriage Act of 1961 related to the place of solemnisation, are commended.[3] This also aligns the Bill with case law in this regard.[4]
Section 5 of the Bill outlines legislative requirements concerning the minimum age of potential spouses, drawing from common law and statutory sources, including the Matrimonial Property Act No 88 of 1984, the Marriage Act No 25 of 1961, and the Customary Marriages Act No 120 of 1998. These requirements, presented in a single legislative form, are to be welcomed. Moreover, the provisions in section 7 and 8(1)(a) regarding the minimum age to enter into a marriage align the Bill with the age of majority in the Children’s Act 38 of 2005 and will certainly contribute to preventing the exploiting and abuse of children.
2.2 Section 6(2) of the Bill, which deals with the duty of the Director-General (DG) to establish the parties’ consent in circumstances where the marriage was not solemnised by a marriage officer, is problematic. The question arises whether the DG may register the marriage simply upon establishing consent between the parties, irrespective of compliance with the other provisions of the Bill. If this is the case, it appears that the DG is then considered to be a de facto marriage officer without the incumbent duties of a marriage officer as espoused in section 15. Thus, section 6(2) of the Bill is vague regarding what the DG must do once he/she has established the parties’ consent. To solve this issue, section 6(2) ought to be expanded to reference the other requirements for the proper solemnisation and registration of the marriage.
Furthermore, the division of marital property based upon the lack of compliance regarding consent in section 6(3) appears to be out of place.
2.3 Section 8(1)(a) and 9(1)(a), which stipulate that prospective spouses “must both be above the age of 18 years on the date of entering into a marriage”, should be adjusted to correspond with section 7, which reads: “For the purposes of this act, any person who wishes to enter into a marriage must be 18 years of age or older”.
2.4 The provision in section 8(2) that “a marriage entered into in accordance with custom or religion, but after the commencement of this Act, to be valid, such a marriage must, in addition to the requirements referred to in subsection (1), be negotiated and entered into or celebrated in accordance with (the) (the definite article “the” is erroneously omitted in the text of the Bill) respective custom or religion”, raises concerns.
The Bill should not concern itself with customs, religion or rites that have no direct bearing on the aims and stipulations of the Bill. Section 8(2) leads to the incongruence that section 8(3) foresees the possibility of a valid “further marriage”, peculiarly under the main heading of section 8: Requirements for validity of monogamous marriage. If the provision applies to a monogamous marriage, it becomes equally bizarre. Section 8(1) should contain the only requirements for the validity of a monogamous marriage.[5]
2.5 Section 9 appears to contain provisions similar to those found in the Customary Marriages Act, which have now been incorporated into this Bill.
2.6 Section 11, which pertains to the designation of a responsible person in a religious denomination, traditional council or secular organisation, is cause for concern. It appears that the competency of this person as listed in terms of section 11(1) will be limited. The restrictive provisions of such a designated person’s competency are stipulated in section 11(2) with reference to area, period and religion.[6] This restriction could pose several challenges for church marriage officers since it will confine them to a specific jurisdiction or time period. To illustrate, a couple may be members of a specific church, but the marriage ceremony is scheduled for a different location in a different province. Does this section then mean the marriage officer must reapply for a designation matching the area/period of the ceremony? This will increase the administrative burden on the office of the DG and may result in unnecessary cost.
If section 11(2) is amended, it will lead to the deletion of section 13(1) of the Bill, which deals with the circumstances in which the marriage officer is deemed to have been designated to solemnise the marriage. Furthermore, if section 11(2) is amended, it will alleviate the administrative burden created in section 13(1).
Section 11(2) is also in direct contrast with section 15(1), which provides that a marriage officer may solemnise a marriage at any place and time within the Republic. Thus, the suggestion is to designate the marriage officer in such a capacity as opposed to the designation of the place and time of the ceremony as stipulated in section 11(2). This will then be similar to the position of any other commissioner of oaths, who can administer the oath at any place and time. It begs the question why the designation of a marriage officer cannot operate in a similar fashion?
If the object of section 15(1) is to allow for any solemnisation to be regarded as valid, then the reference to time, place and religion as stipulated in section 11(2) is irrelevant and ought to be deleted.
2.7 Section 13(1) deals with the bona fide belief of a person who acts as a marriage officer. It is puzzling that a marriage can be regarded as valid based on the erroneous belief of the person acting as a marriage officer. Rather, the validity of the marriage should depend on the beliefs of the parties, as envisaged in section 13(2). If section 13(2) is accepted, the provisions of section 13(1) become redundant.
Moreover, as the entire section 13 is essentially problematic and confusing, we advise that it should rather be omitted from the Bill completely.
2.8 Section 15(1) commences with a directory and not a peremptory provision. The use of the word “may” is indicative that section 15(1) is a directory requirement and not a peremptory one. Whether a word is peremptory or directory is a matter of statutory construction. It is necessary to ascertain the intention of the legislature. It is trite law that this is done by having regard to the language used, the scope and object of the enactment and the consequences of adopting one view rather than the other.[7] If one then examines the requirements for a designation as a marriage officer as per section 11(1), it clearly stipulates that a person holding a responsible position in any religious denomination may be designated to be a marriage officer. It is evident that “religious denomination” is a qualifying factor for such designation. If the provision of section 11(1) is compared with section 15(1) then one finds again the reference to “mode of solemnisation in accordance with religious denomination” as a qualifying factor.
The question is then whether a marriage officer must solemnise a marriage irrespective of exercising his/her choice or discretion in whether the marriage ceremony or mode of solemnisation is in accordance with such religious beliefs or denomination. The use of the word “may” leaves a marriage officer with a discretion to solemnise the marriage or not. The fact that such solemnisation must be in accordance with the religious practice of the marriage officer provides enough room for an argument that a marriage officer may refuse to conduct a solemnisation should he/she feel that it would not be in accordance with the religious beliefs or religious denomination to which he/she belongs. Nowhere in the Bill do we find an obligation or peremptory provision that a marriage must be solemnised by a marriage officer purely because the individuals want to have it done that way.
However, curiously absent in the draft Bill is the provision contained in section 31 of the Marriage Act 25 of 1961 that no minister of religion is compelled to solemnise a marriage that does not conform to the doctrines and rites of their denomination.[8]
Religious marriage officers not in the employ of the state should retain the right, in terms of section 15 of the Constitution, to only solemnise marriages in accordance with the tenets and creeds of their belief-systems as endorsed by the official resolutions of their religious institutions, with due regard to the provisions of section 9 of the Constitution and judgments of the superior courts in this regard.
The Constitution recognises freedom of religion, belief and opinion by conferring upon everyone that right.[9] It also permits for legislation recognising “marriages concluded under any tradition, or system of religious, personal or family law; or systems of personal and family law under any tradition or adhered to by persons professing a particular religion”.[10] The civil authorities are compelled by the Constitution to “respect, protect, promote and fulfil the rights in the Bill of Rights”.[11]
The Constitution envisages a tolerant society which is sympathetic toward individual and collective religious expression, allowing it ample space to function independently from external expectations. The right of the state to enforce principles such as equality and non-discrimination has to be limited by the compounding effect of the rights to freedom of religion, expression and association. Only if extraordinary and compelling circumstances exist may the state interfere with the doctrinal concerns of churches.[12]
When read together, sections 15, 16, 18, and 31 of the Constitution emphasise the constitutional importance of recognising diversity and pluralism in our society. The Constitutional Court has affirmed that these rights collectively allow for deviation from standard norms, granting individuals and communities the freedom to express their beliefs in manners that some might consider unconventional.[13] It thus seems inevitable that religious institutions and their appointed marriage officers will invoke these rights all at once to ensure the proper reverence and protection of their communal constitutional rights. This needs to be taken into account when new legislation is drafted and promulgated, such as the draft Bill. The required protection should be awarded to church marriage officers who exercise their discretion in the solemnisation of marriages, and, preferably, be included in the Bill.
2.9 The provisions of section 18(8)(a) are nonsensical. These provisions provide that an enquiry must be made to ʹaʹ marriage officer (it could be any marriage officer seemingly) into the existence of the marriage, as opposed to the enquiry being directed to the DG for not registering the marriage. It is submitted that such an enquiry into the existence of the marriage must be made to the DG since it is the duty of the DG to determine reasons why the marriage officer did not register the marriage within the scope of section 18(3). Section 18(8)(a), in its current form, also does not provide for any further steps or processes to be followed if a seemingly valid marriage was not registered. In other words, there is no clear indication of what is required of a marriage officer upon receipt of such an inquiry. It appears that an aggrieved interested party will have to apply for an investigation to be instituted by a court. It is submitted that there should be a clear distinction between marriages not registered purely based on administrative defects or non-compliance by officials to perform their duties and a court instituted investigation as per the current section 18(10).
A further issue with the idea of a court instituted investigation is the already limited capacity of the judicial system, which is overburdened with litigations. Thus, the burden associated with the role of the court must be clearly set out and curtailed. The converse may lead to the drowning of the court system in administrative tasks and result in unnecessary legal costs for parties in an already economically strained climate.
2.10 Section 21(1) is vague and problematic. A marriage is necessarily dissolved by the death of one or both spouses, and it is trite that a decree of divorce on the ground of “the irretrievable breakdown of the marriage” dissolves a marriage. However, the section continues and states that a divorce decree may also be granted on the grounds of mental illness or continuous unconsciousness of one of the spouses. Section 21(2) sets out the criteria for the ground of “irretrievable breakdown of a marriage”, yet nothing more is added with regard to the other two grounds. What is meant by “mental illness”? What criteria should be used? How is “continuous unconsciousness” determined?[14] This section is a novel addition as the Marriage Act of 1961 does not involve itself with the dissolution of a marriage. It needs to be carefully reconstructed to correspond with other acts such as the Divorce Act – or the governance of the dissolution of marriages should be left to be dealt with by separate legislation entirely.
2.11 We suggest the insertion of the words “in terms of this Act” into section 27(1) after “continue to be a marriage officer”, to read: “Any person who, in terms of the previous Act, has been designated as marriage officer shall continue to be a marriage officer in terms of this Act until his or her designation expires or is withdrawn, in terms of section 14(1) for any valid reason”. This insertion will also correlate the section with section 27(3) to correspond with the position of magistrates.
2.12 The purpose of section 27(2)[15] remains unclear. If it means that no designation in terms of the previous Act may be renewed, the subsection is superfluous. If it means that no designation in terms of the new Act may be renewed, the section becomes confusing. The continuance of the designation as marriage officers appointed in terms of the previous Act ought to be a full transfer of rights and duties in terms of the new Act and should be dealt with in the same manner as new designations.
- LANGUAGE
There are certain discrepancies with regard to the use of the English language in the draft Bill that need attention. The arbitrary and inconsistent replacement of the South African form of solemnise(d), solemnising, solemnisation, authorise(d) and organisation with the Americanised form solemnize(d),[16] solemnizing,[17] solemnization,[18] authorize(d) [19] and organization[20] is unsound. In South Africa, like in most other Commonwealth countries, the former is the correct and standard spelling. We advise that the South African writing style be followed consistently throughout the Bill.
- BOGUS OR SHAM MARRIAGES
Issue Paper 35 of Project 144 of the South African Law Reform Commission (SALRC) contained an important segment on “bogus or sham marriages”[21] that surprisingly did not find its way into the Bill.[22] The high prevalence of bogus or sham marriages is cause for major concern. The DHA in the last decade reportedly launched an awareness campaign to eradicate the practice where foreigners fraudulently marry South African women without their knowledge in order to obtain work permits or even South African citizenship. Unfortunately, there are several reports that desperate women are ill-advised that, as marriage relates to a change in status, fraudulent marriages could supposedly in all instances only be dissolved by a court and not within the DHA itself.
Eyewitness News on 10/6/2019 reported that the Wits Law Clinic has taken on the case of 5 women (who may be indicative of plenty more) who fought against the DHA for more than a decade to escape the effect of fraudulent marriages.[23] The Clinic provided legal support and lay the groundwork for a class-action lawsuit, which aimed to compel the department to perform its constitutionally obliged duties to citizens.[24]
In the report, it was revealed how these victims have been pushed from pillar to post at various stages of their own efforts to have the fake marriages nullified. Some of the women have been unable to register the births of their children, while others didn’t have ID documents or bank accounts. The Clinic’s adjunct professor, Philippa Kruger, explained: “Depending on which branch of the DHA they visited, and depending on whom they spoke to, they were given varying advice … All five women have been struggling for in excess of ten years with their respective cases. They have been referred to one DHA office after the next and have been given different advice at every turn. They have been saddled with enormous inconvenience as a result of this blatant infringement of their rights”.
There is no indication that the situation has improved in the recent past. It is trite that failure to comply with the requirements of a marriage, such as a marriage without the consent or knowledge of one of the parties, renders the marriage void ab initio and such marriages may, with the submission of an affidavit setting out the facts, be set aside by the DHA. On the strength of the affidavit, the department ought to remove such a ‘marriage’ from the population register and thus restore the status quo ante. It is in the interests of justice and fairness to fast-track and simplify this process, and a section on this in the incumbent Marriage Act will ease the burden on all interested parties.
- CHALLENGES FACED BY CHURCH MARRIAGE OFFICERS
There is also an additional issue with regard to the role of marriage officers that requires attention. In recent years, an alarming number of ministers of the NHKA have expressed their dissatisfaction with official visits to DHA offices countrywide in order to have marriages registered. Even if it is considered to have no direct bearing on the Bill in question, it is a source of immense frustration among church marriage officers nevertheless. There have been numerous reports of frustration due to long queues, aggravated by system failures and other delays, as well as inconsistencies between the different offices, and even different opinions regarding regulations, rules and laws within the same office. Moreover, the lack of updated records regarding the marital status of prospective spouses after a previous divorce is also a source of concern. It is often reported that some DHA offices refuse to accept the registration documents of spouses who already entered into marriage if the system shows that they are still married to a former spouse. This occurs even where a copy of the official divorce decree is submitted with the DHA-30 marriage registration documents, leaving marriage officers to remedy a situation that falls outside their scope of service concerning their role in the registration of the marriage.
A church minister, in his or her capacity as a marriage officer, represents the state and is therefore issued with an official DHA designation number, which should entitle them to the same treatment and privileges as any other DHA official when submitting official documents. As church marriage officers are appointed by a legal decree per section 11(1) of the Bill, we suggest that the Bill also clarifies the legal status of such officers to indicate that, for the purpose of the registration of marriages, they are rendering a public service, and are (for that purpose only) entitled to the same administrative service as DHA officials – including direct access to administrative clerks at all offices and access to the DHA records pertaining to the marital status of prospective spouses. This role of the marriage officer as a functionary preferably needs to be reflected by the marriage statute. In addition, the personnel of every DHA office ought to be encouraged to show due regard for this position when a marriage officer attempts to submit DHA-30 forms to have a marriage registered.
Also of concern is the huge administrative challenge when a minister from one area (province, region) is called to minister in another area to transfer him/her from one DHA office to another. Is that really necessary? Would a single database of marriage officers for the whole country not obviate the need for such a restriction?
Moreover, we urge the DHA to investigate the possibility of an electronic system for the registration of marriages. We submit that the proper digitalisation of the process would be an easily attainable goal and would ease the burden on marriage officers and DHA personnel alike. The sooner this gets instituted, the better for all parties involved.
- CONCLUDING REMARKS
The NHKA acknowledges the efforts of the DJCD, the SALRC and the DHA in drafting and publishing the Bill for public comment. Our commitment to engaging constructively on matters of public significance, such as this, remains unwavering. Church and state can, and indeed should, exist in a complementary manner alongside each other – each sovereign within its own domain – pursuing the shared objectives of advancing justice and the common good.
The comments above are submitted with profound respect for the institution of marriage, as well as due regard to the Constitution, aiming to address perceived limitations or discrepancies within the Bill. Additionally, with the appropriate adjustments, the NHKA holds a positive outlook that the centuries old grappling with the same discriminatory issues pertaining to marriage and family law[25] may finally be laid to rest.
We appreciate the opportunity to provide our perspective on the Bill and hope that these comments will contribute to the refinement of the legislation. We trust that due consideration will be given to our input.
Dr WC van Wyk
Secretary: Commission of the General Church Assembly
On behalf of the Scribe: Rev JF van der Merwe
[1] Netherdutch Reformed Church of Africa (NRCA).
[2] S 2(a) to (c).
[3] Section 29(2) of the Marriage Act of 1961 reads: A marriage officer shall solemnize any marriage in a church or other building used for religious service, or in a public office or private dwelling-house, with open doors and…
[4] Eg Ex Parte Dow 1987 (3) SA 829 (D).
[5] We do not concern ourselves with polygamous marriage, which falls outside the scope of the NHKA’s tenets and practices. However, we do not exclude the application of our comment in this regard to also include polygamous marriages. Furthermore, we note that section 9(2) only makes provision for a “husband in a marriage who wishes to enter into a further marriage”, which might elicit critique as not providing equal rights to both genders. Should the term “husband” not be replaced by “spouse” as in the other sections?
[6] Ministers of the NHKA might on occasion be requested to solemnise marriages where one or both spouses do not adhere to the same religion. Would this impose a restriction on the designation of the minister as a marriage official, or would it render the marriage so concluded invalid? Would the individual marriage officer have the freedom of his/her own conscience to accept OR refuse the request to solemnise a particular marriage?
[7] See Kuhne & Nagel v Elias and Another 1979 (1) SA 131 (T) (at 133E-F); and Charlestown Town Board and Another v Vilakazi 1951 (3) SA 361 (A) (at 370).
[8] Section 31 of the Marriage Act 25 of 1961 reads: Certain marriage officers may refuse to solemnize certain marriages. Nothing in this Act contained shall be construed so as to compel a marriage officer who is a minister of religion or a person holding a responsible position in a religious denomination or organisation to solemnize a marriage which would not conform to the rites, formularies, tenets, doctrines or discipline of his religious denomination or organisation.
[9] Section 15(1).
[10] Section 15(3)(a)(i) and (ii).
[11] Section 7(2).
[12] In recent years, the doctrine of doctrinal entanglement, as contemplated in Ryland v Edros 1997 (1) BCLR 77 (C), and confirmed as part of our law in Taylor v Kurtstag NO and Others 2004 4 All SA 317 (W), and Singh v Ramparsad 2007 ZAKZHC 1, has changed the landscape of doctrinal adjudication. The right to freedom of religion (buttressed by the rights to freedom of expression and association and the diversity demands of a pluralistic society) as a quintessential fundamental right, warrants a strong presumption in favour of the integrity of the church. This applies to all disputes where religious freedom is in conflict with other fundamental rights (including the right to equality), if the matter arises from doctrinal issues.
[13] Christian Education South Africa v Minister of Education (2000) (at 24).
[14] Under the 1979 Divorce Act a decree of divorce may be granted only on one of the following three grounds:
- irretrievable breakdown of the marriage;
- incurable mental illness for a continuous period of at least two years; and
- continuous unconsciousness for a period of at least six months.
[15] Section 27(2) reads: Any designation referred to in subsection (1) may not be renewed in terms of this Act.
[16] Eg section 16 and 17.
[17] Eg section 11(1).
[18] Eg section 11(2), 16 and 18(3).
[19] Eg section 10(2), 11(1), 13(1) and 14(1).
[20] Eg section 11(1).
[21] See Chapter 2(H) of Issue Paper 35.
[22] Issue Paper 35 (at 1.9) states: “On 1 November 2017 the Minister approved the inclusion on the research programme of the SALRC of an investigation into the possible adoption of a single marriage statute including measures against sham marriages”.
[23] A fraudulent marriage happens when a victim’s ID number is used without their knowledge to create a marriage (to a stranger) that exists only on paper. As a result, their surnames as recorded on the Home Affairs registry then change to those of their alleged “spouses”.
[24] Exposed: The long battle to escape fraudulent marriages in SA. Read the full report here: https://ewn.co.za/2019/06/10/exposed–the–long–battle–to–escape–fraudulent–marriages–in–sa.
[25] Note in this regard, for example, the nineteenth century case of August v Rens (1836, 1 Menz 203) in the Supreme Court of the Cape, where the court ruled that the common-law rule, whereby the spouse of an accused is not a compellable witness for the prosecution, should not only apply to Christian marriages but also to marriages in terms of Islamic law.
