Marriage can be exciting for most, however not paying cognisance to the legal implications can lead to one’s frustration and financial detriment. In this article, I will discuss customary marriages and their legal implication.

Customary Marriages (also known as traditional marriages) are recognised under the Recognition of Customary Marriages Act.[1]

In terms of the Act, all marriages concluded must meet the following requirements[2]:

1. Both parties to the marriage must above 18 years of age. If one of the parties is a minor, the parent or guardian of the minor party must consent to the marriage.
2. Both parties must consent to be married to each other under the customary law.
3. The marriage must be negotiated and entered into or celebrated in accordance with customary law.
4. Both parties must not be prohibited to enter into marriage by virtue of blood relations or affinity.
5. If one of the parties has already entered into a customary marriage, the parties must apply to court for approval of a written contract which will regulate the future matrimonial property system of the marriages.

Should all the above requirements be met, the marriage will be valid. The successful negotiations and payment of lobola are not necessarily considered as a requirement, however may be helpful to prove that the marriage was negotiated according to custom. A party may marry more than one spouse in terms of the Act provided that all the above requirements have been met for each of the marriages he wishes to conclude.

The duty is then on the spouses to register the marriage in terms of Section 4 of the Act. In the case where the marriage is not registered, it is still valid. Parties other than the spouses who have entered the marriage may enquire as to the existence of the marriage provided that the registering officer is satisfied that the party has sufficient interest in the matter and applies in the prescribed manner.[3]

When registering the marriage, the following persons must be present in person at either Home Affairs or a traditional leader:

1. The two spouses;
2. At least one witness from both families;
3. And/or representatives of each of the families;
4. The parents or guardians of the minor spouse (if applicable).

The marriage will then be in community of property, unless the contrary prevails by way of antenuptial contract. This means that both parties will have an equal and undivided share in the estate (the assets, debts and properties).

All parties to the customary marriage has an equal standing in law, subject to the matrimonial property system governing the marriage. This means that, unless the contrary prevails, they both have full status and capacity and may therefore acquire and dispose assets, be a party to a contract and may litigate.[4]

A man and woman that have concluded a customary marriage with each other may convert their marriage into a civil marriage under the Marriage Act 25 of 1961, if neither of them has any other customary marriage existing outside of their marriage to each other.[5]

Only a court may dissolve a customary marriage by way of a decree of divorce, taking into consideration Sections 8(2) –8(5).

[1] Act 120 of 1998.

[2] Section 3.

[3] Section 4(5)(a).

[4] Section 6.

[5] Section 10.

Parents in South Africa were left devastated when the highest court in the country took away the traditional method they have been using to discipline their children. This happened on Wednesday, 18 September 2019, when the Constitutional Court in South Africa ruled that it is illegal for parents or guardians to punish their children through spanking. Therefore, this section was amended because parents have been using entitlement to chastise children moderately and reasonably to escape conviction and prosecution.

One may ask what is “spanking”?

Spanking, also called corporal punishment, is a discipline method in which a person inflicts pain on a child without inflicting injury and with the intent to modify the child’s behavior. Forms of corporal punishment include hitting a child’s bottom, slapping, grabbing, shoving, or hitting a child with a belt or paddle.

Before the new judgment was handed down by the Constitutional Court, there was a difference between reasonable and moderate parental chastisement and assault and abuse of children. However, it is not that simple to separate chastisement outside the elements of assault. As a result, moderate chastisement was declared as illegal and it is classified as form of assault or children abuse.

It has always been a crime of assault to hit a child, even your own child, but if charged, a parent had a special defence wherein, if the chastisement was found to have been reasonable, the parent would not be found guilty. It is this specific special defence that this judgment has removed, through a development of the common law, to bring it in line with the Constitution.

According to section 12(1)(c) of the Constitution, all persons must be free from all forms of violence from either public or private sources. Subsequently, spanking is not consistent with this section. In practical terms, the judgment means that parents who hit their children will no longer be able to raise a special defence if they are charged.

In the case of Religion South Africa v Minister of Justice and Constitutional Development and Others, the judgment arises from an appeal by a father who had been found guilty of assault because he has beaten his 13-year-old son in a manner that exceeded the bounds of reasonable chastisement. The father, who was punishing his son for watching pornography, had argued that he had a right to chastise his son, in accordance with his religious beliefs.

The court emphasised that the intention is not to charge parents with a crime, but rather to guide and support parents in finding more positive and effective ways of disciplining children. In support of this, the court referred to an affidavit submitted on behalf of the Minister of Social Development, who agreed that the defence of reasonable chastisement is unconstitutional. The Minister pointed out that the Children’s Act aims to guide parents towards better, non-violent parenting.

The court said that protecting children was particularly important in the context of the high levels of child abuse and violence that pervade our society.

Most South African parents do not support the Constitutional Court’s judgment. Most parents take on an approach of ‘not in my house, if the child does not want to stay and abide by the rules of this house, a child must go and stay somewhere else’.  Parents are however encouraged to embrace the judgment and to take on a different approach when disciplining their children.

For a long time, the Compensation for Occupational Injuries and Diseases Act[1], better known as COIDA, has provided compensation to employees who were injured on duty or contracted diseases or illnesses caused by the workplace. However, the Act explicitly excluded certain employees from its scope of operation, amongst others, domestic workers in private households.

Dependents of deceased domestic workers, who died while on duty, were left without a leg to stand on in terms of compensation from the Compensation Fund. Fortunately, this has now changed.

The Compensation for Occupational Injuries and Diseases Act (“the Act”) aims to provide compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment. It also aims to provide compensation for death resulting from such injuries or diseases. However, this was not the case for select groups that were specifically excluded in terms of the Act. Including domestic workers working in private households.

Those individuals that were specifically excluded from claiming compensation in terms of the Act were:

1. A person performing military service or undergoing such training and is not a member of the Permanent Force of the South African Defence Force (“SADF”);
2. A member of the Permanent Force of the SADF while on service in the defence of the Republic;
3. A member of the South African Police Force (“SAPF”) on service in the defence of the Republic;
4. A person who is contracted for the carrying out of work who then engages other persons to perform such work; and
5. A domestic employee employed as such in a private household.

Practically, this meant that if a domestic worker employed in a private household, sustained an injury or died on duty, he/she or his/her dependents could not claim compensation in terms of the Act. This also meant that employers who employed such domestic workers had no obligation to contribute to the Compensation Fund.

The abovementioned will soon be drastically changed as the High Court in Pretoria announced that domestic workers are now eligible to claim from the Compensation Fund if they were injured or contracted a disease at their place of work. The same applies should a domestic worker die while on duty; – the family of the domestic worker would then be allowed to claim.

The decision in the Pretoria High Court arose from a case in which a domestic worker drowned in her employer’s swimming pool during the course of her duties. When her dependent daughter approached the Department of Labour, she was informed that she was not allowed to claim in terms of the Act, as domestic workers were not included in the definition of an “employee”. This newly found right of domestic workers to claim from the Compensation Fund will now see domestic workers and their dependents enjoying the full protection the Act has to offer.

Employers will now have to pay into the Compensation Fund once a month and will not be allowed to deduct money from the workers’ wages for this. There are certain instances where the Compensation Fund will not provide payment:

1. No payment will be made for claims which are made more than 12 months after the accident or death, or more than 12 months after the disease is diagnosed;
2. No payment is made if the workers’ own misconduct caused the accident unless the worker was seriously disabled or died from the accident; and
3. There may be no payment if the worker unreasonably refuses to have medical treatment, for as long as the worker refuses.

Compensation is paid to employees who get injured at work or for diseases caused by work. There are four main types of compensation payments. These are:

1. Temporary disability (the worker eventually recovers from the injury or illness);
2. Permanent disability (the worker never fully recovers);
3. Death; and
4. Medical expenses.

Compensation is calculated as a percentage (%) of the wage the worker was earning at the time of the disease or injury’s diagnosis. If the employee is unemployed by the time a disease is diagnosed, the wage they would have been earning must be calculated. The Fund does not pay for pain and suffering, only for the loss of movement or use of the body.

The Act came under scrutiny towards the end of 2018 and amendments were proposed to provide more inclusive legislation. The decision in the Pretoria High Court has fast-tracked the amendments which will undoubtedly make huge strides for domestic workers in private households.

Reference List:

• Compensation for Occupational Injuries and Diseases 130 of 1993;
• The South African Labour Guide

The Business Insider, 24 May 2019.

[1] Act 130 of 1993

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.