INVOLVEMENT OF CIVIL SOCIETY 2
Civil society was involved in the development and passage of all of the relevant laws. It was also involved in judicial training programmes for presiding officers of Equality Courts. Wide
standing rules also allow civil society organisations to take a broad range of discrimination
issues to court.
This scores a '2' as there has been comprehensive involvement of civil society in law reform and provision is made for ongoing involvement in the enforcement of rights.
INFORMATION AND DISSEMINATION
There has been some information dissemination on Equality Courts and Sexual Offences Courts. There has been little information dissemination since the implementation of the Equality Act.
This scores a ' 1' as the information has been limited.
MONITORING AND EVALUATION 1
Monitoring
Cases in the all courts are recorded in some way, although the method of recording will not necessarily be disaggregated by sex and gender.
Evaluation
We are not aware of plans for systematic evaluation of the relevant laws and programmes.
This scores a T because comprehensive monitoring and evaluation systems are not yet in place.
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ARTICLE 16 - EQUALITY IN MARRIAGE AND FAMILY LIFE
INTRODUCTION
Article 16 deals with the question of equality in marriage and family life. In South Africa this applies to civil law, customary law and religious law, all of which regulate marriage and the family for different communities. It also applies to cohabiting families in which women are still subject to discrimination. About nine percent of the population live in permanent
relationships, but have not married. The 2001 census showed the following breakdown of
relationships/households in South Africa:• 29 million single people
• 2.38 million co-habitees
• 7.369 million people in civil or religious marriages
• 3.127 people in traditional or customary marries
• 31000 people in polygynous marriages International Framework
Article 16 requires the state to take all steps to end discrimination in marriage and family life.
Both women and men must:
■ be free to marry the person of their choice;
■ have the same rights and responsibilities during marriage and on divorce
■ have the some rights and responsibilities as parents, irrespective of their marital status, in
matters relating to their children;■ have the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
■ have the same rights and responsibilities with regard to guardianship, wardship,
trusteeship and adoption of children;■ have the same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
■ have the same rights in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
In addition, the betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
RATIFICATION 2
South Africa has ratified CEDAW without reservations.
Ratification scores a '2'.
REPORTING j
South Africa has submitted its first report, but is late on subsequent reports.
Incomplete reporting scores a '1'.
POLICY 2
Policy, as articulated in the Constitution, protects gender equality, and renders the codification of customary and religious law subject to the Constitution. The Gender Justice Policy provides for law reform in the majority of these areas. The Department of Social Development has also developed a policy on families that is inclusive of a variety of family forms (Department of Social Development, White Paper for Social Welfare, chapter 8).
Within this broad framework, policy is given more detail in the SALRC and the courts, eg. in relation to co-habiting families, currently under review in the SALRC (Project 118, Domestic Partnerships) and by the courts {Volks NO v Robinson CCT 12/04 20/05/04).
This scores a '1' as there is a comprehensive policy framework, even if the detail has still to be put in place in some instances.
LAW I
South Africa's legal framework improved substantially with the enactment of the Recognition of Customary Marriages Act. This law gave women equal status and decision-making with men, as well as equal rights over property and children. A minimum marriage age was introduced and consent made a requirement of customary marriage. However, most of these provisions were not made retrospective. The act recognises polygyny as a lawful form of customary marriage, having taken into account the effect of abolition on women and children.
Registration is required (although failure to register does not nullify a marriage)- but provision is made for registration by one party or a third party.
While some court decisions have extended rights to muslim marriages (Daniels v Campbell NO 2004 (7) BCLR 735 (CC), Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA)), the full codification of Muslim personal law is still in process. Muslim marriages currently remain outside of the protection of the law. This affects women's rights. While many laws have begun to include the rights of co-habiting couples (eg. medical aid, pensions, children), the law relating to proprietary rights of cohabitees is still in the process of reform.
This scores T because of the incomplete cohabitation and muslim marriage processes.
DEVELOPMENT OF A PLAN 1
The Department of Justice Gender Policy Statement sets out an overall plan for review and reform of laws. Plans exist for laws that have been enacted, but not yet for those that are still in the process of being reformed. The Department of Justice also has a plan for the development of Family Centres and for the improvement of the services of the five existing Family Courts.
This scores a '1' as the law reform and consequent planning process to meet the requirements of article 16 of CEDAW is not yet complete.
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TARGETS j
Some targets exist in plans, but these will need to be extended and revised once all laws are in place. This scores a ' 1'.
INSTITUTIONAL MECHANISMS 1
The Customary Marriages Act falls within the jurisdiction of the Department of Home Affairs
and the Department of Justice. Traditional leaders are accorded a role as 'intermediaries'
where there are no Home Affairs offices.The Act is to be implemented and enforced through the Magistrates Courts, especially the
Family Courts. The latter courts have not yet been fully rolled out. The Department of Justice also intends to establish Family Centres country-wide.This scores a T as not all ofthe envisaged mechanisms have been established.
BUDGET
The Recognition of Customary Marriages Act was not costed when it was enacted and no budget has yet been allocated to the Customary Marriage implementation plan.
This scores a T there are insufficient resources.
HUMAN RESOURCES 1
The Department of Home Affairs has registration officials in place and a training manual has been developed. However, women are still experiencing problems in registering their marriages which suggests that there remains a need for training and capacity building of officials.
A Bench Book has been written for magistrates and training takes place at Justice College.