Section 9 of the Constitution of South Africa guarantees equality for all its citizens before the law.
On this basis, in April 2021, the Department of Home Affairs released a Green Paper to relook the policies that govern marriages in SA. The traditional viewpoint of marriage is that it “is a union exclusively between a man and a woman”.
This is the viewpoint of traditional leaders in SA, who also do not recognise same-sex marriages as governed by the Civil Union Act 17 of 2006.
Polyandry is a type of polygamy that allows women to marry more than one husband. According to Brittanica, polyandry derives from the Greek word “polys” which means many and “andry”, meaning man. Polygyny is the same, “gyny” denoting women.
Therefore, polygyny and polyandry are two types of polygamy. In essence, the concept of polygamy does not exclude women, a society’s rules do.
According to the Green Paper, “the legislation that regulates marriages in South Africa is not informed by an overarching policy that is based on constitutional values and the understanding of modern social dynamics.”
The four main constitutional principles not recognised by present marriage policies are:
- Human dignity
- Unity in diversity
This not only concerns polyandry but other forms of religious marriage not recognised by these policies. The Green Paper also includes conversations around child marriage, which is legal should a minor’s parent consent to it, taking away the human dignity of a child.
Equality and non-discrimination
The Recognition of Customary Marriages Act 120 of 1998 makes it legal for SA men to marry more than one spouse, should polygamy be culturally justified for them. However, this act does not recognise chapter nine of the Constitution of the Republic of South Africa.
Under the heading equality, chapter nine says:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
When it comes to the governance of polygamy in SA, women are not given the same rights and are therefore discriminated against based on their gender.
Human rights and gender activists were consulted in the drafting of this Green Paper and have made it known that “equality demands that polyandry be legally recognised as a form of marriage”.
In some isolated villages in the Himalayas, women have been known to have more than one husband. Like some African countries, polyandry is a norm in these areas, where the Himalayas is also referred to as the “land of women”. Polyandry is not as common as it used to be there but is still a part of their society.
In the 21st century, polyandry is still common in the plateau of Tibet and the Marquesas Islands in the South Pacific.
Traditional leaders say that “only men are permitted to have multiple spouses”. Polyandry is, therefore, deemed un-African.
So were same-sex marriages, which are legal, although same-sex couples still receive backlash from officials.
A proposal, not a policy
The proposal for a gender-neutral marriage regime has caused much controversy in the public, requiring Minister of the Home Affairs Elias Motsoaledi to say: “Please let us lower the excitement and deal with the very important issues mentioned.”
The minister expressed his disappointment at the public commentary on polyandry. Some media houses have communicated the proposal as a policy, but it is not yet policy.
The draft was published in April 2021 for public comment and the Marriage Bill will only be tabled in Parliament by 31 March 2023.
Citizens are requested to add their voices to the proposal so all views and opinions are considered.
Moving away from traditional marriage as we know it will require an adjustment.