The (non-)recognition of same-sex marriage in the Recognition of Customary Marriages Act 120 of 1998

The Constitution of the Republic of South Africa, 1996 provides for all people to be equal, including people of all sexual orientations, and at the same time guarantees the right to participate in the cultural life of one’s choice. This contribution examines the issue of same-sex marriage in South Africa through the combined lens of the right to equality and the right to culture. More specifically, it assesses whether same-sex couples are afforded the right to marry in accordance with their customary cultural beliefs and whether same-sex customary marriage is provided for in the Recognition of Customary Marriages Act 120 of 1998. Following an analysis of Constitutional Court jurisprudence on the right to equality and to culture, certain provisions of the Recognition Act are examined for their in-/exclusion of homosexual persons. It would appear that the only gender-neutrally phrased section in the Recognition Act dealing with customary marriages in particular is sec. 3, which lists the requirements for such marriages to be valid. Whether this was an oversight on the part of the legislature, or whether it was intentional, is uncertain. However, several other sections, notably also the definition of lobolo in sec. 1, are phrased from a distinctly heteronormative perspective. A subsequent discussion of homosexual practices in Africa serves a dual purpose. It not only debunks some prominent African leaders’ contention that homosexuality is “un-African”, but also reveals that homosexual marriage along with a number of ancillary same-sex forms of customary marriage are not catered for in the provisions of the Recognition Act. In light of these findings, the contribution concludes with recommendations for the improvement of the Recognition Act to be less exclusionary and discriminatory. It is further argued that, by adjusting the phrasing of the Act, the South African legislature stands to gain much more than affording same-sex couples recognition in customary law. It would also go a long way towards promoting a culture of tolerance towards all people, in line with what the Constitution demands