The protection of human rights is implicit in every interaction and relationship in South Africa’s constitutional dispensation. Human rights are stipulated in Chapter 2 of the Constitution. According to article 1 of the Convention on the Rights of Persons with Disabilities (CRPD), ‘[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.
A disabled person, as defined for the purposes of this discussion, refers to an individual with a mental impairment affecting their psychological functions. These individuals often cannot defend themselves and require protection from those who are not disabled. The Convention on the Rights of Persons with Disabilities and other legislation emphasize the importance of protecting the rights of disabled persons.
Customary Marriage Practices
Customary law and customary marriages are deeply rooted in the culture of indigenous African peoples in South Africa. A customary marriage is a union between two families, rather than just two individuals. Arranged marriages are a common practice in customary law, where family heads negotiate marriage prospects on behalf of the prospective husband and wife.
However, marriage as a legal act should not contradict any constitutional value. Consent is a necessary requirement for a valid marriage, and disabled persons with mental illnesses or intellectual disabilities may lack the capacity to give such consent. Section 3 of the Recognition of Customary Marriages Act states that both spouses must give consent to be married under customary law.
Not all individuals with mental disabilities are incapable of giving consent, as mental disability exists on a spectrum. In some cases, a mentally incapacitated person may experience lucid intervals, during which they can enter into a valid marriage. The court has held that a person declared to be of unsound mind may marry during a lucid interval, provided they have reconciled themselves with the nature of the legal act.
Article 4(b) of the Convention on the Rights of Persons with Disabilities imposes a duty to modify customs that constitute discrimination against persons with disabilities. Instances whereby there is an arranged marriage involving a mentally disabled person who cannot give full consent should amount to a failure to protect such a person and should subsequently be punishable by law. The duty to protect disabled persons falls on both the government and society.
Property Rights Concerns
The Matrimonial Property Act states that the default marriage regime is in community of property, unless otherwise specified by an antenuptial contract. In customary marriages, spouses are deemed to be on an equal footing regarding property. However, a person with a mental disability should not be deemed to be on an equal footing with someone with normal cognitive development, as this disparity can lead to further contraventions of legislation.
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In cases where a mentally disabled person is incapable of managing their own affairs, the court may appoint a curator to cede their rights with respect to property. The inability of a mentally disabled spouse to consent may result in their property being alienated without their comprehension. The right to bodily integrity, found in Section 12(2)(b) of the Constitution, may be violated when a mentally disabled person is taken advantage of due to their underdeveloped cognitive abilities.
The conflict between arranged marriages and constitutional values is particularly concerning when it comes to mentally disabled persons. Disabled individuals, especially women, are more vulnerable to violations, and marrying them off for the benefit of their families can lead to a violation of human rights.
Prohibiting marriages involving people who are unable to give full and informed consent will serve to uphold the spirit and purport of the Constitution and protect such individuals from continuous human rights violations. The law should take a firm stance against arranged marriages involving mentally disabled persons, similar to its stance on marriages involving minors.
Protecting Disabled Rights
In South Africa, the Constitution and various laws, such as the Recognition of Customary Marriages Act, provide a framework for protecting the rights of persons with disabilities. However, the implementation of these laws and the protection of disabled individuals’ rights remain a challenge, particularly in the context of customary marriages and arranged marriages.
The court’s decision in Martinson v Brown; Gray, NO v Armstrong highlights the importance of protecting the rights of mentally disabled individuals, particularly in cases where they are unable to manage their own affairs. The appointment of a curator to cede their rights with respect to property is a step in ensuring that their interests are protected.
Article 5 of the Convention on the Rights of Persons with Disabilities recognizes the vulnerability of women with disabilities and imposes a duty on the state to take measures to protect them and enable them to enjoy their rights.
