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[2011] ZAGPJHC 173
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MG v BM and Others (10/37362) [2011] ZAGPJHC 173; 2012 (2) SA 253 (GSJ) (22 November 2011)
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SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
10/37362
Date:22/11/2011
In the matter between:
M
Z
G
…...............................................................................................
Applicant
and
BM
...........................................................................................
First
Respondent
As an executrix of the late estate
B M
THE
DEPARTMENT OF HOME AFFAIRS
.................
Second
Respondent
THE MASTER OF THE SOUTH GAUTENG
HIGH
COURT
.......................................................................
Third
Respondent
J U D G M E N T
MOSHIDI, J
:
INTRODUCTION
[1] The applicant seeks three
orders. Firstly, she seeks an order condoning the late registration
of the customary marriage entered
into between herself and B M (“
the
deceased
”).
Secondly, the applicant seeks an order compelling the second
respondent to register the customary marriage entered into
between
herself and the deceased on 8 June 2000. Finally, the applicant
seeks an order directing the second respondent to issue
a marriage
certificate to her.
[2] The application is opposed
strenuously by the first respondent. On the other hand, the second
and the third respondents, who
were served with the current
application, have not filed opposing papers, and appear to abide the
decision of this Court. In fact,
the second respondent advised the
applicant to launch the present application in a letter addressed to
her on 29 October 2010.
The letter, “
Annexure
17
” to the
founding papers, becomes relevant later herein. The second
respondent is the Department of Home Affairs a Government
Department
charged with the responsibility for the registration of all
marriages, in particular, in terms of Regulation 5B of the
Regulations made under the Marriage Act 25 of 1961. The third
respondent is the Master of the South Gauteng High Court.
COMMON CAUSE FACTS
[3] From the papers several
facts are common cause. At this stage it is appropriate to state that
whilst the applicant is resident
in Pimville, Soweto, the first
respondent resides in Ladysmith, in the KwaZulu-Natal Province. It
is common cause that the deceased
and the first respondent entered
into a valid customary marriage at Weenen on 9 May 1996. The
customary marriage certificate was
duly issued on 13 December 2002.
At the time of his death on 1 February 2010, the deceased was still
married to the first respondent.
The deceased was conducting and
operating a taxi business, and appears to have been financially
secured. Three children were born
out of the marriage between the
deceased and the first respondent. The first respondent has since
been appointed by the third respondent
as executrix in the estate of
the deceased. It is further common cause that out of the relationship
between the deceased and the
applicant, which commenced at least
prior to 8 June 2000, four minor children were born. These children
were born on 9 October
2000, 14 April 2003, and 3 June 2007 (twins),
respectively. The children presently stay with the applicant at the
Pimville, Soweto,
address which the applicant refers to as “
the
common home
”
with the deceased.
THE ISSUES IN DISPUTE
[4] The only issue to be
determined by this Court is whether there existed a valid customary
marriage between the deceased and
the applicant. If the answer is in
the affirmative, it may become necessary to also determine the status
of such customary marriage.
There is also a dispute as to whether
the first respondent currently maintains and cares for the minor
children living with the
applicant. However, this issue is irrelevant
to the determination of the main dispute.
THE APPLICANT’S CONTENTIONS
[5] The applicant contends that
prior to 8 June 2000, the deceased together with his family, as well
as the first respondent, convened
a meeting to discuss the issue of
the applicant becoming the second wife to the deceased. At that
meeting the first respondent
in fact gave her consent. Thereafter,
on 8 June 2000, a delegation of the deceased’s family attended
at her parental home
to resume the lobolo negotiations. In this
regard there is attached to the founding papers a handwritten letter
in the isiZulu
language. In terms of the letter, the appellant’s
family was represented by her biological father, M J Gama, and N Gama
as
well as B Gama. The deceased’s family was represented by B
Ximba and T Mhlongo. The agreed lobolo was R7 800,00, representing
seven head of cattle. The confirmatory affidavit of M J Gama, who
represented the applicant’s family, is also attached.
Also
attached to the founding papers is a confirmatory affidavit of B
Ximba, the biological father to the applicant, who was representing
the applicant’s family. The lobolo letter is dated 8 June 2000
and signed by all the witnesses on the same date. The addresses
of
the applicant’s father and B Ximba, her uncle, is the address
in Pimville, Soweto. This suggests, overwhelmingly that
the lobolo
negotiations occurred at the venue referred to by the applicant as
the “
common
home
”, which she
shared with the deceased. It is common cause that the address of the
applicant in Pimville, Soweto, is in fact
the immovable property of
the deceased. The first respondent concedes that the deceased and
the applicant lived together at this
address, although not as husband
and wife on her version.
The applicant further alleges
that she had established a relationship with the first respondent.
The latter in fact knew in
advance about the lobolo negotiations
and the customary marriage between the deceased and the applicant.
Both wives visited
each other during the December holidays and
attended family functions as the wives of the deceased. However,
the relationship
soured after the death of the deceased on 1
February 2010. The main reason for the breakdown of the
relationship was the disagreement
over the distribution of the
assets of the deceased. The deceased passed away at the Pimville,
Soweto, common home where the
applicant and the deceased had been
living together as husband and wife from the month of their
customary marriage (8 June
2000).
The applicant continues to make
some significant allegation which may have an important bearing on
the outcome of this matter.
This is that, in 2006 at Ladysmith,
KwaZulu-Natal, she and the deceased instructed Dion Röder
Attorneys of Ladysmith,
KwaZulu-Natal, to register their customary
marriage and prepare a written contract, as envisaged in sec 7(6)
of the Recognition
of Customary Marriages Act 120 of 1998 (“
the
Customary Marriages Act
”).
The attorneys duly drafted the necessary documentation which the
deceased and the applicant commissioned later on
22 April 2008.
However, due to lack of funds and the ill-health of the deceased,
the attorneys could not proceed with the
formal court application
as is required by sec 7(7), (8) and (9) of the Customary Marriages
Act. Attached to the replying
papers is correspondence and a copy
of the written contract from Attorneys Dion Röder. I deal
later in this judgment
with these annexures.
On 29 June 2010, the applicant
approached the second respondent to register the customary
marriage. However, the second respondent
refused to accede to the
request, which resulted in the instant application.
THE FIRST RESPONDENT’S CONTENTIONS
[6] The first respondent opposes
the relief claimed by the applicant. The main grounds for such
opposition are that, the deceased
at no stage intended to enter into
a customary marriage with the applicant; the marriage cannot be
registered after the death of
a deceased; the applicant and the
deceased merely cohabitated as boyfriend and girlfriend; the sole
reason why the applicant now
seeks to register the marriage is her
desire to access the assets of the deceased; there was never any
lobolo negotiations between
the applicant’s family and that of
the deceased; and that the deceased never sought her consent to enter
into a second customary
marriage with the applicant, which consent
she would, in any event, have withheld. In support of her
allegations, the first respondent
attaches to her papers a
confirmatory affidavit of the deceased’s elder brother, M
Mchunu, who disclaims any knowledge of
lobolo negotiations involving
his family and that of the applicant. The first respondent also
claims that she continues to take
care of the applicant’s
children since they are her late husband’s children.
[7] In the replying affidavit
and annexures thereto, the applicant refers to documentary proof that
completely dispels the first
respondent’s assertions about the
customary marriage between the deceased and the applicant. For
example, Annexure “MZ1”
to the replying papers is an
affidavit sworn to by the first respondent at Ladysmith Police
Station on 3 July 2002. In this affidavit,
the first respondent
stated,
inter alia
,
that:
“
I
wish to state under oath that I am married (legally) to Buzamashinga
Mchunu ID No. 610505 5283 08 0. I hereby give consent to
him taking
a second wife Makhosazane Zerish Gama ID No. 720915 0653 08 7.
”
In a further affidavit annexed to
the answering papers, the first respondent admitted that both she and
the applicant are the wives
of the deceased. These annexures show
convincingly that, not only that the first respondent gave her
consent for the deceased
to marry a second wife, but also that she
regarded the applicant has one of the wives of the deceased. The
applicant also alleges
that both the first respondent and the
deceased’s elder brother, in spite of their denials, were in
fact present at the traditional
wedding between the deceased and the
applicant and partook in the celebrations. The house at the Pimville,
Soweto, address, was
bought by the deceased for the applicant and her
children.
THE SECOND RESPONDENT’S REASONS FOR DECLINING TO REGISTER THE
CUSTOMARY MARRIAGE
[8] In the letter addressed to
the applicant on 29 June 2010, and in declining to register the
customary marriage, the second respondent
stated:
“
Recognition
of Customary Marriages Act, 1998 (Act 120 of 1998) came into
operation with effect from the 15
th
November 2000. Section 4(3)(a) of the Act provides that a customary
marriage entered into before the commencement of the Act,
and which
is not registered in terms of any other law, must be registered
within the period of 12 months after that commencement
or within such
longer period as the Minister may from time to time prescribe the
extension of the registration of the customary
marriages entered into
before the commencement of the Act from period of 12 months after
commencement (i.e. 15
th
November 2001) to 14
th
November 2002. Section 4(3)(b) provides that a customary marriage
entered into after the commencement of this Act, must be registered
within a period of three months after the conclusion of the marriage
or within such longer period as the Minister may from time
or time
(
sic
)
prescribe by notice in the gazette
(
sic
)
.
No further extension was prescribed thereafter, and therefore it
means that a registering officer may not register any customary
marriage entered into before the commencement of the Act. Any such
registration will be contrary to the provision of section 4(3)(b)
of
the Act. You may invoke the provisions of section 4(7) of the Act
and make an application to the court for an order to register
your
customary marriage …
”
In terms of sec 1 of the
Customary Marriages Act, “
customary
marriage
” means
“
a marriage
concluded in accordance with customary law
”.
“Minister” means
“
the
Minister of Home Affairs
”.
[9] Based on the above facts,
common cause or disputed, it is necessary to deal with some
applicable legal principles, coupled
with the relevant provisions of
the Customary Marriages Act. However, prior to doing so, it is
noteworthy that in argument, neither
of the parties contended that,
based on the conflicting versions of the parties, there are present
in this application disputes
of fact which are incapable of
resolution on affidavits. See for example
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
2003 (1) SA 11
(SCA) (para [5]. Instead, counsel for the respondent in his heads of
argument argues that, “
since
a dispute of fact exists in this matter, the test for final relief to
be granted as stated in Plascon-Evans Paints v Van Riebeeck
Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), at 634H-635C, must be applied
”,
in resolving the disputed issue in this matter. I agree with this
approach unreservedly.
[10] The starting point in the
line of some applicable legal principles, is the trite requirement
that the applicant bears the
onus
of proving on a balance of preponderance that a customary marriage
existed between her and the deceased. In
Baadjies
v Matubela
[2002] 2
All SA 623
(W), the issue to be determined was whether the applicant
was a spouse in terms of customary law. In upholding a point
in
limine
to the effect
that no customary marriage existed, Francis AJ (as he then was), at
para [17] said:
“
…
where there is a dispute about whether such a marriage was entered
into, the production of a certificate of registration of a customary
marriage issued either in terms of the Act or any other applicable
statute would be prima facie proof of the existence of that
marriage.
A spouse who is not in possession of such a certificate, can also
approach this Court on application that such customary
marriage is
entered into in terms of section 4(7)(a) of the Act.
”
See also
Mabuza
v Mbatha
[2003] 1 All
SA 706
(C). It is common cause that in the instant matter, the
applicant has produced no certificate of registration of her
customary
marriage to the deceased, hence the present proceedings.
It is equally a notorious fact that prior to the new political
democratic
dispensation in 1994, the registration of customary unions
or marriages was almost non-existent due to the negative attitude
towards
customary law.
[11] However, the advent of the
Constitution, followed by the Recognition of Marriages Act, commenced
to improve matters. Much
has since been written about the
recognition of customary marriages. The preamble to the Customary
Marriages Act, which came into
operation on 15 November 2000,
provides:
“
To
make provision for the recognition of customary marriages; to
specify the requirements for a valid customary marriage; to regulate
the registration of customary marriages; to provide for the equal
status and capacity of spouses in customary marriages; to regulate
the proprietary consequences of customary marriages and the capacity
of spouses of such marriages; to regulate the dissolution
of
customary marriages; to provide for the making of regulations; to
repeal certain provisions of certain laws; and to provide
for matters
connected therewith.
”
In regard to particularly the
requirements for valid customary marriages, sec 3(1) of the Customary
Marriages Act provides as follows:
“
(1)
For a customary marriage entered into after the commencement of this
Act to be valid –
the prospective spouses –
must both be above the age of 18 years; and
must both consent to be married to each other under customary
law; and
(b) the marriage must be
negotiated and entered into or celebrated in accordance with
customary law.
”
In regard to the registration of
customary marriages, sec 4(1), (2) and (3) provide as follows:
“
(1)
The spouses of a customary marriage have a duty to ensure that their
marriage is registered.
(2) Either spouse may apply to the registering officer in the
prescribed form for the registration of his or her customary marriage
and must furnish the registering officer with the prescribed
information and any additional information which the registering
officer may require in order to satisfy himself or herself as to the
existence of the marriage.
A customary marriage –
(a) entered into before the
commencement of this Act, and which is not registered in terms of any
other law, must be registered
within a period of 12 months after that
commencement or within such longer period as the Minister may from
time to time prescribe
by notice in the Gazette.
”
In terms of Government Notice No.
51 in Government Gazette 32916 of 5 February 2010, the prescribed
period for the registration
of customary marriages referred to in sec
4(3)(a), was last extended to 31 December 2010.
[12] From the provisions of sec
3(1) of the Customary Marriages Act, quoted above, there is no doubt
that the deceased and the
applicant satisfied all the requirements
prescribed when they entered into the customary marriage on 8 June
2000. They were both
adults over 18 years. They both consented to
the marriage. Their marriage was negotiated through the lobolo
process. An amount
of R7 800,00 was agreed to by the respective
family representatives. The customary marriage was celebrated.
There was a traditional
wedding. The couple cohabitated as husband
and wife at the Pimville, Soweto, address. Between the period 2000
and 2007, four minor
children were born of the customary marriage.
The version of the applicant in regard to the existence of the
customary marriage
is not only corroborated by the deceased’s
uncle, B Ximba, and brother of the applicant, M J Gama, but also by
the first
respondent, despite her current denials. I find that on
the credible evidence, the version of the applicant is more probable
and
she has succeeded in discharging the
onus
placed on her. The evidence show overwhelmingly that, not only was
the first respondent aware of the lobolo negotiations, the customary
marriage, and the celebration thereof, but she also regarded the
applicant as one of the wives of the deceased. She says she looks
after and cares for the children born of the customary marriage
between the deceased and the applicant. The sudden change of heart
by the first respondent is most likely caused by the greed to exclude
the applicant from the assets of the deceased.
[13] Insofar as the requirements
for registration of a customary marriage are concerned, and as
prescribed by sec 4 of the Customary
Marriages Act, it is clear that
both spouses have the duty to ensure that their marriage is
registered. It is further plain that
either spouse has the option to
apply to the registering officer in order to register their customary
marriage after 8 June 2000.
It is common cause that both the
deceased and the applicant did not do so until much later when their
attempt to register failed,
as discussed below. The applicant
provides a plausible explanation for the delay when she states that
she and the deceased were
unaware that they had to register their
customary marriage earlier. It was only after she had approached the
second respondent
to register the marriage (29 June 2010), that she
became aware of the requirement to register the marriage. The first
respondent,
in the answering affidavit merely denies this allegation
of the applicant and puts her to the proof thereof. In any event,
the
failure of the deceased and the applicant to register their
customary marriage as prescribed, is, in my view, not fatal to her
application since sec 4(9) of the Customary Marriages Act provides
clearly that:
“
Failure
to register a customary marriage does not affect the validity of that
marriage.
”
In
Wormald
NO and Others v Kambule
[2005]
4 All SA 629
(SCA), Combrink AJA, whilst arriving at the same
conclusion as the majority judgment, at para [37] said:
“
In
conclusion I need to mention that
section 4(9)
of the
Recognition of
Customary Marriages Act 120 of 1998
provides that registration of a
customary marriage is not essential to its validity.
”
Furthermore, the Customary
Marriages Act is a relatively new law on the statute book. It came
into operation as we know, on 15
November 2000, some five months
after the applicant and the deceased entered into their customary
marriage. The Minister of Home
Affairs has deemed it fit to extend,
on several occasions, the prescribed period within which registration
of customary marriages
must be made. In my view, the reason for such
extensions is simply to allow the huge population of the participants
in customary
marriages and customary law to fully become acquainted
with the provisions of the legislation. To make the point, the
initial
extension of the 12 months period within which to register
customary marriages under sec 4(3) of the Customary Marriages Act,
was
extended by the Minister of Home Affairs until 14 November 2002
as published under Government Notice No. 1228 in Government Gazette
22839 of 23 November 2001. As stated earlier in this judgment, the
last known extension was made until 31 December 2010.
[14] I conclude therefore that
on the disputed issue, whether or not there existed a valid customary
marriage between the deceased
and the applicant, the credible
evidence of the applicant has established convincingly the existence
of such a marriage. I also
find that the customary marriage between
the applicant and the deceased is a customary marriage entered into
validly on 8 June
2000, and as envisaged in sec 4(3)(a) of the
Customary Marriages Act. I am therefore satisfied that on the
evidence, I am enjoined,
in the exercise of my discretion, to issue
an order for the registration of the customary marriage between the
deceased and the
applicant as provided for in sec 4(7) of the
Customary Marriages Act. However, if I am incorrect in my
determination above, I
believe that the applicant should succeed on
another ground. This is that, at the time of the conclusion of the
customary marriage
between the deceased and the applicant (8 June
2000), their marriage was not registered in terms of any other law,
including the
legislation under discussion. This much is common
cause. From the preamble to the Customary Marriages Act, quoted in
full earlier
in this judgment, it is more than plain that the
Legislature indeed made a serious statement to recognise the
existence of customary
marriages as well as the registration thereof
for a variety of cogent reasons. In this regard, sec 2(1) of the Act
provides that:
“
A
marriage which is a valid marriage at customary law and existing at
the commencement of this Act is for all purposes
recognised
as a marriage.
”
(my underlining)
Furthermore, sec 2(3) of the Act
provides that:
“
If
a person is a spouse in more than one customary marriage, all valid
customary marriages entered into before the commencement
of this Act
are for all purposes
recognised
as marriages.
”
(my underlining)
In the absence of the prescribed registration, there is no evidence
to suggest that the marriage between the deceased and the applicant
was not a valid marriage at customary law. It existed before the
commencement of the Customary Marriages Act. It was concluded,
as
stated above, on 8 June 2000, whilst the Act came into operation on
15 November 2000. Additionally, the deceased was already
a spouse in
another customary marriage with the first respondent. There is no
reason why this customary marriage to the applicant
should not be
recognised.
[15] Finally, pursuant to my
finding that there was a valid customary marriage between the
deceased and the applicant, I now turn
to what appears to be the most
contentious aspect of the matter. This is the criticism levelled
against the deceased for failing
to timeously invoke the provisions
of sec 7(6) of the Customary Marriages Act when entering into a
further customary marriage with
the applicant. It is appropriate to
reproduce in full the provisions of sec 7(6), (7) and (8) of the
Customary Marriages Act,
which provide as follows:
“
(6)
A husband in a customary marriage who wishes to enter into a further
customary marriage with another woman after the commencement
of this
Act must make an application to the court to approve a written
contract which will regulate the future matrimonial property
system
of his marriage.
When considering the application in terms of subsection 6 –
the court must –
(i) in the case of a marriage which is in community of property
or which is subject to the accrual system –
(aa) terminate the matrimonial property system which is
applicable to the marriage; and
effect a division of the matrimonial property;
(ii) ensure an equitable distribution of the property; and
take into account all the relevant circumstances of the family
groups which would be affected if the application is granted;
(b) the court may -
allow further amendments to the terms of the contract;
grant the order subject to any condition it may deem just; or
refuse the application if in its opinion the interests of any of
the parties involved would not be sufficiently safeguarded by means
of the proposed contract.
(8) All persons having a
sufficient interest in the matter, and in particular the applicant’s
existing spouse or spouses
and his prospective spouse, must be joined
in the proceedings instituted in terms of subsection (6).
”
[16] This issue is intimately
linked to the question of the registration of the customary marriage
between the applicant and the
deceased, which I dealt with above, and
the reasons for my finding. The evidence of the applicant is that in
an endeavour to have
their customary marriage properly registered,
she and the deceased approached, and instructed Attorneys Dion Röder,
as stated
earlier in this judgment. The applicant went further to
state in para 17 of the replying affidavit that:
“
I
aver that the deceased, First Respondent and myself went to an
attorney in KwaZulu-Natal and we attempted to have the marriage
between the deceased and myself registered and have the matrimonial
regime between her and the deceased changed. We were all given
supporting affidavits by the attorney to commission and we never went
back to return the affidavits because of financial difficulties.
”
The intended application and
memorandum of agreement prepared by Attorneys Dion Röder show
that the first applicant, the second
applicant, and the third
applicant therein, were the deceased, the first respondent, and the
applicant, respectively. The application
was to be launched in the
North-Eastern Divorce Court, held at Newcastle. The memorandum of
agreement was entered into by the
same three parties. However, the
supporting affidavit of the first respondent in this matter is for
some inexplicable reason,
not part of the papers attached to the
replying affidavit. What is of significance, however, are the
contents of the signed and
commissioned supporting affidavits of the
deceased and the applicant. In her supporting affidavit, the present
applicant stated,
inter
alia
:
“
I
have met the Second Applicant (the first respondent in the present
matter) and have been informed by her that she no objection
to the
proposed marriage between First Applicant (the deceased) and myself.
The two families live in Ladysmith and Soweto respectively
and there
is no conflict or opportunity for disputes between us. I was also
fully involved with both the other applicants in the
negotiations and
discussions with our attorney and fully approve of and agree with the
terms and conditions contained in the agreement
filed herewith as
Annexure ‘A’
.”
(my insertions).
For his part, the deceased, as
the first applicant, stated in his affidavit,
inter
alia
, that:
“
The
second proposed marriage was arranged with the full cooperation and
support of the first wife, the Second Applicant. She fully
informed
of the negotiations and the progress thereof and she contributed in
the collecting of the lobola goods to be paid to the
family of the
Third Applicant. Both Second and Third Applicant also took part in
all discussions with our lawyer in the drawing
of the contract
annexed to the application and both made the necessary inputs to
conclude the agreement to the satisfaction of
the three of us. …
It is now necessary to obtain the permission of this Court to
terminate the matrimonial property system
of my first customary
marriage with the Second Applicant and effect a division of the
matrimonial property as detailed in the annexed
agreement between the
three Applicants.
”
The signature of the first respondent in the present matter does not
appear on the proposed contract.
[17] What emerges from the above
affidavits in support of the intended application to court, albeit in
the absence of the first
respondent’s supporting affidavit,
more than enough, fortifies me in the finding made above that there
existed a valid customary
marriage between the deceased and the
applicant. The affidavits referred to establish, with convincing
probability that, not only
did the first respondent know and consent
to the deceased’s customary marriage to the applicant, but she
also actively and
constructively took part in the negotiations and
activities leading up to the fruition of the customary marriage. She
was prepared
to be a co-applicant in the abandoned court proceedings
as envisaged in sec 7(6) of the Customary Marriages Act. The first
respondent
did not file any further affidavits to rebut the
allegations made in the replying affidavit dealing with her role in
the intended
court application. Her bare denial is rather unhelpful.
As a consequence, based on the principles enunciated in
Plascon-Evans Paints
Ltd (supra
) and
Soffiantini v Mould
1956 (4) SA 150
(E) at 154G-H, the probabilities overwhelmingly
favour substantially the version of the applicant.
[18] The crisp and critical
issue in this application remains the question whether the failure of
the deceased to invoke the provisions
of sec 7(6) of the Customary
Marriages Act, is fatal to the applicant’s case. I think not.
I have already found that the
failure to register the customary
marriage timeously or as prescribed, does not signal the end of the
applicant’s case.
I must add that in
Kambule
v Master of the High Court and Others
[2007] 4 All SA 898
(E), the key issue was whether the applicant and
the deceased were parties to a valid customary law marriage. As in
the present
matter, there were also disputes of fact as to the
existence or not of a customary law marriage. In finding that the
failure by
the parties to a customary marriage to register such
marriage in terms of the Transkei Marriage Act would not affect its
validity,
Pickering J, at 902-903, said:
“
In
the view that I take of the matter it is not necessary to determine
what the effect of the non-registration of the customary
marriage was
in terms of the Transkei Marriage Act because, in my view, whatever
perceived impediment there may be to the validity
of the marriage
because of the fact of non-registration under the Act, the marriage
has been validated by the Recognition of Customary
Marriages Act 120
of 1998 (‘the Recognition Act’).
”
See also
Wormald
NO and Others v Kambule (supra)
.
[19] Indeed, the real issue in
adjudicating the failure of the deceased in the present case to
register his customary marriage,
as described above, is the proper
and correct interpretation of the provisions of sec 7(6) of the
Customary Marriages Act. Legal
journals and publications are replete
with uncertainty regarding the proper and future interpretation of
the section. The critical
words in sec 7(6) are:
“
A
husband … who wishes to enter into a further customary
marriage … must make an application to the court to approve
a
written contract which will regulate the future matrimonial property
system of his marriages.
”
More recently, in
M
M v M N
2010 (4) SA
286
(GNP) Bertelsman J had occasioned to consider the provisions of
sec 7(6) of the Customary Marriages Act. The facts were, briefly,
as
follows. The deceased husband was alleged to have married the first
respondent according to customary law on 6 January 2008.
The marriage
was confirmed by the headman of the first respondent’s village.
The applicant was unaware of the fact that
her husband had entered
into another marriage according to customary law until after his
passing. The applicant had married the
deceased in accordance with
customary law and tradition on 1 January 1984. This marriage was not
registered. It was common cause
in that case that the second marriage
was not preceded by an application to a court of appropriate
jurisdiction for an order approving
a contract to regulate the future
matrimonial property system of the two marriages, as prescribed for
in sec 7(6) of the Customary
Marriages Act. The applicant contended
that the second marriage was null and void because of the failure to
obtain such an order.
Bertelsman J considered the matter in great and
admirable depth, including the relevant provisions of the Bill of
Rights enshrined
in the Constitution. Bertelsman J, at para [24] of
the judgment, found that:
“
The
failure to comply with the mandatory provisions of this subsection
(section 7(6)) cannot but lead to the invalidity of a subsequent
customary marriage, even though the Act does not contain an express
provision to that effect. Cronje and Heaton argue in South
African
Family Law 2 ed at 204, that the courts’ intervention would be
rendered superfluous – which the legislature
could not have
intended – if invalidity did not result from a failure to
observe ss (6). See further S Human, op cit, who
endorses this
view.
” (my
insertion)
Having come to the conclusion
that the first respondent’s purported marriage to the deceased,
entered into after the Act was
promulgated, was not proceeded by the
conclusion of a contract as envisaged in sec 7(6) of the Act,
Bertelsman J declared the
purported marriage of the first respondent
to the deceased to be void. The applicant was ordered to be entitled
to have her marriage
to the deceased registered.
[20] I must at the outset
observe that the facts in the
M
M v M N
case were
somewhat distinguishable from the facts in the present matter.
Firstly, in the instant matter, the customary marriage
between the
deceased and the first respondent entered into on 9 May 1996, was
duly registered as evidenced by the marriage certificate
attached to
the answering affidavit. Secondly, the customary marriage between
the deceased and the applicant in the instant matter
occurred prior
to the commencement of the Customary Marriages Act, namely on 8 June
2000, as opposed to the purported and challenged
marriage in
M M v M N
,
which occurred on 6
January 2008. Thirdly, the first respondent in the present matter
has been found to have been fully and completely
active and aware of
the second customary marriage, as opposed to the applicant in
M
M v M N
case, who was
unaware of the fact that her husband had entered into another
marriage according to customary law until after his
passing.
Fourthly, and to a visible extent, in the present matter, the
uncontroverted evidence is that the deceased, the applicant
and
indeed the first respondent, made an attempt but, abandoned the
envisaged application in terms of sec 7(6) of the Customary
Marriages
Act. The reasons for the abandonment of the application have been
satisfactorily explained, namely the lack of funds,
the intervening
ill-health of the deceased and his ultimate passing. There is yet
another compelling reason, in my view, which
makes the failure of the
deceased, and the applicant to comply with the provisions of sec 7(6)
of the Act free from any sanction.
This is that sect 7(6) provides
clearly that, “
a
husband … who wishes to enter into a further customary
marriage with another woman
after the commencement of
this Act
…
”
(my emphasis). It is common cause that the customary marriage
between the deceased and the applicant was entered into before
the
commencement of the Act, namely on 8 June 2000. The Customary
Marriages Act commenced on 15 November 2000 only. For these
reasons,
I remain unpersuaded, and with respect, reluctant to follow the
conclusion reached by Bertelsman J.
[21] There is another difficulty
I have in following the decision in
M
M v M N
. This is that,
in interpreting the provisions of sec 7(6) of the Customary Marriages
Act, Bertelsman J found that failure to comply
with the mandatory
provisions of sec 7(6) of the Act:
“
cannot
but lead to the invalidity of a subsequent customary marriage, even
though the Act does not contain an express provision
to that effect.
”
The immediate question that
arises in the context of the present matter is, what is the
significance and consequence of the finding
that the second customary
marriage between the applicant and the deceased is valid? Can it be
ignored completely without any prejudice
to the applicant? Was it in
fact the intention of the Legislature? I think not.
[22] In my view, by concluding a
valid customary marriage with the deceased, as I have found, the
applicant acquired certain rights.
In terms of sec 6 of the Customary
Marriages Act, a wife in a customary marriage has, on the basis of
equality with her husband
and subject to the matrimonial property
system governing the marriage, full status and capacity, including
capacity to acquire
assets and dispose of them, to enter into
contracts and to litigate, in addition to any rights and powers that
she might have at
customary law. In addition, in
Gumede
v President of the Republic of South Africa and Others
2009 (3) SA 152
(CC), the Court declared as unconstitutional and
discriminatory against women, the provisions of sec 7(1) and (2) of
the Customary
Marriages Act governing the proprietary consequences of
customary marriages. This related to customary marriages in
KwaZulu-Natal
entered into before the commencement of the Customary
Marriages Act, as
in
casu
, on 15 November
2000. In my view, on a proper interpretation of the provisions of
sec 7(6) of the Customary Marriages Act, using
the ‘
golden
rule
’ of
interpretation, it could simply never have been the intention of the
Legislature to remove these rights from spouses
such as the applicant
in the present matter. In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC), at para [72], Ngcobo J (as he then was) said:
“
The
Constitution is now the supreme law in our country. It is therefore
the starting point in interpreting any legislation. Indeed,
every
court ‘must promote the spirit, purport and objects of the Bill
of Rights’ when interpreting any legislation.
That is the
command of s 39(2).
”
See also
Fish
Hoek Primary School v G W
2010
(2) SA 141
(SCA) at para [13]. Furthermore, whilst the provisions of
sec 4 of the Customary Marriages Act places the duty to register a
customary
marriage on the spouses. Section 7(6) makes it clear that
it is the husband in a customary marriage who, “
must
make an application to the court to approve a written contract which
will regulate the future matrimonial property system of
his
marriage
”. This
begs the question why should the wife, the applicant in the present
matter, be penalised or prejudiced for the failure
of the deceased to
comply with this requirement. In any event, as indicated earlier in
this judgment, Bertelsman J in
M
M v M N
(
supra
),
came to the conclusion, and correctly so in my view, that the Act
does not contain an express provision to invalidate a subsequent
customary marriage for failure to comply with the provisions of sec
7(6) of the Customary Marriages Act. For all these reasons,
I
conclude that the failure by the deceased and/or the applicant to
apply to court timeously to approve a written contract which
would
regulate the future matrimonial property system of their customary
marriage, does not invalidate their customary marriage
as contended
for by the first respondent. It is a valid customary marriage. It
follows that the applicant has succeeded in making
out a case for the
relief claimed in the notice of motion.
THE PROBLEMS WITH THE PROVISIONS OF
SECTION 7(6)
OF THE
RECOGNITION
OF CUSTOMARY MARRIAGES ACT
[23
] I feel duty bound to note,
during my research in preparation of this judgment, and as the heads
of argument prepared by the parties
were extremely unhelpful, it
became abundantly clear that much has been written on the provisions
of sec 7(6) of the Customary
Marriages Act. There presently exists a
great deal of uncertainty. The uncertainty is caused largely by the
absence of a penalty
provision in the event of non-compliance with
the section. For example, writing in the
Tydskrif
vir Hedendaagse Romeins-Hollandse Reg (THRHR)
,
Band 70 Number 1, February 2007, Prof Pieter Bakker, at p 487, wrote:
“
It
is not certain what the consequences would be if a man entered into a
second marriage without complying with section 7(6).
Maithufi and Moloi argue that
the second marriage should be valid and that such a marriage should
be regarded as out of community
of property and profit and loss
(2002
TSAR 609).
They contend that the purpose of section 7(6) is to avoid
unnecessary future litigation concerning property brought into the
marriage
and property acquired during the marriage (ibid). They
further contend that an invalid marriage, where the wife regarded
herself
as married, is a very harsh consequence, especially in the
case where the wife was also considered married by the community
(“The
need for the protection of rights of partners to invalid
matrimonial relationships: A revisit of the ‘discarded spouse’
debate” 2005 De Jure 152) … This section does not
contain any sanction should it be disregarded … The second
marriage should, therefore, be valid even where the requirements of
section 7(6) are disregarded. Non-compliance with section
7(6) will
not affect the first wife negatively where she was married out of
community of property with the exclusion of the accrual
system.
Where the first wife was married out of community of property, the
property system will continue after her spouse marries
his second
wife. The only contract that can be drafted is an agreement to
continue with the marriage out of community of property.
Therefore,
non-compliance will have no effect on the first wife if the first
customary marriage is out of community of property.
Non-compliance
with section 7(6) could affect the first wife negatively where she
was married in community of property or out
of community of property
subject to the accrual system. However, this construction will not
lead to any injustice against the
first wife due to the application
of section 8(4)(b):
‘
[The court] must, in
the case of a husband who is a spouse in more than one customary
marriage, take into consideration all relevant
factors including any
contract, agreement or order made in terms of section 7(4), (5), (6)
or (7) and must make any equitable order
that it deems fit.’
(It is unclear why the Act
refers to section 7(5) as this section is only applicable to
monogamous customary marriages.)
”
The learned Professor went on to conclude that:
“
If
section 7(6) is construed to be peremptory in nature, non-compliance
will lead to the invalidity of the second marriage. Consequently,
if
the man does not comply with section 7(6)( but all other requirements
are adhered to, the second wife will be married in the
eyes of the
community even though the marriage will not be officially recognised
by the state. A new unofficial customary marriage
will then be
created and the dilemma of the discarded spouse will be
re-introduced.
”
Based on the opinions expressed
in this article, just quoted, it is clear, in my view, that the
current confusion regarding the
provisions of sec 7(6) of the
Customary Marriages Act, is a matter that requires the immediate
attention of the Legislature. As
was stated persuasively and
authoritatively by Schutz JA in
POSWA
v Member of the Executive Council for Economic Affairs, Environment
and Tourism, Eastern Cape
2001 (3) SA 582
(SCA)
[2001] 6 BCLR 545
para [11]:
“
is
that the court does not impose its notion of what is absurd on the
legislature’s judgment as to what is fitting, but uses
absurdity as a means of divining what the legislature could not have
intended and therefore did not intend, thus arriving at what
it did
actually intend.
”
ORDER
[24] For all the above reasons, the following order is made:
1. The late registration of the customary marriage entered into by
the applicant and the deceased, Buzamashinga Mchunu, on 8 June
2000,
is hereby condoned.
2. The second respondent (The
Department of Home Affairs), is hereby ordered to register the
customary marriage entered into between
the applicant, and the late
Buzamashinga Mchunu, on 8 June 2000.
3. The second respondent is
hereby ordered to issue a marriage certificate to the applicant.
4. The first respondent shall pay the costs of this application.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE APPLICANT: M MOTAUNG
INSTRUCTED BY: N TUNTULWANA
COUNSEL FOR THE FIRST RESPONDENT: T L JACOBS
INSTRUCTED BY: M J SHEZI
DATE OF HEARING: 3 AUGUST 2011
DATE OF JUDGMENT: 22 NOVEMBER
2011