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[2015] ZAGPJHC 273
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Gama v Mchunu and Others (10/37362) [2015] ZAGPJHC 273 (22 November 2015)
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REPUBLIC
OF
SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 10/37362
In the matter between:
MAKHOSAZANE
ZERISH
GAMA
Applicant
and
BONISILE
MCHUNU
First
Respondent
As an executrix of the late estate
Buzamashinga Mchunu
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 Buzamashinga Mchunu (“
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.
5.1
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).
5.2
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.
5.3
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 –
(a)
the
prospective spouses –
(i)
must
both be above the age of 18 years; and
(ii)
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.
(3)
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.
(7)
When
considering the application in terms of subsection 6 –
(a)
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
(bb)
effect
a division of the matrimonial property;
(ii)
ensure an equitable distribution of the property; and
(iii)
take
into account all the relevant circumstances of the family groups
which would be affected if the application is granted;
(b) the court
may -
(i)
allow
further amendments to the terms of the contract;
(ii)
grant
the order subject to any condition it may deem just; or
(iii)
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