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[2010] ZAGPPHC 24
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M.M v M.N and Another (29241/09) [2010] ZAGPPHC 24 (24 March 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH DIVISION,
PRETORIA
Case
Number: 29241/09
DATE:
24/03/2010
In
the matter between:
M
M
And
M
N 1
st
Respondent
MINISTER
OF HOWIE AFFAIRS 2
nd
Respondent
JUDGMENT
INTRODUCTION
1.
On the 8
th
February 2010 the court granted an order declaring a purported
customary marriage entered into between the late H D M and the first
respondent as null and void
ab
initio.
2.
The second respondent was also ordered to register the applicant's
marriage to the deceased.
3.
The court indicated then that the reasons for judgment would be given
later.
4.
These reasons are set out below.
THE
PARTIES
5.
The applicant is M M, an adult widow residing at Malamulele,
Limpopo.
6.
The first respondent is M N, an adult woman residing at Malamulele,
Limpopo.
7.
The second respondent is the Minister of Home Affairs, cited herein
in her capacity as the political head of the Department of
Home
Affairs, which Department is responsible for the registration of all
marriages, c/o the State Attorney, 8
th
Floor, Bothongo Heights, 167 Andries Street, Pretoria.
8.
The applicant married the late H D M in accordance with customary law
and tradition at Nkovani Village on the 1
st
January 1984. Her husband passed away on the 28
th
February
2009. The marriage was not registered.
THE
ISSUE
9.
The deceased is alleged to have married the first respondent
according to customary law on the 6
th
January 2008.
10.
This marriage was confirmed by the headman of first respondent's
village.
11.
The applicant was unaware of the fact that her husband had entered
into another marriage according to customary law until after
his
passing.
12.
It is common cause 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 provided for in
section 7
of the
Recognition of Customary Marriages Act 120 of 1998
.
13.
The applicant contended that the second marriage was null and void
because of the failure to obtain such an order.
14.
The first respondent advanced the argument that the fact that her
marriage to the deceased was properly and publicly performed
in
accordance with customary law was sufficient to establish an
unassailable second marriage entered into by the deceased.
15.
In the light of the competing claims by the applicant and the first
respondent, the second respondent's offices refused to register
the
applicant's marriage to the deceased.
THE
RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998
16.The
Recognition of Customary Marriages Act
("the Act") was
introduced to place customary marriages on an equal footing with
civil marriages. The preamble reads,
inter
alia,
as
follows:
"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..."
17.Sections
2 (recognition of customary marriages as valid marriages) and 3
(recording the requirements for a valid customary marriages)
of the
Act underline the intention of the Legislature to place the customary
marriage on an equal footing with other marriages.
Section 6
establishes and enshrines the equal status of spouses in the marriage
while the proprietary consequences of a marriage are set
out in
section 7.
The Act also provides for the registration of customary
marriages entered into prior to the promulgation of the Act.
18.The
intention to place both marital systems on an equal footing by the
promulgation of the Act was recognized in
Thembisiie
v Thembisile
2002
(2) SA 209
(T); (for comment on the judgment see
Maithufi
in
2003
De
Jure
195
et seq.; and for a critical assessment of the judgment and the effect
of the Act and the potential shortcomings of both see
Bonthuys
and
Sibanda
'Til death do us part'
in
2004
South
African Law Journal
784
et seq.).
"With
the commencement of the
Recognition of Customary Marriages Act
full
legal recognition is now given to monogamous and polygynous customary
marriages entered into before and after thecommencement of
the Act."
-
S
Human
'Customary
marriages'
in
M Carnelly and A Skelton (eds)
Family
Law in South Africa,
Oxford
University Press, Cape Town (forthcoming 2010).
19.
Should a husband in a customary marriage wish to enter into a further
customary marriage with another woman during the subsistence
of the
first such marriage,
section 7
provides that the second marriage must
be preceded by an application to court (defined as a High Court, a
family court established
under any law and a Divorce Court
established under the Administration Amendment Act 9 of 1929) to
approve a written contract which
will regulate the future matrimonial
system of the marriages.
20.
Section 7 of the Act reads as follows:
"7
Proprietary
consequences of customary marriages and contractual capacity of
spouses
(1)
The proprietary consequences of a customary marriage entered into
before the commencement of this Act continue to be governed
by
customary law.
(2)
A customary marriage entered into after the commencement of this Act
in which a spouse is not apartner in any other existing
customary
marriage, is a marriage in community of property and of profit and
loss between the spouses, unless such consequences
are specifically
excluded by the spouses in an antenuptial contract which regulates
the matrimonial property system of their marriage.
(3)
Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the
Matrimonial Property Act, 1984 (Act 88 of 1984), apply
in respect
of any customary marriage which is in community of property as
contemplated in subsection (2).
(4
)(a) Spouses in a customary marriage entered into before the
commencement of this Act may apply to a court jointly for leave
to
change the matrimonial property system which applies to their
marriage or marriages and the court may, if satisfied that-
(i) there
are sound reasons for the proposed change;
sufficient
written notice of the proposed change has been given to all
creditors of the spouses for amounts exceeding R500 or
such amount
as may be determined by the Minister of Justice by notice in the
Gazette; and
no
other person will be prejudiced by the proposed change,
order
that the matrimonial property system applicable to such marriage or
marriages will no longer apply and authorise the parties
to such
marriage or marriages to enter into a written contract in terms of
which the future matrimonial property system of their
marriage or
marriages will be regulated on conditions determined by the court.
(b)
In the case of a husband who is a spouse in more than one customary
marriage, all persons having a sufficient interest in the
matter, and
in particular the applicant's existing spouse or spouses, must be
joined in the proceedings.
(5)
Section 21 of the Matrimonial Property Act, 1984 (Act ' 88 of 1984)
is applicable to a customary marriage entered into after
the
commencement of this Act in which the husband does not have more than
one spouse.
(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 marriages.
(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.
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).(9) If a court grants an application
contemplated in subsection (4) or (6), the registrar or clerk of the
court, as the case may be, must furnish each spouse with
an order of
the court including a certified copy of such contract and must cause
such order and a certified copy of such contract
to be sent to each
registrar of deeds of the area in which the court is situated."
The
validity of a subsequent marriage entered into in conflict with
section 7 (6)
21.
Section 7 emphasises the fact that spouses in a customary marriage
have equal status and capacity.
22.
It is clear that this section is aimed at protecting both the
existing spouse or spouses and the new intended spouse by ensuring
that the husband must obtain the court's consent to a further
customary marriage, albeit that such consent is expressed in
proprietary
terms.
23.
Both the existing spouse and the intending further spouse have a
vital interest in having their relative proprietary positions
safeguarded by the procedure that is laid down in sub-section (6).
Most customary marriages are concluded by persons whose access
to
worldly goods is limited and whose financial security may be severely
prejudiced by an earlier or the conclusion of another
marriage if
such fact is not disclosed to the spouses and dealt with by the
contract and the court's approval.
24.
The failure to comply with the mandatory provisions of this
subsection 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
nd
ed., p.204 that the court's intervention would be rendered
superfluous - which the Legislature could not have intended - if
invalidity
did not result from a failure to observe subsection (6).
See further S
Human,
op.cit.,
who endorses this view.
25.
A further argument that a failure to comply with the subsection leads
to invalidity of the subsequent further customary marriage
arises
from the peremptory language of the provision: The word "must",
read with the provisions of subsection (7)(b)(iii),
empowering the
court to refuse to register a proposed contract, indicates that the
Legislature intended non-compliance with the
statute to lead to
voidness of a marriage in conflict with the provision.
26.
In
Minister
of Environmental Affairs and Tourism and Others v Pepper Bay Fishing
(Pty) Ltd; Minister of Environmental Affairs and Tourism
and Others v
Smith
2004
(1) SA 308
(SCA), Brand JA said the following on 321 at par [32]:
"The
general principle is, of course, that language of a predominantly
imperative nature such as 'must' is to be construed
as peremptory
rather than directory unless there are other circumstances which
negate this construction (see eg Sutter v Scheepers
1932 AD 165
at
173 - 4). Even though the provisions under consideration are drafted
in narrative form, common sense dictates that this principle
be
afforded some weight. An even more significant indication that
timeous payment of the application fee is peremptory is that
the
invitation contains an explicit sanction for non-compliance with the
provision - an application submitted without proof of
proper and
timeous payment will not be considered (cf Sutter v Scheepers (supra
at 174)). There is also the more general consideration
that where, as
in the present case, a statute provides for the acquisition of a
right or privilege - as opposed to the infringement
of an existing
right or privilege - compliance with formalities that are prescribed
for such acquisition, should be regarded as
imperative. (See eg R v
Noorbhai
1945 AD 58
at 64; South African Citrus Exchange Ltd v
Director-General: Trade and Industry and Another (supra at 241E -
I).) In the end, these
considerations leave no room for any
construction of the specific provisions that Pepper Bay had failed to
comply with, which allows
for a discretion on the part of the Chief
Director to condone such non-compliance."
27.
The most persuasive consideration must however be the gross
infringement of the first or earlier spouses' fundamental rights:
To
respect of their dignity, physical and emotional integrity, their
right to protection from abuse - in this instance both emotional
and
economic or material - ; their right to be treated on an equal
footing with their husband as decreed by the Act; their right
to
equal status as marriage partners arising from the Act; their right
to marital support from their husband; their right to marital
intimacy and trust, which rights flow naturally from those guaranteed
by the Act and the Constitution. A gross infringement of
these rights
would be committed if the husband were to be allowed to enter into a
further marriage without their knowledge and
acquiescence.
28.
On the other hand, the intending spouse in a further marriage is, by
the same token, entitled to be fully informed prior to
the conclusion
of such marriage of her future husband's existing marriages and the
full financial and emotional consequences thereof.
29.
The Act is silent on the question whether the consent of the first or
earlier spouses to the proposed further marriage is required
or
whether their views on the proprietary and economical considerations
only need to be considered by the court. The absence of
a specific
reference to the consent of an earlier spouse would, at first blush,
suggest that the Legislature intended to leave
this question for the
determination by the provisions of the relevant customary legal
system in this respect. If so, the compatibility
with the Bill of
Rights enshrined in the Constitution of such an approach may in
future have to be considered - it clearly does
not arise in this
case.
A
fortiori,
however
must the absence of a specific requirement to obtain an earlier
spouse's consent to the proposed further marriage iead to
the firm
conclusion that, at the very-least, the consideration of the views
and needs of the earlier spouse(s) by the court seized
with the
formulation of the contract upon the approval of which the further
marriage rests, is obligatory and that no further marriage
may be
concluded without a contract having been entered into and approved by
the Court.
30.
In addition, the rights of any children born from the earlier
marriage and still dependent upon their parents may obviously
be
vitally affected. The court faced with the question whether a further
marriage should be approved must take their interests
into account as
a constitutional obligation arising from section 28(2) of the
Constitution. Their mothers would usually be in the
best position to
assess their needs and to enlighten the court in that regard, but
children of sufficient maturity will also fall
into the class of
"having a sufficient interest" intended by subsection (8)
of the Act.
31.
Seen in this light, it is clear that the conclusion that a further
marriage concluded without observing the dictates of the
Act is void
rather than voidable, is to be preferred to the argument raised by
Bennett,
Customary
Law in South Africa,
2004,
p 247 and 248. He states, after (correctly) concluding that a further
marriage in conflict with a court's order refusing to
register a
proposed contract would amount to contempt of court, that:
"The
procedure was imposed to protect wives; if they do not protest, then
their long-term interests may be better served by
treating the
relationship with the husband as a valid marriage."
In
note 39 the learned author adds:
This
argument will also accommodate the strong probability that few
husbands will comply with the Act. To deem all ensuing unions
void
will work hardship on the wives and children when the husbands die or
institute divorce proceedings."
32.
With respect to the learned author this argument cannot be upheld in
the light of the Legislature's clear intention to accord
existing
wives the full protection of the Bill of Rights in the context of
customary marriages. An existing wife may very often
be entirely
dependent upon her husband together with her children, may be unaware
of her rights, may be illiterate or too timid
or impecunious to seek
legal advice and may suffer the economic and emotional deprivation
brought about by a subsequent marriage
long before a separation as a
result of death or divorce. To rely on an absence of protest by a
wife who may live in fear of rejection
- not to mention the children
born of an earlier union - would be to consign the issue of
voidability to a most uncertain and indeed
arbitrary test. The
Legislature certainly did not intend to create a morass of
uncertainty.
33.
If a further marriage was to be recognized in spite of a failure to
comply with the Act, the additional wife might, as a result
of a
favourable marriage contract with the husband, receive considerable
financial and other benefits to the detriment, possibly
even to the
total impoverishment, of the first spouse and her children. This
would surely fly in the face of the Legislature's
intention.
34.
The answer to the risk that husbands may not be willing to enter into
the required contract before entering a further marriage
lies in the
empowerment of women in the communities in which customary marriages
are prevalent. Such empowerment must be brought
about by informing
them of their rights and the manner and fashion in which they may
protect and enforce these rights; and familiarizing
them with the
provisions of the Act.
35.
The intending spouse of a further marriage is obviously also at risk
if her marriage is not sanctioned by entering into the
required
contract, as she will find herself not to have been married at all if
the husband passes away or becomes embroiled in
a divorce. Apart from
the need to inform all women of their rights, a woman who is duped
into believing that her husband is free
to marry and not involved in
an earlier marriage may have claims sounding in delict against him or
his estate, while her children
would have been born in a putative
marriage, which fact would protect their status.
36.The
first respondent remained childless in this instance and
any
potential claims against the late husband's estate have not
been
raised in these proceedings.
The
facts
37.
It has been recorded in the Introduction that the applicant was
married in a customary marriage that was not registered as provided
for in the Act.
38.This
marriage was concluded before the Act commenced.
39.
When the applicant attempted to have the marriage registered after
the deceased's death she was informed that the first respondent
also
claimed to have been married to the deceased.
40.
The offices of the second respondent, who has abided the Court's
decision, refused to register the applicant's marriage because
of the
first respondent's claim, not because a late registration of her
marriage is impossible.
Conclusion
41.In
the light of the common cause fact that the first respondent's
purported marriage to the deceased, entered into after the
Act was
promulgated, was not preceded by the conclusion of a contract as
envisaged in section 7 (6) of the Act, the purported marriage
of the
first respondent to the deceased is void. The applicant is therefore
entitled to a declaratory order to that effect. She
is also entitled
to have her marriage to the deceased registered.
The
orders referred to above were therefore made.
Signed
at Pretoria on this24th day of March 2009.
E
BERTELSMANN
Judge
of the High Court
For
Applicant Adv T masevhe Instructed
by
Rammuha- at Law Inc
For
Resp: Adv E Niewoudt Instructed
by
Pretoria Justice Centre