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[2012] ZASCA 94
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Ngwenyama v Mayelane and Another (474/2011) [2012] ZASCA 94; 2012 (4) SA 527 (SCA); 2012 (10) BCLR 1071 (SCA); [2012] 3 All SA 408 (SCA) (1 June 2012)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 474/2011
Reportable
In
the matter between:
M
M N
..........................................................................................................
Appellant
and
M
F M
.............................................................................................
First
Respondent
MINISTER
OF HOME AFFAIRS
..............................................
Second
Respondent
Neutral
citation:
Ngwenyama v Mayelane & another
(474/11)
[2012] ZASCA 94
(1 June
2012)
Coram:
MTHIYANE DP, PONNAN JA et NDITA AJA
Heard:
14 May 2012
Delivered:
1 June 2012
Summary:
Customary marriages –
polygamy- Interpretation-
s 7(6)
of the
Recognition of Customary
Marriages Act 120 of 1998
- whether failure by the husband to enter
into a contract regulating matrimonial property renders subsequent
customary marriage
invalid – provisions of
s 7(6)
not intended
to invalidate subsequent customary marriage.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Bertelsmann J sitting as court of first
instance):
The appeal succeeds partially to the
extent that the order of the court below is set aside and replaced
with the following:
'(a) Prayer (a) of the notice of
motion (declaring a customary marriage between Hlengani Dyson Moyana
(the deceased) and the First
Respondent null and void ab initio ) is
dismissed.
(b) Prayer (b) (directing the Second
Respondent to register the marriage between the applicant and the
deceased Hlengani Dyson Moyana
nin: 5701085803086) is granted.
(c) Each party is ordered to pay its
own costs.'
2. There is no order as to costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
NDITA AJA (MTHIYANE DP, PONNAN JA
concurring)
Introduction
[1] This appeal concerns the
interpretation of
s 7(6)
of the
Recognition of Customary Marriages
Act
1
(the
Act). The section regulates the
proprietary consequences of a customary marriage in circumstances
where the husband wishes to enter
into a second customary marriage.
The appeal comes before us with the leave of the court a quo.
[2] The first respondent, Ms M F M, as
applicant, instituted motion proceedings against the appellant, Ms M
M N, in the North Gauteng
High Court in which she sought an order (a)
declaring the customary marriage contracted between the appellant and
Hlengani Dyson
Moyana (the deceased) null and void
ab
initio
; (b) directing the
second respondent to register the customary marriage between the
first respondent and the deceased and (c) costs.
Bertelsmann
J granted the application.
The
second respondent, Minister of Home Affairs,
filed
a notice to abide the decision of the and consequently does not
feature any further in this appeal. Any reference to the respondent
should be understood to refer to the first respondent. The judgment
in the court a quo is reported as
MM
v MN & another
2010 (4)
SA 286
(GNP).
The Facts
[3] The facts and circumstances
relating to this appeal are as follows: The respondent was married to
the deceased, according to
customary law and tradition at Nkovani
Village, Limpopo, on 1 January 1984. Three children, all now majors,
were born out of the
union. The marriage was not registered. The
deceased died on 28 February 2009 and the marriage was still
subsisting. When the respondent
sought to register the customary
union at the Department of Home Affairs after the death of the
deceased, she was advised that
the appellant had also sought to
register a customary marriage allegedly contracted between her and
the deceased on 26 January
2008. The respondent asserts that the
purported marriage between the deceased and the appellant was null
and void
ab initio
as she had not been consulted before it was
concluded and the deceased had failed to comply with
s 7(6)
the Act
of which provides that a husband in a customary marriage who wishes
to enter into a further customary marriage with another
woman must
apply to the court to approve a written contract governing the
proprietary consequences of the marriages.
[4] The deceased’s elder
brother, Mr Mzamani Temson Moyana, deposed to an affidavit confirming
the respondent’s marriage
to the deceased. In addition, he
stated that in terms of their custom and tradition, the first wife
must be consulted before a
second customary marriage is concluded,
and such a marriage should be witnessed by the husband’s blood
relatives.
Section 7(6)
[5]
Section 7(6)
provides as follows:
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.’
[6] It is common cause that the
marriage contracted between the appellant and the deceased was not
preceded by an application for
an order approving a contract
regulating the future matrimonial system of both marriages.
In the high court
[7] Bertelsmann J, considered the
equal status and capacity afforded to spouses in a customary marriage
and came to the conclusion
that
s 7(6)
is aimed at protecting the
proprietary interests of both the existing and prospective spouse. He
emphasised the prejudice likely
to be suffered by the existing spouse
where the second marriage has not been disclosed, dealt with by the
contract and sanctioned
by the court and held thus:
‘
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
2ed
at 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 ss (6).’
However, he found that the failure of
the husband to comply with the provisions of
s 7(6)
rendered the
second customary marriage null and void ab initio as the provisions
of the section are peremptory.
The learned judge continued at para
25:
‘
A
further argument, that 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 to lead
to voidness of a marriage
in conflict with the provision.’
The issues
[8] The core issue in this appeal
turns on whether the failure by the husband to make an application to
court to approve a written
contract regulating the matrimonial
property system of both the first and second marriages, as envisaged
in
s 7(6)
of the Act, invalidates the subsequent customary marriages
from inception, in the absence of an express provision in the Act to
that effect.
In this court
[9] At the hearing of this appeal,
counsel for the appellant submitted that the conclusion arrived at by
the court below as to the
consequences of non-compliance with
s 7(6)
is incorrect because the section is not peremptory. Moreover, it
could not have been the intention of the legislature, said counsel
to
effect so fundamental a change to the customary law of polygamy by
subjecting the validity of a second marriage to prior consent
by a
court, which could withhold it. Relying on two decisions of the
Constitutional Court in
Hassam
v Jacobs NO
2
and
Gumede
v President of the Republic of South Africa
3
counsel for
the
appellant further argued that the interpretation accorded to the
section by the court a quo is in conflict with s 39(2) of the
Constitution.
4
[10] The Women’s Legal Trust was
admitted as amicus curiae. Counsel for the amicus aligned herself
with the appellant’s
submissions and added, basing her argument
on
Brink v Kitshoff NO,
5
that the court a quo, in interpreting
the provisions of s 7(6) was enjoined to consider historical
inequalities based on race, gender,
marital status and class,
as well the realities of women married
under customary law generally and women in polygamous marriages, in
particular.
She further
contended that an interpretation that renders the second customary
marriage invalid undermines the subsequent wife’s
right to
dignity and equality. The amicus outlined the harsh impact of
invalidating an otherwise valid customary marriage in three
stages:
viz divorce, death and succession as well as social standing of the
second wife and her children. According to the amicus,
the
interpretation accorded to s 7(6) by the court a
quo
gives priority to the rights of the
first wife and in so doing defeats the purpose of the Act to protect
all wives in polygamous
marriages by creating a mechanism for a
certain and equitable matrimonial property regime. Such an
interpretation is, so went the
argument, at odds with the
Constitution and the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
ratified without reservation by
the Republic of South Africa in 1996.
[11] The respondent’s counsel in
his turn argued that the appellant, on the facts presented failed to
establish that her customary
marriage to the deceased was valid.
Although this issue was debated in court, I must at the outset state
that this court need not
decide it as there is no cross-appeal
challenging the finding of the court a quo on its acceptance of the
validity of the second
customary marriage. It was further submitted
on behalf of the respondent that s 7 (6) was aimed at protecting the
interests of
the existing wife, it is for that reason that she must
be joined in the proceedings determining the proposed contract
regulating
the matrimonial property. I deal with this issue in my
conclusion.
Discussion
[12] The stated purpose of the Act is:
‘
To
make provisions 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.
’
In short, the Act marks a significant
break from the past when customary, and more particularly polygamous
marriages were considered
repugnant to public policy. In so doing it
seeks to protect and advance the rights of women married in
accordance with customary
law and tradition. To this end, the
Constitutional Court in
Gumede
v President of the Republic of South Africa
6
restated the purpose of the Act as
follows:
‘
The
Recognition Act is inspired by the dignity and equality rights that
the Constitution entrenches and the normative value systems
it
establishes. It is also necessitated by our country’s
international treaty obligations, which require member states to
do
away with all laws and practices that discriminate against women …’
What is clear is that s 7(6) is
intended to protect matrimonial property rights of the spouses by
ensuring a fair distribution of
the matrimonial property in
circumstances where a husband is desirous of entering into a further
customary marriage.
[13] I have indicated earlier in this
judgment that the court below based its finding that the second
marriage was null and void
on the peremptory language of s 7(6). The
section states in plain language that a husband ‘must’
prior to contracting
the further marriage enter into a contract
regulating the future marital property system of his marriages which
must be approved
by the court. There is however no sanction for the
failure to comply with s 7(6) because none was intended.
[14] The court a quo concluded that
the use of the word ‘must’ indicates that the legislature
intended non-compliance
with s 7(6) to invalidate a subsequent
customary marriage. It is trite that the primary rule in the
construction of a statutory
provision is to ascertain the intention
of the legislature by giving words of the provision under
consideration the ordinary grammatical
meaning which their context
dictates, unless to do so would lead to an absurdity the legislature
could not have contemplated. The
language used is but one of the ways
of determining the intention of the legislature, so is the aim and
purpose of that particular
provision. Whilst words must be given
their ordinary meaning a contextual and purposive reading of the
statute is also important.
This is more so in the circumstances of
the instant matter,
where it is
alleged that the interpretation accorded by the court below offends
some of the rights enshrined in the Constitution.
Ngcobo J in
Bato
Star
7
explains the importance of context in
statutory interpretation as follows:
‘
Certainly
no less important than the oft-repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context. But it may be
useful to stress two points
in relation to the application of this principle. The first is that
“the context” as here
used,
is
not limited to the language of the rest of the statute regarded as
throwing light of a dictionary kind on the part to be interpreted.
Often of more importance is the matter of the statute, its apparent
scope and purpose, and,
within
limit, its background.’
[15] Counsel for the appellant
emphasised that when regard is had to the purpose and object of the
Act, the court a quo ought to
have considered the provisions of s
39(2) of the Constitution which state that:
‘
When
interpreting any legislation,
and
when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects
of the
Bill of Rights.’
The Constitutional Court in
Investigating Directorate:
Serious Economic Offences & others v Hyundai Motor Distributors
(Pty) Ltd
8
with reference to s 39(2) said:
‘
The
Constitution requires that judicial officers read legislation, where
possible,
in
ways which give effect to its fundamental values. Consistently with
this, when the constitutionality of legislation is in issue,
they are
under a duty to examine the objects and purport of an Act and to read
the provisions of the legislation, so far as possible,
in conformity
with the Constitution.’
This court has also repeatedly
stressed the necessity to interpret legislation and statutory
provisions purposively.
9
The objective set out in the preamble
of the Act can be best achieved by giving effect to s 39(2) of the
Constitution.
The purpose of s 7(6)
[16] There are divergent views
regarding the purpose and interpretation of s 7(6) and its impact on
customary marriages. As earlier
alluded to, the court a quo
reasoned that the fact that s
7(7)(
b
)(iii)
10
empowers the court to refuse to
register a proposed contract indicates that the legislature intended
non-compliance to be visited
with nullity. Citing Cronje and Heaton,
South African Family Law
2 ed at 204, the court further held
that if a customary marriage were to remain valid in the face of
non-compliance, the court’s
intervention would be rendered
superfluous and that could not have been the intention of the
legislature. According to the learned
authors referred to by the
court a quo,
the husband’s
capacity to enter into a further customary marriage depends upon the
approval of the contract by the court.
A different view is,
however, espoused by I P Maithufi and
G M B Moloi
11
and the authors conclude as follows:
‘
It
is further submitted that non-compliance with this requirement in
these circumstances will not lead to the nullity of the marriage
and
that such marriages will be regarded as out of community of profit
and loss. The main purpose of the requirement is to avoid
unnecessary
litigation concerning property brought into the marriage and property
that may be acquired during the subsistence of
the marriage.’
Similarly, Pieter Bakker
12
argues that:
‘
The
second marriage should therefore be valid even when the requirements
of section 7(6) have been 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 marriage is out of community of property.’
[17] Judicial decisions are also
disharmonious with regard to the effect of non-compliance with s 7(6)
on a customary marriage.
In
MG
v BM
13
Moshidi J had occasion to consider
whether there was a valid customary marriage between the deceased and
the applicant.
The learned
judge concluded that the marriage remained valid despite failure to
comply with s 7(6) the deceased husband, and declined
to follow the
decision of the court a quo, in the instant matter. Moshidi J
correctly stated that once there is a valid subsequent
customary
marriage, the second wife also acquires certain rights. He further
questioned why the second wife should be penalised
or prejudiced on
account of the failure of the husband to comply with the requirements
of s 7(6), more so when the Act does not
contain an express provision
invalidating customary marriages contracted without compliance with
the section. He held that the
section could not be interpreted as
invalidating an otherwise valid customary marriage.
[18] The respondent relied on the
judgment of Dlodlo J in
Mrapukana
v Master of the High Court
14
wherein the court stated, albeit
obiter,
that a man who seeks to
enter into a further customary marriage must first enter into a
written agreement that will set out the
manner in which the material
possession and wealth of the family will be managed. Stated
differently, the contract is a prerequisite
for the validity of the
further customary marriage. This statement is no more than a
restatement of the section as Dlodlo J understood
it. Dlodlo J did
not consider the impact of s 7(6) as it was not an issue before him.
Any reliance on this judgment is therefore
misplaced.
Conclusion
[19] The purpose of the section must
be determined in the light of the legislative scheme which guided its
promulgation. At the
heart of the Act, is the intention to advance
the rights of women married according customary law in order that
they acquire rights
to matrimonial property they did not have before
the enactment of the Act. Effectively, the Act seeks to realise the
right to equality
envisaged in the Bill of Rights. With this in mind,
it becomes difficult to reason that s 7 (6) could be intended solely
for the
protection of the wife in an existing marriage. The court a
quo correctly considered and acknowledged the equal status and
capacity
afforded to spouses in a customary marriage and came to the
conclusion that s 7(6) is aimed at protecting the proprietary
interests
of both the existing and prospective spouses, but failed to
afford a purposive interpretation to the section so that second wife
is equally protected. Properly construed s 7(6) is for the benefit
women in both monogamous and polygamous customary marriages.
This
much is obvious from the wording of s 2(3) which provides:
‘
If
a person is a spouse in more than one customary marriage, all valid
customary marriages entered into before the commencements
of this Act
are for all purposes recognised as marriages.’
It follows that whatever protection is
afforded to women married according to customary law equally applies
to women in polygamous
marriages. I am fortified in this view by the
dictum in
Hassam v Jacobs
NO
15
where Nkabinde J said:
‘
By
discriminating against women in polygynous Muslim marriages on the
grounds of religion, gender and marital status, the Act clearly
reinforces a pattern of stereotyping and patriarchal practices that
relegates women in these marriages to being unworthy of protection.
Needless to say, by so discriminating against those women, the
provisions in the Act conflict with the principle of gender equality
which the Constitution strives to achieve. That cannot, and ought
not, be countenanced in a society based on democratic values,
social
justice and fundamental human rights.
The
purpose of the Act would clearly be frustrated rather than furthered
if widows to polygynous Muslim marriages were excluded
from the
benefits of the Act simply because their marriages were contracted by
virtue of Muslim rites. The constitutional goal
of achieving
substantive equality will not be fulfilled by that exclusion. These
women, as was the case with the applicant, often
do not have any
power over the decisions by their husbands whether to marry a second
or a third wife.
It
follows therefore that the exclusion of widows in polygynous Muslim
marriages from the protection of the Act is constitutionally
unacceptable because it excludes them simply on the prohibited
grounds. In any event, it would be unjust to grant a widow in a
monogamous Muslim marriage the protection offered by the Act and to
deny the same protection to a widow or widows of a polygynous
Muslim
marriage.’
[20] Although the above was stated in
the context of polygynous Muslim marriages, by parity of reasoning,
it equally applies to
polygynous marriages concluded in accordance
with customary law. It will be recalled that the Act was promulgated
in response to
constitutional values and human rights, more
specifically the right to equality and non-discrimination. If this
court were to uphold
the interpretation of s 7(6) adopted by the
court a quo, it would be seriously undermining the very equality that
the Act seeks
to uphold.
[21] The discriminatory interpretation
of s 7(6) excluding women in polygamous marriages, validly married
according to customary
law, and recognised as such in their
communities is deeply injurious to women in such marriages as it
affects them negatively.
Such women would be adversely affected in
the areas of, inter alia, succession, death and social standing. It
constitutes a gross
and fundamental infringement of their right to
dignity, right to equal status in marriage as well as the rights to
physical and
emotional integrity. The effect extends to children born
of such a marriage, who would, by virtue of the interpretation
accorded
to s 7(6) by the court
a quo
, be instantly rendered
illegitimate. The harsh consequences of such a declaration on the
children are unthinkable. Furthermore,
such an interpretation would
be in stark contrast with the manner in which the people affected
live their lives. For example, if
all the requirements of a customary
marriage have been complied with and the wife is for all intents and
purposes socially recognised
as a wife, and non-compliance with the
section renders her unmarried, that would be out of step with the
living customary law.
The very purpose for which the Act was
intended, equality of recognition and spouses of customary marriages,
would be defeated.
An interpretation that renders a polygamous
customary marriage recognised in customary law invalid, is clearly
untenable and could
not have been intended by the legislature. In
line with the purposive approach outlined in
Hyundai
, that
courts must prefer an interpretation of legislation that falls within
the constitutional bounds over that which does not,
if such an
interpretation can be reasonably ascribed to the section, it follows
that the decision of the court a quo cannot be
confirmed.
[22] The section of the Act dealing
with validity of a customary marriage (s 3) is not by any means
related or linked to s
7(6). In striking a balance between the text
and context of the Act, the preamble states the purpose the Act seeks
to achieve and
specifically refers to the validity of customary
marriages. The requirements for validity of a customary marriage in s
3(1) are
simply that:
(i) the spouses must be above the age
of 18 years; and
(ii) both must consent to be married
to each other under customary law; and
(iii) the marriage must be negotiated
and entered into or celebrated in accordance with customary law.
[23] The Act does not specify the
requirements for the celebration of a customary marriage. In this
way, the legislature purposefully
defers to the living customary law.
Put differently, this requirement is fulfilled when the customary law
celebrations are generally
in accordance with the customs applicable
in those particular circumstances. But once the three requirements
have been fulfilled,
a customary marriage, whether monogamous or
polygamous, comes into existence. Notwithstanding the absence of a
sanction for non-compliance
with s 7(6) the scheme of the Act and the
broader context of the statute compels a conclusion that the section
could never have
been intended to have any impact on the validity of
the second marriage. This scheme of the Act amply demonstrates that
the main
purpose of the s 7(6) is to determine and regulate
proprietary consequences and does not seek to invalidate an otherwise
valid
polygamous customary marriage, which complies with s 3. The
underlying theme of the whole of s 7 is fairness and equity in
dealing
with the matrimonial property and not the validity of a
customary marriage. To this end s 7(7) provides that:
‘
When
considering the application in terms of subsection 6–
the
court must–
in
the case of a marriage 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; and
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;
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 be not be sufficiently safeguarded
by means
of the proposed contract.’
Section 7(8) on the other hand
entitles all persons having sufficient interest in the matter, and in
particular the applicant’s
existing spouse or spouses and his
prospective spouse, to be joined in the proceedings instituted in
terms of subsection (6). The
joinder of spouses and prospective
spouses shows that the legislature intended to protect the rights of
both wives. The duty to
act in compliance with s 7(6) is placed on
the husband. It would be unjust to invalidate an otherwise valid
marriage on the basis
of the husband’s failure when no duty was
placed on the wife.
[24] On the interpretation advanced on
behalf of the respondent, the requirements of s 7(6) must precede the
conclusion of a further
customary marriage; otherwise, the marriage
is invalid. This submission must be considered in the historical
context of customary
marriages as articulated by Masoneke DCJ in
Gumede
16
as
follows:
‘
Before
I confront the equality claim, it may be helpful to discuss up-front
the operative statutory arrangements. The Recognition
Act was
assented to and took effect well within our new constitutional
dispensation. It represents a belated but welcome and ambitious
legislative effort to remedy the historical humiliation and exclusion
meted out to spouses in marriages which were entered into
in
accordance with the law and culture of the indigenous African people
of this country. Past courts and legislation accorded marriages
under
indigenous law no more than a scant recognition under the lowly
rubric of customary “unions”.’
The learned judge continues at
paragraph 24:
‘
I
revert to consider the main and other purposes of the Recognition
Act. Without a doubt, the chief purpose of the legislation is
to
reform customary law in several important ways. The facial extent of
the reform is apparent from the extended title of the Recognition
Act. The legislation makes provision for recognition of customary
marriages. Most importantly, it seeks to jettison gendered inequality
within marriage and the marital power of the husband by providing for
the equal status and capacity of spouses. It specifies essential
requirements for a valid customary marriage and the registration of
marriages. In this way, it introduces certainty and uniformity
to the
legal validity of customary marriages throughout the country.’
The proper context of the Act is
elucidated above. Clearly the determination of s 7(6) must be in a
manner that is consistent with
the Constitution. An interpretation
which holds that s 7(6) affects the validity of a subsequent marriage
relegates customary marriages,
once again, to the very status the Act
sought to elevate it from as, based on it, there would be no second
customary marriage without
the approval of the court. Concerns about
proprietary interests are sufficiently addressed in the Act as courts
have been given
a wide discretion to determine what is just and
equitable in a given case. I have in this judgment already stated
that a purposive
interpretation of this section compels a conclusion
that the legislature did not intend non-compliance to invalidate a
valid customary
marriage.
[25] The amicus curiae drew the
attention of the court to human rights instruments pointing to the
vulnerability of women generally,
and women in polygamous marriages
in particular. Article 16 of CEDAW obliges the country to take all
appropriate measures to eliminate
discrimination against women in all
matters relating to marriage and family relations. Similarly, Article
6(b) of the Protocol
to the African Charter on Human and People’s
Rights in Africa to which the country is a signatory obliges state
parties to
enact appropriate national legislative measures to
guarantee that the rights of women in marriage and family, including
polygamous
marital relationships are promoted and protected.
The above human rights instruments
support the purpose of the Act. In my view, by addressing the
relevant clauses of the Act, the
issue of equality and polygamous
marriage has been adequately addressed.
Costs
[26`]
It
is trite that generally, costs follow the result. However in
Biowatch
17
the court considered the impact of an
award of costs on litigants wishing to vindicate their rights under
the Bill of Rights where
the litigation is not frivolous or
vexatious. The rule is that the losing party is not mulcted in costs.
The rights the unsuccessful
respondent sought to vindicate are
neither frivolous nor vexatious. In the circumstances the appropriate
approach is to make no
order as to costs.
[27] It remains to mention that I have
had the privilege to read the concurring judgment of Ponnan JA and I
find nothing different
from what I have already said. It is
substantially a repetition of what I have said except for what is
contained in paragraph 5
and 10. For that reason, I concur in it.
[28] In the result the following order
is made:
Order
The appeal succeeds partially to the
extent that the order of the court below is set aside and replaced
with the following:
'(a) Prayer (a) of the notice of
motion (declaring a customary marriage between Hlengani Dyson Moyana
(the deceased) and the First
Respondent null and void
ab initio
) is dismissed.
(b) Prayer (b) (directing the Second
Respondent to register the marriage between the applicant and the
deceased Hlengani Dyson Moyana
nin: 5701085803086) is granted.
(c) Each party is ordered to pay its
own costs.'
2. There is no order as to costs.
________________________
T NDITA
ACTING JUDGE OF APPEAL
PONNAN JA
[29] Is a further customary marriage
entered into without compliance with the provisions of s 7(6) of the
Recognition of Customary
Marriages Act 120 of 1998 (the Recognition
Act) null and void ab initio? That is the crisp yet rather vexing
question that confronts
us. The high court (per Bertelsmann J) held
that it was. It is the correctness of that conclusion that forms the
subject of this
appeal. Ndita AJA has reached a contrary conclusion
to that of the high court – a conclusion with which I am in
respectful
agreement. Given the complexity of the matter, however, as
also its importance to a particularly vulnerable class of persons
who,
more often than not, are victims of deep patterns of
disadvantage, I prefer to articulate separately the considerations
that impelled
me to that conclusion.
[30] The Recognition Act is inspired
by the dignity and equality rights that the Constitution entrenches
and the normative value
system it establishes (
Gumede v President
of Republic of South Africa &
others
2009 (3) SA 152
(CC) para 21). According to Moseneke DCJ (
Gumede
para 16):
'It represents a belated but welcome
and ambitious legislative effort to remedy the historical humiliation
and exclusion meted out
to spouses in marriages which were entered
into in accordance with the law and culture of the indigenous African
people of this
country. Past courts and legislation accorded
marriages under indigenous law no more than a scant recognition under
the lowly rubric
of customary "unions".'
[31] The chief purpose of the
Recognition Act is to reform customary law in several important ways.
As Moseneke DCJ (
Gumede
para 24) put it:
'The facial extent of the reform is
apparent from the extended title of the Recognition Act. The
legislation makes provision for
recognition of customary marriages.
Most importantly, it seeks to jettison gendered inequality within
marriage and the marital
power of the husband by providing for the
equal status and capacity of spouses. It specifies the essential
requirements for a valid
customary marriage and regulates the
registration of marriages. In this way, it introduces certainty and
uniformity to the legal
validity of customary marriages throughout
the country. The Recognition Act regulates proprietary consequences
and the capacity
of spouses and governs the dissolution of the
marriages, which now must occur under judicial supervision. An
additional and significant
benefit of this legislative reform is that
it seeks to salvage the indigenous law of marriage from the
stagnation of official codes
and the inscrutable jurisprudence of
colonial "native" divorce and appeal courts.'
[32] Section 7(6) must be interpreted
in the context of the scheme of the Recognition Act as a whole. The
Recognition Act defines
a customary marriage as 'a marriage concluded
in accordance with customary law'. And customary law 'means the
customs and usages
traditionally observed among the indigenous
African peoples of South Africa and which forms part of the culture
of those people'.
Section 2(2) provides that:
'A customary marriage entered into
after the commencement of this Act, which complies with the
requirements of this Act, is for
all purposes recognised as a
marriage.'
And s 2(4) reads:
'If a person is a spouse in more than
one customary marriage, all such marriages entered into after the
commencement of this Act,
which comply with the provisions of this
Act, are for all purposes recognised as marriages.'
Section 3 headed 'Requirements for
validity of customary marriages', provides:
'(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.'
[33] In terms of s 3(5) of the Act, s
24A of the Marriage Act 25 of 1961 is rendered applicable to the
marriage of a minor entered
into without the necessary consent.
According to the latter provision a marriage between persons of whom
one or both are minors
shall not be void merely because the person
whose consent is by law required for the entering into of a marriage
did not consent
to the marriage, but may be dissolved by a competent
court on the ground of want of consent if application is made to it.
Even
then a court shall not grant the application unless it is
satisfied that the dissolution of the marriage is in the interests of
the minor or minors. A valid customary marriage must be registered in
terms of s 4 of the Act. Section 4(9) makes it clear though
that
failure to register a customary marriage does not per se affect the
validity of that marriage.
[34] Section 6, which appears to
'usher in a remedial regime of equal worth and capacity of spouses in
customary marriages’
(
Gumede
para 25), provides:
'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 the capacity to acquire assets and to dispose of
them, to enter into contracts
and to litigate, in addition to any
rights and powers that she might have at customary law.'
And finally, s 7(6), which applies to
marriages concluded after the Act came into force and which is
located in that part of the
Act headed: 'Proprietary consequences of
customary marriages and contractual capacity of spouses', provides:
'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.'
[35] The Recognition Act has to be
interpreted in a manner that promotes the spirit, purport and objects
of our Bill of Rights.
This duty is one in respect of which 'no court
has a discretion' (
Phumelela Gaming and Leisure Ltd v Grünlingh
and others
[2006] ZACC 6
;
2007 (6) SA 350
(CC) para 26 and 27). In
Brink v
Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC) para 44, O’Regan J had
this to say:
'Although in our society
discrimination on grounds of sex has not been as visible, nor as
widely condemned, as discrimination on
grounds of race, it has
nevertheless resulted in deep patterns of disadvantage. These
patterns of disadvantage are particularly
acute in the case of black
women, as race and gender discrimination overlap. That all such
discrimination needs to be eradicated
from our society is a key
message of the Constitution. The preamble states the need to create a
new order in "which there
is equality between men and women"
as well as equality between "people of all races".'
[36] Viewing the scheme of the
Recognition Act as a whole therefore, it is plain that s 7(6) of the
Act does not purport to regulate
the validity of polygnous customary
marriages. That is sought to be achieved by s 3. Section 7(6) appears
on the face of it to
regulate the proprietary consequences of such a
marriage. The Act itself does not contain an express provision to the
effect that
non-compliance with s 7(6) results, without more, in
invalidity of the second customary marriage. The court below,
however, appeared
to reason that the use of the word 'must' in the
subsection means that the section is peremptory and that invalidity
must follow
as a natural consequence of non-compliance. There are
strong indications and reasons why non-compliance with s 7(6) ought
not to
result in the second customary marriage being a nullity.
[37] First, when determining an
application in terms of s 7(6), a court is required by s 7(7) to
terminate the existing matrimonial
property system if the earlier
marriage was in community of property or subject to the accrual
system and to effect a division
of the matrimonial property. The
consequence of a failure to comply with the provisions of the section
therefore is that the matrimonial
property system existing before the
conclusion of the second customary marriage continues in existence
and is not terminated by
the conclusion of the second marriage. This
ought to adequately protect the rights of the first spouse whilst
leaving in place
and valid the subsequent customary marriage, with
all of the attendant consequences and advantages of marriage. Second,
a nullity
means that a court is not entitled at all, irrespective of
the particular circumstances of a case, to condone non-compliance
with
the provisions of s 7(6) of the Act. The effect of
non-compliance will thus be that all subsequent marriages,
irrespective of the
circumstances, would be null and void ab initio.
Such a harsh and indiscriminate result could hardly have been
intended by the
legislature. Nor, it seems to me, can it be
countenanced by our Constitution. Third, although no obligation is
imposed on either
the first or subsequent wife by the legislature
(the obligation to apply to court being placed solely upon the
husband), the potential
hardship is visited on the wife of the
subsequent marriage. The potential hardships include the potential
for the alteration of
the status of: a woman, who may since the
inception of her marriage have conducted herself as a married woman,
to that of a concubine;
and her children from that of legitimate to
illegitimate. In either event the consequential social stigma and
legal disability
may cause irreparable harm to the woman and her
children. Fourth, the considerations as to illiteracy that persuaded
the court
below to interpret the requirements of s 7(6) to protect
the first wife's fundamental rights, apply equally to the second
wife.
Fifth, it could not have been the intention of the legislature
to effect a fundamental change to the customary law incident of
polygyny by subjecting the validity of a second marriage effectively
to prior consent by a court which could be withheld by it.
Sixth, s
7(6) does not appear in that part of the Recognition Act which
prescribes the requirements for the validity of customary
marriages.
Those requirements are to be found in s 3. And as I have already
shown, non-compliance with those requirements that
the legislature
has itself designated as requirements for the validity of a customary
marriage does not automatically result in
nullity. Why then, it must
be asked, would non-compliance with s 7(6). Seventh, an
interpretation that visits nullity on a marriage
concluded in breach
of s 7(6) will perpetuate inequalities and patterns of disadvantage
between men and women. It both fails to
afford parties married in
accordance with African custom, equal protection and benefit of the
law and it constitutes discrimination
against women in second or
subsequent polygynous marriages. Women in polygynous marriages, like
the rest of this country’s
citizenry, enjoy a right to dignity.
They are entitled to equal respect and protection by our society. It
would fundamentally violate
the right to dignity of a woman in a
second or subsequent marriage to nullify her marriage otherwise valid
under customary law,
because her husband failed either through
ignorance or design to obtain a court order under s 7(6) of the Act.
It would also violate
her right to equality. An interpretation that
visits nullity on marriages concluded in breach of s 7(6)
differentiates between
women in second or subsequent polygynous
marriages and those in first marriages. The purpose of the
differentiation would, according
to the court below, be to protect a
first wife. However, the Recognition Act, as I have sought to show is
designed to protect all spouses in polygynous marriages not only the
first spouse by creating a certain and equitable matrimonial property
regime in the polygynous context. Given the purpose of s
7(6), the
differentiation drawn by nullifying marriages concluded in its breach
is irrational. It is irrational because it defeats
its very purpose.
It is also illegitimate because the Constitution requires that both
spouses be protected. Important as the interests
of the first wife
are, it is unfair to protect only her interests given the
vulnerability of all female spouses in polygynous marriages
and the
importance of protecting their rights and interests as well. It is
particularly unfair given that the reason for nullity
will often flow
merely from ignorance of the law (either by the husband or also his
spouse) or lack of resources or in some cases,
may flow from a
husband's deliberate breach of the law. A rule that will punish a
second or subsequent wife in good faith cannot
be fair. Indeed it is
an extraordinarily harsh consequence when one considers that the
class of woman affected is least likely
to have access to the
knowledge and resources required to ensure observance with s 7(6).
Finally, failure to recognise a marriage
that would at customary law
be valid appears to me to be the very antithesis of what the
legislature sought to achieve. In my view
the purpose of the
Recognition Act, as the name suggests, is to afford recognition to
customary marriages and thus extend the greatest
protection possible
to a particularly vulnerable class of persons, namely, female spouses
in polygynous marriages.
[38] I accordingly cannot endorse the
conclusion of the court below that non-compliance with the
requirements of s 7(6) results
without more in the second customary
marriage being void ab initio. I hold instead that the consequence of
such non-compliance
is that the subsequent marriage would be valid
but that it would be one out of community of property. It plainly
cannot be a marriage
in community of property as that would imply the
existence of two joint estates, which it is clear cannot co-exist.
That conclusion,
it seems to me, would afford sufficient protection
to the wife of the first customary marriage. It, moreover, would
accord with
the injunction of the Constitutional Court that all
legislation be interpreted in accordance with the spirit and purport
of the
Constitution.
_____________________
V PONNAN
JUDGE OF APPEAL
MTHIYANE DP
[39] I have had the privilege of
reading the judgments of my colleagues Ndita AJA and Ponnan JA. I
concur in both, save for paragraph
27 of the main judgment.
_____________________
K K MTHIYANE
DEPUTY PRESIDENT
APPEARANCES:
For Appellant: N H Maenetje SC
T Ntsankota
Instructed by:
Legal Aid South Africa
Pretoria
Bloemfontein Justice Centre
Bloemfontein
For 1
st
Respondent: C A Da
Silva SC
T R Masevhe
Instructed by:
H D Rammutla
Pretoria
Phatshoane Henny Inc
Bloemfontein
For 1
st
Respondent:
Instructed by:
The State Attorney
Pretoria
The State Attorney
Bloemfontein
Amicus Curiae S Cowen
N Mji
1
Recognition
of Customary Marriages Act 120 of 1998
.
2
Hassam
v Jacobs NO & others
2009 (5) SA 572
(CC).
3
Gumede
v President of the Republic of South Africa & others
2009
(3) SA 152
(CC).
4
The
Constitution of the Republic of South Africa,
1996.
5
Brink
v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC)
para 44.
6
Gumede
v President of the Republic of South Africa
fn
3 supra para 21.
7
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others
[2004] ZACC 15
;
2004 (4) SA 490
(CC),
para
89 citing
Jaga v Dönges
1950 (4) SA 653
(A).
8
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others; In re Hyundai
Motor
Distributors (Pty) Ltd & others v Smit NO & others
[2000] ZACC 12
;
2001 (1) SA 545
(CC)
para
22
9
Standard
Bank Investment Corporation Ltd v Competition Commission &
others; Liberty Life Association of Africa Ltd v Competition
Commssion & others
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA) paras 16-22.
10
Section
7
(b
)
(iii) provides that when considering the application in terms in
terms of subsection 6 the court must 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.
11
The
current legal status of customary marriages
in
South Africa
, 2002 TSAR at
599
12
The
New Unofficial Customary Marriage: Application of
Section 7(6)
of
the
Recognition of Customary Marriages Act 120 of 1998
2007 (70) THRHR 482.
13
MG
v BM & others
2012 (2) SA 253
(GSJ)
14
Mrapukana
v Master of the High Court & another
[2008]
JOL 22875
(C).
15
Fn
2 supra paras 37-39
.
16
Supra
fn 6 para 16
17
Biowatch
Trust v Registrar, Genetic Resources & others
2009 (6) SA 232
(CC) at 245C-249E.