Brief Summary

Customary Law — Validity of marriage — Appellant sought to declare the marriage between the first respondent and the deceased null and void, arguing it was invalid due to the deceased's existing customary marriages — The court found that the civil marriage contracted during the subsistence of the customary unions was invalid under section 22(1) of the Black Administration Act 38 of 1927 — The appeal was upheld in part, declaring the marriage null and void and setting aside the costs order of the court below.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an appeal to the Supreme Court of Appeal from the Limpopo High Court (Thohoyandou), in proceedings initially brought by members of the deceased’s family seeking declaratory relief affecting marital status and succession.

The appellant, Rudzani Netshituka, had been the third applicant in the court of first instance. The first respondent, Joyce Munyadizwa Netshituka, opposed the relief and asserted rights flowing from a civil marriage to the deceased. The third respondent was cited as the Estate of Masewa Joseph Netshituka (the deceased estate), and the application in the court below was opposed by the first and third respondents. Other respondents included the Master of the High Court and additional family members, as well as the Minister of Home Affairs, but they did not play a determinative role in the outcome on appeal.

In the Limpopo High Court the application was dismissed with costs. Leave to appeal was granted, and the appeal proceeded on two principal fronts. First, the validity of a civil marriage concluded in 1997 between the deceased and the first respondent was challenged. Second, the validity of the deceased’s last will and testament executed in 2007 was attacked on the basis of alleged incapacity and internal defects.

The general subject-matter of the dispute was therefore the interaction between customary unions and civil marriages under the statutory regime then applicable, and, separately, the requirements for the valid execution of a will, including testamentary capacity and whether alleged errors in dispositions affect validity.

2. Material Facts

It was placed before the court that the deceased, Masewa Joseph Netshituka, died on 4 January 2008. A will executed by him on 20 November 2007 appointed the first respondent as executrix, which prompted the appellant and other family members to challenge both the will and the first respondent’s asserted marital status.

On the applicants’ version in the court below, Tshinakaho Netshituka (the first applicant in the court a quo, who died before the appeal) stated that she had married the deceased by customary rites on 1 December 1956, and that the customary marriage had not been registered with the Department of Home Affairs. It was further alleged that the deceased was also married by customary rites to three other women, namely Masindi, Martha, and Diana Netshituka, and that these customary marriages were likewise not registered. The appellant was said to be a child born of the union between the deceased and Masindi.

It was common cause that the first respondent concluded a civil marriage with the deceased on 17 January 1997, which was described as being in community of property.

A point of dispute concerned whether, at the time of the 1997 civil marriage, there existed any subsisting customary union(s) that would have legally barred the deceased from contracting a civil marriage with the first respondent. The first respondent denied the existence of the asserted customary marriage(s), and more specifically denied that any such customary marriage existed at the time she married the deceased. She alleged instead that the deceased had been married to Martha Mosele Netshituka (born Lebona) by civil rites and had been divorced from her on 5 July 1984, and contended that any customary union(s) were terminated “by force of law” when the deceased entered that earlier civil marriage.

A further factual matter treated as significant by the SCA was that it appeared to have been common cause in the court below that, after the deceased concluded the earlier civil marriage with Martha, the customary-law wives did not leave him and continued in their roles as his customary-law wives. The deceased’s continued cohabitation with them after his divorce from Martha, and his later reference in the will to Tshinakaho, Diana, and the first respondent as his first, second, and third wives respectively, were treated as conduct relevant to the status of the relationships.

Regarding the will challenge, the applicants relied on the deceased’s chronic ill-health and alleged incapacity to manage his affairs, supported by a medical report and a hospital memorandum. However, the medical report expressly recorded that the deceased was mentally normal, fully conscious, aware of his surroundings, and oriented in time, place, and person during the relevant period of examination shortly before the will was executed. The report contemplated only a conditional future possibility that recurring hypoglycaemia episodes could lead to deterioration in mental function, and the hospital memorandum covering the later period contained no reference to mental incapacity.

3. Legal Issues

The first central issue was whether the civil marriage of 17 January 1997 between the deceased and the first respondent was valid, given the asserted existence of subsisting customary unions and the statutory competence to marry under section 22 of the Black Administration Act 38 of 1927, as amended by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, and taking into account the later statutory recognition of customary marriages under the Recognition of Customary Marriages Act 120 of 1998.

This issue involved a combination of law (the meaning and effect of section 22 as amended, and the consequences for competence to contract a civil marriage) and application of law to fact (whether, on the accepted facts and inferences, there were subsisting customary unions at the relevant time, and what the legal consequences were).

The second central issue was whether the deceased’s last will and testament executed on 20 November 2007 was invalid due to a lack of testamentary capacity or because of alleged defects such as purported disposition of property not owned, alleged vagueness, or internal inconsistencies. This issue primarily concerned application of legal standards to the evidence relied upon by the challengers, including the allocation of the onus and whether it was discharged.

A further issue concerned costs, particularly the appropriate incidence of costs given partial success and the nature of the litigation, including whether costs should be borne by a party or by the deceased estate.

4. Court’s Reasoning

On the validity of the 1997 civil marriage, the SCA’s reasoning turned on the statutory regime governing marriages involving parties to customary unions. The court noted that at an earlier time, section 22(1) of the Black Administration Act allowed a man, during the subsistence of a customary union, to contract a civil marriage with another woman provided that specified disclosures were made under oath. The respondents relied on Nkambula v Linda 1951 (1) SA 377 (A) for the proposition that the legislation did not contemplate the coexistence of a civil marriage and a customary union, and for the further implication that entering into a civil marriage could terminate the customary union.

The SCA examined the position under customary law as to desertion and the stability of the customary union. Relying on customary-law authority, including Bobotyane v Jack 1944 NAC (C&O) 9, the court treated customary law as not recognising dissolution of a customary union by mere desertion, abandonment, or repudiation, and acknowledged that a husband could “phuthuma” his wife after absence and restore the former status. The court considered the effect of Nkambula in circumstances where a customary-law wife leaves because the husband contracted a civil marriage with another woman, and accepted that such a wife would be entitled to refuse to return and could assert that the husband had terminated the union. At the same time, the court reasoned that nothing would prevent a wife from returning if she was prepared to do so, and that fresh lobola negotiations would not necessarily be required because customary law did not treat mere desertion as dissolving the union.

Applying these principles to the facts as they were treated in the appeal, the court emphasised the importance of the intention of the parties as inferred from their conduct. Since it was accepted that the customary-law wives did not leave and continued cohabiting with the deceased, the court treated the deceased’s post-divorce continued relationships as clear evidence of reconciliation. It held that, to the extent that the earlier civil marriage to Martha could have terminated customary unions, the parties’ conduct after the divorce indicated that the customary unions were revived.

The SCA then addressed the decisive statutory bar as it existed at the time of the 1997 marriage. It highlighted that section 22 had been amended by Act 3 of 1988, with the amended provisions (in force in 1997) materially restricting competence to contract a civil marriage while a customary union subsisted. The amended section 22(1) permitted marriage between the partners to a customary union only if the man was not also a partner in another subsisting customary union, and section 22(2) provided that, subject to subsection (1), no person who is a partner in a customary union was competent to contract a marriage during the subsistence of that union. The court also noted that amended provisions placed obligations on marriage officers and criminalised false declarations, reflecting a legislative intention to prevent a person from contracting a civil marriage with someone other than the partner in an existing customary union.

The court accepted as consistent with authority that a civil marriage contracted in breach of the amended section 22 regime was a nullity, and referred in this connection to Thembisile & another v Thembisile & another 2002 (2) SA 209 (T), where a civil marriage contracted while the man was a partner in an existing customary union with another woman was held to be void. As it was not contended that Thembisile was wrongly decided, the SCA applied that approach. On the facts as assessed, the deceased was a partner in subsisting customary unions with at least Tshinakaho and Diana at the time he married the first respondent in 1997, with the consequence that the 1997 civil marriage was null and void.

On the will, the SCA approached the matter through the lens of the onus resting on those challenging the will to prove, on a balance of probabilities, that the deceased was not in a sound mental state when he executed it. The medical and hospital documents relied upon established chronic physical illness but did not support mental incapacity at the time of execution. The specialist report expressly affirmed mental normality and orientation, and the speculation about possible future deterioration if hypoglycaemia recurred did not constitute evidence of incapacity on 20 November 2007. The court therefore found that there was no evidential basis for the contention that the deceased lacked testamentary capacity.

The court further reasoned that even if the deceased had purported to bequeath property he did not own, that fact would not, without more, render the will invalid, and the concession made on behalf of the appellant reflected this. Allegations of vagueness were not substantiated by reference to provisions that could properly be described as vague. The will challenge therefore failed.

On costs, the SCA declined to impose costs on the first respondent despite the appellant’s partial success. It accepted that it was fair and equitable for costs to be borne by the deceased estate, emphasising that the appellant succeeded only in part and that the respondents’ opposition was not unreasonable or frivolous. This evaluative judgment informed the court’s costs order both in the appeal and in the court below.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeal in part. It set aside that part of the High Court order which had dismissed the application to declare invalid the marriage between the deceased and the first respondent, and substituted it with an order declaring that the marriage contracted on 17 January 1997 was null and void.

The SCA otherwise dismissed the appeal, which meant that the challenge to the validity of the deceased’s will executed on 20 November 2007 did not succeed.

The High Court’s costs order was set aside. The SCA ordered that the costs of the appeal and the costs of the proceedings in the court below were to be paid by the third respondent, being the deceased estate.

Cases Cited

Nkambula v Linda 1951 (1) SA 377 (A).

Bobotyane v Jack 1944 NAC (C&O) 9.

Thembisile & another v Thembisile & another 2002 (2) SA 209 (T).

Legislation Cited

Black Administration Act 38 of 1927, section 22(1) and section 22(2), as amended.

Marriage and Matrimonial Property Law Amendment Act 3 of 1988, section 1(a).

Recognition of Customary Marriages Act 120 of 1998, sections 2(1) and 2(3), and its repeal of section 22(1) to (5) of the Black Administration Act (operative from 15 November 2000).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, under section 22 of the Black Administration Act 38 of 1927 as amended by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, a person who is a partner in a subsisting customary union is not competent to contract a civil marriage during the subsistence of that union except as permitted by the statutory scheme. On the facts accepted and inferred, the deceased was a partner in subsisting customary unions at the time he concluded a civil marriage with the first respondent in 1997, and that civil marriage was therefore null and void.

The court further held that the challengers to the will failed to discharge the onus of proving that the deceased lacked testamentary capacity when executing the will on 20 November 2007. The evidence relied upon showed physical illness but did not establish mental incapacity, and asserted defects in the will’s dispositions did not, on the approach accepted, invalidate the will.

The court held that costs should be borne by the deceased estate, given the appellant’s partial success and the absence of unreasonable or frivolous conduct by the opposing parties.

LEGAL PRINCIPLES

A civil marriage contracted while a party is a partner in a subsisting customary union may be void where the governing statutory framework renders that party not competent to marry during the subsistence of the customary union. Under the amended section 22 regime (post-2 December 1988), the legislative scheme was construed as preventing a marriage officer from lawfully solemnising a marriage where the man intended to marry a woman other than the one with whom he was a partner in an existing customary union, and a marriage concluded contrary to that regime is treated as a nullity.

In assessing whether customary unions subsisted (or were revived) after intervening events such as a civil marriage and subsequent divorce, the court treated the intention of the parties, inferred from their conduct (including continued cohabitation and continuation of customary-law roles), as central to determining the practical status of relationships for purposes of applying the statutory prohibition.

A party challenging the validity of a will on the basis of lack of testamentary capacity bears the onus to establish incapacity on a balance of probabilities. Evidence of chronic physical illness, without proof of mental impairment at the time of execution, is insufficient to invalidate a will on grounds of incapacity, and alleged mistakes in bequeathing property not owned do not, without more, render the will invalid.

Netshituka v Netshituka and Others (426/10) [2011] ZASCA 120; 2011 (5) SA 453 (SCA); [2011] 4 All SA 63 (SCA) (20 July 2011)