SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: 5576/2019
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE: Naude-Odendaal J
DATE: 05/06/2024
In the matter between:
N[...] J[...] D[...] P[...] PLAINTIFF
and
L[...] M[...] P[...] (BORN S[...]) DEFENDANT
JUDGMENT
NAUDE-ODENDAAL J:
[1] This is a divorce action. The parties were married to one another on or about
the 10th of January 2015 in terms of Customary Law in community of property. The
customary marriage was never registered. The parties were neither in a subsisting
customary marriage with any other person at the time nor at present.
[2] The parties then married each other on the 23 rd day of October 2015, in terms
of civil law. In terms of the civil law marriage, the parties were married to each other
out of community of property, out of community of profit and loss and the accrual
system was expressly excluded as provided for in Chapter 1 of the Matrimonial
Property Act, Act 88 of 1984 from the civil law marriage they intended to be
solemnized between them. An ante-nuptial contract was signed by both parties in the
presence of a notary public, Mr. Cornelius Johannes Nel on the 13 th day of October
2015 and was consequently registered in the deeds office on the 30 th of October
2015.
[3] The parties did not apply to any High Court in terms of Section 21 of the
Matrimonial Property Act, Act 88 of 1984 for leave to change the matrimonial
property system of their proposed marriage.
[4] It is common cause between the parties that the marriage relationship
between them has irretrievably br oken down, although they differ in their reasons for
the breakdown, and that there is no prospect of the restoration of a normal marriage
relationship between them. There were no children born from the marriage
relationship between the parties.
[5] The court was requested to determine whether the parties were married to
one another on the 10th of January 2015 in terms of Customary Law in community of
property which marriage still subsists and that in the event the court finds that the
parties were ma rried to one another in terms of Customary Law, whether the ante
nuptial contract entered into between the parties is valid and enforceable or not.
nuptial contract entered into between the parties is valid and enforceable or not.
[6] Section 10 of the Recognition of Customary Marriages Act, 120 of 1998
stipulates as follows:-
"10. Change of marriage system
(1) A man and a woman between whom a customary marriage subsists
are competent to contract a marriage with each other under the Marriage Act,
1961 (Act No. 25 of 1961), if neither of them is a spouse in a subsisting
customary marriage with any other person.
(2) When a marriage is concluded as contemplated in subsection (1) the
marriage is in community of property and of profit and loss unless such
consequences are specifically excluded in an antenuptial contract which
regulates the matrimonial property system of their marriage.
(3) Chapter Ill and sections 18, 19, 20 and 24 of Chapter IV of the
Matrimonial Property Act, 1984 (Act No. 88 of 1984), apply in respect of any
marriage which is in community of property as contemplated in subsection (2).
(4) Despite subsection (1), no spouse of a marriage entered into under the
Marriage Act, 1961, is, during the subsistence of such marriage, competent to
enter into any other marriage. "
[7] In essence, the section allows spouses in a mon ogamous customary
marriage, who are not married to any other party - either in civil or customary law - to
marry each other under civil law. The provision is important because despite the full
legal recognition of customary marriages in South African law t oday, individuals still
combine customary and civil marriages.(See Meyer and Rudolph Policy and
Procedure Manual 82; SALC Project 90 - Paper 7447.)
[8] Despite the conclusion of both a customary and civil marriage, individuals
may not view these dual marriages as creating separate and distinct legal marriages.
Rather, the intention is often to conclude a marriage which is then celebrated in
different forms. In this regard, customary marriages are often described as a
"process" rather than a single legal ev ent. The customary law marriage celebrations
often culminate in a "white wedding" with a church ceremony and having the
marriage registered as a civil marriage. In my view, this was the case in the present
matter.
[9] The Recognition Act does not specify the consequences of a civil marriage on
the existing customary marriage. A basic rule of statutory interpretation is that the
headings of legislation are part of the enactment and may be referred to in
establishing the meaning of ambiguous provisions. (See Chotabhai v Union
Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 24; De
Ville Constitutional and Statutory Interpretation 157 ) Section 1 0 is entitled
"Change of marriage system". The word "change" is defined as " something that may
be substituted for another thing of the same type ". This suggests that the customary
law marriage is made into something different, namely a civil marriage. This lends
credence to the interpretation that the civil law marriage terminates the customary
law m arriage, which now becomes a civil marriage. (See The Million Rand
Question: Does a Civil Marriage Automatically Dissolve the Parties' Customary
Marriage? by F. Osman, par 3.2.1 page 10)
[10] The interpretation that the civil marriage replaces the customa ry marriage
negates the possibility of a dual marriage with different proprietary consequences for
the two marriages. What remain to be addressed are the proprietary consequences
of the new civil marriage. Section 10(2) provides:
"When a marriage is concl uded as contemplated in subsection (1) the
marriage is in community of property and of profit and loss unless such
consequences are specifically excluded in an antenuptial contract which
regulates the matrimonial property system of their marriage."
[11] In the reportable judgment in the matter of Reilly Nchadi Tumelo Mphosi v
Theophilus Ramakokomo Mphosi, Limpopo High Court, Polokwane, Case
Number 1142/2014, Muller J at para 20-23 held as follows:-
"{20] The aim of Section 10, in my view, is intended to mean that the
"{20] The aim of Section 10, in my view, is intended to mean that the
conclusion of a civil marriage extinguishes the customary marriage by the
operation of law and brings an end to the proprietary consequences of the
customary marriage in community of prop erty or in terms of an antenuptial
contract, if an antenuptial contract was entered into. To require of the spouses
first to dissolve their subsisting customary marriage by decree of divorce, as
provided in section 8, before they may enter into a civil mar riage on the
ground of irretrievable breakdown of the marriage relationship between them,
which is the only basis upon which the customary marriage, in casu, may be
dissolved where there is no such breakdown, is simply absurd and against the
clear meaning of section 10(1). The contention that section 10 should be
interpreted to allow the proprietary consequences of a customary marriage to
continue even after the spouses remarried in terms of a civil marriage, cannot
be accepted. A duly solemnized civil marr iage which complied with all the
formal requirements of a civil marriage in terms of the Marriage Act and
nothing less, is contemplated. The customary marriage comes to an end and
with it also the proprietary consequences of that marriage. It is, moreover,
totally repugnant to the idea of a civil marriage that a customary marriage can
co-exist with a civil marriage.
[21] A civil marriage is in community of property, unless a prenuptial
contract provides otherwise. The legal position of the parties to the c ustomary
marriage who elected to conclude a civil marriage is similar to parties married
in community of property who divorced and subsequently remarry out of
community of property in terms of an antenuptial contract with the exclusion of
the accrual system as contemplated by the Matrimonial Act.
[22] Neither section 7(5) of the Act, nor section 21 of the Matrimonial Act
finds application. Section 7(5) is applicable to a subsisting customary
marriage. When the civil law marriage came into being, the spouse s were
unable to change the matrimonial property system of the customary marriage
which has come to an end. Prior permission is not required as contemplated
which has come to an end. Prior permission is not required as contemplated
by section 7(5) of the Act or section 21 of the Matrimonial Act, for the
execution and registration of an antenuptial contract in respect of their
proposed civil law marriage.
[23] Section 10 contains no provision making it compulsory for spouses to
apply to change their matrimonial property system in terms of section 21 of
the Matrimonial Act, before they may enter into an antenuptial contract in
terms whereof the proprietary consequences of their proposed civil marriage
will be governed. An antenuptial contract takes effect on the date of the civil
marriage and is effective against third parties upon registration in the deeds
office."
[12] The parties in the present matter from the onset had the intention and agreed
to follow and live a western world lifestyle. It was the parties intention from the
moment of their engagement (and probably even before ) to have a white western
world wedding. The Defendant was further fully aware of the implications and
consequences of entering into the antenuptial contract as the terms and
consequences of the antenuptial contract was fully explained to her during the
parties' consultation with Mr. Nel. In other words it can be said that the parties had a
meeting of minds in respect of the marital regime that would govern the proprietary
consequences of their marriage. The antenuptial contract was entered into freely and
voluntarily.
[13] In my view, there was one continuous marriage between the parties. The civil
marriage replaced the customary marriage and the antenuptial contract that was
signed prior to entering the civil marriage governs the proprietary consequences of
the marriage between the Plaintiff and the Defendant.
[14] The parties would however remain jointly liable for debts incurred prior to the
change in the proprietary system. The Defendant's argument in denying the validity
of the ante -nuptial contract to claim a portion of the estate of the Plaintiff upon
divorce, should be dismissed and the ante -nuptial contract entered into freely and
voluntarily, should be upheld.
[15] The last issue remaining is the Defendant's claim for rehabilitative
[15] The last issue remaining is the Defendant's claim for rehabilitative
maintenance in the amount of R35 000.00 per month for a period of three years. At
the Rule 43 proceedings the court ordered the Plaintiff to pay the Defendant
maintenance in the amount of R12 000.00, pendente lite. The first payment was to
be made on or before the 7th of September 2021 and thereafter on or before the 7th
ay of each succeeding month. The matter came before me on 26 February 2024,
approximately 30 months later. The divorce proceedings were instituted on the 29 th
of August 2019. Surely by now, the Defenda nt should have been rehabilitated and
be in a position to maintain herself as at the time of this judgment, the Plaintiff has
been maintaining her for approximately 33/34 months. In my view, the Defendant's
claim for rehabilitative maintenance should be dismissed.
[16] In the result, I therefore make the following order:-
1. It is declared that the antenuptial contract executed by the parties on
13 October 2015, and which antenuptial contract was registered on 30
October 2015, is valid and binding.
2. A decree of divorce is granted and the marriage relationship between
the parties is dissolved.
3. Each party to pay his/her own legal costs.
M. NAUDE-ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
HEARD ON : 26 FEBRUARY 2024
JUDGMENT DELIVERED ON : 5 JUNE 2024.
This judgment was handed down
electronically by circulation to the parties'
representatives by email. The date and time
for hand-down of the judgment is deemed to
be 5 JUNE 2024 at 10h00
FOR THE PLAINTIFF : Adv. R. Ferreira
INSTRUCTED BY : Corrie Nel & Kie Attorneys
Polokwane
Polokwane
lawtypist@cnilaw.co.za
FOR THE DEFENDANT : Mrs. M.C. De Klerk
INSTRUCTED BY : DDKK Attorneys
mdk@ddkk.co.za
pa3@ddkk.co.za