In December 2008 the Constitutional Court delivered a milestone judgment in the case of Gumede v The President of the Republic of South Africa. In this case the Court declared certain provisions of the Recognition of Customary Marriages Act, 1998 (the Act), inconsistent with the Constitution and invalid insofar as they did not recognize customary marriages entered into before the commencement of the Act.

Recently another matter of similar significance came before the Supreme Court of Appeal, but this time section 7(6) of the Act was under scrutiny. That section provides that, a husband in a customary marriage who wishes to enter into a further customary marriage after the commencement of the Act must make an application to court to approve a written contract which will regulate the future matrimonial property system of his marriages.

In this case, Ngwenyama v Mayelane & Another, a subsequent customary marriage had been concluded between the second wife and her deceased husband, but had not been preceded by the required application in terms of section 7(6). The first wife brought an application in the Pretoria High Court to declare the subsequent marriage null and void on the basis that it lacked compliance with this section. The High Court agreed with her and held that failure to comply with the mandatory provision of the Act cannot but lead to the invalidity of the subsequent customary marriage.

The second wife (the appellant) then appealed to the Supreme Court of Appeal against that decision and that Court was therefore faced with the task of interpreting the provisions of section 7(6) in light of the reasons provided by the Pretoria High Court in making its order. Those reasons included a finding that failure to comply with the subsection leads to invalidity of the subsequent further customary marriage because of the peremptory language of section 7(6), i.e. the use of the word “must” and the provisions of section 7(b)(ii) which gives the Court powers to refuse to register a contract. Many submissions were made for and against the appellant but chief among these were those of the Women’s Legal Trust, which was admitted as a friend of the Court. Counsel for the Trust argued that, in interpreting section 7(6), the Court was enjoined to consider historical inequalities based on race, gender, marital status and class and the realities of women under customary law generally and women in polygamous marriages, in particular. She further contended that the interpretation adopted by the High Court undermines the subsequent wife’s right to dignity and equality. According to her, the interpretation defeats the purpose of the Act, which is to protect wives in polygamous marriages and creates a mechanism for a certain and equitable matrimonial property regime. The High Court’s interpretation is also at odds with the Constitution and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to which South Africa is a signatory.

The Appeal Court held that the stated purpose of the Act is to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages. It was also noted that some authors on the topic have concluded that non compliance with section 7(6) does not lead to the nullity of the customary marriage and that such marriages would be regarded as out of community of property. Furthermore, if the Appeal Court were to uphold the High Court’s interpretation of section 7(6), it would be seriously undermining the very equality that the Act seeks to uphold. The discriminatory interpretation of section 7(6) excluding women in polygamous marriages is deeply injurious to women in such marriages as it adversely affects them in such areas of, inter alia, succession, death or divorce. The effect also extends to their children who would, by virtue of the disputed interpretation suddenly be rendered illegitimate.

The Appeal Court accordingly upheld the appellant’s appeal and set aside the order of the Pretoria High Court which had declared her marriage to the deceased null and void. It was also held by the Supreme Court of Appeal that, the second customary marriage must be out of community of property as it cannot be a marriage in community of property which would imply the existence of two joint estates.

This article has been written by Simphiwe Maphumulo, a Director in the Property and Conveyancing Department at Garlicke & Bousfield Inc.

For more information contact Simphiwe on 031 570 5314; email : simphiwe.maphumulo@gb.co.za

NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of property law.