Evolution of Customary Marriages

July 1st, 2018
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Ramuhovhi and Others v President of The Republic of South Africa and Others 2018 (2) SA 1 (CC)

By Janus Olivier

One of the reasons for the enactment of the Recognition of Customary Marriages Act 120 of 1998 (the Act) was to provide for the equal status and capacity of spouses in customary marriages. Since its commencement on 15 November 2000, it has been on the receiving end of criticism for having the opposite effect.

According to s 7(2) of the Act a customary marriage entered into ‘after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss’. This rule applies unless such consequences are specifically excluded by the spouses in an antenuptial contract. As a result, spouses, who were married in terms of the Customary Law – after the commencement of the Act – have enjoyed the benefit (or disadvantage) of community of property. The benefit of community of property has not been available to spouses who were married before the date of the commencement of the Act. In addition, s 7(1) led to unhappiness among spouses, who got married before the Act came into operation, because in terms of that section, customary marriages entered into before the commencement of the Act continued to be governed by customary law.

This imbalance was addressed by the Constitutional Court (CC) in Gumede v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC). The words ‘entered into after the commencement of this Act’ were declared inconsistent and invalid with the Constitution. The effect of the judgment was that monogamous customary marriages were to be treated as being in community of property, irrespective of whether they were entered into before or after the commencement of the Act. Unfortunately, the decision was restricted to monogamous customary marriages and did not affect the legal consequences of acts or omissions before the order was made.

It is only in more recent times that issues surrounding polygamous customary marriages enjoyed legal scrutiny. As a starting point one should take note of s 7(6) of the Act, which provides that: ‘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’. In the case of MN v MM 2012 (4) SA 527 (SCA) the court declared that noncompliance with s 7(6) does not render the subsequent marriage void, but results in the marriage being out of community of property.

Again, as was the case with s 7(2), the phrase ‘entered into after the commencement of this Act’ created a prejudicial situation for spouses, who were married before 15 November 2000. Only after 18 years the CC has given practitioners clarity on the marriage regime applicable to polygamous customary marriages entered into before the commencement of the Act, and the effect thereof on matrimonial property. This relief came in the case of Ramuhovhi and Others v President of The Republic of South Africa and Others 2018 (2) SA 1 (CC). In this case the court, at para 71, made the following order:

‘(a) Wives and husbands [of polygamous customary marriages] will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property, and these rights shall be exercised as follows:

(i) in respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned;  and

(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.

(b) Each spouse retains exclusive rights to her or his personal property.’

With regard to family property, one might be excused from foreseeing the possibility of disputes between families, if they all have equal rights of management and control over such property. Section 5 of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 provides some relief in the case of deceased estates. This section gives a Master, with jurisdiction, the authority to make a ‘just and equitable’ determination to resolve a dispute regarding the devolution of family property.

According to the Ramuhovhi case, the declaration of constitutional invalidity was suspended for 24 months to afford Parliament an opportunity to correct the defect. In the event that Parliament fails to address the defect as set out above the order above would prevail indefinitely.

What makes this judgment more noteworthy is that the CC (other than in the Gumede case) gave s 7(1) of the Act a retrospective effect. The court declared that the order in the Ramuhovhi case would not invalidate the winding-up of a deceased estate that had been finalised, or the transfer of marital property, that had been effected. The above does not apply to any transfer of martial property where, at the time of transfer, the transferee was aware that the property concerned was subject to a legal challenge on the grounds on which the applicants in the Ramuhovhi case brought the challenge. Because the order may have unforeseen prejudicial repercussions, the CC invited any interested parties to approach the court for a variation of the order if a party suffers harm not foreseen in the judgment.

Conclusion

Practitioners are warned to tread cautiously when entering the customary marriages minefields. One should also take heed of the special customs connected to the culture of the client.

Janus Olivier LLB (NWU) is a candidate attorney at Van Velden-Duffey Inc in Rustenburg.

This article was first published in De Rebus in 2018 (July) DR 45.

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