‘Entreat me not to leave you, or to turn back from following after you, for wherever you go, I will go and wherever you lodge, I will lodge, your people shall be my people, and your God, my God. Where you die, I will die, and there will I be buried. The Lord do so to me, and more also, if anything but death parts you and me’ (Ruth 1:16-17).
Of all contracts known to mankind, none is as revered as marriage. The reverence is not misplaced because marriage plays an important role in society. It is foundational to the religious and ethical values underpinning human relations in any given society. Others regard it as the primary base for any nation because it is out of marriage that a ‘family’ is created and a community established. It is no wonder that many cultures across the world celebrate it with glitz and unrestrained opulence.
In law marriage is not only a social construct but a contract which creates legal obligations for the parties inter se. It gives rise to various rights and duties like the duty to support, the right to bury, and the right to inherit. It accords certain status to children born in marriage as opposed to those born out of it.
In Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) at para 31, the Constitutional Court expressed itself as follows regarding this institution:
‘The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends’ (see also Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) at para 65).
Marriage is, therefore, not just a piece of paper. It is a lifetime commitment with serious legal consequences, some of which entangle third parties and the broader community at large. It is perhaps for that reason that the law prescribes elaborate formalities for its conclusion and dissolution.
What has, however, emerged over time and become more pronounced since the coming into effect of the Recognition of Customary Marriages Act 120 of 1998 is that the marital status of a Black woman has become uncertain. She may, to her knowledge, have complied with all formalities necessary for the conclusion of a valid marriage, celebrated it in public with friends and family but yet remains unmarried.
A cursory look at the law reports reveals with alarming rate, cases where marriages of Black couples were set aside on the basis that one or both parties were not competent to conclude the contract due to an existing customary marriage. This is so because the law prohibits a woman from being married to two men. It allows a Black man to marry more than one woman subject to compliance with certain requirements.
A valid marriage whether ‘civil’ or customary can only be dissolved by an order of court. However, given the litany of cases which are flooding our courts one will be forgiven for thinking that the lived experience of the majority of Black people is that payment of lobola does not result in a valid marriage. There is, therefore, a disconcerting disconnect between the law and the people it is supposed to serve. This probably explains in part why parties do not consider it necessary to take requisite legal steps to dissolve it when circumstances so demand. This, unfortunately, often results in the misery that a lot of Black married couples find themselves in, more especially after the death of one of the spouses as the case of Sedinyane so aptly demonstrate.
The facts in Sedinyane were briefly as follows: Mr Malatji concluded a customary marriage with Ms Sedinyane in 1988 (first marriage). The marriage was not registered but its existence was supported by a lobola letter. Mr Malatji deserted the matrimonial home around 1992 and later entered into another marriage with Ms Anare Malatji in 2014 (second marriage). This second marriage was registered with the Department of Home Affairs which issued a marriage certificate. Mr Malatji died, and the two women competed for the coveted title of surviving spouse and, therefore, executorship on the basis of their respective marriages. The dispute was resolved by the court which predictably and on solid authority of the Supreme Court of Appeal in Netshituka v Netshituka and Others 2011 (5) SA 453 (SCA) ruled in favour of the Ms Sedinyane the customary law wife.
The net legal effect of the court decision was that Mrs Malatji was dethroned of the spousal title of being married. The public and private declaration of commitment to her ‘husband’ and the resultant modelling of her life as a married woman was not enough to redeem her status in the eyes of the law. She was married but unmarried. This is the status many Black couples are likely to find themselves in until the legislature intervenes to protect ‘innocent’ spouses like Mrs Malatji.
Perhaps the time may have come for the legislature to consider making it compulsory for all customary marriages to be registered. This may assist parties entering into marriages to establish the marital status of their prospective spouses before committing themselves to the lifetime contract of marriage. Once this becomes a legal requirement, no party may claim ignorance to the existence of the customary marriage when concluding a marriage with a married spouse.
Maboku Mangena BProc (UniVen) PG Dip Corporate law (Unisa) Taxation Adv (UP) is a legal practitioner, notary, and conveyancer at Maboku Mangena Attorneys Inc in Polokwane.
This article was first published in De Rebus in 2024 (Nov) DR 44.
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