From a conveyancing perspective it is imperative to determine whether a civil marriage, concluded subsequent to a customary marriage, is valid or ab initio void. The case of Netshituka v Netshituka (426/10)  ZASCA 120 dated 20 July 2011 has now given clear direction as to the validity or non validity of civil marriages concluded after the Marriage and Matrimonial Property Law Amendment Act, Act 3 of 1988, which came into operation on 2 December 1988. This aforementioned Act amended the repealed Black Administration Act 38 of 1927.
The position of the validity of civil marriages, prior and post the said Act, will now be discussed.
Position before 1 December 1988
Spouses in a customary “union” were, prior to the Recognition of Customary Marriages Act 120 of 1998, not regarded as legally being married to one another. A spouse could thus, at any time during the subsistence of such marriage, conclude a valid civil marriage with another person. The effect of such civil marriage on the “customary union”, was that such union was automatically dissolved (see Nkambula v Linda 1951 (1) SA 377 (A) and Malaza v Mndaweni 1975 BAC (C) 45. The wife to such customary union was known as a “discarded spouse”. The wife to such customary union could also contract a civil marriage with another person, and similarly the existing union was automatically dissolved.
Position from 2 December 1988
In terms of the aforementioned Marriage and Matrimonial Property Law Amendment Act, Act 3 of 1988, which came into operation on 2 December 1988, the Black Administration Act of 1927 was amended and the amendment had the following consequences:
- All marriages in South Africa were put on par with one another, and the Matrimonial Property Act 88 of 1984 was also made applicable to black marriages concluded with effect from 2 December 1988. Marriages thus concluded from 2 December 1988 were automatically in community of property, unless an antenuptial contract was entered into and registered within three (3) months of conclusion thereof in the deeds registry.
- Another important innovation was that the “customary union” was not automatically dissolved by the civil marriage. The amended section 22(1) of Act 38 of 1927 prohibited a husband of a customary marriage from contracting a civil marriage with another woman during the subsistence of such customary marriage. In the Netshituka case alluded to above, the above was confirmed, and para. 14 and 15 of the judgment reads as follows:
“ The next question is whether it was competent for the deceased to contract a civil marriage with the first respondent during the subsistence of the customary unions with Tshinakaho and Diana Ntshituka. Section 22 of the Act was amended by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, which came into operation on 2 December 1988. After the amendment subsections (1) and (2) provided:
‘(1) A man and a woman between whom a customary union subsists are competent to contract a marriage with each other if the man is not also a partner in a subsisting customary union with another woman.
(2) Subject to subsection (1), no person who is a partner in a customary union shall be competent to contract a marriage during the subsistence of that union.’
Subsection (3) barred a marriage officer from solemnizing the marriage of an African ‘unless he has first taken from him a declaration to the effect that he is not a partner in a customary union with any woman other than the one he intends marrying’. And in terms of the amended subsection (5) a man who made a false declaration with regard to the existence or otherwise of a customary union between him and any woman made himself guilty of an offence. A marriage officer could thus not solemnize a marriage where a man intended to marry a woman other than the one with whom he was a partner in an existing customary union. That, in my view, was the clear intention of the Legislature when it amended section 22 of the Act.
 Subsections (1) to (5) of section 22 of the Act, as amended, were in force as at the date on which the civil marriage between the deceased and the first respondent was contracted. (The subsections were repealed by the Recognition of Customary Marriages Act 1920 of 1998, which came into operation on 15 November 2000). In Thembisile v Thembisile 2002 (2) SA 209 T Bertelsmann J held that a civil marriage contracted while the man was a partner in an existing customary union with another woman was a nullity. It was not argued in this court that Thembisile was wrongly decided. It follows that the civil marriage between the deceased and the first respondent, having been contracted while the deceased was a partner in existing customary unions with Tshinakaho and Diana, was a nullity.”
Position from 15 November 2000
Section 3(2) of the Recognition of Customary Marriages Act 120 of 1998 now also prohibits a spouse, who is a party to valid customary marriage, from entering into a civil marriage, in terms of the Marriage Act 25 of 1961. This Act has merely confirmed the repealed section 22(1) of Act 38 of 1927.
From the above it is abundantly clear that the date of conclusion of the civil marriage will be the deciding factor to ascertain whether such marriage is valid where the husband had entered into a prior customary marriage.
Where the civil marriage was concluded after 2 December 1988 and there existed a customary marriage, irrespective of whether the customary marriage was registered or not, the civil marriage is a nullity and the customary marriage valid. However, where the civil marriage was concluded before 1 December 1988, the customary marriage is automatically dissolved and the civil marriage valid.
Conveyancers are warned to obtain affidavits from spouses to establish whether any customary marriage was concluded prior to the conclusion of the civil marriage, and not merely rely on the marriage certificate presented to them.