The proprietary consequences of a polygamous customary marriage are yet to pass the legal certainty muster of post-apartheid jurisprudence, this assertion arises from the conflicting scholarly opinions and judicial decisions interpreting non-compliance with section 7(6) of the Recognition of Customary Marriages Act, 120 of 1998 (the “Act”).
In Gumede v President of the Republic of South Africa and Others (CCT 50/80  ZACC 23) the Constitutional Court correctly stated that " ... the legislation not only confers formal recognition on the (customary) marriages but also entrenches the equal status and capacity of spouses and sets itself the task of regulating the proprietary consequences of these marriages”. However, the proprietary consequences of customary marriages as provided for in section 7 of the Act continues to instigate an uproar of legal disputes before the courts. The Act sets out the requirements for a validity of a customary marriage in section 3(1) and section 7(6) of the Act.
The bone of contention at present is the Supreme Court of Appeal’s decision in Ngwenyama v Mayelane & another (474 /11)  ZASCA 94) in which the court ruled that a further customary marriage entered into by a husband in a customary marriage, without a court order approving the contract which will regulate the matrimonial property systems of his future marriages for the purposes of this Act, is valid. A decision which overruled an earlier decision by the North Gauteng High Court, Bertelsmann J sitting as a court of first instance.
Heaton and Cronje, South African Family Law - Second Edition 204, argue that by not invalidating a further marriage, concluded without a section 7(6) contract, the court renders the provision unnecessary which cannot be said to have been intended by the legislature.
Bekker and West, The validity of a further customary marriage, A new Conundrum THRHR 2012 (75), also lament the practical improbabilities which result from the court decisions validating a further marriage in the absence of a section 7(6) court order.
Matrimonial Proprietary Implications
Where A marries B in terms of customary law without an antenuptial contract having the result of a marriage in community of property, regulated by Chapter IV of the Matrimonial Property Act 88 of 1984 and later enters into a “further” customary marriage with C without a court order approving a section 7(6) contract, both marriages are valid customary marriages, recognized in terms of section 2(2) of the Act, as it was held by aforesaid Ngwenyama case. If A decides to acquire property for C, a legal administrative challenge ensues, an example being the citation of the parties in the deed of transfer by the conveyancer cast against the subsistence of a marriage in community of property between A and B and their concurrent administration of the joint estate (see in this regard RCR 28 of 2012 and section 15(2)(f) of the Matrimonial Property Act).
Legal disputes relating to customary marriages are, commonly referred to courts for resolution to demarcate and protect proprietary interests. It stands to reason that the decisions by the courts should provide legal certainty. The Ngwenyama judgment in answering the question regarding validity of a further customary marriage raised the following question; “What is the matrimonial property regime of a “further customary marriage” concluded without the required section 7(6) court order?" This question raises further questions;
- “Is it in the interest of justice to address this issue through piecemeal litigation and how does an uncertain matrimonial property regime protect women against failure of the husband to comply with section 7(6) of the Act?”
- Was the determination of the matrimonial regime of a further customary marriage hypothetical and not real, considering the possible subsistence of a concurrently administered joint estate?
Questions that all remain unanswered!
The primary object of litigation between the wife in the “existing” customary marriage and the wife in the “further” customary marriage is not a mere declaratory order of validity or invalidity of the further customary marriage to avoid the social stigma of spinsterhood or illegitimacy of children, but the patrimonial consequences which result from the order itself.
The cases Of Ngwenyama v Mayeyane & Another (474/ 11  ZASCA 94 (1 June 2012) and MG v BM and Others (10/37362)  ZAGPJHC 173; 2012 (2) SA253 (GSJ) (22 November 2011) shed little, if any, light concerning clarity of the patrimonial consequences of the “further” customary marriage. The constitutional court in both the Bhe and Gumede decisions fully addressed the practical and administrative impact of the decision taken. For instance in Robert Du Plooy v Ntombi Du Plooy and Others (417/11) (2012) ZASCA 135 (27 September 2012): 4 AH SA 239 (SCA) Supreme Court of Appeal in addressing a different point of law noted that “… the difficulties and uncertainties that can be created by a failure to formalize and define legal relationships with precision and care, especially where they are intended to endure over generations … often lead to violent disputes involving ownership of property among families and relatives.”
In Arnod (born Peer) and Another v Multilateral Motor Vehicle Accidents (444/98)  ZASCA 76;  4 All SA 421 (A) (29 September 1999) the Supreme Court of Appeal recognised a monogamous Muslim marriage for purposes of the duty of support. The facts of the case were confined to a de facto monogamous Muslim marriage. The Court left open the question as to the consequences of a polygamous marriage. This decision is tenable considering the absence of a statutory framework regulating Muslim marriages, unlike customary marriage. In the Gumede decision the Constitutional Court held that the matrimonial proprietary consequences of polygamous customary marriages will be regulated by customary law until parliament intervenes. Did the lawmaker overstep the mark in attempting to regulate proprietary consequences of polygamous customary marriages entered into after the commencement of the Act? Only time will tell.
To summarise, pending any possible answers from the courts or the legislature, legal practitioners must brace themselves for the difficulties and uncertainties emanating from non-compliance with section 7(6) of the Act.
Assistant Law Lecturer