Case name:
Netshituka v Netshituka  (426/2010) [2011] ZASCA 120 (20 July 2011)

Area of law:
Customary Law: whether a civil marriage contracted between a partner to a customary union and another man or woman during the subsistence of that union is valid.

Brief facts/summary:
At the time of his death, the deceased was married to three different women by customary rites. He was also married to the First Respondent by civil rights which marriage was contracted on 17 January 1997. Following the death of the deceased, the Appellant and her erstwhile Co-Applicants decided to contest the validity of inter alia the deceased’s marriage to the First Respondent. In resisting the Appellant’s Application, the First Respondent contended that the customary marriages between the deceased and the Appellant’s erstwhile Co-Applicants were rendered invalid when the deceased married the First Respondent by civil rights.

One of the question before the SCA was whether the deceased was competent to contract a civil marriage with the First Respondent during the subsistence of the aforesaid customary unions.

The SCA held that a civil marriage contracted while the man was a partner in an existing customary union with another woman was a nullity.

Importance/value:
In Nkambula v Linda 1951 (1) SA 377(A), the Court held that where one partner in a customary union contracted a civil marriage with someone other than his or her partner in the union, the civil marriage automatically terminated the customary union.

Nevertheless, the SCA did not follow the decision of Nkambula, but held rather that a civil marriage between two people, having been contracted while one of them was a partner in an existing customary union with another, renders the civil marriage a nullity and not the customary union.

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