By Celeste Frank and checked by Jordan Dias
This appeal concerns the assets of the estate of the late Mr Phago (“the Deceased”) who died intestate on 22 December 2012. Ms Matsatsi Monyepao (“the Appellant”), and Ms Mokgaetji Ledwaba (“First Respondent”) both claim to have been married to the Deceased, in terms of customary marriages, at the time of his death.
The Appellant alleges that the First Respondent married the Deceased in either June or July 2007, in terms of customary law, and ended in February 2008. However, the First Respondent stated that her marriage to the Deceased continued, even after he had started ‘an extra-marital relationship’ with the Appellant and that her marriage to the Deceased, ‘was never dissolved nor terminated until the death of the Deceased’.
The Appellant contended that between 17 July 2020 and 28 August 2010, she and the Deceased entered into a customary marriage. In response, the First Respondent stated that this marriage was a nullity “because it was concluded while the Deceased was married to me, without following the required procedure that would validate it”. The Supreme Court of Appeal (“SCA”) stated that the First Respondent had failed to prove the rule of customary law she relied on and therefore, it must be accepted as a fact that the Appellant and the Deceased entered into a customary marriage during the subsistence of the customary marriage of the First Respondent and the Deceased.
In support of her argument that the First Respondent was no longer married to the Deceased at the time of his death, the Appellant argued that, on 26 November 2009, the First Respondent married Mr Andrew Kwele (“Mr Kwele”) in a civil marriage. The First Respondent admitted to this marriage but indicated that ‘it was null and void and did not have the effect of dissolving my customary marriage with the Deceased’.
The principal issues deliberated by the SCA were as follows: (a) whether the customary marriage between the First Respondent and the Deceased was dissolved in February 2008; (b) if not, whether First Respondent’s civil marriage to Mr Kwele had the effect of invalidating her customary marriage to the Deceased; and (c) in the alternative, whether the First Respondent should be ordered to forfeit the benefits of her marriage to the Deceased.
The SCA held that, in order for the marriage between the First Respondent and the Deceased to have been brought to an end, prior to the death of the Deceased, a decree of divorce (in terms of section 8 of the Recognition of Customary Marriages Act (“the Act”)) would have had to be issued, which was neither alleged nor proved. Therefore, there was no factual basis for finding that the First Respondent’s customary marriage to the deceased was terminated in February 2008.
It was held that the First Respondent’s purported civil marriage to Mr Kwele had no impact on the validity of her prior customary marriage to the Deceased and therefore, it was a nullity.
In respect of the forfeiture of benefits, the SCA considered section 8(4) of the Act which provides that when a court grants a decree of divorce in respect of a customary marriage, it has the powers contemplated, inter alia, in section 9 of the Divorce Act (“Divorce Act”).
Section 9 of the Divorce Act states the following:
“when a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.”
It is clear from s 9(1) of the Divorce Act that the power of a court to order the forfeiture of benefits arises only as an adjunct to a decree of divorce. The SCA held that this can only be made by one party to a marriage against the other in divorce proceedings. Consequently, the Appellant had no standing and the SCA had no jurisdiction to order that the First Respondent forfeit the benefits of her marriage to the Deceased.
The appeal was dismissed with costs.
In this case, our attention is drawn to customary marriages in South Africa. The case emphasises that when a person civilly marries “X” it will have no impact on the validity of the prior customary marriage that that person may have had with “Y”. Furthermore, unless the proceedings are of a divorce nature, the court has no jurisdiction to order forfeiture of benefits and any third party requesting such an order, where they are not a party to the marriage, has no standing.
The primary issues that the court had to determine in this matter was whether the customary marriage between the First Respondent and the Deceased was dissolved in February 2008 and if not, whether the First Respondent’s subsequent civil marriage to Mr Kwele had the effect of invalidating her customary marriage to the deceased. Moreover, whether the First Respondent should be ordered to forfeit the benefits of her marriage to the deceased.
Estate, Assets, Customary Marriages, Customary law, Extra-marital Relationship and Civil Marriage.