Article written by Danisha Naidu, Associate Attorney, checked by Jayna Hira, Associate, and released by Charlotte Clark, Senior Associate at Schindlers Attorneys
12 October 2021
The Applicant married the Deceased in terms of customary law (m. 1972). Whereas the Third Respondent was married to the Deceased in terms of both customary law (m. 1981) and a subsequent civil marriage, in community of property (m. 1994).
The Deceased passed away in 2016. In terms of the Deceased’s will, duly accepted by the Master of the High Court (Pietermaritzburg), he bequeathed his entire estate to the Third Respondent, who was further appointed as the Executrix of his estate.
The Applicant accordingly sought an order to ensure that the estate of the Deceased devolved in accordance with customary law, and further, that the Deceased’s estate be liquidated and equally distributed between both the Applicant and the Third Respondent.
Rule of Law
Validity of the civil marriage between the Deceased and the Third Respondent
While not in contention, the Court considered the validity of the civil marriage that the Deceased and the Third Respondent had entered into.
At the time that the Deceased and the Third Respondent entered into their civil marriage, the amendments of section 22 (1) of the Black Administration Act1 (“the BAA”), in terms of the Marriage and Matrimonial Property Amendment Act2 (“the MMPA”) stated that:
‘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’.
The Court further relied on the judgment of Netshetuka v Netshetuka and Another3, wherein the Supreme Court of Appeal (“SCA”) declared that a civil marriage contracted whilst a man was a partner in an existing customary union with another woman, is invalid.
In light of the above, the Court found that the civil marriage between the Deceased and Third Respondent was invalid.
It must be noted that the above provisions were subsequently repealed in terms of Section 10 (1) of the Recognition of Customary Marriages Act4 (“the RCMA”).
Polygamous customary marriage and the applicable proprietary system
In Sithole and Another v Sithole and Another5 the Constitutional Court declared section 21 (1) (a) of the Matrimonial Property Act (“the MPA”) unconstitutional and invalid, as it perpetuated the discrimination brought about in terms of section 22 (6) of the BAA. The Court accordingly held that the default regime of all customary marriages concluded in terms of the BAA would be in community of property and of profit and loss.
This position was further highlighted in terms of sections 7 (1) and (2) of the RCMA. However, these provisions were declared unconstitutional in the case of Gumede v President of South Africa and Others6, as these provisions only applied to monogamous customary unions and not those of a polygamous nature.
During or about June 2021, the above provisions were amended to apply to both monogamous and polygamous customary marriages in terms of section 2 (1) of the Recognition of Customary Marriages Amendment Act7 (“the RCMAA”).
The Court further noted that the RCMAA is applicable to all deceased estates that have yet to be wound up, as well as to the transfer of marital property that had not yet been effected.
The three types of matrimonial property in a polygamous marriage in terms of the RCMAA
The three types of matrimonial property highlight by the court include:
- The family property that is allotted to a specific house and is owned, managed and jointly controlled by the husband and wife in that specific house;
- The family property that is not allotted to any of the wives’ houses and is owned, managed and jointly controlled by the husband and all wives; and
- The property that is exclusively owned by the spouse.
The Court found that the RCMAA would apply to this matter, as the deceased estate in contention had not yet been finalised when the Act commenced. This is despite the fact that the legal representatives for both parties had failed to refer to the RCMAA.
Accordingly, the court found that in terms of the RCMAA:
(i) the Applicant, the Third Respondent and the Deceased, all had joint and equal ownership over the family property that was not allocated to any of the wives;
(ii) the Applicant and the Deceased enjoyed joint ownership over the family property that was allocated to the Applicant’s house;
(iii) the Third Respondent and the Deceased enjoyed joint ownership over the family property that was allocated to the Third Respondent’s house; and
(iv) each spouse had exclusive ownership over his or her personal property.
The Court further found that the Deceased’s will was legally binding and sought to establish the Applicant’s share to the Deceased’s estate if any.
The Court ultimately found that the Applicant was entitled to half of the property that was allotted to her house, if any, as well as a one third share of the property that was not allotted to any of the wives’ houses.
The Court further ordered that the Third Respondent, in her capacity as Executrix of the estate, transfer to the applicant:
- a half share of the family property allotted to the Applicant’s house, if any; and
- a one third share of the property that is not allotted to any of the other wives’ houses, if any.
VALUE This case looked at the proprietary system applicable to polygamous customary marriages, entered into prior to the coming into effect of the Recognition of Customary Marriages Act 120 of 1998 and the Recognition of Customary Marriages Amendment Act 1 of 2021.
This case looked at the proprietary system applicable to polygamous customary marriages, entered into prior to the coming into effect of the Recognition of Customary Marriages Act 120 of 1998 and the Recognition of Customary Marriages Amendment Act 1 of 2021. Act 38 of 1927.
 Act 33 of 1988.
 2011 (5) SA 453 (SCA).
 Act 120 of 1998.
  ZACC 7; 2021 (6) BCLR 597 (CC).
 2009 (3) SA 152 (CC).
 Act 1 of 2021.