High court throws a lifeline to wives in “old” polygamous marriages

A section of the Recognition of Customary Marriages Act (RCMA) was declared invalid by the Limpopo High Court this week. This will affect the legal status of thousands of women who entered into “old” polygamous customary marriages and may allow them and their children to share in the estates of their husbands.

The “Netshituka” case, as it has become commonly known in legal circles, made another appearance in the High Court last month. The case served before Acting Judge Lamminga in the Thohoyandou Court and he gave his ruling on Monday (1st).

The background to the case is the five marriages of the late Masewa Joseph Netshituka. He had three customary wives, namely Tshinakaho, Masindi and Diana. He then married another woman, Martha, but this was a civil marriage.

Prior to the RCMA (Act 120 of 1998), spouses in a customary “union” were not regarded as being legally married. Should the husband opt to marry another wife in a civil marriage, the previous unions were automatically dissolved. The wife in such a customary union was known as a “discarded spouse”. In the case of Joseph Netshituka he was, according to the law, divorced from his previous spouses.

In 1984, Mr Netshituka divorced Martha, his wife in the civil marriage. From what could be established, he continued living with his three former wives.

On 17 January 1997, he entered into another civil marriage with a woman named Joyce. Mr Netshituka died in 2008, leaving a will in which he appointed Joyce as executor of his estate. The estate included several assets, such as the Why Not Centre in Thohoyandou, currently valued at more than R10 million.

Following his death, one of his customary wives and her daughter took the matter to court, arguing that the marriage to Joyce was not legal.

The legislation that was passed and the dates on which it became effective is very important in the Netshituka case. The Recognition of Customary Marriages Act repealed other acts, such as the Matrimonial Property Law Amendment Act (Act 3 of 1988) and the Black Administration Act of 1927. It was retrospective until 2 December 1988, meaning that all marriages concluded after that date were put on par with each other. A “customary union” was also not automatically dissolved by the civil marriage.

In Netshituka’s case, it was argued that the first marriage with Martha had occurred prior to 1988 and had thus effectively dissolved the previous marriages. When he married Joyce, he thus did not contravene the Matrimonial Property Law Amendment Act 3 of 1988, which made it illegal for someone in a customary union to contract a civil marriage with another woman.

The High Court agreed with this point of view, but the decision was overturned in 2011 by the Supreme Court of Appeal. The Supreme Court put a lot of emphasis on the fact that he had continued cohabiting with his customary marriage wives, thus showing his reconciliation with them. 

The court held the view that he was still married to his customary-law wives and was thus not competent to enter into a civil marriage with Joyce. The court did, however, rule that Netshituka’s last will and testament, in which he names Joyce as a beneficiary and the executrix of his estate, was valid and binding.
The children of the late Mr Netshituka never gave up the fight and went to court yet again. In the latest court battle, the applicants were children from the customary-law wives, namely Matodzi Ramuhovhi (born Netshituka) and Thinamaano Edson Netshituka. The respondents included the SA President, the Minister of Justice, Munyadziwa Joyce Netshituka, and the estate of the late Masewa Joseph Netshituka.

In the court papers, the applicants stated that Mr Netshituka’s last wife, Joyce, had inherited most of the properties but failed to look after his customary wives. “(S)he had (an) obligation to support the deceased’s family (but) failed to do so and continued to enjoy (the) good life while the deceased’s family is suffering,” the affidavit reads.

In their Heads of Argument, the respondents stated that Joyce Netshituka also entered into a customary marriage with her late husband. Their legal representatives argued that all these customary marriages were considered by law to be out of community of property. 
They argued that, should the court now opt to see all such marriages as being in community of property, it would lead to “a vista of litigation and disputes and no certainty in law for thousands if not millions of South African citizens.”

The Women’s Legal Centre Trust was admitted as an Amicus Curiae (impartial advisor to the court) in the case and also made a submission. The Centre limited its submission to Section 7(1) of the Recognition of Customary Marriages Act, arguing that it should be declared invalid, because it breaches the Constitution. The Trust was specifically concerned about what they described as “a particularly vulnerable and marginalized class of women.”

In his judgment, Judge Lamminga ruled that the provisions of section 7(1) of the RCMA discriminates unjustifiably against women in polygamous customary marriages and is invalid. “The persons in need of protection should not have to suffer the burden of unfairness and discrimination any longer and an interim remedy is necessary in order to extend protection to them, pending the required legislative processes,” he said.

Judge Lamminga ordered that the parties to “old” polygamous customary marriages should enjoy equal rights in and over matrimonial property. He referred to the “living” customary law and emphasized that the core nature of polygamy should be retained to ensure that the rights are exercised for the benefit of the family unit. “The differentiation between family property, house property and personal property should be retained to promote the sustainability of the family unit,” he said.
One of the problems the judge had to address, was the matter of retrospectivity. The defendants pointed out that a retrospective ruling might cause administrative chaos. Judge Lamminga did not limit the retrospectivity of the order of invalidity, except to the extent that it should not affect polygamous customary marriages that have been terminated by death or divorce. “The order should not interfere with completed transactions and provide protection for the interest of third parties,” he said.
The judge’s order has been referred to the Constitutional Court for confirmation. Should this happen, Parliament will have to enact legislation to govern the matrimonial property regimes of those people who entered into polygamous customary marriages before the RCMA came into operation. 

Judge Lamminga ordered that interim measures will apply until such time as legislation gets passed. These measures include joint control over the marital property, but a distinction is made between “house property”, “family property” and “personal property”.
The applicants in the case were represented by SO Ravele Attorneys, while Booyens Du Preez & Boshoff Inc Attorneys represented the estate of Masewe Joseph Netshituka and Munyadziwa Joyce Netshituka.

News - Date: 04 August 2016

Anton van Zyl

Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror since 1990. He graduated from the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.

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