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The weight that customary marriages carry was highlighted once again during a legal wrangle between two widows. Both “wives” claimed that they were legally married to their now-deceased husband. The first wife stated that she married her husband in 1991 in terms of customary law. The second wife stated that she was the “true wife” because she had legally married her husband in 2007 in terms of civil proceedings.

Both wives claimed that they were entitled to their late husband’s estate, and each requested the Gauteng High Court in Pretoria to declare her marriage as being valid. However, when Steve Sibanyoni died in December 2020, he had no idea that his marriage to the second wife was invalid because, according to the court’s verdict after his death, he was still married to wife number one.

After the deceased’s death, his first wife attempted to report his estate but was advised by the Master of the High Court that the second wife had been appointed as executor by virtue of her civil marriage with the deceased. The first wife, who had been married to Sibanyoni for more than 30 years at the time of his death, went to the High Court to have the Master dealing with his estate recognise her as the true wife.

The first wife obtained confirmation from a traditional authority as her customary marriage was not registered with Home Affairs. She maintained that her customary marriage was not dissolved by the time her husband married the second wife and said the recognition of the Customary Marriages Act made her the lawful wife. The second wife, on the other hand, stated that her marriage was solemnised in a public ceremony and that the first wife knew of her marriage with the deceased and had not objected to it.

Judge Cassim Sardiwalla said marriage in terms of customary law gives rise to some legal complexities. Sardiwalla said it must be examined whether the customs, traditions or rituals that must be observed in the negotiations and celebration of customary marriages have been complied with. These include the negotiations leading to the agreement on lobolo, as well as any other tradition, custom or ritual associated with these. If a customary marriage has not been concluded in accordance with customary law, it cannot be regarded as valid.

The court found that the requirements for a valid customary marriage are thus similar to those prescribed for a civil marriage, except that a customary marriage had to be negotiated and entered into or celebrated in accordance with customary law. The judge referred to an earlier court judgment on this subject, in which it was said: “No hard and fast rules can be laid down; this is because customary law is a flexible, dynamic system, which continuously evolves within the context of its values and norms, consistent with the Constitution, so as to meet the changing needs of the people who live by its norms”.

Although the Recognition of Customary Marriages Act makes it obligatory to register such a marriage, it does provide that a failure to do so does not affect the validity of that marriage. Sardiwalla declared the customary marriage between the first wife and the deceased valid and the civil marriage between the second wife and the deceased null and void. The Minister of Home Affairs was directed to expunge the civil marriage between the second wife and the deceased from the marriage register and to register the customary marriage.

Reference List:

  • Recognition of Customary Marriages Act 120 of 1998
  • Marriages Act 25 of 1961
  • Phele and Another v Sibanyoni and Others – Judgment: 15 July 2022
  • Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA)

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.