CHAPTER 7 CONSEQUENCES OF MARRIAGE Flashcards
- Critically evaluate the attainment of majority status under traditional African Customary law. (
In customary law, elderhood takes place progressively and is dependent on individual milestones (1).
These milestones include marriage and parenthood (1). For men, adulthood was attained by
establishing a separate homestead after marriage (1). For women majority status of an elder was
attained through concluding a marriage, the birth of her children land their own respective
attainment of the status of an elder and in the case of polygamous marriages)and her seniority in the
marriage (1). This is in contrast with civil marriages where the majority status was attained upon
reaching the age of 18 and in the case of a minor conclusion of a valid civil marriage (1).
- Describe how the Recognition of Customary Marriages Act 120 of 1998 improved the position of
women in customary marriages. (3)
Under traditional customary law, women were regarded as minors under the tutelage of their
husbands (1). Section 6 of the Recognition of Customary Marriages Act 120 of 1998 granted women
full status and capacity (1) which includes the capacity to acquire assets and dispose of them as well
as to enter into contracts and litigate (1)
- Panashe and Tait got customarily married on 16 November 1999. Tait wants to but a car, but her
husband objects to this purchase. Panashe informs Tait that she is a minor under his tutelage because
they got married prior to the enactment of the Recognition of Customary Marriages Act 120 of 1998.
With reference to authority, advise Tait on the validity of Panashe’s assertion. (5)
Although the Recognition of Customary Marriages Act 120 of 1998 does not provide for retrospective
application, rules introduced by this Act, on the equal status of the spouses, apply both to marriages
entered into before and after the Act came into force on 15 November 2000 (1). In Gumede v
President of the Republic of South Africa (1), the court sought to eradicate the discrimination against
women in monogamous customary marriages concluded before the Recognition of Customary
Marriages Act 120 of 1998 came into operation (1). This was achieved by ensuring that section 6 of
the Act applies retrospectively, thus, the rights in terms of section 6 apply to the marriage between
Panashe and Tait, giving Tait full status and capacity (1). Therefore, Panashe’s statements are
incorrect, and Tait can validly conclude a contract of purchase and sale (1).
- Linda concluded a customary marriage with Peter, a Tsonga man, on 17 November 2013. A year
later, Peter suffered a fatal injury from a motorbike accident. Upon his death it became known to
Linda that she was in fact Peter’s second wife and that he had concluded a customary marriage with
Tshegofatso, three years prior. Linda is worried about the validity of her marriage to Peter and
approaches you for legal advice. Advise Linda on the consequence of her polygamous marriage. (4)
The Constitutional Court in Mayelane v Ngwenyama (1) qualified polygamous marriages by concluding
that the prospective husband must obtain the consent of his first wife before entering into a
polygamous marriage (1). In this case, the court upheld the validity of the marriage but nullified it for
lack of consent (1). Subsequently, if Tshegofatso did not consent to the second marriage of her
husband Peter, his marriage to Linda will be declared null and void for lack of consent (1).
- Discuss the status of wives in polygamous marriages concluded before the commencement of the
Recognition of Customary Marriages Act 120 of 1998. (3)
Polygamous marriages entered into before the commencement of the Recognition of Customary
Marriages Act 120 of 1998 are regulated by customary law (1). On this basis, status is accorded to
wives in terms of seniority (1) which is determined according to the date of their marriage (1).
- Atandwa concluded a customary marriage with Raisibe on 12 April 2009. The couple has a child,
Funeko, who is born a year into their union. After 6 years of marriage, Raisibe files for divorce. She
moves back to her family home in Limpopo with Funeko. She cuts all communication with Atandwa
whom she refuses custody of their child because he had fully paid lobolo in respect of their union.
Atandwa approaches you for legal advice as he believes he should have custody over his child. With
reference to authority, critically advise him on his parental rights and responsibilities. (8)
Before the commencement of the Interim Constitution, payment on lobolo was important for the
affiliation of children (1). A father could only obtain custody over his child upon payment of lobolo (1).
However, upon the commencement of the Interim Constitution and the Bill of Rights the principle of
best interest of the child was introduced (1).
This is now cemented in section 28 of the Constitutionof the Republic of South Africa, 1996 (1). Upon
consideration of the principle in Hiophe v Mahlalela the court held that parental rights over a child
were not to be determined by the payment of lobolo (1) but rather by the best interest of the child
principle (1). The parental rights and responsibilities of children are now upheld by the Children’s Act
38 of 2005, which the Recognition of Customary Marriages Act 120 of 1998 gives recognition to (1).
Accordingly, Atandwa may acquire custody over Funeko regardless of not pay lobolo (1).
- Explain the complex ranking system in polygamous marriages with regards to property
ownership. (5)
Property acquired in a complex ranking system is separated into two
categories.
The first is under general property which consists of property acquired by individual members of the house concerned (1) This refers to the property owned by a particular wife and her children, inclusive of
the lobolo received for members of the house (1).
The second refers to family property (1). This includes property acquired by the family head
that has not been allocated to any particular house (1) This property is used to support the family head’s dependents (1).
Critically discuss the proprietary consequences of monogamous marriages entered into
before the commencement of the Recognition of Customary Marriages Act 120 of 1998.
Refer to applicable authority in your answer. (7)
prior to the Gumede v President of the Republic of South Africa (1) the proprietary consequences of monogamous customary marriages entered into before the enactment of the Recognition of Customary Marriages Act
120 of 1998 were governed by customary law (1). Only monogamous customary marriages concluded after 15 November 2000 without an antenuptial contract were recognised as in community of property (1).
This was outlined in section 7(2) of the Recognition of Customary Marriages Act 120 of 1998 (1). The court in Gumede v President of the Republic of South Africa, however, declared 7(2) unconstitutional insofar
as it excluded from its ambit marriages concluded before commencement of the Recognition of Customary Marriages Act (1). Consequently, all monogamous customary marriages, whether concluded before or after 15 November, are considered in community of property unless excluded by an antenuptial contract (1). Therefore, the marriages entered into before the commencement of the RCMA will be in community of property
(1).
Would your answer in question 2 above be different if it was a polygamous marriage
entered into before the commencement of the Recognition of Customary Marriages Act
120 of 1998? (4)
No, my answer in question 3 would not have been different (1) because section 7(1) which used to regulate the proprietary consequences of polygamous marriages was declared unconstitutional by the court in Ramuhovhiv President of the Republic of South Africa (1) in the Ramuhovhi v President of the Republic of South Africa the Constitutional Court decided that section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA) inconsistent with the Constitution and
invalid in that it discriminates unfairly against women in polygamous customary(1) marriages entered into before the commencement of the RCMA (pre-Act marriages) on the bases of (a) gender and (b) race, ethnic or social origin.(1)
Critically discuss the impact of non-compliance with section 7(6) of the Recognition of
Customary Marriages Act 120 of 1998. Refer to relevant authority in your answer. (5)
The high court in the Ngwenyama v Mayelane case held that a second marriage entered into without a contract as provided for in 57(6) of the RCMA was void. (1)
The SCA overturned the decision of the High court, the court held that s7(6) of the RCMA did not intend to invalidate the subsequent marriage but to protect the proprietary interest of both the existing
spouses and prospective spouse. (1) Therefore, according to the SCA, the marriage was valid and non-compliance with s7(6) did not invalidate the marriage. (1)
The Constitutional Court decided that the lack of consent by a first wife in Tsonga customary marriage would invalidate any further customary marriage (1). However, in Mayelane the marriage was ruled to be invalid due to lack of consent of the first wife. (1)
