Huweliksluiting én aanneming van kinders kragtens kulturele gebruike in stryd met die reg behoort kragteloos te wees – sed, ex Africa semper aliquid novi
Author: JC Sonnekus
Affiliations: Professor in Privaatreg, Universiteit van Johannesburg
Source: Tydskrif vir die Suid-Afrikaanse Reg, Issue 2, 2021, p. 211 – 239
Section 211(3) of the Constitution of the Republic of South Africa, 1996 provides that no recognition of customary norms may be upheld if such norms are in conflict with either the constitution or any other law that deals specifically with customary law: “The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.” The current Recognition of Customary Marriages Act 120 of 1998 deals explicitly with the recognition of customary marriages which are concluded in accordance with customary law (s 1). Customary law is defined as the “customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. It follows from a further reading of section 1 that a customary marriage is reserved for those indigenous African peoples who observe such customs and usages.
It is provided in section 10(4) that “[d]espite subsection (1), no spouse of a marriage entered into under the Marriage Act, 1961, is, during the subsistence of such marriage, competent to enter into any other marriage”. This must be read with the definitions contained in section 1: “‘customary law’ means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples; ‘customary marriage’ means a marriage concluded in accordance with customary law”. Without the requisite legal competency, no legal subject can enter into any relationship to which the law may attach any consequences. Nobody can enter into a customary marriage if any of the presumed future spouses is already in a civil marriage according to the Marriage Act 25 of 1961, not even if the two parties are married to each other.
According to the custom of various indigenous nations, if a man enters into a valid customary marriage with a woman who had never been married before but who is the mother of children born out of wedlock (spurii), the metaphor applies that he “who takes the cow also acquires the calf”. He will as part and parcel of the lobola ceremony be seen as the adopting stepfather of his wife’s children, with all the accompanying consequences. He will automatically be responsible for the future maintenance of those children as his adoptive children and they will acquire all rights and privileges that are bestowed on a child, including the right to inheritance and the right to his family name. As a consequence of this new relationship, all legal ties with the biological father of the adopted child are severed and the biological father will no longer be responsible for the maintenance of his offspring.
In January 2019 an erstwhile law professor from UNISA who still retained his German citizenship, was gravely ill and cared for on life-support at a hospital in the Pretoria district. While in hospital, he tied the marriage knot with Miss Vilakazi, a Zulu woman with whom he had been in a relationship for the past five years. Miss Vilakazi was a spinster, but she had a Zulu daughter who was born out of wedlock more than eight years previously out of a relationship with an erstwhile Zulu lover. This child had been in the care of her maternal grandmother in Natal and, according to Zulu customary norms, was considered part of the house of her maternal grandfather, Vilakazi. She consequently carried the name Vilakazi as her registered surname on her official birth certificate. The marriage, which was conducted on 29 January 2019 in the hospital in Pretoria, was concluded with adherence to all the requirements of Act 25 of 1961. The civil marriage was duly registered as such. The late professor passed away in the hospital barely three weeks later on 19 February 2019.
Less than 24 hours before the demise of the professor a purported customary marriage was concluded, apparently on behalf of the professor with the recently married Mrs Schulze by proxy by a friend of his in the Newcastle district in Natal after having paid R60 000 as ilobolo. The ceremony was concluded with the ceremonial slaughtering of the prescribed goat. However, during this ceremony the groom was not present but on life support in a Pretoria hospital and not necessarily compos mentis – the court was told that he was represented by a friend. Zulu customary law, however, does not recognise a marriage concluded by proxy with a substitude bridegroom as was known in Roman-Dutch law as “a wedding with the glove”. Neither the Marriage Act nor the Recognition of Customary Marriages Act, however, recognises a second marriage after the conclusion of a civil marriage by any of the purported newly weds – even if both “spouses” had been present in person.
The mother of the late Professor Schulze, after his demise in South Africa, amended her last will in Germany and appointed her lifelong partner as sole beneficiary of her significant estate. She passed away in Germany in October 2019.
In November 2019 the recently married Mrs Schulze, on behalf of her minor daughter, successfully approached the high court in Pietermaritzburg, where Zaca AJ issued an order compelling the South African department of home affairs to issue the daughter with a new birth certificate that reflects the late Professor Schulze as her father.
Notwithstanding the unease of the officials at home affairs with this court order, the minister of home affairs, Mr Motsoaledi, personally intervened in August 2020 and the new birth certificate was issued as requested. Relying on this newly issued birth certificate, the applicant claims an amount of not less than R8 million in Germany from the estate of the late mother of Professor Schulze. For this purpose, the applicant relies on a principle in German law, the Pflichtteilsanspruch, according to which any descendant of the deceased has a right to a prescribed portion, a so-called legitimate portion of the estate, if not mentioned or sufficiently bestowed in the last will. This raises a number of seriously flawed legal arguments that are analysed in this article.
It is submitted that the perceived lobola marriage ceremony conducted on behalf of the late professor on 18 February 2019 in Newcastle, less than 24 hours before his demise, is void because of the explicit constitutional provision and the relevant section 10(4) of the Recognition of Customary Marriages Act 120 of 1998, which excludes any competency to enter into a customary marriage if any of the parties involved is already married. At the date of the perceived lobola ceremony, Mrs Schulze had already been civilly married to Professor Schulze for more than three weeks and thus both spouses lacked the necessary competency to enter into a valid customary marriage. Whether a valid customary marriage could have been concluded at all with a man who did not live according to the customs and usages of the Zulu, is also highly questionable.
Because the perceived lobola marriage is a nullity, no legal consequences can flow from this nullity and the so-called customary adoption of the daughter (“the calf with the cow”) is a nullity too. At no stage was any of the requirements for a valid adoption as governed by the Children’s Act 38 of 2005 adhered to. The minister of home affairs should have immediately given notice of appeal after the unconvincing judgment of Zaca AJ was handed down in January 2020. As the responsible minister, he should guard the upholding of the constitution and the applicable legal provisions unambiguously contained in the relevant section 10(4) of Act 120 of 1998. It is a pity that the so-called adherence to the principles of the “rule of law” is not even paid lip service in this case. Bennett, as a renowned expert on customary law, correctly pointed out that the legal orders are not unconnected. It may never be assumed that the people concerned are unaware of how to manipulate the resources offered them by legal pluralism (A Sourcebook of African Customary Law for Southern Africa (1991) 50).