Source: MARISSA BEYERS, PRO BONO COORDINATOR, LAW SOCIETY OF NORTHERN PROVINCES

Section 7(6) of the Act provides that a husband in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act must make an application to court to approve a written contract which will regulate the future matrimonial property system of his marriage. The court must in a case of a marriage which is in community of property or which is subject to the accrual system, terminate the said system and effect the division of the estate, and ensure an equitable distribution of the property. The court may further allow amendments to the terms of the contract, grant the order subject to any conditions it may deem just, or refuse the application if in its opinion the interest of any of the parties involved would not be sufficiently safeguarded by means of the proposed contract.

Courts have difficulty in interpreting this Section of the Act and there are many opinions of what the consequences should be in case of failure of the husband to approach the court with an application. Many argue that the second marriage should be valid, but that the second marriage should be out of community of property and profit and loss. Non-compliance with Section 7(6) will not affect the first wife negatively where she is married out of community of property with the exclusion of the accrual system. It is worth noting that there is not a sanction imposed for non-compliance with Section 7(6).

In M M v M N 2010 (4) SA 286(GNP) the court had to consider the provisions of Section 7(6). The deceased husband was married to the first respondent according to customary law on 6 January 2008. The marriage was confirmed by the headman of the first respondent’s village. The applicant had married the deceased in accordance with customary law on 1 January 1984 and was unaware of the deceased subsequent marriage to the first respondent. The first marriage was not registered and the second marriage was not preceded by an application to court as prescribed by Section 7(6). The applicant contended that the second marriage was null and void. The court held that failure to comply with the mandatory provisions of Section 7(6) leads to invalidity of a subsequent customary marriage, even though the Act doesn’t contain an express provision to that effect. The court further ordered that the first marriage be registered.

In M G v B M 2012 (2) SA 253 (GSJ) the deceased entered into a customary marriage with the first respondent on 9 May 1996. The marriage certificate was issued on 13 December 2002. At the time of his death on 13 December 2002 he was still married to the first respondent. The applicant entered into a customary marriage with the deceased on 8 June 2000. The applicant sought an order condoning the late registration of the customary marriage, an order compelling the Department of Home Affairs to register the marriage and issue a marriage certificate. The parties gave an attorney instruction to bring an application to court in terms of Section 7(6), but failed to finalise the application due to financial constraints. The court held that a valid customary marriage was entered into between the applicant and the deceased. The court held that by concluding a valid customary marriage, the applicant acquired certain rights. The court referred to Gumede v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC) where the Court declared the provisions of Sections 7(1) and (2) governing the proprietary consequences of customary marriages unconstitutional and discriminatory against women. The court referred to law of interpretation and stated that the legislature could not have the intention to remove these rights from spouses as the rights of applicant in casu. The court held that the Act does not contain an express provision to invalidate a subsequent customary marriage for failure to comply with the provisions of Section 7(6) of the Act.

Although the facts in the cases supra are distinguishable, it begs the question: why should a second wife be penalised if a valid customary marriage is entered into, but failure to register a marriage does not affect the validity thereof (sec 4), and the Act does not contain an express provision to invalidate a subsequent customary marriage for failure to comply with the provisions of Section 7(6)?