Duty to Support and the Dependant's Claim: The Struggle of Women Married in Terms of Customary and Muslim Law

• Jurisdiction: South Africa
• Pages: 314-332
• Date: 27 May 2019
• Published date: 27 May 2019
• Citation: (2006) 17 Stell LR 314
• Author: JM Pienaar

DUTY TO SUPPORT AND THE DEPENDANT’S

CLAIM: THE STRUGGLE OF WOMEN MARRIED

IN TERMS OF CUSTOMARY AND MUSLIM LAW

JM Pienaar

B Juris LLB LLM LLD

Professor, University of Stellenbosch

1 Introduction

Although the economic empowerment and independence of widows

are generally dependent on the enforcement of their inheritance rights

(and concomitant protection of property rights), a dependant’s successful

claim for loss of support in the case of a wrongful death of a husband also

contributes significantly to the widow’s ability to provide for herself and

her children.

1

In South Africa, under the Roman-Dutch common law, the duty to

support has traditionally only been acknowledged in certain circum-

stances: if imbedded in a valid marriage or resulting from blood

relationship.

2

Until 2000, valid marriages only included civil marriages

entered into in terms of the Marriage Act.

3

Potentially polygynous

marriages were deemed to be against public policy and consequently not

recognised.

4

The plight of widows from customary and Muslim marriages

was obvious: since the marriage was not recognised as valid, the duty to

support was not recognised either. These women, already vulnerable after

the death of a spouse, were — irrespective of the duration of the marriage

or the number of children born therefrom — without remedy. Widows

from civil marriages were, however, able to successfully claim main-

tenance in similar circumstances.

Strangely enough, despite the blanket non-recognition of customary

marriages until 2000,

5

customary widows were accommodated by way of

legislative intervention as early as 1963 in relation to wrongful death

1

Although this contribution is written from the widow’s perspective, it is recognised that the death of a

wife may also result in the surviving spouse (widower) facing similar problems in practice, depending on

the specific circumstances.

2

This also includes adoption. See in this regard Neeth ling & Potgieter ‘‘Uitbreiding van die

Toepassingsgebied van die Aksie van die Afhanklike’’ 2001 THRHR 483 487-488.

3

125 of 1961.

4

See Maithufi & Moloi ‘‘The Current Legal Status of Customary Marriages in South Africa’’ 2002

TSAR 599-611 600-602 for a discussion of the reasons for non-recognition.

5

Even before the commencement of the Recognition of Customary Marriages Act 120 of 1998 on 15

November 2000, customary marriages were, however, also recognised for purposes of the following

legislation: s 21 of the Insolvency Act 24 of 1936; s 1(1) of the Law of Evidence Amendment Act 45 of

1988; s 27 of the Child Care Act 74 of 1983; s 5(6) of the Maintenance Act 23 of 1963 and s 1 (the

definition of ‘‘married’’) of the Income Tax Act 58 of 1962.

314

(2006) 17 Stell LR 314

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claims. Section 31 of the Black Laws Amendment Act 76 of 1963

specifically provides for the institution of a claim for maintenance if all of

the requirements have been met. In practice, many of these requirements

are extremely problematic. Road Accident Fund v Mongalo,

6

a 2003

decision, has confirmed that this Act, a remnant from a period when legal

measures were racially based, still provides the relevant mechanism to

effect claims for customary widows.

The plight of widows in Muslim marriages underwent a lengthy

piecemeal development in case law in which certain aspects of these

relationships were recognised over a period of time. In 1997 the

contractual basis of a de facto monogamous Muslim marriage was

recognised and enforced.

7

The duty to support and consequential claim

for maintenance in the case of accidental death of a spouse was, however,

only recognised in 1999. In Amod v Multilateral Vehicle Accident Fund,

8

the Supreme Court of Appeal confirmed that the widow’s right had to be

protected if there was a legal duty to support — irrespective of the

question whether the marriage was valid or not. By ‘‘properly applying’’

the common law principles, the Supreme Court of Appeal in the Amod

case (merely) extended the common law to include the claim for

maintenance for Muslim widows who were partners in a de facto

monogamous marriage.

Consequently the legal position regarding the claim of a dependant in a

customary and Muslim marriage can be summarised as follows:

customary wives, whose marriages have been recognised as valid

marriages since 15 November 2000, are still being sidelined by the

common law, including de facto monogamous marriages. These widows

have to make use of a racially based legislative measure with major

repercussions if not fully adhered to. Muslim widows, whose marriages

have as yet not been formally recognised (although development in this

regard is currently underway), have, however, been incorporated into the

common law — but only in relation to monogamous marriages. The

publication of the Muslim Marriages Bill specifically calls for the

recognition of monogamous and polygynous family structures.

It is the aim of this contribution to give an overview of the two

distinctive approaches concerning customary and Muslim widows

respectively in light of the new constitutional dispensation. The

dependant’s claim for support will first be placed in context by

emphasising the aims and requirements for this remedy after which a

brief historical background with regard to customary and Muslim

widows will follow. Thereafter the current mechanisms to realise these

claims will be set out and analysed. Questions whether the available

mechanisms function optimally, especially in view of the polygynous

6

2003 1 ALL SA 72 (SCA).

7

Ryland v Edros 1997 2 SA 690 (CPD).

8

1999 4 SA 119 (SCA).

DUTY TO SUPPORT AND THE DEPENDANT’S CLAIM 315

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