Kader v Kader

• Jurisdiction: South Africa
• Citation: 1972 (3) SA 203 (RA)

Kader v Kader
1972 (3) SA 203 (RA)

1972 (3) SA p203

Citation	1972 (3) SA 203 (RA)
Court	Rhodesia, Appellate Division
Judge	Macdonald ACJ and Lewis AJP
Heard	April 17, 1972
Judgment	April 25, 1972

Flynote : Sleutelwoorde

Husband and wife — Marriage — Foreign polygamous marriage — Recognition of for civil purposes in Rhodesia — Maintenance — Order under sec. 4 of Chap. 173 (R) against husband in favour of non-African wife of a potentially polygamous B marriage — Validity of.

Headnote : Kopnota

Save in regard to the exercise of the High Court's matrimonial jurisdiction, which is restricted to cases involving monogamous marriages, polygamous marriages validly contracted by non-Africans in the countries of their domicile are recognised for all civil purposes in Rhodesia.

On a proper interpretation of the Deserted Wives and Children's C Protection Act, Chapter 173 (R), the non-African wife of a potentially polygamous marriage is not excluded from its ambit, and the court acting under section 4 of the Act can validly make an order for the payment of maintenance by the husband to his wife, for herself and the minor children of the marriage. D

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the judgment of LEWIS, A.J.P.

T. W. H. Kennedy Grant, for the appellant: The magistrate erred in law in holding that a wife of a polygamous marriage is a 'wife' within the meaning of that word in the Deserted Wives and Children Protection Act, E Chap. 173. A marriage is polygamous if celebrated under tenets which do not forbid the plurality of spouses whether or not the one party has in fact a plurality of spouses. Hahlo, The SA Law of Husband and Wife, 3rd ed., p. 586; Seedat's Executors v The Master (Natal ), 1917 AD at p. 308; Patel v The Master of the High Court, 1953 S.R. at p. 164. A polygamous marriage is 'forbidden by our (legal system) and F fundamentally opposed to our principles and institutions'. Mashia Ebrahim v Mahomed Essop, 1905 T.S. at p. 61; Seedat's case, supra at p. 309. Such a marriage celebrated within Rhodesia would in the absence of special statutory provision, be invalid. Ngqobela v Sihele, (1893) 10 S.C. at p. 352. For examples of statutory provisions governing marriages G according to African law and custom, see Southern Rhodesia Order in Council, 1898, sec. 51; Native Marriages Ordinance, 2 of 1901, sec. 5 (3); African Marriages Act, Chap. 105, sec. 3 (1) and (2). Where such a marriage is celebrated outside Rhodesia and is valid according to the lex loci celebrationis, it will be recognised but only to the extent to which it is not opposed to the essential nature of the contract of H marriage as understood in Rhodesia. Ngqobela v Sihele, supra at p. 353; Seedat's case, supra at p. 309; Estate Mehta v Acting Master, High Court, 1958 (4) SA at p. 253F - G. (a) Marriage as understood in Rhodesia is 'the union of one man with one woman, to the exclusion while it lasts of all others'. Mashia Ebrahim v Mahomed Essop, supra at p. 61. (b) Central to our idea of marriage is the primacy in the eyes of each spouse of the other spouse compared with third parties. (c) One of the essential incidents of the contract of

1972 (3) SA p204

marriage is the reciprocal duty of the spouses to support each other. Woodhead v Woodhead, 1955 (3) SA at p. 139H. (d) At common law the reciprocal duty of support terminates on the divorce of the parties. A Sec. 9 (1) of the Matrimonial Causes Act, Chap. 179, however, empowers the Court to make an order for the maintenance after divorce of a female plaintiff by a male defendant. The right to apply for such an order is as much an incident of the contract of marriage as the right to support which exists during the subsistence of the marriage. (e) The ability and B inclination of a 'husband' in a marriage which is actually or potentially polygamous to support his 'wife' or any one of his 'wives' is in fact, or is likely to be, affected; and consequently the right of his spouse (if in fact he only has one) or any of his spouses (if he has more than one) is liable to be, or in fact is, made less valuable. To the extent to which a polygamous marriage is opposed to the essential C nature of the contract of marriage as understood in Rhodesia in the manner described above, it will not be recognised by our Courts. In Estate Mehta v Acting Master, High Court, supra, the Court held that the surviving spouse of a polygamous marriage was a 'surviving spouse' for the purposes of sec. 11 of the Death Duties Act, Chap. 129 of the D 1938 Revised Edition of the Statutes. In considering the effect of Estate Mehta v Acting Master, High Court it is important to determine to what extent and with reference to what criterion the Federal Supreme Court held that the principle in Seedat's case should and could be qualified and the validity of that criterion.

E The word 'wife' is not defined in Chap. 173. The word must therefore be given its ordinary meaning and the Act must be interpreted in accordance with the rule that a statute is to be construed in conformity with the common law rather than against it except where and in so far as the statute is plainly intended to alter the common law. Craies on Statute Law, 6th ed., pp. 187 - 9; van Heerden v Muir, 1955 (2) SA at p. 379E. F There is nothing in the Act that would justify the conclusion that it was plainly intended to alter the common law. In construing the word 'wife' reference maybe made to decisions on the meaning of the word 'marriage'. (a) The meaning of the word 'marriage' has been considered in Mashia Ebrahim v Mahomed Essop, loc. cit.; Rex v Shasha, 1948 (2) G S.A. at p. 998. (b) The meaning of the word 'wife' has been considered in R. v Sukina, 1912 T.P.D. at p. 1083; Seedat's case, supra at p. 309.

It is relevant to note that the English Courts, faced with the same problem of interpretation in respect of the Matrimonial Proceedings (Magistrates' Courts) Act, 1960, have come to the same conclusion, H namely that only a monogamous marriage entitles a spouse to bring proceedings under the Act. Sowa v Sowa, 1961 p. 70; 1 All E.R. 687; Parkasho v Singh, (1967) 1 All E.R. at p. 739G.

E. J. Whitaker, Q.C., (with him N. J. van Rensburg ), for the respondent: It is admitted that the marriage between the appellant and the respondent was polygamous. It is, however, of importance to note that: (a) the marriage was celebrated in Malawi; (b) at the time of the celebration of the marriage the appellant was domiciled in Malawi; (c) that the marriage is recognised as valid in Malawi.

1972 (3) SA p205

It is clear that in our law recognition will be given to potentially polygamous unions; Estate Mehta v Acting Master, 1958 (4) SA 252. The question is, therefore, whether such recognition should be given for the purposes of the Deserted Wives and Children Protection Act. The A recognition of respondent as a wife in terms of the said statute could not possibly be said to disturb the incidents of our own monogamous system. Nor can it be said that the laws appertaining to monogamous marriages will not be preserved. On the contrary, common and decency dictate that a husband be compelled to support his wife with whom he had cohabited and who may have borne him many children. Further, because the B Legislature has not sought to distinguish or exclude wives in a potentially polygamous marriage it must be taken to have used the word 'wife' in its widest sense. Strong reasons do exist, therefore, which outweigh the general policy and effect should be given to them. See Baindail v Baindail, 1946 p. 122; Mawji v The Queen, 1957 A.C. 126; R. C v. Rahman, (1949) 2 All E.R. 165; Kenward v Kenward, 1951 P. 124; You v Attorney-General for British Columbia 1924 D.L.R. 1166 (referred to at pp. 260 and 261 of Mehta's case supra): Iman Din v National Assistance Board, (1967) 2 Q.B.D. 213. Sowa v Sowa, 1961 (1) All E.R. 687, was decided on the provisions of the Matrimonial Proceedings (Magistrates Court) Act, 1960, in sec. 2, of which extremely wide powers D are given to magistrates including the right to regulate cohabitation. The magistrate was only entitled to rescind the judgment on the grounds specified in sec. 35 of the Magistrate's Court Act, Chap. 15. The only possible averment is that the magistrate in the original proceedings had no jurisdiction to entertain the application. The question as to whether E the applicant was a 'wife' was one of the matters which the magistrate had to determine. His finding was that she was a 'wife' in terms of the relevant statute. This finding brought the application within his jurisdiction. The finding was one which was appealable, but, in the absence of an appeal, was res judicata. The essential constituents of estoppel per rem judicatam are set out in Spencer-Bower and Turner, Res F Judicata. 2nd ed., pp. 18 and 19. The Court plainly had jurisdiction to make a finding as to whether the respondent was a 'wife' by reason of G proviso (i) (c) to sec. 12 of the Magistrates Court Act, Chap. 15.

Kennedy Grant, in reply.

Cur adv vult.

Postea (April 25th)

Judgment

Lewis, A.J.P.:

This is an appeal against a judgment in the magistrate's H court, Salisbury, dismissing with costs an application by the appellant to rescind an order made against him on 15th November, 1967, by a magistrate in terms of sec. 4 of the Deserted Wives and Children Protection Act, Chap. 173, for the payment of maintenance by the appellant to the respondent, his wife, for herself and two of the minor children of the marriage.

It is common cause that the parties were married at Limbe in Malawi on 4th June, 1961, at a time when the appellant was domiciled

1972 (3) SA p206

Lewis AJP

in that country. The marriage was by Muslim rites and hence was potentially polygamous, but such a marriage is...