Makholiso and Others v Makholiso and Others

• Jurisdiction: South Africa
• Judge: Pickering J
• Judgment Date: 31 March 1996
• Citation: 1997 (4) SA 509 (TkS)
• Docket Number: 1364/93
• Hearing Date: 31 March 1996
• Counsel: D Van Zyl for the applicants S M Mbenenge for the respondents
• Court: Transkei Supreme Court

Pickering J:

Applicants seek an order in the following terms: G

'(a)

Declaring the marriage entered into between Webster Dumani Dalinkumbi Makholiso and Florence Mhatu Makholiso to have been a marriage in community of property.

(b)

Declaring the estate of the late Webster Dumani Dalinkumbi Makholiso to devolve according to the principles of the South African common law. H

(c)

Declaring the applicants to be intestate heirs to the estate of the late Webster Dumani Dalinkumbi Makholiso in terms of the principles of the South African common law.

(d)

That the first to fifth respondents pay the cost of this application.'

The said Webster Makholiso entered into a civil marriage with Florence Makholiso on 18 I January 1939, which marriage subsisted until the death of Florence Makholiso on 28 July 1989. It is now common cause that such marriage was a marriage in community of property and of profit and loss contracted in accordance with the provisions of the Black Administration Act 38 of 1927 and that the six applicants were all born of this marriage. J

Pickering J

It is further common cause that during the subsistence of the said marriage and in fact since A 1958, Webster Makholiso lived as husband and wife with one Dideka Ntloko and that the first to fifth respondents were born in consequence of this relationship. Thereafter, on 26 July 1979, Webster Makholiso and Dideka Ntloko entered into a customary marriage, purportedly in B terms of s 3(1)(a) of the Transkei Marriage Act 21 of 1978, which marriage was registered in terms of the said Act.

Dideka Ntloko died during 1985 and Webster Makholiso died on 31 January 1990.

Both Webster Makholiso and Florence Makholiso died intestate.

Applicants contend that the customary marriage between Webster and Dideka Ntloko was C invalid in view of the fact that at the time it was contracted Webster Makholiso was still married to Florence Makholiso in community of property. Flowing from this contention they allege that the estate of Webster Makholiso must devolve according to the principles of the South African common law and that they, the applicants, are the only intestate heirs to his estate, the first to D fifth respondents being illegitimate.

First, second, third and fifth respondents, by whom the application is opposed, submit to the contrary. They aver that there is nothing contained in the Marriage Act prohibiting a man from E contracting a customary marriage with another woman during the subsistence of his civil marriage in community of property. They contend that the customary marriage contracted between their mother, Dideka Ntloko, and Webster Makholiso was accordingly a valid marriage in terms of the Marriage Act and that they are therefore legitimate. They in turn seek an order as follows:

'(a)

F Declaring that the civil marriage between Webster Dumani Dalinkumbi Makholiso and Florence Mhatu Makholiso ended on the death of the latter;

(b)

ordering that the estate of Florence Mhatu Makholiso be wound up first;

(c)

declaring the house of Florence Mhatu Makholiso as a Great House in the African customary polygamous marriage structure; G

(d)

declaring the estate of the late Webster Dumani Dalinkumbi Makholiso to devolve according to the principles of African Customary Law;

(e)

declaring the second respondent to be the intestate heir of the estate late Webster Dumani Dalinkumbi Makholiso; H

(f)

that the costs of this application be borne by the estates of the late Webster Dumani Dalinkumbi Makholiso and Florence Mhatu Makholiso.'

It is common cause that prior to the promulgation of the Transkei Marriage Act polygamy in all I its forms was prohibited by the common law in Transkei as being contrary to public policy.

A partner to a civil marriage, whether such marriage produced the consequences of a marriage in or out of community of property, was therefore not competent to contract a customary law union. Furthermore, such a customary union was not regarded by the common law as being a legal marriage. (See Nkambula v Linda 1951 (1) SA 377 (A) at J

Pickering J

381H–382A.) A civil marriage contracted by a partner to an already subsisting customary A union had the effect of automatically dissolving that customary union. (Seymour's Customary Law in Southern Africa 5th ed at 181 and 253.)

Section 3(1) of the Transkei Marriage Act altered the position. Section 3(1) provides as follows: B

'Nothing in this Act or any other law contained shall be construed as prohibiting -

(a)

any male person from contracting -

(i)

a civil marriage which produces the legal consequences of a marriage out of community of property with any female person during the subsistence of any customary marriage C between such male person and such female person or any other female person; or

(ii)

a civil marriage which does not produce the legal consequences of a marriage out of community of property with any female person during the subsistence of any customary marriage between such male person and such female person; or D

(iii)

a customary marriage with any female person during the subsistence of any civil marriage which produces the legal consequences of a marriage out of community of property or any customary marriage between such male person and any other female person; or

(b)

a marriage officer from solemnising any civil marriage referred to in para (a)(i) and (ii); or E

(c)

a magistrate from registering any customary marriage referred to in para (a)(iii).'

It is noteworthy that any male person wishing to contract a further marriage during the subsistence of his existing marriage is not required to obtain the consent of his spouse to contract such further marriage. Furthermore, the Legislature has preserved the customary law F prohibition on polyandry (s 49(1)(ii)).

It may be convenient at this stage to refer to the definitions of 'civil marriage', 'customary marriage' and 'customary union' contained in the Act.

In terms of s 1 thereof 'civil marriage' means G

'a civil marriage solemnised or contracted in accordance with the provisions of this Act: Provided that any reference to a civil marriage contracted or solemnised prior to the commencement of this Act, shall be construed as a reference to a marriage (other than a customary union) solemnised or contracted in accordance with the laws enforced at the time'.

'Customary marriage' means

'a marriage contracted between a man and a woman (at least one of whom is subject to customary law) in accordance with customary law and the provisions of this Act: Provided that any reference to a customary marriage contracted or consummated prior to the commencement of this Act, shall be construed as a reference to a customary union'. I

'Customary union' means

'a conjugal relationship in accordance with customary law entered into between a man and a woman (at least one of whom is subject to customary law, but neither of whom is a party to a lawful civil marriage) prior to the commencement of this Act'. J

Pickering J

The Legislature in Transkei has thus legalised polygyny in certain specific circumstances. A

What precisely these circumstances are lies at the heart of the dispute between applicants and respondents.

The wording of s 3(1)(a) is clear and unambiguous. The effect of this section is discussed in B useful commentaries thereon by both Professor Bekker in Seymour's Customary Law in Southern Africa 5th ed at 255 et seq and by Professor Bennett in A Sourcebook of African Customary Law for Southern Africa at 459–60. Both authors agree that in terms of s 3(1)(a) a man may only enter into a subsequent customary marriage if his civil marriage is out of C community of property. Where he is party to an existing customary marriage he may contract only a civil marriage that is out of community of property.

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