MM v MN 2010 (4) SA 286 (GNP) : recent case law

• Author: I.P. Maithufi
• DOI: 10.10520/EJC135270
• Published date: 01 January 2012
• Date: 01 January 2012
• Pages: 405-412

Onlangse regspraak/Recent case law

405

MM v MN

2010 (4) SA 286 (GNP)

Requirements for a valid customary marriage. Contracting a further customary

marriage in terms of the Recognition of Customary Marriages Act of 1998.

Failure to comply with section 7(6) of the Act leads to the invalidity of the

ensuing marriage.

1 Introduction

The Recognition of Customary Marriages Act (120 of 1998) (the “RCMA”)

brought about fundamental changes to the legal position of a customary

marriage in South African law. The RCMA ensured that a customary

marriage is, for all purposes of South African law, recognised as a valid

marriage.

The RCMA further recognises customary marriages which were

contracted before it came into operation on 15 November 2000. Such

customary marriages are afforded recognition provided that they were in

existence and valid at the time when the Act came into operation.

Therefore all customary marriages that were invalid at the time when this

Act came into operation, remained invalid. There are several examples

of these invalid customary marriages. They include, among others, those

that did not comply with the various statutory measures that regulated

their requirements. Examples of these enactments are the KwaZulu Act

on the Code of Zulu Law (16 of 1985), the Transkei Marriage Act (21 of

1978), the various provisions of the repealed Black Administration Act

(38 of 1927) which regulated the relationship between civil and

customary marriages and the Marriage and Matrimonial Property Law

Amendment Act (3 of 1988). Similarly, a customary marriage which was

contracted prior to the date of commencement of the RCMA which did

not comply with the rules of customary law or contracted contrary to

such rules was not rendered valid by this Act. In accordance with these

enactments, a spouse of a civil marriage was prohibited from concluding

another marriage during the existence of his or her marriage. On the

other hand, when a spouse of a customary marriage had contracted a

civil marriage with another person during the subsistence of such

marriage, this had the effect of dissolving it (Bekker

Seymour’s

Customary Law in Southern Africa

(1989) 249-253) This remained the

position until 2 December 1988 when the Marriage and Matrimonial

Property Law Amendment Act (3 of 1988) came into operation.

Polygamy was allowed only in respect of customary marriages except in

the then Transkei where the Marriage Act (21 of 1978) provided for the

exercise of polygamy when the existing civil marriage was out of

community of property and of profit and loss (see Koyana

Customary

Law in a Changing Society

(1980) 161-180; Van Loggerenberg “The

Transkei Marriage Act of 1978: A new blend of family law” 1980

Obiter