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Customary marriages and estates

22 January 2009

The Recognition of Customary Marriages Act, Act 120 of 1998, and the court decisions of inter alia Moseneke and Another v The Master and Another 2001 (2) SA 18 CC, Bhe v The Magistrate, Khayelitsha and Others CCT 49/03, etc., have a profound effect on deeds office practice and procedures relating to marriages and deceased estates of indigenous black people, respectively. The foregoing authorities are developments in indigenous matrimonial law and law of succession, which must be applied against the backdrop of the following principles for a better understanding:

DISCUSSION ON MARRIAGES OF INDIGENOUS BLACK PEOPLE OF SOUTH AFRICA

Civil marriages can be categorised as follows:

Marriage producing the consequences of a marriage in community of property in terms of section 22(6) of Act 38 of 1927

Although not a practice anymore, this type of marriage had to be preceded by a declaration of community of property to a Commissioner or a Magistrate, in terms of the erstwhile section 22(6) of the Black Administration Act 38 of 1927. Thus parties are described as follows:

ABC
Identity Number ………………………..
and
XYZ
Identity Number ……………………….
Married in Community of Property to each other

NB: The marriage certificate pertinent thereto will refer to section 22(6), and that the marriage is in community of property.

Marriage not producing the consequences of a marriage in community of property in terms of section 22(6) of Act 38 of 1927. This type of marriage was deemed to be out of community of property because the consorts had not made a section 22(6) declaration. Thus parties are described as follows:

ABC
Identity Number ………………………
Married out of community of property

NB: The relevant marriage certificate will refer to the exclusion of community of property.

Marriage out of community of property in terms of the Common Law
This is the normal marriage out of community of property preceded by an antenuptial contract. Parties thereto will be described as immediately above.

Marriage out of community of property in terms of Section 35(1) of the KwaZulu Act on the Natal Code of Zulu Law (Act 16 of 1985).

This type of marriage is only applicable to KwaZulu citizens' marriages concluded between 27 March 1987 and 27 April 1994.

Parties thereto will be described in the same way as any other spouses married out of community of property.

Foreign marriages
If a black person, domiciled outside South Africa, concludes a marriage in South Africa, the laws of his/her country of domicile will govern the marriage (Frankel's Estate and Another v The Master and Another 1950 (1) SA 220 (A)). Such marriage is deemed to be out of community of property. Parties thereto will be described as follows:

ABC
Identity Number …………………………………
Married, which marriage is governed by the laws of …………………………

(See CRC 5 of 1994 in this regard).

Customary marriages
These can be categorised as follows:

  • Traditional customary marriage (customary union)
  • Customary marriage in community of property
  • Customary marriage out of community of property
Traditional customary marriages (customary unions)

What is a customary union?

A customary union was defined in terms of the erstwhile section 35(1) of the Black Administration Act 38 of 1927, as an association of a man and a woman in a conjugal relationship according to Black Law and Custom, where neither of them is a party in a subsisting marriage. As far as indigenous law is concerned these were marriages, not unions. These marriages were, however, downgraded to unions because of their inferior status to civil/Christian marriages as illustrated below:

According to section 35(1) a marriage meant a union of one man with one woman in accordance with any law, but did not include any union under black law and custom or any union recognised as a marriage in black law under section 147 of the Natal Code of Zulu Law.

In Nkambula vLinda 1951 (1) SA 377, where a man contracted two marriages, a customary marriage and then a civil/Christian marriage, the latter nullified the customary marriage due to its inferior status. Parties married under customary law were described as follows:

ABC
Identity Number ……………………………
Unmarried

NB: With effect from 15 November 2000, these customary unions are now recognised as marriages under the Recognition of Customary Marriages Act (Act 120 of 1998). Parties are described as follows:

ABC
Identity Number ……………………………….
Married, which marriage is governed by Customary Law in terms of the Recognition of Customary Marriages Act 120 of 1998.

See CRC 15 of 2000 in this regard.

Suffice to mention here that the wife does not adopt the husband's surname in a customary marriage concluded prior to 15 November 2000, despite the patrilocal nature of a customary marriage. Therefore deeds examiners may dispense with the usual practice of asking if the wife has elected to retain her maiden surname.

Customary marriages in community of property after 15 November 2000
In terms of section 7(1) of Act 120 of 1998 a customary marriage concluded after 15 November2000 is a marriage in community of property, where no antenuptial contract was entered into. Thus parties thereto are described the same way as in any other marriage in community of property.

NB: The relevant marriage certificate is amplified to read customary marriage. Customary marriage out of community of property after 15 November 2000.

As has already been indicated above, in terms of section 7(1)a customary marriage is out of community of property where an antenuptial contract is entered into and registered in a Deeds Registry. Parties thereto are described the same way as in any other marriage out of community of property.

Customary marriages governed by contracts and court orders
These can be classified into the following types:

Customary marriages governed by a section 7(4) of Act 120 of 1998 and court order
The above section enables parties in customary marriages concluded prior to 15 November 2000 to change their matrimonial regime. This is effected through a court order which may contain conditions, one of which might be the conclusion of a contract governing the future matrimonial consequences of that particular marriage. If parties own immovable property, the court would then notify the Registrar of Deeds and he/she will in turn accordingly record the notice as an interdict.

Customary marriages governed by a section 7(6) contract and court order Polygamy is the basis of the above contract and order, therefore the following discussion will illustrate how a man practices polygamy and why it is necessary to conclude the said contract:

We distinguish between simple polygamy and complex polygamy.

Simple polygamy
This is simply the taking of one wife after another by an indigenous man without ranking them into senior or junior ranks. The wives are simply referred to by number, e.g. first wife, second wife, etc.

Complex polygamy
The latter (complex polygamy) is where all the wives have ranks. For example where a man has two wives; his homestead is divided into a great house (indlunkulu) and a right hand house (ukunene). Should he take a third wife, she is called a support (iqadi) affiliated to the great house. The man might take yet another iqadi and affiliate her to the right hand house. Property is allocated according to the houses in the homestead. The foregoing complex system is practised mainly by the amaXhosa tribe.

The amaZulu tribe practise the following complex polygamy:
A man's homestead is divided into three sections namely a great house (indlunkulu), a right hand house (iqadi), and a left hand house (ikhohlwa). There is a possibility of an inequitable distribution and allocation of property rights in polygamy, e.g. an iqadi does not acquire equal rights with a senior wife of great house, right hand or left hand house status. For that reason and more, section 7(6) Act 120 of 1998 provides that the husband must enter into a contract with his spouses and any interested party to regulate the future matrimonial system of his marriages. Other interested parties are for example family heads with whom property rights are vested. Effectively the different marriages are dissolved and the husband and his wives become parties in a new matrimonial system governed by a court order and a contract. This contract might redistribute the property equitable or may impose some conditions. Such contract and court order are noted in the Deeds Registry in the same manner as the section 7(4) contract.

ADMINISTRATION OF INTESTATE DECEASED ESTATES OF BLACKS
In traditional customary law succession to the position of a family head (strictly male) is the pivot of administration of estates. Thus, such estates were patrilineal and could bequeathed. Property was a communal asset. The principles of male primogeniture and ultimogeniture were applied to allocate property to senior or junior male heirs. According to male primogeniture preference goes to senior male whereas male ultimogeniture makes provision for even the junior male heirs and illegitimate male heirs to ultimately inherit. Females were totally excluded from inheriting or taking over as family heads because the system was strictly patrilineal.

The position of Zulu women was enhanced and improved by the Natal Code of Zulu Law, later enacted as the KwaZulu on the Natal Code of Zulu Law Act 16 of 1985 by abolishing their perpetual minority status and allowing them to acquire property, etc.

Succession therefore followed the following model:
  • If a family head dies, he is succeeded by his eldest son or a senior representative if still too young to family head.
  • If his oldest son is dead, the oldest surviving grandson succeeds (the oldest son's oldest son).
  • If his oldest son does not have any sons, succession passes to the deceased's second son.
  • If the second son is dead, his male descendants in the above order of seniority is heir.
  • If the deceased has no male descendants, his father is heir.
  • If his father is dead, the deceased's oldest brother is heir.
  • If the deceased's oldest brother is dead, the deceased's brother's oldest son is heir.
  • If the deceased's brother's oldest son is dead, the latter's surviving sons in the above order of seniority is heir.
  • If the deceased's oldest brother does not have any sons, the deceased's next brother in order of seniority will be heir and the above will apply accordingly.
  • In a simple polygamy system, the heir is the son of the first wife (the wife who was married first to the man).
  • If the said son is dead, his oldest son is heir.
  • If there are no male descendants of the first house, the oldest son of the second house (the house of the wife who was married second) and his descendants in the above order.

In complex polygamy (Xhosa culture), where a man has for instance two wives, and he dies, the oldest son of each house becomes heir in his house. If one of the wives does not have a son the oldest son of the other house inherits the estate in both houses. If one of the houses has no heir and there is an iqadi who has a son, such an iqadi's son is heir. The eldest son of each house is senior to an eldest son of an iqadi house. Therefore the oldest sons of the great house and right hand house are heirs in respect of the iqadi house, respectively. In the amaZulu culture, when a man dies the eldest son of the great house is the undisputed heir. If the latter is dead his descendants in order of seniority are heirs. If there are no sons in the great house, the eldest son in the right hand house is heir. If there are no Sons in the right hand house, recourse is had to the left hand house as well and vice versa.

Black estates under the Black Administration Act 38 of 1927
The above Act entrenched the fundamental principles of customary law of succession, e.g. male primogeniture and ultimogeniture. Section 23(10) of the Act created tables of intestate succession based on the foregoing rules of succession. The foregoing section applied to land under quitrent tenure. Black intestate estates had to be reported to and administered by a magistrate in terms of section 23(7) of the Act, while section 3 of the Act prohibited a Master of the High Court from administering a black intestate estate. However, blacks were allowed in terms of section 23(9) of the Act to report their testate estates to the Master. However, that was only in respect of land in urban settlements.

Regulation 4 of GN R200/1 987 was applied by magistrates in appointing heirs and representatives as well as approving distribution of an intestate estate.

Case law on customary law
The constitutionality of customary law has been challenged since 1994, especially with regard to male primogeniture and ultimogeniture, however customary law triumphed in Mthembu v Letsela and Another 1997, where the constitutional court refused a claim for a seven year old daughter born out of wedlock to succeed to the position of family head. The court upheld the principle of male primogeniture in favour of her grandfather.

In Mabena vLetsoalo 1998(2) SA 1068 (T), the court decided to modify traditional customary law by allowing the mother of a child who was also a family head to negotiate lobola for her daughter. In Moseneke and Anotherv v The Master and Another 2001 (2) SA 18 (CC) it was decided that section 23(7) and section 3 Act 38 of 1927 as well as the principle of male primogeniture were unconstitutional, however as from 6 December 2001 black intestate estates could either be reported to a magistrate or to a Master.

In Mabuza v Mbatha 2003 (4) SA 218 (C) it was held that customary law of marriage had evolved in much the same way as all other aspects of customary law in accordance with changing socio-economic circumstances. In Bhe v The Magistrate of Khayelitsha and Others CCT 49/03 significant changes were made in respect of customary law namely:
Section 23 and regulation 4 were repealed. Magistrates were divested of powers to administer black intestate estates.

Section 3 was also repealed to the effect that Masters are no longer prohibited from administering black estates. The Administration of Estates Act 66 of 1965 applies to all South African citizens. Male primogeniture and ultimogeniture are repealed.

PRACTICAL IMPLICATIONS OF CASE LAW
With regard to the Moseneke-case, the order of court caused a non-palatable situation whereby some black intestate estates were reported to a magistrate while others were reported to the Master of the High Court, thereby causing confusion in deeds registration with regard to different certificates and other evidential documentation corroborating a particular causa, e.g. if a deceased died intestate on 12 January 2002 and his estate was reported to a Master, would the Master apply regulation 4 GN R200/1987 (section 23(10) Act 38 of 1927 or Act 66 of 1965? Who will be the administrator between an executor and a representative?

With regard to the Bhe-decision, where a black person died intestate prior to 15 October 2004 and his estate was reported to a magistrate section 23(10), i.e. the black tables of succession would be followed. The regulations 4(1) and 4(2) certificates are required. The regulation 4(1) certificate may be dispensed with in regulation 44 compliant deeds (with prep clause). Regulation 4(2) can be appended as an endorsement on a power of attorney instead of lodging it. No proof of intestacy is required, nor balance for distribution is lodged. Section 45(1) of the Deeds Registration Act 47 of 1937 is applicable. Where a black person died intestate prior to 15 October 2004, and his/her estate was reported to a magistrate and no allocation has been made, the estate must be administered under the intestate succession Act 81 of 1987 and the Administration of Estates Act 66 of 1965, however, alienation of immovable property must be effected by a representative appointed under section 23(10) and regulations. Where a black person died intestate after 15 October2004, the estate is administered in terms of the Administration of Estates Act 66 of 1965, however, this does not practically imply that blacks cannot report their estates at a magistrates court. Due to the fact that offices of the Master are very few and far between, thus not easily accessible to all, from 5th December 2002 all magistrates courts are designated service points for the Master of the High Court.

In practice this causes a duplication, as one and the same estate may be reported to the Master and the magistrate simultaneously. Practice should be developed by the Deeds Office to find out if, for example, letters of executorship have not already been issued.

Where the deceased was resident in South Africa, his/her estate must be reported to the Master in whose area of jurisdiction the deceased was resident. Presently the Master has offices in the following areas, Pretoria, Cape Town, Pietermaritzburg, Grahamstown, Bisho, Umtata, Bloemfontein, Kimberley, Mmabatho/Mafikeng, Johannesburg, Polokwane, Durban, Port Elizabeth and Thohoyandou. However, where the deceased was not a South African his/her estate can be reported to any Master, provided an affidavit is lodged to the effect that such estate has not been reported to any other Master of the High Court.

In conclusion, indigenous marriages and intestate estates have been redefined and modified to rid them of any areas of potential repugnance with common law or generally accepted principles of constitutionality. Although polygamy is now deeply entrenched, relative checks and balances are provided in section 7(6) Act 120 of 1998. Be that as it may, there are still practical realities that are indicative of the skein of ambiguity surrounding the essence of customary law, e.g. the fact that very few or none whatsoever of the section 7 Interdicts have been recorded in any Deeds Registry since the inception of the above act. The latter can be attributed squarely to the fact that each spouse entering into a polygamous marriage, does so in a process that already secures her position in terms of rights and obligations inherent to any polygamous marriage, e.g. the rights of a great house wife, right hand wife, left hand wife are already entrenched and secured by the custom of isithembu. It is very rare that a man can take another wife without the consent of his existing wife or wives, since custom places some obligations on the existing wife to perform a form of induction and mentorship towards the new wife. Thus, in practice, a man will still take more than one wife and see the section 7(6) contract as a huge financial burden, especially where it involves a High Court application, or even worse, see it as superfluous.

Republished with permission from SA Deeds Journal



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