Neutral citation: Ngwenyama v Mayelane & another (474/11)  ZASCA 94 (1 June 2012)
Coram: Mthiyane DP, Ponnan JA et Ndita AJA
Heard: 14 May 2012
Delivered: 1 June 2012
The core issue in the recent case of Ngwenyama v Mayelane & another (474/11)  ZASCA 94 (1 June 2012), at  was:
"... whether the failure by the husband to make an application to court to approve a written contract regulating the matrimonial property system of both the first and second marriages, as envisaged in s 7(6) of the Recognition of Customary Marriages Act, invalidates the subsequent customary marriages from inception, in the absence of an express provision in the Act to that effect."
It was held that that even though the wording of s 7(6) is couched in a peremptory language, courts were, when interpreting a statutory provision enjoined to prefer an interpretation that falls within the constitutional bounds over that which does not. If not, such an approach would result in untold hardship to women married according to customary law and would have adverse effects on the children born to such marriages as they would be rendered instantly illegitimate. Properly construed, the legislature could never have intended a failure to comply with s 7 (6) to render an otherwise valid customary marriage invalid.
Therefore per Ponnan JA at  "... the consequence of such non-compliance is that the subsequent marriage would be valid but that it would be one out of community of property. It plainly cannot be a marriage in community of property as that would imply the existence of two joint estates, which it is clear cannot co-exist. That conclusion, it seems to me, would afford sufficient protection to the wife of the first customary marriage."
Well, my best attempt at describing the parties is as follows: 1. HUSBAND Identity number Married in community of property to FIRST WIFE and Married out of community of property to SECOND WIFE and FIRST WIFE Identity number Married in community of property to HUSBAND
2. SECOND WIFE Identity number Married out of community of property
My questions are: 1. Is the accrual system applicable to such second marriage, as it is not expressly excluded in an ante-nuptial contract?
2. If the answer is yes, what are the implications when he marries a third and fourth wife, again without applying in terms of Section 7(6)? (In my opinion it is practically impossible to have the accrual system applicable to any one of the marriages.)
3. If the man dies intestate, who inherits what? Providing he had no children, does the first wife inherit half of the deceased spouse's half share in the joint estate and the second wife the other half? And if he had children, does the first wife inherit R125,000.00 or a child's share of half of the deceased spouse's half share in the joint estate, and the second wife R125 000 or a child's share of the other half? How will a child's share be calculated - taking all his children into account, or only the children he had with the wife who's inheritance is being calculated?
The primary issue for conveyancers is that (due to the gradual process of customary marriage) many customary couples do not have a marriage certificate, even though they define themselves as husband and wife. The issue of the antenuptial contract is secondary, particularly since many customary marriages are monogamous. Since conveyancers usually rely on a marriage certificate, many customary wives in unregistered marriages are not protected in a manner which respects the customs that led them into the marriage. Conveyancers must lobby for unregistered customary wives to have the right to use the same description in title deeds as those married by religious rites.
These religious rights are also often not protected by the formal legal system, but the informal religious system is able to protect them. This will place unregistered customary wives in a position to return to the leadership structures in their customary communities to resolve their property disputes. If the Constitutional right to equality is to be enforced, these title deeds should read as follows:
"Married to ………………, which marriage is unregistered and governed by the laws relating to unregistered customary unions"
"Married to ………………, which marriage is unregistered and governed by section 4(9) of the Recognition of Customary Marriages Act 120 of 1998"
"Married to ………………, which marriage is unregistered and governed by section 4(9) of the Recognition of Customary Marriages Act 120 of 1998 as amended"
Leslie Downie Legal Consultant
Problem is, did the second wife get authority from the first wife to register the second marriage in a court of law. Otherwise as was found in a case, the 2nd wife is not entitled to any part of the estate, where the customary spouse, has not left a will from his share of the estate.