Customary Marriages in Conveyancing

GUMEDE V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS – (CCT 50/08) [2008] ZACC 23 (8 DECEMBER 2008) 

In Gumede v President of the Republic of South Africa and Others, Moseneke DCJ makes the following ruling with regard to the Act: 

  • Section 7(1) of the Act is inconsistent with the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and invalid to the extent that its provisions relate to monogamous customary marriages. 
  • The inclusion of the words “entered into after the commencement of this Act”, in section 7(2) of the Act, is declared inconsistent with the Constitution and invalid. 

NGWENYAMA V MAYELANE AND ANOTHER – (474/11[2012] ZACSA 94) 

In Ngwenyama v Mayelane and Another, Ponnan V expressed the view that a polygamous customary marriage, entered into after the commencement of the Act and without a contract being registered as provided for in section7(6) of the Act, is a marriage out of community of property. 

IMPACT OF CERTAIN PROVISIONS OF THE ACT AND DECIDED CASES ON DEEDS REGISTRATION PROCEDURES 

Recognition of customary marriages 

In terms of section 2 of the Act all customary marriages, entered into before or after the commencement of the Act, which are valid marriages under customary law and which comply with the requirements of the Act, are for all purposes recognised as marriages, irrespective of whether a person is a spouse in more than one customary marriage.

Contractual capacity of spouses 

Spouses in a customary marriage have, on the basis of equality and subject to the matrimonial property system governing the marriage, full capacity, including the capacity to acquire assets and to dispose thereof (section 6). The contractual capacity of the spouses in a customary marriage will depend on the matrimonial property system governing the said marriage, that is, whether the marriage is in or out of community of property. 

Proprietary consequences of customary marriages 

Marriages in community of property: 

In terms of section 7(2) of the Act, a customary marriage in which a spouse is not a partner in any other existing customary marriage (monogamous customary marriage), is a marriage in community of property and of profit and loss. Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act No. 88 of 1984) apply in respect of these marriages. 

Spouses will be described as follows: 

Peter Khumalo
Identity No. 631024 5094 089
and 
Esther Khumalo 
Identity No. 680111 5062 087 
Married in community of property to one another 

Marriages out of community of property 

A customary marriage in which a spouse is not a partner in any other existing customary marriage, may have the proprietary consequences of a marriage out of community of property. This will be the case where spouses elected to enter into an antenuptial contract prior to the conclusion of the marriage (section 7(2)).

Spouses who have entered into an antenuptial contract, will be described in deeds and documents as follows: 

Anna Fatyela 
Identity No. 540121 5093 087 
Married out of community of property 

Polygamous customary marriages 

A customary marriage in which a spouse is also a partner in another existing customary marriage (polygamous customary marriage), which marriages were entered into before the commencement of the Act, will continue to be governed by customary law (section 7(1) of the Act). Spouses have full capacity and therefore no assistance by other spouses is necessary for the acquisition, disposal or alienation of immovable property. The description of such a person in a deed or document to be registered, must conform with section 17(2)(b) of the Deeds Registries Act, 1937 (Act No. 47 of 1937), namely: 

Peter Nkosi 
Identity No. 631023 5095 087 
Married, which matrimonial property system is governed by customary law in terms of the Recognition of Customary Marriages Act No. 120 of 1998 

Changes to the matrimonial property system and further customary marriages subsequent to the commencement of the Act 

In terms of section 7(4) spouses in a customary marriage, entered into prior to the commencement of the Act, may apply to a court jointly for leave to change the matrimonial property system which applies to their marriage or marriages. 

In terms of section 7(6) a husband in a customary marriage may, after the commencement of the Act, enter into a further customary marriage (polygamous customary marriage). The husband must, however, make an application to court for the approval of a written contract which will govern the proprietary consequences of his marriages.

Where the Court grants an application as contemplated in sections 7(4) and or 7(6), such order to court, together with a certified copy of the contract, will be sent to all Registrars of Deeds. 

The court order and certified copy of the contract must be recorded as an interdict against the names of the parties concerned. 

Where a husband enters into a third or a further marriage he must once again apply to court for the approval of a contract that will govern the proprietary consequences of his marriages. The said contract will supersede the previous contract and it must once again be noted as an interdict against the names of the parties concerned. The interdict that was previously recorded must, naturally, be uplifted as it is superseded by the new one. 

The description of a person in a deed or document to be registered must conform with section 17(2) of Act No. 47 of 1937, namely: 

Simon Tsabalala 
Identity No. 540108 0003 089 
Married, the proprietary consequences of which marriage are governed by an order of court issued in terms of the Recognition of Customary Marriages Act No. 120 of 1998. 

Where a spouse in a monogamous customary marriage (which is a marriage in community of property), after the commencement of the Act enters into a further customary marriage (polygamous customary marriage), and fails to make an application to court in terms of section 7(6) of the Act, such further customary marriage, if valid, should be considered to be a marriage out of community of property. Spouses will be described in deeds and documents as follows: 

Peter Khumalo 
Identity No. 631024 5094 089 
and 
Esther Khumalo 
Identity No. 680111 5062 087 
Married in community of property to one another 
and 
Peter Khumalo
Identity No. 631024 5094 089 

Married in terms of customary law 

Where property is acquired by the wife in a marriage, she must be described as follows: 

Molly Khumalo 
Identity No. 680111 5062 087 
Married in terms of customary law 

Should you require more information, please do not hesitate to contact us.

Allen West
TONKIN CLACEY PRETORIA 
012 346 1278

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