The validity of old customary marriages entered into during the subsistence of a civil marriage.

You cannot have your cake and eat it, too, Ndlovukazi (Queen): Zulu v Mathe (unreported case numbers 2751/2021P; 2752/2021P [2022] ZAKZPHC 6 (2 February 2022))

Abstract

Prior to the passing of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, the legal position was that a civil marriage trumped any customary marriage. Entering into a civil marriage had two major effects, namely it dissolved any existing customary marriage, and it prevented a man from entering into any subsequent marriage with another woman. However, post-1988, the legal position was slightly altered. An earlier civil or customary marriage trumped any subsequent marriage. A man who was a party to a customary marriage could no longer enter into a civil marriage with another woman; that civil marriage would be invalid. This note discusses the case of the late Zulu king, Goodwill Zwelithini, and his various consorts. The first marriage in 1969 was a civil marriage. The subsequent marriages were customary marriages. As pointed out earlier, strictly speaking in law, these subsequent marriages were invalid owing to the earlier civil marriage to the first wife. This position remained the same in 1988. It must be borne in mind that the invalidity in question came about because of past inequality. South Africa is now a constitutional state that prides itself as the epitome of basic human rights, including equality and human dignity. It would be hypocritical to espouse basic human rights in the Constitution, while perpetuating past inequality in the context of the above customary marriages. In the case under present discussion, Zulu v Mathe, the court missed an opportunity to pronounce on the validity of customary marriages that were invalidated, due to inequality. Arguably, the court also missed the opportunity to pronounce on the validity of the late King’s last customary marriage, which was entered into in 2014, many years after the passing of the Recognition of Customary Marriages Act 120 of 1998. This case note is a critical discussion of this aspect of the judgment.