Zulu queen’s court case tests customary v civil law equality

THE news of uNdlunkulu Sibongile MaDlamini Zulu (the queen) filling an urgent application for her status as the first wife of the departed King Goodwill Zwelithini KaBhekuthulu to be clarified has stimulated a lot of interest.

First, some are eager to find out about the status of the uZulu, and second, others are anxious about the status of customary marriages (their own marriages, in particular). For these reasons, it is fitting to provide some opinion on the possible legal outcome in the matter.

The queen and then Prince Zwelithini KaBhekuzulu were married in 1969 – a civil marriage. Such a marriage did not (and does not) permit polygamy – they are monogamous.

During this time, customary marriages were looked down on – as “unions” and not marriages. In short, the government of that time did not recognise customary marriages. Despite the non-recognition, indigenous people continued with various practices.

To acquire legal recognition (Western legal recognition), indigenous people did enter into civil marriages, in accordance with the Black Administration Act of 1927.

In terms of section 22 of this act, the marriages were automatically out of community of property – unless a declaration including community of property was made. It appears it was possible for blacks to enter into civil marriages under the Marriage Act of 1961 – the so called “church” or “white wedding”.

The queen alleges that her civil marriage to the king was entered into in terms of the Marriage Act. Some sources say they were married at a church in Nongoma. It is also suggested that it was in a magistrate’s court where community of property was declared by the parties.

Whatever the correct position, their marriage was a civil marriage in community of property. It must be noted that at the time of subsequent marriages (in the 1970s), it was impermissible for a person party to a civil marriage to conclude a valid subsequent civil or customary marriage with another person – they were not recognised. The sad part: at the time, there was no statute providing for customary marriages.

At the time of his departing, the king had married five subsequent wives in terms of customary law. The last marriage occurred after the coming into force of the Recognition of Customary Marriages Act of 1998. Section 10(4) of this act prevents a person who is a party to a civil marriage from entering into a customary marriage with another person. This provision is clear. But it presents a lot of practical difficulties.

The Zulu Royal House faces a this difficulty: there are many polygamous marriages where the first wife was married in terms of civil law and subsequent wives married in terms of customary law.

All of this occurred before the Recognition of Customary Marriages Act. At that time there was no statute governing customary marriages or advising of proper procedure if a husband wanted to marry subsequent wives where his first marriage was civil.

The second practical difficulty is the question of the validity of the subsequent customary marriages. Prior to the Recognition of Customary Marriages Act, these subsequent customary marriages were invalid. In essence, a civil marriage invalidated any customary marriage with another person (whether pre-existing or subsequent). This colonial position could not be sustained in a democratic South Africa – the rule that a civil marriage invalidates a customary marriage fell away.

The current legal position is this: if a man is married in terms of customary law and then decides to marry another wife in terms of civil law, the subsequent civil marriage is invalid. If a man is married under civil law and then decides to marry another wife in terms of customary law, the subsequent customary marriage is invalid.

But if a man is married in terms of customary law, and then decides to marry a second wife in terms of customary law, then, provided that he has complied with customary law, (e.g. consent of the first wife), the subsequent customary marriage will be valid.

It must be emphasised that this is the legal position with respect to marriages entered into after the coming into force of the Recognition of Customary Marriages Act – whether the same can be said of polygamous marriages entered into before the Recognition of Customary Marriages Act is debatable and the eagerly awaited decision in the matter of the Zulu queen might shed some light.

On the face of the situation facing the Zulu Royal House, it may appear that the subsequent customary marriages are not valid since the king was already a party to a civil marriage. However, a situation that prevailed during the time when customary marriages were looked down upon, cannot prevail under the Constitution of this land.

At the time of the marriages (at least four of the five subsequent marriages), there was no statute recognising customary marriages. Therefore, it is not as simple as it may seem.

The king presumably had access to legal advice in estate planning and marriages. At the time of the coming into being of the Recognition of Customary Marriages Act, the best advice to the king was to dissolve the civil marriage to the first wife, divide the joint estate and enter into a customary marriage with the first wife. This will definitely have avoided the present situation. Whether the advice was given is unclear; if it was given, whether it was heeded, we are yet to find out.

So, what might be the outcome of the matter brought by the queen? It all boils down to equality between customary law and civil law. If our courts (the Constitutional Court included) finds that only the civil marriage of the first wife of the king is valid, then civil law (that is the common law) would prevail; thus reversing all the constitutional gains scored for customary marriages.

If the court finds that all the marriages are valid, then equality will prevail, especially because at the time of the king’s first and subsequent marriages, there was no law providing for customary marriages.

The fact that the marriage of the last wife occurred years after the coming into force of the Recognition of Customary Marriages Act, does not necessarily mean her marriage should be treated differently.

This is because at the time of her marriage, the situation that started when the second wife married was still prevailing up until the last wife was married. This view is indeed controversial, however it cannot be addressed further here.

It should also be noted that at all relevant times, the first wife was aware of all the subsequent marriages, and she did not raise any issue with this.

Of course, her rights as a married woman cannot be ignored for this reason alone. But she recognised the subsequent marriages as valid in terms of customary law.

It appears that she still does. All she is contending are her rights as a woman married in community of property. Nonetheless, if the court finds that all the marriages are valid, they shall all be in community of property in light of the decision in Minister of Justice v Ramuhovhi.

This decision triggered the Recognition of Customary Marriages Amendment Bill of 2019, amending section 7 of the Recognition of Customary Marriages Act, particularly the proprietary consequences of polygamous customary marriages. Accordingly, polygamous customary marriages are, by default, in community of property.

Finally, I wish to say Hamba Kahle Ndlunkulu Mantfombi Shiyiwe MaDlamini Zulu.

Sibisi is a lecturer in the School of Law at the University of KwaZuluNatal Howard College Campus. He is also an attorney of the High Court of South Africa.