• FAMILY LAWS

The Supreme court of Appeal of South Africa

Rudzani Netshituka and Joyce Munyadizwa Netshituka and Others (Decided On 20.07.2011)

Validity of Marriage - Section 22(1) of the Black Administration Act 38 of 1927 (the Act), read with Section 1(a) of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 - Whether a civil marriage contracted between a partner to a customary union and another man or woman during the subsistence of that union is valid

Held, Section 22(1) states that no male shall, during the subsistence of any customary union between him and any woman, contract a marriage with any other woman unless he has first declared upon oath, before the magistrate or native commissioner of the district in which he is domiciled, the name of every such first-mentioned woman; the name of every child of any such customary union; the nature and amount of the movable property (if any) allotted by him to each such woman or house under native custom; and such other information relating to any such union as the said official may require. The subsection thus permitted a man who was a partner in a customary union to contract a civil marriage with another woman provided he complied with its provisions. In the present matter the deceased did not have to phuthuma his customary law wives because they never left him after he had married Martha. His continued cohabitation with them after the divorce was clear evidence of a husband who had reconciled with his "previously deserted wives. And in his last will and testament, the deceased refers to Tshinakaho, Diana and the first Respondent as his first, second and third wives respectively. What is important is the intention of the parties, which can be inferred from their conduct of simply continuing with their relationships and roles as partners in customary unions with the deceased after the divorce. Their conduct clearly indicated that to the extent that the deceased's civil marriage to Martha may have terminated his unions with his customary law wives, those unions were revived after the divorce.

Validity of Will - Whether the Appellant and her erstwhile co-applicants discharged the onus that rested on them to establish on a balance of probabilities that the deceased was not in a sound mental state when he attested to his last will and testament

Held, In support of the contention that the deceased was not in a sound mental state, Tshinakaho attached to her founding affidavit a copy of a medical report from Dr Chitate, a specialist physician attached to the Limpopo Mediclinic, and a memorandum from the Siloam Hospital. It is apparent from the medical report and memorandum that the deceased was chronically ill when he underwent treatment at the two institutions. There is, however, no indication that his mental capacity was in any way impaired. However, episodes of hypoglycaemia had occurred and, if these recurred after discharge, could have led to a deterioration in mental function. There is thus no evidence that when he attested to his last will and testament on 20th November, 2007 the deceased was mentally incapacitated. As to the allegation that the deceased purported to bequeath property of which he was not the owner and that therefore his will was invalid, but even accepting this would not render the will invalid . Appeal upheld in part.