COURT VICTORY INVOLVING POLYGAMOUS CUSTOMARY MARRIAGES – October 23, 2018

Thokozani Maphumulo’s application in the Durban High court to have her marital home placed in her name was successful on 23 October 2018. The success follows her earlier representation by the LRC in the matter of Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41, in which the Constitutional Court confirmed that Section 7(1) of the Recognition of Customary Marriages Act (RCMA) was unconstitutional and invalid. Section 7(1) of the RCMA regulates the proprietary consequences of “old” customary marriages and states that customary marriages entered into before the commencement of the Act continue to be governed by customary law.

Mrs. Maphumulo was the second wife in a customary marriage to Musawenkosi Maphumulo. She acquired property with her husband during their marriage and had lived with her husband since 1992 at that property. Her husband died on 28 October 2013. He had executed a will wherein he bequeathed his entire estate to his son from his first marriage. The property was subsequently transferred to his son on 11 December 2015. After the transfer, the son attempted to evict Mrs. Maphumulo from the property.

In its judgment, the Constitutional Court ordered that the following regime will apply to polygamous customary marriages concluded before the RCMA came into operation:

(a) Wives and husbands will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property, and these rights shall be exercised as follows:

(i) in respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and

(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.

The Constitutional Court made it clear that only members of that house are entitled to enjoy benefits that flow from the existence of the property, including rights of inheritance to the property. The Constitutional Court did not make a factual finding on this matter. Mrs. Maphumulo was required to bring a separate application to challenge the transfer and ownership of the property, which she did in the Durban High Court, represented by the Legal Resources Centre. She brought an application in the Durban High Court challenging the validity of her late husband’s will insofar as it bequeathed the property to his son. Finding in favor of Mrs. Maphumulo, the Court declared the will invalid and set it aside. The Court further declared that the subsequent transfer of the property to the son was unlawful and ordered the Registrar of Deeds to transfer the property into Mrs. Maphumulo’s name.

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