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Before his death Z married his wife R by customary rites. After Z's death R went to register their
customary marriage at the Home Affairs Department, only to be told, to her consternation, that P had
already been to that office to register hers with the deceased. R knew that P did what she did in order
to claim Z's estate.
1. Comment on whether Z could possibly have had two valid customary marriages, referring to
any law/legislation recognising it.
In the context of South African law, particularly under the Recognition of Customary Marriages Act,
1998 (Act No. 120 of 1998), a man can potentially have more than one valid customary marriage,
provided that certain conditions are met.
Recognition of Customary Marriages Act, 1998:
The Act recognizes marriages concluded under customary law and sets out requirements for the
validity of such marriages.
For a customary marriage to be valid, it must be negotiated, entered into, or celebrated
according to customary law.
Polygamous Marriages:
South African law allows for polygamous marriages under customary law, meaning that a man
can legally have more than one wife at the same time.
However, if Z married both R and P according to the applicable customary rites, both
marriages could be considered valid, provided they meet the legal requirements outlined in the
Act.
Registration of Customary Marriages:
While the Act requires that customary marriages be registered, failure to register a marriage
does not invalidate it.
In the scenario described, if P registered her marriage to Z first, it does not necessarily mean
that R's marriage is invalid. Both marriages could still be valid under customary law.
Implications for the Estate:
If Z had two valid customary marriages, both R and P would be entitled to claim from Z's
estate under the rules of intestate succession applicable to customary marriages.
Disputes over the estate might arise, requiring legal resolution to determine the rightful heirs.
Conclusion
Z could have had two valid customary marriages with R and P under South African law, provided
the marriages were conducted in accordance with the customary rites and recognized under the
Recognition of Customary Marriages Act, 1998. The registration at Home Affairs is a procedural
step, and while important, it does not affect the validity of the marriage itself if all other legal
conditions are met.
