The multimillion-rand divorce claim against the CEO of one of South Africa’s leading logistics companies has revealed - yet again - that customary marriage law requires a major overhaul.
This was according to one of the people responsible for drafting the Registration of Customary Marriages Act, (RCMA), Professor Thandabantu Nhlapo, who has been asked to weigh in on the legal conundrum presented by the CEO’s customary spouse.
This week, the CEO, who cannot be named due to the nature of the legal proceedings, was served with a summons asking that he not only recognise the eight-year relationship as a marriage but also that he acknowledge that his partner is entitled to 50% of his estate.
Speaking to the Saturday Star this week, the aggrieved partner alleged she had been left jobless and emotionally scarred by the abusive relationship that ended in 2016.
She claimed that after years of physical abuse, she ended the relationship after a beating that required medical treatment. In the two years since the breakup, she has fought for the CEO to recognise her as his spouse, citing two traditional Setswana ceremonies in 2010 and 2013 that cemented her position in his family.
The Saturday Star has seen photo evidence of the ceremonies, letters confirming the marriage, letters and cards from the CEO describing the woman as his wife and proof of payment of lobola.
However, in responding papers, the CEO has denied the validity of the marriage, claiming he was coerced into agreeing to the wedding.
“He has reduced me to nothing more than the mother of his two children.
"Now he expects me to just go away,” she said.
If a court now recognises their traditional marriage as legitimate, the pair will essentially be married in community of property, meaning that the subsequent official divorce will entitle her to 50% of his estate.
Among the ammunition gathered by the woman’s lawyer, Alexa Schmidt of Ian Levitt Attorneys, is a report by Nhlapo who has said the marriage is clearly legitimate in terms of the RCMA.
“A court should have no difficulty finding the existence of the marriage proved on the basis of the facts at hand,” he wrote.
However, the report acknowledges a contradiction in the legislation that has been used as a legal loophole in similar proceedings since the RCMA was implemented in 1998.
“Section 4 (1) (of the RCMA) places a duty on spouses to register their marriage, but Section 4 (9) clearly states that ‘failure to register a customary marriage does not affect the validity of the marriage’,” Nhlapo’s report read.
This contradiction has essentially left the validity of customary marriages in the hands of the courts, meaning case law has been split in support of spouses' claims and the partners defending their estates.
Nhlapo has explained that three types of people have generally tried to take advantage of holes in the legislation: husbands who are trying to defend their financial resources; families of such husbands who have died wanting to de-legitimise their daughters-in-law, meaning they can seize assets; and co-wives in polygamous marriages, who usually also try to determine successorship.
These situations, he said, were very common, with case law going “both ways”, leaving “a state of flux” in customary marriage law.
With the rights of customary marriage spouses continuously being eroded, the professor believes the legislation needs to be reworked.
Meanwhile, Schmidt said the CEO’s divorce matter had the possibility of setting a proper legal precedent to be used in other such cases.
“The Act (RCMA) was meant to help people out in these situations, but now it’s being abused.”
While queries were sent through to the CEO’s lawyer, Brian Kahn, they had not been answered by the time of publication.