Two wives and one husband were yet again the legal question the court had to grapple with, with the first wife, who was married to her now deceased husband in terms of customary law, wanting the court to declare her the true wife.

The husband died in 2023 at the age of 43 in a car accident. In order to benefit from his estate, the applicant (first wife) turned to the Mpumalanga High Court to declare his second marriage invalid.

In 2017, the deceased sent emissaries to her family to negotiate lobola. The negotiations were conducted in terms of Bapedi and Swati customs.

Lobola for the applicant was finally agreed between the two families at R12,000 in cash and 13 cattle. The cash part of lobola was paid there and then, leaving the cattle to be delivered in the future.

The marriage was celebrated customarily, and the applicant was handed over to the deceased to be his wife. The marriage was, however, not registered with the Department of Home Affairs until the death of the deceased.

Two years later, the deceased met another woman and the two fell in love. “Like a man who fell out of love, he moved out of the home he shared with his wife, the applicant, in order to stay with the first respondent, in her house. He never went back to his wife,” Deputy Judge President Takalani Ratshibvuma noted.

In 2020, the deceased and the first respondent signed into a civil marriage that was solemnised at Home Affairs. He subsequently also paid lobola to her family, R20,000, being 10 cattle each valued at R2,000, which was paid right away. Thus, the deceased’s second marriage was recognised as both a civil and customary union.

The first wife never consented to the second marriage, and that marriage was also never dissolved through a divorce decree. Based on these, the applicant argues that the deceased’s marriage to the first respondent is unlawful and should be declared void.

Although the applicant attended the deceased’s funeral, she played no role therein, watching from a distance as his family accorded the widow’s status to the first respondent. The latter said the court should consider this as reason enough to recognise her as the only lawful wife of the deceased.

She further argued that although she did not know of the deceased’s marriage to the applicant, the court should consider it to have been irretrievably broken down. In the alternative, she submitted that the deceased’s two marriages, one to her and the other to the applicant, should all be recognised as customary marriages entered in terms of the Recognition of Customary Marriages Act.

But Judge Ratshibvuma said the fact that a marriage could be irretrievably broken down only entitles the parties to that marriage to seek a divorce decree, which can only be granted by a court.

“If a party does not seek divorce upon realising that his/her marriage is irretrievably broken down, he/she cannot claim and utilise the rights and benefits that accrue with being a divorcee, such as the right to enter into a new marriage.”

Thus, the judge found no divorce, no new marriage. He declared the second marriage as being invalid.

zelda.venter@inl.co.za

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