The first wife of the late King Goodwill Zwelithini, Queen Sibongile Dlamini-Zulu, has lost her Supreme Court of Appeal (SCA) bid to be declared the only lawful wife of the late king.
The queen turned to the SCA to appeal the Pietermaritzburg High Court judgment that dismissed her application to have 50% of the estate of the Zulu King set aside for her.
The aftermath of the death of King Goodwill Zwelithini kaBhekuzulu Zulu (the late Isilo) was marred by litigation between members of the Zulu royal family.
This appeal is a sequel to one of the legal disputes.
Queen Sibongile had sought a declaratory order stating that she was married to the late Isilo in terms of civil law, in community of property and profit and loss, and that the late Isilo was precluded from entering into customary marriages with other persons while the marriage between them subsisted.
The appellant queen and the late Isilo entered into a marriage in community of property and profit and loss in December 1969, in accordance with the then Black Administration Act 38 of 1927 read with the Marriage Act.
The marriage still subsisted at the time of the Isilo’s death.
During the subsistence of the civil marriage, the late Isilo entered into customary marriages with five other wives, including the now late Queen Shiyiwe Mantfombi Dlamini.
The late queen passed on shortly after the late Isilo, and her estate is represented in these proceedings by its appointed executor.
In his will (the validity of which is the subject of another dispute), the late Isilo prefaced the devolution of his estate by making an introductory statement.
He stated that the notion of marriage in community of property and profit and loss was foreign to the Zulu people, regardless of their social and economic standing.
He went on to say that no Zulu king had ever got married to one wife by civil rights, in community of property, because of the very nature of the Zulu laws and culture.
He stated that a traditional marriage denotes a marriage according to custom. He acknowledged that he was no exception to this, and as a result, he was married to six queens during his lifetime.
All the respondent queens admitted the validity of the marriage and that it was in community of property, and consequently, with profit and loss.
However, they disputed that the subsistence of the civil marriage between the appellant queen and the late Isilo precluded him from validly entering into customary marriages with them.
The issue in the appeal was whether the high court exercised its discretion properly in dismissing the application. The appellant queen argued that the concession by the queen respondents that the late Isilo and herself were married in community of property was sufficient reason for the high court to issue a declaratory order.
She further contended that the civil marriage between her and the late Isilo precluded him from entering into further valid marriages with other persons, whether by civil or customary law.
As a result, a declaratory order to that effect should have been granted in her favour, she said.
The high court found that there was incontrovertible evidence that the late Isilo and the appellant queen were married in community of property and profit and loss.
Additionally, it found that the late Isilo conceded, in an affidavit before making his will, that he and the appellant queen were married in community of property.
It, therefore, found that no practical effect would be achieved by declaring that the late Isilo was married to the appellant queen in community of property and of profit and loss.
The appellant queen submitted that the high court erred in this finding.
There is no challenge to the validity of the respondent queens’ marriages to the late Isilo. The appellant queen stated that she did not want to cause friction or ructions, nor deny the late Isilo’s children their birthright in the Zulu royal family.
Her case was that the customary marriages between the late Isilo are only recognised to the extent of the Recognition Act.
Judge Yvonne Mbatha, in a concurring SCA judgment, found that the high court correctly found that the appellant queen should not have sought interdictory relief as she had not established a clear right that was infringed and needed protection, nor had she sought the declaration of invalidity of the other customary marriages to the late Isilo.
There was also no contention that those marriages were not legally concluded in terms of the Recognition Act.
Judge Mbatha said that it is common ground that the late Isilo was married to the appellant queen in community of property and profit and loss. The proprietary consequences of the marriage were also admitted. The law on the subject matter is clear. The high court correctly did not deem it necessary and equitable to grant a declaratory order under such circumstances,
When turning down the appeal, she said that the effect of a civil marriage on customary marriages flows by operation of law. It is not something a court needs to give a declaratory order on.
Pretoria News
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