Desertion, for whatever time, may be grounds for a divorce but it is not and cannot of itself constitute or prove divorce or that a marriage is dissolved.
This is according to an acting judge who determined a legal tussle between two women – one married under a traditional marriage and the other under civil marriage – to a now-deceased man, who died intestate (without a valid will).
Hilda Sedinjane turned to the Limpopo Division of the High Court, sitting in Polokwane, for an order that she be recognised as the true wife of Seabela Malatji.
They got married in 1988 and concluded a customary marriage, as evidenced by a lobola certificate. Four children were born out of the marriage but the couple drifted apart, resulting in the applicant (Sedinjane) leaving the matrimonial home around late 1992.
Anare Malatji (the respondent), who married the deceased in 2014, under a civil marriage, did not dispute that the applicant and the deceased were married, but she said that as the applicant had left the house at the time, the marriage no longer existed.
Malatji, who was appointed as the executor of the deceased’s estate, said her civil marriage was the only valid marriage.
She held that the applicant's marriage had been dissolved as the applicant had left the house eight years before the Recognition of Customary Marriages Act came into effect in November 2000. Under the act, all marriages at the commencement of the act are valid.
After the husband died, the applicant went to the office of the Master of the High Court which is dealing with his estate. She was told that the lobola certificate she produced was not proof of marriage. She was also told that the respondent, by virtue of her civil marriage, had been appointed executor of the deceased’s estate.
Acting Judge Malose Monene said the court was struggling to understand on what grounds the respondent claimed that the marriage between the deceased and the applicant was dissolved when the applicant had left the matrimonial home years ago.
“We are left none the wiser as to where, when and how the dissolution of the customary marriage is alleged to have happened. One is left with an impression that the first respondent (widow no 2) takes the inexplicable quantum leap in logic that the mere admitted walking out of the matrimonial home by the applicant in 1992 is conclusive proof of a divorce.”
The judge said desertion was definitely not the same as divorce.
The judge ordered that the applicant’s customary marriage stood and that she be declared the lawful wife.
As part of the judgment, Judge Monene expressed the court’s “discomfort” with the word “civil” in civil marriages.
In the opening to the judgment, the judge cited a paragraph from an earlier writing: “But the biggest weapon wielded and actually daily unleashed by imperialism against that collective defiance is the cultural bomb. The effect of a cultural bomb is to annihilate a people’s belief in their names, in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities and, ultimately, in themselves.
“It makes them see their past as one wasteland of non-achievement and it makes them want to distance themselves from that wasteland.”
Judge Monene said the words of Ngugi wa Thiongo in his 1986 piece “Decolonising the Mind”, “ring incessantly in this court’s mind in this matter, where yet another African man married a wife customarily”.
“Whilst that marriage subsisted (the deceased) sought to sidestep that marriage of his cultural wasteland by concluding another marriage, the so-called ‘civil’ marriage, only to escape witnessing the acrimonious wrangling over the administration of his estate visited upon his ‘wives’ by his cultural bomb victimhood in the wake of his intestate demise through death,” the judge said.
In explaining the court’s “uncomfortable gnawing” at the word “civil” used in the context of civil marriages, the judge said: “The word ‘civil’ in civil marriage as distinguished from customary marriage offends my sense of what is just as it appears, in my view, to be part of Ngugi wa Thiong’o’s lamented cultural bomb, unleashed by colonialism and imperialism to annihilate practitioners of indigenous African customary law’s belief in themselves.”
Judge Monene said that led them to see their Africanness as “a wasteland of non-achievement” from which they need to “civilly” distinguish or distance themselves.
Pretoria News
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