One man, five wives: Judge throws out unconstitutional polygamy property law

01 December 2017 - 06:41 By Ernest Mabuza
File photo.
File photo.
Image: Gallo Images/Thinkstock

The Constitutional Court has confirmed that a law that governs matrimonial property in customary marriages, which discriminates against certain categories of women, is unconstitutional.

Section 7(1) of the Recognition of Customary Marriages Act (RCMA) of 1998 provides that wives who entered into customary marriages before the act was passed do not have marital property rights.

In this case Musenwa Netshituka, who died in 2008, had entered into polygamous customary marriages with three women and civil marriages with two other women.

One of the civil marriages ended in divorce and the civil marriage to Munyadziwa Netshituka in 1997 was declared null and void by the Supreme Court of Appeal in 2011.

Munyadziwa claims she later concluded a customary marriage with Musenwa.

He left a will in terms of which Munyadziwa, whom the will referred to as a wife married in community of property, was named as executor of the estate.

Munyadziwa, the other wives and all the deceased's children were to receive benefits from Musenwa's half share of the joint estate. The Constitutional Court said the reference to a joint estate stemmed from an apparent belief the deceased's marriage to Munyadziwa was in community of property.

Two biological children, whose mothers had entered into the polygamous marriage, launched the constitutional challenge.

They argued that due to the application of Section 7(1) of the RCMA, their mothers were excluded from ownership of the estate amassed by Musenwa.

In a judgment by Justice Mbuyiseli Madlanga, the court said the effect of section 7(1) was to perpetuate inequality between husbands and wives in the case of marriages entered before the 1998 act.

"The situation of wives in pre-act polygamous customary marriages is one of lack of ownership and control of property within the marriage." Madlanga said this discrimination limited the right to human dignity of wives in pre-act polygamous customary marriages. Madlanga gave parliament 24 months to remedy the defect in the legislation.

He said pending the change in legislation, husbands and wives whose polygamous customary marriages were concluded before the act must share equally in the right of ownership to family property.