Law experts keep urging the country to develop a culture of dissolving customary marriages in court by divorce.
A deceased businessman’s failure to dissolve his first customary marriage by a divorce decree has left his family in a legal battle with the estranged first wife over a R3m estate.
Tieu Coliphter Phage’s estranged customary wife, Mokgaetji Ledwaba, who he left in 2008 after a year of marriage, staked her claim to his estate after his death in 2012.
The Polokwane Master of the High Court appointed Ledwaba as co-executrix of Phage’s estate along with Matsatsi Monyepao, whom he married in 2010, also under customary law, and lived with her until his death.
Legal battles between Monyepao and Ledwaba, each of whom have a child with Phage, have been raging since the decision of the Master of the High Court to appoint both women as co-executrix.
Ledwaba argued in court that Monyepao only pushed to remove her as co-executrix after an amount of R3.8 million was paid into Phage’s business accounts.
After two hearings at the Polokwane High Court, the first won by Monyepao and the last by Ledwaba on appeal, the matter is headed to the Supreme Court of Appeal (SCA).
In her short-lived victory, Monyepao had convinced Deputy Judge President Fikile Mokgohloa that Ledwaba must forfeit her stake in the estate on grounds that her marriage to Phage was dissolved in February 2008 because of her misconduct.
Judge Mokgohloa found that what effectively dissolved Ledwaba’s union with Phage was her civil marriage to a man named Mr K in court papers.
Ledwaba married Mr K in 2009.
“Ledwaba’s version is that she still regarded herself as married to the deceased irrespective of her marriage to Mr K,” said Judge Mokgohloa. “If that is true, then, (she) practised polyandry, which is illegal in our law. In my view the conduct gave rise to the breakdown of her marriage to the deceased.”
Ledwaba managed to set aside Judge Mokgohloa’s ruling on appeal at the Polokwane High Court.
A full Bench ruled that her marriage to Mr K was null in the first place, meaning it did not dissolve her customary marriage with Phage. It was Ledwaba’s argument that her marriage to Mr K was null.
To rule in Ledwaba’s favour on Mr K’s marriage nullity, the Bench relied on precedent-setting judgments which found that civil marriages entered into with another partner in an existing customary union were null.
The Bench said it was incorrect of Judge Mokgohloa to rule that Ledwaba’s patrimonial benefits in the estate could be forfeited by anything other than divorce.
“This approach is flawed because a forfeiture of benefits must follow an enquiry into misconduct on the part of one of the parties to the marriage,” said the Bench.
“This did not occur in this matter. There were no divorce proceedings at all.”
The Recognition of Customary Marriages Act stipulates that customary marriages may only be dissolved by a court.
Monyepao now looks to the SCA to settle the matter in her favour.
A notice of the Bloemfontein-based court cited her as plaintiff and Ledwaba as defendant in the appeal hearing set down for May 20.
According to the notice, the court will hear arguments on whether Ledwaba should forfeit her patrimonial benefits due to the misconduct during her marriage with Phage.
The court’s Bench will also be called to rule on whether Ledwaba’s marriage to Mr K was null, thus failing to dissolve her union with Phage.
The Star reported previously that law experts urged the country to develop a culture of dissolving customary marriages in court by divorce.
Melusi Xulu, managing director of Donda Attorneys, at the time said that there were strong indications that many in the country were still married to ex-partners.
“The safest thing is to go to court and file for divorce once you know that you have separated,” he said.
“Many people are asking, even on Twitter, ‘What if the woman leaves?’ It means you’ve only separated not divorced.”