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4.1 Since colonial times, Christian marriage has been taken as a sign not only of religious commitment but also as an indication that the spouses decided to follow a westernized way of life. This assumption had a direct bearing on what law was chosen to govern the marital relationship: the form of marriage was deemed to indicate the spouses' intention that their rights and duties inter se and their relations with their children should be governed by common law.
4.2 In South Africa, if an African couple contracted a marriage according to civil or Christian rites, the form of the marriage would dictate application of the common law to most of the consequences of their union. Nevertheless, because the spouses' personal law was customary, certain aspects of their relationship, such as the devolution of an estate on the death of one of the parties, continued to be governed by that system.
4.3 Many difficult conflict of laws problems were generated by the possibility of both customary and common law being applied to civil/Christian marriages. These conflicts presupposed the co-existence of different laws. If the Law Commission's proposals in its Report on Customary Marriages[1] for a common code of marriage law are accepted, however, the conflicts will disappear, because whatever form of marriage a couple may contract the consequences will be the same.
4.4 Certain differences may none the less persist. The potentially polygynous nature of customary marriages (as opposed to the monogamous nature of civil or Christian marriages) is the most notable instance.[2] Differences will also feature in matters ancillary to the marriage, namely, lobolo and engagement agreements and actions involving third parties.
4.5 According to the Report on Customary Marriages, although a lobolo agreement may no longer be an essential requirement for a valid marriage,[3] it is still a legally enforceable contract. When promised in conjunction with customary marriages, customary principles would obviously govern the terms and conditions of the agreement.[4] When lobolo is linked to a civil or Christian marriage, however, the choice of law is not as obvious.[5] Should the common law govern it?
4.6 Furthermore, the Law Commission's proposals to integrate customary and common law make no mention of engagement agreements and only passing mention of delicts involving third parties. Because rules from the two legal systems on these issues differ markedly, conflicts of law are bound to arise, and again the question is whether common or customary law should apply.
4.7 As will become apparent below, we have an established body of precedent to govern most of these questions. Hence the main issue to be considered here is whether choice of law for lobolo agreements and other issues associated with marriage should now be legislatively regulated or whether matters should be left to the courts' discretion.
4.8 The Report on Customary Marriages still assumes that the form of a marriage will play a role in determining the law applicable to the spouses' relationship.[6] In other words, celebrating a union in a church or registry office leads to application of common law, while celebration by customary rites leads to application of customary law. Since colonial times, choice of law for marriage has been based on an assumption that couples who married by Christian rites intended the common law to apply to their relationship.[7] (Marriage thus functioned as a form of exemption from customary law.)[8] Today, a more fitting justification would be the spouses' cultural orientation.
4.9 Allowing the form of marriage to determine the applicable law has the great advantage of providing a simple basis for choice of law in an area likely to produce intractable problems. For instance, a quick answer could be found for the following problem: if a woman normally subject to customary law were to contract a civil marriage with a man who was normally subject to the common law, the form of the marriage would regulate the consequences of their union.
4.10 There is always a risk, of course, that tying choice of law to a culturally marked formality, such as a wedding, might not accord with the spouses' actual intent or cultural preferences.[9] Africans might have married in Church as a matter of conscience, without intending to opt out of customary law.[10] They might have wanted their personal law to continue to apply, which can perhaps be gauged from the fact that many Africans observe traditional ceremonies and nearly all, whether they marry in Church or not, have a lobolo agreement.[11]
4.11 Moreover, linking choice of law to the form of a juristic act is unsatisfactory when the act initiated a long-term relationship. What has a Church ceremony to do with distribution of property on divorce or the devolution of an estate on death, issues that may arise many years after the wedding?[12] The presumption in these circumstances that the ceremony reflects the spouses' intent to be bound by a particular system of law seems at best tenuous,[13] if not a complete fiction.[14]
4.12 In order to meet these objections, courts elsewhere in Africa sought to take account of the actual expectations of the parties by applying customary law to certain incidents arising from dissolution of civil or Christian marriage.[15] The disadvantage of jettisoning the form of marriage as the key to choice of law, however, was inevitably to make the conflict process far less certain. The decision of what law to apply then depended on the vagaries of spouses' way of life (or cultural orientation) at the date that an action was instituted.
4.13 South African courts avoided these uncertainties by the simple expedient of giving civil and Christian marriages an overriding effect.[16] Their decisions were based less on the parties' presumed intent than on the superior value accorded that type of marriage. Hence, when called upon to adjudicate claims for lobolo, they reasoned that lobolo was ancillary to the marriage,[17] and hence had to be modified by principles governing the union.[18] To the extent that lobolo is not essential to the validity of marriage, the Law Commission has endorsed this approach.[19]
4.14 The most controversial issue, and one that provoked the most litigation, was whether a claim for return of lobolo was valid if one of the spouses committed adultery. In customary law, a single act of adultery (especially by a husband) gives no immediate cause for complaint, nor does it necessarily justify ending the marriage.[20] In the common law, on the other hand, adultery by either spouse may lead to an irretrievable breakdown of the marriage. Here again, the courts subjected lobolo agreements to the exigencies of civil marriage:[21] whether lobolo had to be returned was decided according to common-law principles.[22]
4.15 A spouse's death also generated difficult conflict problems. Under the common law, death automatically terminates marriage, whereas, under customary law, the union may continue until the parties arrange to end it (which would be signified by returning lobolo).[23] Although one might have expected the courts to apply common law, they gave effect instead to customary law. As a result, the lobolo agreement was deemed to continue despite termination of the marriage.[24] This departure from the general rule that common law was to be applied to all incidents of civil marriages perhaps demonstrates that the courts were prepared to accommodate the parties' actual expectations.[25]
4.16 As far as engagement agreements were concerned, courts in the past had no hesitation in applying common law to an agreement to marry in a church or registry office.[26] They do not appear to have encountered the more difficult problem of having to decide what law to apply where the parties had no clear intention or where the union was to be celebrated by both customary and Christian rites.[27]
4.17 The law applicable to the spouses' marital relationship has generally been extended to govern their relationship with third parties.[28] Hence, common law was applied to delicts arising from impairment of the marital consortium, such as adultery, abduction or enticement,[29] on the understanding that these actions arose from an interference with conjugal rights established by a civil or Christian marriage.[30] An inflexible choice of law such as this, however, seems inappropriate. Why should the nature of the spouses' union dictate duties for an otherwise uninvolved third party?
4.18 In summary, it is evident that courts have a long-established practice of referring to the form of civil and Christian marriages to establish an applicable law. Especially for purposes of determining the spouses' immediate rights and duties inter se, use of this factor seemed to provide satisfactory solutions. More complicated problems arose, however, in relation to engagement agreements, delicts arising out of interference with the marital bond and matters arising on dissolution of marriage, notably return of lobolo. Here, form of the marriage on its own cannot yield the overall cultural orientation of the case.
4.19 Wherever marriage law permits of differences between customary and common law, conflict problems will arise. Special statutory choice of law rules to regulate these conflicts would be undesirable, however, since existing case law indicates that the issues are too complex to permit legislative solutions. Accordingly, the topic is best left to the courts to deal with. Although the courts' decisions have tended to be unduly influenced by the form of marriage, choice of law should in principle be directed by the general principles described above for solving conflicts between common and customary law.
[1] For example, capacity to marry, the property regime and grounds for divorce will be governed by the same rules. See Report on Customary Marriages paras 5.1.19, 6.3.4.22 and 7.2.8, respectively.
[2] Another is the spouses' relative capacity to marry one another.
[3] Nor will it affect the spouses' rights and duties and their relationship with their children: para 4.3.3.14.
[4] Subject to the qualifications mentioned in the Law Commission's Report on Customary Marriages paras 4.3.3.14-16.
[5] For a start, the marriage and the lobolo agreement involve different parties: the former is exclusively the concern of the spouses, while the latter concerns the groom (or his guardian) and the bride's father (or his heir): Bennett Application of Customary Law 147. See generally Peart (1984) 47 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 158ff.
[6] Paragraphs 4.1.4ff.
[7] See the Nigerian cases of Cole (1898) 1 NLR 15 and Asiata v Goncallo (1900) 1 NLR 41.
[8] Civil or Christian marriage offered certain secular benefits for women in particular, perhaps the most important of which was a monogamous relationship with their husbands: Phillips Survey of African Marriage and Family Life 29.
[9] Hence, in order to discover the spouses' underlying intention to conclude a customary marriage, the Report on Customary Marriages paras 4.1.13 and 4.4.10 proposed referring to the observance of such typical practices as the giving of lobolo, a traditional wedding ceremony or the involvement of the two families.
[10] What is more, Christian marriage has lost many of its cultural connotations, as independent African churches have emerged and the established churches have been freed of their association with colonial government.
[11] See, for instance, Raum & De Jager Transition and Change in a Rural Community 55ff and Koyana Customary Law in a Changing Society 27ff.
[12] In Nigeria, for example, the fact that a deceased person had contracted a civil marriage meant that the estate would be distributed according to the common law: Cole (1898) 1 NLR 15.
[13] A point taken by Coleman v Shang 1959 GLR 390 at 401 (and confirmed on appeal to the Privy Council [1961] AC 481).
[14] See the leading Nigerian case, Smith (1924) 5 NLR 102 at 104.
[15] See, for instance, the Lesotho decision in Khatala 1964 HCTLR 97 at 100 and s 2(1) of Botswana's Dissolution of African Marriages (Disposal of Property) Act Cap 29:06.
[16] It followed that the validity and continuance of the marriage did not depend upon payment of lobolo: Cheche v Nondabula 1962 NAC 23 (S) at 28. And the wife's guardian could no longer `impound' his ward (theleka) in order to enforce payment of lobolo, because this practice was construed as malicious desertion: Ntsimango 1949 NAC 143 (S) at 144.
[17] See Gomani v Baqwa 3 NAC 71 (1917) and Peme v Gwele 1941 NAC (C&O) 3. More generally, the courts felt that there was only one marriage - the civil union - and any lobolo agreement should be subordinate to it. See Tobiea v Mohatla 1949 NAC 91 (S) and Sgatya v Madleba 1958 NAC 53 (S) at 56. Courts elsewhere in southern Africa have taken a similar approach: Muchenje v Kunaka 1912 SR 207, Khoza v Malambe & another 1976 SLR 380 at 384 and Maqutu v Hlapane 1971-3 LLR 36.
[18] Mbonjiwa v Scellam 1957 NAC 41 (S). In particular situations, however, they have oscillated between treating the lobolo agreement as a common-law contract (Kerr 1960 Acta Juridica 337) with implied terms governed by customary law and treating it as a customary agreement to be governed by customary law unless in conflict with the principles of the marriage (Peart (n181) 167).
[19] In para 4.3.3.16 of its Report on Customary Marriages.
[20] Even adultery committed by the wife, provided it was not persistent, is not necessarily a good reason to end the marriage: Bekker (1976) 39 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 364ff.
[21] Sicence v Lupindo 3 NAC 164 (1914), Mpoko v Vava 3 NAC 198 (1912), Gomani v Baqwa 3 NAC 71 (1917), Cobokwana v Mzilikazi 1931 NAC (C&O) 44, Fuzile v Ntloko 1944 NAC (C&O) 2, Nkuta v Mathibu 1955 NAC 47 (C) at 49 and Gwala v Cele 1978 AC 27 (NE).
[22] Customary law, however, determined the various deductions allowed the wife's guardian: Qotyane v Mkhari 1938 NAC (N&T) 192, Phalane v Lekoane 1939 NAC (N&T) 132 at 134, Raphela v Ditchaba 1940 NAC (N&T) 29 and Fuzile's case above.
[23] Thus, if a husband were to die while his wife was still capable of bearing children, she would be expected to enter into a levirate union. If she refused to do so, her guardian would be obliged to return part of the lobolo. See Bennett Sourcebook of African Customary Law 414-15.
[24] Mrubata & another v Dondolo 1949 NAC 174 (S) at 176. Hence, if a widow left her husband's family, she rendered her guardian liable to restore portion of the lobolo: Ntlongweni v Mhlakaza 3 NAC 163 (1915), Makedela v Sauli 1948 NAC (C&O) 17 and Tobiea v Mohatla 1949 NAC 91 (S). In Somzana v Bantshi 4 NAC 84 (1921), a case where the wife had died, however, the court wavered on whether to return lobolo. Similarly, the husband's family was awarded any posthumous children born to the widow, and the husband's heir was allowed to claim lobolo paid for any daughters: Mrubata's case above.
[25] An approach that is not without difficulty. Whose expectations are to be taken into account, only the spouses' or those of the wife's guardian too?
[26] In most systems of customary law, an agreement between a man and woman to marry has no legal consequence, because marriage is a matter of family rather than individual concern. Under the common law, however, failure to fulfil a promise to marry could ground an action for damages. See Bennett Application of Customary Law 143-7. By applying common law, a jilted party was allowed an action for breach of promise: Lupusi v Makalima 2 NAC 163 (1911), Nzalo v Maseko 1931 NAC (N&T) 41 and Roqoza 1965 BAC 1 (S).
[27] In the case of marriage by both customary and Christian rites, a Lesotho court sought to ascertain which was the predominant union. See Mabitle v Mochema 1971-3 LLR 271 and Poulter Legal Dualism in Lesotho 50.
[28] Especially with their children: Ngcobo 1944 NAC (C&O) 16, Morai v Morai & another 1948 NAC (C&O) 14, Mosehla 1952 NAC 105 (NE), Msomi 1968 BAC 29 (NE) at 32, Ramokhoase 1971 BAC 163 (C) at 167 and Madlala 1975 BAC 96 (NE) at 99.
[29] Poulter (n203) 64-5.
[30] Mdodana & another v Nokulele 2 NAC 138 (1911) and Mtshengu v Mawengu 1954 NAC 172 (S).
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