IN THE HIGH COURT OF SWAZILAND
JUDGMENT
HELD AT MBABANE Case No. 467/2017
In the matter between:
NONHLANHLA NSINGWANE Appellant
And
BONGINKOSI NSINGWANE Respondent
Neutral citation: Nonhlanhla Nsingwane vs Bonginkosi Nsingwane (467/17) [2017] SZHC 173
CORAM MAGAGULA J
HEARD: 1st AUGUST 2017
DELIVERED: 11th August 2017
Summary: Spouses married in terms of Swazi Law and Custom proceedings to re – marry each other in terms of the Marriage Act, 1964 - status of Swazi Law and Custom marriage after marriage under the Act.
JUDGMENT
[1] This is an appeal against a decision of the Magistrate’s court dismissing a special plea in a divorce action.
BACKGROUND
[2] The Respondent instituted divorce proceedings at the Magistrate’s court claiming an order for restoration of conjugal rights and failing which, a final decree of divorce. He also claimed other ancillary relief.
[3] In response to the Summons the Appellant filed a plea in which she raised the following preliminary points:
a) The Parties are married to each other in terms of Swazi Law and Custom and the Magistrate’s court has no jurisdiction to dissolve such marriage.
b) Although the parties subsequently remarried each other in terms of the marriage Act, such marriage was not intended to and did not supercede the Swazi Law and Custom marriage.
c) The parties further complemented their Swazi Law and Custom marriage by having the traditional “ umtsimba” ceremony which they celebrated after their marriage under the Act.
The Appellant accordingly maintains that, despite the marriage under the Marriage Act, the parties are still married in terms of Swazi Law and custom and the civil rites marriage should be disregarded as it was for church purposes in order to obtain the pastor’s blessing.
THE LAW
[4] Section 7 (1) of the Marriage Act, 1964 provides:
“ No person already legally married may marry in terms of this Act during the subsistence of the marriage, irrespective of whether that marriage was in accordance with Swazi Law and Custom or Civil Rites and any person who purports to enter into such a marriage shall be deemed to have committed the offence of bigamy;
Provided nothing contained in this section shall prevent parties married in accordance with Swazi Law and Custom or other rights from remarrying one another in terms of this Act.”
[5] What is abundantly clear from the section is that parties married in terms of Swazi Law and Custom may remarry each other in terms of the Act. This is exactly what the parties in casu did. What remains to be determined is the status of the marriage in terms of Swazi Law and Custom once the parties remarry each other in terms of the Act.
[6] The Appellant contends that the marriage in terms of Swazi Law and Custom remains in force also and the parties should be regarded as married under both systems. The basis for this contention is that there is clear procedure which has been confirmed by this court and the Supreme Court on numerous cases for termination of a marriage in terms of Swazi Law and Custom. Until such procedure is followed and the marriage terminated the customary way, it remains in force, it cannot be terminated by the fact that the parties have proceeded to marry each other under the Act.
[7] On the other hand the Respondent maintains that it is not possible for the marriage of the same couple to be governed by two different regimes at the same time. Respondent also maintains that since the Swazi Law and Custom marriage was not registered this evinces a clear intention of the parties that their marriage should be in terms of Civil Rites and governed by the Act.
[8] It seems to me that when parties re- marry each other as the Act provides, they marry each other again or anew. They enter into a new marriage and in such case the previous marriage automatically falls away. The situation would be different if the subsequent marriage was a mere celebration with no formalities involved. But where the parties actually enter into a new contract of marriage with all the required formalities observed, the new marriage ought to prevail even if the previous marriage in terms of Swazi Law and custom had been registered. I think the word
re – marry says a lot as it seems to me to mean redo what you had done previously. A marriage being a contract, it means enter into a new contract regarding the same subject matter. It does not seem possible to me that parties can have two incompatible contracts governing the same relationship and on the same subject matter. I say incompatible because a marriage in terms of Swazi Law and Custom is potentially polygamous whilst a marriage by civil rites is monogamous. There are of course other differences in the two regimes which I do not find it necessary to enumerate.
[9] The Supreme has pronounced itself on the correct position in such matters in the case of JOHN BHEMBE V PHINDILE BHEMBE (23/2013) [2014] SZSC 23 ( 30th May 2013). Delivering the unanimous decision of the Court Chief Justice M.M Ramodibedi as he then was stated at page 6 of his judgment:
“ It is not legally possible for a couple to be married to each other “both” in terms of the two forms of marriage which fall under completely different regimes and cannot subsist side by side with each other.”
At page 7 of the same judgement the then Chief Justice continued to state referring to section 7 (1) of the marriage Act:
“ As is plainly evident from this section, when a couple married in accordance with Swazi Law and Custom enter into a civil rites marriage, they are actually “ re-marrying” one another. What this then means is that their customary marriage falls away and is superceded by the civil rites marriage with all its consequences, which include community of property.”
[10] The position that the two marriages cannot exist side by side is supported by several authorities. For instance Justice Mamba J states in the case of JABULILE PERSIS MAZIYA V THEMBI KHANYISILE BHIYA AND OTHERS (2872/07) [2008] SZHC at pages 7 – 8:
“ Whilst I accept that the law is silent on what happens when the couple re – marry under the Act, I am with due respect unable to agree that the two marriages can co-exist side by side ……….A marriage under the Act is monogamous. A marriage under Swazi Customary law is potentially polygamous ………..A marriage cannot be both monogamous and polygamous, or put differently, a couple cannot at the same time be married under the Act and under Swazi Customary law to one another.”
[11] It is my finding therefore that in casu the parties are married in terms of the Act and their marriage is therefore in accordance with civil rites. The learned Magistrate was therefore correct in holding that she was endowed with the necessary jurisdiction to hear and determine the matter and the special plea was correctly dismissed.
[12] Although I do not agree that by terminating a Civil Marriage the Magistrate automatically terminated the customary marriage, it is clear that at the time of terminating the civil marriage the customary law marriage is no longer in existence and there is therefore no need to pronounce on it.
For the foregoing reasons the following order is made:
a) The appeal is dismissed with costs
b) The matter is referred back to the Magistrate’s court to be dealt with and finalised thereat.
_________________
J.S MAGAGULA J
For the Appellant: M.Magagula
For the Respondent: S. Masuku
