IN THE SUPREME COURT OF SWAZILAND
HELD AT MABABANE
In the matter between:
MDUDUZI MASIKO DLAMINI Appellant
PHILILE NONHLANHLA DLAMINI (NEE NDZINISA) Respondent
Neutral Citation: Mduduzi Masiko Dlamini vs Philile Nonhlanhla Dlamini (nee
Ndzinisa (33/2017)  SZSC 58 (10th November,2017)
Coram: DR. B.J. ODOKI JA; M.J. DLAMINI JA, R.J. CLOETE JA
Heard: 28th September, 2017
Delivered: 10th November 2017
SUMMARY: Swazi customary law - dual marriage - dissolution of one limb of the dual marriage - legal effect of such dissolution on the other limb of the marriage – whether the order of the ceremonies in a dual marriage has any relevance - conflicting views on the point considered – parties only partly divorced – matter lis pendens alibi – appeal dismissed
 This is an appeal of the judgment of learned Nkosi J dismissing the application on the ground that the matter was lis pendens in the Magistrate's Court which must "ultimately determine the same question sought to be determined in this Court, i.e whether the Court order granted by this Court in September 2014 dissolved the marital relationship between the parties".
 The appellants' grounds of appeal dated 18th April, 2016 are as follows:-
1. That the Court a quo erred in law in holding that the matter was lis pendens before the Magistrate's Court as the said Magistrate's Court does not have jurisdiction over customary law marriages;
2. That the Court a quo erred in law in holding that the matter was lis pendens in as much as the different causes obtained before these Courts (sic);
3. That the Court a quo erred in law in holding that the matter was lis pendens when it is common cause that the parties were legally married by Swazi law and custom first, which marriage was dissolved by High Court Order issued on 12th September 2014.
 The appeal clearly challenges the gravamen of the decision of the court a quo anchored on the principle of lis pendens, that the matter between the same parties is pending in another court and raises the same issue that is raised before court. That issue was stated by Nkosi J as whether the Court order granted by this Court in September 2014 dissolved the marital relationship between the parties. What appears to be pending before the Magistrate's Court are divorce proceedings between the parties. Thus from the outset there is need to restate this principle and to see if it was correctly applied in the circumstances of this case in the court a quo. It is pertinent however to begin by pointing out that on the first ground of appeal the principle is challenged on the basis that the Magistrate's court has no jurisdiction over customary law marriages. Thus, it is argued, the matter cannot pend where the issue cannot be determined for lack of jurisdiction.
 From the founding affidavit in the court below, it appears, as appellant avers, that the parties were first married by customary rites "through the teka custom" during the year 2001. Appellant believes the marriage was duly entered into as respondent's family accepted the 'ceremonial meat' usually given to the woman's family following the smearing of the woman (bride) with red ochre. Appellant accordingly avers that the law governing the marriage is Swazi customary law. He also alleges that he paid lobola for the respondent's hand in marriage.
 Appellant further states that in January 2002, he and the respondent, went through a civil rites marriage in Manzini. To this end, appellant attaches a copy of their certificate of marriage. Under item 25, the certificate records that the 'common law' is the "law governing the consequences of (the) marriage". The marriage was duly registered the same month it was celebrated. But the first marriage under custom was not registered. This was a breach of the law which requires that all marriages should be registered within a specified period. Not having the marriage registered however does not mean that such marriage does not exist: it is only that it is difficult or cumbersome to prove in a court of law.
 In 2014, under Case No. 1096/2014, appellant applied for and obtained an order by the High Court purporting to declare the customary marriage between the parties to be dissolved in these terms: "The marriage in terms of Swazi law and custom between the parties be and is hereby declared to be dissolved". It need only be stated that respondent had defaulted attending the hearing which declared the marriage dissolved. The dissolution of the customary marriage as appellant says was "due to certain marriage problems that cropped in our life in common..." (sic). I take it that the so-called declaration of dissolution of the customary marriage by the High Court was in fact the declaration required for the purpose of expunging the registration of the marriage from the official register or a general confirmation the said marriage has under customary law been duly dissolved.
 Under paras 10 to 13 of his founding affidavit appellant states: “When the Ndzinisa and Dlamini family (sic) agreed that we be married in terms of Swazi law and custom, by the acceptance of the ceremonial meat, the intention was that that should be the marital regime governing even the marital consequences and the life in general of the marriage. 11. Other than the civil rites ceremony held at St Michaels, everything else in the marriage has been done in accordance with Swazi law and custom. 12. It has always been our desire as a family to have our affairs in accordance with the dictates of Swazi law and custom. 13. The civil rites wedding was nothing but a celebratory in nature (sic) meant to appease those members of the family who are of Christian persuasion and that is why we made it a point that we fulfilled all the requirements of a marriage under Swazi law and custom first afore we had the civil rites celebration”. But why then register the civil rites and not the first customary rites marriage?
 Appellant goes on to say that the choice of customary law meant that customary law would govern their marital life and the civil rites marriage was just a celebration (without force of law). Appellant however does not explain why the customary law marriage was not registered if in fact customary law was the system of law chosen to govern their marital consequences. He also does not explain why the civil rites marriage was promptly registered (ten days after solemnization) designating the ‘common law’ as the law to govern their marital life and its consequences. Further, appellant does not explain why he apparently took the lead in getting the customary marriage dissolved while the civil rites marriage subsisted; he does not tell the Court the ‘fault’ which led to the dissolution of the customary marriage but was not amenable to the common law for purposes of a divorce. And for some unknown reason appellant continues to believe that customary law still applies even though the customary marriage has been dissolved: hence the prayer for that declaration in court a quo.
 Clearly, what the parties entered into is what has been termed ‘dual marriage’, whereby the customary and civil rites marriages co-exist. Unless otherwise specifically provided such an arrangement introduces in the life of the parties a conflict of laws situation in terms of which the two legal systems compete for domination requiring the court to determine which system trumps the other. This conflict of laws at the personal level has been avoided by simply assuming that the first marriage defines the choice of law to apply in the marriage. This is so because both marriage types are lawful and equal in this country.
 Appellant concludes his founding affidavit by stating that since the customary marriage was dissolved by the High Court order, there is "no marriage existing between [himself] and respondent'. Appellant clearly makes nothing of the civil rites marriage he entered into with respondent which marriage still subsists. Proceeding on the basis that the customary law marriage was dissolved or declared dissolved in 2014, appellant came to the High Court, in April 2015, for an order in the following terms:-
“1. Declaring Swazi law and custom to be the law governing the marital regime of the parties;
2. Declaring that the dissolution of the marriage under Swazi law and custom means the dissolution of any marital relationship between the parties;
3. Costs only in the event-opposition (sic).
4. Any further or alternative relief”.
 Without quibbling about the sense of the first prayer, there seems to be a contradiction between the first and second prayers. If by the first prayer applicant means that customary law should be declared the law regulating the marriage (between the parties) the question is which marriage remains to be so governed after the dissolution of the customary marriage in 2014. Why should there be a declaration about the marital regime of persons who have dissolved their marriage in terms of that legal regime? There is no 'marital regime' to speak about between the parties as far as customary law is concerned. The prayer is academic. But because of the possibly conflicting authorities on the matter, the issue should be revisited if only in the attempt to put it beyond doubt. The dissolution of the customary marriage must have left the civil rites marriage intact. In casu, this result is also assisted by the content of item 25 of the marriage certificate which installs the common law as the law to regulate the consequences of the marriage. To undo or reverse that arrangement would require a correction or amendment of the marriage certificate in item 25. That item could have reflected 'Swazi law and custom' as the law governing the marriage consequences, even though the marriage was civil. This would of course be subject to the condition that the marriage remained monogamous.
 The declaration sought in prayer 2 in effect seeks to have declared that Swazi law and custom was the only legal regime in the marriage of the parties and that the civil rites marriage was not a real marriage but just a celebration to placate the Christians within the families of the parties. The reality of what happened however speaks to the opposite. The civil aspect was not just an appearance or make - believe as appellant would want us believe. That position is untenable where there was the signing of the marriage register which is critical to the validity of the civil rites marriage, unless some serious error is established. As already stated above, the common law was installed as the law regulating the marital consequences. Generally speaking, there is no way this legal state of the marital affairs can be undone by a court declaration without the civil marriage itself being dissolved.
 If the appellant wants, for example, the return in full or in part of the lobolo he paid for his wife, then that can be taken up before a Swazi court of appropriate jurisdiction. Neither the magistrate's court nor the High Court is that court. If, on the other hand, the appellant wants to defend divorce proceedings by his wife as a result of his adultery, appellant cannot plead customary law. When the civil marriage was celebrated the appellant's customary privilege to take other wives was forfeited, and that must have been clearly explained to the parties, especially the appellant.
 Against all that has been said by the appellant, the respondent states that the customary marriage and its legal consequences as the law of the marriage was never accepted or blessed by her family because of their religious background. She does not specifically deny that the ceremonial meat and the lobola were accepted by her family. No member of her family has deposed an affidavit in support of what she alleges. Respondent's position is, however, unmistakably opposed to appellant's regarding customary law being the law of their marriage: she says: "... [M]y family never blessed the customary marriage and my family never aspired or wished that our marriage relationship be governed by Swazi law and custom". Be that as it may, the law would apply without regard to the personal wishes or aspirations of the subject(s). Contrary to appellant's averments, respondent states: "In particular I wish to deny that the civil rites marriage was celebratory in nature....it was a pure and genuine marriage as both parties signed the marriage register....It was never my intention that Swazi law and custom should govern the marriage relationship and marital consequences thereof". In all her denials, respondent seems to anchor her opposition to appellant's assertions on the belief that "the superior marriage in law is the civil rites marriage..." and she concludes by praying for "an order in terms of the Notice of Motion..." !!
 There is indeed a notion that in this country, as the position would seem to be in other neighbouring or regional jurisdictions, the civil rites marriage is superior to the customary law marriage. This notion must be categorically denied and put to rest once for all. In Joseph Jabulani Dube v R 1970-1976 SLR 93 (HC) Mr. Dube had by civil rites first married one Ms. Mabanga in the Republic of South Africa, and later by customary rites purported to marry Ms. Makhathini, in Swaziland. He was duly charged with the offence of bigamy, it being argued and accepted that the customary marriage was a lawful marriage just like a civil rites marriage. This conclusion was based on the reading of section 7 of the Marriage Act 1964. In that case Sir Philip Pike C.J. pertinently stated at p94 C: "It would indeed be anomalous if the effect of section 7(1) was to render it bigamous to go through a marriage under the Act while there was a valid and subsisting polygamous marriage by Swazi law and custom but not to render it bigamous to go through a marriage by Swazi law and custom while there was a valid and subsisting marriage by civil rites". Sir Philip Pike concluded that Dube had been rightly convicted of bigamy. I entirely agree with that conclusion on the interpretation of section 7 of the Marriage Act 1964. That section has never been amended since enactment.
 The next case raising the issue of the so-called 'dual' or 'double' marriage is that of Dladla v Dlamini 1977-1978 SLR 15 (CA). In the court a quo (at p. 14B –C) counsel for appellant had applied but was refused "leave to lead evidence as to the custom prevailing in Swazi courts where … there is a civil marriage and a marriage by Swazi law and custom” which was "to regard the civil marriage as being the operative one". Nathan CJ held that the Swazi courts had jurisdiction to deal with the Swazi customary law issues raised by such a double marriage, such as damages for adultery or the return of the lobolo. On appeal, Smit JA observed, at ppl6F-17A: "In Swaziland a marriage according to Swazi law and custom is valid. So also is a civil rites marriage entered into in accordance with the provisions of the Marriage Act 47 of 1964.... The Marriage Act recognizes a customary law marriage as being as valid as one by civil rites, so much so that for purposes of the offence of bigamy section 7(1) thereof provides that '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 marriage shall be deemed to have committed the offence of bigamy: Provided that nothing contained in this section shall prevent parties married in accordance with Swazi law or custom or other rites from re-marrying one another in terms of this Act'. (See also Joseph Jabulane Dube v R 1970 -1976 SLR 93). The Act is, however, silent on what happens to the first marriage entered into between the parties according to Swazi law and custom when they remarry each other by civil rites under the Act. So also was Cap 133,.... silent. Neither of these enactments provide that in the case of a 'dual' marriage the marriage according to Swazi law and custom is dissolved. The Swazi (Centre) Law Panel....1964, came to the conclusion....that 'A marriage in terms of Swazi law is not dissolved by a subsequent marriage in terms of statute law'. I agree with this conclusion. The customary law marriage is a valid, marriage contract when entered into and there is no law which provides for its dissolution when it is followed by a civil rites marriage. The two marriage contracts are not mutually destructive and can stand side by side".
 In Ex parte Ginindza and Another 1979 - 1981 SLR 361 (HC), Mr. Ginindza, already married by customary rites, applied to have his subsequent purported civil rites marriage under the Marriage Act annulled as bigamous in terms of section 7(1) of the Act. The application was unopposed and was granted by the learned CJM Nathan, Chief Justice. In interpreting section 7(1) the learned Judge looked at the words "in terms of this Act" and expressed the obiter view that the decision in Joseph Jabulane Dube supra, was wrong because the second marriage in that case being the customary was not “in terms of this Act". In my humble view and with the greatest respect, by emphasizing the words "in terms of this Act", in Ex parte Ginindza and Another, the learned Chief Justice would get us back to the 'anomalous' situation which Sir Philip Pike had warned against in Joseph Jabulane Dube, to wit, having a different legal outcome depending on which marriage came first. That is what Sir Philip Pike CJ described as anomalous, and that such could not have been the intention of the legislature, even in 1964. See also Levinsohn JA in Nolwazi Mndzebele v Patricia Mndzebele, infra.
 The obiter opinion of the learned Chief Justice in Ex parte Ginindza and Another simply does not make sense: It says: if A is already married to B by customary rite, A may also marry B but not C in terms of the Act, even though A could lawfully marry C by customary rite, the latter marriage being not in terms of the Act. The position is also true that if A marries B under the Act first, he may go on to marry other women by custom and there would be no bigamy. Something is wrong here. Sir Philip Pike's judgment effectively avoids the anomaly and recognizes the legal equality of the two types of marriages. It seems to me that the quandary which led Nathan CJ to his comment in Ex parte Ginindza and Another on the Joseph Jabulane Dube case is to be found in the words he used: "It is not clear to me why the legislature should have decided ...to elevate a Swazi law and custom marriage to the same status as a civil rites marriage under the Act where the latter is the second marriage". But, surely, once the customary marriage was equal in law to the civil marriage, the conclusion to which Sir Philip Pike arrived was inevitable. The position advocated by Nathan CJ (and others) is only sustained by de-equating the marriages, the result of which would be to effectively legalise an otherwise bigamous situation whereby a monogamous civil rites marriage is made to subsist side by side a polygynous marriage relationship (under the misconception that because the latter marriages are not 'in terms of' the Marriage Act they are not marriages for purposes of bigamy).
 That the civil and customary marriages in a dual or double marriage arrangement sit side by side must be the correct conclusion since there is no law which tells what happens to either of the marriages. The later marriage does not swallow up or absorb or dissolve the earlier nor the earlier the later and the formal dissolution of either marriage would not affect the existence of the other. This is what I understand Smit JA to be saying in the Dladla v. Dlamini case. To say, as Nathan CJ and others say, that a civil rites marriage may lawfully be followed by any number of customary rites marriages is in effect to say that the civil rites marriage ceases to be such a (monogamous) marriage whilst a customary marriage does not stop being such a (polygynous) marriage. This must be the position because if a man has married the first wife in terms of the Act and may lawfully marry another woman not in terms of the Act, the result is that the first marriage has for all purposes lost its essential (monogamous) character. That the customary marriage in effect abandons its polygynous quality must be an implied condition for the remarriage in terms of the Act.
 The case of Jabulile Persis Maziya v Thembi Khanyisile Bhiya and Others, Civ. Case No. 2872/2007, was also referred to during argument. Ms Maziya was married to her deceased husband under both civil and customary rites. The exact dates and order of her marriages are uncertain. But it appears as per marriage certificate that on 28th September 1991 the civil rites marriage was solemnised. In another marriage certificate it appears that Ms. Maziya and the deceased went through the customary marriage the following day, 29th September, 1991. But Ms. Maziya disputes the date of the customary marriage and says that both marriages took place the same day, 28th September, beginning with the customary and then going to church to 'bless' it that same day. The correct order of the marriages is of no real significance in this case. Deceased husband subsequently married another woman (Ms. Bhiya, 1st respondent in casu) by customary rites in 1997 and divorced Ms Maziya in 2002. Ms Maziya says Ms Bhiya's customary marriage was null and void ab initio, it being bigamous in terms of section 7(1) of the Marriage Act.
 In the Maziya v Bhiya case is to some extent similar to the present. In that case the learned trial Judge, Mamba J, had occasion to revisit section 7(1) of the Act and observed at para  as follows: “From the outset, one notes that [the] proviso permits or allows a couple already married under Swazi law and custom or any other rites to remarry one another in terms of the Act. The second marriage must be in terms of the Act. The subsection does not govern or regulate the situation or instance wherein the parties are already married under the Act and want to remarry one another in terms of Swazi law and custom or other rites. If the legislature wanted to do so, it would have expressly said so … Where a couple married under civil rites decides to go through a marriage ceremony in terms of Swazi law and custom such a ceremony cannot, in my judgment, be called a ceremony in terms of the Act. The later or second ceremony would in my view be of no legal effect or consequence”. The learned trial Judge, however, does not go all the way on the legislature’s intent. The proviso to section 7(1) is by no means prescriptive. It will be recalled that Sir Philip Pike did not appreciate the necessity for the proviso. It will be noted that the legislature did not prohibit remarriage outside the Act of a couple already married in terms of the Act. Accordingly, parties already married in terms of the Act often go on to remarry under customary law. That is does not conflict with any law nor is it legally prescribed. It is not clear with respect to Mamba J, in what way the second marriage, if it be the customary, would be of “no legal effect or consequence”. That the Swazi courts would lawfully exercise jurisdiction in respect of such a marriage cannot be doubted. Smit JA, supra, adequately addressed this point, in my view. From a drafting point of view, there was no need in the Marriage Act to state that couples already married in terms of the Act may remarry under customary law or other rites because the Act applies only to civil marriages.
 It is noted that in above cited statement Mamba J. speaks of a 'ceremony' instead of a 'marriage' as the subsection contemplates. Of course, a 'ceremony', in the present context, could in one situation be a marriage in the strict sense, while in another situation it might just be a ceremony resembling but not really a marriage. For instance, a couple may go through a ceremony in church or elsewhere that appears on its face, [with the outward trappings], to be a marriage. But if the register has not been duly signed by the couple and their witnesses the ceremony would not be a marriage in terms of the Act, but just a ceremony, religious or other. The same would be true where lobolo/bayeni or umhlambiso ceremony is performed: the ceremony would not amount to a Swazi customary marriage if the red ochre ritual has not been performed. The signing of the marriage register and the smearing with red ochre are critical to the validity of the respective forms of marriage.
 In John Bhembe v Phindile Bhembe  SZSC 23 the parties had contracted a dual marriage, the customary being the first to be celebrated. In due course the parties separated in a divorce. The court a quo had described the parties as having been "married to each other both in terms of Swazi law and custom and civil rites". On appeal, Ramodibedi CJ was of the view that the above "statement requires qualification as it is,... not entirely correct". The learned Chief Justice explained his position thus at para : "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". This view is in stark opposition to what Sir Philip Pike CJ and the other learned justices have held. Justice Ramodibedi went on to consider section 7(1) of the Marriage Act, which he said "makes the position abundantly clear", and observed in para : "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 'remarrying' one another. What this then means is that their customary marriage falls away and is superseded by the civil rites marriage with all its consequences, which include community of property". The learned Judge then referred to two cases from the High Court and Court of Appeal of the Kingdom of Lesotho. Ramodibedi CJ did not elaborate on these cases which he cited as if they were binding in this Court. The Basotho cases are Zola v Zola 1971-73 LLR 286(HC) and Khaka and Another v Pelesa and Others 2000-2004 (LAC) 986. Interestingly, in the present case, the Maziya v Bhiya case or the Dladla v Dlamini case, on appeal or a quo was not referred to or mentioned.
 With the greatest respect, in my view, Ramodibedi CJ’s interpretation or rather understanding of section 7(1) of the Act is quite radical. The exposition is unfortunately not complete or taken to its logical conclusion. The learned Chief Justice does not explain whether the civil rites marriage with all its consequences is superseded when followed by a customary rites marriage. The notion of 'remarrying', at least as practised in this country, does not imply a rejection of the first marriage, be it the civil or customary. Which of the two marriages comes first is usually a matter of convenience. Because of its detail, the customary marriage usually comes after the civil marriage which could be done in ten minutes. There is nothing in section 7 (1) which supports the 'principle' of supersession expounded by Ramodibedi C.J. It is clear that in setting aside the order of the court a quo, Ramodibedi C.J. did not consider at all or give effect to the fact that the parties were also married according to custom - no doubt, maybe, because he believed the customary marriage had been superseded.
 In my view, if the proviso to s 7(1) of the Act - which permits for remarriage - establishes a completely new set up under the common law, as Justice Ramodibedi seems to assert, a subsection to s 7 or a separate section in the Act, and not a proviso, would have been employed to make it clear beyond doubt that by remarrying the couple were undergoing a rebirth in law and assuming a new life style. The notion of an implicit and silent supersession of the customary marriage in the dual arrangement is rather too radical a transformation to be inferred from the mere fact of remarrying in terms of the proviso. That the customary marriage "falls away and is superseded by the civil rites marriage" when the couple remarry in terms of the Act must be the result of a deliberate choice or a statute provision. In my view, there is no compelling argument that the customary marriage must necessarily be superseded as a result of the couple remarrying in terms of the Act. The only necessary adjustment following the remarriage would be for the husband to forego his privilege to take a second or other wives. There is also no compelling reason that a customary marriage has to be actually polygynous save in a very limited circle. Even some chiefs are known to have had only one wife.
 Ramodibedi C.J. did not mention the Dladla v Dlamini (CA) case in which the conclusion of the Swazi (Centre) Law Panel, 1964, was noted to the effect that the Swazi customary rites marriage is not dissolved by a civil rites marriage. In that case, it is worth further mentioning what Smit JA said at p l7E: "If a dual marriage is so included it would mean that when a civil rites marriage follows an existing customary one, the latter is, as it were, absorbed in the former and has no longer a separate existence for purposes of jurisdiction... This is contrary to what I have already said, namely, that the two marriages, in a dual marriage, exist side by side, but where there is a conflict the common law applicable to civil rites marriage prevails". And in the High Court, Nathan CJ at p 14G had observed: “Mr. Braun contended,... that the jurisdiction of a Swazi court is ousted where there is a double marriage;... I am unable to uphold this contention". Mamba J does refer to Dladla v Dlamini (CA), in particular, at pp 16-17 of that case. In the Maziya v Bhiya case, Mamba J's position is that in a dual marriage the customary marriage is somehow rendered nugatory and non-existent so that the Swazi courts would have no jurisdiction on the other limb of the duality. I respectfully differ. In my view, in a dual marriage, there is also dual jurisdiction; the jurisdictions do not overlap as each has its own sphere of operation.
27] Nolwazi Mndzebele v Patricia Mndzebele, Civ Case No 13/14 (CA), also involves the phenomenon of dual marriage. In legal proceedings after the marriage broke down, the applicant (the appellant herein) sought an order, inter alia: "Declaring the marriage in terms of Swazi law and custom between Mathews Bantubantu Mndzebele (the deceased) and the respondent properly dissolved". When it became apparent during argument a quo that the required dissolution could not be established, a point based on the purported marriage between the deceased and the respondent being bigamous in terms of section 7(1) was sought to be raised for the applicant. The argument for the bigamy was that when the deceased, the father of the applicant, married the respondent by customary rites, the customary marriage between deceased and the mother of the applicant was still subsisting, meaning only the civil marriage of the dual marriage had been dissolved by the divorce. Levinsohn JA at para  observed: "Now the operative phrase in the [above] section is 'marry in terms of this Act'. This is defined in Section 1(2) of the Act as: 'This Act applies to all marriages intended to be solemnized after the commencement of this Act, except marriages contracted in accordance with Swazi law and custom. (Emphasis added).... In Ex parte Ginindza reported at 361 of the Swaziland Law Reports 1979 - 1981, Nathan CJ said the following at page 362: 'In my view at the risk of restating the position, the second marriage must be marriage under or in terms of the Act; and a marriage by Swazi law and custom does not qualify as such ...’” The learned Judge of Appeal continued under para  to reveal and conclude his train of thinking in these words: "It seems to me that even on the assumption that we were entitled to consider the point (which I am firmly of the view that we are not), prima facie, the applicant has difficulty in pursuing it". By the concluding statement I understand the learned Justice of Appeal to be saying that the marriage at issue being a marriage not in terms of the Act did not produce the offence of bigamy. As already intimated, our position is to the opposite: we stand with Sir Philip Pike in Joseph Jabulane Dube v R, supra.
 Dr Thandabantu Nhlapo in his book, MARRIAGE and DIVORCE in Swazi Law and Custom, (1992),also delves on section 7 of the Act. Nhlapo's views on section 7(1) would seem to some extent to follow Sir Philip Pike's conclusion. Nhlapo writes at p31: "... The marriage by Swazi law and custom is fully recognized and is as valid as the civil marriage". Nhlapo cites, for his authority, among others, the case of Dladla v Dlamini (CA) at p.l6F where it is written: "In Swaziland a marriage according to Swazi law and custom is valid. So also is a civil rites marriage entered into in accordance with the Marriage Act 47 of 1964, previously Cap 133,..." The learned author continues on same page: "Two popular misconceptions deserve particular mention. The first is the idea that the order in which the marriages follow each other is significant. According to this thinking, a man is barred from marrying another wife only if his first marriage was under the Act. Otherwise it is viewed as perfectly legitimate for a man to marry as many wives as he chooses and then 'close his options', as it were, by marrying the last one under the Act". Nhlapo calls this notion a 'misconception' and I agree, in line with Sir Philip Pike in Joseph Jabulane Dube's case (HC). Nhlapo (p 33) correctly says Nathan CJs criticism of Sir Philip Pike is the 'more technically correct' view of section 7(1), and goes on to say "his Lordship missed the point", by which statement I understand Nhlapo to be even if prima facie Nathan CJ may appear correct effectively the learned Judge was wrong. To that extent, Nhlapo would seem to side with Sir Philip Pike in that the order of the marriages is irrelevant under section 7(1).
 The principle is simple: A Swazi husband should embrace either polygyny or monogamy. Regardless of the order, customary marriage plus civil marriage adds to monogamy. The reason is that monogamy is the legal common denominator. That is, whilst customary law allows more than one wife, it is not illegal to have only one wife, whereas the Act does not permit more than one wife. That is one of the restrictions envisaged in terms of the Long Title to the Act which reads: “An Act to provide for restrictions on the right to marry, the consequences of marriage, the solemnization of marriage and matters incidental thereto”. Item 25 of the marriage certificate makes a lot of sense where the couple determine the legal system to regulate the consequences of their marriage. The choice is open: even where the marriage is civil technically the consequences can still be regulated by customary law, possibly subject to one concession, that is, conjugal fidelity to monogamy. Customary monogamy (to coin an expression) may not be legally sanctioned but is not alien to customary marriage and many a Swazi, married by custom, lead monogamous lives as a matter of fact and law. I would agree with Dr. Nhlapo where he says, at p 34: "The fact that a multiplicity of marriages to different people is allowed under Swazi law and custom is irrelevant to the issue of whether the same should be allowable under the Act. Surely, the Act was passed for the convenience of people who, whatever their motives, choose to enter into a monogamous relationship and to subject themselves voluntarily to the consequences of that type of marriage”. In para , of Maziya v Bhiya Mamba J refers to Nhlapo, at p39, where the author says "The position thus remains, unfortunately, where it always was. Existing authority is to the effect that the marriages are equal and that they exist alongside each other. There is not a single guideline as to their respective weighting, or as to what rules must be followed in cases of conflict between the consequences of one and the consequences of the other".
 Notwithstanding Nhlapo’s foregoing statement of life in a dual system of marriage being without a “single guideline”, practically the situation is not so disorderly. There is no need for any ‘respective weighting’ as such in the event of a conflict. All that need be done in case of conflict is to categorise the issue as customary or civil and apply the appropriate system of law. In general, the consequences of marriage should not be too difficult to determine as civil or customary. Should any respective weighting be necessary, our judges, in their inexhaustible storehouse of knowledge, would take no time to find the correct or working solution by giving effect to the dominant feature of the problem as might be informed by policy and the couple’s life-style. But this would be so if item 25 of the marriage certificate had not been actioned. This would possibly be the case where the marriages have not been registered in terms of the Births, Marriages and Deaths Registration Act, 1983. There is thus no need to lose hope in the operation of the dual marriage, subject always to the implied or even express surrender by the husband of his customary right to more than one wife. This surrender if not expressed must be presumed to operate from beginning of the dual marriage. A dual marriage which does not accommodate this surrender would not make much sense in practice.
 In para , of Maziya v Bhiya, Mamba J rejects the idea of a dual marriage in which the two marriages sit side by side but with the civil rites apparently overriding. This override is not necessarily based on any superiority of the civil rites marriage but on practical considerations as I have already intimated. Mamba J is correct of course where he says the proviso to section 7 (1) of the Act "governs potentially polygamous marriages". This then clearly negates the view expressed by Nathan CJ that there could be another customary marriage to another woman by the husband already married under the Act without committing bigamy. The idea of marrying or remarrying under the Act and going on to take another wife or wives by custom is not what section 7(1) means or implies. It is trite that not all customary marriages are potentially polygynous. Where the husband already married by custom to one wife, marries another wife also by custom, the first otherwise potentially polygynous marriage is affected and changed by the second marriage to become actually polygynous. Thus the dual marriage otherwise held together under the principle of monogamy is effectively shuttered and rendered polygynous by the appearance of another customary wife in the family. That is, the potentially polygynous marriage remains practically monogamous until an event happens to trigger and crystallise the reality of polygyny. A situation of actual polygyny is directly at odds with monogamy. That the second wife enters the family not in terms of the Act is not an answer to the challenge of bigamy in the dual marriage where, after the civil marriage, the husband goes on to marry another wife or wives by custom.
 Mamba J in para  of Maziya v Bhiya states: “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... Monogamy can never be polygamy. This would lead to an anomaly or absurdity ...." The barefaced reality, however, is that couples do marry under both systems; and many of these couples live happily ever after. The dual marriage is not a fiction or rare phenomenon and section 7 of the Act sanctions such an arrangement. The fact of the double or dual marriage cannot be doubted: it is a legal given. What may be in doubt are the consequences of such a marriage since section 7 is silent on this aspect. But as I have already intimated the courts would not fail to produce a viable answer. Mamba J's stance on this aspect of the decision would seem to be that one of the marriages is absorbed and swallowed up or superseded. Mamba J is of course correct where he says “monogamy can never be polygamy”. To be sure, the dual marriage is not polygynous: it would, however, be polygynous if the proposition of Nathan CJ were accepted as the governing principle.
 The parties in Maziya v Bhiya, having contracted a dual marriage divorced in 2002. In para  of that case Mamba J observed: “… it was only the civil rites marriage that was dissolved. The parties remained married under Swazi law and custom”, and went on to opine: “This I believe is not what the legislature intended to achieve in enacting the proviso to section 7 of the Act. The reverse situation whereby the customary marriage is dissolved, is equally anomalous and absurd”, and “equally unfathomable” is the situation where “a man with ten wives may be married to ten of them under customary law and be married to one of them under both regimes if he decides to take advantage of the relevant proviso herein”, Mamba J says and expresses his ultimate view as follows, at para : “Where a couple married under Swazi law and custom decides to remarry one another in terms of the Act, the conversion is total and irrevocable. The parties must be taken to have intended or to have decided to change the law regime governing their marriage. I think this is the most logical conclusion to be drawn from this”. Thus according to the learned Justice Mamba: “Once the couple remarry under the Act, it converts the marriage into a monogamous one governed in terms of civil rites” (para ).
 It must be clear then that Justice Mamba finds the notion of a double or dual marriage untenable and a legal impracticability. The learned Judge finds it absurd that a couple could divorce and still remain married. But remembering that the couple went through two phases of marriage under different legal regimes, the learned Judge need not find all this too absurd or anomalous. And on the other hand many a Swazi couple in a dual marriage situation would be alarmed to hear that in fact and in law their marriage was a simple civil rites marriage and a dispute involving lobola would be outside the jurisdiction of the Swazi courts. In casu, we have exactly that situation where the couple are partly divorced and partly married. That is the Swazi genius. So the conversion, if at all, cannot be 'total and irrevocable'. If the Swazi courts would still exercise jurisdiction in the case of lobola, for example, the conversion can only be partial, whatever that means in practical terms. Still, the conversion theory does not answer to item 25 in the marriage certificate. Pertinently, why give an option or choice which in practice is not an option or choice at all: that is, if item 25 must always be answered in terms of the 'civil law', why bother to ask. Surely, if 'conversion' is the answer to the problem found or felt in a dual marriage, this theory of conversion must still be developed.
 Learned Justice Mamba seeks to reinforce his theory of conversion based on the first married being the customary by asserting that if the first marriage is in fact the civil one, then the second in the dual marriage, being the customary must be considered a 'nullity', it not being sanctioned by the terms of section 7 of the Act. To me the conversion theory is somewhat one-sided and skewed in favour of the situation which has for a long time ruled supreme in Southern Africa, that is, the superiority of the civil over the customary marriage. The unbalanced response to section 7 is in my view due to proponents concentrating too much on the proviso and 'remarriage' of the parties instead of taking the provision as a whole. In that case, the starting point must be a consideration of the fact that the Marriage Act, 1964 does not define ‘marriage’ which must then still be understood in terms of the common law, itself a form of customary law. However, the Act makes both the customary and civil legally equal marriages. Section 7(1) opens by reference to persons "already legally married". Thus the subsection together with the proviso thereto is concerned with persons who are 'legally married' already. And those persons could be persons married by civil or by customary rites. The subsection does not discriminate between the two types of marriages. The subsection then substantively says none of those persons "may marry [another person] in terms of this Act during the subsistence of the [currently existing] marriage" since that would be bigamous. So why should the conversion then discriminate between the two?
36] The proviso to section 7(1) does not stand alone; otherwise it must be interpreted as a 'subsection' by itself. From a drafting point of view, the first part of subsection (1) ends just before the word 'and' in the middle of the provision. The second part of the subsection begins after the conjunctive 'and'; the latter could stand alone as another subsection of section 7 to read: "Any person who purports to enter into such a marriage shall be deemed to have committed the offence of bigamy". It is clear then that where the subsection 'deems' the commission of the offence of bigamy it contemplates a second marriage with another person other than the person(s) in the 'previous' marriage. That is what the definition of 'bigamy' implies. Thus a person who is already legally married to someone else may not marry another person in terms of the Act as that would constitute bigamy. This is so irrespective of whether the first marriage was by custom or civil rites. To be sure and out of abundance of caution, section 7(2), in my view supports the foregoing position. The subsection provides that a person who is already married under the Act is guilty of bigamy if he/she should purport to marry another person in terms of any legally recognized system of marriage. Thus if subsection (1) missed, subsection (2) would be unlikely to miss as well in the case of a person already married under the Act but purports to enter into another lawful marriage with another person other than the person of the first marriage.(My emphasis).
 The notion that there is a different outcome depending on whether the first marriage is by custom or by civil rites is not, with respect, supported by the wording or fair interpretation of section 7(1). The proviso is permissive and not prescriptive. It allows persons already married by customary rites to remarry in terms of the Act if they so please. The reverse or flipside of this permission is that persons already married by civil rites may (and often do in this country) remarry by customary rites. There is no need in this Act to specifically also provide for a remarriage by custom of persons already married by civil rites; that would be taken care of by customary law and practice. If the proviso was a deliberate ploy to encourage persons married by custom to convert to civil rites marriage by remarrying each other in terms of the Act, then it certainly has not succeeded by the look of things. The proviso is really nothing but a friendly advice for whom it may concern. There is no conversion of the existing marriage demanded by the terms of the proviso, nor by any consequential difficulties.
 It should further be noted that in terms of the Registration of Births, Marriages and Deaths Act 1983 it is a requirement that a civil marriage or customary marriage taking place in Swaziland should be registered. The Act does not seem to permit an option for a person to choose to register one or the other in the case of dual marriage. The result is that a couple under a dual marital relationship is expected to have two marriage certificates. Were the theory of marital conversion correct the law would have provided for it and not remained silent as presently is the situation. As a last word: the deciding factor under section 7(1) is not whether the second marriage is "in terms of the Act"; the deciding factor is whether the person purporting to marry under or outside the Act is a person already legally married to someone else. According to the decision of Sir Philip Pike (supra) the subsection must operate backwards and forwards, as it were, hitting with bigamy any person, already legally married, purporting to perform another lawful marriage with someone else in terms of the Act or under customary law. Such an arrangement, in the true spirit of marital dualism, allows both the Swazi courts and common law courts to exercise jurisdiction in their respective spheres of the marriage. The position might be somewhat different where there has been an express choice of law applicable in terms of item 25 of the civil rites certificate of marriage.
 With respect to what has happened in the marital life of the parties in casu as a result of the alleged dissolution of the customary marriage between the parties, it is my considered opinion that the other civil marriage remains undisturbed until also dissolved in terms of the law. In this respect I am in full agreement with the decision of Smit JA in Dladla v Dlamini (CA) where the learned Judge of Appeal considered that in the dual marriage situation the dissolution of the civil rites marriage left the customary rites marriage basically intact (p l7A). In other words, the dissolution of one of the pair of marriages in the dual arrangement - in the present case, the customary - does not have the effect of terminating for all purposes the marital relationship between the parties pending the dissolution of the other limb of the marriage relationship. That seems to me to be the blessing or curse of the dual marriage; there is double protection for either party in the marriage. To adapt the statement of the learned Nathan CJ in Dladla v Dlamini case, at p 14F: In my opinion there was, and still subject, a valid marriage by civil rites. The validity and subsistence of that marriage was in no way affected by the decree of dissolution of the customary marriage which was granted by the High Court. That decree of dissolution was limited in its operation to the marriage contracted by customary rites and has no effect upon a marriage by civil rites. Hence the continuing subsistence of the civil rites marriage the dissolution of which is said to be pending determination before the Magistrate's court in Manzini.
 The learned Nkosi J, in the High Court, ruled that the matter was pending before the Magistrate's court in Manzini, in respect of the civil rites limb of the dual marriage. It is true that the magistrate's court would have no jurisdiction in respect of any customary rites aspect of the case which may still be outstanding. That would be a matter for the Swazi courts. And for all that I have said above, be it obiter dicta or not, I have no reason to differ from Nkosi J on the matter being lis alibi pendens. None of the two forms of marriages has been absorbed, invalidated or in any way rendered nugatory by the other form of marriage whether celebrated first or later. The dissolution of the customary law marriage between the parties in terms of the High Court case No. 1096 of 2014 dated 15th September 2014 only dissolved the customary law marriage between the parties. The civil rites marriage between the parties continues to subsist until duly dissolved.
 In the result, the following order is made:
1. The appeal is dismissed;
2. The order of Nkosi J dismissing the application with costs in the cause is upheld;
3. The parties shall bear their own costs.