Netshituka v Netshituka

The deceased, Masewa Joseph Netshituka, entered into several customary marriages with different women from 1956 onwards, none of which were registered. While those customary unions subsisted, he previously concluded a civil marriage with one Martha, which later ended in divorce. In 1997, while still cohabiting with and maintaining relationships akin to customary unions with at least two customary wives, he contracted a civil marriage in community of property with the first respondent, Joyce Munyadizwa Netshituka. After his death in 2008, the appellant (his daughter from a customary union) challenged the validity of the 1997 civil marriage and the deceased’s will executed in 2007, alleging statutory invalidity of the marriage and lack of testamentary capacity.

The appeal was upheld in part. The civil marriage between the deceased and the first respondent concluded on 17 January 1997 was declared null and void. The challenge to the validity of the will was dismissed. Costs orders of the High Court were set aside, and the costs of the appeal and proceedings were ordered to be paid from the estate (by the third respondent).

The case clarified the effect of section 22 of the Black Administration Act (as amended) on the validity of civil marriages concluded during subsisting customary unions, confirming that such civil marriages were nullities. It also affirmed that customary unions may subsist or revive based on the parties’ conduct, and reinforced principles governing testamentary capacity in South African succession law.