Netshituka v Netshituka

Masewa Joseph Netshituka (the deceased) was married to Tshinakaho Netshituka by customary rites on 1 December 1956, which marriage was not registered. The deceased was also married by customary rites to three other women, namely Masindi, Martha, and Diana Netshituka, all unregistered. Several children were born of these unions, including the appellant (daughter of the deceased and Masindi). The deceased married Martha Mosele Netshituka by civil rites but later divorced her on 5 July 1984. On 17 January 1997, the deceased contracted a civil marriage in community of property with Joyce Munyadizwa Netshituka (the first respondent). Throughout all these marriages, the deceased's customary law wives (Tshinakaho and Diana) continued living with him and maintaining their relationships as customary law wives. The deceased executed his last will and testament on 20 November 2007, appointing the first respondent as executrix of his estate. He died on 4 January 2008. The appellant and other family members then challenged both the validity of the civil marriage and the will.

• Whether a civil marriage contracted between a partner to a subsisting customary union and another person is valid under section 22 of the Black Administration Act 38 of 1927, as amended by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988
• What is the effect of a civil marriage on a pre-existing customary union under the Black Administration Act
• Whether customary unions that were allegedly terminated by a subsequent civil marriage are revived after the civil marriage is dissolved by divorce
• Whether the deceased had the mental capacity to execute a valid will on 20 November 2007
• Whether certain defects in the will (bequeathing property not owned, vagueness, disposing of only half-share) rendered the will invalid

1. The appeal is upheld in part. 2. That part of the order of the court below dismissing the application to declare invalid the marriage between the deceased and the first respondent is set aside and substituted with: 'The marriage contracted between the first respondent and the deceased on 17 January 1997 is declared null and void.' 3. The costs order made by the court below is set aside. 4. The costs of the appeal and the costs of the proceedings in the court below are to be paid by the third respondent (the Estate). 5. The appeal is otherwise dismissed.

1. Under section 22(1) and (2) of the Black Administration Act 38 of 1927, as amended by the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, no person who is a partner in a subsisting customary union is competent to contract a civil marriage with another person during the subsistence of that customary union (except with the same partner, provided the man has no other subsisting customary unions). 2. A civil marriage contracted in contravention of section 22(2) - that is, where a man who is a partner in existing customary unions with one or more women marries another woman by civil rites - is null and void ab initio. 3. Where a civil marriage may have terminated pre-existing customary unions (following the principle in Nkambula v Linda), those customary unions can be revived after the dissolution of the civil marriage by divorce if the parties' conduct demonstrates their intention to continue as partners in customary unions. This is particularly so where the customary law wives never left the husband and continued their relationships and roles throughout. 4. In customary law, desertion does not automatically dissolve a customary union; a husband can 'phuthuma' (fetch) his wife after any length of absence, and a wife can return and resume her status. The intention of the parties, as evidenced by their conduct, is determinative.

The court made several non-binding observations: 1. Nothing would prevent a customary law wife who left her husband due to his civil marriage from returning to him if she was prepared to do so, and no fresh lobola negotiations would be required because customary law does not recognize dissolution of union by mere desertion. The husband might be called upon to pay a penalty beast. 2. The court noted that even if a testator purports to bequeath property of which he is not the owner, this would not render the will invalid, nor would it necessarily indicate mental incapacity. 3. Similarly, alleged vagueness in certain provisions of a will would not necessarily render the entire will invalid. 4. The court observed that the costs should be paid from the estate because the appellant was only partially successful and the respondents were neither unreasonable nor frivolous in opposing the relief sought.

This case is significant for clarifying the effect of civil marriages on pre-existing customary unions under South African customary law prior to the Recognition of Customary Marriages Act. It confirms that after the 1988 amendments to section 22 of the Black Administration Act, a person who is a partner in a subsisting customary union is not competent to contract a civil marriage with another person - such a marriage is void ab initio, not merely voidable. The judgment also addresses the revival of customary unions after the dissolution of an intervening civil marriage, holding that where customary law spouses continued their relationships and conduct indicated an intention to remain partners in customary unions, those unions would be recognized as continuing or revived. The case demonstrates the courts' approach to determining mental capacity for testamentary purposes, requiring clear medical evidence of incapacity at the relevant time. It is an important precedent for understanding the interaction between civil and customary marriages in the South African legal landscape during the transitional period before full recognition of customary marriages.