PVL2601/102/1/2022

Tutorial Letter 102/1/2022

Family Law
PVL2601

Semester 1

Private Law

IMPORTANT INFORMATION

This tutorial letter contains important information on new developments in

family law not contained in your textbook or study guide.

Open Rubric 1
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CONTENTS

1. INTRODUCTION ............................................................................................................. 3
2. NEW DEVELOPMENTS IN FAMILY LAW ...................................................................... 3
2.1. Putative marriages .......................................................................................................... 3
2.2. Enforcement of a maintenance order .............................................................................. 3
2.3. Default matrimonial property system for civil marriages .................................................. 3
2.4. Non-patrimonial damages received before a marriage in community of property ........... 4
2.5. Purchase of immovable property under a contract of sale defined in the Alienation of
Land Act by parties married in community of property .................................................... 4
2.6. Waiver of the right to maintenance in an antenuptial contract ......................................... 4
2.7. Date on which the value of the accrual in each spouse’s estate is to be determined ...... 5
2.8. Onus relating to assets excluded from the accrual .......................................................... 5
2.9. Right to future living annuity payments constitutes asset in spouse's estate and is
subject to accrual ............................................................................................................ 5
2.10. Exclusion from the accrual of assets not owned at the time of the marriage ................... 5
2.11. Automatic inclusion of a spouse’s pension interest for purposes of determining the
proprietary consequences of divorce .............................................................................. 6
2.12. Pension fund includes both pension and provident funds for purposes of determining
the proprietary consequences of divorce......................................................................... 6
2.13. Prerequisites for a redistribution order in terms of the Divorce Act ................................. 6
2.14. Taking into account the assets of an inter vivos trust for purposes of a redistribution
order or the accrual system ............................................................................................. 6
2.15. Termination of post-divorce maintenance for a spouse ................................................... 7
2.16. The interests of children of divorcing parents .................................................................. 7
2.17. Legal requirements for a customary marriage ................................................................. 8
2.18. Registration of customary marriages ............................................................................... 8
2.19. Patrimonial consequences of polygynous customary marriages ..................................... 8
2.20. Patrimonial consequences of monogamous customary marriages ................................. 9
2.21 Recognition of Muslim marriages .................................................................................... 9
2.22. Judicial recognition of heterosexual life partnerships .................................................... 10
2.23. The Constitution and same-sex life partnerships .......................................................... 11
2.24. Moderate and reasonable corporal punishment of a child is unconstitutional ............... 11
2.25. Prescribed cases ........................................................................................................... 11
3. CONCLUSION .............................................................................................................. 11

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1. INTRODUCTION
Dear Student

This tutorial letter refers you to recent developments in family law that affect the content of your
prescribed study material. You have to study these developments as they are set out below.

2. NEW DEVELOPMENTS IN FAMILY LAW

2.1. Putative marriages

On page 40, the prescribed textbook discusses Zulu v Zulu 2008 (4) SA 12 (D) where the
Kwazulu-Natal Division of the High Court, Durban held that a putative marriage cannot be in
community of property if either of the parties is a spouse in an existing civil marriage in community
of property. In MS v Executor, Estate Late NS 2021 (6) SA 483 (FB) the Free State Division of the
High Court declined to follow Zulu v Zulu. The Free State High Court held that the existence of a
valid marriage in community of property does not preclude community of property in a subsequent
putative marriage. In MS, the deceased had married the applicant while he was still married in
community of property to another woman. As the applicant only learnt of the pre-existing marriage
after the deceased’s death, her marriage to the deceased was putative. The court held that the
decision in Zulu goes against the reason for the existence of the putative marriage doctrine,
namely protecting the bona fide party to the marriage. It held that “it would be unjust, unfair and
contrary to the interests of justice” (para 18) to deny the applicant a half-share of the joint estate
that was amassed while she and the deceased were married to each other. Affording the applicant
a half-share of the joint estate that was amassed while she and the deceased were the parties to a
putative marriage would also comply with constitutional norms and values and promote the spirit,
purport and objects of the Bill of Rights by not depriving her of property.

2.2. Enforcement of a maintenance order

On page 52, the prescribed textbook mentions enforcement of a maintenance order. Please note
the Supreme Court of Appeal’s decision in Arcus v Arcus [2022] 1 All SA 626 (SCA). The court
held that obligations arising from maintenance orders are not claims or disputes which are yet to
be determined and are therefore not subject to a three-year prescription period. They are judgment
debts and, consequently, prescribe after 30 years.

2.3. Default matrimonial property system for civil marriages

In respect of paragraph 2 of study unit 4 (cases in which community of property does not arise),
please note the Constitutional Court’s decision in Sithole v Sithole 2021 (5) SA 34 (CC). Prior to
the decision in Sithole, Black persons who had entered into a civil marriage before 2 December
1988 were automatically married out of community of property by virtue of section 22(6) of the
now-repealed Black Administration Act. If the spouses wanted to be married in community of
property, they jointly had to make a written declaration before a magistrate, commissioner or
marriage officer, within one month before the marriage, that they wished to marry in community of
property. This default position was the opposite of the default position which applied in all civil
marriages between white, coloured and Asian persons and in civil marriages Black persons
concluded on or after 2 December 1988. In terms of section 21(2)(a) of the Matrimonial Property
Act, Black spouses to whom the different default position applied, could enter into a notarial
contract which incorporated the accrual system into their marriage out of community of property. In
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Sithole, the Constitutional Court held that section 21(2)(a) of the Matrimonial Property Act
perpetuated the discriminatory effect of section 22(6) of the Black Administration Act because
it “[i]mposed a duty on Black couples who wanted their matrimonial regimes to be similar to those
of the other racial groups, to embark on certain laborious, complicated steps to enjoy equality with
other races” (para 24). The court declared section 21(2)(a) of the Matrimonial Property Act
unconstitutional and invalid. It further abolished the different default position that operated in civil
marriages Black persons concluded before 2 December 1988 by declaring that the same default
matrimonial property system operates in all civil marriages. It declared all marriages of black
persons that are out of community of property and were concluded under section 22(6) of the
Black Administration Act to be marriages in community of property, unless the spouses opt to
remain married out of community of property. The court further ordered that from the date of the
judgment, which is 14 April 2021, chapter 3 of the Matrimonial Property Act will apply to all
marriages that have been converted to marriages in community of property.

2.4. Non-patrimonial damages received before a marriage in community of property

On page 65, the prescribed textbook mentions section 18(a) of the Matrimonial Property Act. This
section applies to marriages in community of property. It states that any non-patrimonial damages
a spouse recovers by reason of a delict committed against him or her do not fall into the joint
estate but become his or her separate property. In LH v ZH 2022 (1) SA 384 (SCA) the Supreme
Court of Appeal declared that non-patrimonial damages a spouse who is married in community of
property received prior to getting married, form part of the spouse’s joint estate, and are not
excluded in terms of section 18(a) of the Matrimonial Property Act.

2.5. Purchase of immovable property under a contract of sale defined in the Alienation of
Land Act by parties married in community of property

In paragraph 5.3 of study unit 4 (the variable consequences of a civil marriage – marriage in
community of property), the acts for which both spouses’ consent must be obtained under sections
15(2), 15(3) and 17(1) of the Matrimonial Property Act are discussed. Section 15(2)(g) of the Act
requires written consent by both spouses, attested by two competent witnesses, in respect of each
transaction separately for the purchasing of immovable property under a contract of sale as
defined in the Alienation of Land Act. The Alienation of Land Act defines a contract as a deed of
alienation where the purchase price is payable in more than two instalments over a period of more
than one year. If the purchase price is paid by way of a single amount, the definition does not
apply. In Terry v Solfafa 2020 (1) SA 299 (FB) only one of the spouses in a marriage in community
of property signed a contract to buy immovable property. The purchase price was to be financed
by way of a bank loan that was to be secured by a mortgage bond over the property. Before the
sale could be completed, the seller sought to withdraw from the contract inter alia on the ground
that both spouses had had to sign the contract to buy the property. The court rejected this
argument. It held that the decision in Govender v Maitin 2008 (6) SA 64 (D) that section 15(2)(g) of
the Matrimonial Property Act applies to all contracts to sell immovable property was wrong. It
found that the other spouse’s signature was not required in the present case, because the bank
would have paid the purchase price to the seller in a single amount – as is the norm when
immovable property is bought with a bank loan secured by a mortgage bond. As the purchase
price would not have been paid to the seller by way of instalments, the contract did not fall within
the ambit of the Alienation of Land Act and the joint consent requirement in section 15(2)(g) of the
Matrimonial Property Act did not apply to it.

2.6. Waiver of the right to maintenance in an antenuptial contract

With regard to the contents of an antenuptial contract (discussed in paragraph 1.4(a) of study unit
5 (the variable consequences of a civil marriage – marriage out of community of property)), please

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note the decision in ST v CT 2018 (5) SA 479 (SCA). In this case, a very wealthy husband and his
much less wealthy wife were getting divorced. The husband alleged that the wife was not entitled
to maintenance after divorce, because the parties had entered into an antenuptial contract in
which they had, inter alia, agreed that the wife would never have a maintenance claim against the
husband – not during the marriage, and also not after divorce. The Supreme Court of Appeal held
that a clause in an antenuptial contract providing that one party waives his or her right to claim
maintenance during the marriage and upon dissolution of the marriage is against public policy and
unenforceable.

2.7. Date on which the value of the accrual in each spouse’s estate is to be determined

For interest’s sake, please note that the Supreme Court of Appeal decision, Brookstein v
Brookstein, referred to in paragraph 4.4 of study unit 5 (the variable consequences of a civil
marriage – marriage out of community of property) and paragraph 6 of study unit 11
(Redistribution of assets), has been reported as AB v JB 2016 (5) SA 211 (SCA).

2.8. Onus relating to assets excluded from the accrual

In point (3) of paragraph 4.4 of study unit 5 (the variable consequences of a civil marriage –
marriage out of community of property) reference is made to assets that are excluded from the
accrual. Please note that in ST v CT 2018 (5) SA 479 (SCA) (already referred to under 2.7 above)
the Supreme Court of Appeal held that a spouse who alleges that an asset is excluded from the
accrual in his or her estate must prove that the particular asset is in fact excluded; he or she
cannot simply allege that the asset is excluded and then expect the other spouse to prove that the
asset is not excluded.

2.9. Right to future living annuity payments constitutes asset in spouse's estate and is
subject to accrual

In point (3) of paragraph 4.4 of study unit 5 (the variable consequences of a civil marriage –
marriage out of community of property) reference is made to assets that are excluded from the
accrual. Note that in CM v EK [2020] 3 All SA 1 (SCA) the Supreme Court of Appeal confirmed
that a married annuitant's right to future annuity payments from a living annuity is an asset which
can be valued and included in his or her accrual upon divorce.

2.10. Exclusion from the accrual of assets not owned at the time of the marriage

In respect of the exclusion of assets from the accrual (para 4.4 of study unit 5 (the variable
consequences of a civil marriage – marriage out of community of property)) also note BF v RF
2019 (4) SA 145 (GJ), where the court held that an asset that a spouse does not yet own at the
time of the marriage cannot be excluded from the accrual in the spouse’s estate. In this case, the
spouses’ antenuptial contract excluded the husband’s shares and loan accounts in two companies
from the accrual in his estate. When the spouses married, the husband owned part of the shares
in these companies and had loan accounts with a credit balance in them. At the time of their
divorce, he owned all the shares in the companies and the credit balance in his loan accounts had
increased. He alleged that all the shares and the credit amounts in the loan accounts were
excluded from the accrual in his estate, while his wife contended that only the shares he owned
when they married were excluded and that the credit amounts in the loan accounts were capped at
the date of their marriage. The court agreed with wife’s view. It held that, it is “fundamentally
incompatible with the accrual regime that assets acquired after the commencement [of the
marriage] can be excluded in anticipation of [their] acquisition” (para 20).

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2.11. Automatic inclusion of a spouse’s pension interest for purposes of determining the
proprietary consequences of divorce

For purposes of paragraph 3.2(a) of study unit 9 (Patrimonial consequences of divorce – general),
take note of the Supreme Court of Appeal’s decision, GN v JN 2017 (1) SA 342 (SCA) (also
reported as Ndaba v Ndaba [2017] 1 All SA 33 (SCA)), where the court held that because section
7(7)(a) of the Divorce Act unequivocally states that a pension interest is deemed to be part of a
spouse’s assets when determining the patrimonial benefits to which divorcing spouses may be
entitled, the value of the pension interest is included in the joint estate even if the divorce order
does not refer to the pension interest. Therefore, the value is included regardless of whether or not
the court makes an order compelling the member’s pension fund to pay part of the pension interest
directly to the non-member spouse in terms of section 7(8) of the Divorce Act.

2.12. Pension fund includes both pension and provident funds for purposes of determining
the proprietary consequences of divorce

For purposes of paragraph 3.2(b) of study unit 9 (Patrimonial consequences of divorce – meaning
and calculation of “pension interest”), take note that in MN v FN 2020 (2) SA 410 (SCA) the
Supreme Court of Appeal found that a reference in a settlement agreement to a right to share in
the interest in a pension fund includes an interest in both pension and provident funds.

2.13. Prerequisites for a redistribution order in terms of the Divorce Act

In respect of paragraph 2 of study unit 11 (Redistribution of assets) please note that in Holomisa v
Holomisa 2019 (2) BCLR 247 (CC) the Constitutional Court extended the judicial discretion to
order redistribution of assets on divorce in terms of section 7(3) of the Divorce Act to marriages
concluded out of community of property in terms of (the now-repealed) section 39 of the Transkei
Marriage Act. Like spouses who married in terms of the Black Administration Act, spouses who
married in terms of section 39 of the Transkei Marriage Act were automatically married subject to
complete separation of property. The Constitutional Court declared section 7(3) of the Divorce Act
unconstitutional to the extent that it excludes spouses married out of community of property in
terms of section 39 of the Transkei Marriage Act. It suspended the declaration of invalidity for 24
months to afford Parliament an opportunity to correct the unconstitutionality. During the period of
suspension section 7(3) of the Divorce Act is to be read as if it includes marriages concluded in
terms of section 39 of the Transkei Marriage Act.

Also note that in President, RSA v Women’s Legal Centre Trust 2021 (2) SA 381 (SCA) the
Supreme Court of Appeal declared that section 7(3) of the Divorce Act is inconsistent with the
Constitution in that it fails to provide for the redistribution of assets, on the dissolution of a Muslim
marriage, when such redistribution would be just. The court declared that until an Act recognising
Muslim law is promulgated or until changes are made to the current Act, section 7(3) will apply to
spouses who have a pending divorce or whose marriage has been dissolved by divorce without
the consequences of the divorce having been finalised at the date of the court’s order (ie by 18
December 2020).

2.14. Taking into account the assets of an inter vivos trust for purposes of a redistribution
order or the accrual system

For purposes of paragraph 5 of study unit 11 (Redistribution of assets) note the decision of the
Supreme Court of Appeal in REM v VM 2017 (3) SA 371 (SCA) (also reported as Mills v Mills
[2017] 2 All SA 364 (SCA)). In this case the court, once again, dealt with the controversial issue of
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whether trust assets can be taken into account for purposes of calculating the accrual in a
spouse’s estate upon divorce. The spouses were married subject to the accrual system. Their
antenuptial contract excluded a number of assets from the accrual in the husband’s estate. These
assets included beneficial interests in two specified trusts but did not deal with other trusts. The
wife contended that the other trusts were alter ego trusts and that their assets should be included
in her husband’s estate for purposes of calculating the accrual. The Supreme Court of Appeal held
that trust assets can be included if it is proved that a spouse transferred personal assets to the
trusts and dealt with those assets as if they were trust assets “with the fraudulent or dishonest
purpose of avoiding his obligation to properly account ... for the accrual of his estate and thereby
[to] evade payment of what was due to [his wife] ... in accordance with her accrual claim” (para
20). However, in the present case, the wife did not succeed in proving fraud, dishonesty or
improper purpose on the part of her husband. Consequently, her claim for inclusion of the trust
assets failed. Importantly, the Supreme Court of Appeal reversed its earlier finding in WT v KT
2015 (3) SA 574 (SCA) that a spouse who is neither a trust beneficiary nor a third party who has
transacted with the trust does not have standing to challenge the management of a trust by the
other spouse. In REM, the Supreme Court of Appeal held that there was “no basis in logic or
principle for a distinction to be drawn between legal standing to advance a claim to pierce the veil
of a trust, by a third party who transacts with the trust on the one hand, and a spouse who seeks to
advance a patrimonial claim, on the other” (ibid). Breach of the trustee’s fiduciary duties is not the
determining factor in either instance. Instead, the issue is whether the trustee’s unconscionable
abuse of the trust “through fraud, dishonesty or an improper purpose” prejudiced the enforcement
of an obligation towards a third party or a spouse (ibid).

2.15. Termination of post-divorce maintenance for a spouse

In the context of paragraph 4 of study unit 12 (Maintenance of a spouse after divorce), the decision of
the Supreme Court of Appeal in CB v HB 2021 (6) SA 332 (SCA) should be noted. The case mainly
concerns the interpretation of the word “remarriage” in a settlement agreement which was made
an order of court when the parties divorced. The agreement provided that the husband would pay
maintenance to the wife until her death or remarriage. After the divorce, the wife cohabited with
another man. A few months after the cohabitation started, a minister conducted a ceremony to
bless the cohabitation so that the couple would not be “living in sin”. When the husband found out
about the ceremony, he stopped paying maintenance, as he argued that the ceremony qualified as
a “remarriage” which released him from his duty to maintain his wife. The wife sued to enforce the
payment of maintenance. The High Court found in her favour. It held that the blessing ceremony
did not constitute a remarriage. The husband unsuccessfully appealed to the Supreme Court of
Appeal. The Supreme Court of Appeal agreed with the court a quo that “remarriage” refers to a
valid marriage. As the blessing ceremony did not give rise to a valid marriage, the husband
remained liable for the maintenance agreed on in the settlement agreement.

2.16. The interests of children of divorcing parents

In respect of paragraph 14.3 of study unit 14 (the Mediation in Certain Divorce Matters Act) note
that section 4 of the Mediation in Certain Divorce Matters Act, which regulates the powers and
duties of Family Advocates, was declared unconstitutional and invalid in ST v BN case no
2020/2641, GPJHC, judgment delivered 2 February 2022, because it does not make provision for
unmarried parents. In terms of section 4, the Family Advocate may institute an inquiry relating to
the minor or dependent children of married, divorcing or divorced parents, while a court order is
required to enable the Family Advocate to institute an inquiry relating to children born of unmarried
parents. The declaration of invalidity has been referred to the Constitutional Court for confirmation.
The court declared that until the Constitutional Court makes its decision, the words "of the
marriage concerned" referred to in sections 4(1)(b) and 4(2)(b) must be struck out. Accordingly, an
inquiry by the Family Advocate can be conducted without a court order first being required,
regardless of whether the children were born of married or unmarried parents.
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2.17. Legal requirements for a customary marriage

On pages 218 to 219, the prescribed textbook mentions the requirements that are set for the
validity of a customary marriage that is concluded after the coming into operation of the
Recognition of Customary Marriages Act. One of the requirements is that the marriage must be
negotiated and entered into or celebrated in accordance with customary law. A question that has
arisen in several cases is whether the handing over of the bride is required in terms of customary
law. In Mbungela v Mkabi 2020 (1) SA 41 (SCA) (also reported at [2020] 1 All SA 42 (SCA)), the
Supreme Court of Appeal held that the ceremony of handing over of the bride is not necessarily a
key determinant of a valid customary marriage. According to customary law, the purpose of the
handing over of the bride is to introduce the bride to the groom’s family and is a symbol of the
beginning of a customary marriage. However, the court held that customary law is dynamic,
continuously evolving, flexible and pragmatic, with the result that handing over of the bride can be
waived by agreement. If it is waived by agreement, the absence of handing over the bride does not
invalidate the customary marriage.

2.18. Registration of customary marriages

On page 220, the prescribed textbook states that the registration of customary marriages
concluded before the coming into operation of the Recognition of Customary Marriages Act had to
occur by 31 December 2010. This date has been extended until 30 June 2024 (GN 1045 GG
42622 of 08 August 2019).

It is further indicated that a customary marriage entered into after the coming into operation of the
Recognition of Customary Marriages Act must be registered within three months of the wedding
date or within such a longer period as the Minister prescribes in the Government Gazette. A longer
period of time has been prescribed. A marriage concluded after the coming into operation of the
Act can be registered until 30 June 2024 (GN 1045 GG 42622 of 08 August 2019).

2.19. Patrimonial consequences of polygynous customary marriages

On page 222, the prescribed textbook states that the patrimonial consequences of polygynous
customary marriages entered before the coming into operation of the Recognition of Customary
Marriages Act are regulated by customary law in terms of section 7(1) of the Act. In Ramuhovhi v
President of the Republic of South Africa 2018 (2) SA 1 (CC) the Constitutional Court declared
section 7(1) unconstitutional but suspended the declaration of invalidity for 24 months to afford
Parliament an opportunity to correct the defect giving rise to the constitutional invalidity. The
legislature responded by enacting the Recognition of Customary Marriages Amendment Act, which
came into effect on 1 June 2021. The Recognition of Customary Marriages Amendment Act
amended section 7(1) of the Recognition of Customary Marriages Act by deleting the words
“continue to be governed by customary law”. The result of this is that the patrimonial
consequences of polygynous customary marriages entered before the coming into operation of the
Recognition of Customary Marriages Act are no longer governed by customary law. Spouses now
have joint and equal ownership, management, control and exercise of rights over the marital
property. In the case of family property, the husband and all his wives must jointly exercise these
rights in the best interests of the family constituted by the husband and all the wives. In the case of
house property, the husband and the wife of each house must jointly exercise the rights relating to
the property of the house in the best interests of the particular family unit. Each spouse retains
exclusive rights of their own personal property.

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2.20. Patrimonial consequences of monogamous customary marriages

In respect of paragraph 4 of study unit 15 (the patrimonial consequences of the marriage and
control of the matrimonial property) note that the Recognition of Customary Marriages Amendment
Act also amended section 7(2) of the Recognition of Customary Marriages Act. Section 7(2) now
states a monogamous customary is in community of property and of profit and loss unless the
parties have entered into an antenuptial contract which regulates the matrimonial property regime.
The amendment was made following the decision of the Constitutional Court in Gumede v
President of the Republic of South Africa 2009 (3) SA 152 (CC), which is discussed on pages 221-
222 of the textbook.

2.21 Recognition of Muslim marriages

In study unit 16, which deals with Muslim and Hindu marriages, it is stated that Muslim marriages
have not yet received full legal recognition in South African law. This statement must be qualified
in view of the Women’s Legal Trust Case discussed below. In this case, the Supreme Court of
Appeal declared the common law definition of marriage unconstitutional in so far as it does not
recognise Muslim marriages. Pending action by the legislature, we are in the precarious position
that Muslim marriages are recognised in terms of the common law but they are not recognised in
terms of the Marriage Act unless they comply with the requirements of the Marriage Act. Other
purely religious marriages, such as Hindu marriages, are currently not recognised as a marriage in
terms of either the common law or the Marriage Act.

Some Acts and court cases have extended protection to Muslim marriages even if they are not
valid under the Marriage Act. Under paragraph 2 of study unit 16, you are instructed to draw up a
table with two columns in which you state the names of the cases that have afforded protection to
Muslim marriages and the particular recognition that has been afforded. Please note that, since
the publication of your prescribed textbook, another Constitutional Court case has extended
protection to spouses in Muslim marriages. The case is Moosa v Minister of Justice 2018 (5) SA
13 (CC). It concerns the constitutionality of section 2C(1) of the Wills Act. This section governs the
position where a descendant and a surviving spouse are beneficiaries in terms of a will and the
descendant renounces his or her inheritance. In such event, the surviving spouse inherits the
descendant’s benefit. In Moosa, the Constitutional Court declared that, to the extent that the
section excluded spouses in Muslim marriages, it was unconstitutional and invalid. The court made
a reading-in order to include spouses in de facto monogamous or polygynous Muslim marriages in
the section.

In respect of the non-recognition of Muslim marriages, the decision of the Supreme Court of
Appeal in President, RSA v Women’s Legal Centre Trust 2021 (2) SA 381 (SCA) should be noted.
The Supreme Court of Appeal declared the common law definition of marriage unconstitutional for
not providing for the recognition of Muslim marriages. As the retrospectivity of this declaration was
not limited by the court, the invalidity of the common law definition applies from the date on which
the Constitution came into operation (ie 4 February 1997). Therefore, Muslim marriages now
qualify as valid marriages in terms of the common law definition.

The Supreme Court of Appeal further declared the Marriage Act and the Divorce Act
unconstitutional as they do not make provision for Muslim marriages. The declaration of
unconstitutionality of the legislation was suspended for 24 months to enable Parliament to remedy
the defects by amending the existing legislation or passing new legislation recognising Muslim
marriages as valid marriages in South Africa. As required by section 172(2)(a) of the Constitution,
the declaration of constitutional invalidity of the legislation was referred to the Constitutional Court
for confirmation. The Marriage Act and Divorce Act therefore continue to apply pending the
decision of the Constitutional Court on whether they are invalid.
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The Supreme Court of Appeal further made an interim order applicable to all Muslim marriages
which still subsisted at the date of the order (18 December 2020) or which were terminated in
terms of Shari’a law before that date but where legal proceedings had been instituted but not
finally determined by 18 December 2020. These marriages can be dissolved by the Divorce Act
and all the provisions of the Act are applicable to them. The interim order also provides that, for
the purpose of divorce, a Muslim marriage is regarded as a marriage out of community of property
except where the parties have an agreement to the contrary. The court will therefore have to look
at the nikah (Muslim marriage contract) and any other agreement to determine whether the default
position of exclusion of community of property was amended by the spouses prior to or during their
marriage. Furthermore, section 7(3) of the Divorce Act regulating redistribution of assets shall
apply to Muslim marriages regardless of when the marriage was concluded. The position is
therefore similar to that of customary marriages concluded in terms of the Recognition of
Customary Marriages Act (see p 230 of your textbook). In terms of the interim order, a polygynous
Muslim marriage (that is where the man is married to more than one woman in terms of Shari’a
law) the court must take into account all relevant factors, including any contract or agreement, and
make an equitable order it deems just. The court will have regard to the nikah when making a
divorce order. The court can order any person to join the proceedings if they have a sufficient
interest in the matter. The court will therefore be able to join the other wives during divorce
proceedings. The court’s powers are similar to those that apply in respect of divorce in a
polygynous customary marriage.

The court further declared that a minor who wants to enter into a Muslim marriage is subject to the
consent requirements in the Recognition of Customary Marriages Act.

2.22. Judicial recognition of heterosexual life partnerships

In Bwanya v Master of the High Court, Cape Town (CCT 241/20) [2021] ZACC 51 the
Constitutional Court confirmed an order that declared section 1(1) of the Intestate Succession Act
unconstitutional and invalid. In this case, Ms Bwanya and the deceased were life partners who
lived together. Ms Bwanya’s life partner passed away two months before paying lobolo for Ms
Bwanya. The deceased left a will wherein he nominated his mother as the sole heir of his estate.
His mother had, however, passed away. Ms Bwanya lodged two claims against the estate: first, for
inheritance in terms of the Intestate Succession Act and second, for maintenance in terms of the
Maintenance of Surviving Spouses Act. The claims were rejected by the executor on the basis that
the Intestate Succession Act and Maintenance of Surviving Spouses Act afforded benefits only to
married persons. Ms Bwanya challenged the constitutionality of both Acts. The Constitutional
Court declared section 1(1) of the Intestate Succession Act invalid and unconstitutional because it
excluded life partners in a permanent relationship from the definition of “spouse”. It ordered that
the section be read as if it included a “partner in a permanent life partnership in which the partners
have undertaken reciprocal duties of support”. The Constitutional Court also declared section 1 of
the Maintenance of Surviving Spouse Act unconstitutional in that the definition of “survivor”
excluded the words “and includes the surviving partner of a permanent life partnership terminated
by the death of one partner in which the partners undertook reciprocal duties of support and in
circumstances where the surviving partner has not received an equitable share in the deceased
partner’s estate”. The Constitutional Court ordered that the words “and includes the surviving
partner of a permanent life partnership terminated by the death of one partner in which the
partners undertook reciprocal duties of support and in circumstances where the surviving partner
has not received an equitable share in the deceased partner’s estate” be read into the definition of
“survivor”. Furthermore, the definitions of “spouse” and “marriage” in section 1 of the Maintenance
of Surviving Spouses Act were declared unconstitutional and invalid for failing to include “a person
in a permanent life partnership in which the partners undertook reciprocal duties of support”. The
Constitutional Court ordered that the definitions were to be read as if they included such a person.
The declarations of constitutional invalidity in respect of both Acts was suspended for 18 months to
afford Parliament an opportunity to cure the constitutional defects.
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 PVL2601/102/1/2022

2.23. The Constitution and same-sex life partnerships

The Constitution and life partnerships are discussed on page 267 of your textbook. In Gory v
Kolver the Constitutional Court pointed out that the commencement of the Civil Union Act would
not alter the rights and benefits the Constitutional Court had already conferred on same-sex life
partners. This was confirmed by the Constitutional Court in Laubscher v Duplan 2017 (2) SA 264
(CC). The Constitutional Court confirmed that same-sex life partners who elected not to be married
in terms of the Civil Union Act may inherit intestate, provided they can prove that during the
existence of their relationship they had undertaken a reciprocal duty to support one another.

2.24. Moderate and reasonable corporal punishment of a child is unconstitutional

In study unit 19 parental responsibilities and rights are discussed. One of the parental
responsibilities is “care”, which is defined in section 1(1) of the Children’s Act to include “guiding a
child’s behaviour in a humane manner”. The Constitutional Court held, in Freedom of Religion
South Africa v Minister of Justice and Constitutional Development 2020 (1) SA 1 (CC), that
chastisement of a child, even if moderate and reasonable, is violence which infringes section
12(1)(c) of the Constitution and is not allowed. The common law defence of moderate and
reasonable chastisement was declared unconstitutional. Parents are therefore not allowed to beat
their children, even if they regard the punishment as reasonable and moderate.

2.25. Prescribed cases

In Tutorial Letter 101 under 4.6 Prescribed cases four cases are prescribed. In so far as Volks v
Robinson 2005 (5) BCLR 446 (CC) is concerned, we advise you to study the three-page summary
only.

3. CONCLUSION
Do not hesitate to contact us via email if you are experiencing problems with the content of this
tutorial letter or with any academic aspect of the module.

We wish you all the best in the examination.

Prof Jacqueline Heaton (heatoj@unisa.ac.za)

Prof Pieter Bakker (bakkep@unisa.ac.za)
Ms Nthabiseng Monareng (monarkn@unisa.ac.za)
Ms Molebogeng Seerane (seeramm@unisa.ac.za)

© Unisa 2022

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