Must a customary marriage be registered to be valid?

 

The short answer is NO: Failure to register a customary marriage does not affect the validity of that marriage. 

The Recognition of Customary Marriages Act 120 of 1998 (the Act) sets out the requirements for a valid customary marriage concluded before or after 15 November 2000, when the act commenced.

The Act defines ‘Customary Law’ as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’ and ‘Customary marriage’ as ‘a marriage concluded in accordance with customary law’. 

Requirements for validity 

Section 3(1) of the Act provides that ‘For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and

(ii) must both consent to be married to each other under customary law; and

(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law’. 

Registration of a customary marriage

 

·         Section 4(1) of the Act provides that “The spouses of a customary marriage have a duty to ensure that their marriage is registered” and goes on to set out what information either spouse may give to the registering officer at Home Affairs and that the parties must cause the marriage to be registered within a period of three months after the conclusion of the marriage.

 

·         Parties married before 15 November 2000 have twelve months to register.

 

·         In both cases, if parties missed the deadline, it could be extended by such longer period as the minister may from time to time prescribe by notice in the Government Gazette. In terms of s4(3)(a) and (b) of the Act (GN1045 GG42622/8-8-2019) the minister recently extended the period for registration up to 30 June 2024 for both a customary marriage entered into on or after 15 November 2000.

 

·         If the registering officer is satisfied that the spouses concluded a valid customary marriage, he or she will register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed. He then issues spouses a certificate of registration, bearing the prescribed particulars.

 

·         If for any reason a customary marriage is not registered, any person who satisfies a registering officer that he or she has a sufficient interest in the matter may apply to the registering officer in the prescribed manner to enquire into the existence of the marriage. If the registering officer is satisfied that a valid customary marriage exists or existed between the spouses, he or she must register the marriage and issue a certificate of registration. On the other hand, if a registering officer is not satisfied that a valid customary marriage was entered into by the spouses, he or she must refuse to register the marriage. Affected parties may then approach a court that may, depending on the facts of each case either order –

(a) the registration of any customary marriage; or

(b) the cancellation or rectification of any registration of a customary marriage effected by a registering officer. 

·         Failure to register a customary marriage does not affect the validity of that marriage.

 

 

 

Bregmans Marriage Contract

PERSONAL INFORMATION FOR MY SURVIVORS UPON MY DEATH OR BECOMING INCAPACITATED

I have posted a Wishes and Memories booklet on our website that will be a clear record of your funeral wishes, a source of important documents for legal and public records, and a permanent keepsake of your fondest memories to speak to future generations.

To save your survivors as much heartache as possible immediately following your death, I advise you to: 

• Put together a box file containing all your important documents, and tell your nearest and dearest, where it is. In this box file, store your will, marriage contract, insurance policies, title deeds, papers for cars, caravans and boats, timeshare information. and other important papers; 

• List your creditors (credit card, loans, mortgages, store accounts, etc.);

• List important numbers for your executor and family, such as the name of your broker, lawyer, doctor, dentist, financial advisor, etc.;

• Leave a list of family and friends, to contact on your death; 

• List what happens to your DSTV, armed response, personal and home insurance, etc.; 

• List codes for your security system, and post office box, etc.; 

• Describe where you want to be buried or cremated, and your funeral wishes, in general; 

• List all your virtual accounts, usernames and passwords (ranging from email accounts to your social networking profiles (Facebook, Twitter, LinkedIn, etc.), blog posts, photo or music sharing accounts and digital purchases through for example eBay or Takealot.com. Retain these passwords, with other valuables, in a safety deposit box, to be revealed to your executors, only on your death; 

• Create a digital estate plan (in your will or in a letter of wishes) Instructing your executors whether to maintain your social media sites.

• Facebook asks: How do I report a deceased person or an account on Facebook that needs to be memorialized? Memorialized accounts are a place for friends and family to gather and share memories after a person has passed away. Memorializing an account also helps keep it secure by preventing anyone from logging into it.

• What happens to your Twitter account when you die or become incapacitated? “In the event of the death of a Twitter user, we can work with a person authorized to act on behalf of the estate, or with a verified immediate family member of the deceased to have an account deactivated. In the event a Twitter user is incapacitated, due to medical or other reasons, we can work with a person authorized to act on the behalf of the user to have an account deactivated”.

Criminal case opened after KZN woman uses hate speech against President Ramaphosa in a Facebook post

Teleconference published in Daily Maverick on 14 February 2017

A criminal case has been opened against a KwaZulu-Natal woman who took to social media and allegedly referred to President Cyril Ramaphosa as “an ape trying to act like a first world president”.

The woman from Pinetown who posted the comment had since deactivated her Facebook account. She had not been arrested yet.

Be careful what you post on Facebook, Twitter, LinkedIn or Google+, whether in all innocence or out of malice, as the post may be construed as defamatory or hate speech.

HATE SPEECH VS FREE SPEECH IN SOUTH AFRICA

Freedom of expression is guaranteed by the South African Bill of Rights, within the Constitution giving everyone freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of scientific research.

But what if you cross the line and directly call for the harm of a certain group of people, based on ethnicity, race, gender or religion; or use extremely derogatory terms to refer to an individual, especially a State President, as “an ape trying to act like a first world president”.

There is a law to prevent and punish perpetrators of hate speech, the Promotion of Equality and Prevention of Unfair Discrimination Act 2000. The Act describes hate speech:

No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to:

§  Be hurtful.

§  Be harmful or to incite harm.

§  Promote or propagate hatred.

Courts must adopt a balancing act between hate speech and free speech.  These laws are effectively meant to regulate free speech, rather than limit it.

The courts did not censure the cartoonist, Zapiro, who always depicted former president Zuma with a shower head in his cartoons. Zuma first got the shower head treatment during his rape trial in 2006 after he testified in the Johannesburg High Court that he had showered after unprotected sex with a woman who he knew was HIV-positive in the mistaken belief that it would minimise the chances of infection. 

As Zapiro  expressed displeasure at Zuma’s apparent idiocy - without calling for acts of violence or using grossly offensive terms  –  he was covered by freedom of artistic creativity.

On the other hand Kessie Nair has been lawfully charged on the grounds of hate crimes, after not only referring to Cyril Ramaphosa as the “k*****-president”, but his social media posts in the week leading up to his racist rant encouraged locals in Chatsworth to engage in “sporadic acts of violence”, with obvious racial undertones.

Whether the state will pursue criminal charges against the KZN woman remains to be seen, as she didn’t tick the second box of inciting violence.

The effect of failure to adhere to deadlines under lockdown

A client asked: What happens to time periods stipulated in contracts during this lock down, when compliance would force a breach of the lockdown rules?  

In South African law, as a rule, if a person is prevented from performing his contract by vis major or casus fortuitus, he is discharged from liability.

“Vis maior means “some force, power or agency which cannot be resisted or controlled by the ordinary individual” and includes not only acts of God but also acts of man. Casus fortuitus is a species of vis maior and imports something exceptional, extraordinary or unforeseen, and which human foresight cannot be expected to anticipate, or, if it can be foreseen, it cannot be avoided by the exercise of reasonable care or caution”.

The Covid-19 pandemic is a classic case of these doctrines.

The lockdown caused by the pandemic has, in many instances, made it impossible for companies and individuals (called debtors in our case law) to carry out their end of contractual bargains.

Our law describes this inability to perform as “impossibility of performance”. As a rule,  “impossibility of performance does in general excuse the performance of a contract, but does not do so in all cases, and that we must look to the nature of the contract, the relation of the parties, the circumstances of the case, and the nature of the impossibility invoked by the defendant, to see whether that general rule ought, in the particular circumstances of the case, to be applied”.

This rule applies if performance of a contract becomes impossible through no fault of the debtor (i.e. it can’t be self-created), unless the contract stipulates that the debtor bears the risk of impossibility.

Temporary impossibility

The Covid-19 pandemic may cause a temporary impossibility, which does not automatically bring the contract to an end. Such termination depends on factors such as the materiality of the term involved and whether final impossibility is inevitable.

Some examples.

Cancelled holidays and flights

Many people had to cancel their holidays because of the supervening impossibility caused by the pandemic. Does this entitle them to a full refund?

In World Leisure Holidays (Pty) Ltd v Georges a tour operator had to cancel all flights because of a cyclone in Mauritius. The debtor paid the full tour price in advance. On cancellation of the flight, the debtor purported to cancel the contract, alleging breach of contract, and claimed the return of his purchase price. The tour operator relied on supervening impossibility of performance, and on a clause in the contract which provided for forfeiture of the tour price if passengers cancelled within two weeks' of the date of departure. The court found that there had been no breach by the tour operator which entitled the debtor to cancel the contract, as the tour operator's contractual obligations were suspended for the duration of the impossibility. Temporary impossibility was also not a ground on which the debtor could rely.

Basically, the tour could have taken place, later. The consequence is that the standard terms and conditions came into operation, with the result that the debtor forfeited the total tour price.

Thus, temporary impossibility of performance does not of itself bring a contract to an immediate end. It would only end where the foundation of the contract has been destroyed or where all or part of the performance is already, or would inevitably become, impossible.

“In every case a value judgment, based on objective criteria, will be required to establish whether it is just that the bargain should, to the extent still possible, be upheld and the obligations of the parties adjusted. On the one hand, the court should not make a new contract for the parties. On the other hand, neither party should be allowed to escape its obligations where the essence of the contract is still capable of performance”.

As a rule, if performance becomes temporarily impossible, the obligation is not extinguished but is merely suspended for the period during which the impossibility continues and with it any reciprocal obligation is suspended.

Penalty clauses in building contracts

A contractor undertakes to complete building works by a specific date or face penalties because of late performance. It cannot do so because of the lockdown. Whether the penalties can be imposed will depend on the terms of the building contract and the application of the law mentioned above. A sensible approach – to avoid lengthy and costly litigation - would be for the parties to delay completion of the project, by agreement.

Fixed term employment contracts

If the pandemic makes it objectively impossible for a contractor to perform (say a consultant job for six months) the contract is terminated, and no performance is required of either party. However, mere temporary inability to perform does not terminate the employment contract because it is required that the inability should continue for an unreasonable period or be of a permanent nature.

Immovable property - delay in transfer

The Deeds Office is closed so all property transfers are on hold. This delay would not be a factor entitling the seller to cancel the sale. I.e. The delay in effecting registration of transfer could not be construed as a repudiation of the contract by the seller.

New residential leases

All tenants who were due to move at the end of March can only do so after midnight on April 30 as the State of Disaster regulations prohibit them from moving from their current leased premises to their new home during the lockdown period.

These tenants are not obliged to pay rent to both landlords, the new landlord cannot let the property to someone else during lockdown (as there is a new lease in place), even if it is empty, and the “old” landlord is prevented from commencing eviction proceedings. This is a triple whammy for the tenant and both landlords.

It makes sense that arrangements are struck that the tenant at least pays rent to the existing landlord for the duration of the lockdown. Unfortunately, this may not be possible if the tenant has lost his job. Hopefully, State aid will assist, somehow.