When a delay is a denial!

National Adoption Coalition v Head of Department of Social Development for KwaZulu-Natal NO 2020 (4) SA 284 (KZN) (“National Adoption Coalition case”

By Dante Adams, Fasken

In the Charles Dickens novel, Great Expectations, young Pip remarks that: “In the little world in which children have their existence, whosoever brings them up, there is nothing so finely perceived and so finely felt as injustice.”1

Unfortunately many children in South Africa have felt this injustice through abandonment, abuse and neglect and are left with little hope of experiencing love, joy and the stability of a family. Adoption plays a role in alleviating this injustice. On 24 February 2020, the High Court in Durban granted an order declaring that the Head of Department for Social Development, KwaZulu-Natal (HOD) had violated section 28 of the Constitution.2 The judgment, by Judge Seegobin, has a significant effect on the adoption of children.

Role of the Department of Social Development (DSD) in the Adoption Process

  • The DSD plays a significant role in the adoption process in South Africa as articulated in the Children’s Act 38 of 2005 (“the Act”).
  • Section 239(1) (d) of the Act sets out the statutory requirements for an adoption application and states: “An application for adoption order should be accompanied by a letter by the provincial head of social development recommending the adoption of the child (“section 239 letter”).”
  • The section 239 letter provides oversight in the adoption process to prevent child trafficking and abuse.
  • The Act does not specify what considerations the DSD should take into account when recommending adoption, resulting in each province adopting its own process to evaluate adoption applications.
  • The DSD in KwaZulu-Natal implemented a process which required each adoption application to be presented before a panel; panellists would scrutinise each adoption application before providing a section 239 letter. The process led to undue delays in adoptions in KwaZulu-Natal. Statistics indicate that a total of 174 adoptions took place in the province over a seven-year period, just 5% of the national average.3

NACSA instituted proceedings against the HOD and the DSD to declare this adoption process constitutionally invalid because it did not promote the best interests of the child.

Court Findings:

  • The inordinate delays caused in finalising the adoption process by the HOD and DSD violated s 28 of the Constitution, and the paramountcy principle4. The court specifically held that the two main causes of the delays in finalising adoptions in this province were 1) the composition of the adoption panel; and 2) the actions of the HOD.
  • The panel members were not “suitably qualified and experienced to deal with adoption matters and the complexities that may arise from time to time”5, and the panel meetings were “erratic” and uncertain.
  • The HOD and DSD did not understand their constitutional obligations in the adoption process – the duty to expedite the process in the best interests of the child6.
  • The DSD and HOD took irrelevant considerations into account when considering an adoption application.
  • The adoption process followed by the HOD and DSD resulted in undue delays and caused serious long-term psychological trauma, both for consenting parents and the child, and were not in the best interests of the child.
  • The court ordered a supervisory order in which the HOD and DSD were to process the backlog of adoption applications within 30 days and to strictly adhere to the 30-day turnaround time articulated by the National Department for all future applications.


Click here for our complete September 2020 Newsletter

Sheriff’s costs in Children’s Court cases – who should pay?

By Elsabe Steenhuisen


The disbursements in cases ProBono.Org refers to legal practitioners (“LPs”), are mostly sponsored by the LPs, such as their travel expenses and photocopies. But what about the sheriff’s costs, which can be a substantial amount? We all know that the party who instructs service should pay for it. In terms of the Guidelines of ProBono.Org LPs may, if they choose, recover disbursements from the pro bono referred clients. However, it becomes a totally different ball game when we practise in the Children’s Courts when we represent the child or one of the parents who can barely afford a daily living, let alone paying sheriff’s costs!
The question then arises whether service by the sheriff is always a requirement to secure the presence of a witness in Children’s Court proceedings? What about the respondent (the other parent or care-taker or interested party) whose appearance is necessary during the proceedings – how is the presence of these persons secured? The full answer to these two questions is on our website here.

The position regarding the witness:

The Regulations pertaining to the Children’s Act
When we look for the answer in the Children’s Act, we have to be aware of two sets of regulations:
1. The Regulations relating to Children’s Courts and International Child Abduction 2010, also referred to as the Justice Regulations (“JR”), and refer to sections 42-75; 161-166 and 274-280.
2. The General Regulations regarding Children, 2010 (“GR”), and refer to sections 90,103, 142, 160, 179, 190, 212, 227, 253 and 280 of the Children’s Act, and other centres and facilities.

The Children’s Act
Section 53 of the Children’s Act (“Who may approach court”)
Section 53 and JR 7(2) provide who may bring a case to the Children’s Court. What is the position if one of these persons mentioned in JR 7(2), or the persons named in section 53, want to call a witness? JR Form 4 has the answer. It sets out the procedure to secure witnesses at court (one has to submit particulars of the witness/es to the clerk of the court within fourteen days before the date of the hearing). Form 4 states that the costs of the service of the subpoena on any witness will be borne by the person who requests the witness subpoena unless, in exceptional cases, the court directs that the state bears such costs. Neither the Act nor the Regulations define “exceptional cases”, but one should certainly be able to argue that indigency, or acting pro bono for a child who has no known parent or carer, or has an indigent carer, should be sufficient reason to invoke this mechanism. Form 4 does not refer to sections 58 and 59 of the Children’s Act, neither to Form 6 of the JR, nor to JR 9, which all deal with witnesses.

Witnesses in the Children’s Court
Section 58 of the Children’s Act provides for the right to adduce evidence. This means that any party to the proceedings may call a witness. Section 59(1) of the Children’s Act stipulates the procedure to secure the presence of a witness. The clerk must, in the prescribed manner, summons a person to appear as a witness at either the request of the presiding officer (section 59(1)(a)), the child or a person whose rights may be affected by an order in those proceedings (section 59(1)(b)), or the legal representative appearing for either the child or party/ies involved in the case (section 59(1)(c)).

A request to the Clerk for the issuing of a subpoena by any of the above-mentioned persons, other than the Presiding Officer, must:
a) be made at least at fifteen (15) court days before the date of the hearing;
b) be in writing on Annexure O; and
c) filed in the specific Court file.
Annexure O is available from the clerk of the Children’s Court.
JR 9(1) permits the clerk to subpoena at least ten (10) days before the date of the hearing, any person to appear as a witness in a matter in terms of Form 6. JR 9(2) permits a person referred to in section 59(1)(b) or (c), to request the clerk within 15 days before the hearing, to issue a subpoena to the witness the person intends to call. JR 9(3) provides for personal service by either the sheriff, or a clerk, or a person authorised by the presiding officer. It provides also for service by registered post or any other manner as directed by the presiding officer. As JR 9(3) does not refer to service by the SAPS, one can argue that section 59(2) of the Children’s Act makes provision for this option. Other options, as pointed out above, but only on authorisation by the court, may be service by a social worker; any other person, such as a family member or a friend; Facebook; e-mail, or facsimile. It is obvious that the court’s authorisation should be in writing.
Form 6 provides for service of a copy of the subpoena personally on the witness; or to a person apparently not younger than 16 years and apparently residing or employed at the residence/place of employment/business of the witness if the witness could not be conveniently found; or by affixing/placing it to/in the outer/principal door/security gate/post box of the residence/place of employment/business of the witness as the witness kept the residence/place of employment/business closed.

There are various options available for the legal practitioner to secure the presence of a witness at court. Many of the options would be far more cost effective and affordable than service by the sheriff or the SAPS (see Section 15(1)(b) of the Magistrates’ Courts Act). The LP should only first obtain authorisation from the presiding officer by substantiating the reasons for the application to court. I want to leave you with the suggestion of one of our colleagues, Lesley Blake – should the sheriffs, being also officers of the court, not be required to also do pro bono work as part of their social responsibility towards the public? After all, it is members of the public who pay their fees.

Click here for our complete September 2020 Newsletter

Temporary Employment Services (Labour Brokers) and their future in the South African labour spectrum

Temporary Employment Services (Labour Brokers) and their future in the South African labour spectrum

By Siyabonga Zondi, Durban Intern


The use of temporary employment services (TES), better known as labour brokers, in the South African labour market has always been a topic that has polarised opinion, in both the political and the legal environment. The Labour Relations Act 66 of 1995 makes provision for a Temporary Employment Service to exist, creating a threefold relationship between the labour broker, the client and the worker.

The call for the removal of labour brokers is one that has been echoed amongst a number of organised trade unions, most notably by South Africa’s largest trade union federation, the Congress of South African Trade Unions (COSATU). One of the reasons for this is that in many ways, labour brokers have been supplying what are, in effect, permanent employees to their clients. This means that the worker may essentially perform the same roles and functions as those of a permanent employee of the client but not be afforded the same protections as a permanent employee. This has historically left the temporary employee vulnerable to unfair labour practices, abuse, inhumane and degrading treatment in the workplace and the concomitant fear of termination at the will of the employer, without any concrete legal recourse. Prior to the 2014 amendment, the LRA stipulated that the labour broker (the deemed employer) and the client are jointly and severally liable in respect of contraventions of conditions of service, the minimum and maximum standards as set out in the Basic Conditions of Employment Act 1997 (BCEA), and arbitration awards that regulate the terms and conditions of service. The pre-amendment LRA failed to articulate provisions that expressly protect temporary workers from unfair labour practices, such as unfair dismissals.

It would not be unfair to say that until recently government has not heeded the call to regulate or ban labour brokers with any sense of enthusiasm or urgency. The situation is however more complicated than meets the eye. To simply ban labour brokers to satisfy the calls made by the trade unions represents a conundrum for the government. This is because a large section of the South African workforce is employed by labour brokers and labour brokers are widely considered as a platform for first-time job seekers as well as labourers to secure employment.

In light of all these concerns and the resultant widespread protests against labour brokering, the LRA was amended in 2014 to introduce protections for employees in precarious employment. The amendments did not ban labour brokering, they instead strengthened the regulations to provide greater protection for workers placed in temporary employment services. For the most part, this purpose has had the effect of increased protection for marginal workers and the introduction of a legislative framework to ensure temporary services are indeed temporary. The addition of Sections 198A and D allowed for the parameters of temporary services to be identified and detailed the protection offered to workers. In Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others CCT 194/1, the interpretation of the section was tested, and the question was raised whether the deeming provision in the section resulted in a “sole employment” relationship between a worker and a client or a “dual employment” relationship between a labour broker, a worker and a client. The Constitutional Court held that the interpretation of the section must be one that is cognisant of the purpose of section 23 of the Constitution and of the LRA as a whole. The Court interpreted Section 198 to mean that for the first three months the labour broker is the employer and after that period the client becomes the sole employer.

The recent developments in the labour law spectrum have given a strong indication that labour brokers may not be banned for the foreseeable future and that a regulatory approach that monitors and enforces compliance with labour legislation may be the preferred approach going forward.


Click here for our complete August 2020 Newsletter

What happens to your assets when you die?

What happens to your assets when you die?

By Mukethwa Chauke – Johannesburg


The concept of succession is not a foreign concept in our African legal system. In customary law the heirs of the deceased were determined through the male line ,referred to as the male primogeniture rule, which is well known to discriminate against women. Only the eldest legitimate son of the deceased could inherit, to the exclusion of the other siblings. The customary rule of male primogeniture was declared invalid and unconstitutional by the Constitutional Court in a landmark case of Bhe v Magistrate Khayelitsha 2005 (1) SA 580 (CC), as the rule infringed the rights of equality and human dignity.

When a person dies and leaves assets, a deceased estate comes into existence and it must be distributed through the application of testate or intestate succession law.
Testate succession is where the deceased died having left a valid Will. The wishes of the deceased person will be carried out according to what the Will says.
Intestate succession is where the deceased died without a Will or with a Will which was later rejected by the Master of the High Court (the Master) and/or declared invalid by the High Court for certain reasons. In this regard the deceased estate will be distributed through the application of the Intestate Succession Act 81 of 1987.

The deceased estate must be reported to the Master in whose area of jurisdiction the deceased was living prior to his or her death. The estate must be reported within 14 days from the date of death, and any person who is in possession of the deceased person’s Will and/or has control over any of the deceased assets can report the death.

The Master will appoint an executor to the deceased estate. The appointment differs depending on the value of the deceased estate and is regulated by section 18(3) of the Administration of Estates Act 66 of 1965 (the Act).

If the value of the estate is more than R250,000 the heirs of the deceased must nominate an attorney who will wind up the estate and prepare and lodge the liquidation and distribution account (hereinafter referred to as the L&D account) with the Master. The L&D account is governed by the provision of section 35 of the Act, and once the Master has approved the L&D account a Letters of Executorship will be issued. Where the value of the estate is less than R250,000 the Master may issue Letters of Authority.

When the Master issues Letters of Authority it is free of charge and legal assistance is not necessary. However, property values are regularly increased by municipalities and this affects the destitute in a negative manner when they want to wind up their loved one’s deceased estate through the process of obtaining Letters of Executorship without the use of a private attorney. If the legal costs are unaffordable to the heirs, it results in many deceased estates not being wound up.
Through my experience as a legal intern at ProBono.Org, I have come across various kinds of deceased estate disputes among siblings. One of the most common is when an heir fraudulently transfers the deceased’s immovable property into his/her name to the exclusion and detriment of the other siblings who are the rightful heirs of the deceased. The unscrupulous sibling may go as far as selling the immovable property, even when the deceased’s family is occupying the property, to the extent that they end up being illegally evicted from the property.

All the rightful heirs are entitled to the deceased estate, whether in testate or intestate succession. One heir cannot legally act on their own, but must obtain consent from the other heirs. A property that has been fraudulently transferred or sold to a third party without the knowledge or consent of the rightful heirs of the deceased can be challenged, and the ownership or sale of the property declared null and void.

The moment a person dies his or her assets are frozen. If the deceased owns immovable property and has left money and/or any policies, his or her beneficiaries will not be able to claim if the Master has not appointed an executor of the deceased estate.

In conclusion, drafting a valid will is advisable as it can minimise the difficulties that might transpire when administrating the deceased estate, the testator has the freedom to indicate what should happen to their assets, who are the heirs and also to nominate the executor of their choice. Any person older than 16 years can draft a valid will. ProBono.Org offers this service free of charge.


Click here for our complete August 2020 Newsletter

Can an administrator’s decision to refuse asylum be substituted by an order of the High Court?

Can an administrator’s decision to refuse asylum be substituted by an order of the High Court?

By Obakeng Phatshwane (Candidate Attorney, Fasken)


Given the impact of COVID 19 and the plight of asylum seekers, this decision remains crucial for those seeking asylum. The substitution by a court of an administrator’s decision2 in granting asylum is a remedy that is only available in exceptional cases.

In the case of Kalisa v Chairperson, Refugee Appeal Board and others 3(“the Kalisa case”) the court had to decide whether it could substitute an administrator’s decision and whether such substitution would be just and equitable.

The Kalisa case involved a Burundian national who had applied to the Refugee Status Determination Officer (RSDO) for asylum. The application had been rejected, and the applicant’s appeal to the Refugee Appeal Board (RAB) dismissed. The applicant applied to the High Court to review the RAB’s decision, and to substitute it with a grant of asylum.

The court held that substitution was unjustified in that the relevant authority was better equipped to investigate and determine certain aspects of the application and that the court was neither in as good a position as the functionary to make a decision, nor was the decision foregone. Therefore the court ordered that the matter be referred back to the administrator, and that the applicant be allowed to make a new application for asylum.

The primary factors taken into consideration by the court when substituting an administrator’s decision were:

  • whether the court is in as good a position as the administrator to make the decision; and
  • whether the decision of the administrator was a foregone conclusion.

In respect of the former enquiry, the court must be satisfied, on the basis of the evidence presented to it, or by virtue of its institutional competency, that granting such substitution order would comply with the constitutional requirements of lawfulness, reasonableness and procedural fairness.
Where a court is not in as good a position than the administrator but the administrator’s bias or incompetence renders it unjust to refer the matter back to such administrator for consideration, a court might be required to devise a remedy not identified in terms of section 8 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
Other secondary factors to be considered include delay, bias or incompetence on the administrator’s part. In asylum matters the prejudicial consequences of a delay would justify the granting of asylum only where it is sufficiently clear that the applicant qualifies for refugee status.4 The onus is on the applicant to furnish sufficient evidence to the court that he/she qualifies for refugee status.

Legal Position
The judgement is an indication that the court would be unlikely to step into the shoes of the administrator or elect to substitute a decision of an administrator unless exceptional circumstances exist requiring the court to do so. An applicant looking to succeed with an application for a substitution order must in this instance furnish sufficient evidence indicative of the existence of exceptional circumstances, failure of which the court will refer the matter back to the administrator for consideration.


Click here for our complete August 2020 Newsletter

City of Johannesburg’s Expanded Social Packages

Marc Barros Gevers
Candidate Attorney at Schindlers Attorneys

Chantelle Gladwin- Wood
Partner at Schindlers Attorneys

The City of Johannesburg (“The City”) has a number of financial assistance measures in place for its consumers. Each of these measures has their own specific requirements that a consumer would have to meet in order to qualify. Examples include the Pensioners’ Rebate and the Expanded Social Package.

What is the ESP?
The City rolled out its Expanded Social Package (“ESP”) several years ago. The ESP is a social welfare programme facilitated by the Social Development Department of the municipality, with a view to provide much needed financial assistance to owners/occupants of residential properties who have a limited income and are not pensioners. The ESP is designed to provide a “basket of benefits” to owners/occupants who qualify as “indigent”.

Who is the ESP intended to benefit?
The ESP is intended to target the vulnerable residents within the jurisdiction of the City such as the unemployed, women and children, youth, senior residents, persons with disabilities and displaced persons. Since July 2019, the ESP has provided its benefits to approximately 30,000 residents.

What benefits does the ESP offer?
The ESP provides rebates on water, electricity, sewer and refuse, and property rates on a tiered system, dependent on the level of poverty of the consumer concerned. For the unemployed and working age residents (aged 18-59), a rates rebate will apply if the property in question is under R500,000.00 and, for pensioners, rebates for rates, sewer and refuse are available for properties valued under R2,500,000.00.

How do I qualify?
In order to qualify for the ESP, an individual or household must:
i. be a South African citizen;
ii. reside within the City’s boundaries;
iii. have a monthly income of less than the prescribed amount, currently R6,086.37; and
iv. re-apply every six months. For bedridden or chronically ill patients, the Social Development Department offers social worker services by way of home visitations, affording these people the same opportunity to access the programme.

However, during the current COVID-19 outbreak and the required social distancing measures, it would be irresponsible and impractical for the City to require beneficiaries of the ESP to have to attend Council to renew their ESP. As such, the City has extended the ESP, and, as such, current beneficiaries whose registration would expire between March and June 2020 will have an additional six months prior to having to reapply for the ESP.

Other Benefits
The ESP programme is also linked to the City’s food bank and beneficiaries of the ESP also qualify for referral to other services offered by the City, such as Skills Development and Intervention Programmes.

ESP during COVID
It would seem that, despite the difficulties posed by the current lockdown, the City has continued to provide such an essential service and package to its residents. Arguably, now more than ever, such a programme is essential due to the struggle to acquire an income. The City may see more of its residents applying for access to the ESP.

The Future of the ESP
The City is reviewing the current rebates offered under the ESP. While this is a positive move by the City in better providing for its residents, it has yet to provide further specifics on what the plan for extending access to the ESP will be. While the City decides on what expansions will be made in the form of relief for its residents, the City is still accepting applications for its already existing relief schemes, such as the pensioners’ rebate and the ESP.

Should you require any assistance in dealing with any City of Johannesburg issue, please do not hesitate to contact us.


Click here for our complete August 2020 Newsletter

<strong>Guest slot:</strong> Validation of a postnuptial agreement

Guest slot: Validation of a postnuptial agreement

By Amorette Gangel, Associate, BDK Attorneys


On 26 May 2020, the Constitutional Court dismissed an application by an appellant who sought to have a postnuptial agreement, which was entered into between a married couple during the course of their marriage and not sanctioned by Court, declared valid. 
In the matter of AM v HM, a couple were married out of community of property by way of an Antenuptial Contract. During the course of their marriage the parties entered into a postnuptial agreement whereby it was agreed that the wife would be entitled to half of the matrimonial estate upon divorce, contrary to the terms of the Antenuptial Contract. 
The postnuptial agreement intended for the marital regime of the parties to be altered from out of community of property to in community of property. However, Section 21 of the Matrimonial Property Act, 1984 (Act 88 of 1984) dictates that should a married couple intend to change their marital regime, leave from the Court must be sought. 
Subsequently, the parties instituted action for divorce and the wife sought to enforce the postnuptial agreement. The Regional Court dismissed the wife’s claim on the basis that the enforcement of the postnuptial agreement was contrary to Section 21 of the Act and that at the time of signing the agreement, divorce was not contemplated. 
The matter was taken on appeal to the High Court who overturned the decision of the Regional Court. The matter was subsequently taken on appeal to the Supreme Court of Appeal who upheld the decision of the Regional Court. The Supreme Court held that the wife had failed to prove that the postnuptial agreement was in contemplation of divorce. 
The matter was then brought before the Constitutional Court who dismissed the matter on the basis that the appellant (the wife) sought to ventilate new issues which were not previously argued before the High Court and Supreme Court of Appeal.
It is imperative that when parties seek to alter their marital regime, application first be made to a High Court for such leave (permission). An agreement which is in contemplation of divorce may be enforced and relied upon by parties. However, a postnuptial agreement which seeks to alter the marital regime must first be approved by the court.



Click here for our complete July 2020 Newsletter

Is parental maintenance legally recognised?

Is parental maintenance legally recognised?

By Melissa Engelbrecht,, Legal Intern – Cape Town


When the word maintenance is mentioned, many often think of a woman claiming maintenance in respect of a minor child or a wife claiming maintenance from her soon to be ex-husband. But too often we overlook the possibility that as one gets older, the role of caretaker is reversed. The question then arises: can parents claim maintenance from their children?

In terms of the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support and the basis for a child’s duty to support his or her parent(s) is the sense of dutifulness or filial piety.

It is of utmost importance to keep in mind that like any other application made to court there are criteria that need to be met on the part of the person to be maintained and the ability to support on the part of the person from whom support is being claimed. More specifically, a parent would need to prove his/her dependence on the child’s support as well as prove that the child in question has the ability to take on this added responsibility of maintaining the parent.
South African courts have confirmed common law, in so far as that a parent can claim maintenance from his or her child. The aspect that required some clarity was what a parent was entitled to in terms of this support. This question was expressly dealt with in the case of Van Vuuren v Sam, where Rabie JA referred to the same criteria as aforementioned but also emphasised that support of parents must be confined to basic needs, namely food, clothing, shelter, medicine and care in terms of illness. However, this judgment did not create precedent as the same question was addressed in Surdus v Surdus where the court held that the quality of the parent(s) life needed to be

assessed and the support would need to be aligned with that.
When making an application of such a nature, more external factors are taken into consideration such as the issue of siblings, extra income and the quality of the parent(s) life. To discuss this in a practical sense, our courts would not allow parents to target one child because he or she has a slightly better paying job than their siblings. Where parents are working or receive a government grant, this will also be taken into consideration.

The law around the issue of parents claiming maintenance from their son-in-law or daughter-in-law is clear, and a parent cannot claim maintenance from them as a reciprocal duty exists between parents and child/ren and relates to them claiming from the nearest relative first. There are of course exceptions to this general rule – a parent can claim from his/her daughter- or son-in-law if the son or daughter is deceased and they can prove that they were financially dependent on the deceased.
A similar matter was dealt with in Osman v RAF, where Mrs Osman’s son died in a motor vehicle accident. The money claimed from the Road Accident Fund was due to the deceased’s wife, but Mrs Osman submitted a maintenance claim. Her son and his wife lived with her in the same house and he supported her financially as she was divorced and did not work. The court in this case looked at the neediness of a parent. Again, all she needed to prove was that she was dependent on the deceased. In this case the maintenance application was granted due to the fact that while her son was alive he would give her a credit card, buy groceries and pay her mortgage bond and this was enough for the court to establish neediness.

Times have indeed changed and with time the law too has evolved. The area of parental maintenance is still underutilised. At present we do not have a precedent-setting case and these matters are dealt with on a case by case basis where judges may use their discretion and other judgments as case guidelines.



Click here for our complete July 2020 Newsletter

Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998

By Phindile Cele, former Johannesburg intern


The coming into effect of the Recognition of Customary Marriages Act 120 of 1998 brought recognition of both monogamous and polygamous marriages, as in the past these types of marriages were recognised as customary unions. The Act introduced changes to ensure that customary marriages adhere to the principles provided by the Constitution. This is particularly evident in how the Act attacks the rules of patriarchy, and aims to ensure that women have the same status and capacity as their husband to acquire and dispose of their assets in a customary marriage. Previously, the matrimonial property system in customary marriages was regulated by the status differentiation between the rankings of houses in a polygamous marriage. The arrangement consisted of:

  • Family property: property acquired by the family head which has not been allocated to any of his wives’ houses, that he as the head has the right to use as he pleases; and
  • General property: property acquired by the wife and children of a household.
    This arrangement was considered unconstitutional as it placed women and their children at a disadvantage in that women involved in such marriages generally lack the opportunity to earn an income and acquire property. Previously a wife did not own any of her property during her marriage and would leave her marriage without having acquired any property because her capacity as a wife was limited to her husband’s exclusive capacity to administer the immovable property.

As a result, the Act now provides that the default matrimonial system for monogamous customary marriages is a marriage in community of property and of profit and loss, unless the parties enter into an antenuptial contract excluding community of property, profit and loss. Section 7(6) was enacted to ensure the protection of all parties who wish to enter into a customary marriage, especially women. This section provides that a husband involved in a customary marriage who wishes to enter into a further customary marriage with another woman after the commencement of the Act must make an application to the court to approve a written contract which will regulate the future matrimonial property system of his marriages. After taking into consideration the rights of all the interested parties, the court terminates the existing property system and distributes the property between the spouses equally.

Statistics however reveal that most parties who enter into customary marriages are indigent people who are based in areas where there are issues of inaccessibility to courts, which then results in section 7(6) being less effective. The Act as well is silent on the consequences of non-compliance. However, we find authority on the principle of non-compliance in the case of Mayelane v Ngwenyama. The Supreme Court of Appeal in 2012 heard that section 7(6) deals merely with the patrimonial consequences and that non-compliance does not render the marriage void. The court further found that the failure to comply with the mandatory provisions of this subsection cannot but lead to the invalidation of subsequent customary marriages, but the further marriage would be out of community of property. This however means that the consequences of their patrimonial interests are directly opposed to each other as we see the rights of both wives compromised. This is the reason why in most polygamous marriages we find that one spouse is married in community of property and the other spouse is married out of community of property. This creates conflict as the first wife’s property is often used to establish the prospective wife’s household, and the prospective wife would own nothing, while the first wife owns a share in her property with their husband. It is evident that a further customary marriage without a court-approved written contract influences one or both of the spouses negatively.

As it stands in terms of the Act, there is a need for development in terms of the consequences of non-compliance of section 7(6). There is a great need to advise and encourage those who are parties to a customary marriage, or those who are looking into entering into a customary marriage, about the consequences the law will present them with should they decide to enter into a further marriage without obtaining approval from the court.


Click here for our complete July 2020 Newsletter

My Lockdown Experience

By Sinothile Zondi, Durban intern


I live in Effigham, a suburb of Durban North, with my sister. We each have a young child. During the lockdown we have both been working from home. My suburb consists of mostly formal housing, with some shacks on the outskirts. Shack dwellers come into the suburb for shopping and work. There is quite a large population of foreign nationals who are entrepreneurs. Most of the locals are friendly towards them.

With the lockdown it was hard to shop as there are not many shops in the area. One day I was walking to buy bread and was stopped by a policeman who asked why I was walking so far from home. Generally to go shopping I have to take a taxi to central Durban which takes about 40 minutes or more. Last week I had to explain to a taxi driver that he was not allowed to carry a full load of passengers. There were 15 people in the taxi so I decided to get out. The passengers were wearing masks but the driver wore his around his neck. They only seem to put the mask on when they see the police. There was no sanitiser available when boarding the taxi and I used my own.

There is a clinic and a community feeding scheme at the library, which operates of a container. People go and collect bread and food. I have seen the council handing out food parcels. Once when I was going to buy bread during Level 5 they called informal residents to the container. No one wore masks and there were no hand sanitisers. Over 50 people were crowding around with their children and fighting over the food and it was chaos, with no social distancing being observed.

I feel unsafe in my community because of this behaviour. I try to go out as seldom as possible. I don’t know if there are any infections in my community. Testing in the area has been announced but I don’t know if any testing has been done.

The stores where we shop do observe the regulations. They provide sanitisers, keep numbers down and insist on people wearing masks. The local church has been handing out food parcels door to door which is very encouraging. There is a problem of hunger in the area but homelessness is not very obvious here. Most homeless people shelter in town. The problems are mostly in the informal settlements where there is a lack of water and formal toilets.


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