Woman loses late husband's estate after first wife tells court she did not consent to second marriage

The Limpopo High Court in Polokwane ruled that a customary marriage entered into by a man and his second partner is invalid because he was still married to his first wife and had failed to obtain consent from her.

The court confirmed that even though their customary marriage was not registered, Nkhensani Mashele was lawfully married by customary law to the late Doctor Given Makabinge in November 2014. The court declared null and void a later customary marriage Makabinge entered into with Ntsako Nwamitwa in August 2020.

Mashele approached the court seeking confirmation of her marriage, the setting aside of the second marriage, and an order preventing Nwamitwa from acting as executor of the deceased’s estate.

She told the court that lobola negotiations were concluded in 2014, that she and the deceased lived together as husband and wife, and they remained married until his death in March 2021.

However, before his death, in 2019, they experienced marital problems which led to physical abuse, and she went back to her parental home, but left her child at the home of the deceased.

She further argued that Nwamitwa and her child were not entitled from benefiting from the estate of her husband as she is the lawful wife and the child was not the biological child of the deceased.

Nwamitwa opposed the application, maintaining that she too concluded a valid customary marriage with the deceased in August 2020 after lobola negotiations, celebrations, and a formal handover to his family. She also provided the court with pictures of her wedding celebration as evidence.

She denied any wrongdoing and said she was unaware of an existing valid marriage between the deceased and Mashele at the time.

She said when she started living with the deceased, she found him staying with his daughter, and he informed her that he was single. She added that she was responsible for taking care of the deceased together with his family members as he was wheelchair bound. She denies that she obtained the letter of executorship fraudulently.

In a judgment delivered by Judge Jane Tsakane Ngobeni, it was accepted that both women had, on the evidence, met the general requirements for a customary marriage under the Recognition of Customary Marriages Act. However, the decisive issue was whether Mashele’s consent had been obtained before the deceased entered into the second marriage.

Judge Ngobeni held that the consent of an existing wife is a legal requirement for the validity of any subsequent customary marriage. The judgment stressed that allowing a husband to take another wife without the first spouse’s consent would undermine her constitutional rights to dignity and equality

Because Mashele’s marriage was never dissolved and her consent was not sought, the court ruled that the 2020 marriage to Nwamitwa “falls to be declared null and void”.

The judge dismissed preliminary objections raised by Nwamitwa and ordered that each party must pay her own legal costs, noting that it was not unreasonable for Nwamitwa to have defended what she believed to be a valid marriage.

The ruling once again affirms that customary law, while living and flexible, must be developed in line with constitutional values, particularly the protection of women in polygamous customary marriages.

sinenhlanhla.masilela@iol.co.za

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