Abstract:
Determining the validity of a customary marriage or a civil marriage which was
contracted during the subsistence of another marriage (a civil or customary
marriage) has plagued South African courts for a number of years (see Maithufi
“To be or not to be: Does this question still arise?“ 2013 TSAR 723). The general
principle since Nkabula v Linda 1951 1 SA 377 (A) was that no customary
marriage could exist in the face of a civil marriage. The effect was that a civil
marriage dissolved a subsisting customary marriage between a husband and a
woman other than his wife, by customary rites. It also meant that a customary
marriage which was entered into during the subsistence of a civil marriage was
null and void ab initio (Bennet Customary law in Southern Africa (2004) 239–
240).
