Revisiting the "to be or not to be" debate and comments on Netshituka v Netshituka 2011 5 SA 453 (SCA)

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).