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POLIGAMOUS MARIAGES IN INTERNATIONAL ROMAN DUTCH LAW Marriage has been said to be something more than a contract, either

religious or civil but to be an institution.1 All societies have a concept of marriage which makes it an universal institution and different cultures of different countries have influenced the development of the concept of marriage. 2 A court might be faced with a situation where it has to consider whether parties are in fact married especially in cases of established relationships between foreigners in order to make a determination on the personal status of the parties, their property rights, their rights of succession, crime of bigamy and other rights affected by marriage.3 Foreign polygamous marriages, which are often subject of debates in several countries when it comes to their recognition they are notably recognized by the law of a considerable number of countries which are accepted as civilized.4 Inhabitants of countries recognizing polygamy are entitled to assume without question that their marriages will be recognized even beyond the boundaries of their own land.5 This paper will discuss the diverging views on the recognition of foreign polygamous marriages. The positions in South Africa, Zimbabwe and England will be discussed and in the end an approach suiting Botswana will be devised. A polygamous marriage is consistent with the husband marrying another wife during its continuance and whether he exercises his privilege or not is beside the question of whether it is polygamous or not.6 The fact that the man and woman contract on the basis that the husband shall be at liberty to marry another wife stamps their union as polygamous.7 It is important to highlight the general rule which was laid down in Seedat's Executors v The Master 8 that the validity of a marriage is governed by the law of the place where it was contracted or celebrated lex loci celebrationis. The rule was followed in Friedman v Friedmans Executors9 where Dove Wilson JP accepted the rule that the validity of a marriage is governed by the law of the place where it was contracted. The court in Seedat case (supra) went further to provide for exceptions to the rule where the foreign legal relation or marriage is repugnant to the moral principles of the country which is sought to recognize it. In South Africa the position is that polygamy is not part of the general South African system and the Courts have approved the general principle that foreign polygamous marriages should not be recognized by South African tribunals.10 The court in Seedat's Executors v The Master in deciding that a wife in a marriage which was polygamous in fact was not 'the surviving spouse' in terms of a Natal Act held that the union was not a marriage as understood it under South African law as it was a relationship forbidden
Hyde v Hyde (L.R. 1 P. & D. 133) Lord PENZANCE nd J.Obrien, Conflict of Law, 2 ed, 1999, at 409 3 See Per TREDGOLD, C.J Estate Mehta v Acting Master, High Court 1958 (4) SA 252 (SR) 1958 (4) SA p252 4 Estate Mehta v Acting Master, High Court, 1958 (4) SA 252 (FC). 5 As above 6 Seedat's Executors v The Master 7 Seedat's Executors v The Master 8 1917 AD 302 9 1922 43 NLR 259 10 per INNES, C.J. Seedat's Executors v The Master
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and fundamentally opposed to principles and institutions of South Africa. In Nggobela v Sihele11 DE VILLIERS C.J remarked that a marriage which is founded upon polygamy would not necessarily be recognized in other countries, although it might be warranted by the municipal law of the country in which it was contracted. The principle can also be found in Ebrahim v Mahomed Essop12, where it was said, ''with us marriage is the union of one man with one woman, to the exclusion while it lasts of all others. And no union would be regarded as a marriage in this country, even though it were called and might be recognised as a marriage elsewhere, if it was allowable for the parties to legally marry a second time during its existence. Also in Ismail v Ismail where the court in deciding that a marriage contracted under Muslim Faith was not recognized as a marriage, held that the concept of marriage as a monogamous union, is firmly entrenched in South African society and the recognition of polygamy would, undoubtedly, tend to prejudice or undermine the status of marriage as known in South Africa.13 The court went further to provide that in view of the growing trend in favour of the recognition of complete equality between marriage partners, the recognition of polygamous unions solemnized under the tenets of the Muslim faith may even be regarded as a retrograde step.14 The Ismail v Ismail case reveals that the learned TREDGOLD, C.J refrained from expressing any opinion on whether the question whether the principle in Seedat's case should be relaxed in so far as it relates to the recognition of foreign polygamous marriages. It is not surprising that a shift towards changing the public policy in the Seedat case has been witnessed in various recent decisions by South African courts. In the case of Daniels v Campbell NO and Others15 Ngcobo J sitting in the Constitutional Court expressed the view that; the context in which old order legislation was construed during the preconstitutional era was very different from the present era. Old order legislation was previously construed in the context of a legal order that did not respect human dignity, equality and freedom for all people. Discrimination fuelled by prejudice was the norm. Black people were denied respect and dignity. They were regarded as inferior to other races..Blacks were denied most, if not all basic human rights that we now take for granted. They were discriminated against. Their cultures and laws were not recognized except when they conformed to the boni mores of the civilized peoples. Their marriages were not recognizedthe law reflected the values of one section of society which constituted the minority. The new constitutional order rejects the values upon which the decisions of Seedat's Executors v The Master and Ismail v Ismail were based and affirms the equal worth and equality of all South Africans. The recognition and protection of human dignity is the touchstone of this new constitutional order. The new constitutional order is
(10 S.C. 346) 1905 T.S. 59 see also R. v Sukina (1912 TPD 1079) and in Esop v Union Government (1913 CPD 133)
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1999 (4) SA 1319 (SCA) 1999 (4) SA 1319 (SCA)

2004 (5) SA 331 (CC)

based on the recognition of our diversity and tolerance for other religious faiths. It is founded on human dignity, equality and freedom. The decision in Daniels v Campbell has been welcomed by most courts in South Africa as the decision rejected the basis of the decision in Seedat's Executors v The Master and Ismail v Ismail for non-recognition of polygamous marriages.16 The case was followed in Khan v khan17 which in interpreting Maintenance Act held that Muslim marriages which are polygamous are to be recognized as valid marriages and that they are no longer contra bonos mores. The cases however speak to the recognition of polygamous marriages in South Africa but not foreign polygamous marriages, and it can safely be said that when confronted with situations like in the Seedat's Executors v The Master, courts might be persuaded and more willing to accept the progressive and powerful dimension tabled by the Constitutional Court in Daniels v Campbell. The position in Zimbabwe unlike in South Africa is more liberal when it comes to recognition of foreign polygamous marriages. The case of Estate Mehta v Acting Master, High Court18 demonstrates the position. The case involved an appeal from the High Court of Zimbabwe which, following Seedat's Executors v The Master case, had ruled that the widow of a deceased in the case of a potentially polygamous marriage, which was in fact a monogamous marriage, was not a 'surviving spouse' for the purposes of exemption from succession duty in terms of sec. 11 (a) of the Death Duties Act, Chap. 129 (as it was then), as amended by Act 11 of 1947. The Appellant was married to the testator under the Muslim rites in India, and the husband was allowed to take another wife but he exercised his option in Zimbabwe. A will of the property of the testator was left to the surviving spouse. There was an issue whether the wife qualifies as a surviving spouse in terms of the Death Duties Act. The court in rejecting the rule in Seedat's Executors v The Master held that there are good and sufficient reasons for not recognizing such marriages when the consequences of recognition would be to disturb the incidents of our own monogamous system but where it is merely a question of recognizing the marriage for the purpose of succession to property no such complication would arise. The learned judge concluded that it is unrealistic to affirm that it is contrary to the policy of Zimbabwe law to recognize polygamous marriages for the purposes of succession when the majority of marriages in the Zimbabwe are under a polygamous system recognized for all civil purposes. It was further pointed that at the time when Seedat's case was decided, cases indicating the need for a flexible rule had not come before the Courts in South Africa, England or Holland and now that they have, there has come with them the realization of the need of a flexible, not an inflexible rule.19 The case was followed in Kader v Kader20 where it was said that the decision in Seedat's case was clearly influenced by the consideration that in 1917 the Christian religion regarded any form of marriage other than a strictly monogamous one as an anathema disentitling it to any recognition whatsoever by the courts. In Kader v Kader
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KHAN v KHAN 2005 (2) SA 272 (T) 2005 (2) SA 272 (T) 18 1958 (4) SA 252 (FC). 19 per CLAYDEN FJ Estate Mehta v Acting Master 20 1972 (3) SA 203 (RA)

the appellant married the respondent in Malawi according to Muslim rites making the marriage potentially polygamous, but such a marriage is recognized as valid according to the laws of Malawi. The parties thereafter went to Zimbabwe, and lived together until they separated. The respondent then sought and obtained the maintenance order in the Salisbury magistrate's court on 15th November, 1967 on the grounds that the appellant had deserted her and the children. The basis of the application for rescission was that the original order was void ab initio because the marriage, being a potentially polygamous one, was not a marriage for the purposes of the Deserted Wives and Children Protection Act, and the respondent was not, therefore, a 'wife' entitled to relief under sec. 4 of the Act. The held that the Respondent was a wife and by so doing rejecting the rule in Seedats Executors. The court pointed out that the progressive tendency has been towards a relaxation of the attitude of religious intolerance of polygamous marriages which are valid according to the laws of the country where the parties thereto were domiciled at the time of their marriage.21 It was remarked that it seems to be entirely illogical to withhold similar recognition to polygamous marriages validly contracted by non-Africans in the countries of their domicile particularly where the marriages, though potentially polygamous, are in fact monogamous while all the indigenous peoples were living under a system of polygamy and the vast majority of them are still practicing polygamy.22 The court further endorsed the reasoning used in Iman Din v National Assistance Board, that when a question arises of recognizing a foreign marriage or of construing the word 'wife' in a statute, everything depends upon the purpose for which the marriage is to be recognized.23 In England the starting point as to recognition of foreign marriages is the case of Hyde v Hyde where Lord Penzance defined marriage for the purpose of the remedies, the adjudication and the relief of the matrimonial law of England as the voluntary union for life of one man and one woman to the exclusion of all others.24 It was held that a potentially polygamous marriage such as Hydes was to be equated with an actually polygamous marriage and that such unions were excluded from the remedial jurisdiction of the matrimonial courts but not necessarily that they are not recognized in England as valid marriages.25 English law accords respect and recognition to polygamous unions contracted abroad but, in respect of marriages contracted within England, the legislature is entitled to set out its own conditions.26 In the case of Baindail v Baindail, it was held that English law certainly does not refuse all recognition of that status and it will depend on the purpose for recognizing such marriages.27 Same reasoning was used in Iman Din v National Assistance Board, that when a question arises of recognizing a foreign marriage or of construing the word 'wife' in a statute, everything depends upon the purpose for which the marriage is to be recognized and in the case it was polygamous marriage was recognized as valid in England to enable a deserted wife to be maintained
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As above Per LEWIS AJP Kader v Kader 1972 (3) SA 203 (RA) 23 (1967) 2 Q.B.D. 213
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(1866) LR 1 P & D 130.


nd

J.Obrien, Conflict of Law, 2 ed, 1999, at 451 nd J.Obrien, Conflict of Law, 2 ed, 1999, at 453 27 1946 P. 122 see also Iman Din v National Assistance Board

by her husband under wife and children should not be recognized as his wife and children for the purpose of the National Assistance Act of 1948.28 Botswana as a dual legal system where received Roman Dutch law subsists with customary law, will have a system dealing with polygamous marriages in both systems. Common law of Botswana prohibits polygamy, but same cannot be said for customary law.29 The case of Ntshekang v Pule recognized that in Botswana where several types of marriages are known, customary and civil among others, customary law allows polygamy is while civil marriages prohibits polygamy which can give rise to bigamy.30 However there is no authority as for the position of recognition of foreign polygamous marriages in Botswana.31 As such the position in South Africa or Zimbabwe discussed above which are conflicting would be applied. It seems most likely that Botswana courts will favour the approach taken by the Zimbabwe courts to recognize foreign polygamous marriages. This is because there are so many foreigners which some of whom are polygamous have been welcomed in Botswana for various reasons among them, for investment, economic, creating employment for Batswana and help grow the economy and courts would be defeating the efforts by government to help grow the economy if the foreigners cannot be given protection by the law on their marital rights. Also Batswana still practice polygamy as was shown in the Ntshekang v Pule case, and as such it would be illogical to not afford recognition to foreign polygamous marriages using the same reasoning as that in Estate Mehta v Acting Master and Kader v Kader. In conclusion the position of the law in South Africa as shown in the Seedat case is very outdated and regressive as it discriminates on the basis of religion. The law should not be used to perpetuate inequality but rather it should be used as a tool to bring equality to all persons regardless of their religious beliefs. The case of Daniels v Campbell represents what the law should be in South Africa, as the case seeks to show that the law in Seedat was based on discrimination and white minority rule which should not be allowed to rule to this day. Zimbabwe is thus far content about its position that foreign polygamous marriages which are valid in their own countries should be recognized , shows progressiveness in a legal system which keeps with times of tolerance, globalization and industrial migration.

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(1967) 2 Q.B.D. 213 J Kiggundu, Private International Law, 2006, pg 215 see also NTSHEKANG v PULE 2010 (1) BLR 309 (HC) 30 2010 (1) BLR 309 (HC) 31 J Kiggundu, Private International Law, 2006, pg 215

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