TINA HOKWANA | Marriage that wasn't: Court nullifies 36-year union after husband failed to divorce first wife

Husband failed to finalise divorce

11 May 2023 - 19:48
By Tina Hokwana
The court has nullified a 36-year old union after the husban
Image: 123RF/STOCKSTUDIO44 The court has nullified a 36-year old union after the husban

Mr (the deceased) and Mrs Bobani were married in community of property on June 7 1980 and had one child.

On March 9 1986, during the subsistence of his marriage to his wife, the deceased entered into another civil marriage with Ms Benge.

The couple’s daughter, Nomangesi, passed away in 2001 leaving a son – Zolani. The deceased died in 2017 and his wife, Mrs Bobani, predeceased him in 2006.

After his death, Zolani proceeded to the master’s office in Mdantsane to report the death of his grandfather. 

According to Zolani, he was told to come back to the master’s office after seven days. However, upon his return, he was advised by the estate clerk that the deceased was married to Ms Benge and was shown a marriage certificate. 

He was also told that Ms Benge had been issued with letters of authority in terms of s18 (3) of the Administration of Estates Act.

Zolani then brought an application seeking the following:

  1. That the purported marriage entered into between Ms Benge and the deceased in 1986 be declared null and void on the grounds that it is a bigamous marriage;
  2. That the appointment of Ms Benge as the estate representative of the deceased estate by the Master of the High Court, Bhisho, be declared unlawful and set aside.
  3. That the Master of the High Court, Bhisho, be authorised to appoint Zolani as the executor of the deceased estate.
  4. An order that Ms Benge was not entitled to claim any asset, more in particular, the deceased’s house in Mdantsane.
  5. That Ms Benge or any other person(s) acting at her instance or on her instructions be interdicted and restrained from harassing and/or intimidating Zolani and/or interfering with his right to occupy the deceased’s house located in Mdantsane.
  6. That Ms Benge be ordered to pay the costs of the application.

According to Ms Benge, she started a relationship with the deceased in December 1983 and that at that time he was married to his wife, the late Mrs Bobani. She was, however, informed by the deceased that he was in the process of divorcing his wife in 1984.  She further stated that in 1986 she was told by the deceased that he was divorced and asked her to marry him. They subsequently got married on March 9 1986 as she believed the deceased when he told her that he was divorced from his wife.

Ms Benge filed further papers in which she annexed court papers which were issued out of the then Supreme Court of Ciskei under case no.621/1984. It appeared from those papers that the deceased had in fact instituted divorce proceedings against his wife on September 4 1984 in which he sought a decree of divorce. It also appeared that his wife was contesting the said divorce proceedings. Divorce proceedings were never concluded at the time of her death in 2006.

It was the court’s opinion that there was no doubt that the deceased might have lured Ms Benge into a marriage pretending to her that divorce proceedings between himself and his wife had been finalised when in fact that was not the case. 

The court pointed out that the problem of two people purportedly entering into a marriage is not a new phenomenon, in fact, it received the attention of our courts before – reference was made to the 1984 case of Snyman v Snyman. Further cases can be found on my Twitter page.

The court acknowledged that Ms Benge might have been misled by the deceased and lured into a marriage, however, that does not clothe the purported marriage with validity. In fact, had she taken the same steps that she took after the death of the deceased to obtain confirmation of the status of the divorce that the deceased had told her about before agreeing to the marriage, she would have discovered that the divorce proceedings between the deceased and the late Mrs Bobani were still pending. 

The court went further and found that at that time, all it would have taken was for her to ask the deceased to produce the divorce decree or ask him to go to the relevant court with her to verify the status of the divorce proceedings. 

The court also found it difficult to believe her allegation that when she and the deceased went to the then Ciskei department of interior to get married, the deceased told the officials there that he was divorced. Those officials would have asked him for a divorce decree before proceeding to officiate the marriage. It was more likely to the court that Ms Benge and the deceased misled the officials by telling them that they were both not married. 

The court found that the purported marriage between the deceased and Ms Benge was invalid and was therefore set aside. 

It ordered that the appointment of Ms Benge as the estate representative of the deceased estate be declared unlawful and set aside and the letter of authority issued to her declared invalid and set aside. She was directed to return the letters of authority issued to her by the Master of the High Court, Bhisho.

The Master of the High Court, Bhisho, was directed to cancel the letters of authority issued to her. Master of the High Court, Bhisho, was directed to start the process of appointing the estate representative/executor of the deceased estate de novo (afresh) and finalise the winding up of the deceased estate. Ms Benge was ordered to pay costs of this application.

Judgment: http://www.saflii.org/za/cases/ZAECBHC/2022/8.html


  • Tina Hokwana, our new regular feature writer, is a legal practitioner who unpacks court judgments to provide you with insights on how family law works.