Queen Dlamini unlikely to succeed in legal bid against king’s other marriages

It is highly unlikely that late Zulu king Goodwill Zwelithini’s eldest wife queen Sibongile Dlamini could have her civil marriage recognised as the king’s sole union, considering that customary law allows polygamy, cultural experts say.

In two court applications before the Pietermaritzburg Magistrate’s Court, Dlamini argues that she is the late king’s only legitimate wife, since they were married under civil law which prohibits polygamous marriages.

ALSO READ: Before he was King Zwelithini, he was just our brother Goodwill

And while anything could happen in court, it is highly unlikely Dlamini would be successful for “a range of complex reasons”, former UCT vice-chancellor and commissioner of the South African Law Reform Commission, Professor Thandabantu Nhlapo said.

“Although [there is] no doubt [that] determined lawyers can put together an argument that at some point in history the civil marriage predominated where there were other customary marriages existing. But in view of the amending provisions of the 1988 Act, and the clear attempts of the Recognition of Customary Marriages Act of 1998 to ensure that a polygamist never again mixes civil and customary marriages in his households, anything can happen in court. I am reluctant to speculate.”

Dlamini is claiming 50% of the king’s estate, including the Ingonyama Trust, of which he was the sole trustee, stating in her affidavit that the estate was controlled by the two of them jointly.

Marriage under apartheid-era laws could stymie queen’s case

While they may have netered into a civil marriage as they were married according to the Marriage Act of 1961, it is not yet conclusive unless there are more facts, Nhlapo said.

As claimed by media reports that the king’s marriage certificate with Dlamini was issued in terms of Section 22(6) of the Black Administration Act of 1927, their marriage was out of community of property, due to discriminatory apartheid laws, he said.

“If this is the case, the consequences of that marriage, though civil, would be that the matrimonial property regime was out of community of property. That was one of the discriminatory effects of apartheid laws – black people could marry Western-style but they did not thereby secure for themselves the automatic consequences of civil marriage which accrued to whites and other race groups, which consequences were in community of property,” he said.

It was the Marriage and Matrimonial Property Amendment Act of 1988 which provided that black civil marriages entered into after the act would automatically be in community of property, unless the parties insisted otherwise. But this was not retroactive, said Nhlapo.

Marriages of black people before 1988 remained out of community of property.

“This was only resolved this year when the Constitutional Court… ruled Section 22(6) of the Black Administration Act unconstitutional and therefore invalid. When you put all these factors together, Dalimini may now be in a position to claim that she was married in community of property. Unfortunately, this does not totally dispose of the matter.”

How would succession then work?

Nations and polities had their own principles, which often adopt identities from the male line.

In many polities, the first son of the legally wedded wife would customarily succeed, said University of Free State cultural expert Professor Pearl Sithole.

But when a king calls on the polity and nation to pay lobola for a particular wife, regardless of the order of marriage, she will become the chief wife.

ALSO READ: Speculation of King Zwelithini’s successor can ‘create conflict’ – Buthelezi

“In other polities, regardless of the king having married, as soon as he marries someone from royalty, that person is going to be the chief wife. It might be the case here,” Sithole said.

“If you read the things that are being said and the fact that the regent became this particular wife [the late queen regent Mantfombi Shiyiwe Dlamini Zulu], it could be that she was the chief wife and therefore the first son of that particular wife becomes heir apparent,” she said.

While customary law allows polygamy, succession to the kingship is falls under customary law as administered and applied by the relevant royal family, said Nhlapo.

“Where statute has intervened, it has been only to regulate how the name of the successor identified by the royal family is transmitted to the Premier or the President, as the case may be. In making its decision, the royal family would be guided by the customary law of the particular nation concerned, especially the known customary rules governing how the seniority of wives in a polygamous household is determined.”

“In light of these typically South African legal ambiguities and complexities, it would be a brave person indeed who can dare to be dogmatic about what the courts will decide,” Nhlapo said.

rorisangk@citizen.co.za