Can a marital regime be rectified after death of spouse?
Hamupolo v Simon N.O. and 2 Others (SA12-2022) [2024] NASC (25 April 2024)
Facts
The appellant and her deceased husband entered into marriage on 22 December 1999, in the Oshana region, north of the redline. On that day, the pastor who married them requested their identity documents, and started filling in their details in a book (possibly the marriage register). He further enquired from them whether they were already married, to which they answered in the negative. The pastor further spoke to them about the marital regimes applicable in Namibia, and did so by way of simple examples. He then informed them that he was only allowed to marry them in community of property unless they presented an ante-nuptial contract, in which event their marriage would be one out of community of property.
When the pastor enquired from them which marital regime they preferred, they both said, ‘in community of property’. They were then made to sign three sets of forms, one of which indicated their marital regime as in community of property. They then proceeded to the church where their marriage was solemnised. The declaration in terms of section 17(6) of the Native Administration Proclamation was not before court.
Her husband then died intestate on 21 May 2013. After the death and burial of her husband and due to the respondents accepting the marriage between the appellant and her late husband as one out of community of property, she was only awarded a child’s share in the liquidation and distribution account.
The appellant approached the court a quo, seeking a declarator that her marriage to her late husband was one in community of property. That court dismissed the application, and she appealed that court’s judgment and order to the Supreme Court.
Issues for determination
The crisp issue was whether the appellant’s marriage to her late husband was in community of property.
Discussion
‘[2] At the heart of the dispute is s 17(6) of the Native Administration Proclamation 15 of 1928 (the proclamation) which provides as follows:
‘‘A marriage between blacks, contracted after the commencement of this Proclamation, shall not produce the legal consequences of marriage in community of property between the spouses: Provided that in the case of a marriage contracted otherwise than during the subsistence of a customary union between the husband and any woman other than the wife, it shall be competent for the intending spouses at any time within one month previous to the celebration of such marriage to declare jointly before any magistrate or marriage officer (who is hereby authorised to attest such declaration) that it is their intention and desire that community of property and of profit and loss shall result from their marriage, and thereupon such community shall result from their marriage.’’
Analysis of the evidence
[29] The court below’s interpretation of s 17(6) is unassailable. The words ‘at any time within one month previous to the celebration of such marriage’ are unambiguous, and should be given their literal meaning, which is this: blacks contracting a civil marriage in the area defined as the ‘police zone’ may at any time one month before the month that the solemnisation of the marriage takes place, make a declaration in terms of s 17(6) that they intend to marry in community of property. If the legislator, did not intend the s 17(6) declaration to be made, at least a month before the solemnisation of the marriage, it would have said, at any time before the solemnisation of the marriage, which is the interpretation the appellant is advocating for, which is wrong and renders the words ‘within one month previous to’ in s 17(6) unnecessary...
[32] In this case, the judge below found that the spouses made or there was evidence that they made, a declaration in terms of s 17(6) which is confirmed by the pastor. There is no such evidence. The appellant and the pastor are confusing the declarations the spouses made when the pastor was completing forms for the marriage. It is unlikely that the pastor had a clue of the existence of the s 17(6) of the proclamation. This is so on the evidence of the appellant where she said that after the forms, they were, shown three forms, namely, the marriage register and the two declaration forms for marriage where they were each an applicant and the partner, the prospective spouse. These are mundane forms completed and preceding the vows. The spouses have to furnish their personal details to the marriage officer who enters them on the pro forma forms before the marriage is solemnised. They are unrelated to the declaration contemplated by s 17(6). If the pastor was aware of the s 17(6) declaration, it was expected that he should have informed the spouses that he could not marry them on 22 December 1999 because they needed to comply with s 17(6) of the Proclamation and that he could only marry them a month thereafter. The pastor’s affidavit is vague he states that he married the appellant and her late husband on 22 December 1999 and that they signed the form of community of property, which was attached to the marriage register that was sent to the ministry in Windhoek.
[33] We know for a fact that the appellant and her late husband besides the marriage register signed two further separate forms, headed ‘Declaration for a marriage’ which are the documents the ministry had in its custody and produced on the appellant’s request. The suggestion by the court below that the ministry could have misplaced the s 17(6) declaration is speculation.
[34] As already stated, the pastor confuses the declarations in the mundane forms with the s 17(6) declaration, which declaration from the evidence we should accept was never done, attributed to the lack of awareness to the pastor. Had the pastor informed the couple that he could not marry them on 22 December 1999, because of the provisions of s 17(6) but they insisted on being married that day, without the required declaration, then it could be said they chose to marry out of community of property. In this case, it was the pastor’s ignorance of the law, which I find was the case here.
[36] As the learned judge below correctly observed, the purpose of the s 17(6) wording ‘within a month previous’ was to give the black spouses who had declared to get married in community of property the opportunity to reflect on their intentions to contract a marriage in community of property.
[37] From the appellant’s evidence, they approached the pastor on 22 December 1999 and got married there and then, contrary to the provisions of s 17(6) as the Court below correctly held.
The Supreme Court in Mofuka v Mofuka
[38] Counsel urged this court to adopt the approach of Mofuka in the use of the word ‘prior’ in that matter, which counsel argued means immediately or any time before the solemnisation of the marriage as it were in this case where the intention to marry in community of property was declared/professed during the completion of the relevant documentation preceding the exchange of the vows.
[46] I find no reason to accept that the use of the word ‘prior’ by this court in Mofuka without qualification, means any time before the solemnisation of the marriage. Instead, I find its use is consistent with the wording of the proclamation, ‘any time within one month previous to the solemnisation of the marriage’. As I already stated ‘any time’ before the solemnisation of the marriage, means making a declaration on the day of the marriage, which is as good as solemnising a marriage without the words ‘any time within one month previous’. In fact, that suggestion renders those words nugatory. In Re Molefe, that court concluded that in s 22(6) it was intended that neither community of property nor community of profit and loss between the spouses should result from a valid marriage between natives unless the spouses enter into a special contract under the provisions of s 22(6).
[47] Turning to the evidence of the appellant, as was the case in Mofuka (Supreme Court) neither the appellant nor the pastor that married the appellant and the late husband were aware of the provisions of s 17(6) or its effect on the proprietary rights of the spouses. On the appellant’s own evidence, they approached the pastor on 22 December 1999 and he married them that same day. The declaration she alleges they made on the day must be answers to questions the pastor must have put to them. The marriage register attached to the founding affidavit under the heading ‘particulars of marriage’ carries a question of whether the marriage is ‘by/without ante-nuptial contract’, and so does the marriage certificate itself. They answered that they were marrying without an ante-nuptial contract, which is also reflected on the marriage certificate. In fact, on her own version, she said the pastor told them that he could only marry them in community of property unless they produced an ante-nuptial contract.
[48] From the evidence, which is not contradicted, I should accept that they intended to marry in community of property but the pastor who was not aware of the effect of s 17(6) misdirected them when he married them instantly without drawing their attention to the provisions of s 17(6). Consequently, I find that the marriage as between the appellant and her late husband has been concluded out of community of property, but between the appellant and her late husband has the effect of one concluded in community of property.’
Findings
Held that, the purpose of the wording in s 17(6) of the Native Administration Proclamation was to give black spouses who had declared to get married in community of property, the opportunity to reflect on their intentions to enter into such marriage.
Consequently, the court grants condonation and the appeal succeeds partially.
Court order
As a result, the Supreme Court made the following order:
(2) The appeal partially succeeds.
(3) The order of the High Court is substituted for the following:
The marriage between the appellant and her late husband on 22 December 1999 at Ongwediva in Oshana region was one concluded out of community of property, but between the appellant and her late husband, the marriage has the effect of one concluded in community of property.’
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