Proprietary consequences - Nnnbbb PDF

Preview

Summary

NOTES ON UNIT ...

Description

Proprietary consequences Which sec in the RoCMa deals with the PC of a CUSTM? SEC 7 What is the situation regarding SEC 7(1) The PC of a CM entered int BEFORE the commencement of act = continued to be governed by Customary LAW BUT REMEMBER: that Sec 6 deals with the equal status and capacity of spouses Sec 7(1) – the PC of CM entered into BEFORE the commencement of this act contuies to be goverenced by Customary Law Which cases should you think of emediatly? Kumede v th President of RSA – Why? It was found to be unconstitutional in the case of Kumede with respect to MONOGOMOUS OLD CUSTOM M( M entered into BEFORE 15 NOV 2000) Because the court said that – why do we then state in Sec 6 that spouses have equal status but then we say that CL applies to the PC But the parties before the court this case was a MONOGOMOUS couple and therefore the court said the judgement ONLY applies MCM (OLD CM)

The court said that these M is also IN COMMUNITY OF PROPERTY Now the position to the OPCM did not change in this case - so the CL is still applicable until which case came along? = Ramahovhi v RSA In this case is where the Court declared Sec7(1) unconstitutional with regards to OPCM RoCM Amendment Bill which is still in the pipeline and which will then replace Sec7(1) with the judgement of the Rama Parties will have equal ownership and control over property and that will be for the OMCM AND OPCM Sec 7(2): Gumede = M is ICOP

What about the new marriages, the M which was entered into under the new act?

Sec7(2) if you are in MCM entered into AFTER the act = ICOP if there is not a ANC involved

what about new PCM? Sec7(6): A husband Must go to court to get a contract approved that will regulate the PCM PC so before he enters into a second or a third M, you need to go to court to get a contract APPROVED

In SEC7(6) – a validity requirement for a further CustM = NO AUTHORITY ? –

NGWENAYNA V MAYLANE SCA

Facts: -

M and the deceased married in 1984 She went to the department of HA after her husband past away And she sai that she wants to register the M There she was notified of another women that stated that she was also married to the D Custm in 2008 M went to the HC and asked 2things: o Their M must be declared as unvalid o They did not adhered to Sec 7(6) of the RoCM A 1. That a husband must go the court to get a contract approved 2. The husband did not ask consent

HC: SCA;

Looked at the wording of Sec 7(6) – MUST Judge in the HC said that this sec is a validity requirement for a subsequent M in PCM Therefore – wife 2 marriage = INVALID 2nd wife appealed to the SCA

-

The court focussed more on the right of the 2nd wife Also, the context in which the Act was drawn up Right to dignity in this regard Declared the 2nd wife’s marriage = VALID The court held that Section 7(6) is NOT a validity requirement for a second PCustM Section 7(6) only deals with PC You will find the requirements of a CustM - Sec 3(1) The 2nd wife’s M = VALID The 1st wife goes to the CC

-

The C agrees with the SCA Sec 7(6) is NOT a validity requirement HOWEVER SCA missed a crusual thing = the second ground that was put before court And that is Customary Law And the CONSENT which needs to be given by the 1st Wife. She was not even informed of the 2nd M And the CC decided to DEVELOP the CL to state that – 1. CONSENT from the 1st wife is necessary She did NOT give consent and she was NOT informed So the 2nd M was found to be INVALID

CC:

-

In regards to New PCM: THINK OF SECTION 7(6) = it is NOT a validity requirement AND CONSENT needed...