Zelna Jansen
Since the passing of King Goodwill Zwelithini (Isilo), we have seen two applications lodged in the Pietermaritzburg High Court. The first application was brought by the king’s first wife, Queen Sibongile Zulu, against the queens, princes, princesses, members of the royal family and Sanlam Trust (hereafter, the Royal Family). Queen Sibongile’s application asks that the high court interdicts the Royal Family from disposing of the late Isilo’s estate entirely.
Queen Sibongile claims in her founding affidavit that she and the late Isilo entered a civil marriage wherein the community of property applies.
They therefore shared a joint estate. The Royal Family can only dispose of half of the joint estate. Paragraph 60 of the Queen Sibongile’s founding affidavit provides the following extract of the late Isilo’s will: “marriage in community of property is foreign to the Zulu people; no Zulu king has married one wife or in community of property; and in his lifetime he got married to six queens.”
It appears as if the late Isilo wanted to circumvent the marriage in community of property through his will.
In terms of Queen Sibongile’s affidavit, at the outset it looks like a prima facie case. However, the court may decide differently and rule what is in the best interest of the Royal Family. The application also raises the age-old questions of competing interests and rights in polygamous marriages.
In terms of the Recognition of Customary Marriages Act (RCMA), 1998, customary law is defined as customs and usages traditionally observed among indigenous African people of South Africa and which form part of the culture of that people. A customary marriage is based on this customary law.
A civil marriage is entered into in terms of the matrimonial laws of the country. In the case of Queen Sibongile, she and the late Isilo were married in terms of the Black Administration Act of 1927. However, because the act was discriminatory, unconstitutional, and invalid, the Constitutional Court declared all marriages concluded in terms of the Black Administration Act were in community of property unless the parties consented otherwise.
In terms of the RCMA, the queens whom the late Isilo married through customary laws are deemed to automatically be married in community of property unless antenuptial contracts were concluded before the marriages.
Each spouse is given the same protection to avoid situations in which one spouse gains more than another spouse or gets overlooked entirely especially in terms of inheritance or a divorce.
All the late Isilo’s marriages are therefore legal and binding. Queen Sibongile may succeed in the court ruling in her favour on the issue of the joint estate. This is not because a civil marriage trumps a customary marriage but rather because the civil union she entered into with the late Isilo created a joint estate of which she owns half. The marriage regime cannot be changed through a will.
If the late Isilo wanted to end the marriage of community of property, he should have divorced her, or alternatively, they, jointly, could have applied to court to change their marriage from in community of property to out of community of property. Therefore, only the half share of the late Isilo’s estate can be disposed of according to his last will.
From Queen Sibongile’s affidavit, it seems that she and the late Isilo only entered a civil marriage and not a further customary marriage. In terms of RCMA, if Queen Sibongile and the late Isilo were also married through customary law as well, she may also be entitled to a portion of the late Isilo’s half estate.
The second application is brought by Princesses Ntandoyenkosi Zulu and Ntombizosthu Zulu-Duma, the daughters of Queen Sibongile. The princesses claim that their father, the late Isilo’s signature was forged on his will and asked for an order that the will be declared null and void.
If the court were to find in their favour, it would mean that there is no will and the Intestate Succession Act, 1987, would apply. In such a scenario, Queen Sibongile could inherit the entire estate. However, spouses of customary marriages are also recognised and it is therefore also possible that the late Isilo’s estate will be divided among all the spouses.
If there is no valid will, it would also mean that there is no successor appointed.
Sections 17 of the KwaZulu-Natal Leadership and Governance Act, 2005, makes provision for the appointment of the Isilo. In such an event, the Royal Family will decide on a successor.
Section 30 of the Leadership Act also makes provision for an ibambabukhosi. This person administers the estate of the late Isilo in cases where the successor is not identified or is a minor. The Royal Family has appointed the ibambabukhosi which has resulted in the court application by Queen Sibongile.
The late Isilo was also the sole trustee of the Ingonyama Trust. The trust was established to manage land owned by the government of KwaZulu and is currently responsible for managing some 2.8 million hectares of land in KwaZulu-Natal. The trust is administered by a board. In the event that there is no trustee, the trust can approach the court to appoint a trustee.
In the past, customary marriages had no recognition and legal standing. However, the Constitution recognises all unions as equal. It will therefore be interesting to see how the court weighs and balances various rights. Despite the legal standing of the queen’s civil marriage, the court may decide differently and rule in the best interest of the Zulu monarchy.
* Zelna Jansen is a lawyer and the CEO of Zelna Jansen Consultancy.
** The views expressed here are not necessarily those of IOL and Independent Media.