IN
THE HIGH COURT OF SWAZILAND
In
the matter between:
DUMISANI
S. NKABULE Appellant
and
FIKILE
L. NKAMBULE Respondent
CORAM
F. X. ROONEY
FOR
APPELLANT LITTLER
FOR
RESPONDENT DUNSEITH
JUDGMENT
17
February, 89 Rooney, J.
On
the 1st April, 1986 the present appellant insituted an action in the
Magistrate's court for Hhohho in which he claimed against his wife,
the present respondent (a) restoration of conjugal rights, failing
which a decree of divorce, costs and alternative relief. The response
of the respondent included a counterclaim for a restitution order,
failing which a decree of divorce, forfeiture of benefits and costs.
On
the 15th April, 1987 the matter was set down for hearing before Mr
S.S. Ginindza. The respondent was not present or represented and the
magistrate, having heard evidence made an order for restitution of
conjugal rights.
On
the 22nd May, 1987 an application for the recision of the order dated
the 15th April, was granted by the late Mr J. V. Okaya with the
consent of both parties.
On
the 23rd November, 1987 the attorneys for the parties appeared before
Mr A. P. Cele and it was agreed that the Court be asked to decide a
point of law governing the proprietary consequences of the marriage.
On.
the 9th November the magistrate ruled that the marriage between the
parties was governed by common law and not Swazi law and custom.
In
subsequent proceedings before Mr S.S. Ginindza, the marriage between
the parties was dissolved on the,18th May, 1988 and a division of the
joint estate ordered. The present appeal is against these orders.
Both
the parties are Africans, domiciled in Swaziland. The marriage was
solemnized in the London Borough of Barnet on the 9th March, 1979.
The question at issue is the nature of the matrimonial regime which
governs the marriage. The appellant contends that this is founded on
Swazi law and custom and the respondent favours the Roman Dutch law
as the common law of this country under which the division of the
joint estate as ordered in the court below would be appropriate.
Where
no marriage contract or settlement has beer; expressly made by the
parties or is implied by law, the effect of marriage as an assignment
of property depends, so far as moveable are concerned, on the law of
the matrimonial domicile, that is the husband's domicile at the date
of marriage, and in respect of immovable on the lex situs. That is
the law of England and it is the same under the common law of this
country (Frankel's Estates and another v. The Master and Another 1950
(1) S.A.
220.
Van den Heever put it thus at 241.
view
"What may be termed the orthodox/is that in the absence of such
express agreement the law of the country where the husband is
domiciled at the time of the marriage is the governing law. The Roman
Dutch and Civilian authorities explain the rule, that the property
rights of the spouses are prima facie governed by the lex domicilii
of the marriage, by stating that the parties are assumed, in the
absence of any indication to the contrary, to have intended to
establish their matrimonial home in the country where the husband was
domiciled at the time of the marriage and to have submitted
themselves to the matrimonial regime obtaining in that country."
The
matrimonial domicile of the husband in this case is Swaziland. The
General Administration Act 1905 by section 3 provides that "The
Roman-Dutch common law, save in so far as the same has been
heretofore or may from time to time hereafter be modified by statute
shall be law in Swaziland".
That
statute still remains in force and has not been altered by
constitutional developments which have taken place since.
The
Marriage Act 1964 became law on the 31st July, of that year. The Act
recognises two forms of marriage, one by civil rights and one by
Swazi law and custom. (See section 3 (2) 5, 7 (1) and 7 (1). Section
24 reads -
"Common
Law
24.
The consequence flowing from a mariage in terms of this Act shall be
in accordance with the common law as varied from time to time by any
law, unless both parties to the marriage are Africans in which case,
subject to the terms of section 25, the marital power of the husband
and the property rights of the spouses shall be governed by Swazi law
and custom.
25.
(1) If both parties to a marriage are Africans, the consequences
flowing from the marriage shall be governed by the law and custom
applicable to them unless prior to the solemnization of the marriage
the parties agree that the consequences following the marriage shall
be governed by the common law.
2)
If the parties agree that the consequences flowing from the marriage
shall be governed by the common law, the marriage officer shall
endorse on the original marriage register and on duplicate original
register the fact of the agreement;"and the production of a
marriage certificate, original register or duplicate original
marriage register so endorsed shall be prima facie evidence of that
fact unless the contrary is proved.
The
parties did not marry in accordance with the term of the Swaziland
statute. The parties did not agree that the consequences following
from their marriage shall be governed by the common law and if they
had done so it would not have been possible for them to insist that
they marriage officer in England should comply with section 25 (2) of
the Act. The application of that sub-section is clearly confined to
marriage officers appointed under section 16 of the Act.
this
supports to some extent the submission that sections 25 and 26 are
limited in their application to marriages performed within Swaziland.
The statute does nor clearly and unambigualy limit the common law
governing matrimonial property in the case of a marriage celebrated
elsewhere. In R. vs. Morris (1861-73) All E.R. Rep 484 at 486
Byles J. said -
"......it
is a sound rule to contrue a statute in conformity with the common
law rather than against it, except where so far as the statute is
plainly intended to alter the course of the common law".
I
am inclined to the view that the Marriage Act should be construed
strictly in this respect. The intention was to legislate for the
proprietary consequences following a marriage performed under the
Act. It did not intend to alter the common law principle that the law
of the husbands domicile was the Roman Dutch law of Swaziland. An
African (and that term is not restricted to people who can properly
be described as Swazis) who is domiciled in this country, who marries
outside Swaziland without an ante nuptual contract takes the law of
his dimicile with him and it is that law and not Swazi law and
custom, which determines the proprietary consequences which follow.
5
The
plaintiff did not seek a division of the joint estate as he denied
such estate existed. The defendant sought forfeiture of benefits. The
court below grated a division of the estate and in my view that was
an appropriate order.
This
appeal is dismissed with costs.
F.
X. ROONEY
JUDGE
