CIV.
T. NO. 705/88
In
the Ex Parte Application of:
MASHWELE
JOHN DLAMINI 1st Applicant
and
EMELINE
DUDUZILE DLAMINI 2nd Applicant (Born Msibi)
CORAM
: F. X. RODNEY
FDR
APPLICANTS : VILAKATI
JUDGMENT
21/4/89
Rooney,_J.
In
the Notice of Motion the applicants seek the following relief -
1.
That
the purported marriage between the First applicant and the second
applicant be and is hereby declared null and void.
2.
Authorising
the Registrar of Births, Marriages and Deaths to expunge the said
marriage from his
records.
On
the 8th March, 1965, the applicants were married by the Regional
Secretary at Manzini pursuant to the Marriage Act, 1965. The
brodegroom described himself as single. However, on the 12th October,
1977 he had married Sibongile Ntshangase by Swazi law and custom. The
first applicant deposes that his former marriage still subsists .
2
Section
7 of the Marriage Act reads -
"No
person already legally married may marry in terms of this Act during
the subsistence of the marriage, irrespective of whether that
previous marriage was in accordance with Swazi law and custom or
civil lights and any person who purports to enter into such a
marriage shall be deemed to have committed the offence of bigamy
........"
The
first applicant explains the circumstances In which the bigamy was
committed. The second applicant was at the time a student teacher who
was pregnant by the first applicant. The civil marriage was employed
as a device to avoid her expulsion from the teachers training
college. Full particulars of these circumstances have not been
provided, but, I note that the second applicant gave birth to three
children between 1980 and 1984,of whom the first applicant
acknowledges his parentity.
It
is the stated intention of the parties that following the decree now
sought in this Court, they will marry under Swazi law and custom.
The
purported marriage of the applicants is void ab initio. The present
proceedings are of xx declaratory nature in so far as the decree of
nullity is concerned. (see Ex parte Oxton 1948 (1) S.A. 1011 per
Searle A.J= at 1017)=
The
first applicant is prima facie guilty of the crime of bigamy and now
seeks to undo his own unlawful act. If the second applicant was aware
of the existence of the previous marriage under Swazi law and custom
she is an accessory to the crime. It might be argued that the parties
are estopped from seeking a
3
declaratory
order on the grounds that they do not come to this Court with clean
hands. The point has not been raised in these proceedings and I
hesitate to state a definitive view. However, there is some authority
for the opinion that an estoppel cannot arise. In Hayward v. Hayward
1961 (1) ALL E.R. 236the Probate Divorce and Admirality Division held
that no estoppel existed. Philimore J. said at 241
"It
seems to me that it would be contrary to all principle if a ceremony
which is by definition null and void could be converted into
something valid and binding and capable of confering status by the
act or inaction of a party to if. It would surely be remarkable as a
proposition of law if this court were to be prevented from declaring
the truth, namely that a marriage is bigamous, and so correcting the
status of the parties to it and of their dependents merely because
one or both of them has chosen to assert its or validity or because
one of them failed to dispute or has concurred in the assertion of
its validity by the other
This
court deals not merely with disputes between parties but with status.
Marriage is not an ordinary contract - it is an intitution which
'confers a status on the parties to it, and upon the children that
issue from it, 'as LORD PENZANEE pointed out in Mordaunt v. Mordaunt
(19). It is an old maxim that estoppels are odious because they tend
to shut out the truth (15 HALSBURY'S LAWS (3rd Edn) 203 para 382),and
it is well settled that they cannot override the law of the land
(PHIPSOIM ON EVIDENCE 9th Edn,), p 705 and cases cited there). If the
law declares a bigamous marriage void and
criminal,
is this court nevertheless to treat it as valid and refuse to declare
the truth by reason of the conduct, however unmeritorious, of one or
both of the parties to it?"
In
Vlook v. Vlook 1953 (1) S.A. 485, Dowling J. granted an application
by a husband who had entered into a bigamous marriage with the
respondent and who had been convicted of bigamy for an order a
nulling such marriage. Unfortunately Dowling J. did not supply his
reasons and this lessens the authorative value of the decision,
In
Ex parte Ginindza 1979-81 S.L.R. 361, Nathan J. declared a marriage
null and void in circumstances similar to those In the present case.
The husband was married under Swazi law and custom and he
subsequently married the second applicant under the Marriage Act. The
purpose of the husband was to avoid the possibility of being
prosecuted for bigamy. This Court made the declaration that the civil
marriage was null and void. The question of estoppel, was not raisedo
I must express doubt as to whether the applicant could have
successfully defended a charge of bigamy by relying upon the order
made in this Court.
Bigamy
is committed when the purported marriage is contracted. It is the
actus reus. The subsequent declaration by the High Court did not
absolve the applicant from its consequences. If it did anything, it
confirmed the bigamous charactor of the void marriage and thus the
guilt of the applicant.
I
see no objection to granting to the applicants the first claim for
relief. The second claim affords difficulty., It was granted to the
applicant in Vlook v. Vlook (Supra). Counsel submitted that it would
not be in the interests of the State to allow a public
5
register
to be inaccurate™
Dowling J. appears to have accepted this proposition without first
examining it.
A
marriage must be registered under Part v of the Births, Marriages and
Deaths Registration Act 1927. The Act does not provide for the
alteration of entries in any marriage register. In the regulations
made under tha Act, provision is made under 13 (2) and (3) for the
correction of palpable errors and omissions,. No other authority to
correct errors can be found in the statute,,
The
accurate recording of births, marriages and deaths is important not
only to the individuals concerned, but, to society as a whole. The
register contains record of historical events and the passage of the
generations. In the case of a marriage the record confirms that the
event took place, but, is not concerned with the validity or
otherwise of the marriage so recorded.
It
is submitted that this Court has an inherent power to authorize
the registrar of births, marriages and Deaths to expunge the bigamous
marriage from the records. No auth ority has been cited to me and I
can find none,, In certain South African jurisdictions it has been
held that a superior court has authority to correct errors in the
registry. For instance, in Ex parte Whitefield 1911 T.B.D. 40 it was
held that the court had jurisdiction to authorize the
Registrar-General to amend an error in the name of a contracting
party which arose due to a misunderstanding by the marriage officer.
Curlewis J, referred to a previous decision in the Cape Colony
(Kitley V. Colonial Secretary 17 C,T.R. 113) when the word "widow"
was substituted for the word "spinster" in the marriage
register. Other examples are to be found in Ex parte Peach 19 25
T.P.D. 692, ex parte Groth 1927 W.L.D. 303 and Ex parte Lewis 1927
W.L.D. 192.
6
In
ex parte Finkv 1930 C.P.D. 17 an application to correct an error was
refused on the grounds that this was a matter for regulation and not
for intervention by the Court.
(Supra)
Apart therefore from the case of Vlook v. Vlook/I know of no case in
which an order similar to that sought in these proceedings has been
granted. In the interesting case of Dinuzulu v. Attorney-General 1958
(3). ALL E.R. 555 the plaintiff claimed a mandamus against the
registrar-General in England directing him to correct or erase the
entry in the register of marriages relating to a bigamous marriage.
Mandamus was refused because the entry of marriage in the register
was not made ultra vires, as the word "marriage" in S. 23
of the Marriage Act 1836 extended to a ceremony of marriage although
the marriage was void, and the power under the Act to correct entries
in the register did not enable it to be expunged or a note to be made
to it that the marriage was void.
There
is nothing in either the Marriage Act 1964 of this country or in the
Births, Marriages and Deaths Act which makes the position different
from that obtaining in England. The word "marriage" as
defined in the latter statute "means a civil or a marriage
entered into in accordance with Swazi law and custom". The
obligation to register such marriages under part V of the Act exists,
irrespective of the validity of such marriages. It is the ceremony
that must be entered upon the records for the practical reason that
if the marriage Officer was aware of the impediment he would not be
expected to proceed with the ceremony.
The
bigamous marriage of the applicants did atake place and it is so
recorded. I am not persuaded that this Court has any power inherent
or otherwise to make an order expunging that marriage from
7
the
record.
In
the result, I make the declaration that the purported marriage
contracted between the applicants on the 8th March, 1985 is null and
void. I dismiss the application that 1 direct the Registrar to
expunge it from the record
F.X.
ROONEY
JUDGE
