This article first appeared in the Sunday Times

THE TPM SAYS: Last year taxpayers sponsored Zuma’s spousal budget to the extent of R15 million which by some estimates is more than 300% higher than previously. Furthermore these costs could still increase further!

It has been widely reported that Nompumelelo Ntuli-Zuma, Jacob Zuma’s second wife, had an extramarital affair with her bodyguard, Phinda Thomo, who is said to be the father of her unborn baby.

So the question that begs an answer is: what is the effect of the female spouse’s infidelity on the marriage and, more importantly, on the South African taxpayer?

It is estimated that Zuma earns over R2-million a year, excluding all the perks that come with the job, such as accommodation and transport allowances for him and his wives. And as a president of South Africa, he will continue to receive money long after leaving office.

But what happens if one of his wives decides she has had enough? Could she walk away from the marriage and still be entitled to some of his estate?

In KwaZulu-Natal customary law, extramarital affairs by either spouse are sufficient cause for the dissolution of the marriage.

While the president has admitted to various affairs, his flings have had little or no impact on his union with his first wife, Sizakele Khumalo-Zuma, or with MaNtuli.

Now that he has allegedly been cheated on, the result may be different, thanks to the disparity in status between men and women in customary marriages.

To understand the hierarchical relationship between Zuma and MaNtuli, one only has to consider what happened after news of her affair was published.

It is alleged that MaNtuli’s brothers, as her male representatives, and not MaNtuli, went to the president and gave him a goat. The gift could be seen as an admission of guilt in terms of customary law.

In civil unions, where one party can show that the other’s misconduct has led to the breakdown of the marriage, a spouse may be entitled to claim that the “misbehaving” party forfeit the property they should have been entitled to upon the dissolution of the marriage. But we need to examine what the status of customary marriages is in South Africa.

Before the Recognition of Customary Marriages Act was enacted in November 2000, traditional unions were given limited recognition. The act addressed this issue as well as creating a distinction between those marriages concluded prior to November 2000 and those entered into afterwards.

Customary marriages since November 2000 – where the man has not previously been married – will be deemed to be in community of property. This means that both spouses share the same estate and the profits and losses they incur.

As Zuma was married before, he should have approached the court when he married MaNtuli in 2008 with a written contract which would govern the matrimonial property system of his existing marriage and that with his second wife.

In granting an order for the dissolution of a customary marriage, the court must consider, among other things, the contract entered into between the husband and wife, and issue an “equitable order that it deems just”.

So the written contract will be used to determine how the president and MaNtuli’s property will be divided if the marriage ends.

Should either Zuma or MaNtuli wish to divorce the other, they will have to go to court to do so. As with civil marriages, the party requesting the divorce will have to show that the marital relationship has broken down irretrievably.

If Zuma can show that MaNtuli’s behaviour led to the breakdown of the marriage, and that she would unjustly benefit from a division in terms of the contract, he may be granted an order stripping her of some or all of her claim to the president’s estate.

Considering the allegations of MaNtuli’s relationships with Thomo and actor Joe Mafela, Zuma may just be successful in protecting his estate. But his second wife could well raise the issue of Zuma’s own extramarital affairs.

The Recognition of Customary Marriages Act requires that certain provisions of the Divorce Act be applied when ending a customary marriage. This includes the court’s power to order that Zuma pay MaNtuli maintenance until her death or remarriage.

If MaNtuli and Zuma divorce, the division of property will become clearer once the copy of their marriage contract surfaces – if, indeed, a contract was actually concluded.

Should Zuma elect to launch divorce proceedings, he may consider calling for the repayment of the lobolo given to MaNtuli’s family so as to mitigate any costs incurred.

And Zuma could also claim inhlawulo from Thomo’s estate because the security guard – who committed suicide after rumours of the affair began – allegedly had intercourse with a married woman and impregnated her.

In terms of customary law, if Zuma asks MaNtuli about the identity of the baby’s father and she refuses to answer him, the customary marriage may be dissolved. The amount to be paid as damages will be determined by the court, regard being had to the husband’s absence and the repetitive conduct of the wife.

However, these amounts would probably be a drop in the ocean when one considers that Zuma allegedly spent more than R65-million renovating his KwaZulu-Natal home

An issue of major concern to taxpayers is to what extent Zuma will be liable for the maintenance of the unborn child if it is found to be his.

In terms of South African common law, both parents have a duty to support their children within their means.

In his first fiscal year as president, Zuma allegedly earned R2.25-million. Considering what his wife earns, Zuma is most likely the one who will have to support the children.

And because the ANC leader will be entitled to a president’s salary for life, the onus to cover these costs will rest with the South African taxpayer.

In the event that the baby is not Zuma’s, the issue to be considered is whether he will care for the child, as he has done with the children he has fathered out of wedlock.

It appears from various questions raised in parliament by the opposition Democratic Alliance and the written response by the minister in the presidency, Collins Chabane, that provision is made for the president’s spouse in the form of a “spousal office budget”.

Chabane told parliament this budget provided for the “reasonable administrative, logistical and other support” for the president’s wife.

Previous presidents, who had only one wife and a handful of children, cost the state between R4-million and R8-million annually.

But Zuma’s extended family saw the taxpayers of South Africa forking out more than R15-million for the spousal budget this past financial year.

Considering the lack of an official role for the president’s wife or wives, one has to wonder what Chabane’s “other support” refers to and how far the duty on the taxpayer to pay the costs of Zuma’s wives extends.

It may be argued that the very lifestyle kindly paid for by the public may well be the reason MaNtuli has remained married to Zuma.

And let us not forget the annual salary the president is set to earn for life, as well as the domestic and international air travel and accommodation they will be entitled to.

Ultimately, the lifestyle of the Zumas will continue to impact upon the taxpayer.

Ordinary citizens will continue to cover the expenses associated with Zuma’s lifestyle and that of his wives and children – as well as for any collateral damage – such as divorce proceedings and the consequent lawyers fees.

• Snider is an associate at Schindlers Attorneys, who specialises in family law

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