G.M. v N.T. and Another (123653/2024) [2025] ZAGPJHC 769 (29 July 2025)

Case Note

G[…] M[…] v N[…] T[…] and Another (12365/2024) [2025] ZAGPJHC 123 (29 July 2025)

Reportability

This judgment is marked reportable because it grapples with the validity of a putative customary marriage involving a minor bride, the alleged dissolution of that marriage under customary law, and the consequent succession implications after the husband’s death. The case raises questions of public importance concerning the proof of living customary law, the interface between customary and common-law divorce regimes, and the evidentiary threshold required in motion proceedings to secure declaratory relief.

The decision also illustrates the High Court’s willingness to convert motion proceedings into trial proceedings where material disputes of fact cannot be resolved on the papers. Finally, it highlights the court’s use of compulsory mediation directives as a mechanism to foster settlement in family-estate disputes.

Cases Cited

No precedent is expressly cited in the ex-tempore judgment. The court relied solely on first principles, the pleadings, and the evidential record before it.

Legislation Cited

No statute is expressly referenced in the judgment. However, by implication, the Recognition of Customary Marriages Act 120 of 1998 and the Mediation in Certain Civil Cases Rules under section 7(2) of the Rules Board for Courts of Law Act 107 of 1985 are potentially applicable.

Rules of Court Cited

The judgment refers generally to the Uniform Rules of Court, in particular those regulating:
• The conversion of motion proceedings to trial proceedings
• The delivery of particulars of claim in a trial action
• The ordinary timetable for pleadings and discovery in action trials

HEADNOTE

Summary

The applicant, Ms G[…] M[…], sought a declarator in motion proceedings that her purported 1970s customary marriage to the late Mr G[…] E[…] B[…] subsists and was never dissolved. The first respondent, Ms Nomasonto T[…], who also claims to have been married to the deceased, contended that the earlier customary marriage was valid but was subsequently dissolved at the behest of the local traditional leader.

Wilson J found that the affidavits were replete with unsubstantiated assertions. Crucial facts—such as the applicable system of customary law, the validity of a union involving a 12-year-old bride, and the process for a customary-law divorce—were not proved. The judge held that these disputes of fact rendered the matter unsuitable for resolution on affidavit and therefore referred the entire application to trial.

The court stressed the importance of compulsory mediation, encouraged the parties to narrow the issues, reserved costs, and laid down procedural directives for the forthcoming action.

Key Issues

The court had to determine whether the applicant had proved on the papers:
• The existence of a valid customary marriage concluded in the 1970s
• The non-existence (or invalidity) of any customary-law divorce prior to the deceased’s second purported marriage
• Her resulting status as the deceased’s lawful spouse and potential beneficiary of his estate.

Held

Wilson J held that the papers were insufficient to establish any of the contested facts. Motion proceedings were inappropriate because oral evidence would be required on matters ranging from living custom to the credibility of witnesses (including a blind traditional leader who claimed to have “read” the papers). The matter was therefore referred to trial; costs were reserved.

THE FACTS

The applicant averred that, when she was 12 years old and the deceased was 20, their families negotiated and concluded a customary marriage. Both of her parents, who allegedly consented, are now deceased, leaving the applicant to rely on affidavits from relatives. She contended that the marriage endured until the deceased’s death.

The first respondent accepted that a customary marriage had once subsisted but alleged that it was formally dissolved by a traditional leader before she entered into her own customary marriage with the deceased. In support, she produced an affidavit from that leader asserting that he presided over the divorce ceremony and issuing a declaration to that effect.

The record contains no documentary proof of either the 1970s marriage or the purported divorce. Furthermore, there is no evidence detailing the specific customary practices, rites, or procedures that would ordinarily govern marriage or divorce in the community concerned.

THE ISSUES

First, the court had to decide whether the applicant had adduced sufficient evidence to prove the existence and continued validity of the alleged 1970s customary marriage. This entailed identifying the relevant body of living customary law, confirming compliance with its matrimonial requirements, and testing the legality of a union involving a minor bride.

Second, the court had to determine whether a customary-law divorce could validly dissolve such a marriage and, if so, whether the divorce alleged by the respondent had in fact taken place in accordance with recognised custom.

Third, the court faced a procedural question: whether these contested factual and legal issues could be fairly resolved on affidavit or whether the matter should proceed to oral evidence and trial.

ANALYSIS

Wilson J emphasised that, under South African law, customary-law marriages and divorces are proved by evidence of the actual customs practised by the community at the relevant time. Bare assertions will not suffice. Because neither party elaborated on the content of the applicable customs—nor provided corroborative testimony or expert evidence—the court could not determine validity or dissolution.

The judge pointed out multiple factual gaps. It was unclear whether the community’s customs permitted marriage to a minor, whether parental consent alone could legitimise such a union, how lobolo negotiations were handled, or whether any formal rites took place. Similarly, the mechanics of a customary-law divorce—its procedural requirements, the role of the traditional leader, and the evidentiary proof thereof—were wholly unexplained.

Given these uncertainties, the motion procedure was ill-suited. The Plascon-Evans rule dictates that disputes of fact on material matters in motion proceedings must generally be resolved in favour of the respondent unless the court refers the matter to trial. The court therefore exercised its discretion to convert the application into an action so that oral testimony, cross-examination, and possibly expert evidence on custom could be led.

REMEDY

The application was referred to trial. Part B of the notice of motion was ordered to stand as a simple summons, and the applicant was given twenty court days to deliver particulars of claim. Thereafter, the Uniform Rules governing trial actions would apply.

Costs of the application were reserved for determination by the trial court. The parties were urged to engage in the court-mandated compulsory mediation process with a view to settlement or narrowing the dispute ahead of trial.

LEGAL PRINCIPLES

First, disputes regarding the validity or dissolution of customary marriages often entail contested issues of living custom that cannot be resolved on affidavit alone. Where material disputes of fact arise, a High Court may and should refer the matter to trial.

Second, proof of customary law is a question of fact. It requires cogent evidence—usually including testimony from persons steeped in the relevant custom or expert witnesses—demonstrating both the existence of the custom and the parties’ compliance with it. Mere allegations, even if repeated in several affidavits, do not constitute proof.

Third, South African courts promote alternative dispute resolution. The compulsory mediation directive serves both to alleviate court congestion and to help litigants in personal or family disputes reach equitable settlements without recourse to protracted litigation.