Tshivhase v Tshivhase N.O and Another (105/2023) [2025] ZASCA 131 (12 September 2025)

Case Note

Tshivhase v Tshivhase N O and Another (105/2023) [2025] ZASCA 131 (12 September 2025)

Reportability

This judgment is reportable because it clarifies the standard of proof required to establish the existence of a customary marriage under the Recognition of Customary Marriages Act 120 of 1998 when the marriage is challenged. It also revisits the evidential status of entries in old Venda identity documents, re-affirms the binding effect of the Supreme Court of Appeal’s decision in Manwadu v Manwadu and Others, and offers important guidance on joinder where the validity of a joint will is contested. The judgment therefore carries precedential value both for customary-law jurisprudence and for procedural law concerning non-joinder and the furnishing of reasons by the High Court.

Cases Cited

Manwadu v Manwadu and Others [2025] ZASCA 10; [2025] 2 All SA 27 (SCA); 2025 (3) SA 410 (SCA)

Mgenge v Mokoena and Another [2023] ZAGPJHC 222; [2023] 2 All SA 513 (GJ)

W v W 1976 (2) SA 308 (W)

Gordon v Department of Health, KwaZulu-Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA); [2009] 1 All SA 39 (SCA); 2009 (1) BCLR 44 (SCA); [2008] 11 BLLR 1023 (SCA); (2008) 29 ILJ 2535 (SCA)

Johannesburg Society of Advocates and Another v Nthai and Others [2020] ZASCA 171; 2021 (2) SA 343 (SCA); [2021] 2 All SA 37 (SCA)

Mphahlele v First National Bank of South Africa Ltd [1999] ZACC 1; 1999 (2) SA 667; 1999 (3) BCLR 253

Legislation Cited

Recognition of Customary Marriages Act 120 of 1998 (particularly sections 4(4)(a), 4(8) and 10)

Black Administration Act 38 of 1927 (section 22, especially subsections 22(1) and 22(7))

Marriage Act 25 of 1961 (referred to in section 10 of the RCMA)

Rules of Court Cited

No specific Uniform Rule of Court was cited by number; reference was, however, made to the general rule that parties are entitled to written reasons for judgments when requested.

HEADNOTE

Summary

The Supreme Court of Appeal set aside an order of the Limpopo Division, Thohoyandou, which had declared a civil marriage and a joint will void ab initio on the strength of an alleged prior customary marriage. The Court held that a single certified page from an old Venda identity document is not, by itself, prima facie proof of a customary marriage once that marriage is disputed. Drawing heavily on Manwadu v Manwadu, the Court emphasised that once the authenticity of a customary marriage is put in issue, the party alleging it must present evidence of compliance with the relevant customary rituals and statutory requirements. Because such evidence was lacking, the respondent failed to discharge the onus.

A further issue concerned non-joinder. The High Court had set aside the joint will without joining the will’s beneficiaries. The Supreme Court of Appeal ruled that beneficiaries have a direct and substantial interest in litigation that threatens to nullify a will, and their joinder was therefore indispensable.

Finally, the Court criticised the High Court’s practice of granting orders without furnishing contemporaneous reasons, reaffirming that the rule of law and the right of access to courts require reasons to accompany orders or to follow promptly thereafter.

Key Issues

The principal issue was whether the respondent had proved the customary marriage allegedly concluded in 1966, thereby rendering the appellant’s 1977 civil marriage invalid. Connected to that question was whether a Venda-era identity document entry constitutes prima facie proof in terms of section 4(8) of the RCMA once challenged.

A secondary but significant issue was whether the High Court erred in failing to join the beneficiaries of a joint will before setting that will aside. The decision also indirectly canvassed the procedural propriety of judges granting orders without reasons.

Finally, the Court examined whether, in the absence of proof of a valid customary marriage, the respondent had shown any entitlement to have the civil marriage and joint will declared void ab initio.

Held

The Supreme Court of Appeal held that the respondent’s identity document was not a marriage certificate within the meaning of section 4(8) of the RCMA. Once the entry was challenged, the respondent bore the burden of proving the customary marriage through additional evidence of customary negotiations, rituals, consent, and registration, which she failed to supply.

Because the customary marriage was not proved, the civil marriage between the appellant and the deceased remains valid. Consequently, the joint will executed by them stands. The High Court’s dismissal of the non-joinder objection was a misdirection, as the beneficiaries possessed a direct and substantial interest in the outcome.

The appeal was accordingly upheld with costs, the High Court’s order was set aside, and the respondent’s application was dismissed.

THE FACTS

The first respondent, Azwihangwisi Francinah Tshivhase, alleged that she married the deceased, Ndavheleseni Lazarus Tshivhase, by customary rites on 24 December 1966. Her only documentary proof was a certified copy of a single page from a Venda identity document reflecting a marital entry. The deceased subsequently contracted a civil marriage with the appellant, Thimbiluni Elizabeth Tshivhase, on 22 February 1977, and the couple later executed a joint will.

Following the deceased’s death on 26 August 2020, the respondent launched urgent High Court proceedings seeking an order that the civil marriage was void ab initio and that the joint will be set aside. She contended that, because her customary marriage preceded the civil one, section 22 of the Black Administration Act and section 10 of the RCMA rendered the latter invalid.

The High Court granted the relief on 24 November 2020 without giving reasons, dismissed the appellant’s non-joinder objection regarding the will’s beneficiaries, and later refused leave to appeal. Only after the Supreme Court of Appeal granted leave did the trial judge supply belated reasons.

THE ISSUES

The Supreme Court of Appeal had to determine, first, whether the respondent adduced prima facie or sufficient collateral evidence that a valid customary marriage was concluded and, second, whether the identity document constituted a certificate of registration under section 4(8) of the RCMA once put in dispute.

It also had to decide whether the failure to join the beneficiaries of the joint will was fatal to the High Court proceedings and whether, absent proof of a customary marriage, the civil marriage and joint will could lawfully be declared void ab initio.

Finally, the Court addressed the procedural propriety of handing down orders without accompanying reasons, examining the implications for the rule of law and appellate practice.

ANALYSIS

The Court commenced by reaffirming its reasoning in Manwadu v Manwadu, emphasising that section 4(8) of the RCMA confers prima facie evidential status only on a certificate of registration issued under the Act or a comparable statute. An entry in a Venda identity document, even if certified, is neither such a certificate nor immune to challenge. Once the appellant disputed the validity of the customary marriage, the respondent bore the burden of proving not merely the fact of the marriage but also the observance of all essential customary requirements, including lobola negotiations, guardian consent, and public celebration.

Examining the respondent’s affidavits, the Court found them devoid of confirmatory affidavits from those allegedly present at negotiations, silent on the deceased’s minority status in 1966, and lacking any explanation of how the purported marriage complied with Venda custom. The Court observed that section 4(4)(a) of the RCMA obliges a registering officer to be satisfied of compliance with customary law, yet no evidence addressed this statutory safeguard.

Turning to non-joinder, the Court relied on Gordon v Department of Health, KwaZulu-Natal and Johannesburg Society of Advocates v Nthai to hold that beneficiaries under a will possess a direct and substantial interest in litigation threatening the will’s validity. Because the High Court’s order rendered the estate intestate, beneficiaries’ patrimonial interests were clearly at stake, making their joinder imperative.

Finally, the Court censured the trial judge’s failure to supply contemporaneous reasons, quoting Mphahlele v First National Bank to underline that reasons are a constitutional imperative flowing from the rule of law. The belated reasons—given only after a complaint to the Judicial Service Commission—did not cure the irregularity.

REMEDY

The Court upheld the appeal with costs. It set aside the High Court’s order in its entirety and substituted an order dismissing the respondent’s application with costs. In doing so, it restored the legal validity of both the civil marriage between the appellant and the deceased and their joint will.

LEGAL PRINCIPLES

First, when the existence of a customary marriage is challenged, an identity document entry—whether certified or not—is insufficient proof unless accompanied by corroborative evidence establishing compliance with customary rituals and statutory requisites under the Recognition of Customary Marriages Act.

Second, beneficiaries named in a will have a direct and substantial interest in any proceedings that might invalidate that will; failure to join them constitutes a fatal non-joinder.

Third, the rule of law and the constitutional commitment to open, accountable courts oblige judges to furnish timely reasons for their orders; failure to do so undermines litigants’ rights and appellate scrutiny.