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[2023] ZAGPJHC 222
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Mgenge v Mokoena and Another (4888/2020) [2023] ZAGPJHC 222; [2023] 2 All SA 513 (GJ) (14 March 2023)

FLYNOTES:
FAMILY – Marriage – Customary – Requirements
– That marriage be negotiated, entered into and celebrated

in accordance with customary law – Where the applicable
custom is disputed – Lex loci domicilii applicable is
that
of bride’s father – Marriage certificate provides
prima facie proof of the customary marriage –
Recognition of
Customary Marriages Act 120 of 1998
.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER: 4888/2020
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
DATE:
14 MARCH 2023
In
the matter between:
MGENGE,
MANTSHADI JEANETTE
Applicant
and
MOKOENA,
MALESHOANE ROSE
First
Respondent
DEPARTMENT
OF HOME AFFAIRS
Second Respondent
This
judgment was handed down electronically by circulation to the
parties' and/or the parties' representatives by email and by
being
uploaded onto CaseLines. The date and time for hand-down is deemed to
be 10 am on 14 March 2023
Summary
:
Customary law –
Recognition of Customary Marriages Act 120 of
1998
– Requirements of a customary marriage
–
Requirement that
marriage be negotiated, entered into and celebrated in accordance
with customary law – Where the applicable
custom is disputed
lex
loci domicilii
applicable is bride’s father custom or tradition.
Customary
law –
Recognition of Customary Marriages Act 120 of 1998
–
Requirements of a customary marriage
–
Marriage
certificate provides prima facie proof of the customary marriage
against which applicant did not cast doubt, application
dismissed
with costs.
JUDGMENT
rome
AJ
:
Introduction and
background
[1]
This
matter concerns a challenge to the validity of a marriage certificate
that was registered under the provisions of the Recognition
of
Customary Marriages Act 120 of 1998 (the Recognition Act). The
certificate, dated 27 November 2019, records that Mr Siphiwe
Mgenge
and Ms Maleshoane Rose Mokoena (the First Respondent) entered into a
customary marriage. Pursuant to my judgment dated 21
April 2021
[i]
(the
previous judgment) the dispute arising out of a challenge to the
marriage certificate’s validity, was referred to oral
evidence.
The previous judgment traverses the factual context of the dispute.
It is nonetheless convenient to again refer to the
material facts.
[2]
The deceased and the First Respondent are
the parents of a minor child, a son, who was born on 2 January 2019.
The deceased and
the First Respondent were in relationship and had
for several years prior to the deceased’s death, and both
before and after
the date of their recorded marriage, cohabited in
their home in Tembisa, Gauteng. The deceased passed away on 7
November 2019.
The First Respondent therefore had belatedly procured
the marriage certificate a few weeks after the date of his death.
[3]
The Applicant is the mother of the
deceased. She seeks an order that the marriage certificate be
cancelled. Her allegations, per
her founding affidavit, were to the
following effect. The deceased was of a mind to enter into marriage
negotiations with the First
Respondent’s family. These
negotiations if successfully concluded, would have resulted in a
customary marriage. The negotiations
however never reached conclusion
and the marriage was not celebrated in accordance with customary law.
[4]
The Applicant relied on the contents a of
handwritten and signed document which, according to her, indicated an
intention to enter
into marriage if things went well. As noted in the
previous judgment the document was the source of contestation in the
litigation;
the First Respondent contending that it was a binding
lobola agreement and the Applicant arguing that it was not an
agreement on
lobola but merely indicated an intention to commence
marriage negotiations. As noted in the previous judgment, the
document was
written in Sesotho and it had not then been translated
into English. This omission was only remedied after the referral of
the
application for oral evidence.
[5]
The Applicant alleged that it was after her
son’s death and in the course of communicating with the
Master’s Office
and during January 2020 that she discovered the
existence of the marriage certificate. She stated that when she first
saw a copy
of the certificate, she was surprised as she “is the
single mother of the deceased” and she did not have knowledge
of the marriage and had not consented thereto. The Applicant averred
that in terms of customary law, she (the Applicant) as the
mother of
the deceased was required to have participated in any pre-marriage
negotiations between the families of the First Respondent
and
deceased. In summary, her complaint was that given the absence of her
consent to the union, the certificate incorrectly records
that the
deceased and the First Respondent were married in accordance with
customary law.
[6]
In answer to these allegations the First
Respondent said that during 2018, she and the deceased had decided to
get married in accordance
with customary law. Thereafter the
necessary customary marriage negotiations were successfully finalised
at a meeting of the families’
respective representatives, held
at her family home in QwaQwa. The First Respondent further alleged
that after the negotiations
were concluded a written lobola agreement
was signed and witnessed by the respective family representatives.
This written agreement
is the document upon which the Applicant
relied (in regard to her submission that the families had merely
initiated marriage discussions)
and which was annexed (as annexure C)
to the founding affidavit.
[7]
In responding to the Applicant’s
professed ignorance of the marriage, she (First Respondent) referred
to the family delegation
of the deceased having the night before the
wedding stayed over at the Applicant’s home (in Gauteng) before
travelling back
to QwaQwa to meet her family members to discuss and
finalise the marriage. She said that the Applicant had been aware
that this
family delegation had travelled to QwaQwa for the purposes
of negotiating the lobola. The First Respondent’s evidence was

that a customary wedding was in fact celebrated on 17 November 2018.
She said that upon the successful conclusion of an agreement
on
lobola there was a celebratory meal, a sheep was slaughtered, fat of
the sheep was rubbed on the deceased’s head (symbolizing
the
conclusion of the marriage under customary law) and that the deceased
made part payment of the agreed lobola amount (with the
balance to be
paid at a later date).
[8]
In her replying affidavit, the Applicant
persisted with her version that the lobola document merely evidenced
an intention to commence
initial marriage negotiations. While she
acknowledged the visit by the deceased’s family delegation to
the First Respondent’s
family home, she contended that the
members of the deceased’s family had not visited for the
purpose of finalising marriage
arrangements. She asserted that the
family delegation had been sent to the Mokoena family, but that they
were going to “
kopa sego sa metsi
”
(which loosely translated, meant “introducing the family of
Mahlangu (Mgenge) to that of Mokoena”) and if welcomed,
to find
out how much will be needed for the conclusion of the marriage.
According to the Applicant, this was not a marriage, rather
it was an
“introduction”.
[9]
The Applicant on the usual principles
applicable to disputes of facts in motion proceedings was not
entitled to the relief sought.
In the previous judgment I dealt with
the reasons why I was nonetheless not minded to dismiss the
application and why the dispute
was instead referred to oral
evidence.
[10]
After the referral to oral evidence, the
parties in accordance with the directives for the hearing submitted
witness statements.
The witness statements and the oral evidence at
the hearing is dealt with below. In addition, the Applicant called a
Professor
of Customary Law, Professor Nhlapo, as an expert witness.
Professor Nhlapo gave opinion evidence on which particular customary
tradition would have been appliable to a customary marriage between
the First Respondent and the deceased. The need for his evidence
came
about as a result of two of the parties’ respective witnesses
stating that the question of whether there had been a
marriage under
customary law fell to be determined by reference (respectively) to
Zulu and Ndebele customs. Before considering
Professor Nhlapo’s
evidence, I turn to an assessment of the parties’ further
factual evidence.
Applicant’s
Evidence
[11]
The
Applicant’s first witness was Mr Nhlanhla Letlhake (“Mr N
Letlhake
[ii]
”
).
Mr N Letlhake’s evidence was that he is a cousin of the
deceased. He was part of the family delegation that travelled to

QwaQwa on 17 November 2018. He said that the visit was for the
purpose of negotiating lobola. He confirmed the First Respondent’s

evidence that: a sheep was slaughtered, a festive lunch was shared,
the deceased’s family were then given the remaining half
of the
sheep to take back with them and that the deceased made payment of
the first lobola instalment of R10,000.00. He however
stated that in
terms of Zulu culture, the parties were not married. According to his
evidence, Zulu custom required that there
be a further ceremony to be
held at the deceased’s family home and at the end of which the
bride would be handed over to
the groom’s family. Mr N Letlhake
was however not qualified to give any opinion about the applicability
and of Zulu customs
to conclude the marriage.
[12]
The Applicant’s second witness was
her neighbour, Ms Samari Elizabeth Moripe, a pensioner. Her evidence
appeared to take the
matter no further as it focussed on what is said
to have occurred at the Applicant’s home during the mourning
period after
the deceased’s death but before his burial. In
short, the Applicant appeared to regard it as significant that rather
than
sitting together with the deceased’s family on a mattress,
which had been arranged for this purpose, the First Respondent

acceded to the Applicant’s request that she sit not on the
mattress but on a chair in the living room. The First Respondent
in
cross-examination explained that she acceded to the Applicant’s
request because she, simply at that time, did not wish
to upset the
Applicant. In my view this explanation was both reasonable and
credible. Ms Moripe’s evidence accordingly did
not take the
matter any further.
[13]
The Applicant’s third witness was Ms
Busisiwe Mmita Dinah Mpye, another of her neighbours. As was the case
with the evidence
of Ms Moripe, Ms Mpye’s evidence focussed on
events pertaining to the period after the deceased’s death and
before
his burial. According to Ms Mpye, during these discussions
about burial of the deceased, the Applicant told the First Respondent

that she could not travel to the mortuary or participate or attend at
the burial site together with the rest of the Applicant’s

family. This sort of evidence once again took the matter no further.
The First Respondent’s
Evidence
[14]
The First Respondent confirmed the contents
of her affidavit and was cross-examined thereon. Apart from some
questions as to whether
she and the deceased had intended to waive
the customary requirement of handing over of the bride, nothing much
turned on her cross-examination.
[15]
The First Respondent’s further
witness was Mr Joseph Lehlake (“Mr J Lehlake”) an uncle
of the deceased. His evidence
per his witness statement was the
following. He was approached by the deceased who informed him that
since he intended to marry
the First Respondent, negotiations needed
to be initiated between the two families. A meeting between the
families was then arranged
for this purpose. The meeting was then
duly held at the Mokoena family home in QwaQwa. The following family
members represented
the deceased in these negotiations, the
deceased’s father Mr John Solani Mahlangu, his brother Mr
Venter Mahlangu, his cousin
Mr Lucky Lehlake, and his uncles Mr Buthi
Lehlake and Mr Mapiko Lehlake. In these negotiations, the First
Respondent was represented
by her brother and two uncles.
[16]
On 16 November 2018, the deceased’s
representatives met at the Applicant’s home. They spent the
night there before making
the trip to QwaQwa. They arrived at the
First Respondent’s family home on 17 November 2018 and met with
the above members
of the First Respondent’s family. After
exchanging introductory courtesies, the parties negotiated and
reached an agreement
on lobola, which agreement was then reduced to
writing and signed by the parties’ family representatives.
[17]
The lobola document was signed on 17
November 2018 and read thus as translated:
“
Below
are the marriage agreements between the family of Mokoena and the
family of (Mahlangu) Mgenge.
The Mahlangu's and the
Mokoena's agreed on ten (10) cattle whereby one cattle will cost
Three Thousand Five Hundreds Rands (R3,500.00)
...
The Mahlangu's paid
the amount of Ten Thousand Rands (R10,000.00) and the balance is
Eighteen Thousand Rands (R18,000.00) And Two
living cattle.”
[18]
Mr J Lehlake further confirmed that on 17
November 2018, and pursuant to the conclusion of the lobola agreement
that he (on behalf
of the deceased) paid R10,000.00 to the First
Respondent’s family in part payment of the agreed lobola
amount. This evidence
was not challenged.
The requirements of a
customary marriage
[19]
As set out in the previous judgment, the
requirements for the conclusion of a valid customary marriage are
contained in section
3 of the Act. They are the following: (a) The
prospective spouses must both be older than 18; (b) They must both
consent to be
married to each other under customary law; and (c) The
marriage must be negotiated and entered into (or celebrated) in
accordance
with customary law. If either of the intended spouses is a
minor, his or her parents must both consent to the marriage. The
intended
spouses must not be prohibited from entering into the
marriage because of a proscribed relationship by blood or affinity,
as determined
by customary law. The requirements appear capable of
easy fulfilment.
However,
the prerequisite that the marriage must be negotiated and entered
into or celebrated in accordance with customary law gives
rise to
some legal complexities.
The requirement that the
marriage be negotiated in accordance with customary law
[20]
I deal firstly with the requirement that
the marriage be negotiated in accordance with customary law. On the
evidence, it is clear
that there is no merit to Applicant’s
contention that the lobola document did not indicate the successful
negotiations of
a customary marriage. Both the wording of the lobola
document and the part payment of the agreed lobola, gainsay the
Applicant’s
assertion that the document merely evinced an
intention to enter preliminarily into a customary marriage and had
thus been introductory.
Her submission that the families had merely
commenced discussions about a possible marriage is likewise belied by
the evidence.
[21]
The evidence shows that that the respective
families had on 17 November 2018, and in accordance with customary
law, successfully
negotiated a customary marriage. This aspect of the
Applicant’s challenge to the marriage certificate was therefore
unfounded.
The integration of the
bride into the groom’s family
[22]
I turn now to the issue of whether the
marriage was celebrated in accordance with customary law. According
to the Applicant’s
witness (Mr N Letlhake) any customary
wedding between the deceased and the First Respondent was subject to
the requirements of
Zulu customs and traditions. According to the
First Respondent’s witness (Mr J Lehlake) Ndebele customs
applied. The First
Respondent herself did not state under which
specific ethnic tradition and customs she was married. After being
prompted by the
Court as to whether expert evidence might assist on
the issue of determining the relevance and requirements of a
particular tradition,
the Applicant sought the opinion evidence of
Professor Thandabantu Nhlapo.
[23]
Professor Nhlapo has an impressive
curriculum vitae reflecting his expertise in the field of African
Customary Law. He holds the
following law degrees. A BA (Law) from
the National University of Lesotho (1971) , LLB (Honours) from the
University of Glasgow
(1980) and a PhD in Family Law, which he
obtained from Oxford University in 1990. He was Deputy
Vice-Chancellor at the University
of Cape Town for ten years, where
he had served as Professor and Head of the Department of Private Law.
His evidence demonstrated
admirable knowledge and thorough research
into the issue of the requirements for the celebration of a customary
marriage and of
the legal principles involved, not only in South
Africa but also in other Southern African jurisdictions.
[24]
In his report, Professor Nhlapho stated
that he was briefed by the Applicant’s attorneys to assist the
court in answering
the following three issues. (a) Whether the
deceased when marrying ought to have followed the traditions of his
biological father
being the Ndebele customs. (b) Whether the
deceased, when marrying ought to have follow the traditions of his
mother being the
Zulu customs. (c) The requirements to be satisfied
for a valid customary marriage in terms of the Sesotho, isiNdebele
and isiZulu
customs.
[25]
Professor Nhlapho’s evidence, which
was essentially unchallenged, was to the following effect. The
problem in assessing the
respective contentions that isiZulu or
isiNdebele customs applied was that on the evidence, there was a
total lack of information
about the relationship between the
deceased’s parents. To the extent that it was contended that
isiNdebele custom applied
because of the Ndebele background of the
deceased’s father, Professor Nhlapo stated the following: On
general principles,
it would be important to know many details that
are central to the determination of the deceased’s relationship
with his
father, including what was the extent of the father’s
“invisibility” in the life of the deceased that had led

the Applicant to describe herself as a single parent. This
information is important because, generally speaking, in African
culture
it is this relationship (or any vestiges of it that remain)
that determine whether the biological father has any rights,
obligations
or access in relation to the family of his child’s
mother, or whether he is totally invisible in a civic and legal
sense.
In the latter case, he might as well be dead because all
relations and contact are severed.
[26]
A scenario of an absent biological father
would militate against importing anything associated with the
deceased’s father
into the deceased’s affairs, including
his culture. The fact that an ostensibly absent father was part of
the delegation
to QwaQwa did not of itself mean that any wedding
would have been held in accordance with Ndebele traditions. Further
rendering
the possibility that the relevant customary tradition in
this matter might be Ndebele is that lobola takes place at the
bride’s
home. Professor Nhlapo was therefore of the view it was
more likely that the
lex loci domicilii
of the bride’s father would point to the appropriate law or
tradition governing the customary marital process, i.e., in this

matter, Sesotho customary law would apply.
[27]
Having considered and then discounted the
possibility that either isiZulu or isiNdebele custom applied,
Professor Nhaplo’s
explained that in customary marriages the
bride’s family members are the “centrepieces” in
the process, this
is because of their ability to welcome or reject
suitors. His view is that it is unlikely that this very real social
power is exercised
under the law of the suitor. Rather, Professor
Nhlapo’s explained, it would be more appropriate that the
search for the living
law should be directed at where bride’s
home community is situated and not anywhere else.
[28]
He referred in this regard to the views of
Professor Bekker who writes that –
“
In
the Sotho-Tswana group, the wedding is celebrated at the family home
of the bride’s people, where the lobola discussion
and
agreement takes place. On the completion of the lobola agreement, the
bride’s guardian provides a beast for slaughter,
each party
receiving half the meat; certain ceremonies are performed with the
entrails. This slaughter signifies not only the completion
of the
lobola agreement, but also the consummation of the customary
marriage, which is not rendered less effective if the bride
does not
leave with the bridegroom’s party on that occasion, and usually
she does not.”
[iii]
[29]
Professor Nhlapo then endorsed Bekker’s
statement that
“
[t]here
is one recorded exception to the rule that the bride must be handed
over; among the Sotho . . . if the bride’s guardian
has
ceremonially slaughtered a beast at the lobola negotiation, this
killing signifies his acceptance of the bridegroom as his
daughter’s
husband and consummates the customary marriage, even though the girl
is not actually handed over at the time
”.
[iv]
[30]
Following Professor Nhlapo’s
reasoning, the enquiry about which particular customary traditions
applied, would lead to a conclusion
that the Applicant and the First
Respondent’s marriage had to be celebrated in accordance with
Sesotho customs, which customs
did not require anything more that the
ceremonial slaughter of a beast after the conclusion of the lobola
agreement.
[31]
However, as compelling as Professor
Nhlapo’s reasoning might be, I do not consider it necessary on
the facts of this matter
definitively to determine the outcome of the
dispute on the basis that Sesotho customs applied. I accordingly make
no determination
that the slaughter of a sheep, at the time when the
lobola was concluded, of itself sufficed to signify the conclusion of
the marriage
between the families of the First Respondent and the
deceased.
[32]
The question of whether the requirement of
handing over was met can be determined on the basis of the following
more general considerations.
Marriage certificate is
prima facie proof?
[33]
As
noted in the previous judgment a marriage certificate stands as prima
face proof of the marriage. The existence of the marriage
certificate
is potentially significant because
“prima
facie proof, in the absence of rebuttal, means clear proof, leaving
no doubt.”
[v]
This
means that a judicial official must accept the contents of the
certificate as correct unless she is convinced that she cannot
rely
upon them. Whether such a conviction is justified must depend on the
existence of evidence which may refute or throw doubt
upon the
contents of the certificate.
[vi]
[34]
The following has recently been stated
about the evidentiary nature of a marriage certificate:
“
In
the case of W v W a marriage certificate was dealt with as
follows:
In
terms of sec. 42(3) of Act 81 of 1963, a marriage certificate (and
other types of certificates):
‘
shall,
in all courts of law . . . be prima facie evidence of the particulars
set forth therein’.
This
means that a judicial official must accept the particulars as correct
until he is convinced that he cannot rely upon them.
Whether such a
conviction is justified must depend on the evidence which refutes or
throws doubt upon the contents of the certificates.
(R v Chizah
1960
(1) SA 435
(AD)). Included
in the presumption thus created would be all the essentials for the
conclusion of a valid marriage including
the capacity of the parties.
The presumptions referred to may, of course be rebutted.”
[vii]
[35]
The
Applicant’s allegations and evidence would need to be of such a
nature that they would disturb the prima facie import
of there being
a registered marriage certificate confirming that the First
Respondent and the deceased on 17 November 2018 and
at “Boiketlo
QwaQwa” were married in accordance with customary law.
[36]
There is an
obvious weakness in the Applicant’s version that the events of
17 November 2018 merely amounted to initial discussions
about
marriage. The Applicant at the outset asserted that the reason for
the certificate’s invalidity was that her consent
to the
marriage as the sole parent of the deceased was required. This
consent was allegedly absent as the Applicant said she knew
nothing
about a marriage having been concluded in QwaQwa on 17 November 2018.
This version was contradicted by undisputed evidence
that the
Applicant knew that a family delegation, which included the
deceased’s father, travelled to QwaQwa on 17 November
2018 to
discuss the marriage between the First Respondent and the deceased.
[37]
The Applicant
in reply and in oral evidence explained that she had referred to
herself as the sole parent of the deceased because
she had had
primary or sole responsibly for parenting the deceased when he was a
child. Nonetheless it is significant that the
Applicant had in her
founding affidavit omitted to mention that the deceased’s
father had travelled to QwaQwa as part of
the delegation that would
represent the deceased in their meeting with the First Respondent’s
family. This omission together
with her initial failure to mention
that a family delegation, had to her knowledge and without any
objection, travelled to QwaQwa
to meet with the First Respondent’s
family, casts serious doubts on the Applicant’s version.
[38]
Later and both
in the replying affidavit and oral evidence the Applicant admitted
the meeting of the two families but contended
that the family
delegation of the deceased had gone to QwaQwa to discuss introductory
matters and not to conduct lobola negotiations
pursuant to concluding
a customary marriage.
[39]
This somewhat
fine distinction, the nature of a pre-arranged meeting of the
families, does not detract from the import of the Applicant’s

failure to initially acknowledge her awareness of the fact that the
deceased’s’ family delegation had travelled to
QwaQwa to,
at the very least, discuss the possibility of marriage. The Applicant
failed to acknowledge that it was in the context
of that pre-arranged
visit that the lobola document was concluded.
[40]
Moreover, the
Applicant had in her founding affidavit alleged that while the
deceased had informed her that he intended to marry
the First
Respondent, he later changed his mind. According to the Applicant,
this was because the First Respondent had not accepted
the children
born of the deceased’s previous marriage. The Applicant
nevertheless proffered no evidence to support this allegation.
Is physical handing over
of the bride an essentialia of customary marriage?
[41]
As a last
resort, the Applicant’s case in argument simply amounted to
this. As the events in QwaQwa did not comply with the
requirement of
the handing over of the bride, the marriage had not been concluded in
accordance with customary law. This submission
was not based on the
contents of the founding affidavit. In any event and on the evidence,
I am satisfied that the requirement
of integration (or handing over)
was indeed fulfilled during the events of 17 November 2018.
[42]
The
Applicant’s submission on the absence of the handing over
requirement fails to take into account the principle that
the
integration of the bride comprises a series of events, some of which
may be waived, condoned or abbreviated by the parties.
What is
required is that the bride must at least be handed over to her
in-laws in compliance with the customary integration
requirements.
[viii]
[43]
This
is demonstrated by the decision of this Court in
Sengadi
v Tsambo
.
[ix]
In
that matter, the families met and reached an agreement on the lobola,
partial payment was made. On the same day, the bride had
changed into
a traditional attire was taken into a room where she was given a
traditional dress. A lamb was slaughtered and bile
was smeared on the
deceased.
[44]
On these facts
and in the court a quo, Mokgoathleng J found that there was a valid
customary marriage. In reaching this conclusion
the Court held that
the handing over of the bride is not an "indispensable
sacrosanct essentialia" for a lawful customary
marriage.
[45]
Mokgoathleng J
further determined that the evidence in the
Sengadi
matter showed that the groom’s family tacitly waived compliance
with the handing over requirement by allowing the parties
to cohabit,
and had opted for a "symbolic handing over" after the
conclusion of lobola negotiations.
[46]
The judgment
of Mokgoathleng J in
Sengadi
(apart from that part of the judgment which declared the requirement
of handing over to be unconstitutional) was upheld on appeal.
On
appeal, in dismissing the appeal, the SCA referred to its previous
dictum where it was held that:
“
The
Recognition Act does not specify the requirements for the celebration
of a customary marriage. In this way, the legislature
purposefully
defers to the living customary law. Put differently, this requirement
is fulfilled when the customary law celebrations
are generally in
accordance with the customs applicable in those particular
circumstances. But once the three requirements
have been fulfilled, a
customary marriage, whether monogamous or polygamous, comes into
existence.
”
[x]
[47]
After a
thoroughgoing consideration of the case law, the SCA in
Sengadi
per Molemela JA (for the unanimous court) concluded that the
requirement of integration had been established even though there
was
no physical handing over. In reaching this conclusion, Justice
Molemela reasoned as follows (paras 26-27):
“
Bearing
in mind that the purpose of the ceremony of the handing over of a
bride is simply to mark the beginning of a couple’s
customary
marriage and introduce the bride to the bridegroom’s family I
am inclined to agree with the respondent’s
assertion that
a handing over, in the form of a declared acceptance of her as
a makoti (daughter-in-law), satisfied the
requirement of
the handing over of the bride.
That
the couple continued to cohabit after that celebration and that the
respondent registered the deceased as a beneficiary and
spouse on her
medical aid scheme are features that cannot be dismissed as
insignificant, as they are consonant with the existence
of a
marriage. I am fortified in this view by Professor Bennet’s
argument with regards to the handing over requirement. He
argued that
the parties’ intention could be inferred from cohabitation.
According to him, where the parties were cohabiting,
the gravamen of
the enquiry was the attitude of the woman’s guardian. If the
guardian did not object to the relationship,
a marriage would be
presumed, irrespective of where the matrimonial home happened to be
or how the ‘spouses’ came to
be living there Professor
Bennett placed reliance on a case in which the Court had remarked
that ‘long cohabitation
raises a strong suspicion of marriage,
especially when the woman’s father has taken no steps
indicating that he does not
so regard it’. In this matter,
the respondent averred that her mother had not instituted any action
for seduction or
demanded payment of a fine, well knowing that the
respondent cohabited with the deceased. She accepted that the
respondent and
the deceased had entered into a valid customary
marriage.” (Footnotes omitted.)
[48]
Applying the
above dicta to the facts of this matter, it is clear that there was a
series of events at the meeting of the families
of the deceased and
the First Respondent which resulted in the conclusion of a customary
marriage on 17 November 2018. These events
included the successful
conclusion of a lobola agreement, part payment of lobola, the
observance of customary rituals such as the
slaughtering of a sheep,
the rubbing of fat on the groom, the families thereafter partaking in
a celebratory meal and the gifting
of the remaining part of the
sheep.
[49]
In addition,
after the events of 17 November 2018, the First Respondent and the
deceased returned together to their home in Tembisa.
They, until the
death of the deceased then continued to cohabit and live as a family
without any objection from the Applicant (or
from any member of the
deceased’s family).
[50]
The argument
that the customary requirement of the integration of the Applicant
into the deceased’s family had not been satisfied
thus does not
accord with either the authorities or the evidence; it is accordingly
rejected.
Conclusion
[51]
In conclusion the
Applicant’s version that the events of 17 November 2018
pertained not to the conclusion of a marriage but
instead concerned
introductory discussions about a potential marriage did not suffice
to cast any doubt on the validity of the
marriage certificate.
[52]
Accordingly, and on consideration of all
the evidence I find that the marriage certificate correctly
recognises the existence of
a marriage between the First Respondent
and the deceased during the lifetime of the deceased. In addition,
the evidence did not
cast any doubts on the validity of the marriage
certificate and the correctness of its contents.
[53]
In the result, the application is dismissed
with costs.
G ROME
Acting Judge of the High
Court
Gauteng
Division, Johannesburg
Heard
:
Judgment
:
14 March 2023
For the applicants:

Adv.
MJ Letsoalo
Instructed by:

M.J Mphahlele Attorneys
For the respondents:

Adv. WJ Prinsloo
Instructed by:

BMH Attorneys Inc
Dates of hearing:

25 November 2022, 4. November 2022, 5 July 2022
Date
of judgment:
14
March 2023
[i]
Mgenge
v Mokoena and Another
(4888/2020)
[2021] ZAGPJHC 58 (21 April 2021).
[ii]
There
was some variation in the papers in the spelling of the Letlhake
surname.
[iii]
J.
C. Bekker, J. J. J. Coertze, and Wilfred Massingham Seymour
,
Seymour’s
Customary Law in Southern Africa
(Juta,
1982).
[iv]
Ibid.
[v]
Ex
parte Minister of Justice: In re R v Jacobson and Levy
1931
AD 466
at 474.
[vi]
R
v Chizah
1960
(1) SA 435 (A).
[vii]
Gumede
v S
[2021]
ZAMPMHC 22 para 36.
[viii]
Sibisi,
S “Is the requirement of integration of the bride optional in
customary marriages?”
De
Jure
(Pretoria) vol.53 n.1 Pretoria 2020 90 at 103.
[ix]
Sengadi
v Tsambo: In re Tsambo
[2019]
1 All SA 569 (GJ).
[x]
Tsambo
v Sengadi
[2020]
ZASCA 46
(30 April 2020) para 15.