Brief Summary

Customary Marriage — Recognition of Customary Marriages Act — Competing claims by widows of deceased — Applicant sought registration of customary marriage with deceased, while first respondent countered with claim of prior marriage — Court directed to determine validity of both marriages and applicable matrimonial regimes — Finding that both marriages were valid, but registration of second marriage required court order due to prior registration of first marriage — Court upheld the need for compliance with section 7(6) of the Act for dual registrations.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings concerned an opposed application and counter-application brought under section 4(7) of the Recognition of Customary Marriages Act 120 of 1998. The dispute arose after the death of Alfred Mohlale in January 2015 and centred on competing claims by two women, each alleging that she was validly married to the deceased under customary law and entitled to registration of that marriage by the Department of Home Affairs.

The applicant, Mpho Portia Molokane (also referred to as Molokome in the papers), approached the High Court seeking condonation for late registration of her customary marriage to the deceased and an order directing the Minister/Department of Home Affairs (the sixth respondent) to register the marriage and issue her with a marriage certificate. The first respondent, Rosy Williams, opposed and launched a counter-application seeking condonation for late registration of her own alleged customary marriage to the deceased, an order compelling registration of that marriage, and a declaration that the applicant’s marriage was void ab initio. The counter-application also sought relief relating to the administration of the deceased estate, including the applicant’s status as executrix.

The matter initially served in the motion court before Thobane AJ, who referred specified disputes for oral evidence, including the validity of the alleged 2003 customary marriage between Williams and the deceased, the validity of the alleged 2012 customary marriage between the applicant and the deceased (if the first marriage was valid), and the applicable matrimonial property regimes. Pending finalisation, an interim direction was issued that both women be appointed as joint executors, although the issue of executorship later remained in dispute and formed part of the final relief determined.

The general subject-matter of the dispute was therefore the recognition, registration, and proprietary consequences of alleged customary marriages in a context of polygyny, together with collateral estate-administration consequences following the deceased’s death.

Material Facts

It was common cause that the deceased died in January 2015 and that two women asserted spousal status arising from customary marriages allegedly concluded with him. It was also common cause that the applicant approached the Department of Home Affairs after the burial to register her marriage; the Department registered it and issued a customary marriage certificate to her.

It was further common cause (on the papers and as reflected in the Department’s correspondence recording the outcome of a meeting convened on 11 March 2015) that the first respondent subsequently approached the Department seeking registration of her marriage, but that the Department did not proceed with registration of the first respondent’s marriage on the basis that a second marriage had already been captured on the National Population Register and that a court order would be required for the further registration in the circumstances described.

The first respondent’s version, supported by her witnesses, was that she and the deceased concluded a customary marriage beginning with lobola negotiations on 16 August 2003, during which R14 000 was agreed, with R6 000 paid as a deposit. The balance of R8 000 was said to have been paid during a further ceremony in May 2004, accompanied by celebratory and ritual components associated with Tswana custom (including slaughtering of an animal and exchange of gifts), after which she was regarded as handed over as the deceased’s wife. She asserted that the marriage was never dissolved, notwithstanding that the deceased later left her, and she contended that, in Tswana custom, a man who wishes to marry another wife should obtain the first wife’s consent.

The applicant’s version was that she met the deceased in 2004, began permanently residing with him in 2008, and concluded a customary marriage with him on 24 March 2012, after lobola of R26 000 was paid to her family. She described lobola negotiations at her mother’s home and celebrations later at the deceased’s home, involving traditional attire and slaughtering of an animal. She maintained that she did not know that the first respondent was married to the deceased and that she believed the first respondent to be a former girlfriend with children.

A further material factual feature concerned credibility and consistency. The applicant, under cross-examination, sought to distance herself from aspects of her founding affidavit and from the Department’s letter attached to her papers, including allegations suggesting awareness that the deceased had married and divorced the first respondent. The court treated these inconsistencies as materially relevant to the reliability of her version. The deceased’s mother, called by the applicant, denied the existence of a marriage between the deceased and the first respondent, but her evidence also included concessions that she had been informed that the deceased was getting married to the first respondent and that she had been reluctant to participate for personal reasons.

Legal Issues

The central legal questions were whether each claimant established, on the evidence, the existence of a valid customary marriage with the deceased in terms of section 3 of the Recognition of Customary Marriages Act 120 of 1998. This required determining whether the alleged marriages were (i) entered into by persons above 18 years, (ii) concluded with the requisite consent, and (iii) negotiated and entered into or celebrated in accordance with customary law.

If both marriages were valid, the court had to decide the further legal issue concerning the matrimonial property regime applicable to each marriage, particularly the effect of non-compliance with section 7(6) (the requirement that a husband intending to enter a further customary marriage must apply to court for approval of a written contract regulating the future matrimonial property system).

The issues involved mixed questions of fact (what occurred during lobola negotiations and ceremonies; whether a customary marriage was concluded) and the application of law to fact (whether established facts satisfied statutory requirements; and the proprietary consequences of non-compliance with section 7(6) as interpreted in prior authority). The evaluation also required a credibility assessment based on the oral evidence led pursuant to the referral.

Court’s Reasoning

The court approached validity by applying section 3 of the Recognition of Customary Marriages Act 120 of 1998, emphasising that the statutory requirements for a valid customary marriage include age, consent, and compliance with customary-law negotiation and celebration. Against that framework, the court evaluated the oral evidence led by both sides and assessed coherence, corroboration, probabilities, and documentary support.

On the first respondent’s alleged marriage, the court found that the evidence showed that a delegation from the deceased’s family negotiated lobola with the first respondent’s family, that lobola of R14 000 was agreed and paid in two stages, and that the process was followed by a celebratory and ritual component consistent with Tswana custom. The court attached weight to the existence of a lobola document recording the negotiations and to the corroboration of the first respondent’s account by multiple witnesses, including members of the deceased’s family who participated in the negotiations. The court concluded that the first respondent’s version was coherent and reliable and satisfied the statutory requirements for a customary marriage.

In contrast, the court found the applicant’s version to be unreliable due to internal inconsistencies and improbabilities revealed in cross-examination. The court considered it material that the applicant’s oral evidence diverged from allegations in her own founding affidavit, and that she disavowed knowledge of the Department’s letter attached to her papers. The court treated this as undermining her credibility on contested issues relating to knowledge of the first respondent’s status and the broader context of the dispute.

The court also considered the evidence of the deceased’s mother, who denied the first respondent’s marriage but conceded that she had been informed of it and had declined to participate. The court preferred the objective and corroborated evidence supporting the first respondent’s marriage and accepted evidence that the deceased married the first respondent first and then the applicant. On this basis, and with reference to the lobola document and the evidence of those involved in the negotiations, the court found that the deceased had entered into valid customary marriages with both women, each complying with section 3.

Having found both marriages valid, the court turned to proprietary consequences. It applied the principles articulated in Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41 (30 November 2017) concerning the default proprietary regimes applicable to customary marriages, and it relied particularly on the Supreme Court of Appeal’s interpretation of section 7(6) in Ngwenyama v Mayelane and Another [2012] 3 All SA 408 (SCA). The court accepted as settled that non-compliance with section 7(6) does not invalidate a further customary marriage. Instead, the consequence is proprietary: the subsequent marriage remains valid but is out of community of property, because two joint estates cannot co-exist.

Applying those principles to the facts, the court noted that it was common cause that the second customary marriage (between the deceased and the applicant) was not preceded by a court-approved contract under section 7(6). The court therefore concluded that the applicant’s marriage, although valid, was out of community of property. It further accepted the default position that the first (monogamous) customary marriage is in community of property and of profit and loss, absent an exclusion.

Finally, the court addressed consequential estate-administration relief. Given the disputed spousal status and the court’s conclusions, it directed that the applicant’s appointment as executrix be withdrawn and that the Master reconsider the appropriate appointment(s) afresh in light of the recognition of both marriages.

Outcome and Relief

The court declared that the customary marriage concluded between the applicant and the deceased was valid, and that the customary marriage concluded between the first respondent and the deceased was also valid. It authorised the sixth respondent (Home Affairs) to register the customary marriage on application by either party.

The court declared that the second customary marriage (between the applicant and the deceased) was out of community of property due to non-compliance with section 7(6). It directed the Master of the High Court to withdraw the applicant’s appointment as executrix and to reconsider the appointment of either one or both widows, and/or another suitable person, as executor/executrix of the deceased estate.

No order as to costs was made.

Cases Cited

Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41 (30 November 2017).

Ngwenyama v Mayelane and Another [2012] 3 All SA 408 (SCA).

Ngwenyana v Mayelane 2012 (4) SA 527 (SCA).

Legislation Cited

Recognition of Customary Marriages Act 120 of 1998 (including sections 3, 4(7), 7(1), 7(6), and 7(7)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the first respondent proved, on the evidence, that she concluded a valid customary marriage with the deceased in 2003/2004 in accordance with section 3 of the Recognition of Customary Marriages Act 120 of 1998. The court also held that the applicant proved a valid customary marriage concluded with the deceased in 2012.

The court further held that non-compliance with section 7(6) did not invalidate the second customary marriage, but it affected its proprietary consequences. The second customary marriage was therefore declared to be out of community of property. Consequentially, the Master was directed to withdraw the applicant’s executrix appointment and to reconsider the appointment of an executor/executrix in light of both marriages being recognised.

LEGAL PRINCIPLES

A valid customary marriage must comply with the statutory requirements set out in section 3 of the Recognition of Customary Marriages Act 120 of 1998, namely that the parties are adults, they consent to the marriage, and the marriage is negotiated and entered into or celebrated in accordance with customary law.

In the context of a husband entering a further customary marriage after commencement of the Act, non-compliance with section 7(6) (the failure to obtain court approval of a written contract regulating the matrimonial property system) does not render the further marriage invalid. The consequence of non-compliance is proprietary rather than status-based: the subsequent customary marriage remains valid but is out of community of property, because the law does not permit the co-existence of two joint estates.

The default proprietary position identified in the authorities referred to by the court is that a monogamous customary marriage is in community of property and of profit and loss, unless excluded by an antenuptial contract, while a further customary marriage concluded without section 7(6) compliance is valid but out of community of property.

Molokane v Williams and Others (2015/12381) [2023] ZAGPJHC 1210 (24 October 2023)