About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2023
>>
[2023] ZAECMHC 33
|
|
Kunene v Bangaza and Others (1808/2023) [2023] ZAECMHC 33 (4 July 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Reportable
Case No: 1808/2023
Date heard: 11/05/2023
Date delivered:
04/07/2023
In the matter between:
ZIFIKILE
KUNENE
Applicant
and
MONALISA
BANGAZA
first
Respondent
AVBOB
FUNERAL SERVICES – MTHATHA
second
Respondent
ANY
MEMBER OF SOUTH AFRICAN
POLICE
SERVICES
third
Respondent
JUDGMENT
Notyesi AJ
Introduction
[1]
Ms Zifikile Kunene, a daughter of the late
Thabile Kunene (the deceased), born out of wedlock with Sindiswa
Ndzeku, seeks for a
declaratory order that the customary marriage
entered into between the deceased and Monalisa Bangaza be declared
invalid on the
grounds of non-compliance with section 3(1)
(b)
of the Recognition of Customary Marriages Act 120 of 1998 (‘the
Act’). She is contending that there was no handing
over of
Monalisa Bangaza to the deceased’s family and that the lobola
negotiations were conducted by emissaries who were
not members of her
family.
[2]
On
the contrary, Monalisa Bangaza is contending that she was lawfully
married to the deceased and that her marriage had complied
with all
the requirements for a valid customary marriage as set out in section
3 of the Act.
[1]
Accordingly,
she disputed that there was non-compliance with the provisions of
section 3(1)
(b)
of the Act.
[3]
The crisp issue, therefore, is whether the
deceased and Ms Bangaza complied with section 3(1)
(b)
of the Act and concluded a valid marriage, where the Bangaza family
did not hand her over to the deceased’s family and in
circumstances where the emissaries, during lobola negotiations, were
not members of the deceased’s family.
The parties
[4]
The parties shall be referred to simply as
Zifikile Kunene and Monalisa Bangaza. The father of Zifikile Kunene,
or husband of Monalisa
Bangaza, is referred to as the deceased.
Background
[5]
Zifikile Kunene, born out of wedlock, is a
daughter of the deceased and one Sindiswa Ndzeku, who is also late.
Ms Kunene launched
these proceedings on an urgent basis. The dispute
concerns two issues; the burial rights of the deceased and the
validity of the
marriage. The question pertaining to burial rights
was resolved amicably as the parties agreed to separate the issues.
They further
agreed to conduct the burial of the deceased jointly.
The only issue which remains to be determined by the court concerns
the validity
of the customary marriage between the deceased and Ms
Bangaza.
[6]
Regarding the validity of the customary
marriage, Ms Kunene had made various contentions in her founding
affidavit. In summary,
she alleged that she was born out of wedlock
by the deceased and her mother, Sindiswa Ndzeku. Her mother passed on
during the late
80s. She was then moved from her maternal home to the
deceased’s family. She thereafter resided with the deceased
since the
late 80s. They were close to each other. The deceased,
according to her, was never married at all during his lifetime. Even
with
her late mother, the deceased only had an intimate relationship.
The deceased, to her knowledge, was only in an intimate relationship
with Ms Bangaza.
[7]
She was recently informed that the
deceased, without informing her, purportedly concluded a customary
marriage with Monalisa Bangaza.
She viewed such customary marriage
between the deceased and Monalisa Bangaza as invalid for reasons that
it did not meet the prescripts
of the law. She made those conclusions
about the invalidity of the customary marriage for these reasons–
(a)
A woman can only enter into a valid
customary marriage when the two families (husband and prospective
wife) enter into negotiations
and agree about lobola, and according
to her, the Kunene family and Bangaza family did not engage in such
negotiations. None of
the Kunene family members was present during
the lobola negotiations in respect of the customary marriage between
the deceased
and Monalisa Bangaza.
(b)
She alleged that the marriage is unknown to
the deceased’s family.
(c)
She further contended that the law requires
that there must be a handing over of the bride to the groom’s
family. That process,
according to her, must be done by the elders of
the Kunene family. This, she contended, did not occur.
(d)
In addition to the above grounds, Ms Kunene contended that there was
no celebration of the customary
marriage between the deceased and
Monalisa Bangaza.
[8]
In support of her application, Ms Kunene
filed several confirmatory affidavits by some members of the Kunene
family and close relatives.
Amongst those who filed confirmatory
affidavits is Patrick Nzukiso Nkalane. Mr Nkalane made these
allegations in his confirmatory
affidavit that he visited the
deceased. On his visit, the deceased informed him that on 11 November
2022, as Amatolo, they would
visit the home of his girlfriend,
Monalisa Bangaza. The purpose of the visit would be to pay lobola,
which would be followed on
26 November 2022 by a wedding. When he
discussed lobola with the deceased, they were all men.
[9]
He observed that the deceased was not well
and tried to stop him from thinking about marriage. However, the
deceased insisted and
advised them that he would send Dr Nuku and
another man to go and pay lobola for him if they refused. After the
aforesaid discussion,
they went out and held a meeting in the absence
of the deceased. In that meeting, it was agreed that they would not
proceed with
the payment of lobola on behalf of the deceased because
he was mentally disturbed, confused and of unsound mind. In their
view,
the deceased was not a fit person to conclude a marriage.
[10]
Another confirmatory affidavit filed in
support of Ms Kunene is by Thando Kunene. According to Thando Kunene,
he received a telephone
call from Monalisa Bangaza advising him that
the utsiki ceremony was going to be performed for her at the Xilinxa,
the homestead
of the deceased. At the time of the telephone
discussion with Ms Bangaza, he was in Gauteng. A few days thereafter,
he received
another call from his wife, Sichumise, advising him that
his sheep were dying and that he should return home. He returned, and
upon arrival at home, he noticed several people at the deceased’s
homestead. He was advised that the deceased had a traditional
beer
ceremony. According to the deceased, he was thanking his ancestors
for giving him a further life, and he was discharged from
the
hospital. At about 13h30 pm, the deceased called him aside and
informed him that he was going to book a bed and breakfast where
they
would conduct an utsiki ceremony for himself and Monalisa Bangaza.
Indeed, at about 17h00, he learned that the deceased had
conducted
the utsiki customary marriage ceremony and thanksgiving.
[11]
Another confirmatory affidavit filed on
behalf of the applicant was by Singatha Kunene. She confirmed that on
26 November 2022,
there was a traditional ceremony at the deceased’s
homestead. The deceased tendered an apology to her for not timeously
advising
that he had sent people to pay lobola on his behalf. She
asked the deceased for the names of the emissaries. The deceased
advised
her that he sent Dr Nuku and Mr Mkhokeli Bovungana.
According to her, this was strange because both names were not from
their
family. The deceased had also informed him that he was
conducting a utsiki ceremony. He was referring to the traditional
beer ceremony
as utsiki. This witness disputed that the aforesaid
utsiki ceremony was in accordance with the tradition of their family.
[12]
Another witness who filed a confirmatory
affidavit in support of Ms Kunene was Ntombenkosi Vivian Dinizulu.
She confirmed that on
26 November 2022, there was a traditional beer
ceremony at the Kunene family. She was informed by one Nothobela
Kunene that the
deceased was performing a utsiki ceremony, although
the deceased never confirmed to her.
[13]
She saw Monalisa Bangaza being dressed as a
newlywed woman, although she had no further details.
[14]
It bears mentioning that Ms Kunene and all
her witnesses confirmed that the deceased and Monalisa Bangaza were
in an intimate relationship
for a very long time. They all dispute
that the deceased was married to Monalisa Bangaza. They contended
that the customary marriage,
if any, was invalid for reasons that the
Kunene family was not involved in the negotiations and that there was
no handing over
of Monalisa Bangaza to their family. According to
them, the utsiki ceremony that was performed on 26 November 2022 did
not comply
with their practice and tradition as a family.
[15]
Ms Bangaza contended in her answering
affidavit that she was lawfully married to the deceased and that she
had entered into a valid
customary marriage. In short, Ms Bangaza
submitted that the deceased was initially her boyfriend since 2015.
He proposed marriage
to her. She consented to the marriage proposal.
Both, at the time, were adults above the age of 18 years. They were
both of sound
and sober minds. None of them were declared mentally
unsound, as suggested by Ms Kunene and her witnesses.
[16]
Ms Bangaza alleged that she had been in a
relationship with the deceased since 2015. She moved to stay with the
deceased. During
all that time, she would visit the deceased’s
family. She is well known to the Kunene family. On the other hand,
Ms Kunene
did not reside with them. She moved to Cape Town,
where she was employed by KPMG. She later relocated to the Caribbean
Islands,
where she works at Caymans Island. Ms Bangaza alleged that
Ms Kunene was testifying on matters that were not within her
knowledge.
She had left for a long time. She further alleged that Ms
Kunene was not present when utsiki was performed and during the time
of the lobola negotiations.
[17]
According to Ms Bangaza, the deceased had
proposed marriage to her in 2021. She consented to the proposed
marriage. According to
her, pursuant to her consent, the deceased
informed his family that they had agreed to enter into a customary
marriage. She is
aware of no objection to the marriage. On 26
September 2022, the deceased sent his delegation to her home. The
delegation consisted
of Dr Nuku and Mr Bovungana. Lobola
negotiations were conducted with her family. On the first day, 26
September 2022, a sum
of R10 000 was paid as part of the lobola.
The R10 000 was said to be for two cows. On 22 November 2022, a
sum of R25 000
was paid, and it was agreed that such an amount,
including the first payment, represented ten cows. Both families
agreed that she
was handed over to the deceased and his family as a
wife.
[18]
On 26 November 2022, she went to the
deceased’s family. On that day, according to her, the marriage
was celebrated by performing
utsiki custom. She averred that a sheep
was slaughtered in celebration, and an incense, together with other
leaves, were prepared
to put a braai meat over as it is their custom.
She further alleged that bile was poured over her head by the
deceased’s
relatives. She was then given a name by one No
College Kunene. Her marriage name is Qhayiyalethu. After the
celebrations, she lawfully
became the wife of the deceased.
[19]
In substantiating the allegations of
lobola, Ms Bangaza had attached the minutes of the negotiation
meeting between her family and
the emissaries. The minutes were
written in Xhosa. However, an interpretation was given on 26
September 2022. The emissaries of
Amatolo (deceased family) were Dr
Nuku and Mr Bovungana, and they met with AmaJwara (Bangaza family).
During the meeting, the emissaries
asked for the customary marriage
of Monalisa Bangaza and the deceased. The families agreed that two
cows in monetary terms were
paid. The cows were valued at R5 000
each. Again on 22 November 2022, the emissaries visited the home of
Bangaza and lobola
negotiations were concluded. The agreement was
that the total lobola would be ten cows, and the emissaries paid an
amount of R25 000,
which was in addition to the initial R10 000
paid on 26 September 2022. After the lobola negotiations were
concluded, Ms Bangaza
was then permitted to go ahead with the
marriage to the deceased.
[20]
Another relevant document is annexure ‘A’,
which is attached to the applicant’s founding affidavit. This
is a
memorial service programme. According to the document, the
deceased is said to be leaving behind his wife, Qhayiyalethu, family,
children and his nieces and nephews.
The legal framework
[21]
The Act defines a customary marriage as a
marriage concluded in accordance with customary law. The requirements
for a valid customary
marriage are set out in section 3(1) of the
Act–
“
(1)
For a customary marriage entered into after the commencement of this
Act to be valid–
(a)
the prospective spouses–
(i)
must be above the age of 18 years; and
(ii)
must both consent to be married to each other under customary law;
and
(b)
the marriage must be negotiated and entered into or celebrated in
accordance with
customary law.”
[22]
In
Mbungela
& Another v Mkabi & Others,
[2]
Maya P (as she then was) held–
“
[C]ustomary
law is defined in s 1 of the Act as “customs and usages
traditionally observed among the indigenous African peoples
of South
Africa and which form part of the culture of those peoples”.
But s 3(1)
(b)
does not stipulate the requirements of customary law which must be
met to validate a customary marriage. The reason for this is
not far
to seek. It is established that customary law is a dynamic, flexible
system, which continuously evolves within the context
of its values
and norms, consistently with the Constitution, so as to meet the
changing needs of the people who live by its norms.
The system,
therefore, requires its content to be determined with reference to
both the history and the present practice of the
community concerned.
As this Court has pointed out, although the various African cultures
generally observe the same customs and
rituals, it is not unusual to
find variations and even ambiguities in their local practice because
of the pluralistic nature of
African society. Thus the legislature
left it open for the various communities to give content to s 3(1)
(b)
in accordance with their lived experiences.”
[23]
The
contentions of the parties revolve around s 3(1)
(b)
of the Act; the jurisdictional factors in s 3(1)
(a)
are not an issue. Subsection (1)
(b)
only provides that the marriage must be negotiated and entered into
or celebrated in accordance with customary law. The subsection
does
not expressly provide for the handing over of the bride by her family
to the family of the bridegroom. It requires negotiations
between the
two families and consummation of the marriage or celebration thereof.
The requirement of the handing over was a customary
law requirement
before the coming into effect of the Act.
[3]
[24]
In
Tsambo
v Sengadi
[4]
Molemela J, after analysis of cases and other authorities, held–
‘
It
is evident from the foregoing passage that strict compliance with
rituals has, in the past, been waived. The authorities cited
by the
respondent, mentioned earlier in the judgment, also attest to that.
Clearly, customs have never been static. They develop
and change
along with the society in which they are practised. Given the
obligation imposed on the courts to give effect to the
principle of
living customary law, if follows ineluctably that the failure to
strictly comply with all rituals and ceremonies that
were
historically observed cannot invalidate a marriage that has otherwise
been negotiated, concluded or celebrated in accordance
with customary
law.’
[25]
In
Shilubana
and Others v Ntwamitwa
[5]
the Constitutional Court made the following statement–
“
To
sum up: where there is a dispute over the legal position under
customary law, a court must consider both the traditions and the
present practice of the community. If development happens within the
community, the court must strive to recognise and give effect
to that
development, to the extent consistent with adequately upholding the
protection of rights. In addition, the imperative of
section 39(2)
must be acted on when necessary, and deference should be paid to the
development by a customary community of its
own laws and customs
where this is possible, consistent with the continuing effective
operation of the law.”
[26]
In
Nduli
v Minister of Home Affairs and Others
[6]
it was held–
“
I
can find no reason to differ from what was held in Mankayi and I
agree that the fact that a bride was not formally handed over
to the
bridegroom’s family or to the bridegroom himself for that
matter, is not an impediment to a valid customary marriage
and
further that by living together as husband and wife, the applicant
and deceased had clearly concluded their customary marriage.
This
also takes into account the evolving nature of customary law and how
certain elements are influenced by changing social and
economic
conditions.”
[27]
On these principles, I turn to consider the
submissions of the parties.
Discussion
[28]
Mr
Mzileni
,
counsel for the applicant, had submitted that there is no evidence
regarding the handing over of Ms Bangaza to the deceased’s
family. He relied, in this regard, on the case of
DRM
v DMK,
[7]
where it was held–
“
In
my view the handing over of the bride is what distinguishes mere
cohabitation from marriage. Until the bride has formally and
officially been handed over to the groom’s people there can be
no valid customary marriage. In terms of practice or living
customary
law, the bride cannot even hand herself over to the groom’s
family. She has to be accompanied by the elders or
relatives for the
handing over to her in-laws.”
[29]
However,
Mr
Mzileni
was
hard-pressed to explain the form and the nature of the handover that
is required for compliance with the requirements of a valid
customary
marriage. I find this submission to lack merit, and in my view, his
submission finds an answer from
Mbungela
and Another v Mkabi and Others
[8]
where Maya P said–
“
The
importance of the observance of traditional customs and usages that
constitute and define the provenance of African culture
cannot be
understated. Neither can the value of the custom of bridal transfer
be denied. But it must also be recognised that an
inflexible rule
that there is no valid customary marriage if just this one ritual has
not been observed, even if the other requirements
of s 3(1) of the
Act, especially spousal consent, have been met, in circumstances such
as the present, could yield untenable results.”
[30]
I accept the version of Ms Bangaza. She
started her intimate relationship with the deceased in 2015. The
relationship was an open
one, as she would even visit the family of
the deceased. Ms Kunene was not living with the deceased and Ms
Bangaza. There is overwhelming
evidence from both Ms Bangaza and the
witnesses of Ms Kunene that the deceased proposed marriage to Ms
Bangaza. The allegations
of Ms Bangaza that emissaries, Dr Nuku and
Mr Bovungana, were sent to her home have not been disputed. The
minutes of the lobola
negotiations, which form part of the record,
could not be denied. The agreement on lobola and payment of that
lobola appears
ex-facie
from the minutes. The version of Ms Bangaza could not be
controverted. On the other hand, the version of Ms Kunene is
unconvincing.
She does not have personal knowledge of the events. Her
witnesses make unsubstantiated allegations that the deceased might
have
been of unsound mind. There is no objective evidence in this
regard. No medical records were furnished to the court. It seems to
me that Ms Kunene’s witnesses were simply not approving of
the customary marriage of the deceased and Ms Bangaza. This
cannot be
a reason to invalidate a marriage.
[31]
The contention that Dr Nuku and Mr
Bovungana are not family members of the Kunene family stands to be
rejected for the simple reason
that the representatives need not be
members of the family for as long as they speak on behalf of that
family and the groom.
[32]
All the witnesses agree that on 26 November
2022, there was an utsiki ceremony at the deceased’s family
where Ms Bangaza was
introduced as the wife of the deceased and given
the name of Qhayiyalethu. The memorial service programme makes it
apparent that
the deceased has left behind his wife, Qhayiyalethu and
children. This objective evidence has been submitted by both Ms
Kunene
and Ms Bangaza. The only complaint is that the utsiki
ritual was not performed in accordance with the Amatolo tradition.
There
was no evidence regarding the Amatolo tradition on utsiki. My
view is that compliance with such rituals is not a requirement in
terms of the Act, and therefore, even if utsiki was not in terms of
Amatolo's custom, that would not invalidate the marriage. The
fact of
the matter, in my view, is that the marriage was celebrated on 26
November 2022.
[33]
The applicant, Ms Kunene, does not know all
of these events for the reason that she was not present. She was in
the Caribbean Islands,
and she cannot dispute the allegations of Ms
Bangaza and her witnesses. Another aspect which I must comment on
concerns the allegations
that the deceased was not mentally sound
when he concluded the customary marriage.
[34]
I find no merit in the allegation
concerning the mental status of the deceased for the simple reason
that the deceased, himself,
confirmed to various members of his
family that he was paying lobola for Ms Bangaza. He set the dates for
utsiki himself. There
is not even a medical report which suggests
that the deceased was not mentally sound when he concluded the
customary marriage.
On the contrary, the evidence is overwhelming
that he intended, at all times, to conclude the customary marriage
with Ms Bangaza.
He paid a whopping amount of R35 000 in total
as lobola. He informed the members of his family that if they refused
to negotiate
lobola on his behalf, he would send Dr Nuku and Mr
Bovungana. The family was always aware that Dr Nuku and Mr Bovungana
would be
family representatives in their absence.
[35]
The celebration of the marriage did occur,
and it followed a symbolic handing over of Ms Bangaza, which had
taken place pursuant
to the conclusion of the lobola negotiations on
22 November 2022.
[36]
In
Mbungela &
Another v Mkabi & Others
, Maya P
summarised the position as follows–
“
The
question whether non-observance of the bridal transfer ceremony
invalidates a customary marriage has been decisively answered
by our
courts. In
Mabuza v Mbatha
,
the court considered whether non-compliance with the siSwati custom
of bridal transfer, ukumekeza, invalidated a customary marriage.
The
court held”
“
There
is no doubt that ukumekeza, like so many other customs, has somehow
evolved so much that it is probably practices differently
than it was
centuries ago . . .. As Professor De Villiers testified, it is
inconceivable that ukumekeza has not evolved and that
it cannot be
waived by agreement between the parties and/or their families in
appropriate cases.
Further support for the
view that African customary law has evolved and was always flexible
in application is to be found in T W
Bennett
A Sourcebook of
African Customary Law for Southern Africa
. Professor Bennett has
quire forcefully argued (at 194):”
“
In
contrast, customary law was always flexible and pragmatic. Strict
adherence to ritual formulae was never absolutely essential
in
close-knit, rural communities, where certainty was neither a
necessity nor a value. So, for instance, the ceremony to celebrate
a
man’s second marriage would normally be simplified; similarly,
the wedding might be abbreviated by reason of poverty or
the need to
expedite matters [because of a pregnancy or elopement].”
[37]
I must add that, in terms of the provisions
of the Act, the handing over of a bride in a customary marriage has
not been formally
set out as a requirement. The handing over, in my
view, is a mere formality which serves as one of the evidential
materials for
confirmation that a customary marriage was indeed
concluded. Handing over should never be elevated to a level of a
statutory requirement.
Customary law is a living law of the people,
and it does not incorporate inflexible rules which are cast in stone.
The temptation
to infuse inflexible rules on customary law principles
would be contrary to the living of the people and their ever-changing
circumstances.
I do find that handing over of a bride may always be
condoned if other requirements set out for the validity of a
customary marriage
have been met. One should also bear in mind that
the envisaged ceremonial handing over in a customary marriage is not
akin to the
offloading of a cement bag from a truck and handed to a
builder.
[38]
In
my view, the envisaged handover could take any form for as long as
the final effect is to ensure that both the bridal and groom
families
have been made reasonably aware that the parties have concluded a
customary marriage. It would serve no purpose to deny
recognition of
a customary marriage of two adult consenting parties based on
demanding strict adherence to some form of rituals
and practices. The
day has come for an acceptance that a mere symbolic or constructive
delivery of the bride is sufficient for
confirming that a customary
marriage was concluded. For as long as the bride’s family is
aware that their daughter has married
in terms of customary law and
raised no objections, there should be no demand for further
compliance with rituals such as handing
over. Constructive delivery
would have taken place in circumstances where the groom’s
family is also aware that their son
is married. Their
objections would be meaningless in circumstances where the spousal
consent has been granted, and the marriage
has been negotiated and
celebrated, as is the case here. The decision in the
DRM
v DMK
[9]
and
other similar cases had sought to overburden the principles of
customary law, which is a living law, and I, therefore, disagree
with
what was set out in those cases. The
Mbungela
and Another v Mkabi and Others
judgment settled the principles of customary law as a living law of
the people.
Findings
[39]
Given the overwhelming evidence before the
court, I find no reason to differ from what was held in
Mbungela
and Another v Mkabi & Others
, and
many other cases that the fact that a bride was not formally handed
over to the bridegroom’s family or the bridegroom
himself for
that matter, is not an impediment to a valid customary marriage and
further that by living together as husband and
wife, Ms Bangaza and
the deceased had concluded their customary marriage. The deceased and
Ms Bangaza were above the age of
18 years. They consented to be
married to each other in terms of customary law. Lobola negotiations
were conducted, and utsiki,
as a form of welcoming Ms Bangaza, was
performed, albeit unsatisfactorily to the deceased’s family. Ms
Bangaza was given
a marital name. All these factors, considered
together, conclusively prove that a valid customary marriage was
concluded between
the deceased and Ms Bangaza.
Costs
[40]
The general rule is that costs should
follow the results. The court may depart from the general rule in the
exercise of its discretion.
I have considered the fact that Ms Kunene
is the daughter of the deceased. She was not present when the
customary marriage was
concluded. She might have been influenced by
some family members who were aggrieved by the marriage, as it appears
from the confirmatory
affidavits. In the confirmatory affidavits,
some members of the family had sought to suggest that the deceased
was mentally unsound
when he concluded the customary marriage. All
these, taken together, may have led Ms Kunene to challenge the
marriage of Ms Bangaza.
I will, therefore, not award costs
against Ms Kunene in these circumstances.
Conclusion
[41]
In the result, the following order is made–
(1)
The application is dismissed;
(2)
Each party shall bear its own costs.
M NOTYESI
ACTING JUDGE OF THE
HIGH COURT,
EASTERN CAPE DIVISION
MTHATHA
Appearances
Counsel
for the Applicant
Adv
Mzileni
Attorneys
for the Applicant
Mdledle-Malefane
& Associates
Mthatha
Counsel
for the First Respondent
Adv
Sintwa
Attorneys
for the First Respondent
T
Qina & Sons Attorneys
Mthatha
[1]
Section
3 of the Act sets out the requirements for validity of customary
marriages as follows:
‘
(1)
For a customary marriage entered into after the commencement of this
Act to be valid–
(a)
the prospective spouses–
(i)
must both be above the age of 18 years; and
(ii)
must both consent to be married to each other under customary law;
and
(b)
the marriage must be negotiated and entered into or celebrated in
accordance with
customary law.
[2]
Mbungela
& Another v Mkabi & Others
[2019] ZASCA 134
;
2020 (1) SA 41
(SCA);
[2020] 1 All SA 42
(SCA)
para 17.
[3]
Fezile
Mlamla v Nomathamsanqa Rubushe and Others
unreported
judgment of the Full Bench of the Eastern Cape Division under Case
no CA04/2020 delivered by Tokota J para 30.
[4]
Tsambo
v Sengadi
[2020] ZASCA 46
para 18.
[5]
Shilubana
and Others v Nwamitwa
[2008] ZACC 9
;
2009 (2) SA 66
(CC);
2008 (9) BCLR 914
(CC) para 49.
[6]
Nduli
v Minister of Home Affairs and Others
[2023] ZAKZPHC 24 para 60.
[7]
DMR
v DMK
unreported
Judgment of Limpopo Division under Case no 2017/2016.
[8]
Above
n 4 para 27.
[9]
DRM
v DMK supra