Theledi v Malesela and Others (47848-2021) [2022] ZAGPJHC 1063 (16 August 2022)

80 Reportability

Family Law

Brief Summary

Customary Marriage — Registration — Late registration of customary marriage — Applicant seeks to register a customary marriage with deceased and condone late registration — Respondent opposes, claiming no valid marriage due to lack of 'handing over' ceremony — Court finds that parties intended to marry and lived together as husband and wife, fulfilling the requirements of customary law despite the absence of the 'handing over' ritual — Court condones late registration and orders registration of customary marriage.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was brought as an application in the Gauteng Local Division, Johannesburg, in which the applicant sought an order condoning the late registration of an alleged customary marriage between himself and the deceased, and directing the relevant state functionaries to effect registration. The applicant was Katlego Cornell Theledi, and the respondents were Hendrik S. Malesela (the deceased’s father), the Minister of Home Affairs, and the Master of the High Court.

The application was opposed by the first respondent. The opposition focused on whether a valid customary marriage had been concluded, particularly whether the customary requirement of the “handing over” of the bride had occurred and whether the payments made were truly lobolo or merely damages. The application arose in the aftermath of the deceased’s death, in circumstances where the applicant sought recognition of the marriage to secure access to benefits (notably pension-related benefits) for the benefit of the children.

The general subject-matter of the dispute was therefore the validity and recognition of a customary marriage allegedly concluded in 2012, and the consequent entitlement to have that marriage registered after the deceased’s death.

2. Material Facts

It was common cause that the applicant and the deceased met while both were students at the University of Johannesburg and that they began a relationship in 2009. Their first child was born in 2011, and thereafter they sought their families’ blessings and decided to conclude a customary marriage.

In September 2012, a family meeting was held where lobolo negotiations took place. These negotiations culminated in an agreed dowry of R46 500, and a written lobolo agreement recorded a deposit of R8 700, with an acknowledgment of the outstanding balance. The written document was signed by witnesses from both families.

It was further recorded that an amount of R14 900 was paid and accepted, which comprised R6 200 described as damages for having a child out of wedlock and R8 700 in respect of lobolo. After these events, the applicant contended that the deceased was handed over to his family and that the couple lived together as husband and wife in Centurion, and later had a second child, continuing cohabitation until the deceased’s death.

A factual dispute arose on the question whether the customary marriage was properly concluded in accordance with customary law. The first respondent disputed that there had been a valid customary marriage and asserted that there was no valid ceremony, primarily because the deceased was allegedly not handed over to the applicant’s family as required by customary law. The first respondent also contended that the payments made pursuant to the negotiations were not lobolo payments but were in respect of damages only.

After the deceased’s death, the applicant convened a further meeting between family members and explained that the deceased’s pension fund required a court order validating the customary marriage. At that meeting, the first respondent signed a letter acknowledging that the applicant and the deceased were married on 22 September 2012 and that it was a customary marriage, with witnesses also signing. The first respondent later sought to retract the use of the letter, stating that his wife objected to it and that the applicant should not use it. The judgment recorded that the first respondent’s wife had, after the deceased’s death, applied to the pension fund for benefits to be paid to her notwithstanding that the deceased’s children were living with the applicant.

3. Legal Issues

The central legal question was whether the applicant and the deceased had concluded a valid customary marriage as contemplated in section 3(1) of the Recognition of Customary Marriages Act 120 of 1998, and, if so, whether the court should condone late registration and compel registration by the relevant authorities.

The dispute principally concerned the application of law to fact: whether the facts established (including lobolo negotiations, payments, cohabitation, family involvement, and later acknowledgments) satisfied the statutory requirement that the marriage was “negotiated and entered into or celebrated in accordance with customary law,” and specifically whether the absence (or alleged absence) of a bride “handing over” was decisive.

To the extent that competing versions existed on handing over and the characterisation of payments, the court’s task also involved evaluating the significance of the disputed facts in light of the accepted legal approach to living customary law and the flexibility of customary marriage requirements.

4. Court’s Reasoning

The court identified section 3(1) of the Recognition of Customary Marriages Act as setting the requirements for validity of a customary marriage entered into after the commencement of the Act. These include that both prospective spouses must be over 18, must consent to be married under customary law, and that the marriage must be negotiated and entered into or celebrated in accordance with customary law.

A primary contention by the first respondent was that a valid customary marriage had not come into existence because the deceased was not “handed over” to the applicant’s family. The court approached this contention through the interpretive lens articulated in Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA). It relied on the principles that courts must recognise living customary law, and that customary law must be applied with sensitivity to its flexibility and evolution, while balancing legal certainty and rights protection.

The court further referenced authority addressing the “handing over” practice, including LS v RL [2018] ZAGPJHC 613; [2019] 1 All SA 569 (GJ); 2019 (4) SA 50 (GJ) and the discussion in Mabuza v Mbatha 2003 (4) SA 218 (C). In line with these authorities, the court treated “handing over” as an important ritual associated with marking the start of the matrimonial consortium and introducing a bride to a new family, but not necessarily as an inflexible, decisive prerequisite that automatically invalidates a marriage where other core requirements, particularly consent and the parties’ clear intention, are present.

Applying these principles to the facts, the court placed weight on the following: the parties’ relationship spanning several years; the existence of lobolo negotiations and a written lobolo agreement; payments made and accepted pursuant to those negotiations; the parties’ continued cohabitation after September 2012 as husband and wife; the birth of a second child; and the first respondent’s later written confirmation that a customary marriage had taken place on 22 September 2012. The court regarded these circumstances as strongly indicative that the parties intended to be married and that their families had acknowledged the formalisation of the relationship.

The court also considered an argument raised by the first respondent in oral submissions to the effect that the applicant intended a civil marriage rather than a customary marriage. The court did not accept this as undermining the applicant’s case, noting that the affidavits did not support this “new defence” as framed in argument.

On the evidentiary significance of the confirmation letter signed by the first respondent, the court noted that the first respondent did not dispute the contents of the letter itself, but only sought to withdraw it because his wife objected. The court treated the letter, together with the broader factual matrix, as supporting the conclusion that a customary marriage was indeed concluded.

On this basis, the court reached the conclusion that the marriage between the applicant and the deceased was valid, and that late registration should be condoned with directions to the relevant respondents to register the marriage.

5. Outcome and Relief

The court granted an order condoning the late registration of the customary marriage between the applicant and the deceased, Motlalepule Malesela.

The court further ordered the second and third respondents to register the customary marriage, and ordered the first respondent to pay the costs of the application.

Cases Cited

Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA).

LS v RL [2018] ZAGPJHC 613; [2019] 1 All SA 569 (GJ); 2019 (4) SA 50 (GJ).

Mabuza v Mbatha 2003 (4) SA 218 (C).

Legislation Cited

Recognition of Customary Marriages Act 120 of 1998, section 3(1).

Constitution of the Republic of South Africa, 1996 (referenced in relation to customary law’s development and constitutional rights such as dignity and equality).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, on the facts accepted and assessed in light of the applicable approach to living customary law, the applicant and the deceased had concluded a valid customary marriage on 22 September 2012. The court held further that the alleged non-observance of the “handing over” ritual was not, in the circumstances, a decisive basis to deny validity where the parties’ intention to be married, family involvement, and subsequent conduct supported the conclusion that a customary marriage had been entered into.

It consequently held that late registration should be condoned and that the responsible respondents should be directed to register the marriage, with the first respondent liable for the costs of the application.

LEGAL PRINCIPLES

A customary marriage concluded after the commencement of the Recognition of Customary Marriages Act 120 of 1998 must satisfy the requirements in section 3(1), including spousal consent and negotiation/celebration in accordance with customary law.

In determining whether a customary marriage exists, courts apply an approach that recognises living customary law as flexible and evolving, rather than insisting rigidly on ritual compliance in every case irrespective of context and the parties’ demonstrated intention.

The handing over of the bride is treated as an important customary practice associated with the commencement of the matrimonial consortium and familial integration, but it is not necessarily an absolute determinant of validity in every case; it cannot automatically override clear evidence of the parties’ intention and family recognition where the broader requirements for a customary marriage are otherwise satisfied.

Where a valid customary marriage is established, a court may condone late registration and grant mandatory relief directing responsible state functionaries to effect registration, and may award costs against the party who unsuccessfully opposed such relief.