Brief Summary

Customary Marriage — Validity of customary marriage — Plaintiff seeking declaratory order that no valid customary marriage exists due to lack of formal handover despite payment of lobola — Defendant counterclaiming for divorce on grounds of irretrievable breakdown of marriage — Court finding that customary marriage not valid as essential rituals and handover not performed, despite lobola payment — Declaration of nullity of purported marriage granted.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an action in the Limpopo Division of the High Court, Polokwane, in which the plaintiff sought a declaratory order that no valid customary marriage existed between himself and the defendant. In the alternative, and only if a valid customary marriage were found to exist, the plaintiff sought a decree of divorce.

The parties were D R M (plaintiff) and D M K (defendant), who had been in a romantic relationship and had a minor child together. The defendant opposed the declaratory relief and maintained that a valid customary marriage had been concluded. She also advanced a counterclaim for divorce on the basis of the irretrievable breakdown of the marriage, together with substantial ancillary claims.

The procedural history included an earlier attempt by the defendant to obtain a divorce: in July 2013 she issued a divorce summons in the North Gauteng Division, Pretoria, alleging, among other things, that the parties had not stayed together since 2010. The present proceedings were instituted later, during 2016, when the plaintiff sought a definitive determination that no customary marriage had come into existence.

The general subject-matter of the dispute was the validity of an alleged customary marriage, specifically whether the customary-law requirement of the handing over (transfer) of the bride had occurred, in circumstances where lobola had been paid in full, but the parties had never established a common home as spouses.

2. Material Facts

It was common cause that the parties met and formed a relationship in 2005, and that one child, a son, was born on 31 December 2007. It was also common cause that on 23 October 2010 a lobola agreement was concluded between the families, that lobola was paid in full on that date, and that an additional amount of R100 was paid as part of the process described as requesting the bride (go kgopela ngwetsi).

It was further common cause that, after the lobola payment on 23 October 2010, the plaintiff’s delegation did not return with the defendant to the plaintiff’s family home. The parties thereafter continued their relationship in a manner that involved visiting one another at their respective places of residence and/or employment, but the court accepted the evidence that they never stayed together in a common home as spouses.

A key factual dispute concerned the reason the defendant did not leave with the plaintiff’s delegation on 23 October 2010. The plaintiff’s case, supported by his family witnesses, was that the defendant’s family refused or failed to hand her over and indicated that they would do so later after certain rituals and a ceremony (including slaughtering an animal) and accompaniment by elders. The defendant’s case, supported by her witnesses, was that her family was willing to hand her over, but the plaintiff’s delegation declined to take her, allegedly because they were not ready and still needed to make preparations.

The relationship ended in substance during May 2013, when the defendant told the plaintiff that she no longer loved him and wished to move on. On 9 July 2013, the defendant caused a divorce summons to be issued in Pretoria, pleading (among other things) that the parties had not exercised marital privileges for a considerable period and had not stayed together since 2010, with the plaintiff residing in Modimolle and the defendant in Polokwane.

The court treated as material the fact that, despite full lobola payment, there was no subsequent event in which the defendant was accompanied by her elders (including aunts) and formally delivered to the plaintiff’s family, and no evidence that the customary integration associated with such delivery occurred at any time before the parties separated.

3. Legal Issues

The central legal question was whether, on the evidence, the parties had entered into a valid customary marriage as contemplated by section 3 of the Recognition of Customary Marriages Act 120 of 1998, with particular emphasis on whether the customary requirement of the handing over of the bride formed part of the “negotiated and entered into or celebrated in accordance with customary law” requirement, and whether it had occurred on the facts.

The dispute required the court to determine both factual issues (which version of the events surrounding the alleged handing over was probable and credible) and an application-of-law-to-fact inquiry (whether the proved facts satisfied the statutory and customary-law requirements for a valid customary marriage). The matter also involved an evaluative assessment of credibility, reliability, and probabilities in resolving mutually destructive versions.

4. Court’s Reasoning

The court approached the factual dispute by applying the established methodology for resolving mutually destructive versions in civil proceedings. It invoked the principles set out in Stellenbosch Farmers' Winery Group Ltd and Another v Martell ET CIE and Others 2003 (1) SA 11 (SCA) and National Employers' General Insurance v Jagers 1984 (4) SA 437 (E), emphasising that the outcome depends on credibility findings, reliability, and the inherent probabilities, and that the plaintiff bears the onus to establish his version on a preponderance of probabilities.

On the evidence, the court preferred the plaintiff’s version. It found the plaintiff and his witnesses credible, consistent, and corroborative on the critical point that the plaintiff’s delegation had been mandated to return with the bride and that the defendant’s family did not hand her over on 23 October 2010. The court regarded the defendant’s version and that of her witnesses as improbable on the handing-over issue, particularly because it was difficult to reconcile the alleged refusal by the plaintiff’s delegation to take the bride with the evidence that the delegation’s mandate was expressly to do so. The court also made an adverse credibility assessment of the defendant’s testimony, describing it as unreliable and untruthful in its presentation.

The court treated the defendant’s own pleaded position in the earlier Pretoria divorce action as materially supportive of the plaintiff’s version. In that summons, the defendant alleged that the parties had not stayed together since 2010, which the court considered a significant indicator that the defendant had not been handed over into a marital home after lobola was paid.

On the legal requirements, the court set out section 3 of the Recognition of Customary Marriages Act 120 of 1998, noting that a post-Act customary marriage is valid if the parties are over 18, consent to be married under customary law, and the marriage is negotiated and entered into or celebrated in accordance with customary law. The court then relied on authority confirming that, in South African customary law as applied by the courts, payment of lobola alone is insufficient; the handing over (transfer) of the bride is treated as an essential component of the customary process by which a marriage comes into existence.

In this connection, the court referred to Fanti v Boto and Others 2008 (5) SA 405 (C) for the proposition that essential requirements that must be alleged and proved include consent, lobola, and the handing over of the bride, and that lobola payment without the other requirements does not establish a valid customary marriage. The court also relied on Rasello v Chali & Others (A69/2012) [2013] ZAFSHC 182 (23 October 2013), where transfer of the bride was accepted as an essential requirement, notwithstanding that it is not expressly listed in the Act. Further support was drawn from Motsotsoa v Roro & Another [2011] ALL SA 324 (GSJ) and Moropane v Southon (755/12) [2014] ZASCA 76 (29 May 2014), emphasising that handing over is the crucial step integrating the bride into the groom’s family and distinguishing marriage from informal partnership or mere cohabitation.

The defendant’s argument that the payment of the R100 amounted to a handing over, and that handing over could occur tacitly without formal ceremony, was considered through the lens of an unreported decision relied upon by her counsel, namely C v P (1009/2016) [2017] ZAFSHC 57 (6 April 2017). The court distinguished that case on its facts, noting that it involved express words by the bride’s mother indicating delivery of the daughter, followed by cohabitation. In the present matter, there were no comparable express words of transfer, no later formal delivery by elders, and the parties did not establish a shared marital home.

Applying these principles to the proven facts, the court concluded that the plaintiff had established on a balance of probabilities that the defendant was never handed over to the plaintiff or his family. As a result, the customary marriage requirements were not satisfied, and no valid customary marriage came into existence, despite the full payment of lobola.

5. Outcome and Relief

The court granted a declaratory order that no valid customary marriage existed between the plaintiff and the defendant.

The court directed that the issue of maintenance for the minor child born of the relationship be referred to the Maintenance Court.

No order as to costs was made.

Cases Cited

Stellenbosch Farmers' Winery Group Ltd and Another v Martell ET CIE and Others 2003 (1) SA 11 (SCA).

National Employers' General Insurance v Jagers 1984 (4) SA 437 (E).

Fanti v Boto and Others 2008 (5) SA 405 (C).

Rasello v Chali & Others (A69/2012) [2013] ZAFSHC 182 (23 October 2013).

Motsotsoa v Roro & Another [2011] ALL SA 324 (GSJ).

Moropane v Southon (755/12) [2014] ZASCA 76 (29 May 2014).

C v P (1009/2016) [2017] ZAFSHC 57 (6 April 2017).

Legislation Cited

Recognition of Customary Marriages Act 120 of 1998 (section 3, including section 3(6) as referenced in the reasoning).

Constitution of the Republic of South Africa, 1996.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, although lobola was paid in full, the plaintiff proved on a balance of probabilities that the defendant was never formally handed over by her family to the plaintiff or his family in accordance with customary law. The absence of this element meant that the requirements for a valid customary marriage were not met. The court therefore declared that no valid customary marriage existed between the parties, referred the question of child maintenance to the Maintenance Court, and made no costs order.

LEGAL PRINCIPLES

A customary marriage contemplated by the Recognition of Customary Marriages Act 120 of 1998 must be negotiated and entered into or celebrated in accordance with customary law, and the content of that customary law may include requirements not expressly listed in the Act where they form part of living customary practice.

Payment of lobola, even when made in full, is not on its own conclusive proof of a valid customary marriage; it is one component in a broader customary process.

The handing over (transfer/delivery) of the bride to the groom’s family is treated in the authorities applied by the court as a crucial and essential requirement for the validity of a customary marriage, because it effects integration of the bride into the groom’s family and distinguishes marriage from informal partnership.

Where there are two mutually destructive versions, a civil court resolves the factual dispute by assessing credibility, reliability, and probabilities, and the party bearing the onus must prove its version on a preponderance of probabilities, applying the approach in Stellenbosch Farmers' Winery Group Ltd and Another v Martell ET CIE and Others 2003 (1) SA 11 (SCA) and National Employers' General Insurance v Jagers 1984 (4) SA 437 (E).

D.R.M v D.M.K (2017/2016) [2018] ZALMPPHC 62 (7 November 2018)