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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 799/2023

In the matter between:
NTHUSENI CHRISTINAH MANWADU APPELLANT
and
MATODZI JOYCE MANWADU FIRST RESPONDENT
MASTER OF THE HIGH COURT,
THOHOYANDOU SECOND RESPONDENT
MINISTER OF HOME AFFAIRS THIRD RESPONDENT
UNIVERSITY OF VENDA FOURTH RESPONDENT
SANLAM LIMITED FIFTH RESPONDENT

Neutral citation: Manwadu v Manwadu and Others (799/2023) [202 5]
ZASCA 10 (10 February 2025)
Coram: MAKGOKA , WEINER and MOLEFE JJA and COPPIN and
DIPPENAAR AJJA

Heard : 23 August 2024
Delivered : This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme Court of
Appeal website, and by release to SAFLII. The date and time for hand -down is
deemed to be 11h00 on 10 February 2025.

Summary: Evidence – uncertified copy of Identity Document utilised to prove
customary marriage – failure to produce certificate of marriage or corollary
evidence to prove existence of customary marriage – production of uncertified
copy of identification book with endorsement of marriage – admissibi lity and
weight of such evidence challenged – failure to adduce any evidence to prove
that required customs for a customary marriage were observed.


ORDER
________________________________________________________________
On appeal from: Limpopo Division of the High Court, Polokwane (the full
court) (Ledwaba AJ and Kganyago J concurring , Diamond AJ dissenting ):
1 The appeal is upheld .
2 The order of the full court is set aside and replaced with the following
order :
‘The appeal is dismissed with costs.’

JUDGMENT

Weiner JA (Molefe JA , Coppin and Dippenaar AJJA concurring):

Introduction
[1] This appeal emanates from the full court of the Limpopo Division of the
High Court, Polokwane the full court) . The issue before the Limpopo Division
of the High Court, Thohoyandou (the high court ) and the full court was two-
fold. Firstly, whether the first respondent, Matodzi Joyce Manwadu and
Livhuwani Robert Manwadu (the deceased ) were married b y customary law on
13 March 1979. Secondly, whether a civil marriage entered into betwee n the
deceased and the appellant, Nthuseni Christinah Manwadu on 23 December
1996 was valid and had existed at the date of the death of the deceased. If the
former is correct, the first respondent asserted that the civil marriage between
the appellant and the deceased was invalid in terms of s 10 of the Recognition
of Customary Marriage s Act 120 of 1998 ( the RCM A). There was no dispute on
the latter issue; nor was there a dispute that the deceased and the appellant were
married according to civil law. The dispute in this Court centres on whether the
customary marriage of the first respondent and the deceased was proven by the
first respondent.

[2] The second respondent is the Master of the High Court, Limpopo
Division , Thohoyandou (the Master) and is cited as an interested party in that
the estate of the deceased is being administe red under its supervision in terms of
the Administration of the Estate s Act 66 of 1965, as amended (the Estates Act).
The third respondent is the Minister of Home Affairs who is cited as the
executive head of the Department responsible for the registration and keeping of
a marriage regis ter of the South African populatio n in terms of the Marriage Act
25 of 1961 (the Marriage Act) and the RCM A.

[3] The fourth respondent is the University of Venda , a statutory body
created in terms of the University of Venda (Private) Act 89 of 19961 and

1 Prior to repeal by the Higher Education Amendment Act 23 of 2001 .
registered in term s of the Higher Education Act 101 of 1997 . At the time of his
death, the deceased was employed by the fourth respondent . The fifth
respondent is Sanlam Limited , a financial service provider registered as such
and administering the University of Venda for Science and Technology
provident fund. As the second to fourth respondents abide the decision of this
court, the first respondent will be referred to as ‘the re sponde nt.’

Background
[4] The deceased passed away on 20 February 2017. A dispute arose between
the appellant and the respondent as to who was the heir ess of the deceased ’s
estate. The respondent launched an application in the high court seeking the
following declarations :
1. That the [respondent ] and the deceased, during his lifetime and until his
death , were customary law spouses married on 13 March 1979 ;
2. That the civil marriage between the appellant Nthuseni Christinah
Manwadu) and the deceased, while he was alive, is null and void ab initio ;
3. That the appellant and the decease d were not married in terms of
customary law ;
4. That the customary law marriage between the respondent and deceased
was a marriage in community of property ;
5. That the costs be paid by an y of the parties who oppose d the application.

[5] The appellant brought a conditional counter -application in which she
sought the following relief, in the event of the respondent’s application being
successful:
1. A declarator y order that the customary marriage entered into between the
respondent and the deceased was dissolved when the applicant left the
matrimonial home ;
2. A declaratory order that the customary marriage entered into between the
appellant and the deceased is valid;
3. An order declaring that the joint will between the appellant and the
deceased is valid.

[6] Relying on s 4(8) of the RCMA ,2 the respondent attached an uncertified
copy of what she alleged Venda identity document (the ID document), which
reflected her name and identity number, the deceased’s name but no identity
number and an endorsement of the date of marriage (the endorsement). The
respondent relied on th is ID document as prima facie proof of the existence of
the customary marriage to the deceased , as envisaged in the subsection . She
alleged that this became conclusive proof in the abse nce of fraud. It was
common cause that the copy of the ID document was not certified. The
appellant challenged its authenticity and the validity of the customary marriage.
Thus , the respondent had to prove the ID document’s authenticity , its validity
and t he weight it should carry as a matter of law.

[7] The high court per Kgomo J (sitting as the court of first instance)
dismissed the application and found that the respondent had not proven the
existence of the customary marriage. Kgomo J held that appella nt and the
deceased had been married by civil law an d that they had executed a joint will
and testament. The high court deferred to the Master regarding the validity and
acceptability of the joint will.

[8] In paragraph 1 of the respondent’s notice of appeal in the full court,
referring to her alleged ma rriage to the deceased, she stated ‘ [t]his customary
marriage was registered in terms of the Marriage laws of the Republic of Venda

2 Provisions set out hereunder in para 24.
and it is reflected in the identity document of the applican t issued to her by the
Republic of Venda .’

[9] Paragraph 2 of the same notice of appeal states ‘ [t]he honourable court
misdirected itself by overlooking the fact that once a customary marriage is
registered in whatever acceptable form , then the certificate thereof constitutes
prima facie proof of the valid existence of the marriage .’

[10] On appeal, the majority of the full court (Ledwaba AJ , Kganyago J
concurring ) held that this ID document was prima facie proof of the existence of
the customary marriage. It set aside the judgment of Kgomo J . Diamond AJ
dissented. The full court replaced the high court order with the following order:
‘34.1 It is declared that Matondzi Joyce Manwadu and Livhuwani Robert Manwadu were
married by customar y marriage and their marriage was registered on the 13th March 1979.
34.2 The marriage between Nthuseni Christinah Manwadu and Livhuwani Robert Manwadu
is declared null and void a b initio.
34.3 The first respondent is ordered to pay the costs, both of the court of the first instance and
this appeal. Both costs to include the costs of engaging two counsel s.’

[11] This Court granted special leave to appeal. The appeal raises the
following issues:
a. Whether the ID document constitutes admissible evidence;
b. If admissible, whether the ID document with the endorsement of the date
of a marriage and the name of the deceased constitutes a ‘certificate’ and prima
facie proof of the existence of such marriage between the respondent and the
deceased in terms of s 4(8) of the RCMA ;
c. What weight should be attached to the ID document;
d. Whether the respondent proved the existence of a customary marriage
between her and the deceased.

[12] The majority of the full court equated the ID document with a marriage
‘certificate’. This document thus assumes substantive significance and
substantial weight was placed on this evidence by the full court. In fact, the
success of the respondent’s case is dependent on this seminal piece of evidence.

Pre and post the Recognition of Customary Marriages Act
[13] The customary marriage and the registration thereof , according to the
respondent , took place in 1979 and 199 3 respectively, before the promulgation
of the RCM A. Customary marriages were however recognised before the
introduction of the Constitution and the RCMA.3 As a result, it was possible to
register a customary marriage before the RCMA came into effect. The State
provided a voluntary registration system , whereby the husband, the wife or the
wife’s guardian were free to have the marriage registered at a central registry.4

[14] The Black Administration Act 38 of 1927 (the BAA) sought to unify the
regulation of marriages of all black people in South Africa, including customary
marriages. At the time of the respondent’s marriage, the s 22 of the BAA was
applicable. Certain peremptory provisions applied. For example:
Section 2 2(3) provided that no minister, or marriage officer could solemnise the
marriage of any native male person unless he has first taken from such a person
a declaration as to whether there is a subsisting customary union between such a
person and any woman ot her than the woman to whom he is to be married.


3 Nkuna -Mavutane ME and Jamneck J ‘An Appraisal of the Requirements for the Validity of a Customary
Marriage in South Africa, Before and After the Recognition of Customary Marriag es Act 120 of 1998 (2023 )
(26) PER/PELJ 1 at 8 . Available at: http://dx .doi.org/10.17159/1727 -3781/2023/v26i0a15298 ]
4 In accordance with regulations 7 and 16 of the Regulations for the Registration of Customary Unions under
GN R1970 of 25 October 1968 (promulgated under s 22 bis of the Black Administration Act 38 of 1927).
Regulation 8(4) provided that a certificate of registration was prima facie proof of its contents. By contrast,
under s 45(3) of the Natal Code of Zulu Law Proclamation R151 of 19 87 and the Kwa Zulu Act on the Code of
Zulu Law16 of 1985, registration is conclusive evidence of the marriage. Sections 22(1) -(5) of the BAA were
replace d by s 1 of Act 3 of 1988 and repealed by Act 120 of 1998.
[15] Section 22 of the BAA empowered the commissioner to promulgate
regulations for, inter alia, the registration of customary marriages. Pursuant
thereto, the Regulations for the Registration of Customary Unions were
promulgated under GN R1970 of 25 October 1968 ( the BAA regulations ).5 The
BAA regulation 8 provided for the issuing of a certificate of registration of a
customary marriage by the registrar, after payment of the prescribed fee, at the
instance of one of the spouses, or ‘any other person who satisfies the registrar
that he requires such certificate for a lawful purpose’.6 The BAA regulation 4(1)
provided that an application to register a customary marriage was to be by
declaration substantially in the form prescribed … which must be duly
confirmed and signed before a Bantu Affairs Comm issioner or registrar by,
respectively, the male and female partners in such union and the contracting
guardian of such female partner, or his heirs. The particulars required in the said
declaration were the name and surname of the female/ male partner or
contracting guardian, their identity number s, address es, witnesses etc.7

[16] The BAA regulation 8(1) provided that the registrar may issue a
registration certificate at the instance of one of the partners or the female
partner ’s contracting guardian. The registration certificate came in the form of
Annexure 4, which records the particulars as:
a. The full names and identity numbers of the spouses;
b. The office where the marriage was registered and serial number allocated
to that registration;
c. Date stamp;
d. Signature of the registrar of customary unions ; and
e. The folio number.

5 Siyabonga Sibisi ‘Registration o f Customary Marriages In South Africa: A Case For Mandatory Registration. ’
(2023). Obiter , 44(3). https://doi.org/10.17159/obiter.v44i3.16962 .
6 These regulations were promulgated but not utilised ac cording to Sibisi. Id above at 519. 1
7 Parts B, C and D of Annexure 1 to the BBA regulations.
The BAA and regulations were only repealed in 2006.8

[17] According to Nkuna -Mavutane ME and Jamneck J,9 under customary
law, the following were accepted as essential elements for a customary marriage
to be viewed as concluded and binding: consent of the bride and bridegroom
(spouses), consent of the bride’s father or guardian (parents), payment of lobolo,
and the handing over of the bride .’10

[18] The RCMA added further requirements which address formal and
customary law requirements. Both prospective spouses must have consent ed to
getting married in terms of customary law. These requirements are peremptory.
The customary law requirements relate to the negotiation and celebration of
such a marriage.11

[19] Section 2(1) of the RCM A provides that:
‘A marriage which is a valid marriage at customary law and existing at the commencement of
this Act is for all purpose s recognised as a marriage.’

[20] Section 3 of the RCMA deals with the requirements for the v alidity of a
customary marriage, concluded af ter the RCM A came into being. It provides:
‘(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 1 8 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. ’

8 Repeal of the Black Administration Act and Amendment of Certain Laws Act 28 of 2005 .
9 Op cit fn 3.
10 Id at 5.
11 Id at 8.

[21] Regarding t he required age of the parties at the time of the marriage ,
before the RCMA (a s at the date of the marriage ), s 1 of the Age of Majority
Act 57 of 1972 was applicable and it provided:
‘All persons, whether males or females, attain the age of majority when they attain the age of
twenty -one years .’12

[22] Save for the age of majority, t here is little difference between the
requirements pre and post the RCM A. The RCM A codified certain aspects of
customary law in this regard. As set out above, one of the requirements for a
valid customary marriage was the consent of the guardian, if one of the parties
was a minor.

[23] Section 4 of the RCM A provides:
‘(4)(a) A registering officer must, if satisfied that the spouses concluded a valid customary
marriage, register the marriage by recording the identity of the spouses, the date of the
marriage, any lobolo agreed to and any other particulars prescribed.
(b) The registering officer must issue to the spouses a certificate of registration, bearing the
prescribed particulars.
(5)(a) If for any reason a customary marriage is not registered, any pers on who satisfies a
registering officer that he or she has a sufficient interest in the matter may apply to the
registering officer in the prescribed manner to enquire into the existence of the marriage.
(b) If the registering office r is satisfied that a valid customary marriage exists or existed
between the spouses, he or she must register the marriage and issue a certificate of
registration as contemplated in subsection (4).
(6) If a registering officer is no t satisfied that a valid customary marriage was entered into by
the spouses, he or she must refuse to register the marriage.
(7) A court may, upon application made to that court and upon investigation instituted by that
court, order -
(a) the registration of any customary marriage; or

12 Prior to its r epeal by the Children’s Act 38 of 2005, s 1 of the Age of Majority Act 57 of 1972.
(b) the cancellation or rectification of any registration of a cust omary marriage effected by
a registering officer.
(8) A certificate of registration of a customary marriage issued under this section or any
other law providing for the registration of customary marriages constitutes prima facie proof
of the existence of the customary marriage and of the particulars contained in the certificate. ’
(Own emphasis .)

[24] Section 10 of the RCM A, at the time of the civil marriage, provided : -
‘A man and a woman between whom a customary union subsists are competent to contract a
marriage with each other if the man is not also a partner in a subsisting customary union with
another woman. ’13

[25] Section 20 of the Civil P roceedings Evidence Act 25 of 1965 (the
Evidence Act), is also relevant to these proceedings. It provides as follows:
‘Except when the original is ordered to be produced any copy of or extract from any
document in the custody or under the control of any S tate official by virtue of his office,
certified as a true copy or extract by the head of the department in whose custody or under
whose control such document is or by any officer in the service of the State authorized by
such head, shall be admissible in evidence and be of the same force and effect as the original
document.’

The respondent’s case

[26] She and the deceased became involved in 1978 while she was still at
school. She became pregnant in 1978, and the pregnancy was discovered by her
family in January 1979. The respondent state d that the deceased did not hesitate
to admit that he was the father and accepted responsibility to marry her. She
was sent to the deceased’s family ’s home by her paternal aunt , Vho Phophi

13 The amendment of the section now reads:
‘A man and a woman between wh om a customary marriage subsists are competent to contract a marriage with
each other under the Marriage Act, 1961 (Act 25 of 1961), if neither of them is a spouse in a subsisting
customary marriage with any other person. ’
Tshikororo Mahwasane (Ms Mahwasane ).14 On t he same evening she was
joined by a few young girls who would stay with her for a few days, to help her
with cooking, cleaning and preparing food .15 An amount of R600 was
negotiated as l obola and paid by the deceased ’s family to her father.16

[27] In 1982 , the respondent fell pregnant again and once more claimed that
the deceased had impregna ted her. The deceased started working in 1984 and
the respondent alleged that the deceased maintained the children . The third child
was born in January 1995. According to relatives of the deceased, he denied
paternity of this child as well. In 2004 , the two oldest children of the respondent
approached the maintenance court claiming maintenance from the deceased for
tertiary education. The deceased disputed that he was the father of any of the
children, whilst t he respondent persisted with her allegations that the deceased
was the father of all her children. Consequently, paternity tests were ordered to
prove whether the deceased was the father of the two oldest children.

[28] The deoxyribonucleic acid ( DNA ) test was conducted by the National
Health Laboratory Service , Johannesburg on 15 July 2004 between th e
deceased, the two children and the respondent. The DNA results confirmed that
the deceased was not the father of the two children. The respondent did not
disclose this crucial information to the court in her application. She continued to
insist under oat h, even after conceding that DNA tests were concluded, and
even in her replying affidavit , that the deceased fathered her children.17


14 According to respondent, in t erms of the TshiVenda custom of ‘ufhelekedza’, which purpose is:
1. To establish if the boy allegedly responsible for the pregnancy acknowledged it; and
2. To determine whether the boy in question was prepared to marry the girl and make her his wife.
15 In terms of the TshiVenda custom of ‘dzipheletshedzi’.
16 No confirmatory affidavits were provided by Ms Mahwasane or any of the young girls referred to. Neither
was there confirmation of the lobola negotiation s and payment by any of the persons involved.
17 She stated in her application launched in 2017 that she intended to conduct another DNA test, but did nothing
in this regard for over 13 years or at all.
[29] The respondent’s three children were born in September 1979,
February 1983 and January 1995 respectively . Thus, during the time that the
respondent stated she was married to the deceased according to customary law,
she bore (at least) two children, who were not children of the deceased ,
according to the DNA results . She has never claim ed maintenan ce for the child
born in 1995.

[30] The respondent belatedly , in her replying affidavit, relies upon a copy of
a ‘next of kin’ affidavit as proof that the third child, born in 1995, was the child
of the deceased. She inferred that the documents were completed by the
appellant and that the youngest child was included as a child of the deceased.
These allegations are new matter s, which the appe llant did not h ave the
opportunity to challenge. But throughout her answering affidavit, the appellant
and other relatives of the deceased denied that the deceased was the father of
any of the three children. The ‘next of kin’ affidavit is once again an uncertified
copy and is hearsay. Its authenticity has not been prove n. There is no evidence
that the appellant completed the document. The respondent does not disclose
how she came to be in possession of the document.

[31] The respondent stated that she and the deceased bought a property,
5[…] M[…] Block J , Thohoyandou , in 1986. The property was registered in the
deceased’s name alone. The respondent alleges that in December 1996, she
discovered that the deceased was involved with the appellant. She then left the
deceased’s home and went to her parental home. Meetings were held, according
to her, between the two families. In these meetin gs, the respondent states that
the deceased denied stating that he no longer loved her. The deceased began
living with the appellant at this time. Despite the deceased’s alleged profession
of love to her, the respondent went to stay with the deceased’s mot her for some
10 years , without the deceased , until she moved to her own house, alone with
her children.

[32] A confirmatory affidavit of the deceased’s mother was attached to both
the appellant and the respondent’s affidavits. They each contradict ed the
allegation s confirmed in the other affidavit. According to the high court
judgment, it is not disputed that the deceased’s mother then withdrew both
affidavits. This is clear from the high court judgment where Kgomo J stated:
‘…the deceased’s mother executed a confirmatory affidavit [to the respondent’s affidavit]
which she later withdrew unconditionally… Both sides accepted her unconditional
withdrawal from thes e proceedings.’18
There was no dispute raised in th e full court or this Court on this withdrawal .
The presiding judge in th is matter requested clarity on whether the affidavits of
the deceased’s mother had been withdrawn. Both parties responded that the
affidavits had been withdrawn.

[33] The respondent contend ed that she and the deceased registered their
customary marriage at the Thohoyandou Magistrate ’s Office (the magistrate’s
office) in 1993 . She did not gi ve a precise date as to when this took place. She
allege d that t hey were issued with a registration certificate , which was lost and
she could not locate it. She averred that she approached the Department of
Home Affairs in Makwarela to obtain a duplicate, where she was informed that
such information was with the magistrate’s office . However, they also could not
provide her with such certificate. She gives no reason for this, nor does she
elaborate on what other attempts were made to obtain a duplicate certi ficate. No
confirmatory affidavits were obtained from any of these officials.


18 Paras 17-18.
[34] After registering the customary marriage, the respondent stated that she
applied for a Republic of Venda ID document . It was issued to her on
11 March 1993. As proof of this, she attache d the ID document. She alleges that
the ID document clearly indicates that she and the deceased were married in
terms of customary law on 13 of March 1979. But the second page of this
document, which she now alleged is a ‘marriage certificate’, contains only the
details mentioned above. There is no mention in the ID document of the parties
being married according to customary law. The respondent stated that in the
absence of evidence of fraud regarding the registration of her marriage, the
court ha d to accept the certificate appearing in the ID document as valid and
that the high court erred by not putting adequate weight on this ID document.

The appe llant’s case
[35] It is common cause that t he appellant was married to the deceased for a
period of 20 years . During that period t he respondent did not challenge the
marriage. The appellant attached a certified copy of the m arriage certificate. The
appella nt and the deceased had four children, and the appellant attached copies
of the ir birth certificates.

[36] The a ppellant state d that she was advised b y her sister -in-law, Vyo
Thinavhudzolo Manwadu ( Vho Thina), who provided a confirmatory affidavit,
that the deceased never impregnated the respondent and had at all times denied
such accusations in respect of all three children. Other relatives also den ied this.
According to them, the deceased refused to pay maintenance and stated that the
children were not his.

[37] Regarding the respondent being brought to stay with the deceased’s
family, members of the deceased’s family confirm ed that the respondent only
stayed for a few days and then went back home as the deceased persisted in
stating that he was not responsible for her pregnancy.

[38] The appellant alleged that the immovable property purchased by the
deceased was his alone. The respondent played no part in the purchase, as
confirmed by Vho Thina. Prior to their marriage, the appellant would visit the
deceased and his family at their residences. She did not encounter the
respondent at the deceased’s residence, at any time. The appellant began staying
with the deceased after the deceas ed’s family had started lobola negotiations
with her family.
[39] The appellant contended that she had requested a copy of the marriage
certificate from the third respondent, but that it had refused to give her access.
The appellant was informed by the thi rd respondent, that the respondent was
‘single and had never been married’. A challenge was clearly mounted by the
appellant in her answering affidavit in the high court . She disputed the existence
of the customary marriage, and the authenticity of the ID document (as well as
its weight as evidence) as well as the respondent’s assertion that it was a
‘certificate’ of marriage , as contemplated in terms of s 4(4)(a), (b) and s 4(8) of
the RCMA.19

[40] The appellant challenged the respondent in the answering affidavit, to
produce ‘ a certificate or any evidence from the third respondent confirming that
indeed she was married to the deceased .’ She stated that the respondent could
not produce a marriage certificate because ‘her alleged marriage never existed’ .
In addition, the appellan t stated that the respondent had failed to adduce any

19 ‘(4)(a) A registering officer must, if satisfied that the spouses concluded a valid customary marriage , register
the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any
other particulars prescribed.
(b) The re gistering officer must issue to the spouses a certificate of registration, bearing the prescribed
particulars.’
evidence or the documents requested to prove that her alleged customary
marriage was celebrated and concluded in terms of customary law and that the
marriage was registered at the magistrate’s office . No such documentation was
produced.

Analysis
[41] The respondent’s first ground of appeal in the full court was that the
customary marriage was registered in terms of the marriage laws of Venda , i.e.
as contained in her ID document . This was not the basis of her initial
application in the high court. There was no proof of what the marriage laws of
Venda stipulated. The respondent’s second ground of appeal , that the high court
misdirected itself by overlooking the fact that once the customary marriage was
registered, in whatever acceptable form, then the certificate thereof constitute d
prima facie proof of the existen ce of the marriage, was ill-conceived. That too
was not the basis of her application before the high court. On her own version,
the marriage certificate was lost, and no certificate was produced as required by
ss 4(4) and 4(8) of the RCMA, read with s 20 o f the Evidence Act. Only a copy
of her ID document was produced. She did not allege and could not state that it
was a certificate as contemplated in the RCMA and therefore was proof of the
existence of the marriage.

[42] In regard to the best evidence rul e, in Gemeenskapsontwikkelingsraad
v Williams and Others (Williams) in dealing with the best evidence required to
prove the admissibility of evidence in relation to ownership of immovable
property, the court held:
‘As a general rule where the contents of a document are in issue, no evidence will be received
other than the production of the original document itself. If there is evidence of diligent
search and the document cannot be found, then secondary evidence of the contents will be
received by a Court. Secondary evidence will also be received if it is not challenged in a civil
case…The secondary evidence will, however, be rejected by a court if it concludes that the
better evidence was readily available and there is reason to believe that it is not safe to accept
the secondary evidence.
I concluded therefore that the evi dence in regard to ownership of the land in question was not
hearsay, but was secondary evidence which, however, for the reasons set out above, was not
received by this Court.’20

[43] In W v W ,21 Nestadt J, dealt with the proof required in relation to the
validity of a marriage certificate. He held that :
‘It remains for me to deal with the argument that the marriage certificate was in itself
sufficient to prove that the marriage was valid. In terms of sec. 42 (3) of Act 81 of 1963, a
marriage certificate (and other types of certificates) “shall, in all cour ts 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. Included in the
presumption thus created would be all the essentials for the conclusion of a valid marriage
including the capacity of the parties . A further (common law) p resumption which is relevant
in this regard is the presumption of the validity of a marriage flowing from evidence of the
ceremony and subsequent cohabitation … The presumptions referred to may of course be
rebutted. In Ex parte L., supra , OGI LVIE -THOMPSON, A.J., dealing with the common law
presumption referred, to, stated (at p. 57):
“Any presumption which might otherwise have applied on this point is in my view
conclusively rebutted by the circumstances that the Court is actually aware that neither of
these ministers was in fact at the relevant date a duly appointed marriage officer. The c ase is
therefore not one which can be decided on a presumption: it must be decided on the actual

20 Gemeenskapsontwikkelingsraad v Williams and Others (1) 1977 (2) SA 692 (W) at 702D -F (Williams ); Cf
Botha v S [2009] ZASCA 125 and Transnet Ltd v Newlyn Investments (Pty) Ltd [2011] ZASCA 44; 2011 (5) SA
543 (SCA) ( Newlyn ). In the latter cases, it was held that while it was preferable for original documents to be
produced as eviden ce, where this is not possible or practicable they may be substituted with other documents or
evidence. Although there are no degrees in secondary evidence, a party may, ‘ subject to comment if more
satisfactory proof is withheld ’, adduce secondary evidence if he would be unable to ascertain the existence of
the originals. (Newlyn ) para 18 . Neither of these cases are applicable as the original of the ID document was
clearly available.
21 W v W 1976 (2) SA 308 (W) ; see also Mgenge v Mokoena and Another [2023] ZAGPJHC 222; [2023] 2 All
SA 513 (GJ) .
evidence before the court. This latter is fatal to the petitioner's contention ”. (Authorities
omitted , own emphasis .)

[44] The ID document relied upon by the respondent as well as the ‘next of
kin’ affidavit are hearsay and are not admissible in terms of s 3(1) of the
Evidence Amendment Act 45 of 1998, (the Amendment Act),22 unless they can
be admitted under one of the sub -sections of the Amendment Act. Documents
relied upon may be real evidence but they are not admissible as proof that their
contents are true.23 The best evidence rule would require that the authors of the
documents or the person under whose custody they fall, give evidence in this
regard.

[45] The full court held that the ID document was authentic and prima facie
proof of the marriage. It held further that without this being disputed, it became
conclusive evidence of the customary marriage. But the prima facie proof was
challenged by the appellant . To prove the existence of the marriage, the
respondent had to advance collateral evidence that there was a marriage. The
respondent was obliged to show that all legal and customary requirements were
adhered to.

22 Section 3(1) of the Law of Evidence Amendment Act 45 of 1988 (the Law of Evidence Amendment Act)
reads as follows:
‘(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or
civil proceedings, unless –
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such
proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such
proceedings; or
(c) the court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose f or which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such
evidence depends;
(vi) any prejudice to a party which the admission o f such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account,
is of the opinion that such evidence should be admitted in the interest of justice.’
23 Rautini v Passenger Rail Agency of South Africa [2021] ZASCA 158 .

[46] Before a customary marriage can be re cognised as valid and registered it
must satisfy certain requirements. As is evident from s 4 (4)(a) of the RCM A,
and the customary law requirements referred to above , before registering the
marriage, the registering officer had to be satisfied that the mar riage must have
been concluded in accordance with customary law, meaning that the customs
and usages traditionally observed among the indigenous African peoples of
South Africa, which form the culture of those people, must have been adhered
to. The marriag e negotiations, rituals and celebrations must be according to
customary law.24 The spouses were required to be assisted by a guardian if
under 21 years old . It was thus incumbent upon the respondent to offer proof,
other than her ID document, to prove the customary marriage. The respondent
failed to deal with these vital omissions in reply. If the ID document itself was
prima facie proof of the marriage, once it was challenged, the respondent had to
prove the marriage through extraneous evidence.

[47] As stated above, at the time when the alleged customary marriage took
place, the respondent was below the age of 21 and she would have required the
assistance o f a guardian. This was also required under customary law. No
mention is made of who assisted her to conclude and register the marriage .
Although the age of majority and requirement for the consent of a guardian was
not pertinently raised by the appellant, it is one of the legal pre -requisites for a
valid customary marriage and formed part of what the respondent was required
to prove. The marriage could only be registered if the registering officer was
satisfied that the spouses concluded a valid customary m arriage. The respondent
does not say that it was demonstrated to the registering officer that she and the
deceased had done so.

24 Nkuna -Mavutane ME and Jamneck J fn 1.

[48] All of these omissions render the reliance on one uncertified disputed
document (which is not a copy of the marriage certificate) misplaced. The onus
was on the respondent to prove the existence of the customary marriage. In
seeking to rely on the ID document, n o explanation was tendered for not
proffering the original or at least attaching certified copies of it. But even that
could not relieve the respondent of the burden of proving the marriage, the
existence of which was challenged by the appellant and numero us witnesses,
who were relatives of the deceased. Simply stating in one paragraph that neither
Home Affairs, nor the magistrate’s office could assist her , is a blatant disregard
for the rules of evidence. Corollary evidence could easily have been produced .
The respondent again, despite the challenge in the appellant’s answering
affidavit , failed to refer to even one person who confirmed her allegations about
the traditional ceremony and oth er customs having been observed and a
customary marriage having been concluded. Neither did she show that the
traditional rituals and celebrations occurred in terms of Venda Law. In such a
case and considering the blatant untruths contained in the responde nt’s affidavit,
it would not be appropriate or ‘safe’ to accept the ID document as proof of the
customary marriage.25

[49] The respondent stated that she had ‘lost’ her marriage certificate. She
however, stated in her grounds of appeal from the high court that the court erred
in ‘overlooking the fact that once a customary marriage is registered in
whatever for m, then the certificate thereof constitutes a prima facie proof of the
valid existenc e of the marriage’. But, her ID document was not a marriage
certificate. It therefore, on its own, could never have amount ed to prima facie
proof that the respondent and the deceased were married under customary law.

25 Williams fn 20 .
That might have been the case if the re spondent relied on a copy of her marriage
certificate, which contained the requisite particulars and a valid explanation for
not tendering the original.26

[50] Having challenged both the authenticity of the ‘marriage certificate’
contained in her ID document and the fact that the marriage ever took place, it
was incumbent upon the respondent to prove the marriage through other means .
This she could have done by , inter alia , complying with s 20 of the Evidence
Act. The Evidence Act refers to certification of a document ‘in the custody or
under the control of any State official .’ This does not detract from the obligation
on a party to have a copy of a document certified, when it is to be used as
evidence. This more so, when the respondent’s entire case is reliant on the
uncertified copy of her ID document and the endorsement of a marriage.

[51] The respondent fail ed to state that she attem pted to have the copy
certified by any official. A State official can be ordered to either bring the
document to court and produce it, or he or she can make a copy thereof, and
certify it as a true copy for a party to use it in court. Alternatively, such o fficial
should explain why there was no record of the registration of the marriage. The
marriage certificate is a public document which would fall within the
parameters of the Evidence Act.

[52] The full court appears to have only analysed the evidence pr esented by
the respondent and in doing so arrived at the conclusion that the ID document
was not only prima fac ie proof of the existence of a marriage in terms of s 4(8)
of the RCMA , but that i t was concl usive proof as it was unchallenged. It
concludes that ‘[o]n the required balance of probabilities based on the [identity

26 Cf Newlyn fn 13 para 18.
document] the appellant has proved that she was married to the deceased, which
marriage was registered on the 13th of March 1979.’27

[53] On the other hand, the minority judgment carefully analysed the
provisions of s s 4(4) and (8) of the RCMA. The minority judgment penned by
Diamond AJ referred to the fact that the respondent argued that, in terms of s
4(8) of the RCMA, the I D document qualifies as a certificate contemplated in
that section; and therefore the certificate provides prima face proof of the
existence of a customary union between the respondent and the deceased.
Diamond AJ posed the vital question:28 did the ID document qualif y to be
regarded as a ‘certificate of marriage’ in terms of s 4(8) of the RCMA ? He
correctly stated that the ID document was not a ‘certificate of registration of a
customary marriage’ issued under the section.29 He went o n to question whether
or not such ID document, which carried an endorsement of marriage, qualified
to be a certificate issued by ‘any other law providing for the registration of
customary marriage ’.30 He noted that the ID document attached was an
uncertified copy despite the fact that the respondent had not alleged that she was
not in possession of the original. There is nothing in the copy of the ID
document attached to the founding affidavit that indi cates that it is a certificate
of a customary marriage in terms of the law authorising the registration of
customary marriages in Venda or elsewhere; there was only the deceased’s
name, without his ID number and a reference to the date of marriage. He
conc luded that it was clear that the ID document was not ‘a certificate of
registration of a customary marriage issued under s 4(4) and s 4(8) of the
RCMA ’.


27 Para 24.
28 Para 10.
29 Para 12.
30 Para 15.
[54] Diamond AJ continued in his analysis that if the ID document fails to fall
within this category, then the ID document could not be one for the purposes of
s 4(8). Such document would not ‘confer on the litigant the benefit that the
document itself shall be prima facie evidence of the customary law marriage’.
As stressed by Diamond AJ, although the sta tus of that document would only be
evidence prima facie of a marriage, it would obviously still be open to the
appellant to lead evidence to rebut the existence of the customary marriage. If
the respondent does not have an acceptable certificate, then she is not
remediless. She can still prove the existence the customary marriage by
adducing evidence of the conclusion of the marriage in terms of customary law,
by providing details and confirmation relating to the necessary requirements .

[55] Counsel for the respondent in the full court and in this Court attempted to
bolster the two grounds of appeal, during the hearing, by stating that in the
Republic of Venda, registration of marriage took place in terms of the same
legislation authorising th e issue of ID documents. He sought to rely upon the
law of Venda in submitting that the copy of the ID document carrying an
endorsement of a marriage qualified as a certificate issued by ‘any other law
providing for the registration of customary marriage’. No admissible proof of
the law of Venda was produced, nor is this the case of the respondent herself.
This contention directly contradict ed the version of the respondent who stated
that she registered her customary law marriage and she ‘was issued with a
registration certificate… However, the certificate is lost’ and could not be
located.

[56] The judgment of Diamond AJ was correct in stating that the question is
not whether the customary marriage ‘is reg istered in whatever acceptable
form’.31 The question is whether the person alleging that a customary marriage
took place and that it was registered possesses a certificate which was issued in
terms of the law providing for the registration of cu stomary marriages. If a
person does have such a certificate, then such a person is relieved of the duty to
prove the existence of the customary marriage by way of the normal rules of
evidence, that is, by attaching evidence and confirmation of the customar y
marriage taking place according to the customary law of Venda. The corollary
is that if the person cannot produce the requisite marriage certificate, she must
prove the marriage through other evidence.

[57] In summary, t he respondent failed to adduce an y admissible evidence of
the marriage ceremony and traditional customs having been observed. No
confirmatory affidavits were produced to confirm t hat the requirements of the
customary marriage were met . Her reference to many people who were involved
in the proceedings necessary for a customary marriage were not confirmed by
those people. Confirmatory affidavits were not attached to confirm her version
of the ufhelekedza , when she went to stay at the deceased’s family’s house, or
the dzipheletshedz i when the unnamed young girls attended to her, whilst she
stayed at the deceased’s family. None of the deceased’s family members
confirmed any of her allegations relating to the admission by the deceased that
he had impregnated her, or that a customary marriage or lobola negotiations
took place. They denied these allegations. It is common cause that a customary
union is between two families, not only the ‘bridal couple’ .

[58] A challenge was clearly mounted by the appellant in her answering
affidavit. She disputed the existence of the customary marriage, and the
authenticity of the ID document , as well as its weight as evidence. In addition,

31 Para 22.
she disputed the respondent’s assertion that it was a ‘certificate’ of marriage as
contemplated in ter ms of s 4 (4)(b) of the RCMA.32 The use of an uncertified
copy of a document, when the original is available, and where the authenticity
of the document is challenged, cannot by any stretch of the imagination be
regarded as the ‘best evidence ’.

[59] Even i f the full court was correct in holding that the ID document was
admissible as prima facie evidence of the truth of its contents , the question
arises as to what weight should be attached to such document. It does not
constitute a certificate as contemplated in s s 4(4) and 4(8) of the RCMA, nor
does it comply with the customary law requirements. It remains a document
upon which no weight can be placed.

[60] Relying on the fact that she had proved that a customary marriage had
been registered, the respondent contend ed that the deceased was automatically
precluded, in terms of s 3(2) of the RCM A from entering into a marriage with
any other woman. T his would automatically render the purported civil marriage
between the appellant and the deceased void. There was no dispute on this
issue , if the customary marriage was proved.33

[61] Bearing in mind that there are a vast number of disputes of fact in this
case, and that there are two mutually exclusive versions, this Court must weigh
the probabilities to determine which version is most probable.34 This case falls

32 ‘s 4(4)(a) A registering officer must, if satisfied that the spouses concluded a valid customary marriage ,
register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and
any other particulars prescribed.
(b) The registering officer must issue to the spouses a certificate of registration, bearing the prescribe d
particulars. ’
33 Murabi v Murabi [2014] ZASCA 49; [2014] 2 All SA 644 (SCA); 2014 (4) SA 575 (SCA) para 17. See also
Thembisile v Thembisile 2002 (2) SA 209 (T).
34 Plascon -Evans Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), as confirmed by the
Constitutional Court in Thint (Pty) Ltd v National Director of Public P rosecutions and Others; Zuma v National

squarely within the ambit of the Plascon -Evans rule.35 The respondent, being
the original applicant, had the onus to prove her case that she and the deceased
were married by customary law. As this Court stated in Skog NO and Others v
Agullus and Others :
‘…These being motion proceedings, the appli cation fell to be decided in accordance with the
principle laid down in Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd (the Plascon -Evans principle). In terms of that principle, an applicant who seeks final
relief in motion proceedings must, in the event of a dispute of fact, accept the version set up
by his or her opponent unless the latter's allegations are, in the opinion of the court, no t such
as to raise a real, genuine or bona fide dispute of fact or are so far -fetched or clearly
untenable that the court is justified in rejecting them merely on the papers.’36

[62] If the appellant’s version was not clearly untenable (which it was not), the
application must be determined on her version. Not only d id the appellant raise
genuine and bona fide disputes of fact , but her version was more probable. It
was corroborated by numerous members of both her and the deceased’s family,
whereas the respondent ’s version is filled with inaccuracies and patent
nondisclosures and failures to provide admissible evidence and/ or
corroboration. In inst ances such as the paternity of her children, her evidence is
patently false and misleading. It certainly does not pass the test required to
prove her version.

[63] It is noted that the full court failed to deal with the counter -application . In
view of the decision to which I have come, it is not necessary to deal with the
counter -application. For the reasons set out above, I find that the respondent


Director of Public Prosecutions and Others [2008] ZACC 13; 2009 (1) SA 1 (CC); (2008) (2) SACR 421 (CC);
2008 (12) BCLR 1197; (CC) para 10.
35 Id at 634.
36 Skog N O and Others v Agullus and Others [2023] ZASCA 15; [2023] 2 All SA 631 (SCA); 2024 (1) SA 72
(SCA ) para 18.

failed to discharge the onus to prove the exi stence of the customary marriage
between herself and the deceased. The appeal must therefore succeed.

[64] Accordingly, the following order is granted:
1 The appeal is upheld .
2 The order of the full court is set aside and replaced with the following
order :
‘The appeal is dismissed with costs.’


_______________________
S E WEINER
JUDGE OF APPEAL



Makgoka JA (dissenting):

[65] I have read the judgment prepared by my Colleague, Weiner JA (the first
judgment). Regrettably I disagree with the conclusion it reaches and the
reasoning underpinning it. In my view, the appeal should fail . The factual
background has been fully set out in the first judgment and needs no
regurgitation here.

[66] Despite what appears to be intractable disputes of fact, the enquiry in this
case falls within a narrow compass. It is this: were the first respondent,
Mrs Matodzi Joyce Manwadu and Mr Livhuwani Robert Manwadu (the
deceased) married to each other in terms of customary law? That question must
be answered in the light of the conspectus of the evidence, a major part of which
is a copy of a page of the respondent’s identity document.

[67] Kgomo J in the first instance treated the copy of the page of the
respon dent’s identity document as follows :
‘What [the respondent] could come up with as proof of the customary marriage is an
unauthorised or uncertified copy of what [the respondent] states is an extract from her
identity documents which only states:
“Married on 1979 -03-13”
No names of a spouse or his Identity Document Number accompan[ies] that inscription.
Consequently, the authenticity of this inscription is in dispute as it is disputed by [the
appellant].’
Later in the judgment, the learned Judge repeated the same line of thought, and
proceeded:
‘The problem is if Home Affairs has records that [the respondent] was married to someone on
1979 -03-13, it definitely will and should have details of that marriage on its records. Now, for
the same Home Affairs to tell both [the respondent] and [the appellant] that there is no record
of a customary marriage between [the respondent] and the deceased or any other person in
those circumstances leads one to no other reason able inference or inference other than that
the inscription . . . is not genuine. It is a forgery.’
[68] As to the merits of the matter, the learned Judge characterised the matter
as one of two mutually exclusive versions. The court went on to set out the
parties’ versions and concluded that the appellant’s version was more probable
than the respondent’s. Among the reasons for that conclusion were that the
respondent’s version was not corroborated, while the appellant’s version was.
The learned Judge said that ‘[a] whole plethora of persons confirmed [the
appellant’s] story. Nobody confirmed [the respondent’s] story’.

[69] The first judgment identifies among the issues in dispute as being: (a) the
admissibility of the copy of the respondent’s identity do cument; and (b) the
authenticity of the said document. I disagree. As I demonstrate shortly, the
admissibility and authenticity of the document were never pleaded by the
appellant, and were therefore, never in dispute before the court of first instance,
and cannot be an issue in this Court. Thus, the identification of the issue in
dispute is foundational to my disagreement with the first judgment. What the
issues are in a matter, is dictated by the pleadings. As explained
in Swissborough Diamon d Mines v Government of the RSA :37
‘It is trite law that in motion proceedings the affidavits serve not only to place evidence
before the Court but also to define the issues between the parties. In so doing the issues
between the parties are identified. This is not only for the benefit of the Court but also, and
primarily, for the parties. The parties must know the case that must be met and in respect of
which they must adduce evidence in the affidavits.’

[70] It is with this in mind that I turn to the affidavits, which, in motion
proceedings, serve as both the pleadings and the evidence. The first respondent

37 Swissborough Diamond Mines (Pty) Ltd and Others v Government of the RSA 1999 (2) SA 279 at 323G –
324A. See also National Credit Regulator v Lewis Stores (Pty) Ltd and Another [2019] ZASCA 190; 2020 (2)
SA 390 (SCA); [2020] 2 All SA 31 (SCA) para 29.
stated in her founding affidavit that she and the deceased married each other on
13 March 1979 at the Thohoyandou Magistrate offices. She further alleged that
from the marriage, three children were born, respectively in 1979, 1983 and
1995. When they got married, they were issued with a small registra tion
certificate marked ‘R1’ in bold caps. However, she lost the certificate and after
a diligent search, she could not locate it. Her attendance at the offices of Home
Affairs to obtain a copy yielded no result as she was informed that the
information was with the Magistrate’s office. The latter office was unable to
assist her.

[71] In the absence of the certificat e referred to above, the respondent stated
that after the marriage, she applied for a new identity document, which was
issued to her on 11 March 1993, reflecting her marital status. She attached a
copy of a page of her identity document titled ‘ MARITAL STA TUS ’.
Underneath the heading is the respondent’s identity number, followed by the
following particulars:
‘SURNAME: MANWADU
NAMES: LIVHUWANI ROBERT
MAIDEN: TSHIKORORO
NAMES: MATODZI JOYCE
MARRIED ON: 1979/03/13’

[72] In her answering affidavit, the appell ant responded as follows to the
above averments:
‘24.1 I am advised by my sister in law that the deceased never registered any form of
marriage with [the respondent] and that the deceased’s family at large is not aware of the
alleged customary marriage con cluded between the deceased and [the respondent].
24.2 I am advised by my sister and mother in law that the registration of customary
marriage was dependent on the two families of the prospective spouses in that both families
were required to confirm throu gh an affidavit that indeed a customary marriage was
concluded. The reason the alleged customary marriage certificate could not be traced is
because it never existed to start with.
24.3 I am further advised that the marriage officer before registering the alleged customary
marriage must be satisfied first that all the customary marriage requirements were complied
with.
24.4 It is clear that [the respondent] failed to deal with the requirements of the alleged
customary marriage in her own application. I am a dvised by the deceased’s family that they
do not know how [the respondent] got the new identity document with the family surname. I
have taken the liberty to approach [the Department of Home Affairs] to verify the marriage
status of [the respondent] and it was confirmed that [the respondent] is single and has never
been married.
24.5 I have requested a copy of this important information which [the Department of Home
Affairs] refused to give to me. I challenge [the respondent] to bring forth [a] certificate or any
other evidence from [the Department of Home Affairs] confirming that indeed she was
married to the deceased.’ (Emphasis added.)

[73] It is plain from the extract of appellant’s answering affidavit above, that
nowhere does she place the admissibilit y or authenticity of the copy of the
respondent’s identity document in issue, as the first judgment holds. On the
contrary, the appellant accepted the document for what it purported to be. The
appellant made only a fleeting reference to the document in her answering
affidavit. She stated that she was unable to explain how the respondent came to
assume the deceased’s surname. This is a far cry from challenging the
admissibility and authenticity of a document. Other than that, the appellant
contented herself with bare denials, and that she was ‘advised’ that there was
never a customary marriage between the respondent and the deceased. She
failed to engage meaningfully with the thrust of the respondent’s averments, and
the attached copy of a page of her identit y document.

[74] As I see it, the appellant was constrained to accept the authenticity of the
document, unless she could prove that it was fraudulent. This was not her case.
This is why Kgomo J’s conclusion in the first inst ance that the document was a
forgery , cannot be s upported. Unsurprisingly, the appellant does not rely on this
finding.

[75] Given the above, the first judgment’s criticism of the majority judgment
of the full court for not dealing with the admissibility or the authenticity of the
document, is unwarran ted. As stated, that issue was neither before the court of
first instance nor the full court, simply because they were not pleaded by the
appellant. This explains why it was not addressed in either the majority or
minority judgment. As stated, in his minor ity judgment, Diamond AJ, correctly
in my view, criticised the court of first instance for not accepting the copy of the
respondent’s identity document for what it is, and for holding that it was a
forgery.

[76] The basis on which the first judgment hold s that the document is
inadmissible is different from that of the court of first instance. The first
judgment, correctly with respect, does not hold that the document is forgery. It
provides four reasons for its conclusion. First, that the document does no t
constitute a certificate as contemplated in s 4(4) and 4(8) of the RCMA. Second,
that it is an ‘uncertified’ copy. Third, that it does not satisfy the requirements of
s 20(1) of the Evidence Act. Fourth, that it was improbable that the respo ndent
could have been married in 1979 as she alleged because she was 18 years old,
and the age of marriage was 21 years of age in terms of s 1 of the Age of
Majority Act.38

38 Age of Majority Act 57 of 1972.

[77] Of the four points, only the first was relied upon by the appellant in her
answering affidavit. The rest were raised either by the court of first instance or
by the majority in this Court. The issue about the age of majority in terms of the
Age of Majority Act and of an ‘uncertified’ copy, were raised mero motu in the
judgment of the court of first instance. There is no suggestion that this had been
canvassed with the parties. The applicability of s 20(1) of the Evidence Act was
raised mero motu by a member of this Court for the first time during the hearing
of the appeal. Understandably, counsel for the respondent was not able to make
any meaningful submissions on it.

[78] Thus, none of the last three points was pleaded in the court of first
instance. This Court has repeatedly cautioned against deciding a matter on
issues neither pleaded nor canvassed with the parties. In Fischer v Ramahlele
(Fischer ) this Court said:
‘Turning then to the nature of civil litigation in our adversarial system, it is for the parties,
either in the pleadings or affidavits (which serve the function of both pleadings and
evidence), to set out and define the nature of their dispute, and it is for the court to adjudicate
upon those issues . . . There may also be instances where the court may mero motu raise a
question of law that emerges fully from the evidence and is necessary for the decision of the
case. That is subject to the proviso that no prejudice will be caused to any party by its bein g
decided. Beyond that it is for the parties to identify the dispute and for the court to determine
that dispute and that dispute alone.’39

[79] In Four Wheel Drive Accessory Distributors CC v Rattan NO40 Schippers
JA, after referring to Fischer , cautioned that deciding a matter on unpleaded
issues carries a risk of an apprehension of bias, in that ‘[the court could then be

39 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA
395 (SCA) para 13 .
40 Four Wheel Drive Accessory Distributors CC v Rattan NO ZASCA 124; 2019 (3) SA 451 (SCA).
seen to be intervening on behalf of one of the parties, which would imperil its
impartiality.’

[80] About technical points raised for the first time on appeal, this Court had
this to say in Transnet Ltd v Newlyn Investments (Pty) Ltd (Newlyn ):41
‘[I]t is a sal utary principle that an appeal court will not entertain technical objections to
documentary evidence which were not taken in the court below and which might have been
met by the calling of further evidence….’

[81] If it is objectionable for a party to raise technical points on appeal, it must
even be more so if those points are raised by a court, especially if the parties are
not afford ed an opportunity of commenting on them. Had this Court given
adequate notice to the respondent that it intended to raise the issues referred to
above, the respondent would possibly have considered steps to rectify them, if
possible, or make submissions on them. Accordingly, on the authority of
Fischer and Newlyn , it is not open to us to determine the appeal on unpleaded
technical issues in respect of which the parties were not given a proper
opportunity to make submissions on. The prejudice to the respondent, against
whom the points are raised, is manifest.

[82] In any event, I do not agree with any of the points, which I consider in
turn. Nothing turns on the fact that the respondent’s copy of her identity
document was uncertified. This is because its authenticity was never disputed
by the appellant in her answe ring affidavit. As mentioned, the appellant
accepted the document for what it purports to be. There was no suggestion that
it was not a true copy of a page of her identity document, or that it was
fraudulent. This Court has held that in the absence of a ch allenge by the other

41 Transnet Ltd v Newlyn Investments (Pty) Ltd [2011] ZASCA 44; 2011 (5) SA 543 (SCA) para 18 .
party as to the authenticity of documentary evidence, copies should be accepted
on the principle of the best evidence.42

[83] As regards s 20 of the Evidence Act, it simp ly finds no application here.
For context, the provision must be read with s 19. The two sections read as
follows:
‘19 Production of official documents
(1) No original document in the custody or under the control of any State official by virtue of
his off ice, shall be produced in evidence in any civil proceedings except upon the order of the
head of the department in whose custody or under whose control such document is or of any
officer in the service of the State authorized by such head.
(2) Any such do cument may be produced in evidence by any person authorized by the person
ordering the production thereof.
20 Certified copies of or extracts from official documents sufficient
(1) Except when the original is ordered to be produced any copy of or extract from any
document in the custody or under the control of any State official by virtue of his office,
certified as a true copy or extract by the head of the department in whose custody or under
whose control such document is or by any officer in the servic e of the State authorized by
such head, shall be admissible in evidence and be of the same force and effect as the original
document.
(2) Any such copy or extract may be handed in by any party who desires to avail himself
thereof.
(3) No such copy or extr act shall be furnished to any person except upon payment of an
amount in accordance with the tariff of fees prescribed by or under any law or, if no such
tariff has been so prescribed, an amount in accordance with such tariff of fees as the Minister
in con sultation with the Minister of Finance may from time to time determine.’

[84] The two provisions clearly apply in the case of original public documents
in custody or under the control of any State official by virtue of his office.
Section 19 precludes the production in evidence in civil proceedings of such

42 Botha v S [2009] ZASCA 125; [2010] 2 All SA 116 (SCA) para 27.
documents except ‘upon the order of the head of the department in whose
custody or under whose control such document is or of any officer in the service
of the State authorised by such head’. Section 20 regulates the admissibility of
copies of, or extracts from, any such original document.
[85] The documents envisaged in these provisions are public documents, ie
those in the ‘custody or under the control of any State official’. A good example
of such a do cument is the Birth, Marriages and Death Register held by the
Department of Home Affairs . If a party wishes to use the entries in such a
register, he or she would be obliged to comply with s 20 in two alternative ways
provided for in the section. The State official can be ordered to either bring the
document to court and produce it, or he or she can make a copy thereof, and
certify it as a true copy for a party to use it in court. At no stage would a party
who is not a State offici al have custody or control of such documents.

[86] The respondent did not purport to use any document under the custody or
control of the State. The document she attached was not ‘in the custody or under
the control’ of the State, as required in the section. It is a copy of a page of her
identity document, which was in her possession. It is therefore not a document
of public nature envisaged in the two provisions. In Hassim v Naik43 this Court
determined that to be classified as a document of a public nature, it must: (a) be
made by a public official; (b) in pursuance of a public duty; and (c) the
document must constitute a permanent record and be open to public inspection.

[87] It goes without saying that a person’s identity document fulfils none of
the above characteristics. But a document such as the Birth, Marriages and
Death Register held by the Department of Home Affairs fits neatly into the
classification. Therefore, the posit ion would have been different had the

43 Hassim v Naik 1952 (3) SA 331 (A) at 339.
respondent purported to use, for example, a copy of such a register to prove her
marriage. She would have to subpoena the head of the Department of Home
Affairs to bring the register to court. Alternatively, she would have requested
the official to make a certified copy of the register. The section is thus not
applicable.
[88] There are two methods of certification of documents. The one is by a
commissioner of oaths in terms of the Justices of the Peace and Commissioners
of Oath Act.44 The other is in terms of s 20 of the Evidence Act. Of the two,
only the Evidence Act obliges ce rtification in s 20. The circumstances under
which the certification in terms of s 20 would be necessary have been set out
above.

[89] The specific reference to the Evidence Act suggests that the first
judgment considers that that Act prohibits the use of a copy of any document
unless it is certified. If that is the suggestion, I am, with respect, unable to agree.
There is no provision in the Evidence Act which prohibits the use of an
uncertified copy of a non -public document, eg an identity document, in c ourt.
The only obligatory certification is the one referred to in terms of s 20 of the
Evidence Act, which, as I have already explained, finds no application in this
case.

[90] The first judgment says because the age of majority at the time of the
allege d marriage was 21 years, and the respondent was only 18 years old, it was
not legally possible for her to be married without a guardian. The flaw in this
reasoning is simply this: the respondent does not allege that she was married in
terms of civil rights , which would have been regulated by the Age of Majority
Act. She says that she was married in terms of customary law. There is no

44 Justices of the Peace and Commissioners of Oath Act 16 of 1963.
evidence that in terms of the custom of the Vha -Venda people at that time, the
age of marriage was also 21 years.

[91] Thus , in all the circumstances, the admissibility of the copy of the
respondent’s identity document was never in dispute before the court of first
instance and cannot be, in this Court.

[92] With regard to the merits of the appeal, the first judgment states that
‘there are vast disputes of fact in this case, and that there are two mutually
exclusive versions , the Court must weigh the probabilities to determine which
version is most probable’. I do not agree that there are two mutually exclusive
versions in this matter. I will explain shortly why. But even if there are, a court
in motion proceedings is not at large to ‘weigh the probabilities to determine
which version is most probable’ as the first judgment s tates. As this Court
pointed out in National Director of Public Prosecutions v Zuma , motion
proceedings, unless concerned with interim relief, are all about the resolution of
legal issues based on common cause facts. Unless the ci rcumstances are special,
they cannot be used to resolve factual issues because they are not designed to
determine probabilities.45

[93] Applying the above dictum to the present case, we must identify the legal
issue for resolution, based on common cause facts. Th e common cause facts are
these. The respondent, in an endeavour to prove her marriage to the deceased,
presented a copy of a page of her identity document. The legal question is
whether, based on the copy of a page of her identity document, the respondent

45 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR
361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26 , as confirmed by the Constitutional
Court in Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley E states
(Pty) Ltd and Another [2022] ZACC 7; [2022] 6 BLLR 487 (CC); 2022 (7) BCLR 787 (CC); 2022 (5) SA 18
(CC) para 47.
had discharged the onus to establish that she was married to the deceased in
terms of customary law. That issue must be answered in terms of the established
rules of evidence.

[94] Most of the factual matrix traversed in the first judgment does not assis t
in answering this question. For example, to hold that the appellant’s version
(that she was married to the deceased is more probable), is with respect,
unhelpful . This is because this was never in dispute. The very existence of that
marriage constituted the foundation of the respondent’s cause of action. She
contended that it was invalid in the face of a prior customary marriage between
herself and the deceased. Accordingly, there can hardly be talk of mutually
destructive versions in this regard.

[95] The first judgment holds that the appellant had disputed the existence of
the marriage between the respondent and the deceased and challenged the
respondent to produce either: (a) a valid marriage certificate, or (b) other
corollary evide nce from Home Affairs or Magistrate office. The appellant’s
insistence that the respondent should produce the marriage certificate was sterile
in the face of the respondent’s explanation that: (a) the marriage certificate is
lost; (b) she has attended to both the Home Affairs Department and the
Magistrate office with no avail. Under the circumstances, the copy of the page
of the respondent’s identity document constitutes ‘other corollary evidence’
demanded by the appellant.

[96] The first jud gment embraces the reasoning of the minority judgment
where it holds that the document does not constitute a certificate envisaged in s
4(8). I agree with this. But that was only a part of what the minority judgment
said about the document. It was preceded by the acceptance in the minority
judgment that the document is an endorsement of the existence of a marriage
between the respondent and the deceased. I will revert to this conclusion by the
minority judgment.

[97] At the risk of repetition, the resoluti on of the dispute between the parties
lies not in whether one version is more probable than the other. It lies in the
weight to be attached to the copy of a page of the respondent’s identity
document, in the light of other common cause facts. In other word s, it is about
the adequacy of the evidence. It is to that issue I turn to.
[98] The document constitutes secondary evidence. Ordinarily, secondary
evidence is in the form of a copy of a missing original document. However,
Schwikkard & Van der Merwe46 make the point that secondary evidence may
also be used to prove things other than the contents of the missing document,
for example, the existence of a status or a relationship. That is the situation in
the present case. The respondent used the copy of her identity document to
prove her marital status with the deceased.

[99] This principle was applied in R v Green (Green)47 where the accused was
charged with selling liquor in a manner not authorised by his license. T he State
had to prove that the appellant was the holder of a licence. It could only do so
by handing up his licence during the trial. The State requested the appellant to
hand over his licence, which the appellant refused to do. In lieu of the licence,
the State relied on secondary evidence in the form of what was referred to as a
‘counterfoil’ to the licence. The trial court considered the counterfoil in the light
of the other available evidence and concluded that there was sufficient proof of
the existence of the appella nt’s licence. On appeal, it was submitted on behalf of
the appellant that the counterfoil was not a license as envisaged in the statute,

46 Schwikkard and Van der Merwe Principles of Evidence 4th ed (2015) Juta 432 -433.
47 R v Green 1911 CPD 823.
and therefore, the State had failed to prove its case. Rejecting that submission,
Hopley J explained:
‘…I am inclined to think that there are no degrees of distinction of secondary evidence that
one is bound by. I do not think that when one is compelled to use secondary evidence he is
bound to scan narrowly in what degree of perfection or excellen ce such evidence stands,
whether it is of the first, second, or third degree of goodness . . . In such a case the next best
evidence would, of course, be more conclusive than evidence of a degree lower, and so on,
but provided it was evidence and did convince the Court, I think it was admissible and proper
for the occa sion. Well, what was the nature of the evidence produced? Certainly, it was not
the best evidence to prove that the accused had a licence, the best being in the possession of
the accused, but it was the best evidence under the circumstances. ’48

[100] In my view, the application of the secondary rule in Green applies with
equal force in the present case. Contrary to what the majority judgment of the
full court held, the copy of the page of the respondent’s identity document is no t
a certificate envisaged in s 4(8) of the Recognition Act. By holding that it is, the
majority judgment erred. To borrow from Hopley J’s phraseology in Green , the
document is certainly not the best evidence to prove that the respondent and the
deceased we re married to each other, the best evidence being lost. But it was the
best evidence under the circumstances.

[101] Based on the approach adopted in Green , the weight to be attached to the
document must be considered in the light of other evidence. In th is regard, I
consider two factors. The first is that, after the alleged marriage, the respondent
was issued an identity document reflecting that she had assumed the deceased’s
surname. There is no explanation how the respondent could have officially
assume d the surname of the deceased without them being married. Confronted

48 Green fn 13 above at 825 .
with this, all that the appellant could say was that the family did not know how
this came about.

[102] Second, a child named D […] Manwadu, was born between the
respondent and the dec eased on 20 January 1995. Although this was initially
denied by the appellant in her answering affidavit, the respondent in her
replying affidavit provided documentary proof that this was the deceased’s
child. That was in the form of a next -of kin affidavi t which the respondent
alleged was completed by the appellant when she reported the deceased’s death
at the Master’s office. The document reflects the child as the deceased’s fifth
child, in addition to the appellant’s four children.

[103] On its own, th e fact that a child was born between the respondent and the
deceased, does not prove that they were married. But viewed in the light of the
totality of the evidence, it points in that direction. It also serves to refute the
appellant’s claim the respondent was an imposter whom the deceased never had
anything to do with. This averment was made in the replying affidavit and in the
normal course, the appellant had no right of response thereto. But the context is
that the allegation was made in direct response to the appellant’s denial in her
answering affidavit that the child was born of the respondent and the deceased.
Therefore, it was not case of the respondent making out a new case in the
replying affidavit. If the appellant considered the allegation not to be true, she
could have sought leave of the court to answer to it.49 This is especially so since
the allegation relate to a document which the respondent alleged, was authored
by the appellant . The appellant elected not to seek leave to answer to it, and
consequently, the allegation must be accepted as true.


49 See Pretoria Portland Cement Co Ltd v Competition Commission 2003 (2) SA 385 (SCA) para 63; Tantoush
v Refugee Appeal Board and Others 2008 (1) SA 232 (T) para 15.
[104] The first judgment holds that because the copy of the respondent’s
identity document is not a certificate referred to in s 4(8), it was the end of the
enquiry, and the respondent had to be non -suited on that basis. This is contrary
to the approach adopted in Green , which received the imprimatur of this Court
in Newlyn . There, it was emphasised that once secondary evidence is
admissible, a party is entitled to give whatever evidence it could in respect of
the contents of the missing document.50

[105] Unless we distinguish Newlyn , or conclude that it is clearly wrong, we are
bound by it and must follow it by vir tue of the principle of precedent. As this
Court pointed out in Patmar Explorations v Limpopo Development Tribunal :
‘…The basic principle is stare decisis , that is, the Court stands by its previous decisions,
subject to an exception where the earlier decision is held to be clearly wrong. A decision will
be held to have been clearly wrong where it has been arrived at on some fundamental
departure from princi ple, or a manifest oversight or misunderstanding, that is, there has been
something in the nature of a palpable mistake. This Court will only depart from its previous
decision if it is clear that the earlier court erred or that the reasoning upon which the decision
rested was clearly erroneous.’51

[106] As mentioned, in his minority judgment, Diamond AJ characteris ed the
document as an endorsement of the marriage between the respondent and the
deceased . He further held that status of the document was that ‘ it evidences
prima facie evidence of marriage’, which he sa id, ‘would still be open to an
interested party to lead rebutting evidence of the existence of a customary
marriage’. This characterisation of the document, is to my mind, undoubtedly
correct. It reflects the proper approach to the evaluation of evidence, which

50 Newlyn fn 7 above para 19.
51 Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others [2018] ZASCA 19;
2018 (4) SA 107 (SCA) para 3.
should have been adopted in the court of first instance. I do not understand the
first judgment to suggest that Diamond AJ was wrong in this regard.

[107] I part ways with Diamond AJ, though, in his conclusion that because the
document is not a certificate envisaged in s 4(8) of the RCMA, that should be
the end of the enquiry. If the document is an endorsement of the marriage and
demonstrates, prima facie, the existence of marriage as he held, the appellant
was required to adduce evidenc e in rebuttal to disturb the prima facie evidence.
She did not. In the absence of any such evidence by the appellant, the prima
facie case became conclusive.52 This obviated the need for the respondent to
prove all other requirements of the RCMA such as lobola negotiations, the
payment thereof, celebrations, etc.

[108] I end where I started. Viewed objectively and on the face of it, what does
the copy of the page of the respondent’s identity document convey? Titled
‘Marital status’ , it mentions the identity number of the respondent, followed
by the full names of both parties, and the inscription: ‘Married: 1979 -03-13.’
Any objecti ve and reasonable person would understand from the document that:
(a) the persons mentioned in the document (the respondent and the deceased)
were married to each other on the date mentioned, ie 13 March 1979, and (b) as
a result, the respondent, as the wi fe, adopted the surname of the deceased.

[109] It follows that the respondent should have prevailed in the court of first
instance. The order of the full court was therefore correct in upholding the
appeal, albeit on a wrong basis. For these reasons, had I commanded the
majority, I would have dismissed the appeal with costs.

52 See Venter and Others v Credit Guarantee Insurance Corporation of Africa Ltd and Another 1996 (3) SA 966
(A) at 980B.





__________________

T MAKGOKA
JUDGE OF APPEAL



Appearances :

For appellant: U B Makuya with N C Netshiendeulu
Instructed by: Rapfumbedzani Attorneys , Johannesburg
Peyper & Botha Attorneys , Bloemfontein

For first respondent: M S Sikhwari SC
Instructed by: Matamela Khuthadzo Mulaudzi
Attorneys, Thohoyandou
Matsepe Incorporated, Bloemfontein.