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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA



IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case Number: 2023 -120095
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 20 February 2025
SIGNATURE:

In the matter between:

T[...] S[...] N[...] Applicant

And

J[...] K[...] M[...] First Defendant

Minister of Home Affairs Second Defen dant

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______________________________________________________________________

JUDGMENT
______________________________________________________________________
NTLAMA -MAKHANYA AJ

Introduction

[1] This was an application for a declaratory order in recognition of the validity and
existence of the customary marriage between the Applicant and the First Defendant .
The parties entered and celebrated their marriage on 01 April 2012 as envisaged in
section 3 of the Recognition of Customary Marriages Act 120 of 1998 (Customary Act) .
However, t he marriage was not registered with the Department of Home Affairs (Second
Defendant ). The marriage ha d irretrievable broke down and the First D efendant has
since passed on as well. The matter proceeded unopposed, and the Second Defendant
would abide by the decision of this Court. I issued the order for the declaration of the
validity of the marriage ex tempore and herein I provide the basis for granting the
declarat ory order .

[2] The prayer that was sought by the Applicant was for:

[2.1] the declaration of the existence and validity of the customary marriage
between him and the First Defendant .

[2.2] the Second Defendant to register the customary marriage .

[3] I am not going to classify this application as a dispute other than a needed
affirmation from this Court for the declaration of the said marriage to ensure its
registration with the Department of Home Affairs. A brief background is also essential
that provides a foundation to the application.

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Background

[4] The brief facts are presented herein with the First Defendant having passed
away on the 09th April 2024. At the time of her death, this application was already in
motion. The facts, therefore, are presented as they appeared on the files of records and
during oral submissi on. The focus is on the facts as filed before the First Defendant’s
passing. This application did not raise intricacies about the validity of the customary
marriage between the parties . The main issue which was also not contentious was for
this Court to grant an order for the registration of the customary marriage with the
Department of Home Affairs (Second Defendant ). Further, for the parties to be able to
deal with the proprietary con sequences of their marriage. The only bar to what
appeared to be the challenge to the validity of the marriage was its non -registration with
the Department of Home Affairs as required by section 4(1) of the (Customary Act). This
section obligates the spous es in a customary marriage to ensure that their marriage is
registered.

[5] The brief facts of this application were that the parties were married in terms of
customary law . The two families met and negotiated the marriage on 26 November 2011
and R20 000.00 was agreed upon as an ilobola amount which was paid the by Applicant
to the First Defendant ’s famil y. The marriage was celebrated according to custom on 01
April 2012 and the parties stayed together as husban d and wife thereafter. Supporting
confirmatory affidavits were included in the application that confirmed the payment of
ilobola, parties that were in attendance at the ceremony ; celebration of the wedding,
photos of the wedding day except for the signed letter during the negotiation s relating to
the agreed ilobola agreement . The parties also shared a common immovable property
which they bought at an amount of R200 000 wherein they jointly contributed to its
purchase. The seller subm itted a confirmatory affidavit including the proof of payment in
this regard. It is also worth to mention that the marriage had irretrievable broken down
and due to the strained relations between the parties, the F irst Defendant had moved
out of the common home without having reconciled with the Applicant . The parties
envisaged to have their marriage declared valid so that they can properly divorce in
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terms of the Divorce Act 70 of 1979. The background facts regarding the status and
validity and existence of the marriage as celebrated and enjoyed by the parties was not
in doubt before this Court.

[6] However, due to the uniqueness of the area of the law that regulate customary
marriages, t his Court could not merely issue a declaration on the status of the marriage.
It had to put a constitutional law lens with out exhausting the supporting voluminous
jurisprudence on the status of customary law itself that influences the framework in the
regulation of customary marriages.

Legal framework

[7] Following the adoption of the Constitution of the Republic of South Africa, 1996
(Constitution), customary law has been enabled to occup y a constitutional space in its
own context. There are various provisions in the Constitution which inclu de amongst
others :

(i) section 15(3) which recognises any marriage that is con cluded
under any system ;
(ii) section 30 that protect the cultural life of each person ;
(iii) section 31 that protects the enjoyment of cultural rights and
(iv) intersection of sections 211 and 212 that protects the overall
scheme of traditional status ; roles, rights and responsibilities.

[8] These provisions reinforce the occupation of the constitutionali sed status of
customary law in its own context and is enabled to address matters that emanate from it
through the lens of the Constitution. The said context is now given effect by the adoption
of the Customary Act as Moseneke DCJ in Gumede v President of Republic of South
Africa 2009 (3) BCLR 243 (CC) held that the said Act is meant to :

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“… introduce certainty and uniformity to the legal validity of customary marriages
throughout the country. The Recognition Act regulates proprietary consequences
and the capacity of spouses and governs the dissolution of the marriages, which
now must occur under judicial supervision. An additional and significant benefit of
this legislativ e reform is that it seeks to salvage the indigenous law of marriage
from the stagnation of official codes and the inscrutable jurisprudence of colonial
‘native’ divorce and appeal courts ,” (para 23 ).

[9] This Court is not to reproduce the voluminous jurisprudence that has since been
developed to give substance on the constitutionalised status of customary law . It
acknowledg es amongst others the judgment of the Constitutional Court in Alexkor Ltd v
Richtersveld Community 20023 (12) BCLR 1301 (CC) when it held :

“While in the past indigenous law was seen through the common law lens, it must
now be seen as an integral part of our law. Like all law it depends for its ultimate
force and validity on the Constitution. Its validity must now be determined by
reference not to common law, but to the Constitution. The courts are obliged by
section 211(3) of the Constitution to apply customary law when it is applicable,
subject to the Constitution and any legislation that deals with customary law. In
doing so the courts must have regard to the spirit, purport and objects of the Bill
of Rights ”, (para 51 ).

[10] The relevance of the constitutional status which is endorsed by the Court is the
central question on the effect of section 4(9) of the Customary Act that does not
invalidate the customary marriage due to its non -registration. The rationale, as I
reiterate, section 4(9) gives due recognition to the constitutionalised ‘living ’ status that
does not have to be made rigid by sta tute. Section 4 (9) serves as an acknowledgment
of the dynamic nature of the system of customary law with its practices. The effect of
section 4(9) appears to be ‘double -edged’. First, it gives due recognition to the ‘living ’
status of customary law. On the other hand, it appears not to effect as a source of law in
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addressing issues that emanate from customary marriages if the marriage was not
certified through registration as prescribed by section 4(1) of the Customary Act.

[11] This Court finds difficulty that section 4(1) could be interpreted independently of
the ‘living version’ envisaged in section 4(9) that acknowledges the practices that are
not infused and made stagnant by statut ory requirements . Such difficu lty is borne by the
requirement for the certification of the said marriages before they could be regulated
through the lens of the law where they emanate from .

Discussion

[12] This Court is limiting the analysis of the law and facts to the quest for the
declaration of the vali dity and existence of the customary marriage between the parties
only. It does not go beyond the after -effects and implications relating to the death of the
First Defendant. It also considered the facts ‘holistically ’ as interdep endent to each other
within the framework of the relief sought of the existence of the customary marriage.
This means that I am not to dispute the authenticity of the submitted documents as they
were not in dispute before this Court and the First Defendant even before her passing,
did not challenge them including the existence of the marriage.

[13] This case raises what I refer to as the ‘living’ status of customary law . The ‘living
status ’ entails the flexib ility o f the practice of marriage to have the force and effect of the
law even if they are not registered to address the matters that originate from it. This
Court acknowledges that customary law and its practi ces and princi ples are dynamic
and respon d to the soc ial and economic changes. The dynamism which is fundamental
in the new dispensation is now centralised for inclusion in section 4(9) of the Customary
Act. Recently, Weiner JA in Manwadu v Manwadu (799/2023) [2025] ZASCA 10 gave
effect to the uniqueness of the living status with reference to registration of customary
marriage s as meaning ‘adherence to the customs and usages traditionally observed
among the indigenous people which form the culture of those people which means [and]
the marriage n egotiations, rituals and celebrations must be according to customary law ’
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(para 46 ). I am of the view with the progress and acknowledgment of the
constitutionalised identity of customary law practices presents an opportunity for its
evolution without hindrance and distinction from other legal systems.

[14] In this matter , the party’s marriage was not registered, and it is my considered
view that it captured the content of the ‘living ’ version of the practice of marriage within
the system of customary law. The non -registration was also in line with exercise of their
constitutional rights to have the regulatory framework that governs their marriage to be
applied in regulating the proprietary consequences of their marriage . The marriage is
now being regulated by principles that are imported from another regulatory system
which require registration and certification by the Divorce Act 70 of 1979 before its
validity could be determined. The importation of prescripts from another regulatory
system undermines not just customary marriages but the general system of customary
law as a legitimate source of law in addressing matters that originates from its own
context. Particularly, the constitutionalised customary law is left hanging in the balance.

[15] Let me reiterate that the ‘living status ’ of customary law is deduced from section
4(9) of the Customary Act . This is designed to consolidat e the flexible nature of
customary law and its practices in giving meaning to its influence on issues that
originate from it. This is an acknowledgment of the originality and distinctiveness of
customary law that is given due recognition by the Constitution, ( Alexkor para 56 ). The
quest for certification of customary law marriage that is celebrated according to custom
downplays the constitutional progress made in developing the principles of customary
law as a legal system itself . The certification undermines the ‘fabric’ of customary
marriages. It is a travesty of justice to have a statu te that recognises the living version of
customary law, and its legal status cannot be translated into reality. The certification is
an import of official codes that undermines the gist of indigenous law of marriage as
argued in Gumede above, ( para 23 ).

[16] It is my further conviction that t he Second Defendant ( Department ), as an
executive sphere of government seem to entrench commonali ty in the regulation of the
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consequences of customary marriages with those that are regulated by other legal
frameworks . It appears to lose sight of the constitutional role in extending its
administrative processes in giving content to the ‘living principle’ of customary law in
relation to the registration of customary marriages . The Department waters down its
constitutional commitment to extend the basic values and principles that regulate the
govern ance of public service as envisaged in section 195 of the Constitution . In this
instance, public service entails the extension of the quality of basic service on matters
that regulate the system of customary law as well . Such extension would ensure the
parallel development of customary law principles, which in this case, the recognitio n of
the ‘living status’ in addressing proprietary consequences of a customary marriage, to
be on par with others that developed from other legal systems. It is my firm belief that
the living status of customary law does not need certification to determine its validity
and dealing with the proprietary consequences of customary marriages.

[17] The Department fails to acknowledge that section 4(9) is the creation of the
statute that is designed to capture the living content of customary marriages . This
means that the Department is the treasurer and custodian of the Customary Act, and it
turns around and fails to uphold the very same instrument that is under its
administration and authority. The requirement for certification that should serve as a
determinant of the validity and address the consequences of customary undermines
South Africa’s diversity and pluralistic character as envisaged in the preamble of the
Constitution.

[18] For the order to be issued below, this Court finds difficulty to ‘toe the line’ whilst
customary law has an independent constitutional status that is meant to regulate its own
affairs through the lens of the Constitution . The Department is now required to review its
regulatory processes relating to non -registration of customary marriages and give effect
section 4(9) of the Customary Act which endorses the living status in regulating the said
marriages.

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[19] Another consideration in this applic ation is the costs issue . Since the application
was not contested , normally, the costs follow the results and, in this matter, the order
relating to costs will be indicated as reflected below.

[20] Accordingly, the following order is made:

[20.1] The cu stomary marriage concluded between the Applicant and First
Respondent entered on 01 April 2012 is declared valid.

[20.2] The Second Respondent: Minister of Home Affairs is ordered forthwith
within 30 days on receipt of this order to register the above marriage on its
relevant database and take all consequential steps ancillary steps
including thereto the issuing of the marri age certificate.

[20.3] There is no order as to costs.


___________________________
N NTLAMA -MAKHANYA
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG


Delivery: This judgment is issued by the Judge whose name appears herein and is
submitted electronically to the parties /legal representatives by email. It is also
uploaded on CaseLines and its date of delivery is deemed 20 February 2025 .

Date of Hearing: 12 February 2025

Date Delivered : 20 February 2025

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Appearances:

Plaintiff : Tshivhumilo Attorneys
Vhulenda Tshivhumilo

First Respondent : Not Represented

Second Respondent : Not Represented