IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE Number : 2023 / 08 0241
In the matter between: -
MPHO BRIDGETTE TLHALE Applicant
and
THE MINISTER OF HOME AFFAIRS First Respondent
MASTER OF THE HIGH COURT OF
SOUTH A FRICA Second Respondent
NOKUZOLA SWEETNESS MGQUBA N.O. Third Respondent
NONTUTUZELO CYNTHIA NANGU Fourth Respondent
JUDGMENT
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
28 March 2025
2
SNYMAN , AJ
Introduction
[1] A conspectus of the case law has left me quite surprised as to how many cases
there exist where a party to an alleged customary marriage only seek s to assert
the marriage after the other party has become deceased. I find this perplexing,
as the Recognition of Customary Marriages Act1 (RCMA) specifically provides
for such marriages to be registered, and if this is done, it would render
applications such the application in casu mostly unnecessary. I venture to say
that what one has in these cases is not really about asserting the marriage, but
rather an instance of laying hands on some of the spoils emanating from a
deceased estate.
[2] Having said the above, I must make it clear that I am not, by any stretch of the
imagination , seeking to detract from the importance of recognising customary
marriages in our law. As authoritatively stated in MM v MN and Another2:
‘The Recognition Act represents 'a belated but welcome and ambitious
legislative effort to remedy the historical humiliation and exclusion meted out to
spouses in marriages which were entered into in accordance with the law and
culture of the indigenous Afr ican people of this country'. Past law accorded
marriages under customary law recognition only as customary 'unions' and this
'grudging recognition of customary marriages prejudiced immeasurably the
evolution of rules governing these marriages'. The Recog nition Act is legislation
'specifically deal[ing] with customary law', as envisaged in terms of s 211(3) of
the Constitution. Its enactment was inspired by the dignity and equality rights
and the normative value system of the Constitution. It is an adaptation of
customary law which 'salvage[s] and free[s] customary law from its stunted and
deprived past'. ’
1 Act 120 of 1998.
2 2013 (4) SA 415 (CC) at para 26. See also Gumede v President of Republic of South Africa and
Others 2009 (3) SA 152 (CC) at para 16.
3
[3] What I am saying is that the importance of registering such marriages cannot
be countenance d, lest disputes like these in casu prevail , in circumstance s
where one of the parties to the relationship is no longer there to offer a version .
This is a rather undesirable state of affairs in highly personal relationships ,
which is what marriages are. In illustration, reference is made to the following
dictum in TM v NM and Others3:
‘... the registration certificate issued to the appellant in 1991 constitutes, at the
very least, prima facie proof of the existence of the appellant's marriage. Thus,
in the absence of countervailing evidence impugning its authenticity, it
establishes the truth of the fact stated therein .’
[4] The above being said, the current matter concerns an application brought by
the applicant on 14 August 2023 , in terms of which the applicant seeks an order
that the first respondent, being the Minister of Home Affairs, be directed to
register a customary marriage between the applicant and one Sonwabo Nangu
(Nangu) in terms of the RCMA. The application has been opposed by the third
respondent , wh o describes herself as ‘the legal widow ’’ of Nangu. It was
common cause that Nangu became deceased on 12 January 2023.
[5] The application came before me for argument on 1 8 February 2025 . After
hearing argument from the a pplicant and the third respondent, I reserved
judgment . I will now hand down judgment, by first setting out the relevant
background facts.
The relevant background facts
[6] I will commence with those facts that were at least common cause between the
parties. First and foremost, both the applicant and Na ngu were major persons4
and ha d consented to be married to one another. As a result, and on 19
November 2006, delegates from Nangu’s family met with delegates from the
applicant ’s family , to ask for her hand in marriage, and lobola (dowry)
3 2014 (4) SA 575 (SCA) at para 14.
4 The applicant was born on 10 April 1982, and Nangu was born on 14 June 1977.
4
negotiations then ensued. The applicant herself, and Na ngu, were not present
in these negotiations . In the negotiations , the applicant was represented by G
Mabul atse, F Tlhale and Mrs Mtlala, whi lst Nangu’s family was represented by
M Nangu, N Mofokeng, M Xelozo and L Nangu. In the course of th ese
negotiations , a sum of R4 000.00 was handed over by Nangu’s family to the
applicant’s family.5 A written note was prepared of such meeting, listing the
names of the parties representing the two families, recording that R4 000.00
was handed over by Nangu’s family to the applicant’s family, and reflecting the
words ‘ Balance R10 000.00’ . It was also common cause that no customary
marriage was registered between the applicant and Nangu in terms of the
RCMA.
[7] In the founding affidavit, the applicant stated that she met Nangu in 2004 whilst
they were working together at Edgars in Randfontein. They embarked upon a
relationship , and as a result, the applicant gave birth to a daughter on 29
November 2006. Nangu had earlier proposed to her, and the customary
marriage process commenced , by way of a lobola letter sent by Nangu’s family
to the applicant’s family, proposing a meeting date on 19 November 2006. This
gave rise to the meeting on 19 November 2006, referred to above.
[8] According to the applicant , and in the meeting of 19 November 2006, lobola in
the sum of R14 000.00 was actually agreed upon between the parties.
Following the meeting on 19 November 2006, the balance of her lobola of
R10 000.00 was paid on 24 November 2007. In this regard, she relies on a
letter , which was dated 24 November 2007, which letter recoded that an amount
of R10 000.00 was received f rom the Nangu family as the balance of lobola
which was R14 000.00. The letter contains the signatures of two unidentified
persons .
[9] Next, the applicant states that on 29 March 2008, there as a celebration at the
Nangu family where she was handed over by her family to the Na ngu family,
she was named ‘Nobant u’, and a sheep was slaughter as per custom. The
5 It is in dispute whether a final amount in lobola was agreed upon, and this will be dealt with below.
5
applicant however never stated that she and Nangu cohabitated at any time ,
after the ceremony was concluded .
[10] Also in the founding affidavit, the applicant relies on confirmatory affidavits by
persons identified as Margaret Motoung, Buti Elias Mlangeni, N tswakeleng
Paula Tlhale , Johannes Ratau Tlhale and Mongameli Nangu. It is significant
that none of these persons were part y to the negotiations . Nonetheless, a
consideration of what is set out in these affidavits is important. First, Buti Elias
Mlangeni , who is the father of Nangu, baldly stated that Nangu was married to
the applicant on 29 March 2008 at 382 Protea No rth. Johann ees Ratua Tlhale
and Ntswakeleng Pauls Tlhale made similar statement s. No further particularity
as to any customary marriage rites are provided. Margaret Motoung stated that
she was one of the elders performing the customary marriage for the applicant ,
that the celebration was held at Protea No rth on 28 March 2008 , and the new
name of ‘ Nobantu ’ was given to the applicant. Again, no specificity of other
customary marriage rites is given .
[11] Turning next to the answering affidavit and supplementary answering affidavit
filed by the third respondent, it was contended that the lobola (referring to the
sum of R4 000.00) that had been paid was returned to Nangu’s family before
any celebrations were concluded, which indicated that no marriage ultimately
took place. The third respondent further pointed out that lists were already ‘out’
to family members that were supposed be given gifts, but this exchange never
happened . The third respondent took issue with the fact that none of the
deponents to the confirmatory affidavits relied on by the applicant were party to
the negotiation delegation or had knowledge of what transpired there.
[12] According to the third respondent, the lobola negotiations were not completed ,
and any ‘balance ’ reflected in the meeting note of 19 November 2006 was never
agreed nor paid. The third respondent further contended that there were no
celebrations or any rituals conducted to celebrate the marriage because, before
any of this could happen, the relationship between the applicant and Nangu
irretrievably soured as a result of an affair the applicant had with a third party,
with whom she later conceived a child , which was born in 2016, called
6
‘’Amahle’ . According to the third respondent, there as an absence of ’customary
rites and ceremonies ’.
[13] As to the letter relied on by the applicant dated 2 4 November 2007 to establish
that a second meeting was held between the two families in which the balance
of R10 000.00 as lobola w as paid, the third respondent disputed the veracity of
this letter. According to the third respondent the two main delegates presenting
Nangu in the negotiations , being L Nangu and N E Mokokeng, have no
knowledge of any such a meeting and never attended the same. T heir
signatures are also not attached to the letter . The third respondent did rely on
confirmatory affidavits by these two persons. The third respondent further
states that it is not even clear where the date of 24 November 2007 came from,
as the date for a second meeting would have been stipulated in the first meeting
and would have been recorded in the meeting note . And finally, the third
respondent complains that this letter does not even identify the delegates that
attended , but simply c ontains two unknown and unverified signatures .
[14] The third respondent also dealt with contention of the applicant that the
marriage with Nangu was celebrated on 29 March 2008. The third respondent
disputed this ever happened . In addition, the third respondent states that there
were no customary marriage celebrations conducted at the applicant’s home,
as would ordinary be the case. In this context, the third respondent explains
that such a celebration has an ‘ esteemed connotation ’ and the taking of
photographs of the occurrence throughout the day w ould be common practice.
The third respondent emphasis es the fact that the applicant has not produced
a single photograph of such alleged celebration. It is also suggested that the
applicant was not handed over to Nangu as part of concluding the marriage
ceremony, as is the custom. The third respondent adds that no sheep was
slaughtered, and no gifts were exchanged . And finally, it was stated that the
applicant and Nangu never cohabitated, as the relationship broke down before
this could even happen.
[15] The third respondent also refers to the fact that at the funeral of Nangu, whilst
the applicant did attend, she in fact distanced herself from all the Nangu family
7
members and acted in a manner showing she was not part of the family. And
finally, the third respondent complains that it t ook the applicant fifteen years to
come forward to assert the marriage . In this context, the applicant’s motives
were questioned, it was said she was acting mala fide, and it was pertinently
suggested that she only now sought to assert the marriage so she could lay her
hands on N angu’s estate , once he passed away on 12 January 2023 .
[16] The applicant did file a replying affidavit , however this affidavit did not add
anything to the factual exposition set out above. In particular, the applicant
never even addressed several of the pertinent statements made by the third
respondent, as referred to above.
Analysis
[17] Inexp licably , the applicant has chosen to bring the current dispute before Court
by way of motion proceedings . I find this perplexing, because surely the
applicant must have anticipated material factual disputes . This is the kind of
case that is very difficult to resolve in motion proceedings. But once bought ,
and the answering affidavit had been filed, it must have been apparent to the
applicant that there existed the kind of material factual dispute that could
jeopardise her case in continued motion proceedings. Yet the applicant pushed
on and never sought a referral to oral evidence . In the end, therefore, the
applicant must stand or fall on the basis of how these kinds of factual disputes
are ordinarily resolved in motion proceedings , as enunciated in Plascon Evans
Paints v Van Riebeeck Paints6, where the Court held :
‘... These principles are, in sum, that the facts as stated by the respondent party
together with the admitted or facts that are not denied in the applicant party’s
founding affidavit constitute the factual basis for making a determination, unless
the dispute o f fact is not real or genuine or the denials in the respondent's
version are bald or not creditworthy, or the respondent's version raises such
obviously fictitious disputes of fact, or is palpably implausible, or far -fetched or
6 1984 (3) SA 623 (A) at 634E -635C.
8
so clearly untenable, that the court is justified in rejecting that version on the
basis that it obviously stands to be rejected ...’
[18] In Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others7, the Court added another dimension to the enquiry in applying the
Plascon Evans principle, where the Court said :
‘Ordinarily, the Court will consider those facts alleged by the applicant and
admitted by the respondent together with the facts as stated by the respondent
to consider whether relief should be granted. Where, however, a denial by a
respondent is not real, genuine or in good faith, the respondent has not sought
that the dispute be referred to evidence, and the Court is persuaded of the
inherent credibility of the facts asserted by an applicant, the Court may
adjudicate the matter on the basis of the facts a sserted by the applicant. '
[19] As to when a denial (factual dispute) by the respondent party may not be
considered to be real or genuine, the Court in Thebe Ya Bophelo Healthcare
Administrators (Pty) Ltd and Others v National Bargaining Council for the Road
Freight Industry and Another8 provided the following guidance:
‘… the dispute is not real or genuine or the denials in the respondent's version
are bald or uncreditworthy, or the respondent's version raises such obviously
fictitious disputes of fact, or is palpably implausible, or far -fetched or so clearly
untenable t hat the court is justified in rejecting that version on the basis that it
obviously stands to be rejected … ’
And in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another9 the
Court explained:
‘A real, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. There will
of course be instances where a bare denial meets the requirement because
7 2005 (2) SA 359 (CC) at para 53.
8 2009 (3) SA 187 (W) para 19.
9 2008 (3) SA 371 (SCA) at para 13. See also Minister of Home Affairs and Others v Jose and Another
2021 (6) SA 369 (SCA) at para 20.
9
there is no other way open to the disputing party and nothing more can
therefore be expected of him. But even that may not be sufficient if the fact
averred lies purely within the knowledge of the averring party and no basis is
laid for disputing the verac ity or accuracy of the averment. When the facts
averred are such that the disputing party must necessarily possess knowledge
of them and be able to provide an answer (or countervailing evidence) if they
be not true or accurate but, instead of doing so, res ts his case on a bare or
ambiguous denial the court will generally have difficulty in finding that the test
is satisfied. ...’
[20] What makes it worse is that there are judgment s in which the Court made it
clear that disputes relating to the validity of customary marriages being brought
by way of motion proceedings , would attract the application of the Plascon
Evans principles.10 In Mawandu v Manwadu and Others11 the Court was critical
of a case concerning the validity of a customary marriage being brought by way
of motion proceedings where there were several material factual disputes . The
Court had the following to say :12
‘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. This case falls
squarely within the ambit of the Plascon -Evans rule. The respondent, being the
original applicant, had the onus to prove her case that she and the deceased
were married by customary law. ...
If the appellant’s version was not clearly untenable (which it was not), the
application must be determined on her version. Not only did the appellant raise
genuine and bona fide disputes of fact, but her version was more probable. It
was corroborated by n umerous 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. ...’
10 See Malatjie v Sekgobela and Others 2025 JDR 0295 (GP) at para 29; Tsambo v Sengadi [2020]
JOL 47138 (SCA ) at para 19; Sikhosana v Kabini and Others 2023 JDR 2964 (GJ) at paras 22 – 25.
11 2025 JDR 0586 (SCA) at para 56.
12 Id at para s 61 – 62.
10
[21] Nonethless, the applicant chose her course of action, and must live with the
consequences thereof. When considering the answering affidavit filed by the
third respondent , I do not believe it can be said that the factual disputes raised
are not real or not genuine. The factual averments made were also supported
by confirmatory affidavits by persons directly involved in the negotiation and in
the know , as part of the Nangu family delegation . There is nothing obviously
fictitious, palpably implausible , far-fetched or untenable in what the third
respondent had to say in the answering affidavit. Considering all the warnings
already dispensed , as discussed above , I do not believe there is any reason
why this matter should not be decided on the basis of the admitted facts,
together with the version as contained in the answering and supplementary
affidavit s of the third respondent . In the end, as held in TIBMS (Pty) Ltd t/a Halo
Underground Lighting Systems v Knight and Another13:
‘… Credibility is only capable of being addressed on paper when the assertions
are palpably absurd or demonstrably false. The threshold that had to be cleared
is ‘wholly fanciful and untenable’. Moreover, the appetite to resolve paper
contests by reference to the probabilities, though ever present, is not
appropriate. …’
[22] The above being said, the determination of this matter starts with setting out
the relevant statutory framework. The recognition of customary marriages is
regulated by the RCMA. Section 3(1) sets out the requirements for a valid
customary marriage as follows:
'For a customary marriage entered into after the commencement of this Act to
be valid –
(a) the prospective spouses –
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in
accordance with customary law. ’
13 (2017) 38 ILJ 2721 (LAC) at para 29.
11
[23] It is clear that section 3(1) sets three re quirements that must all be met, before
a customary marriage can be considered valid. The first two requirements are
statutorily circumscribed, being that both parties must be adults (over 18 years
of age) , and they must both consent to a customary marriage. If these two
requirements are not first met, then it simply does not matter what may have
happened in terms of customary law between the parties in the context of a
possible marriage relationship . But once these two initial requirements are met,
then the third requirement , in section 3(1)(b), is not statutorily circumscribed.
Instead, it must be shown the marriag e was negotiated and entered into o r
celebrated, as determined by customary law. The RCMA does not stipulate was
qualifies under section 3(1)(b) as basis for determination , for the very reason
that customary law is determined by way of what is practiced in particular
communities on a day to day basis, and is therefore live , flexible and constantly
changing and evolving .14 The Court in Mbungela and Another v Mkabi and
Others15 described it as thus :
‘... But s 3(1) (b) does not stipulate the requirements of customary law which
must be met to validate a customary marriage. The reason for this is not far to
seek. It is established that customary law is a dynamic, flexible system, which
continuously evolves within the context of its values and norms, consistently
with the Constitution, so as to meet the changing needs of the peopl e who live
by its norms. The system, therefore, requires its content to be determined with
reference to both the history and the present practice of the community
concerned. As this court has pointed out, although the various African cultures
generally obs erve the same customs and rituals, it is not unusual to find
variations and even ambiguities in their local practice because of the pluralistic
nature of African society. Thus, the legislature left it open for the various
communities to give content to s 3(1) (b) in accordance with their lived
experiences. ’
14 In MM v M N (supra ) at para 24, the Court said: ‘ This court has, in a number of decisions, explained
what this resurrection of customary law to its rightful place as one of the primary sources of law under
the Constitution means. This includes that … (c) customary law is a system of law that is practised in
the community, has its own values and norms, is practised from generation to generation and evolves
and develops to meet the changing needs of the community; (d) customary law is not a fixed body of
formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by
its norms change their patterns of life; (e) customary law will continue to evolve within the context of its
values and norms consistent with the Constitution …’
15 2020 (1) SA 41 (SCA) at para 17.
12
[24] Whilst the flexible , dynamic and constantly evolving nature of customary law is
one of its strengths, it could also be one of its weaknesses, in particular where
there exists a dispute as to whether a customary marriage was negotiated and
entered into or celebrated . So, and for example, what would need to be
negotiated and then entered into, in order to establish a valid customary
marriage, may not only change from time to time, but may well be different from
community to community .16 This makes it highly problematic for a Court to
determine exactly what the particular customary law requirements in each
particular case of a contested customary marriage would be , so as to ascertain
whether, on the facts, they have been met. In MM v M N supra the Court held :17
‘Paradoxically, the strength of customary law — its adaptive inherent flexibility
– is also a potential difficulty when it comes to its application and enforcement
in a court of law. As stated by Langa DCJ in Bhe, '(t)hedifficulty lies not so much
in the acceptance of the notion of living customary law . . . but in determining
its content and testing it, as the court should, against the provisions of the Bill
of Rights. '’
[25] The aforesaid difficulty is aptly illustrated by the following dictum in MM v ES18:
‘The requirement in s 3(1) (b) that 'the marriage must be negotiated and entered
into or celebrated in accordance with customary law' is clear and unambiguous.
Even the Legislature did not consider it necessary to define it. This is
understandable as customary law is as diverse as the number of different ethnic
groups we have in this beautiful country. Although Africans in general share the
majority of customs, rituals and cultures, there are some subtle differences
which, for example, pertain exclusively to the Ngunis, Basotho, Bapedi,
VhaVenda and the Vatsonga. This is due to the pluralistic nature of African
societies.
Furthermore, African law and its customs are not static but dynamic. They
develop and change along with the society in which they are practised. This
16 Compare Sikhosana v Kabini and Others 2023 JDR 2964 (GJ) at paras 36 – 40.
17 Id at para 2 5.
18 2014 JDR 1085 (SCA) at paras 35 – 37.
13
capacity to change requires the court to investigate the customs, cultures,
rituals and usages of a particular ethnic group to determine whether their
marriage was negotiated and concluded in terms of their customary law at the
particular time of their evolution. This is so particularly as the Act defines
'custo mary law' as the customs and usages traditionally observed among the
indigenous African peoples of South Africa and which form part of the cultures
of those people.
It follows that it would be well -nigh impossible and undesirable to attempt an
exhaustive and all -inclusive definition of a phrase which is susceptible to
variations depending on which particular ethnic group it relates to. The most
salutary approach to as certaining the real meaning of this requirement is by
examining the current cultural practices and customary law of that particular
ethnic group …’
[26] So, and considering that the Court would be duty bound to establish the tenets
of customary law on each occasion the validity of a customary marriage under
section 3(1)(b) of RCMA is in question, what would be the source of such
establishment. An answer is found in Bhe and Others v Magistrate, Khayelitsha,
and Others (Commission for Gender Equality as Amicus Curiae);
Shibi v Sithole and Others; South African Human Rights Commission and
Another v President of the Republic of South Africa and Another19 where the
Court had the following to say:
‘There are at least three ways in which indigenous law may be established. In
the first place, a court may take judicial notice of it. This can only happen where
it can readily be ascertained with sufficient certainty. Section 1(1) of the Law
Evidence Amend ment Act 45 of 1988 says so. Where it cannot be readily
ascertained, expert evidence may be adduced to establish it. Finally, a court
may consult text books and case law.
Caution, however, must be exercised in relying on case law and text books …’
19 2005 (1) SA 580 (CC ) at paras 150 – 151.
14
[27] And finally, even where the requirements of a customary marriage in a
particular case have been determined, those requirements must always be
measured and tested against the values of the Constitution .20
[28] Once concluded, and in terms of section 4(2) of the RCMA , either spouse may
apply for the registration of the customary marriage . However, and in terms of
section 4(3)(b), a customary marriage must be registered within a period of
three months after the conclusion of the marriage . The benefit of registration,
as touched on earlie r in this judgment, is that a ce rtificate of registration is
issue d, which certificate constitutes prima facie proof of the existence of the
customary marriage and of the particulars contained in the certificate.21 In
Mawandu supra22 the Court held:
‘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 customary 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 ...’
[29] Nonetheless , the f ailure to register a customary marriage does not affect the
validity of that marriage.23 However, and all considered, these administrative
processes under the RCMA cannot be just ignored, as they serve a particular
purpose, described in Khashane v Minister of Home Affairs and Others24 as
follows:
‘This subsection imposes a duty on both spouses of a customary marriage to
ensure that their marriage is registered. It signifies the importance placed on
formalising customary marriages through the official registration process. ’
20 In MM v MN (supra ) at para 83, the Court held: ‘ The Recognition Act is thus premised on a customary
marriage that is in accordance with the dignity and equality demands of the Constitution … ’. See also
paras 23 – 24 off the judgment. Also refer to Bhe (supra ) at paras 44 and 46; MLZ v STZ 2025 JDR
0555 (GJ) at para 21 .
21 Section 4(8).
22 Id at para 56. See also Mgenge v Mokoena 2021 JDR 1020 (GJ) at para 12.
23 Section 4(9).
24 2024 (5) SA 242 (GP) at para 12.
15
[30] The applicant would bear the onus to prove the requirements of a customary
marriage have been satisfied in this cas e.25 How would this onus then be
discharged ? In my view, two considerations are paramount. First, the applicant
would need to establish the tenets of the customary law that regulate her
particular customary marriage. It is important to establish this first, because of
the very nature of customary law as discussed earlier in this judgment. Second,
the applicant would need to provide proper and acceptable evidence that what
had transpired between the parties is consistent with these customary law
tenets.
[31] My difficulty with the case of the applicant is that it was simply not established
or proven what the principles of the customary law would be that would need to
me met, in order for this Court to find that there existed a valid customary
marriage between her and Nangu. Whilst it i s true, as said in Bhe supra , that
the Court could take judicial notice of it, this is a very slippery slope. To be
honest, whilst one would hope that Judges are all -knowing where it comes to
all issues of law that they are called on to decide , this is expectation is not
realistic where it comes to customary law . It would be impossible for Judges to
be familiar with all the principle s of customary law in all communities at all times,
when called upon to decide whet her a customary marriage is valid.26 That is
why the Court in Bhe warned that judicial notice requires sufficient certainty that
is readily ascertainable . In my view, the very nature of customary law principles
applicable to customary marriages, in particular, would make judicial notice on
the basis of sufficient certainty a dubious prospect . And as the case law
illustrates , as I will discuss below, it is hardly readily ascertainable .
[32] In my view, what is needed in a case such as one in casu is that the tenets of
customary law applicable to deciding wheth er a particular customary marriage
25 Manwadu (supra ) at para 56; Tlou v Matlala 2025 JDR 0317 (GP) at para 55.
26 As said by the Court in MM v M N (supra ) at para 48: ‘… a court is obliged to satisfy itself, as a matter
of law, on the content of customary law, and its task in this regard may be more onerous where the
customary -law rule at stake is a matter of controversy. With the constitutional recognition of customary
law, this has become a responsibility of the courts. It is incumbent on our courts to take steps to satisfy
themselves as to the content of customary law and, where necessary, to evaluate local custom in order
to ascertain the content of the relevant legal rule …’.
16
is valid needs to be ascertained by presenting evidence of an expert nature that
establishes this . That is the only way a Court can be sure that what it decides
is correct, and in line with t he p revailing customary law in a particular
circumstance at a particular time . This kind of evi dence can be presented by an
elder, headman, community leader or similar person that is the custodian of the
customary law in a particular community . For example, and in MM v M N supra ,
the Court considered the evidence of an elder and advisor to traditional leader ,
a number of traditional leaders , and an expert anthropologist with extensive
research experience customary law to decide a particular requirement for a
valid customary marriage under customary law.27 Of course, the Court would
have to satisfy itself of the expertise of that person. Without that evidence which
conveys to the Court what would satisfy the provisions in section 3(1)(b) that
the marriage must be negotiated and entered into or celebrated, the doing of
justice will be at risk, especially in a close personal relationship such as a
marriage. It not difficult to appreciate the injustice that may result in for example
forcing two parties into a marriage relationship that is not valid or for that matter
terminating a relationship by a declaration of invalidity when there is in reality
no proper foundation for doing so, based on principles that are not certain .
[33] And this is what is absent from the applicant’s case from the outset. The
applicant does not establish what the principles of customary law are that would
apply to her particular customary marriage in her particular community . She
simply sets out rituals and formalities she contends have been met, but she
does not establish whet her these rituals and formalities are what is required
and is all that is required . In my view, it was imperative for the applicant to have
provided evidence from a n independent person in the know, so to speak, as
custodian of customary law for her community , of what was necessary to have
been fulfilled to make her customary marriage a valid one. One can hardly take
her word for it, being a party to the dispute , not being an expert, and having a
direct interest in a particular outcome. Absent th e aforesaid evidence , there are
no principles proven to wh ich the evidence can be applied. That , I believe, is a
material obstacle to the success of the applicant’s case .
27 See paras 57 – 59 of the judgment.
17
[34] But accepting that I may be criticised for being overly cau tious, and because
there is no expert evidence in this ca se, that leaves judicial notice as the source
of establishing the principles of customary law applicable to the applicant’s
alleged customary marriage . I have not been enlightened with what community
the applicant is from, so a broad conspectus of customary law principles
appli cable to customary marriages in general would be appropriate . There is
fortunately some depth of case law to draw this from. All considered, a nd in
general, I believe the principles that I summarize below would serve to inform
as to whet her a valid customary marriage has been concluded .
[35] First, it must be appreciated that a customary marriage is not just a transaction,
for the want of a better description, between the two spouses. It is effectively a
transaction between two families.28 Accordingly, it needs to be established , in
the context of ‘ negotiated ’ under section 3(1)(b), that there is a transaction
between two families , where the marriage is negotiated . In these negotiations ,
which are conducted by emissaries / delegates of both families, an agreement
must be reached between the two families as to the payment and quantum of
the lobola (dowry ) for the prospective wife. There are differing views as to
whet her the lobola must actually be paid in full for the marriage to be valid , or
whet her part payment or only an agreement is necessary.29 Be that as it may,
it is in my view clear that at the very least, there must be consensus on the
quantum of the lobola to be paid . As succinctly held in MB v TM :30
‘A customary marriage is not concluded by two parties only. In its conclusion
there is participation by the couple themselves, their respective families and
this participation extends to their blood relations. The nature of its participatory
model, the family as well as blood relations orientation, has the result that it is
not constituted by a single event. A series of negotiations, festivities and rituals
officiate it into a marriage. ’
28 Motsoatsoa v Roro 2010 JDR 1392 (GSJ) at para 17; Mabaso and Others v Manyathela 2021 JDR
2488 (GJ) at para 13.
29 See Tlou (supra ) at para 56; Makhosine v Department of Home Affairs and Others 2022 JDR 3317
(GJ) at para 24; Mathunyane v Bapela 2015 JDR 2489 (GP) at para 10.
30 2019 JDR 2316 (WCC) at para 28. See also MM v ES 2014 JDR 1085 (SCA) at para 39; Fanti v Boto
and Others 2008 (5) SA 405 (C) at paras 19 – 20.
18
[36] Next, and what follows the conclusion of the negotiations is best described as
a number of essential rituals. This includes the exchanging of gifts to specific
family members , a marriage ceremony (celebration) , the slaughtering of
livestock, and the handing over of the bride to the family of the groom.31 Whilst
it is true that in LS v RL32 the Court had definit ively decided that the failure to
hand over the bride to the family of the groom cannot serve to invalidate a
customary marriage per se , it remains one factor to be considered when
deciding whet her a customary marriage has b een concluded .33 As explained in
Mbungela supra :34
‘It is important to bear in mind that the ritual of handing -over of a bride is simply
a means of introducing a bride to her new family and signifies the start of the
marital consortium. …’
[37] Further , there is the issue of cohabitation and what results (flows) from it. As
suggested in Tsambo v Sengadi35: ‘... long cohabitation raises a strong
suspicion of marriage ...’. In this context, it must be considered , for example,
wheth er the parties , immediately following or shortly after the marriage
ceremony, cohabited together , for how long, how the new bride is integrated
into the family of the groom, and whet her any children were born from the
marriage. In simple terms, it is considered whet her the couple behaved as a
married couple would, and has been considered by the famil ies to be married.
As described in Mathunyane v Bapela :36
‘The subsequent living together of both parties, which was not disputed by the
applicant, demonstrate acceptance of the parties that they are united in
wedlock. …’
[38] There is a further consideration that I believe has not received sufficient
attention. This is the issue of the registration of the customary marriage. Even
31 Motsoatsoa (supra ) at para 17; Mgenge v Mokoena and Another 2023 JDR 0741 (GJ) at paras 48 –
49.
32 2019 (4) SA 50 (GJ) at para 35.
33 See Mokoena (supra ) at para 42.
34 Id at para 25 .
35 [2020] JOL 47138 (SCA) at para 27.
36 2015 JDR 2489 (GP) at para 11.
19
though the failure to register the marriage does not affect its validity, it simply
cannot be ignored that the RCMA prescribe s that the marriage must be
registered in three months. It is not a choice. It is a legislative prescript . The
question must then be asked, especially if registration is sought by one party
long after the fact , why this did not happen earlier, and for that matter, in time .
In the whole equation of deciding the validity of a customary marriage, this
cannot be ignored as if it does not exist. Why would the legislature prescribe
registration, in a specified time, if it meant nothing. In my view, and where one
spouse seeks registration or declaration of validity , no matter how one may call
it, long after the conclusion of the alleged marriage ceremony , that spouse must
explain why registration did not happen as prescribed , and this explanation
would weigh into the equation when deciding whether a valid customary
marriage exists . The case in casu actually illustrates the reason why I say this,
which I will deal with later.
[39] But it has to be emphasised that none of all the customary marriage principles
I have discussed above must be considered to be individually decisive. It must
all be considered in the balance , all factors applying . So, and for example , the
failure to pay the lobola where all the other requirements are satisfied , could be
seen not detract from t he validity of the customary marriage. The same would
for example apply to the ritual of handing over of the bride.37 As held in Tsambo
supra38:
‘It is evident from the foregoing passage that strict compliance with rituals has,
in the past, been waived. The authorities cited by the respondent, mentioned
earlier in the judgment, also attest to that. Clearly, customs have never been
static. They develop and change along with the society in which they are
practised. Given the obligation imposed on the courts to give effect to the
principle of living customary law, it follows ineluctably that the failure to strictly
comply with all rituals and ceremonies that were historically observed cannot
invalidate a marriage that has otherwise been negotiated, co ncluded or
celebrated in accordance with customary law. ’
37 Compare Tsambo (supra ) at paras 25 – 26.
38 Id at para 18.
20
[40] I venture to say that the application of the principles of customary law paints the
picture of a marriage transaction negotiated, agreed upon, and then perfected
by two families. Whilst a colour may be missing from the picture, the picture
may still present as such a marriage , and overall considered , must be treated
as such. This was aptly illustrated in Mbungela supra as thus:39
‘… for example, a woman could consent to a customary marriage, followed by
payment of lobola, after which she cohabited, built a home with her suitor, and
bore him children, with the full knowledge of his family. When the man died, she
and those children coul d be rejected and disinherited by his family simply on
the basis she was not handed over or properly introduced to his family and was
therefore not his lawful wife, and that the children were illegitimate. Needless
to say, that consequence would be incongr uous with customary law's inherent
flexibility and pragmatism, which allows even the possibility of compromise
settlements among affected parties …’
[41] Therefore , all the above said, and in terms of the evidence , properly considered
and determined , what do we have in casu ? On the common cause facts , there
was indeed a negotiation between two families about lobol a to be paid for the
applicant . But it remained in dispute as to whet her consensus was achieved in
this regard. There is also a dispute as to whet her lobola was actually paid.
When one then gets to the rituals, there are irreconcilable factual disputes . The
applicant says that the rituals took place, and there was a ceremony , pursuant
to which she was accepted into the family of N unga. The third respondent says
the opposite , and contends there were no rituals, no exchange of gifts, and no
marriage ceremony .
[42] Then there is the issue of cohabitation. There is no evidence that this ever
happened . The applicant has not even said in her founding affidavit that after
the ceremony , she moved in or remain ed cohabiting with Nangu, and they
resided together as husband and wife thereafter .40 There is no indication of
what came from this marriage, and how the applicant was treated by or
39 Id at para 28.
40 Compare Makhosine (supra ) at para 38; Songo v Minister of Home Affairs 2011 JDR 1386 (GNP) at
para 23.
21
integrated into the family of Nangu. It is true that the applicant and Nangu had
a child, but this child was born prior to the negotiations even started. In addition,
in this context, the third respondent has specifically said that the relationship
between the applicant and Nangu irretrievably soured before any negotiations
concluded and rituals happened , as she entered into a relationship with another
party, pursuant to which she conceived and gave birth to a child in 2016. The
third respondent also said that at the funeral of Nangu, which the applicant did
attend, she distanced herself from Nangu’s family. In her replying affidavit, the
applicant did not deal with any of these contentions by the third respondent .
[43] And finally, there is no explanation by the applicant as to why she took in excess
of 15 years to seek to validate / assert the alleged customary marriage with
Nangu. As opposed to this, the third respondent did proffer an explanation . That
explanation brought into question the applicant’s bona fides . The third
respondent contended that the applicant only became interested in asserting
her alleged customary marriage when Nangu became deceased , so she could
lay her hands on part of his estate. The timing of the brin ging of the application
does support this view. The applicant , in my view, needed to explain why it took
her fifteen years to seek to assert her marriage, and she certainly needed to
answer the concerns raised by the third respondent about her motives , on reply.
The point is that this conduct of the applicant is inconsistent with a couple that
was living together and conducting themselves as husband and wife.
[44] This only leaves the disputed facts about the conclusion of the lobola
negotiations , and the completion of the marriage rituals. Unfortunately for the
applicant , and as I have discussed above, this is where the application of the
Plascon Evans principles shipwrecks her case. Applying these principles , it is
my view that there is no reason why this matter should not be decided base d
on the version offered by the third respondent . I must say that the applicant’s
version in her founding is affidavit is somewhat bald and lacking in specificity.
In response to this kind of lacking version, the denials of the third respondent
cannot be paid to be bald and uncreditworthy to the extent that it should not be
accepted. In any event, as to the issue of the failure to conclude the lobol a
negotiations and the lobola not being paid, the exposition offered by the third
22
respondent is motivated, and makes sense. It cannot be rejected on the basis
of being palpably false or completely lacking in credibility. I must also mention
that the third respondent explained that a marriage ceremony is of ‘ esteemed ’
importance, yet the applicant has not produced a single photograph of the same
as would be expected , a contention the applicant never dealt with in reply.
[45] It is true that R4 000.00 was handed over by Nangu’s family to the applicant’s
family on 19 November 2006 at the negotiation on that date. But it remains
questionable whet her the amount in lobol a was finally agreed to. The third
respondent explained that the sum of R4 000.00 was a deposit handed over
pending final negotiation . The third respondent’s version is supported by two
confirmatory affidavits deposed to by two the Nangu family delegates that
attended and were directly involved in the negotiation . As opposed to this, the
applicant has offered no similar confirmatory affidavits by anyone involved in
this process. I must confess that I also find some substance in the third
respondent’s contention that the letter dated 24 November 2007 which
supposedly serves as proof that the balance of R10 000.00 of the alleged
agreed lobola of R14 000.00 was paid , was a fabrication. I say this because I
find it unli kely that the payment of the balance of lobola , where on the
applicant’s own version part payment had already been made on 19 November
2006, would take more than a year. It simply appears too long a period,
especially where there is pending marriage, and I believe this needed an
explanation from the applicant .41 Ordinarily, there is a relatively c lose temporal
nexus between even a part payment of the lobola and the actual marriage
ceremony , which is absent in this case . Then there are also the deficiencies in
the content of the letter , as explained by the third respondent , whose version,
as I have also said, must prevail. In the end, and as said in Makhosine v
Department of Home Affairs and others42:
‘... Failure to pay the balance of the lobola without an explanation for why this
was the case, could lead to an inference that the applicant was insufficiently
committed to the relationship. ...’
41 I mention that the th ird respondent stated that R4 000.00 was refunded .
42 2022 JDR 3317 (GJ) at para 24.
23
[46] In the end, the applicant’s case must fail for several reasons. First, she did not
establish the tenets of the customary law that would regulate her customary
marriage. Second, and even if the matter is considered on the basis of general
tenets established by judicial notice (as undesirable as this may be) , the
applicant has failed to prove these requirements have been met. This is
because on the facts, as must be accepted, the lobola negotiations had not
been co ncluded , lobol a had not been paid, and no marriage rituals, and in
particular a marriage ceremony, had taken place. Third, I am also convinced
that the applicant took up a relationship with someone else before the end of
the process , and she and Nangu never cohabited as hu sband and wife and
were never seen as such . And finally, the applicant’s lack of explanation why it
took her fifteen years to seek to assert the alleged customary marriage is telling,
especially considering it immediately followed the death of Nangu .
[47] It is perhaps appropriate , in the context of providing an illustration to the
contrary where it comes to the applicant’s case in casu , to refer to the following
dictum in Mbungela supra , where the Court held as follows, in finding that a
valid customary marriage was concluded :43
‘There is, in my view, sufficient evidence before us to resolve the issue with
relative ease. As indicated, the first appellant, in his own words, described the
successful lobola negotiations, the payment of a significant portion of the
amount agreed upon a nd a live cow, and the exchange of gifts by both families
as a combination of the two families. It is, therefore, not surprising and of great
significance that the couple's families subsequently sent representative
delegations to each other's burial ceremo nies, as in -laws. Furthermore, it is
striking that both the first appellant, who was rightly found an evasive and
unreliable witness, and Ms Mkhonza referred to the couple as husband and
wife during unguarded moments as they testified. These were patent Fr eudian
slips that truthfully indicated that they accepted that the couple was indeed
married. And it is not insignificant too that the deceased recorded Mr Mkabi as
43 Id at para 23 .
24
her husband in a valuable document which informed the world of her important
next of kin . …’
[48] And then, to provide a comparable example that is more akin the applicant’s
situation in casu , I believe the following extract f rom the judgment in Manwadu
supra is appropriate , where the Court decided that a valid customary marriage
was not proven:44
‘In summary, the respondent failed to adduce any admissible evidence of the
marriage ceremony and traditional customs having been observed. No
confirmatory affidavits were produced to confirm that the requirements of the
customary marriage were met. Her ref erence 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 dzipheletshedzi 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 marr iage 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’. …’
[49] Consequently, the applicant has faile d to make out a case for the relief sought
in her notice of motion. The applicant has fail ed to establish a proper factual
foundation for her case, which case in any event has no legal basis to support
it. The applicant’s application falls to be dismissed.
Costs
[50] This only leaves the issue of costs. The applicant was not successful .
Accordingly, and as a general principle, the third respondent should be entitle d
to costs. The fact remains that the applicant pursued an ill-advised course of
action where material factual disputes were always a real risk, and even when
44 Id at para 57.
25
this manifested itself, the applicant pushed on, nonetheless . And as discussed
above, the applicant, in my view, did not take the necessary proper steps to
substantiate her case, considering all the different nuances applicable to
customary marriages. I thus consider that a costs award against the applicant ,
on the party and party scale B, is justified .
[51] In the premises, I make the following order:
Order
1. The applicant’s application is dismissed .
2. The applicant is ordered to pay the third respondent’s costs, on the party
and party scale B.
_____________________
SNYMAN AJ
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
Appearances :
Heard on: 18 February 2025
For the Applicant : Ms S Nxumalo of SN & Associates Attorneys
For the Third Respondent : Advocate V Masinga
Instructed by: Chimera mombe Attorneys
Judgment: 28 March 2025