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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: MTHATHA)
CASE NO: 3932/2024
REPORTABLE
In the matter between:
N[...] N[...] First Applicant
S[...] N[...] Second Applicant
L[...] N[...] Third Applicant
N[...] N[...] Fourth Applicant
and
B[...] N[...] First Respondent
THE MINISTER OF HOME AFFAIRS Second Respondent
THE DIRECTOR GENERAL: DEPARTMENT
OF HOME AFFAIRS Third Respondent
THE MASTER OF THE HIGH COURT, MTHATHA Fourth Respondent
EXECUTOR ESTATE LATE V[...] N[...] Fifth Respondent
_____________________________________________________________________
JUDGMENT
___________________________________ __________________________________
MHAMBI AJ
[1] This case deals with an important aspect in legal jurisprudence, the question is
how a customary marriage is dissolved. This judgment answers the question of
whether the desertion of the matrimonial home by either of the spouses dissolve s the
customary marriage. In order to answer the question raised in this judgment regard had
to be to the provisions of the Recognition of Customary Marriages Act.1
[2] The salient facts of this case are as tabulated hereunder.
[3] The applicants seek, in the main , for an order that a civil marriage between the
first respondent and the late V[...] N[...] , “the deceased ”, be declared to be null and
void. The other reliefs or orders are ancillary to the main one, it goes without saying that
if the application succeeds in respect of the main order sought, the ancillary orders will
be granted as this court deems appropriate to do so.
[4] The first applicant is the customary wife of the dec eased, having married the
deceased during 1978 by customary rites. It appears from the founding affidavit that the
emiss aries from the deceased family were sent to the first applicant’s family for lobola
negotiations. According to the first applicant, who has deposed to the founding affidavit,
the following was paid as lobola: -
1 Recognition of Customary Marriages Act 120 of 1998
a) Seven live cows,
b) R10 cash, known as uswazi,
c) R15 cash, known as imvula mlomo ;
d) R20 cash, known as isazimzi;
e) R20 cash, known as igqeshe.
[5] According to the first applicant, all those who were emissaries had predeceased
her, however, the deceased younger brother, Phumzile Ngcwetshe, and one Nomb asa
Vava, who is the headwoman of the administrative area had witnessed the handing over
of the first applicant by her f amily to the deceased family. Both have deposed to the
confirmatory affidavit agreeing to this fact.
[6] The first applicant further alleges that customary ceremony was performed to
welcom e her as the deceased bride, and she was given the name “ N[...] ”. Out of the
customary marriage between the first applicant and the deceased, the second, third and
fourth applicant s were born, and the late M [...] N[...] , who predeceased all the parties to
this application.
[7] The first applicant and the deceased separated with each other during 1998,
whilst the deceased was working at the Welkom mines. The cause of separation is not
stated in the papers. It is apposite to state that the customary marriage between
the deceased and the first applica nt was not registered until the deceased death, during
24 October 2023.
[8] The first applicant alleged that when she approached the offices of the
Department of Health, for the purposes of late registering the customary marriage she
had with the deceased , she was informed that the deceased is married by civil marriage
with the first respondent . The civil marriage between the deceased and the first
respondent was allegedly registered on or about 11 November 2017. According to her,
it is only then that she knew of the civil marriage between the deceased and the first
respondent.
[9] The first applica nt alleges that she did not give the deceased consent to marry
the first respondent, the civil marriage between the deceased and the first respondent
was registered despite the existence of the customary marriage she had with the
deceased.
[10] This application is opposed by the first respondent. She has filed an answering
affidavit. The summary of her averments in the answering affidavit may be summarized
as appearing hereunder: -
[11] The first respondent stated that she fell in love with th e deceased in 1999 during
the same year the deceased visited her home in Swaziland. According to her culture,
the deceased was made to pay for a black and white heifer before he can be allowed to
marry her. The deceased paid for the cow.
[12] The first respondent stated that she was advised by the deceased, he no longer
has a wife, as he , (the deceased) , expelled the first applicant, by that time the deceased
was working at Beatr ix Mine, in Welkom.
[13] During 2022, the first respondent was welcomed by the deceased family as a
bride, a traditional bride welcoming ceremony was performed, and she was named,
“N[...]”. She alleged that most of the deceased family members were present at her
welcoming ceremony. Because she was pregnant, she moved to Virgini a with the
deceased.
[14] It appears from first respondent ’s answering affidavit th at three children were
born out of the civil marriage with the deceased. She avers that the deceased phoned
the first applicant in her presence to advise that he , (the deceased) , has taken a wife,
and thereafter he phoned the sisters of the deceased .
[15] She alleged that, during 2011, she together with the deceased sought for a site,
they built a two roomed structure, in which she stayed together with the decease d until
the deceased s death in 2023, November . The deceased died tragically by shooting
himself without leaving any suicidal note.
[16] The first respondent avers that some of the deceased family members went to
the first applicant’s home to fetch her to mourn for the deceased, indeed the first
applicant mourn ed for the deceased. The averments by the first respondent have not
been confirmed by any family members of the deceased. The averments by the first
respondent are not supported by any confirmatory affidavit, unlike those of the first
applicant.
[17] Our legal jurisprudence is r ich in case law and text books, etc. with regard to the
recognition of customary law. In the paragraphs below, I deal with summary of legal
position relating to customary law.
[18] Certain provisions of the Constitution put it beyond doubt that our basic law
requires that customary law should be accommodated, not merely tolerated, as part of
South African Law, provided the particular rules or provisions are not in conflict with the
Constitution. Section 30 and 31 of the Constitution2 entrench the respect of cultural
diversity. Further, Section 39(2) specifically requires a court interpreting customary law
to promote the spirit, purport and the objects of the Bill of rights. In similar vein, Section
39(3) states that the Bill of rights does not deny the existence of any other rights and
freedoms that are recognized or conferred by customary law as long as they are
consistent with the Bill of Rights . Lastly, section 211 protects those institutions that are
unique to customary law. It follows from this that customary law must be interpreted by
the courts, as first and foremost answering to the contents of the Constitution. It is
protected by and subject to th e Constitution in its own right.
2 The Constitution of the Republic of South Africa, 1996
[19] The position of customary law was affirmed by the Constitutional Court in Alexkor
Ltd and Another v Richter sveld Community and Other ,3 the court held that: -
‘While in the past indigenous law was seen through common l ens, 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 the
reference not to common law, but to the C onstitution ’
[20] Langa DCJ, as he then 4was, affirmed the position of customary law in Bhe V
Khayelitsha Magistrate as follows: -
‘Quite clearly the Constitution itself envisages a place for customary law in our
legal system. Certain provisions of the Constitution put it beyond doubt that our
basic law specifically requires that customary law should be accommodated not
merely tolerat ed as part of South Africa Law, provided the particular rules or
provisions are not in conflict with the Constitutio n.’ Own emphasis added).
Langa DCJ goes on to say: -
‘It bears repeating, however, that as with all law, the Constitutional validity of
rules and principles of customary law depend on their consistency with the
Constitution and the Bill of Rights ’.5
[21] The Recognition of Customary Marriages Act6, “RCM A”, is the product of this
Constitutional Court affirmation of recognition of customary law.
[22] The RCM A defines Customary Law as: -
3 [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 CC at para 51. See also Mabu za v
Mbatha 2003 (4) SA 218 ( C), 2003 (7) BCLR 743 (C) at para 32.
4 2005 (1) BCLR 1 (CC) para 41
5 See para 46 of Bhe
6 Supra at footnote 1
‘The customs and usages traditionally observed among the indigenous African
people of South Africa and which form part of the culture of those people. ’7
RCMA defines customary marriage as: -
‘a marriage concluded in accordance with Customary Law8’.
[23] Section 2 of the RCM A deals with the recognition of customary marriages , for the
purpose of this case, I will deal only with Subsection 1 of Section 2, which states: -
2.
(i) ‘A marriage which is a valid marriage at Customary Law and
existing at the commencement of this Act is for all purposes recognized as a
marriage ’.
Section 3 of the RCM A deals with th e requirements for validity of customary
marriages. Subsection 1 of Section 4 puts a duty on the parties to ensure
registration of their ma rriage for the purpose of this case I will specifically deal
with Section 4, Subsection 3, which states that: -
4. (3) A Customary Marriage: -
a) entered into before the commencement of this Act, and which is not
registered in terms of any other law, must be registered within a period of twelve
months after that commencement or within such longer period as the minister
may from time to time prescribe by notice in the Gazzette ; or
This Subsection is sufficient for the facts of this case. Section 8 deals with
dissolution of customary marriage, and states that: -
8.(i) “A Customary Marriage may only be dissolved by a court by a decree of
divorce on the ground of irretrievable broken down of the marriage ”.
7 Section 1 of the RCM A
8 Section 1 of the RCM A
[24] It is a matter of fact that the customary marriage between the first applicant and
the deceased was not registered u ntil the death of the deceased. The first respondent
does not in her answering affidavit, dispute that the first applicant was married to the
deceased before her civil marriage with the deceased. It is again a matter of fact and
the law that non re gistra tion of customary marriage does not nulli fy the customary
marriage.
[25] The crux of this application is whether the marriage between the first applicant
and the deceased was dissolved before the deceased married the first respondent .
[26] Both parties have not alleged in their papers, the custom or indigenous law
applicable in their scenarios, and have both not put this court into clear picture on how
customary marriage is dissolved according to their customs. The first applicant has only
averred that she was in separation with the deceased, the first respondent having
alleged that the deceased telephonically informed the first applicant that he had taken
another wife, and that she was informed by the deceased that he expelled the first
applicant, that was before the civil marriage was concluded. This court therefore has to
consider the provisions of the RCM A in relation to the dissolution of a customary
marriage.
[27] The primary question is whether customary law applies to the facts of t his case, I
find, it applies, in that regard this legal controversy between the parties has to be
determined in terms of the RCM A.
[28] This court is mindful of the dynamic nature and constant evolvement of
Customary Law. The following need to be stress ed when this court applies customary
law:-
[29] In Tsambo9 the Supreme Court of Appeal remarked: -
9 Tsambo v Sengadi (244/19) [2020 ] ZASCA 46 30 April 2020, at para 15
‘When dealing with customary law, it should always be borne in mind that it is a
dynamic system of law ’10.
‘customs have never been static. They develop and change along with the
society they are practiced ’.
[30] In Alexkor11 the Constitutional Court gave the following guidance:
‘In applying indigenous law, it is important to bear in mind that, unlike common
indigenous law is not written. It is a system of law that was known to the
community practiced and passed on from ge neration to generation. It is a
system of law that has its own value and norms. Throughout its history it has
evolved and developed to meet the changing needs of the community. And it will
continue to evolve within the context of its values and norms con sistently with the
Constitution.
Without attempting to be exhaustive, we would add that indigenous law may be
established by reference to writers on indigenous law and other authorities and
sources, may include the evidence of witnesses if necessary. However caution
must be exercised when dealing with textbooks and old authorities of the
tendency to view indigen ous law through the prism of legal conceptions that are
foreign to it… ’
[31] In Mbungela12, Maya P , as she then was, provided guidance on the manner in
which content is to be given to section 3(1) (b) of the Recognition Act.
‘“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 to meet the changing needs of the people 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
10 Tsambo at para 18
11 Alexkor at paras 53 to 54
12 Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA)
concerned. As this court has pointed out, although the various African cultures
generally observe that same customs and ritual s, 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 s3(1)(b) in accordance with their lived
experiences .’
[32] After having considered the provisions of the RCM A the facts presented by the
Applicant, I am satisfied that the first applicant and the deceased concluded a val id
customary marriage. If find that the spousal consent, in t his case, first applicant was not
necessary when the deceased married the first res pondent as that marriage was
registered as a civil marriage, the provisions of the RCM A relating to spousal consent
before conclusion of 2nd or other customary marriage, is not applicable in this case, as
the 2nd marriage was a civil marriage between the deceased and the first respondent.
[33] The validity of the 2nd marriage, between the deceased and the first respondent
depends on wh ether the first marriage, customary marriage between the deceased and
the first applicant was dissolved or not.
[34] The RCM A is clear that a Customary Marriage is dissolved by a court by a
decree of divorce. Absent decree of divorce issued by a competent court a customary
marriage subsists and remains valid. In this case there is no decree of divorce
dissolving the bo nds of customary marriage between the deceased and the first
applicant. Clearly, the customary marriage does not dissolve because the parties to it
feel it is irretrievable broken down, it is the court that must be satisfied, having
considered relevant fact ors, that the relationship between the parties has reached such
a stage of disintegration that there is no reasonable prospect of restoration to the
normal marriage relationship between them, whereafter the court issues the decree of
divorce.
[35] In Mphosi v Mph osi13, the court held that: -
‘……. to require of the spouses to dissolve their subsisting customary marriage
by [a] decree of divorce, as provided for in Section 8, before they may enter into
a civil marriage on the ground of irre trievable break d own of the marriage
relationship between them, which is the only basis upon which the customary
marriage, in Casu, may be dissolved where there is no such break down, is
simply absurd and against clear meaning of Section 10)1) ’
[36] My emphasis is that th e Mph osi case stresses that the decree of divorce Is
required by Section 8 of the RCM A is the only basis upon which customary marriage
may be dissolved.
[37] The authorities are clear that even desertion or adultery, is not a blameworthy
conduct to render dissolution of a customary marriage, it merely is a reason for marital
breakdown. Recently , the North Gauteng High Court in MBM v MG14, the court held
that: -
‘The plaintiff brought to the attention of this court the judgmen t in Swart v Swart15,
as the Judge held in that case adultery and desertion in certain instances merely
may be symptoms and not the cause of the marriage breakdown and that
conduct cannot be considered blameworthy . (emphasy added and all footnote s
omitted) ……. Simply put, Section 8(1) of RCMA is clear in that it is only the
courts that are empowered to dissolve the marriage and not the defendant’s
mere desertion of the marital home …………… ’.
[38] Consequently , I disagree with the first respondent th at the first applicant ’s
desertion o f the marital home, co upled with the alleged expulsion by the deceased and
lastly , the alleged telephone call advice by the deceased in front of the first respondent
13 1142/2014 (29 November 2018), unreported judgment by Limpompo Division of the High Court.
14 (2023/ 126 365) [2025] ZAGPJHC 137 (27 March 2025) at para 20, unreported judgment.
15 2011(1) SA 545 (GHP)
that the deceased has taken her as the wife, does not at all render dissolution of the
marriage between the deceased and the first respondent.
[39] I now turn to deal with the status of the civil marriage between the deceased and
the first respondent.
[40] The SCA has rendered the Civil Marriage a nullity when concluded by a partner
during the subsistence of a Customary Marriage. Petse AJA, as he then was, in
Rudzani Netshituka v Joyce Munyadizwe Netshituka16, held that: -
‘In Thembisile v Thembisile,17Bertelsmann J held that a civil marriage co ntracted
while the man was a partner in an existing customary union with another woman
was a nullity. It was not argued in this court that Thembisile was wrongly
decided. It follows that the civil marriage between the deceased and the first
respondent, h aving contracted while the deceased was a partner in existing civil
customary union with Tshinakaho and Diane, was a nullity ’.
[41] I have assessed the conflicting versions of the parties, and considered the
admitted facts, I find the version of the first applicant, supported by the deceased
brother and the headwoman, credible to the extent that the deceased and the first
applicant mar ried by customary law, and that marriage subsisted until the death of the
deceased. I reject the version of the first respondent ; it lacked corroborative evidence
on dissolution of the marriage between the deceased and the first applicant .
Consequently , I find the civil marriage between the deceased and the first respon dent to
be a nullity, on the basis that it was contracted during the subsistence of customary
marriage between the deceased and the first applicant .
I see no basis why costs should not follow the result, as this is a general principle.
16 2011 (5) SA 453 at para 15
17 2002 (2) SA 209 (T)
42. In the result the following order issues: -
ORDER: -
1. The civil marriage contracted between th e first respondent and the
deceased, V[...] N[...] , is declared to be null and void ab initio .
2. It is declared that the first applicant and the deceased, V[...] N[...]
concluded a valid customary marriage.
3. The third Respondent is directed to register the customary marriage
between the first applicant and the deceased, V[...] N[...] within fifteen days,
from the date of service of this order, together with completion of the
documents necessary for that p urpose.
4. The fourth and fifth respondents are ordered and directed to proceed with
the administration and distribution of the deceased estate, taking into
account the first applicant as the wife of the deceased, and the second,
third and fourth applicant s as the deceased children.
5. The first respondent is directed to pay costs of this application on scale A
of the uniform rules 67 A.
____________________________
M. MHAMBI
JUDGE OF THE HIGH COURT (ACTING)
Date heard : 12 December 2024
Date delivered : 05 June 2025
APPEARANCES: -
Mr M dubela : Counsel for the Applicants
Instructed by: V. Funani Attorneys
3 Phyllis Court
49 Cumberland Street
Mthatha
Mr Dyantyi : Attorney for the 1st Respondent
Instructed by: Legal Aid South Africa
Mthatha Office
PRD Building
Mthatha