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THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT
CASE NO: 943 / 2023
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
DATE 17 June 2025
SIGNATURE
In the matter between:
N[...] R[...] M[...] APPLICANT
And
F[...] N[...] FIRST RESPONDENT
GOVERNMENT EMPLOYEES SECOND RESPONDENT
PENSION FUND
MASTER OF THE HIGH COURT THIRD RESPONDENT
NELSPRUIT
MINISTER OF HOME AFFAIRS FOURTH RESPONDENT
DIRECTOR GENERAL FIFTH RESPONDENT
DEPARTMENT OF HOME AFFAIRS
______________________________________________________ ___________
J U D G M E N T
_____________________________________________________ ____________
RATSHIBVUMO DJP:
Delivered : This judgment was handed down electronically by circulation to the parties'
representatives by email. The date and time for hand -down is deemed to be on 17
June 2025 at 08H00.
[1] Introduction.
Like sand through the hourglass , so are the days of our lives. With those words, a
popular soap opera that graced our televisions’ screens since 1965, would be
introduced . The truth about the phrase is that each one of us lives under the
shadows of this hourglass , not knowing how much sand remains in the upper bulb
thereof . The characters of this soap opera are so focused in falling in and out of
love, so much that they do not even take note when the sand from the upper bulb
of the hourglass is exhausted. That could be where soap opera derive d its name
from. When these characters are hooked in the pleasure and satisfaction that
comes with falling in and out of love , they become helpless , and taking care of the
sand in the hourglass is the last concern on their preoccupied mind s. It seems th is
soap opera is not far from the real-life drama that unfolded in this case .
[2] Once sand is exhausted from the upper bulb of the hourglass, it signals the end of
time. Like the characters referred to above who find themselves caught off -guard
when sand is finished in the hourglass, we often find ourselves least prepared for
the inevitable. Equally, n othing could have prepared Mr. L[...] M[...] (the deceased) ,
of the untimely death he met on 06 February 2023 , at the age of 43 , following a
motor collision that took place in the early hours, moments earlier . Without noticing
the ticking clock , he had gone about falling in and out of love not knowing that h is
fate, or that of his assets, would one day be decided based on his decisions to fall
in or out of love. Like with all of us, that fate would be determined while we rest
peace fully, with no voice to speak for us.
[3] Six years prior to his death, i.e. on 28 January 2017, the deceased sent emissaries
to the family of his sweetheart N[...] R[...] M[...] (the Applicant), to negotiate lobola
for their marriage (the first marriage). The negotiations were conducted in terms of
Bapedi and Swati custom, these being the tribes of the deceased and the
Applicant . Lobola for the Applicant was finally agreed between the two families at
R12 000.00 in cash and thirteen cattle. The cash part of lobola was paid there and
then, leaving the cattle to be delivered in the future. The marriage was celebrated
customarily, and the Applicant was handed over to the deceased to be his wife,
and the two lived together as husband and a wife. A child was born ou t of this
marriage being, TM. The marriage was however not registered with the
Department of Home Affairs until the passing on of the deceased.
[4] Two years after marrying the Applicant, i.e. in April 2019, the deceased met F[...]
N[...] (the First Respondent) and the two fell in love. Like a man who fell out of love,
he moved out of the home he shared with his wife, the Applicant , in order to stay
with the First Respondent, in her house . He never went back to his wife. On 23
November 2020, the deceased and the First Respondent signed into a civil
marriage that was solemnised at the Department of Home Affairs, Tonga (the
second marriage) .
[5] On 16 December 2021, the deceased sent emissaries to the family of the First
Respondent to ask her hand into a marriage and to negotiate lobola on his behalf.
After the negotiations, lobola was set at R20 000.00, being ten cattle each valued
at R2 000.00, which was paid right away. Thus, the deceased’s second marriage
was celebrated as both the civil and customary union. All these took place out of
the view of the Applicant as the deceased left her and did not return to her. As a
result, i t cannot be gainsaid that the Applicant did not consent to the second
marriage of the deceased. The decea sed’s marriage to the Applicant was also not
dissolved through a divorce decree. Based on th ese, the Applicant submits that the
deceased’s marriage to the First Respondent is unlawful and should be declared
void ab intio .
[6] Although the Applicant attended the deceased’s funeral, she played no role there in,
watching from the distance as his family accorded the widow’ status to the First
Respondent, who ascended to the seat of being a chief mourner. It goes without
saying that even the obituary reflected the First Respondent as the deceased’s
surviving spouse. The only relevance of th is is that the First Respondent submits
that the Court should consider these, as reasons enough to recognise her as the
only lawful wife of the deceased.
[7] The First Respondent submits that the application should be dismissed for the
reasons stated above . She further submits that although she did not know of the
deceased’s marriage to the Applicant, the court should consider it to have been
irretrievably broken down. According to her , this is evident from the fact that he
moved out of the common residence he shared with the Applicant, and that at the
time of his death, he was paying for maintenance of the child he had with the
Applicant through a court order. In the alt ernative, she submits that the deceased’s
two marriages, one to her and the other to the Applicant, should all be recognised
as customary marriages entered in terms of the Recognition of Customary
Marriages Act, no. 120 of 1998 (the Act) , in particular, section 7(6) thereof .
[8] Upon foreseeing a possibility that there could be benefits accruing to a spo use
from pension payout from the deceased’s pension contribution as held by the
Second Respondent, the Applicant launched Part A of the application under th e
same case number as the current application. In Part A of the application, which
was not opposed by either of the Respondents, the Applicant sought an order that
the Second Respondent should stop the payment of the deceased’s pension
benefits, pending the determination under Part B. The order under Part A was
therefore granted unopposed. Part B of the a pplication is as per paragraph 5
above. Part B is opposed by the First Respondent .
[9] Issues for determination.
The court must now determine if the deceased’s first marriage to the Applicant was
a valid marriage meeting all the requirements of a customary marriage in terms of
the Act. It should also determine if the second marriage by the deceased
invalidate d the first one . If the deceased’s first marriage remains valid, i t should
further be determined if his second marriage was valid , either in terms of the
Marriages Act , no. 25 of 1961 or under the Act. In making this determination, the
court would as such make a finding on whe ther the two purported marriages can
co-exist alongside each other in terms of any law and what their statuse s should
be.
[10] The applicable law.
Relevant parts of s ection s 3, 4, 7 & 8 of the Act provide as follows:
3. Requirement s for validity of custo mary marriages .—
(1) For a customary marriage entered into after the commencemen t of this
Act to be valid —
(a) the prospectiv e spouses —
(i) must both be above the age of 18 years; and
(ii) must both consen t to be married to each other unde r customar y law;
and
(b) the marriag e must be negotiate d and enter ed into or celebrate d in
accordanc e with customar y law.
(2) Save as provided in section 10 (1), no spouse in a customary marriage
shall be competent to enter into a marriage under the Marriage Act, 1961
(Act No. 25 of 1961), during the subsistence of such customary marriage.
…
4. Regis tration of customary marriages.—
(1) The spouses of a customary marriage have a duty to ensure that their
marriage is registered.
…
(9) Failure to register a customary marriage does not affect the validity of
that marriage.
…
7. Prop rietary conseq uences of customa ry marriages and cont ractual
capac ity of spouse s.—
…
(6) A husb and in a customary marriage who wishes to enter into a further
customar y marriag e with anoth er woma n after the commencemen t of this
Act must make an applicatio n to the court to approv e a written contrac t
which will regulat e the future matrimon ial prope rty syste m of his marria ges.
8. Dissolutio n of customar y marriages .—
(1) A customary marriage may only be dissolved by a court by a decree
of divorce on the ground of the irretrievable breakdown of the marriage.
[11] It is common cause that the deceased , the Applicant and the First Respondent
were adults who consented to the ir marriage s. They were as such compliant with
the provisions of section 3(1)(a) of the Act. The dispute is in respect of the
provision of section 3(1)(b) . It is further common cause that the first marriage was
negotiate d, celebrated and concluded in accordanc e with customar y law and was
thereby compliant with this section .
[12] The First Respondent claims that her marriage to the deceased was also
celebrate d in accordanc e with customar y law. To the exten t that the Applicant
did not consent to this marriage, there is dispute regarding this requirement . The
dispute is rather legal, as opposed to factual as both parties agree that the
Applicant did not consent to the First Respondent being married by the
deceased. The dispute lies in the legal consequences of the absence of such
consent. The First Respondent avers that according to Swati and Ba -Pedi
customs which were observed in lobola negotiations between her family and
that of the deceased, the Applicant’s consent was not required, for her to
conclude a valid customary marriage with the deceased. I will deal with the
consent aspect in detail s later in this judgment . It is imperative at this stage to
first consider the impact of a first marriage having irretrievably broken down as
alleged by the First Respondent.
[13] Nothing comes out of the argument to the effect that the deceased’s marriage to
the Applicant was irretrievably broken down. Even if this was a fact, it does not , on
its own, validate the purported later act of marriage. The fact that a marriage could
be irretrievably broken down only entitles the parties to that marriage to seek a
divorce decree which can only be granted by a court .1 If a party does not seek
divorce upon realising that his/her marriage is irretrievably broken down, he /she
1 See section 8 of the Act.
cannot claim and utilise the rights and benefits that accrue with being a divorcee ,
such as the right to enter into a new marriage.
[14] One of the obvious reason for this is that, u ntil such time that a divorce decree is
granted and an order is made regarding the division of joint estate, the assets in a
customary marriage remain the joint property of both the husband and the wife.2
Without such an order, the prospective new spouse inherit s the conundrum of
marrying a person whose assets comprise of a half portion of the undivided estate
as the other half belongs to his yet to be divorced spouse. Divorce on the other
hand, is not just the wishes of one party’s or his/her interpretation of the challenges
prevailing in a marriage at the time. It is an order made by the court after
considering submissions made by all the spouses .
[15] The impact of lack of consent by the first wife .
Is the consent of a first wife a requirement for the validity of subsequent marriages
that her husband may conclude ? It is not the first time that this question begs the
engagement of the courts. Over ten years ago, the Constitutional Court grappled
with this aspect in a matter of Mayelane v Ngwenyama and Others3. In that matter,
just like in casu , the question was over the validity of a second marriage concluded
by a husband and another woman, without the consent of the first wife.
[16] As it’s often the case, this question usually demands the courts’ attention after the
demise of the husband The survivors were battling over the assets he left behind,
when sand stops dropping, through the hourglass. There is therefore no need to
restate the background regarding the customary practices by various tribes and
clans regarding the role of a senior wife in the later marriages of her husband in
this judgment. T his was fully dealt with by the Constitutional Court , with the
involvement of the experts and traditional leaders.
2 See section 7(2) of the Act which provides that “a customary marriage in which a spouse is not a
partner in any other existing customary marriage, is a marriage in community of property and of
profit and loss between the spouses, unless such consequences are specificall y exclu ded by the
spouse s in an antenuptia l contrac t whic h regulate s the matrimonia l propert y syste m of their
marriage.”
3 2013 (4) SA 415 (CC) .
[17] In balancing the customary practices against the constitution and the human rights
enshrined in it, the Constitutional Court asked, “ [A]re the first wife’s rights to
equality and human dignity compatible with allowing her husband to marry another
woman without her consent? We think not. ”4 It went on to reason as follows in
paragraphs 72 -74 and 85 of that judgment :
“72. Second, where subsequent customary marriages are entered into
without the knowledge or consent of the first wife, she is unable to
consider or protect her own position. She cannot take an informed
decision on her personal life, her sexual or reproductive health , or on the
possibly adverse proprietary consequences of a subsequent customary
marriage. Any notion of the first wife’s equality with her husband would
be completely undermined if he were able to introduce a new marriage
partner to their domestic life without her consent .
73. Third, the right to dignity includes the right -bearer’s entitlement to
make choices and to take decisions that affect his or her life – the more
significant the decision, the greater the entitlement. Autonomy and
control over one’s personal circumstances is a fundamental aspect of
human dignity.5 However, a wife has no effective autonomy over her
family life if her husband is entitled to take a second wife without her
consent. Respect for human dignity requires that her husband be obliged
to seek her consent and that she be entitled to engage in the cultural and
family processes regarding the undertaking of a second marriage.
74. Given that marriage is a highly personal and private contract, it would
be a blatant intrusion on the dignity of one partner to introduce a new
member to that union without obtaining that partner’s consent.
85. The finding that the consent of the first wife is a necessary dignity and
equality component of a further customary marriage in terms of section
3(1)(b) of the Recognition Act means that, from now on, further
customary marriages must comply with that consent requirement. A
subsequent marriage will be invalid if consent from the first wife is not
obtained .” [My emphasis ].
4 Mayelane (supra ) at paragraph 71.
5 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para 57.
[18] The First Respondent’s reliance on the earlier ruling in which the Supreme Court of
Appeal (the SCA) had declared a second marriage concluded without a consent of
the first wife as valid, is not helpful to her cause. As the Constitutional Court
pointed out, in making that declaration, the aspect of lack of consent by the first
wife was not dealt with by the SCA.6 That declaration was based on section 7 of
the Act which provides for the matrimonial regime of a marriage. The SCA correctly
held that the f ailure to acquire a court order allowing a husband to marry a second
wife, as required by section 7, does not affect the validity of a second customary
marriage, but the matrimonial regime that would be applicable to it. The question of
lack of consent by the first wife was therefore not dealt with by the SCA. It was for
that reasons that the declaration by the SCA was set aside on appeal to the
Constitutional Court.
[19] This Court was also referred to Molokane v Williams and Others7, a judgment by
the Gauteng Division, where Malungana AJ declared a second marriage concluded
by the deceased as valid, irrespective of the contestation by the first wife that she
had not consented to it. I am of a view that Molokane was wrongly decided for the
following reasons. The court did not deal with the aspect of lack of consent of the
first wife, and the consequences thereof, even though the same was pleaded by
the first wife . The only time that the lack of consent was ever mentioned in the
judgment , was when the court was dealing with the summary of issues before it. It
did not pronounce itself on those issues in the judgment. Lastly, it is not apparent
from the judgment if the court was aware of the Constitutional Court judgment of
Mayelane as it only referred to the earlier judgment by the SCA and on a different
subject, which involv ed the matrimonial regime applicable in respect of the second
marriage.
[20] The First Respondent also submitted in the alternative, that the second marriage
should be accorded an equal status of a customary marriage , as the first one . In so
doing, she relied on Zwane v Z wane and Others8, a judgement by th is Division in
which the court had to consider the status of the decease d’s marriages to three
6 See paragraph 8.3.3 of the First Respondent’s heads of argument.
7 [2023] ZAGPJHC 1210 (24 October 2023) .
8 (2362/2021) [2024] ZAMPMBHC 25 (11 March 2024) .
women. In Zwane , the deceased’s marriage to his second wife was concluded in
terms of the Marriages Act , no. 25 of 1961 , whereas his first and third marriages
were customary marriages. In that matter, the court declared that all the three
marriages were customary marriages, thereby accord ed them equal status in
respect of their share from the deceased’s estate.
[21] The Zwane judgment cannot afford any refuge to the First Respondent’s
predicament . Her plight is that she married the deceased without the Applicant’s
consent. In Zwane , the deceased’s marriage s to the two women married after his
first marriage, were with the permission of the first wife , something that
distinguishes her plight .9 Further submission to the effect that the obituary of the
deceased read at his funeral mentioned the First Respondent as the only wife or
that she was the chief mourner who was allowed to sit on a mattress by the family
is irrelevant and a non-starter . The fact that the deceased and the First
Respondent lived together as husband and a wife does not take the argument any
further . Living like a married couple does not validate the second marriage in view
of the deceased having not divorced the Applicant or acquired her consent into
marrying another wife.
[22] It follows therefore that the deceased’s marriage to the First Respondent is invalid
and has to be declared as such.
[23] The Order:
For the aforesaid reasons, I make the following order :
23.1 It is declared that the Applicant (N[...] R[...] M[...] ) was married to the late
L[...] D[...] M[...] (the deceased) with identity number 7[...], which marriage
was concluded on 28 January 2017 in terms of customary law .
23.2 It is declared that the marriage between the First Respondent and the
deceased is invalid and unlawful.
23.3 The Fourth and Fifth Respondents are hereby directed to register the
Applicant’s customary marriage to the deceased and to furnish her with the
marriage certificate.
9 See Zwane (supra ) at paragraph 7.
23.4 The Third Respondent is ordered to recognize the Applicant's customary
marriage to the deceased.
23.5 The First Respondent is ordered to pay the costs of this application.
TV RATSHIBVUMO
DEPUTY JUDGE PRESIDENT
MPUMALANGA DIVISION OF THE HIGH COURT
APPEARANCES:
FOR THE APPLICANT : ADV. MJ MACHABA
INSTRUCTED BY: MABOKU MANGENA ATTORNEYS
INC
MBOMBELA
FOR THE FIRST RESPONDENT : ADV. M MAGAGULA
INSTRUCTED BY : SIMELANE -MTHEMBU H JG INC
MBOMBELA
DATE HEARD : 29 MAY 2025
JUDGMENT DELIVERED: 17 JUNE 2025