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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 23272/24
In the matter between
ZUKISWA NJWAXU Applicant

AND

THE MINISTER OF HOME AFFAIRS 1st
Respondent
THE DIRECTOR -GENERAL: DEPARTMENT OF HOME 2nd
Respondent
AFFAIRS
THE MASTER OF THE HIGH COURT, CAPE TOWN 3rd Respondent
Heard: 30 April 2025
Delivered: 29 July 2025
__________________________________________________________________

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JUDGMENT
__________________________________________________________________
THULARE J
ORDER
(a) The issue of the registration of the marriage is remitted back to a registering
officer at the Department of Home Affairs.
(b) The Director -General of DHA is directed to appoint a re gistering officer
within 5 business days of this order.
(c) The registering officer shall enquire into the existence of the alleged
customary marriage and decide thereon on or before Friday 26 September
2025. The enquiry shall include but not be limited to, the immediate family
members of the deceased Mzwandile, including his paternal aunts and
maternal uncles if any , as well as the friends and neighbours to which the
applicant referred to in her application before this court as well as the
immediate family members of the applicant including her paternal aunts and
maternal uncles if any.
(d) The registering officer may consider expert evidence.
(e) Should the registering officer refuse to register the alleged marriage after the
enquiry, the applicant shall set the matter down on notice to Mzwandile’s
immediate relatives , in particular those who but for the applicant and her
son, would have been his heirs in intestate succession, for oral evi dence in
continuation of the investigation by this court , such date of set down to be
arranged with Thulare Js secretary.

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(f) Should the registering officer refuse to register the alleged marriage after the
enquiry, he/she/they shall file the full record of their enquiry with the
registrar of this court within 10 business days of such refusal.
(g) The first and second respondents , jointly and severally, the one to pay the
other to be absolved, to pay the costs.
(h) The decision on the Master is held in abeyance pending the enquiry by the
registering officer or t he investigation by this court , whichever brings
finality to the applicant's application.

[1] In an unopposed application for default judgment the applicant sought an order
that the Minister and Director -General of Home Affairs be directed to accept and
recognize posthumously registration of the alleged applicant and late Mzwandile
Komsana's customary marriage as a customary marriage in terms of sections 2(1)
and 4(7) of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of
1998) (the RCMA); to register the marriage between the two as a valid customary
marriage in terms of the RCMA; to issue the applicant with a marriage certificate
within 14 days of the date of such order; an order directing the Master to register
the estate of the late Mzwandil e and appoint the applicant as the executrix of that
estate and costs in the event of opposition.

[2] The applicant's case was that she met Mzwandile in 2010 in Cape Town. Very
soon after their first meeting the y became romantically involved. She was 27 and
he was 26 years of age. Mzwandile lived with his brother at the time. After a few
months Mzwandile moved in to live with her and her son. After two years he said
that he wanted to marry her and spoke to her brother also named Mzwandile . In

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December 2013 both went to their different homes in the Eastern Cape. Whilst in
Eastern Cape Mzwandile asked her to visit his family, where he introduced her to
his father, two brothers and two sisters. She did not know that he planned to marry
her that day. His father introduced her to the whole family, friends and neighbours.
His father called her father and told him that his daughter was safe and was now
part of the Komsana family. The following day Mzwandile's father called her
father and lobola negotiations began. The Komsana 's slaughtered a sheep which
was prepared and all ate. They gave her traditional clothes which was a traditional
dress, a black and white dookie and a blanket and she then became a makoti, the
wife of Mzwandile. Mzwandile's family paid R20 000 to her father. The y had to
pay a balance of R30 000-00 which Mzwandile could not afford at the time. Five
cows were to be given to her family but there were logistical concerns in
transporting the cows to her mother's house. The fathers agreed to abandon this
part of the agreement as her home was too far , and w hat remained outstanding of
the lobola was the R30 000-00. Mzwandile's family accepted her, and she was
given the name As akhe, which meant they w ere to build a home together. They
were regarded as married according to custom . After a week they returned to Cape
Town.

[3] They struggled to have children and received treatment at the local clinic to
assist them. Mzwandile worked as a security guard, and she worked as a technician
and both worked shifts. Years later , in 2015, they went to Home affairs to register
their marriage . They waited in a long queue only to be told that Home Affairs
moved to a new system and they could not register their marriage that day. They
had to book to register . She did not recall what happened and they did not book a
date. They worked, supported each other financially and tried to get healthy for

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conception. They had every intention to register the marriage but did not. They
stayed together in rented accommodation for 13 years from 2010 to 2023. They
bought a house in Khayelitsha in 2023 and lived in it together as husband and wife
with their son , who Mzwandile accepted as his own. Mzwandile died in a car
accident on his way from work on 6 July 202 4. When she tried to register the
deceased estate at the Master's Office in Cape Town she was told to get an attorney.
When the attorney approached the Master, the Master advised that she approach
the Department of Home Affairs (DHA) to register the marriage first before they
could proceed. She approached DHA in Khayelitsha on 4 September 2024, and the
manager there told her that the department which dealt with customary marriages
was permanently closed in all branches and they did not know when it would open.
DHA could not assist her.

[4] All the institutions where Mzwandile held interests required a marriage
certificate and letter of authori ty to assist her. This included his pension fund and
the bank's home loan division . Mzwandile Njwaxu deposed to a supporting
affidavit where he simply said that he had read the applicants affidavit and
confirmed the contents thereof as correct in so far as it related to him. Sanelisiwe
Komsana, on 29 July 2024 deposed to an affidavit where she identified Mzwandile
as her brother and declared that the applicant w as customarily married to
Mzwandile in 2013. In her affidavit the applicant alleges that whilst Sanelisiwe
initially assisted her, she did not assist her any more, and that Mzwandile 's family
did not want to have anything to do with her and her son. The applicant also has a
supporting affidavit by one Thandolwethu Komsana, who alleged that Mzwandile
was his mother’s brother and that he at times lived with Mzwandile . He stated that
Mzwandile married the applicant on 25 December 2013 and that since then the

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applicant and Mzwandile lived together as husband and wife unti l his death. The
applicant in a supplementary affidavit appended two copies of policies wherein she
appears registered as the spouse of Mzwandile.

[5] Section 4(7)(a) of the RCMA provides as follows:
4 Registration of customary marriages
(7) A court may, upon application made to that court and upon investigation instituted by that
court, order-
(a) the registration of any customary marriage;

[6] There are two major concerns with the path of travel of this application on its
way to court. The first is that there was no investigation and pronouncement by a
registering officer at DHA. The Minister and the Director -General elected to abide
the decision of the court. In the absence of countervailing evidence from DHA, I
must accept that DHA closed an internal department that deals with the registration
of customary marriages permanently in all branches and its branch manager in
Khayelitsha did not know when these departments will open. The applicant, and by
extension persons who have uncertain or disputed customary marriages, in the
main African vulnerable women, which disputes had the tendency to impact
adversely on the welfare and in particular inheritance of those vulnerable women
and children, were left unattended in their hour of need, by DHA. The Minister and
Director-general of DHA need to lead that required public service with conviction,
vision and credibility. In a matter like the present, with the serious allegations
made by the applicant, to wit, that she was denied a statutory public service to
which she was entitled, silence was not an option for the Minister and the Director-

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General. Whoever advised them to put their heads in the sand and pray for the
issue of such national importance to disappear , needed to explain themselves. It is
shocking that a Minister and a Director -General would have no response to an
allegation by an emotionally and financially distressed alleged widow that the
Department they provide political oversight over and lead, respectively, failed to
provide her with a public service that the Department was constitutionally obliged
to provide. It seems to me that an answer to Parliament may be called for , unless
Parliament saw nothing wrong with w hat seems to be a condescending attitude to
customary law and customary marriages. If DHA did what was its duty, and
enquired into the marriage and ma de a decision, it may be that the application to
court would not have been necessary , and the applicant would have been spared
high costs of High Court litigation.

[7] The second concern also ties in with and extends the first. There is always a
risk of a customary marriage being polygamous. The applicant said nothing about
this risk. The papers are silent as to whether there would be other heirs of the
deceased by affinity , or through procreation. This leads me to the need for the
courts to consider the role of the family in the contract of a customary marriage. It
is not clear why the applicant elected not to cause the application to be served on
the available family members of Mzwandile. In Reform of Customary Marriage,
Divorce and Succession in South Africa, Living Customary Law and Social
Realities, Summary Research Report by Chuma Himonga and Elena Moore , page
15, 3.1.5, the authors said:
“3.1.5 The role of the family in the contract of marriage
It is evident from both the court decisions reviewed and the practices of people on the ground
that meeting the requirements of a customary marriage under the RCMA involves not just the

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prospective parties to the marriage but their families as well. The involvement of the families is
central to the negotiation of the marriage, particularly with regard to lobolo and the handing over
of the wife to her husband’s family. The predominance of the family and the greater role played
by it in the marriage negotiation than by the parties to the marriage is also evident from cases in
which neither of the prospective spouses took part in the negotiation of their marriages, leaving
the whole process to their families or elders. '
At page 16 para 3.1.7 the authors continued:
'3.1.7 Broader strategies for proving the existence of customary marriages
The findings of this study on the way marriages are negotiated in practice, particularly with
regard to the involvement of the family, suggest that the Department of Justice (through the
Bench Book) should direct the courts to pay particular attention to the involvement of the
families of the parties in issues concerning proof of a valid marriage. Furthermore, if the court
took account of the public nature of the marriage, they could call upon a wider range of
witnesses to validate the existence of the marriage. '

[8] This matter required a member of staff in DHA who was skilled in registering
customary marriages, who understood the requirements for registering customary
marriages. It required a registering officer who also understood the role of a
registering officer, including the responsibility to enquire into the existence of a
marriage upon application by the person in the position of the applicant. Upon such
enquiry and if the registering officer was not satisfied that a valid customary
marriage was entered into by the spouses, he or she must refuse to register the
marriage. It is not clear whether DHA did not have available registering officers, or
its registering officers were not trained. In this matter, there is no record of a
refusal of a registering officer to register the applicant’s alleged marriage. In fact,

refusal of a registering officer to register the applicant’s alleged marriage. In fact,
DHA by its conduct denied the applicant an opportunity to apply to it for the
enquiry.

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[9] Under the circumstances , it is necessary that the investigation of this court ,
which inherently is an inquiry to establish the truth and carry out research into a
subject, must include referral of the matter back to DHA for a marriage officer to
be appointed and for such marriage officer to amongst others comply with the
provisions of sections 4(5) and (6) of the RCMA. It seems to me that DHA had
concerns as to whether the marriage was concluded in accordance with the
isiXhosa custom . It is worth mentioning that the applicant 's alleged marriage
appear to have been concluded under different norms and procedures than the
ordinary, for example a father to father telephonic call as a form of negotiation as
opposed to the inclusion of uD abawo/Rakgadi (paternal aunt) and
uMalume/Malome (maternal uncle) as the ordinary elders leading such processes
and the sending of uN ozakuzaku/Mmaditsela (emissaries), and the absence of the
delivery of the bride. DHA should promote research of the cultural and legal norms
in our diversity and pluralism through its registering officers, instead of closing
internal departments and service centres which were t o serve the public in
uncertain or disputed customary marriages. Whether the marriage was concluded
in accordance with custom or not is a question that should be determined by
custom and customary law. The applicant, including her brother Mzwandile,
Sanelisiwe and Thandolwethu failed to adduce factual evidence and where
necessary even expert evidence to guide any determiner of fact in the
determination of the issue [ Thulare v Thulare and Others (470/2023) [2025]
ZASCA 100 (7 July 2025) at para 10. At para 11 the SCA said:
'
[11] Disputes of this kind require evidence -based resolution. In the absence of the requisite
evidence, the high court was not properly equipped to make any determination as to who
constitutes the royal family. Nor is this Court able to do so on appeal. '

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For these reasons the order was made.





Applicant Counsel: Michaek Garces michaelgarces@advchambers.com
Instructing Attorney: VPR trish@vprattorneys.com
1st and 2nd Respondent Counsel: Ms Mahlaba NkoMahlaba@justice.gov.za



___________________________
DM THULARE
JUDGE OF THE HIGH COURT