• Law Reports
  • G.M. v N.T. and Another (123653/2024) [2025] ZAGPJHC …

G.M. v N.T. and Another (123653/2024) [2025] ZAGPJHC 769 (29 July 2025)

57 Reportability
Family Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Customary Law — Validity of marriage — Applicant seeks declaration of validity of marriage at customary law — Respondent contests validity, alleging prior divorce — Insufficient evidence regarding customs governing marriage and divorce — Court finds material facts inadequately established, necessitating referral to trial for determination of disputes.

Comprehensive Summary

Case Note


G[...] M[...] v N[...] T[...] and Another

Case No: 123653/2024

Date: 29 July 2025


Reportability


This case is reportable due to its significance in determining the validity of customary marriages, particularly in the context of age and consent. The court's decision addresses the complexities surrounding customary law and the evidentiary requirements necessary to establish the existence and dissolution of such marriages. The implications of this ruling extend to future cases involving similar issues, making it of interest to other judges.


Cases Cited



  • Mthembu v Letsela and Another [2000] 2 All SA 1 (SCA)

  • Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC)


Legislation Cited



  • Recognition of Customary Marriages Act 120 of 1998


Rules of Court Cited



  • Uniform Rules of Court


HEADNOTE


Summary


The applicant, Ms. M[...], sought a declaration from the court affirming the validity of her customary marriage to the deceased, Mr. B[...]. The first respondent, Ms. T[...], contested this claim, asserting that Ms. M[...] and Mr. B[...] had divorced prior to her marriage to him. The court found that there was insufficient evidence to determine the validity of the marriage or the alleged divorce, leading to the conclusion that the matter should proceed to trial.


Key Issues


The key legal issues addressed in this case include the validity of a customary marriage involving a minor, the evidentiary standards required to prove such a marriage, and the implications of customary law regarding divorce. The court also considered the necessity of understanding the specific customs that governed the marriage in question.


Held


The court held that the application was insufficiently substantiated and therefore referred the matter to trial. It emphasized the need for a thorough examination of the facts and customs relevant to the case, as well as the potential for mediation to resolve disputes before trial.


THE FACTS


The applicant, Ms. M[...], claimed that she was married to Mr. B[...] at the age of 12, with parental consent, while Mr. B[...] was 20 years old. The first respondent, Ms. T[...], contended that Ms. M[...] and Mr. B[...] had divorced under customary law before her marriage to him. The court noted a lack of evidence regarding the customs applicable at the time of the alleged marriage and divorce, as well as the circumstances surrounding these events.


THE ISSUES


The court was tasked with determining whether the marriage between Ms. M[...] and Mr. B[...] was valid under customary law, considering the age of the parties involved and the consent provided. Additionally, the court needed to assess the validity of the alleged divorce and the customs governing these matters.


ANALYSIS


The court expressed concern over the insufficiency of evidence presented by both parties. It highlighted the absence of clarity regarding the customs that governed the marriage and the divorce, as well as the lack of detailed assertions supporting the claims made by both sides. The judge noted that the traditional leader's affidavit was particularly problematic due to its vague assertions and the leader's blindness, which raised questions about the reliability of the evidence.


The court concluded that the matter was too complex to resolve without a full trial, where evidence could be properly examined. It suggested that mediation might help the parties clarify their disputes and potentially reach an equitable resolution regarding the estate of Mr. B[...].


REMEDY


The court ordered that the application be referred to trial, with specific directions for the applicant to deliver her particulars of claim within 20 court days. The costs of the application were reserved for determination by the trial court, allowing for a fair assessment of costs after the trial.


LEGAL PRINCIPLES


This case underscores the importance of providing sufficient evidence to establish the validity of customary marriages and the complexities involved in customary law. It highlights the necessity for clarity regarding the customs applicable to marriages and divorces, particularly when minors are involved. The ruling also emphasizes the potential for mediation as a means to resolve disputes before proceeding to trial.

CASE NUMBER-initials 0 JUDGMENT
YEAR-MONTH-DAY
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NO: 123653/2024
DATE: 29-07-2025
(1) REPORTABLE: YES / NO.
(2) OF INTEREST TO OTHER JUDGES: YES / NO.
(3) REVISED.
DATE 29 July 2025

In the matter between

G[...] M[...] Applicant

and

N[...] T[...] AND ANOTHER Respondents


JUDGMENT EX TEMPORE


WILSON , J: The applicant , Ms M[...] , approaches the court
seeking a declaration that her marriage to G […] E[…] B[...], who
is now deceased, is valid at customary law. The first respondent ,
Nomasonto T[...] , was, she says, married to Mr B[...] at the time
Mr. B[...] died. She meets Ms M[...] ’s claim with the allegation that
Ms M[...] and Mr B[...] divorced each other at customary law
before Ms T[...] married Mr B[...].

CASE NUMBER-initials 1 JUDGMENT
YEAR-MONTH-DAY
At the time the marriage between Ms M[...] and Mr B[...]
took place Ms M[...] was 12 years old. Mr B[...] would have been
20 years old. It is alleged that Ms M[...] ’s parents agreed to the
marriage and that by virtue of that agreement the marriage was
valid at customary law . Both of Ms M[...] ’s parents are now
deceased.

There is an insufficiency of evidence on the papers in relation to
almost every material fact that I would have to determine in order
to decide this application. I do not know what customs governed
the marriage that allegedly took place in the 1970s between Ms
M[...] and Mr B[...], when Ms M[...] was 12. I do not know whether
those customs would have tolerated a marriage between a 20-
year -old and a 12-year -old , even with the consent of the 12- year -
old’ s parents. I do not know what customs would have been
necessary in order to conclude an ordinary marriage between two
adults under the applicable custom ary law. I do not know whether
it is possible to divorce in terms of the customary law that applied
to the parties at the time. Nor do I know , if it was not possible to
divorce, how customary law would treat the marriage that
allegedly took place between Ms T[...] and Mr B[...] . In their
papers, neither of the parties dealt with the form of customary law
applicable, or the content of that law.

Much in these papers is done by way of bare assertion. It is
starkly asserted that Ms M[...] married Mr B[...] with her parents’
consent. It is starkly asserted by her relatives that that marriage
took place. It is equally starkly asserted by Ms T[...] that the
marriage was dissolved by the traditional leader with jurisdiction
over Ms M[...] ’s ancestral home. The traditional leader ’s own
evidence on affidavit is itself unsatisfactory , since it is common
cause that he is blind, and yet he alleges in his affidavit that he

cause that he is blind, and yet he alleges in his affidavit that he
has read the papers in this case . I do not say that a blind person
cannot read legal papers. I say only that where a blind person

CASE NUMBER-initials 2 JUDGMENT
YEAR-MONTH-DAY
claims to have done so, it is necessary to state the form in which
the papers was made available to them.

I do not suggest that anybody involved in this matter is lying or is
in bad faith. What I do suggest is that the facts that have been
placed before me are wholly insufficient for me to decide a matter
as important to the parties as this.

This is plainly a matter that ought to be referred to tri al. Before
the parties get to trial, they may well wish to avail themselves of
this court ’s compulsory mediation directive, which may assist
them to determine the ambit of the real dispute s between them,
and perhaps allow them to settle on an equitable division of Mr
B[...]’s estate. If that does not happen the parties may at least be
able to define their real disputes to the extent necessary to curtail
the amount of time needed to hear the trial.

In a case like this I would always be inclined to direct each party
to pay their own costs. However, given that the matter will have to
go to trial it is wisest to reserve costs. For all those reasons I
make the following order –
1 The application is referred to trial.
2 Part B of the applicant’ s notice of motion dated the
28
th of October 2024 will stand as a simple summons.
3 The applicant as plaintiff must deliver her particulars
of claim within 20 court days of today’s date.
4 Thereafter the rules of court applicable to tri al
actions will apply.
5 The costs of the application are reserved for
determination by the trial court.

WILSON , J
JUDGE OF THE HIGH COURT
29 July 2029

CASE NUMBER-initials 3 JUDGMENT
YEAR-MONTH-DAY

Back to Law Reports