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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT
Case no: 567/2023
In the matter between:
T[...] S[...]
and
N[...] B[...] M[...] First Respondent
MINISTER OF HOME AFFAIRS Second Respondent
THE MASTER OF THE HIGH COURT: MAKHANDA Third Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
APPELS AJ:
Introduction
[1] This is an application for an order directing the second respondent to
register the customary marriage concluded between the applicant and N[...] M[...]
(“the deceased”) in terms of section 4(7) of the Recognition of Customary Marriages
Act 120 of 1998 (“the Act”) and declaring the marriage between the deceased and
the first respondent (“the civil marriage”) concluded in terms of the Marriage Act 25
of 1961 (“the Marriage Act”), void ab initio.
[2] The relief is sought on the basis that at the time the civil marriage was
concluded, the deceased was already in an existing valid customary marriage with
the applicant and was therefore precluded from marrying the first respondent.
[3] The application is opposed by the first respondent on the basis that:
(a) The customary marriage between the deceased and the applicant had
dissolved prior to the civil marriage;
(b) The applicant waited until after the deceased passed away to register the
customary marriage; and
(c) There is a factual dispute which cannot be resolved on the papers.
[4] The issues to decide in this matter are whether the deceased and the
applicant concluded a valid customary marriage and if so, whether the customary
marriage still subsisted at the time when the deceased entered into the civil marriage
with the first respondent. Since the deceased had already passed away at the time
when this application was brought, I will also consider whether there is any
impediment to registering the customary marriage posthumously.
The facts
[5] During about June 1988, prior to the commencement of the Act, a delegation
representing the deceased approached the applicant’s family to request her hand in
marriage and to negotiate her lobola on behalf of the deceased. At the time, th e
deceased was 25 -years of age and the applicant 17 -years old. The applicant’s
parents granted permission for the applicant to conclude a marriage with the
deceased.
[6] Lobola negotiations were initiated between the families of the deceased and
the applicant during which the parties agreed upon the lobola payable in the form of
two cows. On conclusion of the negotiations and the lobola agreement, payment of
the agreed lobola was made and accepted by the applicant’s family. Thereafter, the
applicant was pres ented to the deceased’s family where she was welcomed and
addressed as a bride. Traditional proceedings followed, whereafter the applicant was
given the name N[...] M[...] as her bridal name in accordance with the norm in
isiXhosa customary marriages. Th e aforesaid factual allegations were confirmed in
supporting affidavits deposed to by deponents who were, during the lobola
negotiations, members of the deceased’s delegation and the applicant’s family’s
delegation, respectively.
[7] It is alleged that the app licant and the deceased lived together as a married
couple and two children were born of their marriage, S[...] M[...] who is 23-years old,
and L[...] M[...] who is 17-years old.
[8] The applicant and the deceased were separated some time after their
marriage was concluded. During their separation, on 13 January 2020, the deceased
concluded a civil marriage with the first respondent.
Disputed Facts
[9] The exact date on which the applicant and the deceased were separated is
not clear, and the nature and dura tion of the separation are disputed. The applicant
alleges that they were separated for a temporary period while the first respondent
alleges that the separation was of a permanent nature. In this regard the first
respondent alleges that she met the deceased in 2018 and at the time, he referred to
the applicant as his ex -wife and said that the applicant had left him after she was
found to have been engaged in an extra -marital affair. It is further alleged by the first
respondent that at the time she met th e deceased, the applicant was not involved in
his life, nor was she playing any role as a customary wife.
[10] The first respondent does not allege that the customary marriage was
dissolved by decree of divorce. Instead, she refers to the custom that applies to the
dissolution of marriages in accordance with customary law. In this regard it is alleged
that after the separation of the deceased and the applicant, the deceased chose not
that after the separation of the deceased and the applicant, the deceased chose not
to “puthuma”1 the applicant as he regarded the alleged breakdown of the custom ary
1 “The practice is resorted to by a husband whose wife has left the marital home, for example, as a
result of ill-treatment by her husband. Ukuphuthuma takes place when the husband, either alone or
marriage as irreparable as a result of the applicant’s extra -marital affair. Therefore,
accordingly to the first respondent, the applicant and the deceased were
permanently separated from at least 2018.
[11] The applicant however disputes that the customary marriage had irreparably
broken down or that it had been dissolved and states that she and the deceased
were only temporarily separated at the time when the deceased met the first
respondent.
[12] There are als o other factual disputes which have no direct bearing on the
issues which the court has to determine in this matter. These factual disputes relate
to whether the first respondent and the deceased lived together after their marriage,
whether she was introduced to the deceased family, how frequently she had contact
with the deceased during the civil marriage or whether she forced the deceased to
accompany her to the offices of the second respondent to conclude the civil
marriage. It is not necessary to provide any further detail in this regard.
Analysis
The Legal Framework
[13] A marriage which is a valid customary marriage in customary law and exists
at the commencement of the Act is for all purposes recognised as a valid marriage. 2
Failure to register a customary marriage does not affect the validity of that marriage.3
[14] In terms of section 4(3)(a) of the Act, a customary marriage entered into
before the commencement of the Act, must be registered within a period of 12
months after the commencement of the Act or w ithin such longer period as the
Minister may from time to time prescribe by notice in the Government Gazette. The
period for the registration of customary marriages has been extended by the Minister
accompanied by his kinsmen, proceeds to the kraal of his father-in-law in order to negotiate the return
of his wife. Her return is usually discussed by a family group meeting.” (I P Maithufi, “A Civil Marriage
and the Custom of Phuthuma”, published in De Rebus, August 1986)
2 Section 3(1) of the Act.
and the Custom of Phuthuma”, published in De Rebus, August 1986)
2 Section 3(1) of the Act.
3 Section 4(9) of the Act
to 31 August 2026 as published under Government Notice No. 5483 in Government
Gazette 51462 of 29 October 2024.
[15] A spouse in a valid customary marriage is not permitte d to enter into a
marriage under the Marriage Act during the subsistence of such customary marriage.
The only exception is that a man and a woman between whom a valid customary
marriage subsists are competent to marry each other under the Marriage Act if
neither of them is a spouse in an existing customary marriage with any other
person.4
[16] Furthermore, section 8(1) of the Act further provides that:
‘…a customary marriage may only be dissolved by a court of a decree of divorce on
the ground of the irretrievable breakdown of the marriage.’
[17] Therefore, unless a customary marriage has been dissolved in terms of
customary law prior to the commencement of the Act, it may only be dissolved by
decree of divorce. This means that if the customary marriage between the applicant
and the deceased still existed at the commencement of the Act, it remained valid
until a decree of divorce has been issued by the court.
[18] Section 4(7) of the Act empowers a court to order the registration of a
customary marriage, as well as the c ancellation or rectification of any existing
registration. This authority is exercised following an application and a subsequent
investigation by the court.
[19] In this regard, Section 4(7) of the Act reads as follows:
‘4(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; or
(b) the cancellation or rectification of any registration of a customary marriage effected
by a registering officer.’
4 Section 3(2) read with section 10(1) of the Act.
[20] In EMK v EMB, 5 the fo llowing was said regarding the duty of the court to
apply customary law:
‘A Court is enjoined by virtue of the provisions of Section 211(3) of the Constitution to
apply customary law when that law is applicable, subject to the Constitution and any
legislation that specifically deals with customary law.’
[21] More importantly for this matter is that the court held that in terms of section
4(7) of the Act, a court is enjoined to investigate whether a valid customary marriage
was entered into before an order can b e made for registration thereof. 6 Therefore,
the applicant bears the onus to prove that there was a marriage between her and the
deceased and that that marriage was “ negotiated and entered into or celebrated” in
accordance with the custom and usages traditionally observed among the isiXhosa.7
[22] In the matter of Shilubana and Others v Nwamitwa , Van der Westhuizen J
emphasised the need that evidence must be led where necessary to determine
customary law. In this regard, the following was held:
‘Living’ customary law is not always easy to establish and it may sometimes not be
possible to determine a new position with clarity. Where there is, however, a dispute
over the law of a community, parties should strive to place evidence of the present
practice of that community before the courts, and courts have a duty to examine the
law in the context of a community and to acknowledge developments if they have
occurred.’
[23] I have also carefully considered the following dictum in EMK v EMB:8
‘… where a Court is faced with the challenge of determining the validity of an alleged
customary marriage, it is imperative that a Court should carefully consider and
evaluate customary law in order to make provision for its diversity, adaptability and
specific application to different groups of African peoples in order to avoid customary
law being morphed into a formal form of law, established through de facto judicial
law being morphed into a formal form of law, established through de facto judicial
5 EMK v EMB (2024-094190; 2023-010767) [2025] ZAGPPHC 289 (18 March 2025) at paras 32
6 EMK v EMB, supra at para 33
7 MM v MN 2013 (4) SA 415 (CC) at para 108
8 EMK v EMB, supra at para 33
notice of customary law by Judges not familiar with customary law, without due
regard to the origin, content and diversity of such customary law.’
Has the Applicant and the Deceased entered into a Valid Customary Marriage?”
[24] Having considered the authorities stated above, I have taken into account
that in this matter, the applicant adduced evidence of the a pplicable customary law
that was applicable to the alleged customary union with the deceased. Evidence was
adduced that in accordance with the isiXhosa custom, the applicant’s parents
granted permission for the applicant to conclude a marriage with the dec eased
following negotiations regarding the amount of lobola to be paid. Furthermore,
according to the evidence, upon conclusion of the negotiations, a lobola agreement
was concluded, and payment of lobola was made and accepted by the applicant’s
family. T hereafter the applicant was presented to the deceased’s family where she
was welcomed and addressed as a bride. Traditional proceedings followed,
whereafter the applicant was given the name N[...] M[...] as her bridal name in
accordance with the isiXhosa tradition. Supporting affidavits of the delegates of each
family who were involved in the lobola negotiations were filed.
[25] I have also taken into account that the first respondent has not disputed that
the applicant entered into a valid customary marria ge with the deceased in
accordance with the customs and usages of the isiXhosa. She has not placed any of
the evidence related to the customs of the isiXhosa tradition in dispute. In fact, it is
common cause that the applicant and the deceased were in a va lid customary
marriage. In this regard the first respondent admitted that when she met the
deceased, he informed her that he was married but advised that the applicant had
left him. There is consequently no dispute that the deceased and the applicant were
validly married in terms of the customs and usages of the isiXhosa tradition.
validly married in terms of the customs and usages of the isiXhosa tradition.
Was the Customary Marriage Dissolved Prior to the Civil Marriage?
[26] Having found that the applicant and the deceased concluded a valid
customary marriage, the issue which should be resolved is whether the customary
marriage had dissolved prior to the conclusion of the civil marriage. The applicant
admitted that she and the deceased were separated but alleged that it was only a
temporary separation and that the marriage still subsist ed at the time when he met
and married the first respondent.
[27] The first respondent has made vague allegations that the deceased and the
applicant separated after the applicant entered into an extra -marital affair. These
allegations are entirely hearsay in n ature. She has not clearly alleged exactly when
the customary marriage had irreparably broken down. The date of the alleged
dissolution of the marriage is important because unless the customary marriage of
the deceased and the applicant had dissolved prior to the commencement of the Act,
it remains valid until such time as it had been dissolved by a decree of divorce.
[28] Furthermore, it was held in Thembisile and Another v Thembisile and
Another9 that:
‘It is consequently not lightly to be assumed that a cust omary union has been
terminated by divorce. Proof on a balance of probability must be adduced to support
such a contention.’
[29] I have considered that the first respondent only met the deceased in 2018,
many years after the commencement of the Act. Even if sh e is correct that the
marriage had irreparably broken down, she has no personal knowledge of whether
the customary marriage dissolved prior to the commencement of the Act. I therefore
must accept that the customary marriage still subsisted at the time of t he
commencement of the Act.
[30] As a result, whether or not the customary marriage was dissolved at the date
of the civil marriage has to be determined according to the Act and not in terms of
customary law. Therefore, reference to customary law regarding the dissolution of
the marriage such as the custom of “ puthuma”, does not assist the first respondent,
as a marriage which still subsisted at the commencement of the Act could only be
dissolved in accordance with a decree of divorce issued by the court. Since the
marriage was not dissolved in accordance with a decree of divorce issued by the
marriage was not dissolved in accordance with a decree of divorce issued by the
court, the customary marriage still subsisted at the time when the first respondent
and the deceased entered into the civil marriage.
9 Thembisile and Another v Thembisile and Another 2002 (2) SA 209 (T) at para 26
Factual Disputes
[31] The first responden t alleges that there are genuine disputes of fact which
compels the court to reject the applicant’s version and to determine the application
on the first respondent’s facts. These factual disputes to which the first respondent
refers are however not central when it comes to the determination of the legal issues
that the court is enjoined to determine and it is not necessary for the court to resolve
them in order to determine the matter.
[32] It is ultimately of no consequence whether the first respondent and the
deceased lived together after their marriage, whether or not she was introduced to
the deceased family, how frequently she had contact with the deceased during the
civil marriage or whether she forced the deceased to accompany her to the offices of
the second respondent to conclude the civil marriage. It is the customary marriage
that is under scrutiny, not the civil marriage. If the court finds that the customary
marriage is valid and subsisted at the time when the civil marriage was concluded, it
must find in favour of the applicant. The validity of the civil marriage is therefore only
under scrutiny insofar as it is in alleged that it was concluded when the deceased
was in a valid customary marriage.
[33] What matters therefore is that the applicant and the deceased concluded a
customary marriage, which although not registered, was valid and in existence, and
precluded the deceased from entering into a civil marriage with the first respondent.
Posthumous Registration of Customary Marriage
[34] The death of one of the spouses does not mean that the issue of registration
becomes moot, as registration is still important for matters such as inheritance,
custody of children, and other legal rights that depend on marital status. While the
Act recognises customary marriages and makes provision for registration, it does not
stipulate whether a customary marriage may be registered subsequent to the death
stipulate whether a customary marriage may be registered subsequent to the death
of one of the spouses. Since the Act does not specifically proscribe posthumous
registration of the cu stomary marriage, there is no lawful impediment which
precludes the second respondent from registering the customary marriage.
Conclusion
[35] There is no genuine factual dispute regarding the validity of the customary
marriage nor is there a genuine factual di spute regarding whether the customary
marriage still subsisted at the time when the first respondent and the deceased
entered into their civil marriage.
[36] Sufficient factual evidence was placed before the court that a valid
customary marriage was concluded between the deceased. No evidence was
adduced that the customary marriage was dissolved in terms of a decree of divorce
issued by a court. The court must therefore accept the applicant’s version that
despite their temporary separation, their customary mar riage still subsisted at the
time the deceased married the first respondent.
[37] Accordingly, by virtue of the provisions of section 3(2) of the Act, the
deceased was precluded from entering into a civil marriage with the second
respondent and the civil marriage is as a consequence null and void ab initio.
The Order
[38] Accordingly, the following order shall issue:
1) The second respondent is hereby ordered in terms of section 4(7) of the
Recognition of Customary Marriages Act 120 of 1998 to register the customary
marriage entered into in June 1988 between the applicant ( T[...] S[...]) and the late
N[...] N[...].
2) The marriage entered into between the deceased and the first respondent on
13 January 2020, is hereby declared null and void.
3) The first respondent is ordered to pay the costs of the application on a party
and party scale.
________________________
G APPELS
ACTING JUDGE OF THE HIGH COURT
Heard: 24 July 2025
Delivered: 11 November 2025
APPEARANCES :
For the Applicant: Adv. S. Conjwa
Instructed by: P K Mema Attorneys
Applicant’s Attorneys
19 Muller Street
Office No. 12 & 13
Southernwood
EAST LONDON
For the First Respondent: Adv. N. Mdunyelwa
Instructed by: Zibula Krwempe Attorneys
23 Tecoma Street
Berea
EAST LONDON