M.C.L.N v V.L.M (32283/2021) [2025] ZAGPPHC 1219 (13 November 2025)

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, PRETORIA
CASE NO: 32283/2021

(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE: 13 November 2025
SIGNATURE: K. La M Manamela


In the matter between:


M[...] C[...] L[...] N[...] Plaintiff


and


V[...] L[...] M[...] Defendant


DATE OF JUDGMENT : This judgment is issued by the Judge whose name is reflected
herein and is submitted electronically to the parties/their legal representatives by email. The
judgment is further uploaded to the electronic file of this matter on CaseLines by the Judge’s
secretary. The date of the judgment is deemed to be 13 November 2025.

JUDGMENT


Khashane Manamela, AJ
Introduction
[1] The plaintiff – of Pedi heritage - and the defendant – of Zulu heritage - were in a
romantic or love relationship from around November 201 1 or early 2012 onwards, which
subsequently developed into a s table family relationship and cohabitation. Three children
were born from their relationship between April 2017 and August 2020 (‘the minor
children’). Between those years, they decided to get married in terms of customary law.
[2] In September 2018 , lobolo1 negotiations took place and the defendant paid a
significant portion thereof to the plaintiff’s father or parents. The balance of the lobolo was
paid on 7 November 2020 at a ceremony held at the homestead of the plaintiff’s parents in
Bela Bela, Limpopo . According to the plaintiff , it was on that day that she entered into a
customary marriage in community of property with the defendant (‘the marriage’) in
accordance with the Recognition of Customary Marriages Act 120 of 1998 (‘the RCMA’).
The defendant – whilst admitting his full payment of lobolo in respect of the plaintiff –
disputes the marriage , primarily, on the ground that not all customs in terms of th e Zulu
culture or customary law were observed on that date or thereafter.
[3] The plaintiff claims that the marriage has irretrievably broken down and disintegrated
with no reasonable prospect of restoration of a normal marriage relationship between the
defendant and her . She cited many reasons to support her c laim, including that during
December 2020 the defendant m arried a third party in terms of custom without her

1 Section 1 of the Recognition of Customary Marriages Act 120 of 1998 defines ‘lobolo', among others, as
‘the property in cash or in kind, whether known as lobolo, … magadi…which a prospective husband or
the head of his family undertakes to give to the head of the prospective wife's family in consideration of a
customary marriage’.

knowledge and /or consent . On 30 June 2021, the plaintiff caused summons to be issued ,
commencing these proceedings. S he sought, among others : (a) decree of divorce; (b) award
to her of the care and primary residence of the minor children, and (c) division of the joint
estate.
[4] The defendant, advancing his defence that there is no valid customary marriag e,
defended the proceedings. In his plea, the defendant also raised the non-joinder of the third
party h e says he had married by custom on 12 June 2021 . The defendant, further,
counterclaimed that should th is Court rule that he is indeed married to the plaintiff, the
plaintiff ought to forfeit the benefits of marriage in community of property , including on the
ground that the marriage was of a short duration.
[5] The matter came before me for trial on 14 April 2025, when Ms M Fabricius appeared
for the plaintiff and Ms Z Qono appeared for the defendant. The trial continued on 15 and 16
April 2025. On the latter date, the part-heard matter was postponed for closing argument in
written form. The written argument by the d efendant counsel was filed – as agreed - on 01
July 2025, on which date t his judgment is deemed to have b een r eserved. I am grateful to
counsel for the detailed material filed in this regard.

Brief background
[6] A brief narration of the facts in the background to this matter is necessary. Although
there are few areas of commonality , I will endeavour to constitute this from the common
cause facts. Otherwise, I will indicate the area of or issue in dispute.
[7] The parties’ love or romantic relationship , as already indicated, commenced towards
the end of 2011 or in early 2012. The plaintiff said it was on 28 November 2011. The parties,
then, worked for the same employer. Their relationship endured despite the plaintiff’s
relocation to Cape Town for work purposes from 2014 to 2016.

[8] On 3 April 2017, the parties’ first child was born. By then the plaintiff had returned to
Pretoria from Cape Town. They moved in together and, thenceforth shared – as their home –
a house purchased by the defendant. The plaintiff says the parties ’ cohabitation started,
earlier, being briefly after they met. Two more children were born in April 2018 and August
2020.
[9] On 22 September 2018 , a delegation comprising Messrs R Ngcobo and L M[...]
(‘abakhongi’) representing the defendant’s family (‘ M[...] family’) visited the home of the
plaintiff’s parents in Bela Bela for lobolo negotiations. The representatives of the plaintiff’s
family (‘N[...] family’) were Messrs S N[...], C N[...] and J Maserumule, and Ms N Mmatli.
Lobolo was agreed in th e amount of R64 000 and the defendant, instant aneously, paid
R42 000 to the plaintiff’s father or parents.
[10] On 7 November 2020, lobolo was fully paid when the defendant settled the balance of
R22 000. After lobolo was fully paid and still on the same date, there was a gathering at the
N[...] family home in Bela -Bela, attended by more than 200 guests ( as estimated by the
plaintiff). The defendant solely paid for the expenses for this gathering. The plaintiff says a
valid customary marriage (i.e. the marriag e) was concluded or celebrated between the
defendant and her on this date, as envisaged by the RCMA . According to the defendant what
was celebrated on that day was the finalisation of the lobolo negotiations. T here were
outstanding Zulu customs still to be observed in terms of an agreement between the parties.
[11] In December 2020 (according to the plaintiff) or 12 June 2021 (according to the
defendant), the defendant married another wom an (conveniently ref erred to only as ‘Ms
CM’) in terms of custom. The defendant says he paid lobolo to Ms CM’s family in the
amount of R73 000 during September 2019 ; handed the required gifts to Ms CM and her

amount of R73 000 during September 2019 ; handed the required gifts to Ms CM and her
family during December 2020 , and concluded the ritual or ceremony of sprinkling of bile
(from an animal) and Ms CM’s handing-over process on 12 June 2021.

[12] On 30 June 2021, the summons for these proceedings was issued. According to the
defendant, the plaintiff and the minor children vacated th e home they shared in July 2021. In
September 2021 , the plaintiff brought an application in t erms of Rul e 43 of th e Uniform
Rules for, primarily, parental responsibilities and rights in respect of the minor children,
including contribution by the defendant towards maintenance. An order was granted on 30
November 2021, per Nkosi AJ.
Pleadings (relevant aspects thereof)
General
[13] I consider it necessary to quote from the pleadings, due to the nature and extent of the
claims and counterclaims made by the parties in this matter.
Plaintiff’s case (extracted from the pleadings)
[14] The plaintiff amended her particulars of cla im on 28 February 2022. In their amended
form they read as follows in the material part:
4.
4.1 The parties were married to one another on 7 November 2020 , at Bela Bela,
Limpopo, by way of custom ary marriage, in community of property, which
marriage still subsists.
…
4.5 At the November 2020 wedding celebrations, at Bela -Bela, Limpopo , the
remaining sum of Lobola in an amount of R22,000.00 was paid to Plaintiff’s
parents and gifts were exchanged, being gifts for the Plaintiff’s family in the
form of blankets for Plaintiff’s aunt, jackets for Plaintiff’s father, Plaintiff’s
grandfather and Plaintiff’s uncle and further groceries for Plaintiff’s mother
and a blanket for Plaintiff and money for the Plaintiff.
4.6 On 7 November 2020, at Bela-Bela, a formal wedding ceremony was held in
terms of custom and in terms w hereof the Plaintiff was handed over to the
Defendant’s family.2

[15] The plaintiff sought : (a) decree of divorce; (b) division of the joint estate, including
payment to her of half interest in the defendant's pension fund , and (c) in respect of the
children, as envisaged by the Children ’s Act 38 of 2005 , the: ( i) retention of full parental

responsibilities and rights by both parti es; (ii) award to her of the ir care and primary

2 CaseLines (‘CL’) A21 to A23.

residence with the defendant granted specified responsibilities and rights as to contact, and
(iii) payment by the defendant of maintenance of the minor children.



Defendant’s case (extracted from the pleadings)
[16] The defendant’s plea included a special plea to the effect that the defendant concluded
a customary marriage with Ms CM on 12 June 2021 and, therefore, Ms CM ought to be (or
have been) joined as a party to these proceedings , as she has a direct and substantial interest
in this matter. I dismissed the special plea in terms of an extemporaneous ruling at the start of
the trial after listening to argument by counsel.3
[17] The Defendant, further, pl eaded over th e merits or plaintiff’s particulars of cla im,
including as follows:
3.2 Without derogating from the generality of the aforesaid denial and in
amplification thereof, the Defendant pleads that:
3.2.1 the Defendant together with , among others, Mr R Ngcobo, Mr L
M[...] attended the Plaintiff’s family home at Be la-Bela, Limpopo
on 7 November 2020 with the sole intention to finalise the payment
of the balance of the lobola negotiat ed and agreed upon on 22
September 2018;
3.2.2 no customary wedding celebration was held, as is required , on 7
November 2020 at the parties’ respective homes;
3.2.3 that any celebration that took place on 7 N ovember 2020 was to
celebrate the finalisation of the negotiations in respect of the lobola;
3.2.4 the Plaintiff and her family were, on 7 November 2020, inform ed
that there were outstanding rituals and customs that had to be
performed and complied with before a valid customary marriage
could be deemed to have been conducted;
3.2.5 …
3.2.6 neither the Plaint iff, nor the Defendant intended to conclude a
customary marriag e on 7 Nove mber 2020, alternatively the
Defendant did not int end to conclude a customary marriage on 7
November 2020.
3.3 The Defendant therefore pleads that no customary marriage was entered into

November 2020.
3.3 The Defendant therefore pleads that no customary marriage was entered into
or celebrated as contemplated in Section 3(1)(b) of The Recognition of
Customary Marriages Act.4



3 Transcript of the trial for 14 April 2025 (‘Transcript: Day 1’) at p 25 line 6, CL U28 to p 28 line 18 CL
U31.
4 CL A35 to A37.

[18] The above captures the essence of the defence put forth by the defendant for th e
dismissal of the plaintiff’s action with costs . The defendant’s plea also includes a
counterclaim for declaration that no valid customary marriage exists between the parties and,
also, that should t he Court disagree, the plaintiff should forfeit the benefits flowing from a
marriage in community of property. The forfeiture is, primarily, on the basis that the plaintiff
would unduly benefit without such a n order, du e to : (a) the short duration of the marriage
between the parties at only seven months, and (b) the plaintiff’s lack of financial contribution
to the joint estate.
[19] The defendant also sought relief as to parental responsibilities and rights relating to
the primary residence, contact and maintenance of the minor children. But the parties have in
the meantime amicably agreed or resolved some of the issues under this segment of relief, as
shall become clear below.
Evidence adduced at the trial (summarised)
General
[20] The plaintiff and her father testified as witnesses in the advancement of her case. The
plaintiff also tendered evidence by way of photographs of the gathering on 7 November 2020.
The defendant called his brother and father to testify as witnesses. The defendant also
testified in the advancement of his defence and counterclaim. Below are some aspects of the
testimony of the witnesses and counsel’s argument thereon . I will reflect further aspects of
their evidence in the discussion of the issues identified as requiring further determination.
Testimonies or evidence in the plaintiff’s case
General
[21] The plaintiff was the first witness to testify. She took the stand on the first day of the
trial on 14 April 2025 and continued on the second day of the trial on 15 April 2025. She was
followed by her father, after which the plaintiff’s case was closed.

Ms M[...] C[...] L[...] N[...] (i.e. the plaintiff)
[22] The plaintiff, Ms M[...] C[...] L[...] N[...], was examined on all aspects of her case or
claims. I reflect only those aspects of her testimony considered pertinent to the issues to be
determined.
[23] She told the Court that she met the defendant on 28 November 2011. They began a
love or romantic relationship shortly thereafter . They w ere then working for th e same
employer. They moved in together and lived together from 2011 to 2014 when the plaintiff
moved to Cape Town for work purposes. Their relationship continued whilst she was in Cape
Town. Their first child was born in April 2017. Sh e had by then returned to Pretoria, also
workwise, and, again, moved in with the defendant. After she fell pregnant with the ir second
child, the parties moved into what the plaintiff described as their matrimonial home. In 2018,
the lobolo negotiations began and ultimately the lobolo amount of R64 000 - payable by the
defendant to the plaintiff’s father or parents - was agreed. It was paid in two parts, with one
part paid immediately on the date of the negotiations on 22 September 2018 and the other at a
later stage on 7 November 2020.
[24] On 7 November 2020 , the defendant came with his delegates to the home of the
plaintiff. In the morning - upon their arrival - they paid the R22 000 outstanding lobolo. After
the full payment of lobolo – but still on the same day – there we re celebrations and
observation of Pedi customs or customary law . Her father had agreed with the defendant’s
father that the marriage celebration would be in terms of Pedi customs. One of the customs
involved three ladies c oming out and the defendant ha ving to pick out the bride , being the
plaintiff. The M[...] family’s delegates were shown a goat .5 They requested that the goat
rather be slaughtered for them, as they did not want the whole animal. The plaintiff was then

rather be slaughtered for them, as they did not want the whole animal. The plaintiff was then
taken by the M[...] family to where she was dressed in the attire that they had brought for her,

5 Mr Ngoetjana, the plaintiff’s father would later testify that the goat symbolised a receipt for full payment
of lobolo. See par [26] below.

including a M[...] family ‘doek’ (loosely, a turban), which symbolised that she was a wife.
The celebrations were in the N[...] family home and attended by more than 200 people. There
were also performances by traditional dancers from both families. Later, she was handed over
to the M[...] family and she left with them back home in Pretoria. The re was no objection to
her returning with the defendant to reside together. The marriage was concluded properly in
accordance with the Pedi culture. Thenceforth, she was referred to as ‘makoti’, meaning bride
to the M[...] family. During her testimony, the plaintiff identified several photographs of the
events on 7 November 2020.
[25] The plaintiff’s evidence is criticised by the defendant’s counsel as having being laden
with obscurities and uncertainty, as well as for being devoid of factual precision as to what
the alleged agreement entailed. I will deal with this, below.
Mr M[...] C[...] N[...]
[26] The following are pertinent aspects of the testimony of Mr M [...] C[...] N[...] (‘Mr
N[...]’), the plaintiff’s father. He told the Court that he made an appointment to go see the
defendant’s father in Kwa -Zulu Natal. This was arranged through Ms Z[...], the defendant’s
sister. The reasons for his visit w ere three-fold: (a) to know the father of the M[...] family or
household; (b) to know where his daughter (i.e. the plaintiff) was going to, and (c) to ask how
the issue of cultures was to work, given that the N[...] family is Pedi and the M[...] family is
Zulu, as well as to ask what was expected from him before the wedding. Further, he told the
Court that i t was agreed between him and the defendant’s father that the wedding would be
concluded in terms of the Pedi culture. They ‘could carry on with their culture’ is what the
defendant’s father said, according to Mr N[...]. And, on 7 November 2020 when the
defendant and his family were at his home in Bela Bela, the outstanding lobolo was paid and

defendant and his family were at his home in Bela Bela, the outstanding lobolo was paid and
a celebration was held. The full payment of lobolo was marked by a goat from the N[...]
family given to the abakhongi from the M[...] family as a ‘receipt’ to be taken to the parents
in the M[...] family. The goat also demonstrated that the N[...] family was happy with the full

payment of the lobol o and, the plaintiff as their daughter was handed over to the M[...]
family. And, abakhongi entered the house and, together with the M[...] sisters, requested that
the plaintiff be handed over to be taken with as their makoti.
[27] In Sepedi culture, Mr N[...] also told the Court, a woman’s family would ask for gifts
after lobolo is paid by the family of the groom and no gifts were given by the N[...] family to
the M[...] family.
[28] Counsel for the d efendant submitted that the evidence of both the plaintiff and her
father was procured through leading questions by the plaintiff’s counsel and, thus, little or no
reliance may be placed thereon.6 Their evidence ought to be disregarded,7 counsel’s argument
concluded. And ‘a presiding judge is not a silent umpire’, 8 as a supine approach to
proceedings by judicial officers is unjustified in as far as ensuring a fair trial or efficient use
of resources is concerned.9
[29] In addition to disputing the probative value of Mr N[...]’s evidence, counsel for the
defendant points out that : (a) Mr N[...] was not part of the delegat ion at the lobol o
negotiations, including when an agreement was reached about the processes and (b) his visit
to the defendant’s father in KwaZulu -Natal (‘KZN’) was after the lobolo negotiations .
Regarding the first point or (a), the plaintiff was criticised f or not calling as a witness one of
the N[...] family’s delegates to lobolo negotiations . One such delegate was seated in the
courtroom during the trial, counsel pointed out . And on the second point or (b), Mr N[...] is
said not to hav e testified about a ‘wedding’ and/or an agreement of a wedding until when

6 Maritime Industries Trade Union of South Africa and Others v Transnet Limited and Others [2002] 11
BLLR 1023 (LAC); (2002) 23 ILJ 2213 (LAC) (20 September 2002) [75]. See also S v Rall 1982 (1) SA
825 (A) at 831D-E.
7 Z v Commissioner for the South African Revenue Service (13472) [2014] ZATC 2; 78 SATC 103 (18

November 2014), per Wepener J (‘Z v CSARS’).
8 Z v CSARS [11]; Sager v Smith 2001 (3) SA 1004 (SCA) [21]; Take and Save Trading CC and Others v
Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) [3].
9 Z v CSARS [11]; Quartermark Investments (Pty) Ltd v Mkhwanazi and Another [2014] 1 All SA 22
(SCA); 2014 (3) SA 96 (SCA) (1 November 2013) [20].

prompted by counsel for the plaintiff to do so. This relates to the submission as to leading
questions referred to in the preceding paragraph. I will deal with this below.

Testimonies or evidence in the defendant’s case
General
[30] The first witness to testify in the defendant’s case was his brother. He took the stand
on the second day of the trial on 15 April 2025. On 16 April 2025, the third day of the trial ,
the defendant’s father was also called to testify . He was followed in the witness box by the
defendant after which the defendant’s case was closed.
Mr L[...] M[...] (i.e. defendant’s brother)
[31] Mr L[...] M[...] (‘Mr L M[...]’), the defendant’s older brother, was the first witness for
the defendant. Mr L M[...]’s testimony included what follows. He was involved in th e
September 2018 lobolo negotiations when an agreement was concluded between the
representatives of both families . The terms of the agreement, according to him, w ere that the
customary marriage w ould be in terms of the Zulu culture , and the stages to be followed or
the customs to be obs erved were, that: (i) the N[...] family were to provide a letter or list of
gifts e xpected from the M[...] family for umembeso; (ii) the plaintiff and the N[...] family
would perform umbondo to the M[...] family at the M[...] family homestead, and (iii) the
umabo process would be the final stage to conclude the marriage and it is marked by rituals
performed at the man’s homestead where beasts are slaughtered; the father of the bride would
slaughter a beast to inform his ancestors that his daughter is being handed over to the groom’s
family; the groom’s family w ould accept the bride having slaughtered a beast of their own
and inform the groom’s ancestors that he has taken a wife and the bride will be rinsed with
bile (inyongo) of the slaughtered beast.

[32] According to him the custom or ritual that was observed on 7 November 2020 at the
N[...] family home is only umembeso. Umbondo and umabo were not held or performed .
Before these are completed the plaintiff would be an ingoduso (‘fiancée’) of the defendant
and not his wife. The N[...] family delegation was reminded on 7 November 2020 of the need
to go to the M[...] family’s homestead for both families to attend to the slaughtering of cows.
The abakhongi offered to retain R10 000 from the R22 000 lobolo balance for the purposes of
the M[...] family purchasing a cow on behalf of the N[...] family that would be kept at the
M[...] family homestead and used by the N[...] family for the slaughtering ritual at the M[...]
homestead. But the N[...] family insisted on the full amount of the lobolo balance of R22 000.
[33] Mr L M[...], further, testified that the prospective spouses could on their own agree to
deviate from the handover process. He denied that the plaintiff was handed over to the M[...]
family and stated that the handing over process was only possible ‘parent to parent’ after
compliance with the rituals. 10 And stated that his father could not have agreed with the
plaintiff’s father that the marriage be concluded in terms of Pedi culture without the
involvement of the defendant, abakhongi and the entire M[...] family. He also told the Court
that g ifts were given to the N[...] family by the M[...] family, but not vice versa . Th is
included a doek given to the plaintiff at the gathering on 7 November 2020. But the event was
casual and there were no speeches. The defendant’s father, uncles and aunts were not present,
counsel for the defendant would , subsequently, point out. I agree with counsel that the latter
fact is common cause between the parties.
[34] Counsel for the plaintiff’s submissions regarding this witness include what follows.
Throughout t he evidence in chief , Mr L M[...] referred to the plaintiff as ‘makoti’. When

Throughout t he evidence in chief , Mr L M[...] referred to the plaintiff as ‘makoti’. When
probed for a reason why he would use such refere nce if the plaintiff was not the defendant’s
wife, he disputed that makoti meant wife. He explained that he merely used the reference out

10 Transcript of the trial for 15 April 2025 (‘Transcript: Day 2’), pp 132-133 at lines 25 to 1, CL U241-242.

of respect. But he conceded that the Zulu word for fiancée is ingoduso, it is submitted by the
plaintiff’s counsel . It is clear that c ounsel considered this to be one of the unguarded
moments in this witness’ testimony were Freudian slips truthfully indicat ing that he accepted
that the plaintiff was indeed married to the defendant occurred .11 Further, counsel for the
plaintiff submitted , this witness’ testimony that the makoti was dressed by his sisters was
consistent with the testimony of the plaintiff that her being dressed by the defendant’s sisters
and given a special doek marked the conclusion of the marriage and that she was the
defendant’s wife. But Mr L M[...] would further explain that the Zulu word for wife was
‘inkosikazi’.12
[35] Counsel further argued that Mr L M[...]’s assertion that goats were not slaughtered
was never put to the plaintiff under cross-examination. Neither were the photos depicting an
animal being slaughtered disputed. Also, Mr L M[...] did admit that the M[...] family was
given meat o n the day. It is highly improbable that meat would be given if no slaughtering
occurred, counsel argued. Also, that Mr L M[...] persisted in his denials that rituals were not
performed on the day in th e face of photographic evidence . But , he didn’t dispute that the
M[...] family gave the plaintiff a doek.
[36] Submissions by counsel for the defendant regarding Mr L M[...]’s testimony included
what follows. His version regarding how the marriage was to be entered into is unchallenged.
He confirmed the agreement on the lobolo amount ultimately paid by his younger brother, the
defendant. He also told the Court that it was agreed during the negotiation that the customary
marriage was to b e by way of the Zulu culture. The plaintiff’s parents were instantaneously
informed or consulted by a representative of the N[...] family and it was confirmed that the
‘Zulu way of doing things’ would prevail.13 The N[...] family and its delegation agreed.

‘Zulu way of doing things’ would prevail.13 The N[...] family and its delegation agreed.

11 Mbungela v Mkabi 2020 (1) SA 41 (SCA); [2020] 1 All SA 42 (SCA) (‘Mbungela v Mkabi’) [23].
12 Transcript: Day 2, p 88 at line 13, CL U197.
13 Transcript: Day 2 p 67 at lines 10-11, CL U176.

Mr K[...] M[...] (the defendant’s father)
[37] The testimony by Mr K [...] M[...], the defendant’s father (‘Mr M[...] Snr’), included
the following. The agreement was that Zulu custom would be applied since the M[...] family
are Zulus. And that umembeso does not make the bride a wife , but a wedding is conclu ded
only upon completion of umabo when the bride is accepted into the groom’s family . He,
similarly to Mr L M[...], told the Court that the Zulu customary procedures include umbondo,
which comes before umabo. Regarding the visit to his home by Mr N[...], he said that the
former wanted to see the M[...] homestead. Otherwise, there was nothing else to discuss, as
he had been informed about the ceremony by the M[...] family’s abakhongi. And, discussions
or decisions made by him (i.e. Mr M[...] Snr) were through abakhongi. The plaintiff was a
fiancée for whom lobolo has been paid and not yet a makoti in the correct way, Mr M[...] Snr
also told the Court.14
[38] Counsel for the plaintiff had the following to say about this witness’ testimony. He
stated that a woman becomes the bride after being married and becomes a wife after payment
of lobolo. And, yet, he also testified that according to him there was no marriage between the
parties, due to the non-registration of th e marriage and not due to non-performance of the
rituals. Regarding the visit to his home by Mr N[...], counsel argued that it is highly
improbable - given the distance Mr N[...] had to travel from Limpopo to Kwa -Zulu Natal –
that h e would hav e just show n up at th e M[...] homestead without any prior arrangement.
This would have been at the risk of the meeting not materialising. Counsel, also, finds it
highly improbable that - according to Mr M[...] Snr - the meeting with Mr N[...] lasted only
15 minutes when Mr N[...] had testified that it was for more than an hour , again, given the
distance Mr N[...] had to travel for the meeting.
Mr V[...] L[...] M[...] (i.e. the defendant)

Mr V[...] L[...] M[...] (i.e. the defendant)

14 Transcript, Day 3, p 29 at lines 7-9, CL U297.

[39] Mr V[...] L[...] M[...], the defendant, was the last witness to take the stand as a witness
in his case. He told the Court that h e moved (ostensibly from KZN) to Johannesburg in 2010
for work purposes. He met the plaintiff in mid-2012 when they worked together for the same
employer. He lived then in Faerie Glen, Pretoria. She then lived with her sister in Highveld,
Centurion. Later, following the birth of their first child in 2017 , they all began residing
together in Centurion in the house he had bought. When their love relationship started he
informed the plaintiff that he was already in another love relationship with a certain Ms L15
and that he wanted to be a polygamist. His intention was to take Ms L and another Ms T,16 as
his wives, but the plaintiff was against his polygamist plan. She was involved in fights with
these other women. Ms T even obtained a protection order against the plaintiff. Later on, the
plaintiff would include Ms CM in his so -called ‘polygamist plan’. Also, the plaintiff could
not be his first wife or umamkhulu, as her first child was born from a prior relationship. But
during his cross-examination he seemed to be equivocating between saying this was a Zulu
custom to it being his personal preference and not for ‘any man in the street’.17
[40] The rest of the defendant’s testimony included that: (a) he went with abakhongi to the
N[...] family home to negotiate lobol o for the plaintiff , although he was not present in the
actual negotiations and only r eceived reports from abakhongi; (b) they informed him of a
‘roadmap’ on the cultural observations to be made for the completion of the marriage ; (c) it
was agreed during these negotiations that the wedding w ould be in terms of the Zulu custom
and that cultural practices of umembeso,18 umbondo19 and umabo20 were to be observed once

15 I consider it unnecessary to reflect the full names of Ms L, as with Ms CM, referred to above.
16 Ibid.

16 Ibid.
17 Transcript: Day 3, pp 96-97 at lines 25 and 1-2, CL U364-365.
18 According to the defendant umembeso involves the bringing of gifts to the bride’s family and for the
groom to be introduced to the bride’s broader family , neighbours and other relatives . See Transcript:
Day 3, p 42 at lines 19-23, CL U310.
19 According to the defendant umbondo is the next ceremony after umembeso when the bride, who has now
become an ingoduso (fiancée), comes to the groom’s homestead to be introduced to the groom’s family
and neighbours. See Transcript: Day 3, p 42 at lines 24-25, CL U310, and p 43 at lines 1-5, CL U311.

lobolo is paid in full ; (d) abakhongi explained to the plaintiff’s delegation what these
customary practices entailed and the defendant had also discussed with the plaintiff their
cultural differences and the processes to occur after the lobolo negotiations; (e) umabo would
have been conducted on a Friday prior to a white wedding on Saturday, as the plaintiff also
wanted the latt er ceremony; (f) the handover of the plaintiff w ould have occurred during
umabo; (g) no deviation from the cultural processes or stages was agreed, as he was not
informed of any and he would have been part of the discussion thereof; (h) what occurred on
7 November 2020 was the process of umembeso for gift -giving, a lso attended by his four
sisters and three brothers ; (i) no rituals were performed on 7 November 2020, including the
slaughtering of a beast , although his senior mkhongi addressed the guests when thanking the
N[...] family or rendering a vote of thanks ; (j) the plaintiff ought to hav e been taken by the
N[...] family to the M[...] homestead for umbondo where she would have been introduced to
the defendant’s aunts and relatives, and (k) the plaintiff ought to forfeit benefits of marriage
for the reasons set out in the pleadings.
[41] Counsel for the plaintiff argued that, the defendant’s testimony that - in Zulu custom -
a woman who has a child born from a prior relationship cannot be a first wife is devoid of the
truth. For the defendant could not explain why he paid lobolo for the plaintiff first, if she was
prevented by custom to be his first wife. This is devoid of any logic and points to the
defendant being untruthful and impe des his credibility. Further, that t he testimonies of Mr
M[...] Snr and Mr L M[...] did not include this. And, this was not put to the plaintiff or Mr
N[...] when cross-examined, counsel further argued.
[42] Further argument by counsel for the plaintiff included that : (a) t he defendant was

[42] Further argument by counsel for the plaintiff included that : (a) t he defendant was
blatantly dishonest for blaming the Court for allegedly restraining him when probed about
denying knowing the ritual where he was asked to identify the bride amongst other ladies and

20 According to the defendant after umembeso and umbondo, the ceremony of umabo would follow and it
involves the bride being integrated into the groom’s family as a wife. See Transcript: Day 3, p 43 at lines
6-7, CL U311.

said he just saw people crawling on the ground; (b) it was highly improbable and impeding of
the defendant’s credibility his evidence that, after he had paid for a function on 7 November
2020 attended by more than 200 people , 24 of whom had accompanied him, told the Court
that he had no prior idea there would be such a large attendance; (c) the defendant lacked an
explanation why he paid for the whole function , only intended for his family to pay the
remaining part of the lobolo and hand over gifts; (d) as also highly improbable that he had not
seen the photo board that stated ‘traditional wedding’ on the day, despite guests having taken
photos by the board; (e) the defendant, after conceding that the plaintiff left with him and his
family after the function on 7 November 20 20, only to state that this was (‘a circumstantial
issue’) due to lack of space for her and the children at the N[...] family home, but could not
explain why this wasn’t a problem for their previous night ’s stay the re, and (f) as highly
unlikely that the plaintiff - whilst only a fiancée - had given consent to his marriage to Ms
CM, his alleged first wife and attended the handing over ceremony.
Issues requiring determination
[43] From what appears above, it is clear that what essentially requires determination in
this matter is whether the marriage contended for by the plaintiff to exist between her and the
defendant has satisfied the requirements of section 3(1) of the RCMA . Entrenched in such
determination are the following issues: (a) whether the parties were married to each other on
7 November 2020 by way of Pedi custom; (b) whether there was an agreement between the
two families on the observance of the Zulu customs or application of Zulu customary law; (c)
the impact of the defendant’s marriage to Ms CM , if any; (d) joinder of Ms CM as a party to
these proceedings; (e) parental responsibilities and rights of the parties in respect of the minor
children, and (f) costs of suit.

children, and (f) costs of suit.
[44] In my view , the majority of the above issues would be traversed or even disposed of
through a determination of whether the parties entered into or celebrated a marriage in

accordance with customary law, envisaged by section 3(1) of the RCMA . I favour and will
adopt this approach.
[45] As stated above, I disposed of the issue of the non-joinder of Ms CM (raised by the
defendant by way of a special plea) extemporaneously at the beginning of the trial.21 This, in
my view, also disposed of the issue of the possible impact of the defendant’s alleged marriage
to Ms CM.
[46] Ancillary issues to those in the preceding paragraphs – but which would only arise in
the event of this Court finding that there is a valid marriage between the parties , include: (i)
decree of divorce; (ii) division of the joint estate , and (iii) forfeiture of benefits of a marriage
in community of property by the plaintiff . Further issues may arise in the discussion of those
identified. But I, first, turn my attention to the applicable legal principles.

Applicable legal principles
[47] The primary legal principles in this matter relate to whether a customary marriage was
entered into by or celebrated between the parties, as envisaged by section 3(1) of the
RCMA.22 This provision reads as follows in the material part:
For a customary mar riage entered into after the commencement of this Act to be
valid-
(a) the prospective spouses-
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance
with customary law.

[48] Section 1 of the RCMA defines ‘customary law’ , referred to in section 3(1)(b) of the
RCMA, quoted above, as ‘the customs and usages traditionally observed among the

21 Footnote 3 above.
22 Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020) (‘Tsambo v Sengadi’) [15]; Ngwenyama
v Mayelane and Another 2012 (4) SA 527 (SCA); [2012] 3 All SA 408 (SCA) [23].

indigenous African peoples of South Africa and which form part of the culture of those
peoples’.23 This definition is understood, generally, as referring to living customary law.24
[49] The principle of living customary law is attested by the absence in section 3(1)(b) of
an indication of which customary law is to apply, including, as in this matt er, where there is
competing sets of customs. And, the provision does not stipulate the requirements in terms of
customary law which ought to be met to validate a customary marriage.
[50] The Supreme Court of Appeal (‘the SCA’) in Mbungela v Mkabi explained that ‘the
legislature left it open for the various communities to give content to section 3(1)(b) in
accordance with their lived experiences’.25 The SCA echoed the caution by the Constitutional
Court that the courts be conscious of the fact that customary law regulates people ’s lives and
that the need for the courts to remain flexible and the requirement to facilitate the
development of customary law ‘be balanced against the value of legal certainty, respect for
vested rights and the protection of constitutional rights ’.26 Further, that t he courts ought to
strive towards the recognition and giving effect to the principle of customary law which is
living, actually observed in order to accord with its development which comport with the
‘spirit, purport and objects’ of the Constitution of the Republic of South Africa Act , 1996
(‘the Constitution’) within a community, ‘to the extent consistent with adequately upholding
the protection of rights’.27

23 Mbungela v Mkabi [17].
24 Fatima Osman, Sky Kruger, Micaela Lara Bebington, Jaime Lilleen Uranovsky ‘Left in Limbo: The
Status of the Handing Over of the Bride in Customary Marriages Post Sengadi v Tsambo ’ PER / PELJ
2025(28) (‘Osman et al ‘The Status of the Handing Over of the Bride ’’) at 3 and the authorities cited
there. See also Chuma Himonga ‘Chapter 7 The Dissolution of a Customary Marriage by Divorce ’ in

Jacqueline Heaton (ed) The Law of Divorce and Dissolution of Life Partnerships in South Africa (Juta
Cape Town 2014) (‘Himonga ‘The Dissolution of a Customary Marriage by Divorce’) at 232.
25 Mbungela v Mkabi [17]. See also Osman et al ‘The Status of the Handing Over of the Bride’ 3-4.
26 Mbungela v Mkabi [18], partly relying Shilubana and Others v Nwamitwa (CCT 03/07) [2008] ZACC 9;
2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) (4 June 2008) (‘Shilubana v Nwamitwa’) [47]. See also
Mabena v Ramonaka and Others (2529/2022) [2025] ZAGPJHC 128 (13 February 2025) per Minnaar
AJ [12].
27 Mbungela v Mkabi [18] relying on Shilubana v Nwamitwa 2008 (9) BCLR 914 (CC); 2009 (2) SA 66
(CC) [49]. See also Mabena v Ramonaka [2025] ZAGPJHC 128 [12].

[51] In MN v MM and Another 28 the SCA recognised the fact that the requirements for the
celebration of a customary marriage are not specified in the RCMA, as the legislature had
purposefully deferred to the customary law buoyed by its living nature. 29 In other words,
section 3(1)(b) is met when the celebrations in terms o f customary law, generally, comport
with the applicable customs to a given set of circumstances. 30 But, the fulfilment of the three
requirements in section 3(1) gives rise to a monogamous or polygamous customary
marriage.31
[52] A paramount consideration ought to be that customary law is a dynamic system of
law.32 It, naturally, is a system which is continuously evolving, 33 within the realm of norms
and values consistent with the Constitution in a quest to cater for changing needs of those
observing those norms. 34 The Constitutional Court in Shilubana v Nwamitwa aidfully held
that the determination of the content of the customary law system requires that reference be
made to current and historical practices of the material community.35
[53] It has always been pragmatic and flexible and ‘[s]trict adherence to ritual formulae’ is
not always required in ‘close-knit, rural communities, where certainty was neither a necessity
nor a value ’.36 Compliance with ritualistic practices or customs may be waived, as customs
are n ot static in nature, but develop and modify as with the society in which they are
practised.37 And the principle of living customary law dictates that a marriage is not rendered

28 MN v MM 2012 (4) SA 527 (SCA) ; [2012] 3 All SA 408 (SCA), also reported as Ngwenyama v
Mayelane and Another 2012 (4) SA 527 (SCA); [2012] 3 All SA 408 (SCA) (‘MN v MM’).
29 MN v MM [23]; Shilubana v Nwamitwa [81]; Tsambo v Sengadi [18].
30 MN v MM And Another 2012 (4) SA 527 (SCA) [23].
31 Ibid.
32 Moropane v Southon (755/2012) [2014] ZASCA 76 (29 May 2014) [36], [38]; Bhe and Others v

Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1)
BCLR 1 (CC) (15 October 2004) [153]; Tsambo v Sengadi [15]; MN v MM [23]; Mbungela v Mkabi [17].
33 Shilubana v Nwamitwa [45]; Tsambo v Sengadi [17]; Mbungela v Mkabi [17].
34 Mbungela v Mkabi [17], relying on Alexkor Ltd and Another v Richtersveld Community and Others
(CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003)
[52]-[53]; Bhe v Khayelitsha Magistrate 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) [81], [86]-[87].
35 Shilubana v Nwamitwa [44]-[46]; Mbungela v Mkabi [17].
36 Tsambo v Sengadi [17], relying on TW Bennett A Sourcebook of African Customary Law for Southern
Africa (2004) at 194.
37 Moropane v Southon (755/2012) [2014] ZASCA 76 [36]; Tsambo v Sengadi [18].

invalid by lack of strict compliance with all ceremonies and rituals historically to be observed
where such marriage ‘ has otherwise been negotiated, concluded or celebrated in accordance
with customary law’.38
[54] Of particular significance to the facts of this matte r is the process or ceremony
concerning the handing over of the bride. This ceremony is purely intended to mark the start
of a marital consortium by way of the customary marriage of the spouses and introduction of
the bride to the bridegroom’s family, as the bride’s new family.39
[55] In Tsambo v Sengadi, the SCA dealt with an appeal from this Division concerning
whether a valid customary law marriage existe d between the deceased , Mr Tsambo and the
respondent, Ms Sengadi . The appellant, as the father of the deceased, contended that there
was no handing over of the respondent as the bride in accordance with the customary law
envisaged in section 3(1)(b). The SCA relied on the academic view that the Sotho-Tswana
people celebrate the wedding at the family home of the bride, which also serves as the venue
for lobolo negotiations.40 And that some communities effect the handing over of the bride
physically on wedding day.41 The customs observed upon fulfilment of the lobolo agreement
are that: (a) the guardian of the bride would provide a beast to be slaughtered; (b) each of the
two parties would receive half share of the meat; (c) the entrails of the slaughtered beast
would be used to perform certain ceremonies.42 The slaughtering of the animal denotes the
completion of the agreement on lobolo and the consummation of the customary marriage .43
The point of this custom is not blunted by the fact that the bride – as it is usually the case -
may not have left with the delegation of the bridegroom on the day of the occasion.44

38 Tsambo v Sengadi [18], partly relying on Shilubana v Nwamitwa [81].
39 Mbungela and Another v Mkabi and Others [25], [30]; Tsambo v Sengadi [26]. See also TW Bennett

Customary Law in South Africa (Juta Cape Town 2004) at 213.
40 Tsambo v Sengadi [12], relying on J C Bekker Seymour’s Customary Law in Southern Africa Juta 5 ed
(1989) (‘Bekker Seymour’s Customary Law’) at 109.
41 Tsambo v Sengadi [12], relying on Bekker Seymour’s Customary Law at 109.
42 Tsambo v Sengadi [12], relying on Bekker Seymour’s Customary Law at 113-114.
43 Ibid.
44 Ibid.

[56] In Mbungela v Mkabi, the SCA upheld an appeal against the decision of this Division
which declared the marriage between Mr Mkabi, the first respondent, to the late Ms
Mbungela as compliant with section 3(1)(b) and, thus, rejecting the claim by the appellant
(i.e. Mr Mbungela, the deceased’s elder brother and head of her family) that the deceased was
never handed over by her family as required by custom. The SCA held that it is significant to
observe traditional usages and customs serving as the ingredients and definition of t he
provenance of African culture and to keep in mind the value to the bridal transfer custom. 45
But the quest ought to be the avoidance of potentially untenable outcome of an inflexible
approach that a valid customary marriage would not exist even if only a single ritual -
amongst other requirements of section 3(1) - has not been observed.46
[57] The reference ‘i ntegration’ is preferr able than the phrase ‘handing over ’.47 For
integration denotes a series or number of rituals symbolising the final acceptance of the bride
into the family of the groom.48 ‘Handing over’, as a concept used by the courts, refers to both
handing over of the bride in the narrow and wide sense s, but the two are different in
meaning.49 In its wide sense, it is a process constituted by various rituals.50 One of the rituals
is the actual transfer of the bride to the family of the groom, which denotes ‘handing over’ in
the narrow sense.51 Integration in the wide sense, constituted by a series of rituals, renders the
bride a member of the family of the bridegroom , as opposed to integration in the narrow
sense, comprising a single act of physical transfer of the bride.52 The latter takes ‘different
forms and hues across various communities ’.53 Bakker warns that confusion of the wide and
narrow senses of the concept may lead to integration of the bride being incorrectly taken to be

45 Mbungela v Mkabi [27].
46 Ibid.
47 Bakker ‘Integration of the Bride’ 4-5, 9-10.

45 Mbungela v Mkabi [27].
46 Ibid.
47 Bakker ‘Integration of the Bride’ 4-5, 9-10.
48 Bakker ‘Integration of the Bride’ 4-5.
49 Bakker ‘Integration of the Bride’ 4-5, 6.
50 Bakker ‘Integration of the Bride’ 4-5.
51 Bakker ‘Integration of the Bride’ 4-5, 8, 26.
52 Bakker ‘Integration of the Bride’ 10.
53 Osman et al ‘The Status of the Handing Over of the Bride’ 5.

synonymous with the handing over of the bride in a narrow sense and, thus, capable of
waiver. This may lead to customary law marriage being wrongly perceived to be similar to a
transaction of sale with the bride relegated to a commodity capable of being physically
handed over to the family of the groom after being purchased by money (represented by
lobolo).54
[58] The author Bakker criticises (as inapplicable to the essential living customary law
requirements f or a customary marriage and, also, as being wrong) the holding that bridal
transfer ceremony or custom may be waived or treated as an optional or non -essential
element of a customary marriage. 55 But t he SCA considered its approach as not being
‘constitutionally reprehensible or repugnant’ to the principle of practised livi ng customary
law of marriage in a continuously evolving society. 56 The attainment of this ideal would
signify the development of the system and protection of the interests of affected vulnerable
parties - in deserving cases – as dictated by the spirit, pur port and objects of the
Constitution.57
[59] In Bakker’s opinion how integration of the bride into the groom ’s family unfolds, in
terms of ritual(s) , may be agreed upon by the families, either explicitly or implicitly , for
example, by replacing the bile anointment ceremony with a church wedding .58 And, that the
SCA adopted a correct approach in shunning the advocacy of strict observance of all rituals
before recognition of a customary marriage as valid , particularly where the parties have
satisfied the formal requirements under section 3(1)(a) of the RCMA.59 Further, Osman et al
opine that, d epending on the community involved, integration may be virilocal or patrilocal

54 Bakker ‘Integration of the Bride’ 7.
55 Bakker ‘Integration of the Bride’ 6, 7-8, 14-15, 18-19. See also TW Bennett Customary Law in South
Africa (Juta Cape Town 2004) at 216, as cited with approval in Mbungela v Mkabi [29].
56 Mbungela v Mkabi [29].

56 Mbungela v Mkabi [29].
57 Mbungela v Mkabi [29].
58 Bakker ‘Integration of the Bride’ 15, 16-17.
59 Bakker ‘Integration of the Bride’ 20 , critically analysing Tsambo v Sengadi [15]-[18]; Ngwenyama v
Mayelane 2012 4 SA 527 (SCA) [23]. See par [47] above, for a reading of s 3(1)(a) of the RCMA.

(i.e. at the home of the groom) on the day of the wedding or uxorilocal (at the home of the
bride) with the father or guardian of the bride slaughtering a beast.60
[60] Overall, the authors Osman et al remind us that the integration of the bride forms part
of the requirements embedded in section 3(1)(b) of the RCMA that a valid marriage be
negotiated and entered into or celebrated accord ing to customary law , and it is not a
requirement to be additionally and extraneously imposed on parties.61
[61] I t urn to the concept of c ohabitation. Cohabitation after celebration is considered a
significant feature which comport with the existence of a marriage and is a useful aid to infer
the intention of the parties, especially where there is no objection from the woman’s father or
guardian.62 It is common cause in this matter that the parties cohabited prior to and after 7
November 2020.
[62] Another set of legal principles relevant to this matter relates to the concept of
forfeiture. It is trite that in a joint estate, the assets and liabilities ought to be divided equally
between the spouses, unless an order in terms of section 9 of the Divorce Act 70 of 1979 is
granted by the divorce court for forfeiture of the benefits of the marriage in community of
property. The defendant claims forfeiture in accordance with section 9, which provision reads
as follows in the material part:
(1) When a d ecree of divorce is granted on the ground of the irretrievable break -
down of a marriage, including a Muslim marriage, the court may make an order that
the patrimonial benefits of the marriage b e forfeited by one party in favour of the
other, either wholly or in part, if the court, having regard to the duration of the
marriage, the circumstances which gave rise to the break -down thereof and any
substantial misconduct on the part of either of the parties, is satisfied that, if the
order for forfeiture is not made, the one party will in relation to the other be unduly
benefited.

benefited.


[63] Section 8(4) of the RCMA renders section 9 (and a cohort of other provisions ) of the
Divorce Act applicable to the dissolution of a customary marriage under the RCMA.

60 Osman et al ‘The Status of the Handing Over of the Bride’ 5 and the authorities cited there.
61 Osman et al ‘The Status of the Handing Over of the Bride’ 4.
62 Mbungela v Mkabi [25], [30]; Tsambo v Sengadi [27], relying on T W Bennett A Sourcebook of African
Customary Law for Southern Africa (2004) at 195, 219; Bekker Seymour’s Customary Law at 108-109.

[64] When determining whether to grant an order of forfeiture the Court ought to answer
the question whether without such an order being made the one party would have unduly
benefitted when consideration is given to the factors mentioned in section 9(1) of the Divorce
Act, namely, the duration of the marriage, substantial misconduct on the part of one or both
of the parties, if any, and the circumst ances which l ed to t he br eak-up of th e marriage.63
There are no other factors to consider beyond those in this provision.64
[65] In KT v MR,65 Kollapen J (whilst still in this Division) - using a dictionary - held that
the word ‘undue’ (in the phrase ‘unduly benefited ’ in section 9(1)) means ‘unwarranted or
inappropriate because excessive or disproportionate’.66
[66] In Wijker v Wijker67 the Appellate Division (the somewhat predecessor to the SCA)
held regarding section 9 of the Divorce Act:
It is obvious from the wording of the section that the first step is to determine
whether or not the party against whom the order is sought will in fact be benefited.
That will be purely a factual issue. Once that has been established the trial Court
must determine, having regard to the factors mentioned in the section, whether or
not that party will in relation to the other be unduly benefited if a forfeiture order is
not made. Although the second determination is a value judgment, it is made by the
trial Court after having considered the facts falling within the compass of the three
factors mentioned in the section.68

[67] And further (still in Wijker v Wijker) it was held:
The only remaining factor which persuaded the Court a quo to grant the forfeiture
order is that it was considered unfair that the appellant should share in the company
and its assets while he had made hardly any contribution towards its management,
administration and profit -making. The finding that the appellant would be undu ly
benefited if a forfeiture order was not made, was therefore based on a principle of

benefited if a forfeiture order was not made, was therefore based on a principle of
fairness. It seems to me that the learned trial Judge, in adopting this approach, lost
sight of what a marriage in community of property really entails…
The fact that the appellant is entitled to share in the successful business established
by the respondent is a consequence of their marriage in community of property. In

63 Klerk v Klerk 1991 (1) SA 265 (W) ; Botha v Botha 2006 (4) SA 144 (SCA); [2006] 2 All SA 221 (SCA)
(9 March 2006) [8].
64 Jacqueline Heaton ‘Chapter 4 The Proprietary Consequences of Divorce’ in Jacqueline Heaton (ed) The
Law of Divorce and Dissolution of Life Partnerships in South Africa (Juta Cape Town 2014) at 92.
65 KT v MR 2017 (1) SA 97 (GP).
66 KT v MR 2017 (1) SA 97 (GP) [20.17], utilising the South African Concise Oxford Dictionary (2005 ed).
67 Wijker v Wijker 1993 (4) SA 720 (A).
68 Wijker v Wijker 1993 (4) SA 720 (A) at 727D-F.

making a value judgment this equitable principle applied by the Court a quo is not
justified. Not only is it contrary to the basic concept of community of property, but
there is no provision in the section for the application of such a principle.69

[68] Just over a decade later - imbued by the constitutional dispensation, the SCA
explained in Bezuidenhout v Bezuidenhout:70
[27] A thesis which obviously weighed heavily with the Court …was that it would
be in conflict with the anti-discrimination provisions in s 9 of our Constitution… to
undervalue the role of housewife and mother traditionally conferred upon women
by society. In developing this theme, Pincus AJ referred, for example (in para [45]),
to the following statement by the Supreme Court of Canada in Moge v Moge [1992]
3 SCR 813:
'Fair distribution does not, however, mandate a minute detailed accounting of
time, energy and dollars spent in the day to day life of the spouses . . . . What the
Act requires is a fair and equitable distribution of resources to alleviate the
economic consequences of marriage or marriage breakdown for both spouses,
regardless of gender. The reality, however, is that in many if not most marriages,
the wife still remains the economically disadvantaged partner. . . .
[28] I find myself in agreement with the thesis that the traditional role of housewife,
mother and homemaker should not be undervalued because it is not measurable in
terms of money.71

[69] A while back in the KZN Division in Moodley v Moodley72 it had been held that what
the defendant forfeits is not his share of the common property, but only the pecuniary benefit
that he would have otherwise derived from the marriage. It was further held that it was of the
utmost importance that the claimant, in respect of a claim for forfeit ure, must prove some
kind of contribution that exceeds the contribution of the other party towards the joint estate.73
Is there a marriage entered into or celebrated in accordance with customary law?

Is there a marriage entered into or celebrated in accordance with customary law?
General
[70] Section 3(1) of the RCMA , as stated above, set out three requirements for a valid
customary marriage, that the parties: (a) be above 18 years of age; (b) consent to a marriage

69 Wijker v Wijker 1993 (4) SA 720 (A) at 731C-G.
70 Bezuidenhout v Bezuidenhout 2005 (2) SA 187 SCA.
71 Bezuidenhout v Bezuidenhout 2005 (2) SA 187 SCA at 198 (pars [27] -[28]). Section 9 of the Constitution
provides for the right to equality , including as follows: ‘(1) Everyone is equal before the law and has the
right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all
rights and freedoms... (3) The state may not unfairly discriminate directly or indirectly against anyone on
one or m ore grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth …’
72 Moodley v Moodley (7241/2002) [2008] ZAKZHC 48 (14 July 2008).
73 Moodley v Moodley (7241/2002) [2008] ZAKZHC 48 [11].

under customary law; and (c) negotiate and enter into or celebrate the marriage according to
customary law.
[71] Section 3(1)(a) contains what is described as the formal or ‘formalistic’ requirements
for a valid customary marriage.74 But, there is no dispute about the parties having attained the
age of 18 years. What is unclear, though, is whether the defendant disputes that there was
consent by him to be married to the plaintiff under customary law. 75 What is clearly disputed
by the defendant is that a marriage between the plaintiff and him was ‘entered into or
celebrated in accordance with customary law’.76
[72] Section 3(1)(b) contains what is described as the customary law requirements ,77
which incorporates into the RCMA the essential living customary law requirements. 78 The
defendant, among others, says that there were Zulu rituals and customs still outstanding for a
valid customary marriage. But, the disposal of t he latter issue would equally dispose of the
issue of consent.
[73] It is common cause between the parties that the plaintiff is Pedi and the defendant is
Zulu. This confirms that there is no commonality of customs nor a singular customary law
applicable between the m. It is, therefore, not surprising that each of the parties alleged the
existence of an agreement for the marriage or intended marriage (to be ) entered into or
celebrated in terms of the party’s respective customs or customary law.
[74] On the pleadings, the defendant’s case is that the p laintiff and the N[...] family were
informed on 7 November 2020 of outstanding rituals and customs still to be performed before
a valid customary marriage co mes into being . But, i t was only during the trial that the

74 Pieter Bakker ‘Integration of the Bride and the Courts: Is Integration as a Living Customary Law
Requirement Still Required?’ PER / PELJ 2022(25) (‘Bakker ‘Integration of the Bride’) 3, 7.
75 Section 3(1)(a)(ii) of the RCMA.
76 Section 3(1)(b) of the RCMA.

75 Section 3(1)(a)(ii) of the RCMA.
76 Section 3(1)(b) of the RCMA.
77 Bakker ‘Integration of the Bride’ 3.
78 Bakker ‘Integration of the Bride’ 7-8 and the authorities cited there . See pars [ 48]-[53], [58] above on
living customary law.

defendant’s case morphed to include that an agreement on the application of th e Zulu
customs was reached earlier during the lobolo negotiations of September 2018.
[75] The plaintiff’s case on the pleadings is that between 22 September 2018 and 7
November 2020 at Bela Bela, Limpopo , the parties – whilst cognisant of their Zulu and Pedi
customs for a valid marriage – waived and dispensed therewith.79 But during the trial, the
evidence led in the plaintiff’s case was that an agreement was reached between Mr M[...] Snr
and Mr N[...] that Pedi customs will be observed. This, which was labelled a ‘special
arrangement’ by the plaintiff and/or defendant’s counsel during th e trial ,80 was elaborated
upon by Mr N[...] when he testified , but denied by the defendant, Mr M[...] Snr and Mr L
M[...] when they gave evidence.
[76] What is evident from the above is that both parties are alleging negotiated agreements
to observe customs or apply the ir respective customary law. I don’t understand this to denot e
a waiver of certain processes or deviation from any customs or customary law. Simply put the
plaintiff’s case is that an agreement was reached with the defendant or on his behalf to and
enter into or celebrate he r marriage to the defendant in terms of customary law applicable to
the Pedi people. And the defendant says the agreement was for the application of customary
law appli cable to the Zulu people . I m ust immediately state that, this confirms that both
parties, the defendant included, consented to their marriage under customary law in
accordance with section 3(1) (a)(ii) of the RCMA. 81 Therefore, w hat remains is a
determination of the c ustomary law in terms of which the parties agreed celebrate the ir
marriage.82
[77] To dispose of the latter issue the plaintiff will have to establish her alleged agreement
for application of the Pedi customary law . Should the plaintiff succeed in doing so, there

for application of the Pedi customary law . Should the plaintiff succeed in doing so, there

79 Plaintiff’s plea to defendant’s counterclaim pars 91 and 11.1, CL A72 -73 and CL A74 -75; Plaintiff’s
replication par 17.1, CL A93-94.
80 Transcript: Day 1 p 89 lines 7-8, CL U92.
81 Par [47] above for a reading of the provision.
82 Section 3(1)(b) of the RCMA, quoted in par [47] above.

would be no need to determine whether it was agreed that Zulu custom s would apply , as
contended for by the defendant . But, I admit that it will be almost impossible to selectively
review the evidence to pinpoint the elements or absence of the elements for the plaintiff’s
agreement without traversing those for the defendant ’s agreement. A silo approach should
yield to a holistic one in this regard. With this in mind, I approach the issues sequentially.
Was an agreement on observation of Zulu customs concluded in September 2018?
[78] Mr L M[...], the defendant’s older brother and constituent member of abakhongi, told
the Court that an agreement was concluded between the representatives of both families in
September 2018 for marriage in terms of Zulu customs (i.e. the ‘September 2018
agreement’). This was still during the lobolo negotiations.
[79] The September 2018 agreement was very prominent in Mr L M[...]’s mind, despite
the lapse of over six years (by the time of his testimony) that he vividly remembered that
someone was instantaneously sent to go and inform or consult the plaintiff’s parents on the
issue.83 But, Mr N[...] told the Court that h is family’s representatives did not report to him
about the culture issue, but only on the discussions about lobolo . And everything discussed is
recorded in the book (ostensibly referring to the lobolo letter ), which was also signed on
behalf of the M[...] family, he pointed out.
[80] The September 2018 agreement, obviously, is different from the defendant’s own
assertion in the pleadings that the N[...] family including the plaintiff were informed on 7
November 2020 of the outstanding rituals and customs which had to be performed fo r a valid
customary marriage. During the trial, in his evidence in chief, the defendant said that o n 7
November 2020, abakhongi amplified ‘the discussion that happened in [2018] because this is

83 Transcript: Day 2 p 67 at lines 1-11, CL U176.

a process’. 84 He repeated this when cross examined. 85 He expla ined the position in the
pleadings to possibly ‘an omission [by] the lawyers’.86
[81] But, whether the September 2018 agreement is established is depend ent on other
issues, including what I turn to, next.
Was an agreement on the observation of Pedi customs concluded between Mr N[...] and Mr
M[...] Snr (‘the KZN agreement)?
[82] Despite, the September 2018 agreement allegedly concluded with him and his family
(through the intermediary of the delegates to the lobolo negotiations), Mr N[...], the plaintiff’s
father, told the Court that he subsequently travelled from Limpopo to KZN for a meeting with
the defendant’s father, Mr M[...] Snr. The purpose of the visit or meeting was three-fold: (a)
to know the defendant’s father and the family ; (b) ‘ to know where [his] daughter is going
to’,87 and (c), due to cultural differences ( him being P edi and them Zulus), ‘to discuss with
the father about our cultures; how are we going to work [and what they are] expecting from
us before the wedding’.88
[83] According to Mr N[...], he agreed with Mr M[...] Snr that because he is P edi and
they (i.e. the M[...] family) are Zulu, the N[...] family can carry on with its culture as he
‘does not see anything wrong’89 (‘the KZN agreement’) I must stat e that counsel for th e
defendant submitted that Mr N[...] was impermissibly led by the plaintiff’s counsel when
he rendered the above part of his testimony. I disagree, as that’s clearly incorrect. Those
words by Mr N[...] were not choreographed.
[84] Mr M[...] Snr d enied the KZN agreement. He also denied prior notice or
knowledge of Mr N[...]’s visit to him in KZN; estimated the duration of the meeting to be
15 minutes against the one hour by Mr N[...], and told the Court that he had informed Mr

84 Transcript: Day 3, p 69 at lines 5-9, CL U337.
85 Transcript: Day 3, p 105 at lines 14-16, CL U373.
86 Transcript: Day 3, p 105 at lines 20-21, CL U373.

86 Transcript: Day 3, p 105 at lines 20-21, CL U373.
87 Transcript: Day 2 p 36 at lines 21-25, CL U145.
88 Transcript: Day 2 p 37 at lines 8-11, CL U146.
89 Transcript: Day 2 p 37 at lines 14-20, CL U146.

N[...] he has people from his family whom he would send for the bride and not himself
personally.90 Despite the latter statement, he denied that a discussion on the wedding or
marriage took place. I find this an illogical response or reaction when Mr N[...]’s visit was
only for observation of the house for the future accommodation of his daughter.
[85] I gained the impression that Mr M[...] Snr was in no mood to admit anything. He even
denied matters with no particular significance . For example, a fter telling the Court of not
knowing that Mr N[...] was coming to visit, 91 he complained that Mr N[...] was ‘actually
supposed to inform my daughter [i.e. Ms Z [...]], then my daughter would have informed my
son’ and that Mr N[...] was not ‘supposed to go past me, speak to my daughter, then speak to
me’.92 If this suggests his quest for compliance with the minutiae of the Zulu culture, such
quest appears to be absent when he insisted on the production of an outstanding document
from a court of law to establish the marriage between the parties 93 The ‘registration’ issue
was echoed by the defendant when he told the Court that the process of lobolo is only
completed when the parties have registered their marriage, 94 at the Department of Home
Affairs.95 The position of our law is that there is a duty on both spouses in a customary
marriage to ensure regist ration of their marriage,96 although failure to register a customary
marriage has no bearing on the validity of the marriage.97
[86] Based on what appears above, I do not accept the submission by c ounsel for the
defendant that Mr N[...]’s version ought to be disregarded on its veracity, and that of Mr
M[...] Snr be accepted as most probable, to resolve any possible conflict between the ir
versions. For, I find it highly improbable that Mr N[...] would have travelled from Limpopo

90 Transcript: Day 3, p 5 at lines 9-12, CL U273.
91 Transcript: Day 3, p 4 at lines 12-16, CL U272.

91 Transcript: Day 3, p 4 at lines 12-16, CL U272.
92 Transcript: Day 3, pp 18-19 at lines 23-25 and 1-3, CL U286-287.
93 Transcript: Day 3 , p 17 at lines 20-25, CL U285. See also Transcript: Day 3 , p 29 at lines 13-16, CL
U297.
94 Transcript: Day 3, p 87 at lines 15-20, CL U355.
95 Transcript: Day 3, p 88 at lines 14-21, CL U356.
96 Section 4(1) of the RCMA.
97 Section 4(9) of the RCMA.

to KZN to di scuss matters which did not include the wedding. It is common cause that this
was before 7 November 2020 , the date on which lobolo was (to be) fully paid. I also find it
improbable that Mr N[...] would have still decided to visit his counterpart in KZN to discuss
the same issue agreed upon in terms of the September 2018 agreement. If the September 2018
agreement existed – in all probabilities – he would have had to start the discussion by
explaining to Mr M[...] Snr why he wanted to depart from its agreed terms. No doubt, Mr
M[...] Snr would have reminded him of its terms and, perhaps, insisted that Mr N[...] and his
family was bound by its terms. For this would be an a greement reached through abakhongi
(i.e. people from his family whom he had sent for the bride) as he does not personally attends
to this type of matters.98 He would no doubt, had been looking forward to welcome Mr N[...]
again in KZN for the umbondo and umabo ceremonies,99 so a discussion on these latter issues
may probably have feature d. Mr N[...] did not give me the impression that he would have
given his word (i.e. September 2018 agreement) and then – without any cause or, even,
suggestion of ill-feeling between him and the M[...] family or his prospective son-in law, who
was also visiting – turned around and insisted on a new deal or agreement (i.e. the KZN
agreement). The plaintiff w as also visiting the same household on the day of her father ’s
visit. S he even cooked or prepared food for him. These all su ggest that things and
relationships were cordial or normal , for Mr N[...] to have pursued a partisan agenda .
Therefore, on the c ritical aspects I find Mr M[...] Snr’s evidence to have lacked cred ibility
and I reject same, whilst accepting that of Mr N[...]. Therefore, there was indeed a meeting of
the minds from both sides to reach the KZN agreement that the Pedi customs or customary
law would apply.
[87] The objective facts also support the existence of the KZN agreement, including the

[87] The objective facts also support the existence of the KZN agreement, including the
following: (a) a wedding on 7 November 2020 in Bela Bela, Limpopo attended by more than

98 Transcript: Day 3, p 5 at lines 9-12, CL U273.
99 Footnotes 18-19 above.

200 people, 24 of whom accompanied the defendant; (b) the defendant’s solely paying for the
expenses for a function hosted by th e N[...] family, despite his declaration of philanthropic
motivations; (c) the custom to identify the plaintiff amongst other women, as depicted on the
photograph the defendant described as ‘people falling and stuff like that’; (d) photographs of
the wedding and the board referring to a wedding at the venue; (e) goat being offered as
receipt for full payment of lobolo and goat meat shared with the M[...] family, as confirmed
by Mr L M[...], a mkhongi; (f) the plaintiff being handed over to the M[...] family after the
wedding on 7 November 2020, although the defendant said that she followed them back to
Pretoria uninvited and to find accommodation.
[88] Another issue raised by the defendant is the aspect of integration. The contention in
this regard is to the effect that the plaintiff was not integrated into the defendant’s family.
And that the Pedi culture does not dis pose of the integration of a woman into the family of a
man. But the same argument carries with it the concession that integration of the woman –
although an integral part of a customary marriage - can be waived . Obviously, this is only
possible in the narrow sense of the concept of integration.100
[89] Submissions by counsel for the plaintiff include d that, the following confirm ed
integration of the plaintiff into the defendant’s family on 7 November 2020 : (a) reference to
her by Mr L M[...] as ‘ makoti’, despite him saying the plaintiff is still ingoduso; (b) the
plaintiff being donned in a special doek by the defendant’s sisters; (c) goat being offered to
the M[...] family and then – at their request or direction - being slaughtered and meat shared,
and (d) other rituals depicted on the photographic evidence.
[90] I am satisfied that on the basis of the evidence before the Court , assessed against the

[90] I am satisfied that on the basis of the evidence before the Court , assessed against the
authorities including those cited above, that, indeed, integration of the plaintiff has taken
place in both the narrow and wide senses. In the wide sense , it is as submitted by counsel for

100 Par [57] above on both the narrow and wide senses of integration.

the plaintiff in the preceding paragraph. Added to that, is the fact that the plaintiff stayed with
the defendan t as husband and wife from 07 December 2020 until she moved out of the
matrimonial home in June or July 2021. There is no indication that during this period the
defendant or anyone considered her to be anything less than the de fendant’s wife. Integration
in the narrow sense was met when the N[...] family allowed the plaintiff to depart following
the wedding with the M[...] family. Th is accorded with the Pedi living customary law
applicable to the N[...] family and extended in application to the M[...] family – albeit that
they are of a Zulu heritage - in terms of the KZN agreement . And this sufficed for a valid
customary marriage.
[91] The formal introduction of the plaintiff to the defendant’s wider family and other
rituals may have still be en allowed to take place, but those – in my respectful view – would
have been superfluous for purposes of the requirements in section 3(1)(b) of the RCMA and
terms of the KZN agreement. This finding, also, disposes of the defendant’s counterclaim for
declaration that no valid customary marriage exists b etween him and the plaintiff. It will be
dismissed with costs.
Decree of divorce and division of the joint estate
[92] Therefore, pursuant to my finding above that the parties were validly married in terms
of customary law on 7 November 202 0, a decree of divorce is possible. Such order is
attainable where the Court is satisfied that the marriage relationship between the parties has
disintegrated with no reasonable prospect of restoration of a normal marriage relationship
between them.101 I am satisfied that the evidence for such an order is before the Court and,
thus, find that the customary marriage between the parties have suffered an irretrievable
breakdown.102 Consequently, a decree of divorce will be granted for its dissolution.103

101 Section 8(1)-(2) of the RCMA.

101 Section 8(1)-(2) of the RCMA.
102 Section 8(1) -(2) of the RCMA. See also Himonga ‘The Dissolution of a Customary Marriage by
Divorce’ 242.
103 Section 8(1)-(2) of the RCMA.

[93] On 7 November 2020 none of the parties or spouses was ‘ a partner in any other
existing customary marriage ’104 and, thus, the p roprietary consequences of the parties’
customary marriage is that of a marriage in community of property and of profit and loss
between the spouses .105 Approached from another angle, neither of the parties has produced
an antenuptial contract . Therefore, a d ivision of the joint estate may be in the offing ,
depending on the outcome of the next issue to be determined: forfeiture.
Forfeiture of the benefits and division of the joint estate
General
[94] The defendant’s counterclaim includes that this Court makes an order for the whole
forfeiture of the benefits of a marriage in community of property by the plaintiff, as
envisaged by section 9 of the Divorce Act.106
[95] As stated above, this Court may only make an order for forfeiture if satisfied that, i n
its absenc e, the plaintiff would be unduly benefited in relation to the defendant. Th is
determination is guided by the three factors under section 9, namely: (a) the du ration of the
marriage; (b) the circumstances which gave rise to its breakdown, and (c) substantial
misconduct on the part of either of the parties, if any.107
[96] The first part of the determination is whether a party against whom a forfeiture order
is sought will indeed be benefited.108 The determination is, purely, factual. And, if it is shown
that the impugned party would be benefitted, the Court ought to determine whether such
party would be unduly benefited in relation to the other party without a forfeiture order. 109
This second part of the determination constitutes a value judgment to be reached by the Court

104 Section 7(2) of the RCMA.
105 Ibid.
106 Par [62] above, for a reading of s 9 of the Divorce Act.
107 Ibid. See also Klerk v Klerk 1991 (1) SA 265 (W).
108 Wijker v Wijker 1993 (4) SA 720 (A) at 727D-F.
109 Ibid.

after consideration of the facts falling within the remit of the abovementioned three statutory
factors.110
Would the plaintiff be benefited in relation to the defendant?
[97] As stated above, it is first to be determined whether the plaintiff will be benefited
without the order for forfeiture, based on the facts in this matter.111
[98] All the defendant furnished to pivot his case for forfeiture is a list of assets in the
joint estate which, probably, he bought or acquired from what he considers to be his
‘exclusive’ resources.112 The plaintiff, either, has not – for this purpose – provided a list of
the assets in the joint estate which, probably, she bought or acquired from her ‘exclusive’
resources.113 She, obviously, is moving for an order for the equal division of the joint estate.
[99] The plaintiff, no doubt, also made a financial contribution. This mostly – it appears –
was with regard to meeting expenses of the children . Th ere is no suggestion that she was
frugal in her expenditure, but only that her financial resources are limited. The defendant – no
doubt – appreciated that the circumstances between the parties dictate this when he sought to
explain why he exclusively paid for the wedding on 7 November 2020 .114 In fact, the
plaintiff’s contribution was mostly in non -financial means . She appears to have made
contribution ‘her way’ by bearing responsibilities for the general upkeep of the household
and the primary caregiving of the children. 115 Often, this type of contribution is not given a
commensurate value or is even ignored when the determiner of fact is preoccupied with
commercial considerations. But – no doubt - this is a very valuable contribution with a direct
impact on the household, particularly the upbringing of minor children.

110 Wijker v Wijker 1993 (4) SA 720 (A) at 727D-F.
111 Ibid.
112 Defendant’s counterclaim at par 14.3, CL A54-55.
113 Ibid.
114 Transcript: Day 3, p 122 at lines 15-17, CL U390.

113 Ibid.
114 Transcript: Day 3, p 122 at lines 15-17, CL U390.
115 Transcript: Day 3, p 146 at line 7, CL U414.

[100] I do not think that it broaches any meaningful argument that the defendant has
contributed more into the joint estate than the plaintiff when viewed from only a financial or
asset point of view. But there is no evidence of the value of the assets and estimate of the
liabilities in the estate or at least the quantum of the alleged undue benefit he urges that be
forfeited by the plaintiff in his favour.
[101] On what is before the Court, I am satisfied that the plaintiff would be benefitted by an
equal division of the joint estate. Th is is purely from a factual review of the facts, although it
still needs to be emphasised that it is mammoth task to value con tribution as to the primary
caregiving of children or other non -financial contribution . In this matter , there are three
minor children one or more of them with known challenges.
[102] But, it is inescapable at this stage of the determination to steer far away from shores
of matters of rands and cents. Perhaps, non -financial contribution features strongly in the
determination of whether the benefitted party would be unduly benefitted, which is discussed
next.
Would the plaintiff be unduly benefited in relation to the defendant?
General
[103] Determination of whether the plaintiff would be unduly benefitted when compared to
the defendant, if the Court does not grant a for feiture order , as stated above, constitutes a
value judgment.
[104] This ought to be based on consideration of the facts in this matt er falling within
the scope of the abovementioned three statutory factors. 116 And the dictionary meaning of
‘undue’ will be of some aid.117


Duration of the marriage

116 Pars [62], [95] above.
117 KT v MR 2017 (1) SA 97 (GP) par 20.17. See par [65] above.

[105] The first factor to consid er is the duration of the marriag e. The defendant says the
marriage was for only seven months and, thus, of a short duration . This will b e a duration
calculated from the date of the wedding on 7 November 2020 to, perhaps, June 2021 when
the plaintiff institute d these divorce proceedings. And the plaintiff urges the Court to
consider, that the parties had a previous love or romantic relationship since 2012 before their
marriage in November 2020 , and three children were born between April 2017 and August
2020 from their relationship.
[106] There is no statutory guide as to relevant considerations for the issue of duration.
Actually, the legislature has not stated that a short or long marriage is a consideration which
should satisfy the Court to grant or refuse – as the case may be - a forfeiture order.
[107] In this matter, the parties have actually decided to get married by the time the lobolo
negotiations were held on 22 September 2018. Although dates are necessary as they promote
certainty of time in modern times, the intricacies of a customary marriage renders it not
always sensible to pinpoint one day on the Gregorian calendar as the com mencement of a
customary marriage. Unfortunately, where there is a dispute as to the consummation of a
customary marriage or those of similar nature, as in this matter, the Court has to reach for the
calendar.
[108] Another consideration is that, the parties have been cohabiting for years before the
plaintiff walked out of the matrimonial home in 2021. It is common cause that the partie s
lived under one roof by the time of the birth of their first born child in April 2017. The
plaintiff placed the cohabitation to far earlier than 2017. But , I find April 2017 to be a
reasonable pinpoint in this regard. And even if one assumes that the notion of marriage has
by April 2017 not yet crossed either of the parties’ mind, in September 2018 it had settled

by April 2017 not yet crossed either of the parties’ mind, in September 2018 it had settled
there, given the lobolo negotiations. Therefore, given all these, the marriage between the
parties cannot be considered to be of a short duration.

Circumstances which led to the break-down of the marriage
[109] Moving on to consider the circumstances which led to the break -down of the
marriage. The plaintiff cited various grounds in this regard, including infidelity or adultery on
the part of the defendant with other women. Although, the defendant denied this, he admitted
to having relationships with women he considered potential wives and to a pursuit of a
polygamous lifestyle. This appears to be the main factor in the disintegration of the marriage
beyond any reasonable prospect of restoration of a normal marriage relationship between the
parties.
Substantial misconduct by either of the parties
[110] Regarding t he possible substantial misconduct in the breakdown of the marriage , I
must state that I am not (and was not made) aware of any substantial misconduct, let alone of
a serious nature, committed by the plaintiff.
[111] On the part of the defendant, what comes to mind is the defendant’s admitted
relationships with other women , one of which is said to have led to a ‘customary marriage’.
But, amidst all other facts, I do not consider it necessary to determine whether this constitute
substantial misconduct on the part of the defendant. It has already featured prominently in the
preceding subheading.
Conclusion
[112] Considering what is stated above, I am not convinced that the benefit to be derived by
the plaintiff is ‘unwarranted or inappropriate ’ due to its excessive or disproportionate
nature.118
[113] The plaintiff app ears to have started working after he relocated to Johannesburg in
2010 for work purposes. He purchased a house on som e undisclosed date into which the
plaintiff moved in around April 2017 wh en they welcomed their first child. The plaintiff
would had the house and pension fund membership for hardly five to six years by then and

118 KT v MR 2017 (1) SA 97 (GP) [20.17], referred to in par [65] above.

six to seven years around the lobolo negotiations in September 2018. No values have been
provided, as lamented above . The house would probably be subjec t to an encumbrance in
favour of a financial institution. Beyond these assets , there are only motor vehicles and
household furniture.
[114] In my view the growth or accumulation of the assets now forming part of the joint
estate at the instance of the defendant, without the contribution of the plaintiff is not
substantial. The defendant was for most of this duration supported by the plaintiff , including
through her non-financial, but still immensely valuable, contribution.
[115] Therefore, I find that t he plaintiff would not be unduly benefitted when compared to
the defendant if the Court does not grant a forfeiture . The defendant’s counterclaim for a
forfeiture order sought against the plaintiff will be dismissed with costs.
Division of the joint estate
[116] The dismissal of the counterclaim for forfeiture clears the way for the division of the
joint estate. This will be ordered . The order will also specify that payment is to be made to
the plaintiff of half or 50% of the pension interest of the defendant pension fund.
Parental rights and responsibilities in respect of the minor children
[117] In the written closing argument by their counsel, the parties indicated to the Court that
they have agreed on an order to be made regarding retention of the parental rights and
responsibilities in respect of the three minor children born between the m, as provided by the
Children’s Act.
[118] The Family Advocate made recommendations in respect of the defendant’s contact
with the children which are to be incorporated in the order to be made by the Court, including
the appointment of a parental coordinator for purposes of execution of the order.
[119] The issue of contribution towards the maintenance for the children by the defendant is
still in dispute . The plaintiff seeks no maintenance for herself. In the summons the plaintiff

had sought that the defendant contribute maintenance through monthly payment of R10 000

(ten thousand rand) for each child. But on 29 November 2021 the Court provisionally ordered
that the defendant pay R15 000 (fifteen thousand rand) per month for each child in the Rule
43 proceedings. During the hearing the amount increased to R20 000 (twenty thousand rand)
per child e ach month. But plaintiff counsel – in her written closing argument – urged the
Court to retain the R15 000 in the Rule 43 order , with the proviso that either of the parties
may approach the maintenance court with jurisdiction for either increment or reduction in the
amount. The defendant is not agreeable to this.
[120] I find the facts before the Court to justify the retention of the amount of R15 000 per
month as the defendant’s contribution towards maintenance for each of the three minor
children. This will b e ordered, including payment by the defendant of any shortfall in the
medical expenses incurred for the children not met by the medical aid scheme and all
reasonable expenses incurred in respect of the education of the minor children. Details on all
these appear in the order below.
Conclusion and costs
[121] The plaintiff is substantially successful and – as per the convention – she will be
awarded costs of suit.
[122] I have noted t he defendant’s view that an appropriate order would be that each party
be responsible for his/her own costs, given the parties ’ continuous parental relationship. But,
I am not swayed to depart from the convention . Therefore, the defendant will be held liable
for the applicable costs at the scale of party and party.
[123] I will allow either of the parties to avail a draft order on the exact terms of the order
appearing below.
Order
[124] In the premises, I ma ke the order, (which may also appear in a signed draft order as
stated in par [123] above), that:
1. a valid customary marriage in community of property was entered into between the

parties on 7 November 2020;
2. a decree of divorce is granted;
3. the joint estate of the parties shall be divided;
4. the defendant shall pay to the plaintiff one half of the defendant’s pension interest in
the defendant’s pension fund at the defendant’s place of employment at THE
SAFETY
AND SECURITY SETA , calculated as at date of divorce and payable in terms of
Section 37D of the Pension Fund Act, Act No 24 of 1956;
5. an endorsement shall be noted against the records of the defendant’s pension fund in
terms of the provisions of paragraph 4 hereof;
6. both parties retain full parental rights and responsibilities and guardianship in terms of
section 18 of the Children's Act 38 of 2005;
7. the primary residence of the minor children is awarded to the plaintiff;
8. the defendant is to exercise contact with the minor children as follows:
8.1 contact every alternate weekend from Friday at 17h00 to Sunday 17h00;
8.2 alternate short and half of every long school holidays, Christmas and New Year to be
shared and rotate between the parties;
8.3 contact with both parties on special calendar days such as birthdays of the children,
mother’s day and father’s day and birthdays of both parties, and
8.4 regular telephonic contact between the minor children and the defendant as arranged
between the parties.
9. the parties have agreed to the appointment of Ms Heske Sangster as Parental
Coordinator with the powers and duties as set out in Annexure ‘A’ to this order or
judgment;
10. the defendant shall pay maintenance for the minor children to the plaintiff as follows:
10.1 an amount of R15 000 ( fifteen thousand rand) for each child from the first day of the
month following the granting of this order and thereafter on or before the first day of
each and every successive month;
10.2 the defendant is to pay the shortfall incurred for an d in respect of medical expenses
for the children that are not covered by the medical aid scheme on demand. In the

for the children that are not covered by the medical aid scheme on demand. In the
event of plaintiff making payment thereof , the defendant shall reimburse the plaintiff
for any such payment she has made within seven days after date of presentation to the
defendant of an invoice therefor.

10.3 the defendant is to pay all reasonable expenses incurred in respect of the minor
children’s education, such costs to include, without limiting the generality of the
aforegoing, all school fees, holiday -care fees, additional tuition fees , as well as the
costs of all extra -curricular school and s porting activities (including school tours and
outings) in which they may participate, as well as the costs of all books, stationary,
school uniforms, equipment and attire relating to their education and/or the sporting
and/or extra-mural activities engage d in by them. The defendant shall reimburse the
plaintiff for all expenses so incurred in respect of which she has made payment or
shall make payment directly to the service providers, as the case may be within 5
(five) days of the plaintiff providing the defendant with proof of payment and/or the
relevant invoice.
10.4 the parties agree that either of them may approach a maintenance court with
jurisdiction for an increase or decrease in the amount payable for maintenance, as
ordered in this paragraph 10, without either party having to show good cause, and
11. the defendant is liable to pay the plaintiff’s costs of suit.


___________________________
Khashane La M. Manamela
Acting Judge of the High Court



Dates of Hearing : 8 and 14 May 2025
Date of Final Closing Argument : 01 July 2025
Date of Judgment : 13 November 2025



Appearances :
For the Plaintiff : Ms M Fabricius
Instructed by : Shapiro Ledwaba Attorneys, Pretoria


For the Defendant : Ms Z Qono
Instructed by : Zikalala Attorneys, Durban
c/o Makula Attorneys, Pretoria