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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 8467/2021
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
Date: 09/12/2025
Signature
IN THE MATTER BETWEEN:
NKHENSANI MASHELE APPLICANT
AND
NTSAKO NWAMITWA 1ST RESPONDENT
MASTER OF THE HIGH COURT 2ND RESPONDENT
THE DEPARTMENT OF HOME AFFAIRS 3RD RESPONDENT
_______________________________________________________________
JUDGMENT
_______________________________________________________________
NGOBENI J
[1] “It is established that customary law is a dynamic, flexible system, which
continuously evolves within the context of its values and norms,
consistently with the Constitution, so as to meet the changing needs of
the people who live by its norms” This is taken from paragraph 17 of the
judgment in Mbungela & another v Mkabi & others (820/2018) [2019]
ZASCA 134 (30 September 2019).
[2] The applicant is Nkhensani Mashele, an adult female person, born on 18
January 1988, residing at Robeni village. The 1 st respondent is Ntsako
Nwamitwa, an adult female person, residing at Tarentaalrand, Tzaneen,
Limpopo Provi nce. The 2 nd respondent is the Master of the High Court,
Polokwane, a person appointed as such in terms of the laws of the
Republic of South Africa, with its principal place of business at the High
Court Building, Biccard street, Polokwane. The third respo ndent is the
Department of Home Affairs, a Ministry established in terms of the
Constitution of the Republic with its principal place of business at
Hallmark building, 2[…] J[…] R[…] street, Pretoria.
[3] The applicant seeks an order for the following prayers:
(i) that the customary marriage between her and the late Doctor Given
Mathebula (the deceased) concluded on 29 November 2014 be
confirmed and declared valid,
(ii) that the marriage between the 1 st respondent and the deceased
entered into on 01 August 2020 be declared invalid and be nullified,
(iii) alternatively, in the event the court finds that the customary
marriage between the 1 st respondent and the deceased is lawful
and valid, that it be found that such marriage is out of community
of property,
(iv) that the 1 st respondent be barred from acting as executor of the
estate of the deceased pending the granting of the final order in
this matter,
(v) that the 1st respondent pays costs of this application.
[4] The applicant alleges that she fell in love with the deceased in the year
2002. A child was born out of that relationship on 11 Marh 2005. She had
moved to stay with the deceased after falling pregnant at his parental
home and continued to do so. On 29 November 2014, the deceased paid
lobola for her, in t he presence of her family members and the deceased
had sent six emissaries to her home. The two families agreed on an
amount of R19 500-00, but only R8000 -00 was paid, and the balance
remaining was R11 500-00. Her aunt informed her that the lobola
negotiations were concluded and the families reached an agreement.
[5] There was food which was cooked. Neighbours and other relatives came
and celebrated with them. Around 20 h00 on that day the deceased came
to fetch her and went to the parental home of the dec eased where they
were staying. At the parental home of the deceased, she was welcome,
and a report was given to the family of the deceased, and food was
served. In the year 2019 they experienced marital problems which even
led to physical abuse, and she ev entually left back to her parental home,
but left her child at the home of the deceased. The deceased died on 07
March 2021.
[6] Their customary marriage was not registered. Around June 2020 she
received information that the deceased was paying lobola for the first
respondent. She was eventually issued with a marriage certificate
posthumously. The first respondent appears to have also obtained a
marriage certificate posthumously and the letters of executorship have
been issued to her. The applicant further states that the first respondent
and her child are not entitled from benefiting from the estate of the
deceased as she is the lawful wife of the deceased and also that the child
of the first respondent is not the biological child of the deceased.
[7] Olma Nurse Makabinge, is according to the confirmatory affidavit a male
unemployed person who is the brother to the deceased, but the copy of
the identity document attached shows that she is a female person born
on 06 March 1976. The confirmatory affida vit of Tshepo James
Mamorobela is also attached which describes that the deponent is an
adult female person, and the copy of the identity document that was
attached show that it is a male person born on 10 November 1968. I
believe that due attention and di ligence was not exercised when the said
affidavits were prepared. The confirmatory affidavit of the father of the
deceased Shaniseka Shadrack Mashele is attached. The confirmatory
affidavit of the mother of the applicant is also attached.
[8] The first respondent on the other hand states that as she was in a
romantic relationship with the deceased, his family and her family
convened at her home on 01 August 2020 for lobola negotiations. Her
family asked R50 000-00 as lobola price, but the family of the deceased
managed to pay only R34 500-00. There was a celebration, food and
drinks were served. The first respondent attached pictures of the
celebration. The pictures clearly depict a wedding celebration. The first
respondent was after the celebration acco mpanied by her aunts to the
parental home of the deceased. There was a feast prepared at the home
of the deceased, where she was welcome with a celebration.
[9] When she started staying with the deceased, she found the deceased
staying with his daughter, and he had informed her that he was in a love
relationship with the mother of his child and they had since broken up.
She was responsible for taking care of the deceased together with his
family members as he was wheelchair bound. She denies that she
obtained the letter of executorship fraudulently.
[10] She denies that the applicant was married to the deceased at the time
that she entered into a marriage relationship with the deceased. If the
court finds that a valid customary marriage was concluded b etween the
deceased and the applicant at the date when she concluded a valid
customary marriage with the deceased, her submission is that consent
was not required or could not be obtained because the deceased and the
applicant never stayed together as husb and and wife or have not stayed
together as husband and wife years prior to her customary marriage
being concluded.
[11] Ngomana Mujaji Martha, Dala Lawrence Nwamitwa, Elias Mkhubele and
Ngomana Velly were the emissaries of the first respondent (although in
their affidavits it is mentioned that they were representing the second
respondent- which is clearly not correct). The confirmatory affidavit of
Kgapane Abel Sebola is attached although it does not bear a date on
which it was commissioned.
[12] It was clarified in the replying affidavit that the deceased was actually
involved in an initial accident on 11 August 2012 which resulted in
injuries that made him to be wheelchair bound.
[13] The issue in dispute between the applicant and the first respondent is
whether the appellant was by law required to give consent to the
deceased to marry the first respondent as she was still married to the
deceased as of 01 August 2020, as they were never divorced.
[14] On 15 November 2000 the Recognition of Customary Marriages Act1 came
into operation. The recognition of customary marriages is governed by
the Recognition of Customary Marriages Act 120 of 1998 (RCMA or Act
120 of 1998 ). It governs the recognition of customary marriages which
were entered into after the said Act came into operation. The
requirements for the validity of a customary marriage are the following in
terms of section 3(1) of Act 120 of 1998:
(1) For a customary marriage 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
1 120 of 1998.
(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.
[15] Customary mar riages are in their nature mostly not monogamous and
because of that it is necessary that proprietary consequences of each
marriage in a polygamous set up be clearly determined. Section 7 of
RCMA states the following with regard to proprietary consequences:
7. Proprietary consequences of customary marriages and contractual
capacity of spouses-
“…
(6) A husband in a customary marriage who wishes to enter into a further
customary marriage with another woman after the commencement of this
Act must make an ap plication to the court to approve written contract
which will regulate the future matrimonial property system of his
marriages,
… ”
[16] The court must also mention for the sake of completeness that section
7(2) of Act 120 of 1998 states that a customary marriage entered into
after the commencement of the said Act 120 of 1998 in which a spouse is
not a partner in any other existing customary marriage, is a marriage in
community of property and of profit and loss between the spouses, unless
such consequences are specifically excluded by the spouses in an ante -
nuptial contract which regulates the matrimonial property of their
marriage.
8. Dissolution of customary marriages-
“(1) A customary marriage may only be dissolved by a court by a decree
of divorce on the ground of the irretrievable breakdown of the marriage,
… ”
[17] This court must firstly determine if there is an existence of a valid
customary marriage between the applicant and the deceased and also
determine if there is a valid customary marriag e that was concluded
between the first respondent a nd the deceased. The court has to go
through that exercise first because on each side there is a dispute that a
valid customary marriage was concluded with the opponent. I will
therefore start by determini ng if there is a valid customary marriage
concluded between the applicant and the deceased.
[18] The conclusion of customary marriages may be concluded according to
practices of different ethnic groups, but what remains is that for the court
to declare its validity i t must fall within what has been mentioned in the
provisions of section 3 of the RCMA, which is the basic determination of a
fundamental framework of what a customary marriage is. My
understanding is that the RCMA when formulating the require ments of a
valid customary marriage took into account what all the d ifferent ethnic
groups or tribes subscribe to in the conclusion of their customary
marriages and came to these common practices to determine the
requirements thereof.
[19] The applicant in her founding affidavit states that emissaries were sent to
her home by the family of the deceased on 29 November 2014. She also
mentioned the names of six emissaries from the family of the deceased
who were amongst the people who came to her home to p ay lobola for
her. Olma Nurse Makabinge, Tshepho James Mamorobela deposed to
confirmatory affidavits to say that they were part of the emissaries that
went to pay lobola for the applicant. Shaniseka Shadrack Mashele and
Mthavini Selinah Mashele con firmed t hat they are the parents of the
applicant and that the deceased married their daughter by customar y
rites when he paid lobola for her on 29 November 2014, and the applicant
and the deceased were already staying together at that time.
[20] There is a lobola letter which has been attached to the founding affidavit
of the applicant. The date on the document is not visible, and the
document was not translated to the language of record , which is English
in this case 2. The applicant states in her founding aff idavit that at the
time of the conc lusion of their customary marriage she was already 26
years of age, which means that she was above the age of 18 which is a
requirement for a valid customary marriage in terms of the RCMA. The
court could see from the fou nding affidavit that her identity number
shows that she was born on 18 January 1988. The court cannot say as to
what is stated in the letter, for the reasons that I have stated, but the
court is satisfied as that is not disputed that it is a lobola letter stating the
terms of the negotiations between the families.
[21] The evidence by the applicant is that she was not formally handed over to
the family of the deceased by her family but was fetched by the deceased
from her home after the lobola negotiation s were concluded. That has
been a sticky issue in our courts for some time as to whether in lieu of
formal hand over one can say that a valid customary marriage was
concluded. That led to decisions such as D.R.M. v D.M.K .3, penned by
Makgoba JP (as he then was), a judgment of this Division, where it was
decided that one of the crucial elements of a customary marriage is the
2 Oosthuizen and Another v S (Appeal) (CA&R 248/2021; CA&R 45/2023) [2024] ZAECMKHC 101;2024 (2) SACR
600 (ECMK) (19 September 2024): [17] In February 2003 the Heads of Courts established a committee to prepare and
report on the use of various official languages in Courts and make recommendations in connection therewith. The
Committee recommended that:
‘…, for reasons of practicality, English should be regarded as the language of record for all courts. This should not deny
the litigant, witness or legal practitioner the right, where practicable, to address the court in the language of his or her
choice…. Where contemporaneous translation is not available, the court record or portions of the court record in a
language other than English, must be translated into English.’
language other than English, must be translated into English.’
3 (2017/2016) [2018] ZALMPPHC 62 (7 November 2018), Motsotsoa v Roro & Others (46316/09) [2010] ZAGPJHC
122; [2011] 2 All SA 324 (GSJ) (1 November 2010).
handing over of the bride, and because that requirement was not fulfilled,
the court found the customary marriage entered into to be invalid.
[22] That issue has now been settled by the Supreme Court of Appeal in the
Mbungela case, supra, which I have quoted in the opening paragraph of
this judgment, and also in the case of Tsambo v Sengadi 4, where it was
confirmed that customary law is not static but living traditions and
customs that change with times, and that the handing over ceremony of a
bride is an important but not necessarily a key a determinant of a valid
customary marriage. I am therefore satisfied with the evidence of the
three emissaries and that of the parents of the applicant that indeed a
valid customary marriage was concluded between the applicant and the
deceased.
[23] The determination of whether existed a valid customary marriage
between the deceased and the first respondent must follow the same
process as in the marriage of the applicant and the deceased. There is
also a lobola letter that was attached to the answering affidavit. There are
confirmatory affidavits of Ngomana Mujaji Martha , Dala Lawrence
Nwamitwa, Eli as Makhubele and Ngomana Velly who were emissaries
during the lobola negotiations of the first respondent and the deceased.
The first respondent went further by even attaching photographs of the
4 (244/19) [2020] ZASCA 46 (30 April 2020).
celebration of the marriage between her and the deceased. The first
respondent was even handed over to the family of the deceased by her
aunts where there was even a celebration. The requirements for a
customary marriage were also co ncluded between the first respondent
and the first respondent.
[24] I have already made a finding that a valid customary marriage was
concluded between the applicant and the deceased on 29 November
2014. A customary marriage was also entered between the first
respondent and the deceased as it has been illustrated above on 01
August 2020 . The issue that the court has to decide in this case is
whether the customary marriage that was entered into between the first
respondent and the deceased is invalid by virtue of the fact that the
consent by the applicant was not granted to the deceased b efore he
entered into a customary marriage with the first respondent.
[25] The issue that this court has to decide is not a novel issue because the
Constitutional Court has decided the question of whether the consent by
the first wife is necessary to val idate the subsequent marriage. That
question was answered in the positive by the Constitutional Court in
Mayelane v Ngwenyama and Another (Mayelane case) 5. The
5 (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013).
Constitutional Court basically found that the consent of the first wife is a
requirement for the validity of a customary marriage.
[26] The constitutional guarantees that are enshrined in the Constitution of the
Republic of South Africa, 1996 (Constitution), guaranteeing for instance
the right to dignity and the right to life must be considered in determining
as to whether the consent of the first wife must be given before a
subsequent valid customary marriage can be entered into 6. The facts and
customs of the parties in the Mayelane case, supra, are not farfetched
from the case at hand as the parties in the case at hand are also of
Tsonga de scent. The central issue in the Mayelane case, supra, was
whether the existing wife gave consent for the customary marriage of Ms.
Ngwenyama to be concluded . That is precisely the issue in the case at
hand as well.
[27] On paragraph 23 of the High Court judgment by Bertelsmann J of
Mayelane v Ngwenyama & Another7 (same case quoted above while in the
High Court as the court of first instance ), that court had already raised
concerns about the proprietary consequences of a subsequent customary
marriage, where one was already concluded by saying the following:
6 Ibid footnote 5, supra.
7 (29241/09) [2010] GNDP (24 March 2010).
“Both the existing spouse and the intending further spouse have a vital
interest in having their relative proprietary positions safeguarded by the
procedure that is laid down in sub-section (6)”
[28] The High Court as a court of first instance was also already aware that
the constitutional guarantees that are to be applicable to each an every
person, are also applicable to spouses in customary marria ges, and that
was expressed as follows on paragraph 27 of the said High Court
judgment:
“The most persuasive consideration must however be the gross
infringement of the first or earlier spouses’ fundamental rights. To respect
of their dignity, physical an d emotional integrity, their right to protection
from abuse -in this instance both emotional and economic or material -;
their right to be treated on an equal footing with their husband as
decreed by the Act; their right to equal status as marriage partners
arising from the Act; their right to marital support from their husband;
their right to marital intimacy and trust, which rights flow naturally from
those guaranteed by the Act and the Constitution. A gross infringement of
these rights would be committed i f the husband were to be allowed to
enter into a further marriage without their knowledge and acquiescence”
[29] The Constitutional Court as well emphasised the right to equality and
dignity as being fundamental. That court went further to express that
even though witnesses and experts testified with regard to the customs
and practices of the Xitsonga culture, the court still had the task to bring
customary law in line with the values of the Constitution.
[30] I have already made a finding that a v alid customary marriage existed
between the app licant and the deceased , and that customary marriage
was never dissolved. I have also made a finding that the requirements as
envisaged in the provisions of section 3(1) of the RCMA ha ve been
complied with in as far as the entering into a customary marriage with
regard to the first respondent is concerned, with the issue of validity
being the only last aspect that I have to decide.
[31] The notice of motion has a prayer in the alternative which states that if
the court finds that a valid customary marriage existed between the first
respondent and the deceased, then the court must decl are that marriage
to be out of community of property. In the written argument by the
applicant, that prayer was abandoned. In th e Mayelane case, which is a
guiding case in the case at hand, no mention is made of the creation of
two estates to try and accommodate the two spouses. It is so that the
Supreme Court of Appeal (SCA) in the Mayelane case, found the second
marriage to be va lid as all the requirements for a valid customary
marriage were met, and its reasoning was based on the fact the
interpretation of the provisions of section 7(6) of the RCMA should be
about property and not the validity of the marriage.
[32] The Co nstitutional Court in reasoning against the interpretation by the
SCA in the Mayelane case on the interpretation of section 7(6) of the
RCMA and the right to equality and dignity, had the following to say on
paragraph 72, which I will quote verbatim, so th at the context is not lost
in my interpretation, which is:
“Second, where subsequent customary marriages are entered into
without the knowledge or consent of the first wife, she is unable to
consider or protect her own position. She cannot take an informe d
decision on her personal life, her sexual or reproductive health, or on the
possibly adverse proprietary consequences of a subsequent customary
marriage. Any notion of the first wife’s equality with her husband would
be completely undermined if he were a ble to introduce a new marriage
partner to their domestic life without her consent”
[33] Paragraph 74 of the same judgment reads as follows:
“Given that marriage is a highly personal and private contract, it would be
a blatant intrusion on the dignity o f one partner to introduce a new
member to that union without obtaining that partner’s consent”
[34] In the case at hand the first respondent admits that indeed consent of the
applicant was not obtained, because in her view that could not be
necessary be cause there was no valid customary marriage that was
concluded between the applicant and the deceased. I have already made
a finding that such a valid customary marriage existed. In the light of the
Mayelane case and the reasoning of that judgment, which I align my
reasoning with, I find that it was necessary to obtain consent of the
applicant before the deceased entered into a customary marriage with the
deceased. That consent was not obtained, and the customary marriage
between the first respondent and th e deceased falls to be declared null
and void.
[35] There is nothing untoward about the first respondent opposing this
application, because the customary marriage that she entered into with
the deceased is rendered invalid by operation of the applicable legal
principles, and she cannot be faulted to challenge what she believed was
a valid customary marriage. It is for those reasons that the court will
order that each party bears its own costs.
[36] The points in limine that were raised by the first resp ondent had no
substance, because there was no need for oral evidence to be led, and as
rightly put by the applicant, she had direct interest in bringing this
application before court, and both points in limine are devoid of merit and
stand to be dismissed.
[37] In the result the following order is made:
(i) the points in limine raised by the first respondent are both
dismissed,
(ii) it is declared that there was a valid customary marriage which
was entered into between Nk hensani Mashele (Applicant) and
Doctor Given Makabinge (the deceased),
(iii) the customary marriage entered into between Ntsako Nwamitwa
(first respondent) and Doctor Given Makabinge (the deceased),
is declared null and void,
(iv) each party to bear its own costs.
J.T. NGOBENI
JUDGE OF THE HIGH COURT
Appearances
For the Applicant : Adv. G. Ramawela
Instructed by : Shiviri Manzini Masetla Inc. Attorneys
For the Respondent : Mr. A. Sebola
Instructed by : Maloka Sebola Attorneys Inc.
Date of hearing : 27 August 2025
Date of judgment : 09 December 2025
Judgment transmitted electronically