REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2023/125417
In the matter between:
In the matter between:
NTOMBIZAKHE ANDYGIRL DLADLA Plaintiff
And
WONDERBOY SEVRA MANANA First Defendant
ZINHLE PHUMLA MANANA (BORN SIBIYA) Second Defendant
MINISTER OF HOME AFFAIRS Third Defendant
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
…………..…………..... …………………
SIGNATURE DATE
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties
/their legal representatives by email and by uploading it to the electronic
file of this matter on Case Lines. The date for hand-down is deemed to be
the 05 January 2026
JUDGMENT
BOTSI-THULARE AJ
Introduction
[1] This is action proceeding which was originally a motion application. The motion
application appeared before my sister Molopa-Sethosa J on 13 May 2024, and
she referred the matter for trial due to material disputes of fact.
[2] The plaintiff, Ntombizakhe Andygirl Dladla, seeks a declaratory order that a
valid customary marriage was concluded between herself and the first
defendant, Wonderboy Sevra Manana, on 30 March 2002 in accordance with
the Recognition of Customary Marriages Act 120 of 1998 (the Act). The plaintiff
further seeks an order declaring the civil marriage entered into between the first
and second defendant, Zinhle Phumla Manana (Born Sibiya), on 16 December
2012 null and void ab initio. If this court is with her, the plaintiff seeks ancillary
relief for an order directing the third defendant to register the customary
marriage and expunge the civil marriage from the register.
[3] The first defendant has not opposed the relief sought by the plaintiff and has
confirmed the existence of the customary marriage. The sole opposition comes
from the second defendant. To this end, the second defendant disputes the
validity of the customary marriage between the plaintiff and first defendant. She
has also filed a counterclaim for damages, which is contingent on the outcome
of the main application. In a nutshell, the second defendant argues that in the
event that this court declares her civil marriage with the first defendant null and
void, she then brings a counterclaim in which she alleges that as a
consequence of the conduct of the first defendant and/or plaintiff she has
suffered p atrimonial and non -patrimonial damages in the amount of
R3 500 000.00.
[4] Before dealing with the issues that arise from the above, it is apposite to first
provide a summary of the facts that give rise to this matter.
Factual background
[5] The common facts are t hat the plaintiff and first defendant met in 1996 and
thereafter cohabited. In 2000, they jointly purchased a property in Weselton
Extension 6, Ermelo. In December 2001, while the plaintiff was pregnant, the
first defendant wrote a letter to the plaintiff’s family which initiated lobola
negotiations between the plaintiff and first defendant families.
[6] Subsequently, on 30 March 2002, a delegation from the first defendant’s family
arrived at the plaintiff’s family home in Thusi Village, Ermelo for the purposes of
lobola negotiations. Ultimately, the total amount of R52 000.00 was paid by the
first defendant’s family as lobola payment for the plaintiff. This lobola payment
was also accepted by the plaintiff’s family.
[7] Thereafter, t he plaintiff and first defendant continued to live together, later
acquiring another property in Vosloorus as their home. They raised their child
together, and the first defendant supported the plaintiff financially even after
she relocated to Ermelo in 2008 due to illness.
[8] It happened that the first defendant entered into a civil marriage with the
second defendant on 16 December 2012 without the plaintiff’s knowledge. The
plaintiff alleges at the time the first defendant entered into a civil marriage with
the second defendant, the first defendant was already married to her in terms of
a customary marriage. The first defendant does not dispute the plaintiff’s
allegation in this regard.
[9] On the other hand, the second defendant alleges that she was unaware of any
prior marriage when she entered into a civil marriage with the first defendant
civilly. Accordingly, s he challenge s the validity of the customary marriage,
arguing that the procedures followed did not comply with “pure” Zulu custom as
she understands it.
Issues
[10] Against this background, this court is required to resolve the following issues:
a. Whether a valid customary marriage was concluded between the plaintiff
and first defendant.
b. Whether the civil marriage between the first and second defendants is
null and void.
c. Whether the third defendant should be directed to register the customary
marriage and expunge the civil marriage from the register.
d. Whether the second defendant’s counterclaim should succeed.
[11] I deal with each of the issues below. Before doing that, I pause to consider the
oral evidence presented to this court by the parties in support of their pleaded
cases.
Plaintiff’s evidence
[12] In summary, the plaintiff testified that she was married to the first defendant in a
customary marriage. In this regard, the plaintiff testified that she met the first
defendant in 1996 at Ermelo and they fell in love with each other. Thereafter,
during 1999, they bought an RDP house which was not far away from her
home, and they moved in together. In 2001, the first defendant got an
employment in Johannesburg. At that time, the plaintiff realised that she was
pregnant.
[13] The plaintiff testifie d that, as a result, t hey (i.e. herself and the first defendant)
agreed that the first defendant should write a letter to her parents to seek good
relationship.in a customary marriage. To this end, the plaintiff relied on a lobola
letter dated 30 March 2002, being the day on which the first defendant’s family
came to her family to negotiate good relationship and ini tiate lobola
negotiations.
[14] The plaintiff further testified that w hen the representatives of the two families
met, she was called to come and recognise them and thereafter left the
negotiation space. Whilst two parties were negotiating, she heard her mother
ululating, and she got so excited symbolising that the lobola money had been
accepted. The plaintiff testified that the lobola money represented the cows. In
accordance with her culture, she was asked to wrap up the cows in a cloth and
took them to overnight at the ancestral point.
[15] Thereafter, the first defendant was called to come and identify who would be
the bride and he did successfully point her out. The plaintiff testified that the
first defendant had a blanket which he placed over her shoulders.
[16] The plaintiff further testified that 15 cows were demanded, and 8 cows were
paid, and 7 cows were outstanding. She claims that t he family did not demand
the remaining 7 cows because she had already had other children from
previous relationships.
[17] According to the plaintiff, t he marriage was celebrated, and they did not want
anything big. Only her family and friends were available. The first defendant
and her did not want a big celebration and they were declared husband and
wife on that day. Days celebrating their customary marriage, the first defendant
had a job opportunity in Johannesburg, and she came with him and stayed
together. She came to consult a gynaecologist as she was heavily pregnant.
[18] She then went back to Ermelo where she stayed in her parental homestead.
The first defendant would be coming every weekend for a visit. She delivered
the baby on 02 May 2002. After the delivery, she developed some
complications which forced her to remain at her parental home. She came to
stay with the first defendant at Bedfordview and the latter was employed at
Total-NSR. The baby remained with the plaintiff’s mother at home.
[19] In 2005 they bought a house at Vosloorus in which she and the first defendant
stayed together as husba nd and wife. In 2007 , she fell very sick, and she
suffered from depression and other chronic complications such as high blood
pressure and kidney problems. The plaintiff testified that she attributed her
complications to the conduct of first defendant who was immensely involved in
extra-marital affairs. The plaintiff testified that the first defendant regarded her
as the sole cause of his extra-marital affairs. She therefore temporarily left the
marital home.
[20] The plaintiff further testified that i n 2008 the y discussed their issues, and they
decided that it would be befitting for her to leave their matrimonial home in
order to go home. When she left, she took only her clothing but nothing else.
Thereafter, in 2013 the first defendant reduced his visitation at Ermelo, and she
became suspicious. She confronted him about the issue, but he reminded her
of his work conditions. She testified that she became aware of the second
defendant in 2021.
[21] The plaintiff also called her brother, Derric k Dladla (Mr Dladla), who acted as a
negotiator during the lobola proceedings to testify in her support . Mr Dladla
testified that he knew the first defendant as the mokgonyana (son-in-law) of his
sister. He further testified that, o n 30 March 2002, the fam ily of the first
defendant came to pay lobola (bride price). In this regard, his family was
represented by his paternal uncle, Melusi, his mother, Precious Dladla, and
himself. He acted as the chief negotiator during the proceedings.
[22] He stated that on that particular day, they noticed people standing at the gate.
A young boy was sent to enquire about their identity and purpose. The boy was
later instructed to open the gate, after which the visitors paid an amount of
R50.00. Upon entering, they paid a furthe r R50.00 as the customary fee to
commence negotiations (vula mlomo). The visitors then introduced themselves
as members of the Manana family and indicated that they had come to
establish a good relationship between the two families.
[23] He testified that t he Dladla family held a brief caucus and initially demanded
fifteen (15) cows as lobola. However, they informed the visitors that their
daughter already had two children, and as a result, the number of cows was
reduced to eight (8).
[24] He further testified that, following the conclusion of the negotiations, the visitors
requested to see the bride. They also asked that the son-in-law (first defendant)
be allowed to enter the negotiation room. The first defendant was not within the
premises at that time, but the visitors were aware of his whereabouts.
[25] The visitors requested that the first defendant should be the one to identify their
bride. He testified that the visitors requested that the first defendant himself
should identify his bride. After the identification t ook place, the two ladies who
had accompanied the visitors departed. Before the first defendant returned for
the second time, the visitors requested that the plaintiff be shown the cows that
had been offered as lobola.
[26] In accordance with cultural tradition , the cows were symbolically placed upon
and wrapped in a cloth (doek) by his mother, Precious Dladla. The first
defendant was thereafter called in for the second time to receive his bride as
his wife. He carried a blanket, which he gently wrapped over the plaintiff’s
shoulders, a symbolic act signifying their union in marriage. From that moment,
they were recognised as husband and wife.
[27] He further testified that, following the conclusion of the ceremony, food and
refreshments were served. The visitors were offered traditional beer and
whisky. Melusi Dladla, acting in accordance with custom, opened the whisky
bottle and poured a small portion into the lid and onto the floor as an offering to
honour and appease the ancestors.
First defendant’s evidence
[28] The first defendant identified the plaintiff as his lawfully wedded wife, whom he
had married in accordance with customary law, and the second defendant as
his second wife, whom he married in December 2012. He testified that he did
not file an answering affidavit or plea, as he did not dispute having paid lobola
for the plaintiff, nor did he deny having entered into a marriage with the second
defendant in 2012. He further explained that his failure t o respond formally was
due to financial constraints and his inability to afford legal representation.
[29] He further testified that the plaintiff remains his lawful wife under customary
law, although they have not been cohabiting since 2019. He confirmed that the
signature appearing on the lobol a letter was his own. He also recognised the
Msibi family as being related to him through his mother, who was married into
that family.
[30] According to his testimony, all procedures were conducted in accordance with
Zulu custom, as the Dladla family are of Zu lu heritage. He stated that he was
not directly involved in the negotiations but heard people rejoicing outside
during the proceedings. He also mentioned that he had given his wife the dress
that he himself was meant to wear for the occasion.
[31] He testified further that he possesses a valid marriage certificate with the
second defendant , and that the marriage ceremony was solemnised on a
Sunday.
Second defendant’s evidence
[32] The second defendant testified that she was raised in Phongolo, KwaZulu-
Natal, and that she is well acquainted with Zulu customs pertaining to
customary marriages. According to the second defendant , the initiation of a
customary marriage is prompted by a mutual agreement between a man and a
woman who are in a romantic relationship. The man then informs his family of
his intention, whereupon the family drafts a formal letter to the woman’s family,
signifying the proposal. Thereafter, the man selects a delegation to visit and
formally approach the woman’s family.
[33] Upon arr ival at the homestead of the prospective bride, the emissaries
customarily stand at the gate and announce their presence by shouting,
declaring that they come from the man’s family and have come to establish
good relations. They also proclaim that they hav e brought eleven cows for the
purpose of lobola, reciting the number and colour of each cow. The second
defendant emphasised that, according to Zulu custom, the standard number of
cows offered for lobola is eleven.
[34] The family of the prospective bride, upon recognising the visitors, sends out a
young boy carrying eleven millipedes to the emissaries who are still gathered at
the gate. The emissaries accept the millipedes as a symbolic gesture and are
then ushered into the homestead by the boy.
[35] The father, uncles, and/or brothers of the prospective bride then engage in the
lobola negotiations. No female persons are permitted to participate in these
discussions regarding the bride price. Once inside, the emissaries formally
introduce themselves and state the purpose of their visit.
[36] The woman’s representatives thereafter summon the prospective bride to
identify the emissaries from the man’s family, after which she withdraws from
the negotiation proceedings.
[37] The second defendant stated that, i n terms of Zulu cu stom, a cow is
traditionally allocated to the mother of the bride, but this is only claimed if the
daughter is still a virgin. If she is not, the cow for the mother is also subtracted.
Once consensus is reached, the agreement is recorded in writing, and al l
members of both delegations sign the document. This marks the conclusion of
the negotiation process, and the man’s emissaries thereafter return home to
report to their family.
[38] After some time, the groom -to-be enquiries from the bride -to-be about the
number and particulars of the individuals who are to receive gifts. The bride-to-
be relays this request to her family, who later prepare and send the list to the
groom’s family.
[39] On the second visit, the emissaries from the groom’s side, now comprising all
family members, arrive on a Saturday morning, singing and ululating in
celebration. Delegates from both families then hold further discussions to
resolve any outstanding matters, including the final settlement of the lobola.
[40] Upon finalisation of the lobola neg otiations and payment, the bride’s family
slaughters a goat, applying its gall on the groom -to-be as a symbolic act of
welcoming him into the family. The groom’s family, in turn, slaughters a cow as
a gesture signifying the union of the two families as one.
[41] The emissaries of the groom remain overnight at the bride’s homestead. On
Sunday, the celebrations commence with the clothing of the bride’s family in a
ceremony known as umembeso. During this occasion, the bride adorns herself
in the garments and accessories provided by her in-laws, including shoes and a
shawl to drape over her shoulders. The sisters and aunts of the groom then
distribute the gifts to the designated recipients, dressing them in accordance
with custom.
[42] The second defendant further testified that she met the first defendant in July
2007 at Phongolo, KwaZulu-Natal. He offered her a lift to Ermelo, in the
Mpumalanga Province . During the journey to Ermelo, the first defendant
proposed love to her, and she accepted. They exchang ed cellphone numbers,
and thereafter, she visited him at his residence in Vosloorus, while he, in turn,
visited her.
[43] The second defendant and the first defendant entered into a civil marriage on
16 December 2012 and such marriage was solemnised by a pastor . The
second defendant testified that the first defendant never informed her that he
was married.
[44] However, he introduced her to his child, whose grandmother she also came to
know. The second defendant stated that she only became aware of the alleged
marriage between the first defendant and plaintiff upon being served with court
papers.
The law on declaratory order or relief
[45] Under common law, the High Court did not have jurisdiction to grant declaratory
relief1. Such power was conferred upon the High Court by the provisions of
section 102 of the General Law Amendment Act 46 of 1935. Currently it is
governed by section 21 of t he Superior Courts Act 10 of 2013 (Superior Court
Act).
[46] In terms of the provision of Section 21(1)(c) of the Superior Courts Act, 10 of
2013, the High Court may grant a declaratory order without any consequential
relief sought. The section provides as follows:
“21(1) A Division has jurisdiction over all persons resident or being in, and in
relation to all causes arising and all offence s triable within, its area of jurisdiction
and all other matters of which it may according to law take cognisance, and has
the power –
(a) … …
(b) … …
(c) in its discretion, and at the instance of any interested person, to enquire into
and determine any existing, fu ture or contingent right or obligation,
notwithstanding that such person cannot claim any relief consequential upon the
determination”.
[47] The correct approach to section 21(1)(c), the wording of which is similar to the
erstwhile power conferred upon the court under section 10(1)(a)(iii) of the now
1 Geldenhuys and Neethling v Beuthin 1918 AD 426.
repealed Supreme Court Act 58 of 1959, was summed up by Corbett CJ in Shoba
v OC, Temporary Police Camp, Wagendrift Dam2as follows:
“An existing or concrete dispute between persons is not a pre -requisite for the
exercise by the Court of its jurisdiction under this subsection, though the
absence of such a dispute may, depending on the circumstances, cause the
Court to refuse to excercis e its jurisdiction in a particular case (see Ex parte
Nell 1963 (1) SA 754 (A), at 759H - 760B). But because it is not the function of
the Court to act as an adviser, it is a requirement of the exercise of jurisdiction
under this subsection that there shou ld be interested parties upon whom the
declaratory order would be binding (Nell's case, at 760B - C). In Nell's case,
supra, at 759A - B, Steyn CJ referred with approval to the following statement
by Watermeyer JA in Durban City Council v Association of Bu ilding Societies
1942 AD 27, fit 32, with reference to the identically worded sec 102 of Act 46
of 1935:
"The question whether or not an order should be made under this section has to
be examined in two stages. First the Court must be satisfied that the ap plicant
is a person interested in an 'existing, future or contingent right or obligation',
and then, if satisfied on that point, this Court must decide whether the case is a
proper one for the exercise of the discretion conferred on it.”
[48] The Supreme Court of appeal in Cordiant Trading CC v Daimler Chrysler
Financial Services (Pty) Ltd3 confirmed the two-stage approach adopted by the
2 1995 (4) SA 1 (AD) at 29.
3 2005 (6) SA 205 (SCA) at para 18.
then Appellate Division in Durban City Council v Association of Building Societies4
and held that:
“…, the two-stage approach under the subsection consists of the following. During
the first leg of the enquiry the court must be satisfied that the applicant has an
interest in an ‘existing, future or contingent right or obligation’. At this stage the focus
is only upon establishing that the necessary conditions precedent for the exercise of
the court’s discretion exist. If the court is satisfied that the existence of such
conditions has been proved, it has to exercise the discretion by deciding either to
refuse or grant the order sought. The consideration of whether or not to grant the
order constitutes the second leg of the enquiry.”
[49] The import of the above case law is that, when considering the grant of
declaratory relief, the court will not grant such or der where the issue raised
before it is hypothetical, abstract and academic, or where the legal position is
clearly defined by statute.5
[50] In my view, a declaratory order is an order by which a dispute over the
existence of some legal right or entitlement i s resolved. To this end, we submit
that the dispute in this application is about the alleged existence of a legal right
over the customary marriage which the plaintiff seeks to enforce against the
second defendant.
[51] Furthermore, there must be a legal basis upon which the declaratory order in
favour of the plaintiff can be made. In other words, it would not ordinarily be
appropriate where one is dealing with events which occurred in the past.
4 1942 AD 27 at 32.
5 Ex parte Noriskin 1962 (1) SA 856 (D) .
However, it should be noted that such events, if they give rise to a cause of
action, would entitle the litigant to an appropriate remedy.
[52] In this matter, I am of the view that there is legal basis upon which the
declaratory order can be made in favour of the plaintiff. Lastly, the plaintiff has
demonstrated that she has a substantial interest in the subject matter.
[53] I now proceed to deal with the merits of this matter. The staring point in this
regard is the law regulating conclusion of valid customary mar riages in South
Africa.
The Law on customary marriages
[54] The Recognition of Customary Marriages Act 120 of 1998 (the Act) provides for
the requirements of valid customary marriages in South Africa. The Act sets out
the requirements for validity of a customary marriage in Section 3 as follows:
“(1) For a customary marriage entered into after 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.”
[55] Whilst the requirements mentioned in section 3(1)(a) of the Act are
self-explanatory and clear, one of the biggest contentions with regards to
section 3(1)(b) of the Act is that it is very vague and does not specify the actual
requirements for a valid customary marriage.
[56] Section 3(1)(b) of the Customary Marriages Act provides that the marriage
must be negotiated and entered into or celebrated in accordance with
customary law. In this regard, ‘customary law’ is defined in section 1 of the Act
as the customs and usages traditionally observed among the indigenous
African peoples o f South Africa and which form part of the culture of those
peoples.
[57] As stated above, it is worth stressing that section 3(1)(b) does not stipulate the
requirements of customary law which must be met to validate a customary
marriage. However, in giving con tent to section 3(1)(b) , the Supreme Court of
Appeal in Moropane v Southon6 observed that:
“The requirement in s 3(1)( b) that ‘the marriage must be negotiated and entered
into or celebrated in accordance with customary law’ is clear and unambiguous.
Even the Legislature did not consider it necessary to define it. This is
understandable as customary law is as diverse as the number of different ethnic
groups we have in this beautiful country. Although Africans in general share the
majority of customs, rituals and cultures, there are some subtle differences
which, for example, pertain exclusively to the Ngunis, Basotho, Bapedi ,
VhaVenda and the Vatsonga. This is due to the pluralistic nature of African
societies.”
[58] Cognisant of the above reality, the Supreme Court of Appeal went further to
provide guidance on how the requirement i n section 3(1)(b) should be
interpreted by courts. In this regard, the Supreme Court of Appeal stated that:
6 [2014] ZASCA 76 (29 May 2014) at para 35.
“It follows that it would be well -nigh impossible and undesirable to attempt an
exhaustive and all -inclusive definition of a phrase which is susceptible to
variations depending on which particular ethnic group it relates to. The most
salutary approach to ascertaining the real meaning of this requirement is by
examining the current cultural practices and customary law of that particular
ethnic group as the Constitutional Court did in MM v MN.”7 (Footnote Omitted)
[59] Similarly, the Supreme Court of Appeal in Mbungela and Another v Mkabi and
Others8 observed:
“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. The system, therefore, requires its content to be determined with
reference to both the history and the present practice of the community
concerned. As this Court has pointed out, although the various African cultures
generally observe the same customs and rituals, it is not unusual to find
variations and even ambiguities in their local practice because of the pluralistic
nature of African society. Th us, the legislature left it open for the various
communities to give content to s 3(1)(b) in accordance with their lived
experiences.”
[60] In other words, the meaning of the phrase “requirements of customary law” in
the context of section 3(1)(b) should be un derstood by first accepting the fact
that customary law is not static but a dynamic, flexible system, which
7 Id at para 37.
8 2020 (1) SA 41 (SCA) at para 17.
continuously evolves within the context of its values and norms .9 On this basis,
section 3(1)(b) does not therefore provide specific, rigid rules but instead
allowed different communities to define and apply the requirements for their
customary marriages based on their unique cultural practices and lived
realities.
Whether the customary marriage between the plaintiff and first defendant is valid
[61] It is unequivocal that there is a dispute of fact regarding whether the plaintiff
was married to the first defendant in terms of the custom. The validity of such
marriage is ve hemently challenged. It is disputed that the marriage was
negotiated and entered into or celebrated in accordance with customary law.
[62] The plaintiff contends that the marriage was negotiated and entered into or
celebrated in accordance with the Zulu custom. The second defendant disputes
that the marriage was ever entered into in terms of the Zulu custom.
[63] The second defendant’s case rests largely on her assertion that the rituals
performed on 30 March 2002 deviated from a strict, uniform version of Zulu
custom. She emphasised the absence of certain practices (e.g., the offering of
eleven millipedes, a separate umembeso ceremony, the non -participation of
women in negotiations) and pointed to alleged inconsistencies in the evidence.
[64] I find the second defendant’s approach to be unduly formalistic and inconsistent
with the contemporary judicial understanding of customary law. The
9 This point was also stressed by Supreme Court of Appeal in Tsambo v Sengadi [2020] ZASCA 46 (30
April 2020) at para 17.
Constitutional Court in MM v MN 10 emphasised that courts must ascertain the
“living” customary law of the specific community i nvolved, not impose a
textbook orthodoxy.
[65] In other words, a perfunctory compliance approach is not the best way of
determining whether the plaintiff and first defendant concluded their customary
marriage. The diversity and pluralistic nature of the African communities
practicing customs, rituals and cultures makes it impossible to develop a
perfunctory compliance approach of what may constitute complete
requirements for a valid customary marriage. As the Supreme Court of Appeal
described it, customary law is a dynamic system of our law.11
[66] The evidence shows that the Dladla family, while of Zulu heritage with Swazi
influences, follows its own adapted customary practices. This is permissible.
The core elements of lobola negotiation, payment, family consent, s ymbolic
handover, and celebration were present. The credibility of the plaintiff’s
witnesses (i.e. the plaintiff and Mr Dladla) was sound. Their testimonies were
consistent on the material facts: the date, the parties present, the agreement on
lobola, the payment, the handover, and the subsequent cohabitation. Minor
discrepancies (e.g., who wrapped the money, the exact number of t imes the
first defendant entered the room) are to be expected after 23 years and do not
undermine the core narrative.
[67] In addition, t he first defendant’s evidence was pivotal. He unequivocally
confirmed the marriage, the lobola payment, and his ongoing reco gnition of the
10 2013 (4) SA 415 (CC).
11 See Moropane v Southon [2014] ZASCA (29 May 2014).
plaintiff as his wife. His affidavit and testimony were not successfully impugned
as being under duress. His admission is fatal to the second defendant’s denial.
[68] From the plaintiff and first defendant testimonies, it is also clear that ther e was
a clear intent from themselves and their families to conclude a customary
marriage on the day in question. This is in line with the reasoning of the
Supreme Court of Appeal in Mbungela12 where it was held:
“To sum up: The purpose of the ceremony of t he handing over of a bride is to
mark the beginning of a couple’s customary marriage and introduce the bride to
the groom’s family. It is not an important but not necessarily a key determinant of
a valid customary marriage. Thus, it cannot be placed above the couple’s clear
volition and intent where, as happened in this case, their families, who come
from different ethnic groups, were involved in, and acknowledged the
formalisation of their marital partnership and did not specify that the marriage
would be validated only upon bridal transfer. I am satisfied in all the
circumstances that the essential requirements for a valid customary marriage
were met. The appeal must accordingly fail”. [Underlined Emphasis]
[69] The overwhelming evidence before this court is that the plaintiff and first
defendant considered themselves as husband and wife for all intents and
purposes. The plaintiff’s testimony, corroborated by the first defendant ’s own
admission, demonstrates unequ ivocally that both parties consented to the
marriage. The first defendant confirmed that he indeed married the plaintiff by
customary law and that she remains his lawful wife, although they are presently
separated.
12 Mbungela at para 30.
[70] The lobola letter , despite the second defendant’s criticisms, serves as credible
contemporaneous evidence. It records the families involved, the agreement on
lobola, and bears the first defendant’s signature. The fact that it references the
“Msibi” family (the first defendan t’s maternal relatives) is explained by the
evidence and is not a material defect. The letter’s purpose was to record the
agreement, which it did.
[71] In my view, t he second defendant’s personal knowledge of the events of 30
March 2002 is non -existent, as she was not present. Therefore, her opinion on
whether the rituals were “correct” is just that — an opinion. The reality is that
she is not an expert on customary law, and her version of a monolithic Zulu
custom is not supported by case law referred to in this judgment.
[72] On a balance of probabilities, I therefore find that the plaintiff has discharged
the onus of proving that her marriage with the first defendant was negotiated
and celebrated in accordance with the customary law of their community. The
families met, lobola was negotiated and paid, the bride was handed over, and a
celebration ensued. The parties then lived as husband and wife for many years,
publicly presenting themselves as such.
Whether the civil marriage between the first and second defendants is null and void
[73] The plaintiff became aware only in 2018 that the first defendant was cohabiting
with another woman (i.e. the second defendant) . The first defendant later
admitted that he had contracted a civil marriage with the second defendant on
16 December 2012.
[74] In terms of Section 3(2) of the Act, a person who is a party to a subsisting
customary marriage may not contract a marriage under the Marriage A ct 25 of
1961 with any other person during the subsistence of such customary marriage.
[75] Therefore, having found that a valid customary marriage subsisted between the
plaintiff and the first defendant on 16 December 2012, it follows that the civil
marriage contracted between the first and second defendants on that date is
null and void ab initio, as it was entered into while the first defendant was still a
party to a subsisting customary marriage with the plaintiff.
Whether the third defendant should be directed to register the customary marriage
and expunge the civil marriage from the register
[76] Given that this court finds that the civil marriage contracted between the first
and second defendants on 16 December 2012 is null and void ab initio , this
court will then have to determine what should happen to both marriages. The
evidence before this court demonstrates that the customary marriage was
concluded before the civil marriage. However, the customary ma rriage was not
registered in terms of the Act. On the other hand, the civil marriage was
registered.
[77] In this regard, Section 4(9) of the Act states that failure to register a customary
marriage does not affect its validity. The plaintiff testified that she was unaware
of the registration requirement. Given the circumstances, including the relative
newness of the Act in 2002 and the bona fide belief that the marriage was
complete, it is appropriate to grant condonation and to order that th e marriage
be registered. The Minister of Home Affairs has extended the registration
deadline to 31 August 2026, making this feasible.
Second defendant’s counterclaim
[78] As already indicated in paragraph 3 of this judgment, t he second defendant’s
counterclaim is for patrimonial and non -patrimonial damages in the amount of
R3 500 0000.00. According to the second defendant, she suffere d these
damages because of the conduct of the first defendant and/or plaintiff.
[79] It should be noted that no evidence was tendere d to enable this court to
adjudicate on this counterclaim. The counterclaim was not even canvassed in
the closing arguments filed by the parties in this matter. It would therefore be
unfair to all the parties if this court was to decide on the merits regar ding the
counterclaim. In my view, the interest of justice dictates that the allegation
regarding the counterclaim be ventilated in a separate hearing to th ese
proceedings.
[80] Accordingly, it is my considered view that the second defendant’s counterclaim
be postponed sine die.
Conclusion
[81] The plaintiff has made out a proper case for the relief that she seeks for the
customary marriage to be declared valid. The plaintiff satisfied the requirements
stated in the Act and the customary marriage was entered into in terms of
customary law . In addition , the plaintiff has demonstrated that the civil
marriage, between the first and second defendants was entered during the
subsistence of cu stomary marriage, and without her consent, and therefore
should be declared null and void.
Costs
[82] The general rule in matters of costs is that the successful party should be given
his costs, and this rule should not be departed from except where there be
good grounds for doing so, such as misconduct on the part of the successful
party or other exceptio nal circumstances. The plaintiff has been successful in
this matter. As a successful party, I am of the view that the costs should follow
the results.
Order
[83] In the result, I make the following order:
1. It is declared that that a valid customary marriage was concluded between
the Plaintiff, Ntombizakhe Andygirl Dladla and First Defendant,
Wonderboy Sevra Manana on 30 March 2002 in accordance with the
Recognition of Customary Marriages Act 120 of 1998.
2. The Third Defendant is ordered to register the customary marriage
between the Plaintiff, Ntombizakhe Andygirl Dladla and First Defendant ,
Wonderboy Sevra Manana in terms of section 4 of the Recognition of
Customary Marriages Act 120 of 1998 and to issue the marriage
certificate within 20 (twenty) days from the date of service of this order.
3. It is declared that the civil marriage entered into between the First
Defendant, Wonderboy Sevra Manana, and the Second Defendant, Zinhle
Phumla Manana (born Sibiya), on 16 December 2012 is null and void ab
initio.
4. The Third Defendant, the Minister of Home Affairs, is directed to expunge
the civil marriage between Wonderboy Sevra Manana and Zinhle Phumla
Manana (born Sibiya) from the national marriage register.
5. The Second Defendant’s counterclaim is postponed sine die.
6. The Second Defendant is ordered to pay the costs of the application,
including the costs of counsel.
________________________________
MD BOTSI-THULARE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
Counsel for the Plaintiff: Adv J Mawila
Instructed by: Mthembu Cynthia.C Attorneys
c/o Makhubele Attorneys
Pretoria
Counsel for the Second Defendant: Adv B.K Hlangwane
Instructed by: KE Mtsweni Inc. Attorneys
Mamelodi East, Pretoria
Date of Hearing: 08, 09, 14 & 16 October 2025
Date of Judgment: 5 January 2026