Summary of Judgment

1. Introduction

The proceedings were an application in the High Court of South Africa, Limpopo Division, Polokwane, in which the applicant sought posthumous recognition of an alleged customary marriage to the deceased, Mr Walter Cedric Mashele. The application was opposed, principally by the second respondent, who asserted that she (and not the applicant) was validly married to the deceased by customary law.

The parties were Elsie Moloko Lelagane as applicant; the Minister of Home Affairs as first respondent; Julia Gavaza Senwana as second respondent; and the Master of the High Court as third respondent. The presence of the Minister of Home Affairs and the Master reflected the practical consequences that recognition of a customary marriage could have for official status and the administration of the deceased estate.

The matter was initiated on the papers, but the court was not satisfied that the affidavits adequately addressed whether the alleged customary marriage had been entered into or celebrated in accordance with customary law. The court therefore directed that oral evidence be led on that issue. The hearing took place on 5 May 2025, and the judgment was handed down electronically (the judgment record reflected the hand-down as 26 January 2026, while the concluding case details also reflected a “judgment delivered” date of 26 January 2025).

The general subject matter was the validity of an alleged customary marriage, with consequential implications for the recognition of competing marital claims to the deceased and, by implication, the status of the second respondent’s relationship to the deceased and the administration of the estate.

2. Material Facts

The applicant alleged that she and the deceased were married by customary rites on 26 September 2009. She alleged that the families met on that date to negotiate lobola and that an amount of R18 000.00 was paid “towards” lobola. In support, she relied on a letter from the Moletjie Traditional Authority stating that she was married through customary marriage to the deceased on 26 September 2009. The court, however, treated this letter as evidentially deficient, describing it as patently deficient and hearsay, because it did not identify the source of the information and did not confirm material details such as the terms and completion of lobola.

It was common cause that the applicant was aware in 2014 of the relationship between the deceased and the second respondent. The second respondent asserted that she was married to the deceased by customary law on 21 June 2014. The judgment recorded that the deceased lived with the second respondent as husband and wife from that date “until he departed from life on 24 May 2013”, reflecting an internal chronological inconsistency in the judgment’s narrative; however, the court treated the second respondent’s customary marriage claim as supported by documentation and by the applicant’s awareness of that relationship.

A significant factual feature relied upon by the court was the applicant’s own documentary and descriptive characterisation of the 26 September 2009 event. The applicant attached a photograph describing the event as an “engagement”. In her replying affidavit she stated that on the day “lobola [was] paid in full” and there was an “engagement and wearing of rings as a celebration and hand over,” while also contending that the label “engagement celebration” did not detract from the fulfilment of customary marriage requirements. The court considered this contemporaneous depiction to support the conclusion that what was celebrated was an engagement rather than a concluded customary marriage.

After oral evidence was directed, two witnesses testified for the applicant. Mrs P P Mnisi, the deceased’s sister, confirmed that R18 000.00 was paid on 26 September 2009 and asserted that the photograph’s description as an engagement was incorrect, contending instead that a marriage was celebrated. She also testified that she had not seen the founding affidavit when she signed her confirmatory affidavit. Mrs Martha Sepuru, the applicant’s aunt, confirmed that the Mashele family came to negotiate lobola and that R18 000.00 was paid, and she referred to the handing over of gifts. She also testified that the amount had been agreed upon by the parents before 26 September 2009, and importantly stated that the events were conducted in an unusual way, not in accordance with Bapedi culture.

The second respondent did not call witnesses, but filed an answering affidavit supported by a lobola agreement reflecting the amount and gifts taken to her family on 21 June 2014, signed by family representatives. The court accepted that this documentation contrasted materially with the applicant’s deficient documentation. The court also recorded that, at the funeral, it was the second respondent’s family that was recognised as the in-laws, which the court treated as contrary to the applicant’s version.

3. Legal Issues

The central legal question was whether the applicant proved the existence of a valid customary marriage between herself and the deceased, allegedly concluded on 26 September 2009. This required the court to decide whether the statutory requirements for a customary marriage were satisfied, specifically whether the marriage was negotiated and entered into or celebrated in accordance with customary law, in addition to age and consent.

The dispute principally concerned the application of law to fact. While the statutory elements were not controversial in the abstract, the case turned on whether the applicant’s evidence established, on the balance of probabilities, that the third requirement—entering into or celebration according to customary law—was met in the circumstances and within the relevant community practices (noted as variable and non-homogenous).

The court also made evaluative findings about the quality and sufficiency of proof, including whether the applicant’s evidence was objective, reliable, and adequate to discharge the onus resting on her.

4. Court’s Reasoning

The court began by situating customary marriages within the framework of the Recognition of Customary Marriages Act 120 of 1998, emphasising that customary marriages are regulated by statute and must comply with its requirements. The court identified the requirements for validity as: the spouses being over 18 years of age; consent to be married under customary rites; and that the marriage be negotiated and entered into or celebrated according to customary law. The court noted that the third requirement is often the most difficult to prove because customary practices are not uniform and vary across communities.

The court drew from case law to contextualise customary marriage requirements. It referred to Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020) for the proposition that the “handing over” of the bride serves to mark the beginning of a customary marriage and may, depending on context, be satisfied by an acceptance of the bride as a makoti. However, the court did not treat “handing over” in isolation as determinative; rather, it placed this within the broader inquiry of whether the marriage was entered into or celebrated in accordance with the community’s customary law.

Because the affidavits did not adequately address the celebration/entering-into requirement, and because the applicant lacked a lobola agreement and relied instead on a photograph captioned as an engagement, the court considered oral evidence necessary. After hearing evidence, the court concluded that the applicant’s documentary support remained weak. The traditional authority letter was rejected as unreliable hearsay and materially incomplete, and the photograph was treated as contemporaneous support for an engagement rather than a marriage.

In applying Moropane v Southon (755/12) [2014] ZASCA 76, the court highlighted the kinds of steps described as current customary requirements among the Bapedi people, including negotiations, tokens opening negotiations, agreement on lobola, payment, exchange of gifts, slaughtering of beasts, a feast, counselling of the makoti, and formal handing over to in-laws. The court used this as a benchmark to assess whether the applicant’s evidence explained what customary practices were required and whether they were observed.

On the facts presented, the court found a “dearth of objective evidence” supporting the applicant’s claim that a customary marriage had been concluded. It considered the applicant’s shifting characterisation of the event—calling it an engagement while later describing it as a marriage celebration—as undermining the claim, particularly because the only contemporaneous photographic caption referred to an engagement. The court also held that an exchange of rings was not, without more, confirmation of a customary marriage in the context of this matter and could more readily align with an engagement.

The court further reasoned that the applicant’s reliance on “handing over” was insufficient. Referring in a footnote to Mbungela v Mkabi and Others 2020 1 All SA 42 (SCA) paragraph 30, it treated the handing over of the bride, standing alone, as not conclusive proof of marriage on the record before it, particularly where other customary indicators were not proved. The court was concerned that no witness gave concrete evidence of the specific customary practices applicable to the families’ communities, nor did they explain in detail what was done to constitute entry into or celebration of a customary marriage. Assertions that gifts were exchanged were not supported by evidence of what gifts were exchanged, despite the court’s observation that a valid customary marriage is “sealed by exchange of specific gifts.” Similarly, there was no evidence of the slaughtering of a beast, which the court regarded as an indicator of conclusion of a customary marriage in line with Moropane.

The court attached weight to Mrs Sepuru’s testimony that the events were conducted in an unusual way not in accordance with Bapedi culture, treating this as reinforcing the absence of proof that the marriage was celebrated according to customary law. It contrasted the applicant’s lack of a lobola agreement (or equivalent objective proof) with the second respondent’s production of a signed lobola agreement setting out the amount and gifts.

Ultimately, the court applied an onus-based evaluation on the balance of probabilities and held that the applicant failed to discharge the burden of proving a valid customary marriage to the deceased. Given that the requested relief depended on proof of validity, the application could not succeed.

5. Outcome and Relief

The court dismissed the application. The applicant was not granted posthumous recognition of a valid customary marriage to the deceased.

The court ordered the applicant to pay costs on the normal party-and-party scale.

Cases Cited

Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020).

Moropane v Southon (755/12) [2014] ZASCA 76.

Mbungela v Mkabi and Others 2020 1 All SA 42 (SCA).

Legislation Cited

Recognition of Customary Marriages Act 120 of 1998, including section 1, section 3(1)(a)(i), section 3(1)(a)(ii), section 3(2), and section 23 (as referenced in the judgment).

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The court held that the applicant did not prove, on the balance of probabilities, that she and the deceased had concluded a valid customary marriage on 26 September 2009. The court found that the applicant’s documentation was unreliable or inadequate, including a hearsay traditional authority letter and a photograph describing the event as an engagement. The oral evidence did not establish what applicable customary practices required for a marriage to be entered into or celebrated, nor did it show that such practices were followed. By contrast, the second respondent produced a signed lobola agreement supporting her customary marriage claim. The application was dismissed with party-and-party costs.

LEGAL PRINCIPLES

A customary marriage is recognised in South African law if it complies with the statutory requirements of the Recognition of Customary Marriages Act 120 of 1998, including that the spouses are of age, consent to the marriage, and that the marriage is negotiated and entered into or celebrated in accordance with customary law.

The requirement that a marriage be “entered into or celebrated” must be assessed with regard to the customary practices of the relevant community or communities, recognising that such practices are not homogenous and may vary, which can make proof fact-sensitive.

While the handing over of the bride is an important customary component and may be satisfied in flexible ways depending on context, it is not necessarily determinative on its own in proving a valid customary marriage where other indicia of customary celebration or entry into marriage are not established on the evidence.

In customary marriage disputes, the party asserting the existence of the marriage bears the onus to prove validity on the balance of probabilities, and the court may require objective evidence (such as a lobola agreement) or sufficiently detailed testimony demonstrating compliance with the relevant customary practices.