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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 Number: 169238/25
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
DATE 09/02/26
SIGNATURE
In the matter between:
MONYELEOTE, MOHLEIWANA MAXWELL Applicant
and
DEPARTMENT OF HOME AFFAIRS First Respondent
MASTER OF THE HIGH COURT, PRETORIA Second Respondent
Customary marriage — Registration — Sections 4(4)(a), 4(4)(b) and 4(7)
of the Recognition of Customary Marriages Act 120 of 1998 — Failure by
Department of Home Affairs to register marriage — Whether court may
order registration without proper evidentiary foundation.
Administrative law — Administrative action — Failure to take a decision
— Review under PAJA — Sections 6(2)(g) and 6(3)(a) of the Promotion
of Administrative Justice Act 3 of 2000 — Applicant seeking
substitutionary relief without bringing a PAJA review.
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Customary law — Proof of valid customary marriage — Living
customary law — Need for evidence of cultural group, applicable
customs, and compliance with those customs — Lobola letter
insufficient on its own.
Citation of state parties — State Liability Act 20 of 1957 — Incorrect
citation of Department instead of Minister.
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JUDGMENT
VAN NIEKERK, N, AJ:
SUMMARY: The applicant sought an order compelling the Department of
Home Affairs to register a customary marriage with his late wife and issue a
marriage certificate. The marriage had never been registered. The applicant
relied primarily on a lobola letter and confirmatory affidavits that added no
substantive detail. Application dismissed.
Held: The applicant failed to comply with s 2(1) of the State Liability Act 20
of 1957 by citing the Department instead of the Minister.
Held: The relief sought amounted to a substitution order based on an
alleged failure by the registering officer to take a decision, which should have
been pursued through a PAJA review under ss 6(2)(g) and 6(3)(a). No such
review was brought.
Held: Under s 4(4) of the RCMA, a registering officer must be satisfied that a
valid customary marriage exists. This requires an investigation, which the
applicant did not enable.
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Held: Without adequate evidence, the court could not conduct the
investigation Without adequate evidence, the court could not conduct the
investigation required by s 4(7) of the RCMA.
Held: The applicant provided no evidence of:
o the cultural group of the parties,
o the customs and usages applicable to that group,
o which customs were followed , as required by MM v MN ,
Manwadu, Shilubana, and EMK v EMB.
Held: A lobola letter alone is insufficient to prove a customary marriage;
collateral evidence is required. The confirmatory affidavits were bare and did
not corroborate the contents of the lobola letter.
Held: Given the separation of powers (per Trencon Construction ), the
court could not substitute the registering officer’s decision in the absence of a
review under PAJA and exceptional circumstances.
INTRODUCTION:
[1] This matter came before me as an unopposed application in the
Family Court on Tuesday, the 27th of January 2026.
[2] The applicant approached the Court for an order in the following
terms:
“1. That the first respondent be ordered to register the customary
marriage entered into between the applicant and the late A mukelani
Amanda Ndlovu of identity number: 9[...], in accordance with the
provisions of section 4(4)(a) of the Recognition of Customary
Marriages Act, 120 of 1998, within a period of eight (8) weeks from the
date of being served with a copy of this court order;
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2. That the first respondent be ordered to issue to the applicant, a
certificate of registration, in accordance with the provisions of section
4(4)(b) of the Recognition of Customary Marriages Act, 120 of 1998,
within a period of eight (8) weeks from the date of being served with a
copy of this court order;
3. The costs of this application on attorney and own client scale, only in
case of opposition of this application by the first respondent;
4. Further and/or alternative relief.”
RELEVANT FACTS ALLEGED BY THE APPLICANT:
[3] The applicant was married to the late Amukelani Amanda Ndlovu
(hereinafter referred to as “the deceased”) in community of property
and in accordance with the terms of the Recognition of Customary
Marriages Act 120 of 1998 (hereinafter referred to as “RCMA ”) on 24
September 2023 at Mkhuhlu, Mpumalanga Province.
[4] All the requirements of section 3 of the RCMA were complied with in
that:
4.1 the applicant and the deceased were both above the age of 18
at the time of the conclusion of the marriage;
4.2 the applicant and the deceased had consented to be married to
each other under Customary Law;
4.3 the marriage was negotiated and entered into and celebrated in
accordance with Customary Law.
[5] A certified copy of the Lobola letter is attached to the application as
Annexure “MM2”. The document attached as Annexure “MM2” reads
as follows:
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“Minuets ( sic) of Lobola negotians ( sic) held at Mkhulu between Ndlovu
(bride) and Monyeleote (groom)
1. Mvulamolomo at the value of R1 000.00 (one thousand rands) was
paid by the Monyeleotoe (sic) family.
2. Amukelani (bride) identified the Monyeleotoe (sic) family; she
confirmed that she knows them and she gave the elders permission to
negotiate lobola on her behalf.
3. An agreement of 15 cattle, including 2 live cattle and 13 which will
determine in cash, was reached by the two families.
4. Each c attle (of the 13) are valued at R6 975.00 (six thousand nine
hundred and seventy five rands) which culminates to a total of
R90 675.00 (ninety thousands (sic) six hundred and seventy five
rands).
5. Traditional practices were observed to unite the two families and the
union.
6. The traditional practice of exchanging gifts between the two families
was observed.
7. Gifts that were received by the Monyeleotoe (sic) family:
- Suit, ya manana + shoes + doek
- Suit ya kokwani + shoes + doek
- Nkumba
- Brandy
- One case of cold drink
- One of beers
- Snuff *2
8. The Monyeleotoe (sic) family paid R28 500.00 (twenty-eight thousand
five hundred) in cash as part of the payment on the agreed lobola
price.
9. The balance will be settled on the date to be announced.
10. The balance is R62 175.00.”
[6] The document was signed on the 24 th of September 2023 and it
records that the delegates present at the negotiations were Dumisani
Mabuza; Vincent Malabela; Allen Mabuza; Philli es Mokoena; Molatelo
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Monyeleote; Reuben Monyeleote; Isiah Monyeleote; Coster
Mokgalapa; and Lizzy Seerane.
[7] The deceased died on 18 April 2025 , without the marriage be ing
registered.
[8] As the deceased ’s surviving spouse , the applicant approached the
second respondent on 2 June 2025 to report the death of the
deceased.
[9] On the same date the second respondent issued a query sheet
requesting to be furnished with a certified copy of the applicant’s
marriage certificate, indicating his inability to accept a certified copy of
the Lobola letter.
[10] Upon receipt of the query sheet from the second respondent the
applicant approached the first respondent for the first respondent to
register the marriage to the deceased and issue the applicant with a
marriage certificate, without any success.
[11] The applicant is the only beneficiary of the deceased’s estate and at
this stage the deceased’s estate remains unreported and unattended
to.
[12] The applicant attached confirmatory affidavits by his delegates at the
time of the lobola negotiations . It needs to be noted that in those
confirmatory affidavits no further information is placed before the court
except for a paragraph contained in each of the confirmatory affidavits
stating:
“I have read the founding affidavit of Mohleiwana Maxwell Monyeleote and
hereby confirm the content thereof is both true and correct in as far as it
relates to me.”
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RELEVANT LEGAL PRINCIPLES:
[13] Section 2(1) of the State Liability Act 20 of 1957 stipulates that:
“In any action or other proceedings instituted against a department, the
executive authority of the department concerned must be cited as nominal
defendant or respondent.”
[14] Section 3 of the RCMA provides the following:
“3. Requirements for validity of Customary Marriages
(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, 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”.
[15] Section 4 of the RCMA provides that:
“4. Registration of Customary Marriages
(1) The spouses of a customary marriage ha ve a duty to ensure that their
marriage is registered.
(2) Either spouse may apply to the registering officer in the prescribed
form for the registration of his or her customary marriage and must
furnish the registering office with the prescribed information and any
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additional information which the registering officer may require in order
to satisfy himself or herself as to the existence of the marriage.
(3) ….
(4) (a) A registering officer must, if satisfied that the spouses concluded
a valid customary marriage, register the marriage by recording
the identity of the spouses, the date of the marriage, any lobola
agreed to and any other particulars prescribed.
(b) The registering officer must issue to the spouses a Certificate of
Registration, bearing the prescribed particulars.
(5) ….
(6) If a registering officer is not satisf ied that a valid customary marriage
was entered into by the spouses, he or she must refuse to register the
marriage.
(7) A court may, upon application made to that court and upon
investigation instituted by that court, order –
(a) the registration of any customary marriage; or
(b) the cancellation or rectification of any registration of a customary
marriage effected by a registering officer”.
[16] The Promotion of Administrative Justice Act 3 of 2000 (PAJA) gives
effect to section 33 of the Constitution, ensuring administrative action
is lawful, reasonable and procedurally fair. It mandates that decisions
affecting the public be transparent, justifiable and subject to review,
empowering citizens to request reasons for administrative decisions.
[17] As per the definitions in section 1 of PAJA an administrative action is
defined as:
“Any decision taken or any failure to take a decision by
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a. an organ of state when:
i. exercising a power in terms of the Constitution or a provincial
Constitution; or
ii. exercising a public power or performing a public function in
terms of any legislation; or
b. …”
[18] If regard is had to section 4(4) of the RCMA , it is clear that in terms of
sections 4(4)(a) and (b) the obligation placed on a registering officer
to, if satisfied register a customary marriage and issue the spouses a
certificate of registration, is an administrative action as defined in
PAJA and specifically in section 1(a)(ii).
[19] Section 6 of PAJA determines:
“Judicial review of administrative action.
(1) Any person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action.
(2) A court or tribunal has the power to judicially review an administrative
action if
(a) ….
(g) the action concerned consists of a failure to take a decision;
(h) ….”
(3) If any person relies on the ground of review referred to in subsection
(2)(g), he or she may in respect of a failure to take a decision, where-
(a)(i) an administrator has a duty to take a decision;
(ii) there is no law that prescribes a period within which the
administrator is required to take that decision; and
(iii) the administrator has failed to take that decision, institute
proceedings in a court or tribunal for judicial review of the
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failure to take the decision on the ground that there has
been unreasonable delay in taking the decision; or
(b)(i) …”
[20] In casu it is clear that the applicant is relying on the allegation that the
first respondent fail ed to take a decision as contemplated in section
6(2)(g) read together with section 6(3)(a) of PAJA.
[21] The remedies in proceedings for judicial review , as set out in PAJA ,
relevant to this matter are those in section 8(2) indicating that the
court or tribunal in proceedings of judicial review in terms of section
6(3) may grant an order that is just and equitable, including orders –
21.1. directing the taking of the decision;
21.2. declaring the rights of the parties in relation to the taking of the
decision;
21.3. directing any of the parties to do, or to refrain from doing, any
act or thing, the doing or the refraining from the doing, of which
the court or tribunal considers necessary to do justice between
the parties; or
21.4. as to costs.
[22] The Constitutional Court in the matter of Trencon Construction (Pty)
Ltd v Industrial Development Corporation of South Africa Ltd and
another 2015 (5) SA 245 (CC) emphasised that where a court
replaces an administrator’s decision with its own it is a serious
intrusion into the domain of the executive. The Constitutional Court
held that:
22.1 Courts must be avoid usurping that role;1
22.2 Judicial deference is not a weakness, but it is a Constitutional
requirement flowing from the separation of power and
deference “ought to be shaped by a conscious determination
1 Trencon Construction as referenced in paragraph [22], para [44], p 257.
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not to usurp the functions of administrative agencies; not to
cross over from review to appeal”.2
22.3 The separation of power does not prevent courts from
granting effective relief;3
22.4 When considering exceptional circumstances, courts must
adopt and approach ‘consonant with the Constitution’ and
must afford appropriate preference to the administrator. This
is explicitly linked to the doctrine of separation of powers;4
22.5 “given the doctrine of separation of powers, in conducting this
enquiry there are certain factors that should inevitably hold greater
weight. The first is whether a court is in as a good position as the
administrator to make the decision. The second is whether the
decision of an administrator is a foregone conclusion. These two
factors must be considered cum ulatively. Therefore, a court should
still consider other relevant factors … The ultimate consideration is
whether a substitution order is just and equitable. This will involve a
consideration of fairness to all implicated parties. It is prudent to
emphasise that the exceptional circumstances enquiry requires an
examination of each matter on a case -by-case basis that accounts
for all relevant facts and circumstances”.5
22.6 Substitution is an extraordinary remedy and remittal is almost
always the prudent and proper course. This reflects the
constitutional principle that administrators, not courts, are the
primary decision makers.6
[23] It needs to be mentioned that the “ exceptional circumstances enquiry”
referred to by the Constitutional Court refers to applying section
8(1)(c)(ii)(aa) of PAJA which section in exceptional circumstances
affords a court the discretion to make a substitution order pursuant to
an administrative review.
2 Trencon Construction supra, para [44], p 257.
3 Trencon Construction supra, para [45], p 258.
4 Trencon Construction supra, para [43], p 257.
5 See Trencon supra, para [47] p 258 and 259.
6 See Trencon supra, para [42], p 257.
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[24] In the matter of EMK v EMB 7, the High Court , Gauteng Division,
Pretoria, was confronted with a similar application before court of
parties requesting the court to declare that the customary marriage
between them is valid and to order the second respondent ( correctly
cited as the Minister of Home Affairs and not the Department of Home
Affairs as in casu) to register the marriage in terms of section 4 of the
RCMA.
[25] In EMK, supra, the court, explains the complexity of determining
“living customary law” and why evidence is essential ,8 and found, to
my mind correctly so, that:
25.1 Customary law is defined as customs and usages traditionally
observed by a specific group;9
25.2 Referring to the Constitutional Court’s judgment in MM v
MN10, the party alleging the marriage bears the onus to prove
that the marriage was negotiated, entered into or celebrated
according to the relevant customs;11
25.3 Referring to MM v MN 12, courts must apply “living customary
law”, meaning the actual, evolving practices of the community
rather than rigid or codified versions . This flexibility is both a
strength and a challenge: the real difficulty lies in determining
the content of the living law and ensuring it aligns with
constitutional values;13
25.4 Customary law may impose additional validity requirements
for a customary marriage beyond those listed in the RCMA.
To determine these requirements, a court must look to the
7 2024-094190; 2023-010767 (2025) ZAGPPHC 289 (18 March 2025).
8 See EMK supra paras [27] to [31].
9 See EMK supra para [16].
10 2013 (4) SA 415 CC.
11 See EMK supra paras [28] to [29].
12 Supra at 8.
13 See EMK supra paras [28] to [29].
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customary practices of the specific cultural community
involved;14
25.5 Referring to Supreme Court of Appeal’s judgment in
Manwadu v Manwadu and others 15, the alleging party must
show all legal and customary requirements were adhered to
by advancing collateral evidence;16
25.6 Courts are constitutionally obliged under section 211(3) to
apply customary law whenever it is relevant, but because
living customary law is often difficult to establish, they must
rely on evidence of the actual practices of the community
concerned, as emphasised in Shilubana v Nwamitwa17, where
the Constitutional Court held that parties must place evidence
of present customary practices before the court and that
courts must recognise developments where they have
occurred.18
25.7 Customary law is often difficult to determine because it is
rooted in the diverse practices, usages, and traditions of
different African communities, varies across time and place,
and must be applied by courts in its living, evolving form.19
25.8 Proving a customary marriage requires more than asserting
the lobola was negotiated. The litigant must prove the
applicable customary law , including which cultural group the
parties belong to; which usages, customs and traditions apply
to that specific group and which were followed by the
parties;20
25.9 Factual compliance with those customs will include evidence
of lobola negotiations, payment or part payment thereof,
handing over or integration of the bride, observance of rituals
14 See EMK supra paras [28] to [29].
15 (2025) ZASCA 10 at para 45.
16 See EMK supra paras [23] to [25].
17 2009 (2) SA 66 (CC)
18 See EMK supra paras [32] to [34].
19 See EMK supra para [31].
20 See EMK supra paras [8] and [9].
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or ceremonies, participation of family representatives .21 The
lobola letter on its own does not prove a customary
marriage;22
25.10 Corroborative evidence is essential, because customary law
varies across communities and evolves. The court requires
collateral evidence such as testimony from family members,
evidence from traditional leaders, expert evidence, affidavits
from community members;23
25.11 The court must not simply accept a bare allegation of a
customary marriage. The court must examine the law in the
context of the community and require evidence of present
practice. Under section 4(7) of the RCMA courts must
investigate before ordering registration of a marriage;
25.12 Section 4(4) and 4(5) of the RCMA requires the reg istering
officer to be satisfied that a valid customary marriage was
entered into before registering same. Both the registering
officer and the court must therefor conduct and “investigation”
in order to be satisfied that the marriage meets the
requirements of the RCMA and the relevant customs and
traditions of the parties involved;24
25.13 The aforesaid investigative duty entails a process that
demands careful evaluation of the diversity and adaptability of
customary law and caution against relying on judicial notice,
which risks freezing living law into rigid, formalised rules ,
which may stifle its natural evolution;25
25.14 Courts can only adjudicate matters within the boundaries set
by the parties’ pleadings, which means a litigant relying on
customary law must properly define the cause of action and
clearly plead the applicable customary law.26
21 See EMK supra paras [27] to [31].
22 See EMK supra paras [4] and [8].
23 See EMK supra paras [38] and [39].
24 See EMK supra para [20].
25 See EMK supra paras [32] to [34].
26 See EMK supra paras [32] to [34].
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ANALYSIS OF THE FACTS OF THIS MATTER BASED ON THE LEGAL
PRINCIPLES
[26] The applicant failed to correctly cite the first respondent and did not
comply with Section 2(1) of the State Liability Act 20 of 1957.
[27] In the present matter this court was effectively approached to grant a
substitution order pertaining to an alleged failure by the first
respondent to take an administrative decision , without approach ing
court on the premise of a review application under PAJA.
[28] The application before court is not a review application to review the
first respondent’s failure to take an administrative action and failed to
provide any particularity on the process followed by the applicant to
apply for the registration of the customary marriage with the first
respondent. No information is provided as to the date upon which
application was made to the first respondent and/or the information
and documentary proof provided to the first respondent, which would
have enabled the first respondent to investigate the validity of such
marriage and come to an informed decision whether or not the first
respondent is “satisfied” that a valid customary marriage was entered
into.
[29] The RCMA provides the first respondent with an obligation to
investigate the validity of the customary marriage, in that it stipulates
that the registering officer must be satisfied that a valid customary
marriage has been entered into. If regard is had to the legal principles
set out above, it is clear that for such a determination to be made the
registering office r has to be placed in possession of information
pertaining to inter alia the following:
29.1 The cultural group the parties belong to;
29.2 Which usages, customs and traditions apply to that specific
group; and
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29.3 Which usages, customs and traditions were followed by the
parties.
[30] In my view the only manner in which the applicant could have
obtained relief in this matter was to approach court with a review
application under PAJA , requesting the review of the first
respondent’s failure to take administrative action. In such a review
application the court would then have been empowered, if grounds for
the review existed, to grant an order that is just and equitable as
provided for in Section 8(2) of PAJA, including orders –
30.1 directing the taking of the decision;
30.2 declaring the rights of the parties in relation to the taking of
the decision;
30.3 directing any of the parties to do, or to refrain from doing, any
act or thing, the doing or the refraining from the doing, of
which the court or tribunal considers necessary to do justice
between the parties; or
30.4 as to costs.
[31] If regard is had to the doctrine of the separation of power, the court
cannot simply ignore the administrative process required by the
RCMA to be followed by the first respondent and proceed to grant an
order without being satisfied that exceptional circumstances exist for
such interference.
[32] Even if an argument can be made that the applicant was entitled to
come directly to court under Section 4(7) of the R CMA for the
registration of the customary marriage without first approaching the
first respondent for the registration of the marriage, and/or without
such an application being a review application, which I strongly
believe is not the correct procedure, the applicant failed to provide
any information to enable the court to investigate whether or not a
valid customary marriage was entered into;
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[33] The applicant did not indicate which cultural group the parties belong
to; which usages, customs and traditions apply to that specific group
and which were followed by the parties;
[34] The applicant relies solely on the lobola letter, which is, if regard is
had to the authorities referenced above, not enough to proof the
existence of a valid customary marriage;
[35] Even in respect of the lobola letter the evidence before court is
lacking;
[36] The applicant failed to provide any reasons why the original lobola
certificate was not provided to the second respondent and why the
original lobola certificate was not provided to court;
[37] The applicant failed to confirm the correctness of what is contained in
the lobola letter in his founding affidavit and did not even request the
court to incorporate the information contained in the lobola letter as
part of the allegations before court;
[38] The confirmatory affidavits attached to the founding affidavit , do not
take the matter further and provide no information that assist the court
to investigate the validity of the customary marriage. In fact , these
confirmatory affidavits only serve to confirm that the deponents were
the applicant’s “emissaries”. The affidavits do not even go as far as to
confirm that the deponents’ signatures appear on the lobola letter.
[39] In casu, the necessary relevant information was not provided to court
and even if the court was in a position to interfere with the first
respondent’s failure to take administrative action, in terms of section
4(7) of the RCMA , without a proper review application before it, the
court has not been provided with sufficient information so as to
“investigate” whether or not a valid customary marriage was entered
into between the applicant and the deceased;
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[40] In the premises the application stands to be dismissed.
I make the following order:
1. The application is dismissed.
2. No order as to costs.
____________________________
Acting Judge Van Niekerk, N
In The High Court of South Africa
Gauteng Division, Pretoria
This judgment was handed down electronically by circulating to the parties
and the parties’ representative by email and by being uploaded to CaseLines.
Date of hearing: 27 January 2026
Date of judgment: 9 February 2026
Appearance:
Ms Wisani Shinganga
Instructing Attorneys for the applicant:
Phuti Manamela Inc Attorneys
139 Panorama Road
Rooihuiskraal
Centurion
012 655 0631
wisanis@pmattorneys.co.za