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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 3235/2025
In the matter between:
N[…] N[…] FIRST APPLICANT
(Identity number 8[…] )
M[…] A[…] M[…] SECOND APPLICANT
(Identity number 7[…] )
and
T[…] L[…] L[…] FIRST RESPONDENT
(Identity number 7[…] )
MINISTER OF HOME AFFAIRS SECOND RESPONDENT
DIRECTOR GENERAL OF HOME AFFIAIRS THIRD RESPONDENT
Neutral citation: N[…] and Another v L[…] and Others (3235/2025) [2025] ZAFSHC
292 (14 May 2026)
Coram: MAJOSI AJ
Heard: 27 November 2025
Delivered: 15 May 2026
Summary: Customary marriage concluded by applicants – requirements for
a valid customary marriage - principles restated - s econd applicant ’s subsequent
civil marriage to the first respondent null and void – first respondent’s counter
application of a putative marriage – referred for oral evidence.
ORDER
1
1 It is declared that the customary marriage entered into by the applicants on 15
September 2012 is a valid customary marriage as envisaged in terms of s 3 (1) of the
Recognition of Customary Marriages Act 120 of 1998;
2 The second and third respondents are directed to register the customary
marriage as concluded on 15 September 2012;
3 The civil marriage concluded between the second applicant and first respondent
on 17 August 2015, is declared null and void.
4 The first respondent to pay the cost of the application on a party and party scale
which costs shall include counsel fees, scale B.
5 The first respondent’s counterclaim is referred for oral evidence on the issue of
whether or not the first respondent was ignorant of the impediment to her marriage.
JUDGMENT
Majosi AJ
[1] The applicants herein seek a declaratory order that their customary marriage
entered into on 15 September 2012 is a valid one in terms of the Recognition of
Customary Marriages Act 120 of 1998 (the Act) and that the second and third
respondents be authorized and directed to register their customary marriage. A further
order is sought that the civil marriage concluded between the second applicant and first
respondent be declared null and void and the second and third respondents be directed
to deregister the lat er civil marriage concluded on the 27 August 2025 with the first
respondent.
[2] The second and third respondent did not oppose the applications or participate
in the proceedings. The first respondent is opposed to the relief sought and launched a
conditional counter application in that , should the court declare that a valid customary
marriage was been concluded between the applicants, her latter civil marriage be
declared a putative marriage, alternatively as a civil union with the proprietary
consequences attached thereto to take effect . The main application and conditional
counterclaim form the basis of my adjudication.
counterclaim form the basis of my adjudication.
[3] A brief background is as follows. The applicants met early in the year 2008 in
2
Smithfield, Free State. They started a romantic relationship in August 2008 which
became serious as they opted to cohabit and purchased an immovable property
together situated in Raceway Park, Bloemfontein ( the property) in anticipation of
marriage. It was agreed that children would be born after marriage. A letter from the
second applicant family was sent to hers, requesting a meeting to discuss same. On 17
March 2012, the second applicant sent a delegation to the first applicants family home
in Zastron, F ree State to commence lobola negotiations in terms of Sesotho customs.
An amount representing cows for lobola was agreed upon. On 15 September 2012, his
family returned again to Zastron and paid a portion of the lobola in an amount of R
5000.00 representing 2 of the total amount of cows agreed upon.
[4] The first applicant’s family prepared a meal and served it to both families and
their respective representatives . In line with Sesotho customs , a sheep was made
available to the second applicants’ family, slaughtered and a parted thereof was gifted
to the seconds applicant’s family as a symbol of unifying the two families. She was
presented with a Sesotho traditional dress and headscarf by the second applicant ’s
family to welcome her into the M […] family. Her family released her to the second
applicant as his wife and they continued to stay together but now as husband and wife.
This customary marriage was not registered with the Department of Home Affairs.
[5] On 1 July 2013, the second applicant was promoted at work and moved to
Trompsburg and she remained in Smithfield . Their marriage continued long distance
until she obtained a work transfer to Bloemfontein in February 2014. Their marriage
took strain and she separated from the him. She eventually found out that he was
involved in an extra marital affair with the first respondent. Despite his customary
marriage to the first applicant, the second applicant entered into a civil marriage with the
marriage to the first applicant, the second applicant entered into a civil marriage with the
first respondent in August 2015 without dissolving their marriage first or him obtaining
her consent to taking a second wife as allowed in their customs nor was she was
consulted thereon. Had either of the two options been brought to her attention, she
would have refused. She was later informed that they moved into the immovable
property that she had vacated after their separation and the first respondent gave birth
to twins in July 2015.
[6] In the year 2019, the second applicant proposed reconciliation and she agreed.
3
From February 2020, they resumed living together and have done so for the past five
years as he had assured her that his relationship with the first respondent was over and
was to ensure that their twins not be born out of wedlock. The second applicant
confirmed this in his confirmatory affidavit. He also admitted that due to their customary
marriage, his subsequent civil marriage was unlawful . To that end, an application was
made for their customary marriage to be declared a valid one and his second marriage
null and void as he averred that the first respondent knew that he was marr ied to the
first applicant in terms of customary law.
[7] The first respondent is opposed to the relief sought by the applicants on the
basis that she entered into a valid civil marriage with the second applicant on 27 August
2015. She also disputes that the two entered into a valid customary marriage due to
contradictory versions provided in the founding affidavit and confirmatory affidavit of the
second applicant, on what allegedly transpired on 17 March 2012 and or 15 September
2012, when part of the lobola amount was allegedly paid.
[8] She indicated that she and the second applicant met in Botshabelo, Free State
in the year 2007 w here both of their parental homes are based and have been in a
relationship since then. At no point was she informed by the second applicant that he
had entered into a customary marriage previously and they remained committed to each
other until she bore him twins in 2015.They opted to get married that very same year on
17 of August 2015 at Thaba Nchu Home Affairs. This was also after they opted to live
together once he was transferred to Trompsburg where they, at the time were both
employed. She averred that she and the second applicant lived together continuously,
utilizing the Raceway property on weekends until their eventual separation in the year
2019 and his eventual departure in September 2021. Moreover, she only learned in the
2019 and his eventual departure in September 2021. Moreover, she only learned in the
year 2016 that the second applicant had fathered a child with the former as it was kept a
secret.
[9] She further indicated that the notion customary marriage between the two
applicants never existed as from their own affidavits and annexures thereto, their
version is ambiguous. It was indicated that though parties indicated that lobolo was
negotiated, their affidavits indicated that same was done on the 17 March 2012 but their
supporting documentation as signed family representatives of both applicants indicate
4
that an amount of R 5000. 00 lobol a was paid on 15 September 2012. N or were there
any minutes of a meeting on 17 March 2012 to confirm the amount of cows and their
agreed monetary value upon their return to conclude same in September 2025. To
make matters wor se, the annexures are written in Sesotho without any sworn
translation in English to confirm the contents thereof and for that matter , a proper
context.
[10] The first respondent also took issue with the fact the second applicant ’s late
father’s surname was incorrectly spelt on the receipt which may be a clear indication
that the annexures pertaining to lobolo have not only been falsified but is a deliberate
attempt on the part of the applicants to make out a case for a customary marriage
where none exists. Moreover , the fact that the first applicant was handed over to her
alleged in-laws at her parental place in Zastron and counselled and presented with attire
is against Sesotho customs as same traditionally, takes place at the groom’s family,
which would have been the second applicants’ home.
[11] In stark contrast, the second applicant indicated that the first respondent was
aware of his customary marriage and has presented a version that not only supports the
version of the first applicant, but radically controverts the version of the first respondent.
It is for that reason that the first respondent indicated that should the court find that a
valid customary marriage existed under these dubious circumstances that t he civ il
marriage to the second applicant not be declared null and void but rather a putative
marriage as she, as a one of the parties to the marriage, was not aware of the
impediment that existed customary marriage, her marriage was duly solemnized and
that the marriage was a lawful one of the parties or of that party (first respondent) who
alleges bona fides.
[12] Section 3 (1) of the Act sets out the requirements for a valid customary
[12] Section 3 (1) of the Act sets out the requirements for a valid customary
marriage namely that both prospective spouses must be above the age of 18 years,
they must consent to enter into a marriage under customary law and the marriage must
be negotiated and entered into or celebrated in accordance with customary law. Section
3(2) also provides that no spouse in a customary marriage shall be competent to enter
into another marriage under the Marriage Act 25 of 1961 during the subsistence of such
5
customary marriage save for under s 10(1) of the Act.1
[13] Courts over the years have accepted that customary law is a practice of culture
but it evolves in the context of its values, norms , consistency with the Constitution so as
to meet the needs of the people that live in accordance with those norms. It is also not
unusual to find variances in practices or ambiguities.
2 The Constitutional court in
Shilubana and Others v Nwamitwa3 as far back as 2009 indicated that courts should be
cognizant of the fact that customary law regulates the lives of people and the need for
flexibility must promote the values enshrined in our constitution and the vulnerability of
parties affected by such changes.4
[14] A putative marriage departs from the general rule that a void marriage has no
legal consequences provided it is shown that both or one of the parties must have been
ignorant of the impediment to the marriage, that it was solemnized and considered
lawful in the estimation of the parties or of that party who alleges bona fides.
5 The
purpose of a putative marriage is thus to soften certain consequences of a marriage that
is null and void as it protects innocent parties who were unaware of an impediment to
their marriage.
6
[15] Counsel for the applicants argued that a valid custom ary marriage had been
concluded as the applicants were above the age of 18 when they consented to the
marriage, it was negotiated in terms of customary law as a delegation was sent to the
bride’s family, an agreement was reached pertaining to lobolo and the very same
delegation returned and paid R 5000.00 towards the agreed outstanding amount.
Furthermore that representatives fr om both families signed off on in writing c onfirming
1 Section 10 Change of marriage system
(1) A man and a woman between whom a customary marriage subsists are competent to contract a marriage
with each other under the Marriage Act, 1961 (Act 25 of 1961), if neither of them is a spouse in a subsisting
customary marriage with any other person.
(2) When a marriage is concluded as contemplated in subsection (1) the marriage is in community of property
and of profit and loss unless such consequences are specifically excluded in an antenuptial contract which
regulates the matrimonial property system of their marriage.
(3) Chapter III and sections 18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984 (Act 88 of
1984), apply in respect of any marriage which is in community of property as contemplated in subsection (2).
(4) Despite subsection (1), no spouse of a marriage entered into under the Marriage Act, 1961, is, during the
subsistence of such marriage, competent to enter into any other marriage.
2 Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA).
3 Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC), para 46 - 47.
4 Ibid para 47.
5 Ramatshimbila v Phaswana [2014] ZASCA 117, para 60.
6 MS v Executor, Estate late NS and Others 2021 (6) SA 483 (FB)
6
this arrangement and that, lobola had indeed been paid in part.
[16] It was submitted that though the handing over of the bride was done at her
home and not the grooms, this does not invalidate undisputed facts as averred in the
founding affidavit and confirmatory affidavit. In that after the money was paid, the bride
was given traditional attire by the groom’s family, counselled by elders and a sheep was
slaughtered in preparation of a meal, shared a feast prepared by the bride’s family and
that a portion of the sheep was gifted to the groom’s family. The bride was released to
live with the groom.
[17] To that end, I was specificall y referred to Mbungela supra where the supreme
court held that the handing over of a bride though important can be waived and is not an
indispensable custom which will result in the customary marriage not being a valid one.
It was submitted that bridal transfer herein did take place and as is evident from the
Tsambo and Sengadi
7 wherein the bridal transfer took place at the bride’s home and
lobola was also not paid in full but the court still concluded that there was a valid
customary marriage and non -observance thereof did not result in invalidity the
customary marriage.
[18] It was lastly submitted that the counterapplication of the first respondent ought
to fail as the second respondent’s answering affidavit explicitly states that he and the
first respondent began dating in November 2013 and that he informed her that he is
customarily married to the first applicant with whom he shares a child with. Put
differently, she knew that an impediment to her civil marriage exists and was thus not
bona fides. This inadvertently, created a material dispute of fact if there was ignorance
of the impediment to the civil marriage. A dispute, which could not be determined on
affidavits.
[19] Transversely thereto, counsel for the first respondent argued that it is doubtful
[19] Transversely thereto, counsel for the first respondent argued that it is doubtful
that a valid customary marriage was concluded as there is no clear indication if an
amount of R 5000.00 was paid on the grooms initial visit to the brides family on 17
March 2012 or if as the per the founding affidavit which indicated which members of the
N[…] family was present and it was agreed with the M[…] family the lobola would be R
7 Tsambo and Sengadi paras 25- 27.
7
25 000.00 of which the M [...] paid R 5000.00 and the balance to be paid later on 15
September 2012. It was argued that this discrepancy is a clear indication of a
fundamental inconsistency where the marriage negotiations are concerned.
[20] Furthermore, the lack of minutes of the meeting held by the families on 17
March 2012 may suggest that no such meeting occurred and the applicants are making
such an allegation to fabricate and account for inconsistencies in their version.
Moreover, the fact the second applicant late father’s surname was misspelt in the
receipt and ma y be an indication it is not only defective but also inconsistent with the
applicants own evidence. This read together with the affidavit of the first applicant which
initially indicated that an amount of R 5000.00 was paid on 17 March 2012 and the
balance was due to be paid on the 15 September 2012 is irreconcilable in the absence
of evidence of the second applicant ’s aunt confirming this aspect who was also present
during these negotiations
[21] Although it was conceded that the legal principals pertaining to the handing
over of the bride is not a strict compliance anymore as stated in Mbungela and C v P
8, it
was thus submitted that this court cannot find that a valid customary marriage was
concluded in light of the various discrepancies in the version presented by the
applicants and it urged the court to dismiss the application on this basis and apply the
Plascon Evans rule.
[22] Lastly it was submitted in the event this court finds that the applicants concluded a
valid customary marriage, the later civil marriage ought to be declared a putative
marriage as their marriage is void abinitio and duly solemnized. The first respondent’s
ignorance to the existence of an impediment (customary marriage) was bona fide as it
was never disclosed to her . Alternatively, that their union ought to be considered a
universal partnership as summarized by the Supreme Court in Ponelat v Schrepfer9 to
universal partnership as summarized by the Supreme Court in Ponelat v Schrepfer9 to
be three essentials namely that each of the partners bring something into the
partnership, whether it be money, labor or skill , that the business should be carried on
for the joint benefit of the parties and that the object should be to make a profit that the
contract should be a legitimate one.
8 C v P [2017 ZAFSHC 57.
9 Ponelat v Schrepfer 2012 (1) SA 206 (SCA), para 19.
8
[23] Counsel for the parties have indeed provided this court with relevant case law
and legal principals as pronounced on by the supreme court of appeal and the
constitutional court. There is however a very distinguishable fact from all the case law.
In casu, the applicants are both still alive and have jointly brought this application after
proper notice to the respondents, and more importantly, the first respondent who has a
substantial interest in the outcome of this case as it will affect her civil marriage and
conditional counterclaim which has been lodged which will, effectively deal with the
proprietary consequences of the civil marriage that she would have entered into on 15
August 2015 with the second applicant. More on this aspect later.
[24] In my view, a valid customary marriage was concluded between the applicants
on 15 September 2012 for several reasons. Firstly, it is clear from the identity numbers
cited herein that the applicants were both above the age of 18 years when they
consented to their customary marriage. It was also their intention to get married
according to Sesotho customs which they practice hence their respective families got
together to negotiate lobola at the bridal home in Zastron and not their private
residences used in Trompsburg, Smithfield or Raceway.
[25] Secondly, in accordance with their intentions, their respective families met after
a letter had been dispatched to the first applicants family and agreed on lobola in the
amount of R 25 000. 00. As correctly identified by the first respondent, no minutes of
such meeting exists or were noted and the first applicant’s founding affidavit initially
gave the impression that an amount of R 5000.00 was paid towards lobola. A further
reading of the founding affidavit however contextualizes the fact that no money was
exchanged but rather an agreement was reached that the groom’s family would return
on 15 September 2012 to formally conclude negotiations.
on 15 September 2012 to formally conclude negotiations.
[26] In this particular context, it makes sense why there are no minutes of the
meeting on 17 March 2012 as no money had been paid, no celebration had taken place
nor had the bride’s family prepared a meal, slaughtered a sheep or formally released
her to reside with the groom. There was nothing of meaning to note as customs
dictates that lobola ought to be paid in full or in part before any type of celebration takes
place. The affidavits of the applicants ought to have been meticulous in that regard. This
however does not mean that the version presented is fictious or false given their
positive attestation of what would have occurred on 15 September 2012.
9
[27] Thirdly, the first respondent cannot dispute the events of the 15 September
2012 as averred by the applicants. She bears no personal knowledge thereof as per her
answering affidavit. The applicants unequivocally state that on this day, the negotiations
were concluded, an amount R 5000.00 was paid to the bride’s family towards lobola and
both were individually counselled by the elders which is an accepted customary practice
to ensure that bride and groom understand the life change that has taken place and
what their respective duties and responsibilities in the marriage will be.
[28] In casu, the handing over did not take place at the groom’s residence as per
Sesotho customs. Instead, the bride was gifted and clothed in traditional attire, a meal
was shared and a portion of the slaughtered sheep was handed over to the groom’s
family and it is there where she ( first applicant) was released and permitted to formally
join the second applicant as his wife due to the conclusion of the lobola negotiations
and celebrations. It must be remembered that the purpose of the custom of handing
over t he bride is to ensure that the bride is properly introduced to her in laws. This
indeed occurred and I find the actual venue to be irrelevant. The principles laid down in
Tsambo and Mbungela reveal that there is no merit in the argument that handing over of
the bride did not take place just because it occurred at the bridal home.
[29] In any event, the first respondent cannot dispute that a customary marriage was
concluded as she correctly stated in her answering affidavit that she bears no
knowledge of same but yet, most opportunistically, takes issue with when amounts were
paid, who was present, and contests language contents of the handwritten letters
annexed to the founding affidavit and the signature of the late father of the second
respondent without a handwriting expert.
[30] Lastly, s 3(2) of the Act is prescriptive. No spouse in a customary marriage shall
[30] Lastly, s 3(2) of the Act is prescriptive. No spouse in a customary marriage shall
be competent to enter into a marriage under the Marriage Act 25 of 1961. This
effectively means that after the second applicant entered and concluded a customary
marriage with the first applicant, he could not have entered into another civil marriage
with anyone for that matter let alone the first respondent. I am persuaded on a balance
of probabilities that the applicants are entitled to the relief sought and they did conclude
a valid customary marriage as envisaged in the Act on 15 September 2012 and that
such marriage still subsists and the remainder of the respondents are to register the
10
customary marriage. It stands to reason that the second applicant was not competent to
enter into a subsequent civil marriage with the first respondent and such marriage is null
and void.
[31] The only terse issue that remains is the counterclaim and if t he first respondent
makes out a case for a putative marriage, alternatively, a universal partnership. The
second applicant and first respondent versions on this aspect are worlds apart. They
disagree as to where they first met, when the relationship started, if it was before or
after the relationship between the applicants came into existence, if his child with the
first applicant was a secret, if the customary marriage was disclosed or in fact known to
the first respondent before the civil marriage was entered into. In my view, due to the
material dispute of fact, this is an aspect that cannot be adjudicated upon on affidavits.
Furthermore, I cannot even at this stage determine if the version of the first respondent
is untrue or farfetched. The only possible way to resolve this issue is to refer the issue
of whether or not the first respondent was ignorant of the impediment to her marriage to
the second applicant for oral evidence.
[32] It is trite that costs follow the result. The applicants are successful in the main
application and will order that the first respondent pays costs on a party and party scale,
including counsel fees at scale B.
[33] Accordingly, it is ordered:
1 It is declared that the customary marriage entered into by the applicants on
15 September 2012 is a valid customary marriage as envisaged in terms of s
3 (1) of the Recognition of Customary Marriages Act 120 of 1998;
2 The second and third respondents are directed to register the customary
marriage as concluded on 15 September 2012;
3 The civil marriage concluded between the second applicant and first
respondent on 17 August 2015, is declared null and void.
4 The first respondent to pay the cost of the application on a party and party
4 The first respondent to pay the cost of the application on a party and party
scale which costs shall include counsel fees, scale B.
5 The first respondent’s counterclaim is referred for oral evidence on the issue
of whether or not the first respondent was ignorant of the impediment to her
marriage.
11
___________________
O R MAJOSI
ACTING JUDGE OF THE HIGH COURT
Appearances
For the applicants: M S Mazibuko
Instructed by: Hill, Mc Hardy &Herbst Inc
Bloemfontein
For the first respondent: L B J Moeng
Instructed by: Setenane Attorneys,
Bloemfontein.