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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 2025-240295
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 04/06/2026
SIGNATURE
In the matter between
EMELINAH LINDIWE NHLAPO Applicant
(Identity Number: 8[...])
and
TSHEDISO THEKWANE First Respondent
(Identity number: 8[...])
NONTOBEKO MICHELLE THEKWANE Second Respondent
(Identity number: 8[...])
2
JUDGMENT
Summary; Application to declare customary marriage and subsequent civil marriage null and
void based an alleged prior customary marriage. Held; Applicant’s version not to be accepted.
Applicant failed to prove a customary marriage between herself and First Respondent.
Application dismissed.
The judgment and order are published and distributed electronically.
PA VAN NIEKERK, J
INTRODUCTION:
[1] In the notice of motion Applicant seeks an order in the following terms:
“1. That the customary marriage concluded between the First and the
Second Respondent on 18 March 2023 be declared null and void ab
initio.
2. That the civil marriage concluded between the First and the Second
Respondent on 11 May 2023 at Randfontein be declared null and void
ab initio.
3. That the customary marriage concluded between the Applicant and the
First Respondent is declared valid, effective from 19 February 2023.
4. That any party opposing this application pay the costs of this application;
alternatively, that each party pays their own costs”.
[2] It is common cause that the First Respondent and the Second Respondent are
presently married in terms of a duly registered civil marriage which was
concluded on 11 May 2023 after the parties were previously married in terms of
a customary marriage concluded on the 1 8th of March 2023. This follows a fter a
long-standing relationship between the First Respondent and the Second
Respondent which commenced during 2014 and from which there are presently
four children born.
[3] Applicant seeks an order to declare both the customary marriage as well as the
civil marriage concluded between First Respondent and Second Respondent to
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be null and void ab initio, and further to declare an alleged customary marriage
entered into between Applicant and first Respondent to be “ valid”. The
Applicant’s claims are based on an allegation that the Applicant and the First
Respondent entered into a customary marriage on 19 February 2023 and that
the Applicant “… recently learnt that on 18 March 2023, while married to me, my
husband convened a delegation to visit and indeed visited the family home of
the Second Respondent to initiate Lobola discussions with the intention of
entering into a subsequent customary marriage with the Second Respondent”.
[4] In the founding affidavit the Applicant avers that she “ further learnt” (without
disclosing when, where or from whom) that on 11 May 2023 the First - and
Second Respondents approached the Department of Home Affairs’ offices in
Randfontein and entered into a “ …..putative (sic) civil marriage ”. Applicant
concludes that, because the customary marriage entered into between the first
Respondent and Second Respondent as well as the civil marriage entered into
between the First Respondent and Second Respondent w ere preceded by the
alleged customary marriage entered into between the Applicant and the First
Respondent, that those marriages are void. This contention is based on the
Applicant’s averment that she did not provide consent for the customary
marriage entered into between the First Respondent and Second Respondent 1
and by virtue of the provisions of section 3(2) of the Recognition Act 2 which
reads as follows:
“… no spouse in a customary marriage shall be competent to enter into a
marriage under the Marriage Act, 1961 , during the subsistence of such
customary marriage”.
[5] On a proper interpretation of section 3 of the Recognition Act, spouses who are
married to each other in terms of customary law may convert such a marriage to
a civil marriage but may not enter into another customary marriage and spouses
1 Mayelane v Ngwenyama and Another [2013] ZACC 14.
1 Mayelane v Ngwenyama and Another [2013] ZACC 14.
2 Recognition of Customary Marriages Act 120 of 1998.
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who have entered into more than one customary marriage are prohibited to
enter into a civil marriage.
[6] First Respondent filed an answering affidavit, admitting all the facts upon which
the Applicant relies and concede s the relief which is claimed. In my view this is
not surprising when the Second Respondent’s answering affidavit is read, which
contains the following allegation:
“It is my submissions (sic) that the Applicant and the First Respondent are
colluding with each other to declare our marriage invalid as the First Respondent
is aware that I am preparing for divorce, and he does not wish to divide the joint
estate. In fact, he has already started moving assets around, which I will deal
with in a separate application or in the correct forum”.
[7] The Second Respondent denies that the Applicant and First Respondent
entered into a customary marriage. The Second Respondent specifically
challenged the Applicant and the First Respondent to provide proof that the
customary marriage took place on 19 February 2023 and denies that the “Lobola
letter” on which the Applicant rely constitutes proof of that marriage because, as
stated by Second Respondent, “… a letter can easily be manipulated” . It is
common cause that the alleged customary marriage entered into between
Applicant and First Respondent is not registered, and it is also common cause
that the customary marriage between First Respondent and Second
Respondent is not registered. The Second Respondent further avers that a
material factual dispute should have been foreseen by the Applicant and that the
application, on that basis, should be dismissed.
ANALYSIS OF FACTUAL DISPUTE
[8] On an analysis of the respective affidavits, it is common cause that a customary
marriage was entered into between the First Respondent and the Second
Respondent. The Applicant avers that she became aware of such a customary
marriage in her founding affidavit and the First Respondent avers in paragraph
marriage in her founding affidavit and the First Respondent avers in paragraph
14 of his answering affidavit that on even date (18 March 2023) he “had entered
into a second customary marriage with Nontobeko (Second Respondent) as my
second wife, without the knowledge or consent of Lindiwe (Applicant). ” It is
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further common cause that First Respondent and Second Respondent thereafter
entered into a civil marriage, and a copy of the marriage certificate is annexed
to the Applicant’s founding affidavit.
[9] The existence of a customary marriage between the Applicant and First
Respondent is in dispute . A factual finding on the existence or not of such an
alleged customary marriage is d eterminative of the relief claim ed by the
Applicant. It therefore f ollows that the only issue to be determined is the
existence of the alleged customary marriage entered into between the Applicant
and First Respondent on 19 February 2023.
[10] In my view that Applicant’s version of a customary marriage allegedly entered
into between herself and the First Respondent on 19 February 2023, and which
version is supported by the affidavit filed by the First Respondent, should be
regarded with circumspect when the following facts are considered:
[10.1] In the replying affidavit t he Applicant does not dispute the Second
Respondent’s averment that she is “ preparing for divorce” and that
the First Respondent is aware of that fact . The Second Respondent
deposed to her answering affidavit on 20 February 2026 which was
filed on Caselines on 26 February 2026. The First Respondent
deposed to his answering affidavit on 17 March 2026, at a time when
he was aware of the Second Respondent’s answering affidavit, but
fails to deny the Second Respondents averments in relation to the
preparations for a divorce. The First Respondents preparation for a
divorce was thus a fact known to the Applicant and First Respondent,
who both clearly joined issue in the matter, and the fact that this
application was instituted after the Second Respondent manifested
her preparation for divorce is, in my view, significant as it provides a
compelling motive for the relief sought.
[10.2] The Applicant’s founding affidavit contains a “ lobola letter” which
disclose that a certain Mr Joseph Thekwane , a family member of the
disclose that a certain Mr Joseph Thekwane , a family member of the
First Respondent, participated in the alleged Lobola negotiations on
19 February 2023 when the customary marriage which allegedly
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exists between the Applicant and the First Respondent was
negotiated. Second Respondent points out in her answering affidavit
that the same Mr Joseph Thekwane was present on 18 March 2023
and participated in the Lobola negotiations on behalf of the First
Respondent during the conclusion of the customary marriage
ceremonies between the families of the First Respondent and Second
Respondent. Mr Joseph Thekwane at no stage during the
negotiations between the respective families of First Respondent and
Second Respondent which preceded their customary marriage,
mentioned that the First Respondent had entered into another
customary marriage or lobola negotiations some three months earlier,
where he was present. This fact is not explained in the replying
affidavit. Considering the important role of the first wife in customary
marriages, and the fact that Mr Thekwane was allegedly present at
the earlier lobola negotiations between the families of Applicant and
First Respondent when she allegedly became the first wife, this fact is
remarkable.
[10.3] First Respondent does not even attempt to provide an explanation
why he did not disclose the existence of an alleged prior customary
marriage between himself and the Applicant at the time when the
First Respondent entered into the admitted customary marriage with
the Second Respondent . Absent any plausible disclosed motive for
this deceit, it is in my view improbable that any reasons existed why it
should have been necessary to conduct himself in this manner. It
leads to the probable conclusion that there was in fact no other
existing customary marriage in existence of which he was a partner
and which he was obliged to disclose.
[10.4] At the time when the First Respondent and the Second Respondent
entered into the civil marriage, First Respondent was required by
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virtue of the provisions of section 30 of the Marriage Act 3 to declare
that there was no impediment to the intended marriage between
himself and the Second Respondent. The fact that the marriage
officer concluded the marriage between First - and second Applicants,
implies that First Respondent made no such declaration. First
Respondent thus either made a false declaration at that time and
committed an offence by virtue of the provisions of section 36 of the
Marriage Act or is committing perjury in the affidavit filed on behalf of
the First Respondent. However, in my view these objective facts
illustrate that the Court can place no reliance on the contents of the
First Respondent’s answering affidavit.
[11] Considering the aforesaid, and bearing in mind that the Applicant bears the onus
of proof in relation to the existence of the customary marriage entered into
between herself and the First Respondent, I am of the view that the version
advanced by the Applicant is inherently improbable compared to the version
advanced by the Second Respondent and for the reasons as set out supra, that
the preferred version is that of the Second Respondent.
[12] However, in my view that is not the end of the matter. The Applicant’s founding
affidavit fails to disclose the existence of a customary marriage , save for a b old
allegation that they participated in lobola negotiations and the production of an
alleged lobola letter . The affidavit contains no information on the applicable
customs, or compliance with the customs which informs the customary law
applicable to that group of peoples to which the Applicant and First Respondent
belong. The requirements to plead and prove a customary marriage was set out
in the judgment of EMK v EMB and Another 4 where it was held that, when faced
with the issue to determine the existence of a customary marriage the Court
should apply living customary law and be provided with corroborative evidence
should apply living customary law and be provided with corroborative evidence
of the specific applicable customary law upon which the party relies. This
3 Marriage Act, 25 of 1961.
4 EMK v EMB (2024/094190; 2023/010767) [2025] ZAGPPHC 289 (18 March 2025).
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judgment refers to various Constitutional Court judgments which informs the
principles enunciated in the judgment of EMK v EMB supra.
[13] In conclusion, the Applicant failed to prove the existence of a customary
marriage entered into between the Applicant and the First Respondent.
[14] In the result, the following order is made:
1. The application is dismissed.
2. Applicant is ordered to pay the Second Respondent’s costs, taxed on Scale B.
_________________________________
P A VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
APPEARANCES
FOR APPLICANT Adv S G Skosana
INSTRUCTED BY SHONGWE NM
ATTORNEYS
FIRST RESPONDENT No appearrance
INSTRUCTED BY
SECOND RESPONDENT N Otrebski
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OTREBSKI
ATTORNEYS