Brief Summary

Customary Marriage — Validity of customary marriage — Applicant claimed customary marriage to deceased, while first respondent claimed civil marriage — Court found that customary marriage was valid as no dissolution had been obtained prior to subsequent civil marriage — Civil marriage declared null and void — Minister of Home Affairs directed to expunge civil marriage from register.

Comprehensive Summary

Summary of Judgment

Introduction

This was an application (motion proceedings) in the High Court of South Africa, Gauteng Division, Johannesburg, before Motha J, concerning the alleged existence and legal consequences of a customary marriage in circumstances where the deceased had concluded one or more civil marriages.

The applicant, Msipha Emily Dorah, approached the court contending that she and the late Musa Reuben Tjaitjai had concluded a valid customary marriage and that this marriage had never been dissolved by a court. On that basis, she challenged the validity of a later civil marriage said to have been concluded between the deceased and Tjaitjai Pontso Anna.

The first respondent, Pontso Anna Tjaitjai, opposed the application. The second respondent was the Minister of Home Affairs, cited because the relief sought implicated the marriage register. The third respondent was the Master of the High Court, Johannesburg, cited due to the administration of the deceased estate. The fourth respondent was Pontso Anna Tjaitjai N.O., in her capacity as executrix of the deceased estate.

The procedural background included earlier litigation in the Mpumalanga Division involving the deceased and a previous civil spouse, Thembi Mary Tjaitjai. In those proceedings, an order was eventually granted on 26 May 2023 declaring that civil marriage null and void and directing the Minister of Home Affairs to expunge it from the marriage register. After the deceased’s death on 22 March 2024, the applicant discovered that the deceased was recorded as being married by civil rites to Pontso, which precipitated the present application in Gauteng. The matter was heard on 11 May 2026, and judgment was delivered on 17 June 2026.

The general subject-matter of the dispute was the validity and proof of a customary marriage, the effect of a subsisting customary marriage on later civil marriages, and whether those issues could properly be resolved on the papers given the disputes of fact apparent from the affidavits.

Material Facts

The applicant alleged that she and the deceased concluded a customary marriage on 21 March 1992. In support, she relied principally on a document described as a lobolo agreement/letter, reflecting payment of R2 200 and indicating that four cattle remained outstanding (valued at R550 each). The document recorded representatives of the two families.

It was not disputed that the applicant and the deceased cohabited at Langaville Extension 3, Brakpan, and that they had two children together, born in 1995 and 2008. The applicant stated that they lived together for approximately twelve years and that they separated in 2015. A further fact relied upon by the court was the applicant’s assertion that, despite separation, there was no court decree dissolving the alleged customary marriage (no divorce in the magistrates’ court or High Court), which was central to her contention that the customary marriage subsisted.

It was also before the court that the deceased had concluded a civil marriage on 13 April 2004 with Thembi Mary Tjaitjai, and that litigation later arose between them. During those proceedings, the deceased asserted in an affidavit that he was already married by customary law to the applicant, and on 26 May 2023 the Mpumalanga High Court declared the civil marriage to Thembi null and void and ordered that it be expunged from the register.

After the deceased’s death on 22 March 2024, the applicant reported the death to the Master and discovered that the deceased was recorded as having concluded a further civil marriage with Pontso Anna Tjaitjai. It was also material that the deceased died intestate (without a will) and that Pontso had been appointed as executrix.

The court identified material disputes and contradictions in the evidentiary material. In particular, the deceased’s own affidavit in the Mpumalanga litigation referred to customary marriage negotiations and lobolo being concluded in 1998, which conflicted with the applicant’s allegation that the customary marriage was concluded in 1992. This discrepancy was treated as significant because the first respondent raised the contention that, on the applicant’s version (1992), the applicant would have been 17 (born 1975) and therefore a minor, which was advanced as undermining the validity of the alleged customary marriage. The court also treated as material the absence, on the papers, of supporting affidavits from persons said to have been directly involved in the lobolo process (as reflected on the lobolo letter), and the first respondent’s challenge to the reliability of the lobolo letter.

Legal Issues

The central legal question was whether, on the evidence presented in motion proceedings, the applicant had established that a valid customary marriage existed between her and the deceased and, if so, whether that rendered the deceased’s later civil marriage to Pontso susceptible to being set aside or removed from the marriage register on the basis that the deceased lacked capacity to enter into it while a customary marriage subsisted.

A further central issue was procedural and evidentiary in nature: whether the matter could be determined on affidavits given the presence of material disputes of fact, and how Uniform Rule 6(5)(g) and the approach in Plascon-Evans applied to the contested factual terrain in this case.

The dispute accordingly concerned a combination of fact (whether a customary marriage was in fact concluded in accordance with customary law and when), the application of law to fact (the statutory requirements for validity and the consequences for subsequent civil marriages), and a procedural value judgment/discretion as to whether to dismiss the application or refer disputes for oral evidence under Rule 6(5)(g).

Court’s Reasoning

The court placed the dispute in the broader constitutional and statutory context regulating customary marriages. It referred to constitutional protections for language and culture and to the constitutional injunction that customary law must be applied when applicable, subject to the Constitution and legislation dealing with customary law. It also emphasised jurisprudence cautioning against understanding indigenous law through the prism of the common law and noted Constitutional Court authority stressing that customary law should be understood in its own terms.

The court outlined the statutory framework under the Recognition of Customary Marriages Act 120 of 1998 (RCMA). It referred to requirements for a valid customary marriage, namely that the parties must be 18 years or older, must consent, and the marriage must be negotiated and entered into or celebrated in accordance with customary law. The judgment also noted that the RCMA encourages registration of customary marriages but that non-registration does not affect validity. The court further recognised the RCMA rule that a spouse in a subsisting customary marriage is generally not competent to enter into a civil marriage with another person while the customary marriage subsists, and that dissolution of a customary marriage occurs only by a court decree of divorce.

In discussing how courts approach customary-law requirements, the court referred to decisions emphasising that customary practices may be flexible and evolving, and that strict insistence on particular rituals is not necessarily decisive in every case. The judgment contrasted that approach with authority suggesting that customary marriage validity may depend on adherence to customary negotiations, rituals, and celebrations. These references served as context for the evidentiary assessment the court ultimately had to undertake on the papers.

Turning to the facts, the court held that the applicant’s case depended materially on two elements: the deceased’s prior affidavit (from the Mpumalanga divorce-related proceedings) and the lobolo letter. However, the court found that the documentary and affidavit material revealed significant contradictions that were not explained. A key contradiction was the date of the alleged customary marriage: the applicant alleged 1992, while the deceased’s affidavit referred to 1998. The court treated this as important not only as a bare inconsistency but because it intersected directly with the first respondent’s point that the applicant was a minor in 1992, and because the applicant’s own affidavit asserted that both parties were over 18 at the time, which the court found could not be reconciled with a 1992 marriage date given the applicant’s birth year.

The court also highlighted internal tensions in the deceased’s prior affidavit material, including statements suggestive of his belief that he had long been separated from the applicant while his legal team advanced a case premised on the subsistence of a customary marriage. The court further observed that the Mpumalanga proceedings did not demonstrate that the customary marriage issue had been fully ventilated in adversarial fashion. Particular emphasis was placed on an earlier Mpumalanga order indicating that the matter should not be re-enrolled without joinder of the applicant and attachment of a settlement agreement, and on the later fact that the order declaring the civil marriage to Thembi null and void was granted after hearing the deceased’s counsel, without the judgment reflecting the full ventilation of the disputed customary marriage questions.

On the evidentiary approach in motion proceedings, the court applied the principle that material disputes of fact are not appropriately resolved on affidavit. It referred to Uniform Rule 6(5)(g), which permits a court, where disputes arise, to dismiss the application or to refer disputed issues (or the whole matter) to oral evidence. The court also referred to Plascon-Evans for the proposition that motion proceedings are not suited to resolving credibility contests where the court cannot properly determine reliability on paper alone.

In exercising its discretion, the court concluded that the disputes and contradictions were apparent and that the applicant’s legal representatives ought to have foreseen that motion proceedings would generate irresoluble factual conflict, particularly given the inconsistent dates and the absence of corroborating affidavits from individuals identified in the lobolo document. In that context, the court elected the Rule 6(5)(g) course of dismissing the application, rather than referring the matter to oral evidence.

Outcome and Relief

The court dismissed the applicant’s application.

The practical effect was that the court did not grant relief setting aside or directing the expungement of the civil marriage between the deceased and Pontso Anna Tjaitjai, because the applicant had not established, on the motion papers, a valid subsisting customary marriage with the deceased.

The court ordered that costs follow the result, with the unsuccessful applicant being liable for costs.

Cases Cited

Alexkor Ltd and Another v Richtersveld Community and Others (CCT19/03) [2003] ZACC 18; 2004 (5) SA 460 (CC); 2003 (12) BCLR 1301 (CC) (14 October 2003)

Netshituka v Netshituka and Others (426/10) [2011] ZASCA 120; 2011 (5) SA 453 (SCA); [2011] 4 All SA 63 (SCA) (20 July 2011)

Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) (30 May 2013)

Mbungela and Another v Mkabi and Others (820/2018) [2019] ZASCA 134; 2020 (1) SA 41 (SCA); [2020] 1 All SA 42 (SCA) (30 September 2019)

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

Manwadu v Manwadu and Others (799/2023) [2025] ZASCA 10; [2025] 2 All SA 27 (SCA); 2025 (3) SA 410 (SCA) (10 February 2025)

Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23; 2009 (3) BCLR 243 (CC); 2009 (3) SA 152 (CC) (8 December 2008)

National Director of Public Prosecutions v Zuma 2009 ZASCA 1 (12 January 2009)

Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A)

VVC v JRM and Others (CCT202/24) [2026] ZACC 2; 2026 (3) BCLR 234 (CC); 2026 (3) SA 1 (CC) (21 January 2026)

Legislation Cited

Constitution of the Republic of South Africa, 1996, sections 30, 31 and 211(3), with reference also to constitutional equality considerations in the discussion.

Recognition of Customary Marriages Act 120 of 1998, including sections 2, 3, 4, 7, 8 and 10.

Marriage Act 25 of 1961.

Matrimonial Property Act 88 of 1984, section 21.

Black Administration Act 38 of 1927.

Children’s Act 38 of 2005, section 17.

Age of Majority Act 57 of 1972.

Rules of Court Cited

Uniform Rule 6(5)(g) of the Uniform Rules of Court.

Held

The court held that the applicant had not established, on the motion papers, that a valid customary marriage between the applicant and the deceased existed and subsisted in a manner that would justify declaring the deceased’s later civil marriage to Pontso invalid and directing its expungement.

The court further held that the affidavits disclosed material disputes of fact and internal contradictions, including conflicting dates for the alleged customary marriage and unresolved difficulties relating to the applicant’s age on her pleaded timeline, as well as the absence of corroborating affidavits from persons directly implicated in the lobolo process.

Given those disputes and the limits of motion proceedings, the court applied Rule 6(5)(g) and the Plascon-Evans approach and dismissed the application with costs.

LEGAL PRINCIPLES

Customary law must be understood and applied in its own terms, and not through the lens of the common law, subject to the Constitution and legislation specifically dealing with customary law.

A valid customary marriage under the RCMA requires that the parties be 18 or older, consent to the marriage, and that the marriage be negotiated and entered into or celebrated in accordance with customary law, recognising that customary practices may evolve and are assessed contextually.

A customary marriage is not rendered invalid merely because it was not registered, because failure to register does not affect validity under the RCMA.

A spouse in a subsisting customary marriage is generally not competent to enter into a civil marriage with another person during the subsistence of the customary marriage, and a customary marriage may be dissolved only by a court decree of divorce.

Motion proceedings are not suited to the resolution of genuine disputes of fact and credibility contests on affidavit. Where such disputes arise, Uniform Rule 6(5)(g) empowers the court to dismiss the application or refer issues (or the matter) for oral evidence; and the principles in Plascon-Evans underscore the constraints on fact-finding where conflicting versions appear on the papers.

Msipha v Tjaitjai and Others (2024/150152) [2026] ZAGPJHC 722 (17 June 2026)