TINA HOKWANA | Court dismisses application to declare customary marriage valid

The applicant, Ms Mavundla, brought an application for the court to declare that a valid marriage existed between herself and the deceased, Mr MM Zuma, in terms of s3(1) of the Recognition of Customary Marriages Act (the Act).

The deceased, Zuma, married Mrs AB Zuma (first wife) by civil rights and in community of property on September 25 1988. In 2010, while the deceased and Mrs Zuma were still married, the deceased and Ms Mavundla started dating. Mavundla alleged that emissaries were sent to her family at Empangeni, KwaZulu-Natal, to negotiate lobola on behalf of the deceased. She further alleged that 11 cows were proposed for lobola, however, cash in the sum of R65,500 was paid into her mother’s bank account.

The lobola negotiations and agreement ensued on or about February 8 2012 whereafter an upfront payment of R10,000 (as inkomo yokucela) was paid, by the emissaries, which was accompanied by two fruit-blenders and iscephu (grass mat). It was further submitted, by Mavundla, that a goat was slaughtered and one half was given to the emissaries, whereas the other remained with her family, which also formed part of the customary marriage.

On December 15 2013, the deceased’s first wife died. On March 20 2014, the deceased bought Mavundla an 18-carat white gold diamond cluster ring at the cost of R36,860.

Mavundla submitted that the deceased secured a rented apartment in Umhlanga where she and the deceased lived.

On September 24 2016, the deceased concluded a civil marriage (out of community of property) with a Ms SL Mvelase.

The application was opposed on the basis that there was no customary marriage concluded between the deceased and Mavundla. Furthermore, there were no members of the deceased’s family who attended any of the customary rituals to which Mavundla refers, which would have required obligatory attendance from the deceased’s descendants.

The court had to determine whether there was compliance with s3(1)(b) of the Act which provides that the marriage must be negotiated and entered into or celebrated in accordance with customary law. According to the court, if the sum of R62,500 paid to Mavundla’s mother’s bank account by the deceased was for lobola, such lobola occurred during the subsistence of a civil marriage between the deceased and Mrs A B Zuma, which is in contravention of s10(4) of the Act. Therefore, such lobola would be unlawful or invalid, due to the existence of the civil marriage.

Note: According to s10(4) of the Act, a husband who is a spouse to a civil marriage is not allowed to marry another woman by customary rites during the subsistence of this marriage.

Accordingly, the application was dismissed with costs.

Judgment: Mavundla v Mthethwa NO and Others (452/2021) [2023] ZAKZDHC 97 ( December 21 2023)