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Court rules in favour of customary spouse

Tina Hokwana delves into a battle between two wives over the validity of one’s marriage to their deceased husband

Tina Hokwana Legal Practitioner
The marriage was never formally registered. However, the non-registration of a customary marriage does not affect its validity.
The marriage was never formally registered. However, the non-registration of a customary marriage does not affect its validity.
Image: 123RF/LUKAS GOJDA

The Free State high court has declared that  a 1992 customary marriage between  a surviving spouse (the applicant) and the deceased is valid and  remains in effect in terms of the Recognition of the Customary Marriage Act 120 of 1998.

The spouse brought an application to declare valid her customary marriage with her late husband;  seeking  minister of home affairs Aaron Motsoaledi to be ordered to register the customary marriage in community of property,  or to issue a certificate as proof of the registration of the marriage.

The application was opposed by  a fourth respondent  who was also married to the deceased,  who argued that the applicant and the deceased were never married, and consequently no customary marriage could be recognised.

In her evidence, the applicant submitted that she was married to the deceased in terms of Zulu customary law in 1992, and 13 children were born of the marriage.

They lived in Umzimkhulu, KwaZulu-Natal until the deceased left for Bloemfontein to look for work in 2000.

The deceased stayed in Bloemfontein but came home every December holidays to be with the applicant and their children.

The marriage was never formally registered. However, the non-registration of a customary  marriage does not affect its validity.

She further submitted that they both agreed to get married in terms of customary law and the marriage was concluded in terms of Zulu customary procedures.

Their families had started marriage negotiations in February 1992.

The applicant’s family was represented by her aunt and elder brother and the deceased’s family  by his elder brothers and cousin.

The agreed lobolo had been set as  16 cows or the monetary equivalent of R25,000 and the deceased’s family paid the applicant’s family R10,000 as part of the agreed lobolo on the same day of the negotiations.

The applicant was thereafter handed over by her family to the deceased’s family, who accepted her. Both families celebrated the event in terms of Zulu custom.

In the same year , the deceased’s family paid the remaining lobolo of R15,000 to the applicant’s family and, on the same day, celebrated the indlakudla (a celebration of the marriage) at the deceased’s family’s household. They remained married until the deceased passed away on February 25 2018.

The fourth respondent submitted that she was married to the deceased in a customary marriage and attached a lobolo letter and a copy of the marriage certificate to her opposing affidavit.

She argued further that for a customary marriage concluded before the commencement of the Recognition of Customary Marriages Act 120 of 1998, the applicant had to prove to the court that the marriage was solemnised in terms of Zulu customs, which the applicant neglected to do.

The court, however, did not agree with the fourth respondent that the applicant failed or neglected to prove the existence of a marriage solemnised in terms of Zulu customs.

Judge Joseph Jamele Mhlambi was satisfied that a customary marriage was concluded between the applicant and the deceased in accordance with customary law.

It was highlighted that the “applicant consented to the customary marriage, followed by the payment of lobolo, whereafter she cohabited, built a home with the deceased and bore him children with the full knowledge of his family”.

Consequently, the customary marriage entered between the applicant and the deceased was declared valid and of effect in terms of the Recognition of the Customary Marriage Act.

The minister of home affairs was ordered to register the customary marriage and issue a certificate of registration of that customary marriage.

The fourth respondent was ordered to pay the costs of the application.


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