Validity of a customary marriage

customary marriage
18 Jan 2023

The court in Segone v Minister of Home Affairs and Others [2022] JOL 54179 (GJ) was called on to decide whether the purported customary marriage between the applicant and the deceased should be declared valid as per section 3(1) of the Recognition of Customary Marriages Act 120 of 1998. The applicant regarded herself as the lawful and only surviving spouse of the deceased. She claimed that she and the deceased had satisfied all the requirements for the conclusion of a valid customary marriage. She later discovered that he had married someone else (Ramakgolo). The lawfulness of that marriage was disputed by the applicant.

Ramakgolo pointed out that despite the applicant’s knowledge of the deceased’s last will and testament, and the appointment of an executor, she omitted to join the latter in the proceedings and that was said to constitute a material non-joinder fatal to her application.

The requirements for the conclusion of a valid customary marriage are provided under section 3 of the Act. Prospective spouses must both be older than 18 and they must both consent to be married to each other under customary law. Under section 4(8), a certificate of registration of a customary marriage issued under this section or any other law providing for the registration of customary marriages constitutes prima facie proof of the existence of the customary marriage. However, even if it is obligatory to register a customary marriage, section 4(9) provides that a failure to do so will not affect the validity of that marriage.

In the absence of anything to gainsay that an executor had been appointed, the court agreed that the failure to join the executor constituted a material non-joinder. The applicant’s version was incompatible with that of Ramakgolo. The court was unable to fairly determine the issues as to which version was true and accurate and acceptable.

In accordance with the provisions of rule 6(5)(g) of the Uniform Rules of Court, the material disputes of fact were referred for oral testimony.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Merilyn Kader

Merilyn Kader joined LexisNexis from practice as an attorney and has a Compliance Management certification. She manages the All South African Reports and the Constitutional Law Reports. Read more about Merilyn Kader

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