Validity of a customary marriage

In Segone v Minister of Home Affairs and Others [2022] JOL 54179 (GJ) whether a purported customary marriage between the applicant and the deceased should be declared valid.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Family law and persons - Customary marriage – validity of marriage: 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 s 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 s 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 s 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, s 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 r 6(5)(g) of the Uniform Rules of Court, the material disputes of fact were referred for oral testimony.

Merilyn Rowena Kader
Legal Editor at LexisNexis