The weight that customary marriages carry was highlighted once again during a legal wrangle between two widows. Both “wives” claimed that they were legally married to their now-deceased husband. The first wife stated that she married her husband in 1991 in terms of customary law. The second wife stated that she was the “true wife” because she had legally married her husband in 2007 in terms of civil proceedings.
Both wives claimed that they were entitled to their late husband’s estate, and each requested the Gauteng High Court in Pretoria to declare her marriage as being valid. However, when Steve Sibanyoni died in December 2020, he had no idea that his marriage to the second wife was invalid because, according to the court’s verdict after his death, he was still married to wife number one.
After the deceased’s death, his first wife attempted to report his estate but was advised by the Master of the High Court that the second wife had been appointed as executor by virtue of her civil marriage with the deceased. The first wife, who had been married to Sibanyoni for more than 30 years at the time of his death, went to the High Court to have the Master dealing with his estate recognise her as the true wife.
The first wife obtained confirmation from a traditional authority as her customary marriage was not registered with Home Affairs. She maintained that her customary marriage was not dissolved by the time her husband married the second wife and said the recognition of the Customary Marriages Act made her the lawful wife. The second wife, on the other hand, stated that her marriage was solemnised in a public ceremony and that the first wife knew of her marriage with the deceased and had not objected to it.
Judge Cassim Sardiwalla said marriage in terms of customary law gives rise to some legal complexities. Sardiwalla said it must be examined whether the customs, traditions or rituals that must be observed in the negotiations and celebration of customary marriages have been complied with. These include the negotiations leading to the agreement on lobolo, as well as any other tradition, custom or ritual associated with these. If a customary marriage has not been concluded in accordance with customary law, it cannot be regarded as valid.
The court found that the requirements for a valid customary marriage are thus similar to those prescribed for a civil marriage, except that a customary marriage had to be negotiated and entered into or celebrated in accordance with customary law. The judge referred to an earlier court judgment on this subject, in which it was said: “No hard and fast rules can be laid down; this is because customary law is a flexible, dynamic system, which continuously evolves within the context of its values and norms, consistent with the Constitution, so as to meet the changing needs of the people who live by its norms”.
Although the Recognition of Customary Marriages Act makes it obligatory to register such a marriage, it does provide that a failure to do so does not affect the validity of that marriage. Sardiwalla declared the customary marriage between the first wife and the deceased valid and the civil marriage between the second wife and the deceased null and void. The Minister of Home Affairs was directed to expunge the civil marriage between the second wife and the deceased from the marriage register and to register the customary marriage.
Reference List:
- Recognition of Customary Marriages Act 120 of 1998
- Marriages Act 25 of 1961
- Phele and Another v Sibanyoni and Others – Judgment: 15 July 2022
- Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA)
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