Court Upholds Validity of Customary Marriage and Nullifies Secret Civil Marriage

The Gauteng High Court (Pretoria) has reaffirmed the legal status of customary marriages in South Africa, ruling that a customary marriage concluded in 2002 was valid and that a subsequent civil marriage entered into without consent was unlawful and void.

The judgment highlights the protection afforded to spouses in customary marriages under the Recognition of Customary Marriages Act 120 of 1998 and confirms that failure to register such a marriage does not affect its validity.

Background to the Dispute

According to The Star, the matter arose from a dispute between Ntombizakhe Dladla and Zinhle Manana (née Sibiya) regarding their respective marital status to Wonderboy Manana.

Dladla approached the court seeking:

• A declaratory order confirming the existence of her customary marriage to Manana, and

• An order declaring Manana’s 2012 civil marriage to Sibiya null and void.

Manana did not oppose the application and confirmed that he had entered into a customary marriage with Dladla in 2002. However, Sibiya opposed the application, arguing that the customary marriage did not comply with what she described as “pure” Zulu customs.

Facts Before the Court

Evidence before the court showed that:

• Dladla and Manana concluded a customary marriage in 2002.

• In 2007, Dladla became ill and temporarily returned to her parental home in Ermelo.

• Manana met Sibiya in 2007 and the two entered into a civil marriage in 2012.

• Dladla only became aware of Sibiya’s existence in 2021.

• Sibiya claimed she was unaware of the customary marriage until she was served with court papers.

Sibiya argued that the customary marriage was invalid due to alleged non-compliance with traditional Zulu rituals.

Court’s Interpretation of Customary Law

Acting Judge Doroth Botsi-Thulare rejected the argument that strict adherence to every traditional ritual is required for a customary marriage to be valid.

The court emphasised that customary law is a living and evolving system, stating that it is not rigid or uniform across all communities. What is required is compliance with the core requirements of a customary marriage.

The court found that these essential elements were present, including:

• Consent between the families,

• Lobola negotiations and payment,

• Symbolic handing over of the bride, and

• A clear intention by both parties to marry.

Civil Marriage Declared Null and Void

The court held that once the customary marriage existed, Manana was legally prohibited from entering into a civil marriage with another person while that marriage subsisted.

As a result, the 2012 civil marriage between Manana and Sibiya was declared null and void ab initio (invalid from the outset).

Registration of Customary Marriage Ordered

Although the customary marriage had not been registered with the Department of Home Affairs, the court confirmed that non-registration does not affect the validity of a customary marriage.

The court ordered:

• The Minister of Home Affairs to register the customary marriage, and

• The removal of the civil marriage from the national marriage register.

Damages Claim Postponed and Costs Awarded

A counterclaim by Sibiya for R3.5 million in damages was postponed indefinitely, as no evidence was presented in support of the claim during the trial.

Sibiya was ordered to pay the costs of the application.

Key Legal Takeaways

This judgment reinforces several important principles in South African family law:

• Customary marriages are fully recognised in law if statutory requirements are met.

• Failure to register a customary marriage does not invalidate it.

• A person married under customary law cannot lawfully enter into a civil marriage without dissolving the existing marriage.

• Courts recognise customary law as flexible and context-specific, not dependent on strict ritual compliance.

• Second marriages entered into unlawfully may be declared void, with serious legal consequences.

Conclusion

The ruling serves as a strong reminder that customary marriages carry full legal force and that parties entering into subsequent marriages must ensure compliance with South African marriage laws.

Disputes involving customary marriages, multiple marriages, and marital status are legally complex and fact-specific.

Contact our Family Law Team for advice on customary marriages, marriage disputes, or the legal consequences of multiple marriages under South African law.