Ntombela v Ntombela

The parties were involved in divorce proceedings in which it was common cause that their marriage had irretrievably broken down. The central dispute concerned which matrimonial regime governed their relationship. The parties had undergone lobola negotiations, payment of lobola, and extensive customary ceremonies in both Queenstown and Johannesburg between 2013 and 2014, including the handing over of the bride, slaughtering of livestock, umembeso, church blessings, and public celebrations as husband and wife. A child was born during this period and bore the plaintiff’s surname. In 2016, the parties executed an antenuptial contract (ANC) and subsequently solemnised a civil marriage at the Department of Home Affairs. The plaintiff contended that the earlier customary ceremonies were merely cultural observances and that the parties intended only to marry civilly. The defendant asserted that a valid customary marriage had already come into existence in terms of the Recognition of Customary Marriages Act 120 of 1998 (RCMA).

It was declared that the parties are married in terms of customary law. The plaintiff was ordered to pay the defendant’s costs.

The judgment reinforces that consent to a customary marriage under the RCMA is determined objectively from the conduct and surrounding circumstances rather than post facto assertions of intention. It affirms that customary marriage is a process rather than a single event and that extensive customary practices, coupled with conduct recognising a marital relationship, will ordinarily establish a valid customary marriage notwithstanding a later civil marriage or antenuptial contract.