Ngcwazitshe and Others v Ngcwazitshe and Others

The first applicant married the late Velile Ngcwazitshe in 1978 according to customary law, with lobola paid and customary rites performed. Three children were born of this marriage. The spouses separated in 1998, but the customary marriage was never dissolved by a court decree. In 2017, while the customary marriage subsisted, the deceased concluded a civil marriage with the first respondent. After the deceased’s death in 2023, the first applicant discovered the civil marriage when attempting to register the customary marriage. The applicants approached the High Court seeking an order declaring the civil marriage null and void and confirming the validity of the customary marriage. The first respondent opposed the application, alleging that the first applicant had been expelled and that the customary marriage had effectively ended before the civil marriage.

The civil marriage between the deceased and the first respondent was declared null and void ab initio. The customary marriage between the first applicant and the deceased was declared valid. The Department of Home Affairs was directed to register the customary marriage. The Master and Executor were ordered to administer the deceased estate recognising the first applicant as the lawful spouse and the applicants as children of the deceased. The first respondent was ordered to pay costs.

The case reaffirms that customary marriages are fully recognised under South African law and can only be dissolved by a court decree in terms of the Recognition of Customary Marriages Act. It confirms that desertion or separation does not terminate a customary marriage and that civil marriages concluded during the subsistence of a customary marriage are void. The judgment strengthens legal certainty in matters of marriage and succession involving customary law.