Tshivhase v Tshivhase N O and Another

The first respondent (Azwihangwisi Francinah Tshivhase) claimed she and the deceased (Ndavheleseni Lazarus Tshivhase, who died on 26 August 2020) concluded a customary marriage on 24 December 1966. She relied on an entry in her identity document issued by the former Republic of Venda as proof. The appellant (Elizabeth Thimbiluni Tshivhase) and the deceased concluded a civil marriage on 22 February 1977, and executed a joint will. On 23 October 2020, the first respondent launched an urgent application to declare the civil marriage void ab initio and set aside the joint will, contending that the prior customary marriage rendered the civil marriage invalid due to non-compliance with section 22 of the Black Administration Act 38 of 1927 and section 10 of the Recognition of Customary Marriages Act 120 of 1998. The High Court granted the application on 24 November 2020, without reasons initially. The appellant raised a non-joinder point in limine regarding the failure to join the beneficiaries of the joint will, which was dismissed by the High Court. Reasons were eventually delivered on 19 April 2022, after leave to appeal had been granted by the Supreme Court of Appeal.

• Whether the entry in the first respondent's identity document constitutes prima facie proof of a customary marriage under section 4(8) of the Recognition of Customary Marriages Act 120 of 1998
• Whether the first respondent adduced sufficient evidence to prove the existence of a valid customary marriage between herself and the deceased
• Whether the civil marriage concluded between the appellant and the deceased in 1977 is valid
• Whether the joint will executed by the appellant and the deceased is valid
• Whether the High Court erred in dismissing the non-joinder point in limine raised by the appellant regarding beneficiaries of the joint will

The appeal was upheld with costs. The order of the High Court was set aside and replaced with: 'The application is dismissed with costs.'

An entry in an identity document indicating marital status does not constitute a certificate of registration of a customary marriage as contemplated in section 4(8) of the Recognition of Customary Marriages Act 120 of 1998, and therefore does not amount to prima facie proof of a customary marriage. Once the existence of a customary marriage is challenged, the party alleging the marriage bears the burden of proving it occurred through collateral evidence demonstrating compliance with all legal and customary requirements, including marriage negotiations, rituals, celebrations according to customary law, and satisfaction of the registering officer that the marriage was concluded in accordance with customary law. In matters involving the validity of wills, beneficiaries have a direct and substantial interest and must be joined as parties, as an order invalidating a will cannot be sustained without prejudicing their interests.

The Court made significant obiter remarks regarding judicial practice and the rule of law. The Court strongly criticized the practice in some courts of granting orders without providing reasons, stating this is to be frowned upon and offends the rule of law. The Court emphasized that there is no rule providing that a judgment is only required if reasons are requested, and reasons should as a matter of course be handed down when the order is granted or on a date specified by the judge. The Court cited Mphahlele v First National Bank of South Africa Ltd, noting that while there is no express constitutional provision requiring judges to furnish reasons, the rule of law as a founding value requires judges not to act arbitrarily and to be accountable. Reasons serve multiple purposes: explaining decisions to parties and the public, curbing arbitrary decisions, enabling informed decisions about appeals, assisting appeal courts, providing guidance to the public, and ensuring the constitutional right of access to courts. The Court also noted that at the time of the alleged customary marriage, the deceased was below 18 years of age and would have required guardian assistance, which was not addressed by the respondent.

This case reinforces the evidentiary requirements for proving customary marriages in South Africa, particularly following the decision in Manwadu v Manwadu. It clarifies that an entry in an identity document, even if certified, does not constitute prima facie proof of a customary marriage as contemplated in section 4(8) of the RCMA unless it is a certificate of registration. Once challenged, the party alleging the customary marriage must prove compliance with all customary law and legal requirements through collateral evidence. The judgment also emphasizes the importance of joinder in matters affecting third-party interests, particularly in succession matters where beneficiaries' rights may be prejudiced. The case serves as an important reminder of the constitutional requirement for judges to provide reasons for their decisions as a fundamental aspect of the rule of law, accountability, transparency, and effective access to appeal processes.