Tshivhase v Tshivhase N O and Another

The deceased, Ndavheleseni Lazarus Tshivhase, died in August 2020. The first respondent alleged that she and the deceased concluded a customary marriage on 24 December 1966. The appellant, who married the deceased by civil rites in 1977, denied the existence of any valid customary marriage. After the deceased’s death, the first respondent applied to the High Court to have the 1977 civil marriage declared void ab initio and to set aside a joint will executed by the deceased and the appellant, relying primarily on an entry in her Venda-issued identity document as proof of the alleged customary marriage. The High Court accepted this as prima facie proof, declared the civil marriage void, set aside the joint will, and dismissed a non-joinder objection raised by the appellant. The appellant appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order dismissing the application with costs.

The judgment reinforces the evidentiary requirements for proving a customary marriage under South African law and confirms that an identity document entry is insufficient once the existence of a customary marriage is disputed. It affirms and applies the SCA’s decision in Manwadu v Manwadu and clarifies the approach to non-joinder where wills and succession rights are affected. The case also underscores the duty of courts to provide reasons for their decisions as part of the rule of law.