Ngcwazitshe and Others v Ngcwazitshe and Others

The first applicant married the late Velile Ngcwazitshe in 1978 according to customary law, with lobola negotiations concluded and customary rites performed. Four children were born of the marriage. The spouses separated in 1998 but never obtained a divorce decree. The customary marriage was not registered during the deceased’s lifetime. In 2017, while the customary marriage still subsisted, the deceased concluded a civil marriage with the first respondent. After the deceased’s death in 2023, the first applicant discovered the existence of the civil marriage when attempting to register her customary marriage. The applicants sought an order declaring the civil marriage null and void and confirming the validity of the customary 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 ordered to register the customary marriage. The Master and executor were directed to administer the estate recognising the first applicant as the deceased’s wife and the other applicants as his children. Costs were awarded against the first respondent.

The case reaffirms that under South African law a customary marriage subsists until dissolved by a court decree of divorce, and that separation, desertion or adultery do not terminate such a marriage. It reinforces the primacy of the Recognition of Customary Marriages Act and confirms that civil marriages concluded during the subsistence of a customary marriage are null and void.