Mashisane v Mhlauli

The appellant (Mr Mashisane) and respondent (Ms Mhlauli) met in April 2019 and began a romantic relationship. According to the appellant, they agreed from the outset to marry out of community of property via civil marriage with an antenuptial contract (ANC), not under customary law. The appellant is Tsonga and the respondent is Xhosa. The parties participated in certain traditional customs after concluding a lobolo contract, which the appellant contends was solely to respect their families and ancestors as a precursor to civil marriage. An ANC was subsequently executed and registered providing for marriage out of community of property with accrual. The ANC included donations by the appellant to the respondent of a 50% share in his Bryanston property and a Mercedes-Benz vehicle. The relationship broke down before the planned November 2020 civil marriage could take place. The respondent brought an application in the high court seeking declarations that: (1) the parties had concluded a valid customary marriage in terms of s 3 of the Recognition of Customary Marriages Act 120 of 1998 (RCMA); (2) they were married in community of property, profit and loss; and (3) the ANC was null and void for non-compliance with s 89 of the Deeds Registries Act 47 of 1937 (non-registration post-nuptially with leave of court per s 21 of the Matrimonial Property Act 88 of 1984). The customary marriage was never registered in terms of s 4 of the RCMA. The high court granted the relief sought.

• Whether the parties consented to be married under customary law as required by s 3(1)(a)(ii) of the Recognition of Customary Marriages Act 120 of 1998
• Whether there were material disputes of fact that rendered motion proceedings inappropriate
• Whether the high court properly exercised its discretion in granting declaratory relief in circumstances where material factual disputes existed
• Whether the antenuptial contract executed after the alleged customary marriage was null and void
• Whether the matter should have been brought by way of divorce proceedings under s 8 of the RCMA rather than by application for declaratory relief

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 binding legal principles established are: (1) Section 3(1)(a)(ii) of the RCMA requires specific consent to be married under customary law, which is distinct from general consent to marry and separate from the requirement that marriage be negotiated and celebrated in accordance with customary law; (2) Participation in traditional customs and negotiations alone does not establish the required consent to be married under customary law; (3) Where material disputes of fact exist that go to the core of whether a customary marriage was concluded, motion proceedings are inappropriate and declaratory relief should not be granted; (4) Courts dealing with customary law matters must satisfy themselves as to the content of the applicable customary law and should require expert evidence where necessary, particularly where parties come from different customary law traditions; (5) When exercising discretion to grant declaratory relief, courts must ensure there is an undisputed factual substratum upon which to base the declaration; and (6) An applicant who elects to proceed by way of motion with knowledge of existing material disputes of fact risks having the application dismissed rather than referred to trial or evidence.

The Court made several non-binding observations: (1) Divorce proceedings under s 8 of the RCMA would have been a more appropriate process in this case, as claims regarding the validity of customary marriages and their consequences could be properly ventilated at trial; (2) Even if a customary marriage was concluded, a court dealing with the matter at trial might recognize the post-nuptial execution of the notarial contract (ANC), which would have substantive bearing on the consequences of divorce between the parties; (3) The high court's declaration that the ANC was invalid appeared to contradict both parties' versions as to how they wanted their marital regime to be governed, since both indicated they intended marriage out of community of property; (4) The respondent's failure to register the customary marriage within the three-month period required by s 4(3)(b) of the RCMA, and her conflicting explanations for this failure, suggested she was aware of disputes about the validity of the customary marriage from the outset; and (5) The respondent's admission in her founding affidavit that the appellant continued to claim there was no marriage between the parties demonstrated she knew of the factual disputes before launching the application.

This case is significant in South African family law and customary law jurisprudence for several reasons: (1) It emphasizes that consent to be married under customary law per s 3(1)(a)(ii) of the RCMA is a separate and specific requirement that cannot be inferred solely from participation in traditional customs and negotiations; (2) It reinforces the principle from Mayelane v Ngwenyama that courts must carefully ascertain the content of customary law through proper evidence, including expert testimony where necessary, and must not impose common law understandings of concepts like 'consent'; (3) It clarifies that customary law is not uniform and courts must be cautious when dealing with parties from different customary law traditions; (4) It confirms that motion proceedings are inappropriate where material disputes of fact exist, particularly in matters concerning the validity of customary marriages; (5) It illustrates the proper exercise of judicial discretion when granting declaratory relief under s 21(1)(a) of the Superior Courts Act, requiring both that the applicant has an interest in an existing/future/contingent right and that the case is proper for exercising the discretion; (6) It suggests that divorce proceedings under s 8 of the RCMA may be the more appropriate forum for resolving disputes about the existence and consequences of customary marriages; and (7) It applies the principle that applicants who proceed by motion with knowledge of factual disputes risk dismissal rather than referral to trial.