Nowandile Ngcwazitshe and Others v Boniswa Ngcwazitshe and Others

The first applicant married the deceased, Velile Ngcwazitshe, in 1978 by customary rites. Lobola was paid (seven cows and various cash amounts) and a customary ceremony was performed. Four children were born from this customary marriage. The first applicant and deceased separated in 1998 while he was working at Welkom mines. The customary marriage was never registered. In 2017, the deceased contracted a civil marriage with the first respondent (registered 11 November 2017) without dissolving the customary marriage. The first respondent claimed she met the deceased in 1999, was told by him that he had expelled the first applicant, and underwent a traditional welcoming ceremony in 2022. Three children were born from her relationship with the deceased. The deceased died tragically in October/November 2023. When the first applicant attempted to register the customary marriage after the deceased's death, she discovered the civil marriage. No decree of divorce was ever obtained dissolving the customary marriage between the first applicant and the deceased.

• How is a customary marriage dissolved under South African law?
• Does desertion of the matrimonial home dissolve a customary marriage?
• What is the status of a civil marriage contracted during the subsistence of an existing customary marriage?
• Whether the customary marriage between the first applicant and the deceased was valid and subsisting at the time of the deceased's civil marriage to the first respondent?

1. The civil marriage between the first respondent and the deceased is declared null and void ab initio. 2. The customary marriage between the first applicant and the deceased is declared valid. 3. The third respondent (Director General: Department of Home Affairs) is directed to register the customary marriage within 15 days. 4. The fourth and fifth respondents (Master and Executor) are directed to administer the deceased estate recognizing the first applicant as the wife and the second, third and fourth applicants as the deceased's children. 5. The first respondent is ordered to pay costs on scale A of Uniform Rule 67A.

A customary marriage can only be dissolved by a court decree of divorce on the grounds of irretrievable breakdown as provided in Section 8(1) of the Recognition of Customary Marriages Act 120 of 1998. Desertion, expulsion from the matrimonial home, or informal separation do not dissolve a customary marriage. A civil marriage contracted while one party is still bound by a subsisting customary marriage is null and void ab initio. Non-registration of a customary marriage does not invalidate it.

The court observed that customary law is a dynamic system that continuously evolves within the context of its values and norms consistently with the Constitution to meet the changing needs of communities. The court noted that adultery and desertion may merely be symptoms rather than causes of marriage breakdown and cannot be considered automatically blameworthy conduct. The court emphasized that when applying customary law, courts must be careful not to view it through the prism of legal conceptions foreign to it, and should establish its content through reference to writers, authorities, sources, and if necessary, witness evidence.

This case is significant for clarifying that under the Recognition of Customary Marriages Act 120 of 1998, a customary marriage can only be dissolved by court decree of divorce, not by desertion, expulsion, or informal separation. It reinforces the principle established in Netshituka that a civil marriage contracted during the subsistence of a customary marriage is null and void ab initio. The judgment affirms the constitutional protection and recognition of customary marriages as integral parts of South African law, emphasizing that non-registration does not invalidate a customary marriage. It provides important guidance on how courts should approach customary law as a dynamic system while applying the statutory framework of the RCMA.