Nowandile Ngcwazitshe and Others v Boniswa Ngcwazitshe and Others

The first applicant married the deceased, Velile Ngcwazitshe, in 1978 according to customary rites, with full lobola paid (seven cows and various cash payments). Four children were born from this union. The customary marriage was never formally registered. In 1998, the first applicant and the deceased separated while he was working at Welkom mines. The deceased subsequently entered into a relationship with the first respondent (a Swazi woman) from 1999, paying lobola, and eventually married her in a civil marriage registered on 11 November 2017. The deceased died by suicide on 24 October 2023. When the first applicant attempted to register her customary marriage posthumously, she discovered the civil marriage. The first applicant brought this application seeking to declare the civil marriage null and void on the basis that her customary marriage to the deceased was never dissolved.

• Whether the customary marriage between the first applicant and the deceased was validly concluded and recognized in law
• Whether desertion or separation dissolves a customary marriage
• What is required to dissolve a customary marriage under the Recognition of Customary Marriages Act
• Whether a civil marriage contracted during the subsistence of an existing customary marriage is valid or null and void
• Whether spousal consent from the first wife was required for the deceased to enter into a second marriage

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 children of the deceased. 5. The first respondent is ordered to pay costs on scale A of the uniform rules 67A.

A customary marriage may only be dissolved by a court decree of divorce on the ground of irretrievable breakdown of the marriage, as prescribed by section 8(1) of the Recognition of Customary Marriages Act 120 of 1998. Desertion, separation, or expulsion from the matrimonial home does not dissolve a customary marriage. A civil marriage contracted during the subsistence of an existing customary marriage is null and void ab initio. Non-registration of a customary marriage does not affect its validity under section 2 and 4 of the RCMA.

The court observed that spousal consent provisions in the RCMA relating to subsequent customary marriages do not apply where the second marriage is a civil marriage (rather than another customary marriage). The court emphasized that customary law is dynamic and constantly evolving, and must be interpreted with reference to both the history and present practice of the community concerned, while remaining consistent with the Constitution. 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 stressed that when applying customary law, caution must be exercised with textbooks and old authorities due to the tendency to view indigenous law through the prism of foreign legal conceptions.

This case reinforces the constitutional recognition and protection of customary law in South Africa. It definitively establishes that under the Recognition of Customary Marriages Act, a customary marriage can only be dissolved by a court decree of divorce, and not through desertion, separation, expulsion, or informal communication between the parties. The judgment clarifies that a civil marriage contracted while a valid customary marriage subsists is a nullity ab initio. It affirms that non-registration of a customary marriage does not affect its validity. The case demonstrates the court's application of constitutional principles requiring that customary law be accommodated as an integral part of South African law, not merely tolerated, consistent with sections 30, 31, 39 and 211 of the Constitution. It also illustrates the dynamic and evolving nature of customary law and how courts must interpret it through a constitutional lens.