Tshavhungwe Mbengeni Murabi v Naledzani Caroline Murabi and Others

The appellant claimed to have entered into a customary marriage with the deceased (Ranwedzi Ramathaga Godfrey Murabi) in 1979 after payment of lumalo to her parents. This marriage was registered with the magistrate on 31 January 1991 and a certificate was issued. In 1975, the deceased had also married the first respondent in accordance with Venda custom. The first respondent subsequently contracted a civil marriage with the deceased on 2 August 1995. When the deceased died on 7 April 2011, the first respondent was appointed as executrix of the estate, claiming to be the sole surviving spouse by virtue of the 1995 civil marriage. The parties concluded a settlement agreement admitting that the appellant had concluded a customary marriage with the deceased in 1979, leaving only the validity of that marriage and the validity of the 1995 civil marriage in dispute.

• Whether the appellant's customary marriage to the deceased contracted in 1979 was valid
• Whether the civil marriage between the first respondent and the deceased contracted on 2 August 1995 was valid
• Whether section 22(1) of the Black Administration Act 38 of 1927 invalidated the appellant's customary marriage
• Whether section 1 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 rendered the first respondent's civil marriage null and void
• Whether the registration certificate of a customary marriage constitutes conclusive or prima facie proof of the marriage

1. The appeal is upheld with costs. 2. The order of the court below is set aside and in its place is substituted: (a) The customary marriage between the applicant and the deceased contracted in 1979 is declared valid. (b) The civil marriage contracted between the first respondent and the deceased on 2 August 1995 is declared null and void. (c) The first respondent is ordered to pay the costs of the application.

A civil marriage contracted while the man is a partner in a subsisting customary union with another woman is null and void ab initio by virtue of section 1 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. A certificate of registration of a customary marriage constitutes prima facie proof of the existence of that marriage and the particulars contained in the certificate, and in the absence of countervailing evidence showing fraud in its procurement, it establishes the truth of the facts stated therein. Section 22(1) of the Black Administration Act 38 of 1927 does not prohibit a man from concluding a second or subsequent customary union with another woman in a polygamous marriage context, but only regulates marriages by civil rites where a man is also a partner to a subsisting customary marriage.

The court expressed strong displeasure at the poor quality and legibility of documents filed in the record, some of which were critical to the appellant's case. The court warned that it views non-compliance with its rules in an extremely serious light and indicated that it would not hesitate in future to mark its displeasure by making appropriate costs orders where such transgressions persist. The court referenced previous cases where punitive costs orders were made or parties were deprived of part of their costs for similar infractions.

This case is significant in South African customary marriage law as it clarifies the interaction between customary marriages and civil marriages where a customary union subsists. It confirms that a civil marriage contracted while a man is a partner in a subsisting customary union with a third party is void and a nullity. The case affirms the principle established in Netshituka v Netshituka and reinforces the prohibition in section 1 of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. It also clarifies that section 22(1) of the Black Administration Act does not prohibit polygamous customary marriages but rather regulates the conversion of customary unions to civil marriages. The judgment protects the rights of parties in customary marriages and prevents the invalidation of such marriages through subsequent civil marriages.