Elizabeth Thimbiluni Tshivhase v Azwihangwisi Francinah Tshivhase N O and Another

The first respondent (the deceased’s wife, acting as executrix of his estate) claimed that she had concluded a customary marriage with the deceased on 24 December 1966. She contended that this prior customary marriage rendered the deceased’s subsequent civil marriage to the appellant on 22 February 1977 void ab initio, as it violated s 22 of the Black Administration Act 38 of 1927 and s 10 of the Recognition of Customary Marriages Act 120 of 1998. She also sought to set aside the joint will executed by the appellant and the deceased. In the high court, she relied solely on an entry in her former Venda identity document recording the marriage. The high court granted the order, declared the civil marriage void, set aside the joint will, and dismissed the appellant’s non-joinder point in limine (the beneficiaries of the will had not been joined). No reasons were initially provided. The appellant obtained leave to appeal to the Supreme Court of Appeal. The high court judge only later furnished reasons after the appellant was compelled to request them.

• Whether an entry in a former homeland identity document constitutes prima facie proof of a customary marriage under s 4(8) of the Recognition of Customary Marriages Act 120 of 1998.
• Whether the respondent adduced sufficient additional evidence to prove the existence of the alleged customary marriage once it was challenged.
• Whether the respondent made out a proper case for declaring the civil marriage between the appellant and the deceased void ab initio.
• Whether the high court erred in setting aside the joint will and in dismissing the non-joinder point in limine.

The appeal is upheld with costs. The order of the high court is set aside and replaced with the following: ‘The application is dismissed with costs.’

An entry in a former homeland identity document recording a marriage does not constitute a certificate of registration of a customary marriage in terms of s 4(8) of the Recognition of Customary Marriages Act 120 of 1998 and does not amount to prima facie proof of the existence of such a marriage. Once the existence of a customary marriage is challenged, the party relying on it is not relieved of the burden of proving the marriage through extraneous/collateral evidence demonstrating compliance with all applicable customary law requirements and legal prerequisites. A party must be joined in proceedings if they have a direct and substantial interest in the subject matter such that the order sought cannot be carried into effect without substantially and prejudicially affecting their interests; this includes the beneficiaries of a joint will where the validity of the will is directly in issue.

The Court commented adversely on the conduct of the high court judge who granted the orders without providing reasons and only furnished them much later after the appellant was compelled to request them. The Court observed that there is no rule permitting orders to be granted without reasons and that such a practice offends the rule of law, undermines judicial accountability, and impedes the appeal process, citing Mphahlele v First National Bank of South Africa Ltd [1999] ZACC 1.

The judgment reinforces that entries in old homeland identity documents are not certificates of registration under s 4(8) of the Recognition of Customary Marriages Act and do not constitute prima facie proof of customary marriages. It confirms that once a customary marriage is challenged, the party alleging it must adduce comprehensive extraneous evidence of compliance with all applicable customary law requirements. The decision also restates the test for non-joender, holding that beneficiaries of a joint will have a direct and substantial interest when the validity of the will is in issue. Additionally, the Court strongly affirmed that judges must furnish reasons for their orders as a component of the rule of law.