B.S v P. M (A3096-2022) [2024] ZAGPJHC 508 (17 May 2024)

Parties

Procedural Posture

Civil Appeal / Appeal From Absolution From the Instance in Divorce Proceedings

Legal Issues

1. 1 Whether the appellant pleaded and proved the existence of a valid customary marriage in terms of section 3(1) of the Recognition of Customary Marriages Act 120 of 1998.
2. 2 Whether Tsonga customary law requires spousal consent from an existing wife for the validity of a subsequent customary marriage.
3. 3 Whether the absence of a customary marriage certificate or court-approved matrimonial property contract invalidates the alleged marriage.

Ratio Decidendi

The court held that the appellant failed to plead and prove the essential requirements for the existence of a valid customary marriage under section 3(1) of the Recognition of Customary Marriages Act and Tsonga customary law. The particulars of claim did not identify the applicable customary law, the connection between the parties and the law, or compliance with statutory and customary prerequisites. The evidence did not establish that the respondent's existing wife consented to a further marriage, which is required for validity under Tsonga custom as developed by the Constitutional Court. The absence of a marriage certificate or court-approved matrimonial property contract further...

Court Disposition

Appeal dismissed; absolution from the instance confirmed.

Orders

• The appeal is dismissed.
• Each party is to bear their own costs of the appeal.