EMK v EMB (2024-094190; 2023-010767) [2025] ZAGPPHC 289 (18 March 2025)

EMK v EMB (2024-094190; 2023-010767) [2025] ZAGPPHC 289 (18 March 2025)

The court held that both the plaintiff in the divorce matter and the applicant in the application failed to meet the evidentiary burden required to prove the existence of a valid customary marriage. The pleadings and affidavits lacked sufficient detail regarding the specific customs, traditions, and compliance with the requirements of the Recognition of Customary Marriages Act and the applicable customary law. Mere reference to a dowry letter or lobola negotiations, without corroborative evidence of the customs and usages of the relevant group of peoples, is insufficient. The court emphasised that litigants must plead and prove the content and application of the customary law relied upon,...

Citation
[2025] ZAGPPHC 289
Parties
Plaintiff: EMK; Defendant: EMB; Applicant: DM; Respondent: SJS; Respondent: Minister of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 March 2025
Case Number
2024-094190; 2023-010767
Procedural Posture
Family Law Application / Judgment After Hearing
Outcome
The divorce matter was removed from the roll due to insufficient pleadings and lack of evidence of a valid customary marriage. The application for a declaratory order and registration of a customary marriage was dismissed for failure to prove the existence of such marriage.
Judges
P A Van Niekerk
Legal Topics
Customary Marriage, Recognition of Customary Marriages Act, Evidentiary Burden, Pleading Requirements, Registration of Customary Marriage
Family and Children Customary Marriage Recognition of Customary Marriages Act Evidentiary Burden Pleading Requirements Registration of Customary Marriage

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

EMK

Plaintiff

EMB

Defendant

DM

Applicant

SJS

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Family Law Application / Judgment After Hearing

Legal Issues

  1. 1 What is the evidential burden of a litigant who relies on the existence of a customary marriage in support of a cause of action?
  2. 2 Did the particulars of claim in the divorce action disclose a proper cause of action? If not, what must be pleaded by a litigant whose cause of action is based on the existence of an alleged customary marriage?
  3. 3 Did the applicant in the application prove the existence of a customary marriage, as a result of which a declaratory order may be granted as prayed for by the applicant?

Ratio Decidendi

The court held that both the plaintiff in the divorce matter and the applicant in the application failed to meet the evidentiary burden required to prove the existence of a valid customary marriage. The pleadings and affidavits lacked sufficient detail regarding the specific customs, traditions, and compliance with the requirements of the Recognition of Customary Marriages Act and the applicable customary law. Mere reference to a dowry letter or lobola negotiations, without corroborative evidence of the customs and usages of the relevant group of peoples, is insufficient. The court emphasised that litigants must plead and prove the content and application of the customary law relied upon,...

Court Disposition

The divorce matter was removed from the roll due to insufficient pleadings and lack of evidence of a valid customary marriage. The application for a declaratory order and registration of a customary marriage was dismissed for failure to prove the existence of such marriage.

Orders

  • The divorce matter under case number 2024-094190 is removed from the roll.
  • The application under case number 2023-010767 is dismissed.