Gama v Mchunu and Others (10/37362) [2015] ZAGPJHC 273 (22 November 2015)

Gama v Mchunu and Others (10/37362) [2015] ZAGPJHC 273 (22 November 2015)

The court found that the applicant and the deceased entered into a valid customary marriage on 8 June 2000, satisfying all requirements under section 3(1) of the Recognition of Customary Marriages Act. The evidence, including affidavits and documentary proof, established that both families participated in lobolo...

Source-derived case information.

Citation
[2015] ZAGPJHC 273
Parties
Applicant: Makhosazane Zerish Gama; Respondent: Bonisile Mchunu; Respondent: Department of Home Affairs; Respondent: The Master of the South Gauteng High Court
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 November 2015
Case Number
10/37362
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application granted in favour of the applicant.
Judges
Moshidi
Legal Topics
Recognition of Customary Marriages Act, Registration of Customary Marriage, Condonation of Late Registration, Matrimonial Property Regime, Lobolo Negotiations
Family and Children Recognition of Customary Marriages Act Registration of Customary Marriage Condonation of Late Registration Matrimonial Property Regime Lobolo Negotiations

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Summary, issues, holding and outcome

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Parties

Makhosazane Zerish Gama

Applicant

Bonisile Mchunu

Respondent

Department of Home Affairs

Respondent

The Master of the South Gauteng High Court

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether a valid customary marriage existed between the applicant and the deceased.
  2. 2 Whether the late registration of the customary marriage should be condoned.
  3. 3 Whether the Department of Home Affairs should be compelled to register the marriage and issue a certificate.

Ratio Decidendi

The court found that the applicant and the deceased entered into a valid customary marriage on 8 June 2000, satisfying all requirements under section 3(1) of the Recognition of Customary Marriages Act. The evidence, including affidavits and documentary proof, established that both families participated in lobolo negotiations and that the first respondent consented to the marriage. The failure to register the marriage timeously was not fatal, as section 4(9) of the Act provides that non-registration does not affect validity. The court distinguished the present facts from M M v M N, noting that the marriage occurred before the Act commenced and that the parties attempted to comply with...

Court Disposition

Application granted in favour of the applicant.

Orders

  • The late registration of the customary marriage entered into by the applicant and the deceased on 8 June 2000 is condoned.
  • The Department of Home Affairs is ordered to register the customary marriage between the applicant and the deceased.