Maloba v Dube and Others (08/3077) [2008] ZAGPHC 434 (23 June 2008)

Maloba v Dube and Others (08/3077) [2008] ZAGPHC 434 (23 June 2008)

The court found that the objective facts demonstrated that a valid customary marriage was negotiated and entered into between the first respondent and the late Collins Bafana Msimango, as lobolo was agreed upon and paid, and a traditional ceremony was held. The withdrawal of consent by family members or by proxy is not legally effective; only personal withdrawal by the prospective spouse is valid, and even then, after the marriage has been celebrated, such withdrawal does not dissolve the marriage. The non-payment of the full lobolo is not decisive, as the undertaking to pay is sufficient under customary law. Both the applicant's and the first respondent's marriages to the deceased were...

Citation
[2008] ZAGPHC 434
Parties
Applicant: Maloba, Metja Audrey; Respondent: Dube, Phindile Maria; Respondent: Karen Keevy, N.O; Respondent: The Minister of Home Affairs; Respondent: The Master of the High Court Johannesburg
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
23 June 2008
Case Number
08/3077
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed with costs.
Judges
Mokgoatlheng
Legal Topics
Customary Marriage, Recognition of Customary Marriages Act, Lobolo Payment, Marriage Registration, Dissolution of Customary Marriage
Family and Children Customary Marriage Recognition of Customary Marriages Act Lobolo Payment Marriage Registration Dissolution of Customary Marriage

Case Brief

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Parties

Maloba, Metja Audrey

Applicant

Dube, Phindile Maria

Respondent

Karen Keevy, N.O

Respondent

The Minister of Home Affairs

Respondent

The Master of the High Court Johannesburg

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether a valid customary marriage existed between the first respondent and the late Collins Bafana Msimango.
  2. 2 Whether the certificate of registration of the customary marriage issued by the Department of Home Affairs is valid.
  3. 3 Whether the applicant's marriage to the late Collins Bafana Msimango is legally valid.

Ratio Decidendi

The court found that the objective facts demonstrated that a valid customary marriage was negotiated and entered into between the first respondent and the late Collins Bafana Msimango, as lobolo was agreed upon and paid, and a traditional ceremony was held. The withdrawal of consent by family members or by proxy is not legally effective; only personal withdrawal by the prospective spouse is valid, and even then, after the marriage has been celebrated, such withdrawal does not dissolve the marriage. The non-payment of the full lobolo is not decisive, as the undertaking to pay is sufficient under customary law. Both the applicant's and the first respondent's marriages to the deceased were...

Court Disposition

Application dismissed with costs.

Orders

  • The customary marriage between the first respondent and the late Collins Bafana Msimango is legally valid.
  • The applicant's marriage to the late Collins Bafana Msimango is legally valid.