Mgenge v Mokoena and Another (4888/2020) [2021] ZAGPJHC 58 (21 April 2021)

Mgenge v Mokoena and Another (4888/2020) [2021] ZAGPJHC 58 (21 April 2021)

The court found that there is a material factual dispute as to whether a valid customary marriage was concluded between the deceased and the first respondent. Both parties presented competing versions under oath, supported by documents and affidavits, but the key evidence—a handwritten lobola agreement—was not translated or interpreted for the court. The marriage certificate was issued outside the statutory period and after the deceased's death, while the death certificate listed him as a divorcee, creating a contradiction. The Department of Home Affairs did not appear to clarify these anomalies. Given the nature of the dispute and the inadequacy of affidavit evidence to resolve the...

Citation
[2021] ZAGPJHC 58
Parties
Applicant: Mgenge Mantshadi Jeannette; Respondent: Mokoena Maleshoane Rose; Respondent: Department of Home Affairs
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
21 April 2021
Case Number
4888/2020
Procedural Posture
Review Application / Referral to Oral Evidence Ordered
Outcome
Application not finally determined; matter referred to oral evidence to resolve the factual dispute regarding the existence of a customary marriage.
Judges
GB Rome
Legal Topics
Recognition of Customary Marriages Act, Customary Marriage Registration, Prima Facie Proof, Dispute of Fact, Condonation, Oral Evidence Referral
Family and Children Civil Procedure Recognition of Customary Marriages Act Customary Marriage Registration Prima Facie Proof Dispute of Fact Condonation Oral Evidence Referral

Case Brief

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Parties

Mgenge Mantshadi Jeannette

Applicant

Mokoena Maleshoane Rose

Respondent

Department of Home Affairs

Respondent

Procedural Posture

Review Application / Referral to Oral Evidence Ordered

Legal Issues

  1. 1 Whether a valid customary marriage was concluded between the deceased and the first respondent.
  2. 2 Whether the marriage certificate issued posthumously is valid under the Recognition of Customary Marriages Act.
  3. 3 Whether the applicant, as mother of the deceased, has sufficient interest to seek cancellation of the marriage certificate.

Ratio Decidendi

The court found that there is a material factual dispute as to whether a valid customary marriage was concluded between the deceased and the first respondent. Both parties presented competing versions under oath, supported by documents and affidavits, but the key evidence—a handwritten lobola agreement—was not translated or interpreted for the court. The marriage certificate was issued outside the statutory period and after the deceased's death, while the death certificate listed him as a divorcee, creating a contradiction. The Department of Home Affairs did not appear to clarify these anomalies. Given the nature of the dispute and the inadequacy of affidavit evidence to resolve the...

Court Disposition

Application not finally determined; matter referred to oral evidence to resolve the factual dispute regarding the existence of a customary marriage.

Orders

  • Condonation for the late filing of the answering affidavit and notice of intention to oppose is granted.
  • The issue of whether a customary marriage was concluded between the deceased and the first respondent is referred to oral evidence on a date to be arranged with the Registrar.