Miya v Mnqayane and Another (3342/2018) [2020] ZAFSHC 17 (3 February 2020)

Miya v Mnqayane and Another (3342/2018) [2020] ZAFSHC 17 (3 February 2020)

The court found that the applicant and first respondent lived together as husband and wife for approximately 17 years, and that lobola was negotiated and paid in full with the consent of both families. The evidence established that the applicant was accompanied and handed over to the first respondent's family, albeit in an abbreviated ceremony, and received a new name in accordance with custom. The court held that the requirements of section 3(1)(b) of the Recognition of Customary Marriages Act were satisfied, and that the absence of elaborate rituals or the full observance of traditional customs did not invalidate the marriage. The court relied on the principle that customary law is...

Citation
[2020] ZAFSHC 17
Parties
Applicant: Johannah Mmamoeketsi Miya; Respondent: Sikholwanguye Maxin Mnqayane; Respondent: Department of Home Affairs
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 February 2020
Case Number
3342/2018
Procedural Posture
Review Application / Final Judgment After Oral Evidence
Outcome
The application is granted. The customary marriage between the applicant and the first respondent is declared valid and of effect. The Department of Home Affairs is ordered to register the marriage. The first respondent is ordered to pay the costs of the application.
Judges
Naidoo
Legal Topics
Recognition of Customary Marriages Act, Validity of Customary Marriage, Lobola Negotiation, Handing Over of Bride, Customary Law Requirements
Family and Children Recognition of Customary Marriages Act Validity of Customary Marriage Lobola Negotiation Handing Over of Bride Customary Law Requirements

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Parties

Johannah Mmamoeketsi Miya

Applicant

Sikholwanguye Maxin Mnqayane

Respondent

Department of Home Affairs

Respondent

Procedural Posture

Review Application / Final Judgment After Oral Evidence

Legal Issues

  1. 1 Whether a valid customary marriage was concluded between the applicant and the first respondent on 16 September 2017.
  2. 2 Whether the requirements of section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 were satisfied.
  3. 3 Whether the handing over of the bride is an essential element for the validity of a customary marriage.

Ratio Decidendi

The court found that the applicant and first respondent lived together as husband and wife for approximately 17 years, and that lobola was negotiated and paid in full with the consent of both families. The evidence established that the applicant was accompanied and handed over to the first respondent's family, albeit in an abbreviated ceremony, and received a new name in accordance with custom. The court held that the requirements of section 3(1)(b) of the Recognition of Customary Marriages Act were satisfied, and that the absence of elaborate rituals or the full observance of traditional customs did not invalidate the marriage. The court relied on the principle that customary law is...

Court Disposition

The application is granted. The customary marriage between the applicant and the first respondent is declared valid and of effect. The Department of Home Affairs is ordered to register the marriage. The first respondent is ordered to pay the costs of the application.

Orders

  • The customary marriage entered into between the applicant and the first respondent on 16 September 2017 is declared valid and of effect in terms of the Recognition of Customary Marriages Act 120 of 1998.
  • The Department of Home Affairs is ordered to register the marriage between the applicant and the first respondent in terms of the Recognition of Customary Marriages Act 120 of 1998.