Mlamla v Rubushe and Others (6254/2018) [2019] ZAECMHC 64 (29 October 2019)

Mlamla v Rubushe and Others (6254/2018) [2019] ZAECMHC 64 (29 October 2019)

The applicant failed to establish all the requirements for the validity of a customary marriage to the deceased, specifically the essential requirement of the handing over of the bride. The applicant's founding affidavit did not mention the handing over, and her later attempt to equate the utsiki ritual with the handing over was unsatisfactory and lacked detail. The evidence presented did not demonstrate that the applicant was formally handed over to the deceased's family, as required by customary law and the Recognition of Customary Marriages Act. Furthermore, the applicant's engagement to another man during the deceased's lifetime, with lobola allegedly paid for her, undermined her...

Citation
[2019] ZAECMHC 64
Parties
Applicant: Fezile Mlamla; Respondent: Nomathamsanqa Rubushe; Respondent: Mthuthuzeli Kula; Respondent: Thandikhaya Rubushe; Respondent: Vakutshiwo Rubushe; Respondent: Khehlana Rubushe; Respondent: Minister of Home Affairs; Respondent: Master of the High Court, Mthatha
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
29 October 2019
Case Number
6254/2018
Procedural Posture
Declaratory Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
M.S. Jolwana
Legal Topics
Recognition of Customary Marriages Act, Validity of Customary Marriage, Handing Over Requirement, Lobola Payment, Integration of Bride
Family and Children Recognition of Customary Marriages Act Validity of Customary Marriage Handing Over Requirement Lobola Payment Integration of Bride

Case Brief

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Parties

Fezile Mlamla

Applicant

Nomathamsanqa Rubushe

Respondent

Mthuthuzeli Kula

Respondent

Thandikhaya Rubushe

Respondent

Vakutshiwo Rubushe

Respondent

Khehlana Rubushe

Respondent

Minister of Home Affairs

Respondent

Master of the High Court, Mthatha

Respondent

Procedural Posture

Declaratory Application / Final Judgment

Legal Issues

  1. 1 Whether a valid customary marriage was concluded between the applicant and the deceased.
  2. 2 Whether the requirements of section 3 of the Recognition of Customary Marriages Act were satisfied, specifically the handing over of the bride.
  3. 3 Whether the applicant's engagement to another man during the deceased's lifetime affects her claim to be the deceased's customary law wife.

Ratio Decidendi

The applicant failed to establish all the requirements for the validity of a customary marriage to the deceased, specifically the essential requirement of the handing over of the bride. The applicant's founding affidavit did not mention the handing over, and her later attempt to equate the utsiki ritual with the handing over was unsatisfactory and lacked detail. The evidence presented did not demonstrate that the applicant was formally handed over to the deceased's family, as required by customary law and the Recognition of Customary Marriages Act. Furthermore, the applicant's engagement to another man during the deceased's lifetime, with lobola allegedly paid for her, undermined her...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.