Modisane v Modikwe and Others (8166/2022) [2023] ZAGPJHC 1 (1 January 2023)

Modisane v Modikwe and Others (8166/2022) [2023] ZAGPJHC 1 (1 January 2023)

The court found that the applicant was married to the first respondent in community of property according to customary law, as previously declared by the court. The first respondent, despite being served and not opposing the registration of the customary marriage, subsequently entered into a civil marriage with the fourth respondent. The law prohibits a man in a subsisting customary union from contracting a civil marriage with another woman who is not his customary partner. Such a civil marriage is a nullity. The applicant made out a clear case for the relief sought, and the civil marriage between the first and fourth respondent was declared unlawful and set aside. The authorities were...

Citation
[2023] ZAGPJHC 1
Parties
Applicant: Modisane Kgomotso Grannie; First Respondent: Modikwe Lesley; Second Respondent: Minister of Home Affairs; Third Respondent: Director General of Home Affairs; Fourth Respondent: Komane Patricia
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 January 2023
Case Number
8166/2022
Procedural Posture
Declaratory Application / Unopposed Motion Court
Outcome
Application granted. The civil marriage between the first and fourth respondent is declared unlawful and set aside. The authorities are directed to register the applicant's customary marriage.
Judges
Twala ML
Legal Topics
Customary Marriage Registration, Civil Union Nullity, Recognition of Customary Marriages Act, Declaratory Relief
Family and Children Civil Procedure Customary Marriage Registration Civil Union Nullity Recognition of Customary Marriages Act Declaratory Relief

Case Brief

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Parties

Modisane Kgomotso Grannie

Applicant

Modikwe Lesley

First Respondent

Minister of Home Affairs

Second Respondent

Director General of Home Affairs

Third Respondent

Komane Patricia

Fourth Respondent

Procedural Posture

Declaratory Application / Unopposed Motion Court

Legal Issues

  1. 1 Whether the civil marriage between the first and fourth respondent is valid during the subsistence of a customary marriage between the applicant and first respondent.
  2. 2 Whether the applicant's customary marriage should be registered and a marriage certificate issued.

Ratio Decidendi

The court found that the applicant was married to the first respondent in community of property according to customary law, as previously declared by the court. The first respondent, despite being served and not opposing the registration of the customary marriage, subsequently entered into a civil marriage with the fourth respondent. The law prohibits a man in a subsisting customary union from contracting a civil marriage with another woman who is not his customary partner. Such a civil marriage is a nullity. The applicant made out a clear case for the relief sought, and the civil marriage between the first and fourth respondent was declared unlawful and set aside. The authorities were...

Court Disposition

Application granted. The civil marriage between the first and fourth respondent is declared unlawful and set aside. The authorities are directed to register the applicant's customary marriage.

Orders

  • The civil marriage between the first and fourth respondent is declared unlawful and set aside.
  • The second and third respondents are directed to register the marriage entered into between the applicant and the first respondent within thirty (30) days of this order.