N v D (2011/3726) [2016] ZAGPJHC 163 (15 June 2016)

N v D (2011/3726) [2016] ZAGPJHC 163 (15 June 2016)

The court found that the defendant did not consent to be married by customary union. The evidence showed that both parties intended to marry by civil ceremony and that the lobola negotiations were understood by the defendant as a step towards engagement, not marriage. The defendant's conduct, the mandate given to his delegates, and the absence of a bride handover ceremony supported the conclusion that no customary marriage was concluded. The plaintiff's evidence was found unreliable due to her history of dishonesty and inconsistencies. The court held that, in the absence of clear consent and fulfillment of customary requirements, no valid customary marriage existed between the parties.

Citation
[2016] ZAGPJHC 163
Parties
Plaintiff: E X N; Defendant: S R D
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 June 2016
Case Number
2011/3726
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim dismissed with costs, including costs of senior counsel and qualifying fees of Professor Bakker.
Judges
C G Lamont
Legal Topics
Customary Marriage, Consent to Marriage, Recognition of Customary Marriages Act, Civil Vs Customary Marriage
Family and Children Customary Marriage Consent to Marriage Recognition of Customary Marriages Act Civil Vs Customary Marriage

Case Brief

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Parties

E X N

Plaintiff

S R D

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the defendant consented to be married to the plaintiff under customary law.
  2. 2 Whether the ceremony conducted complied with the requirements to conclude a valid customary marriage.

Ratio Decidendi

The court found that the defendant did not consent to be married by customary union. The evidence showed that both parties intended to marry by civil ceremony and that the lobola negotiations were understood by the defendant as a step towards engagement, not marriage. The defendant's conduct, the mandate given to his delegates, and the absence of a bride handover ceremony supported the conclusion that no customary marriage was concluded. The plaintiff's evidence was found unreliable due to her history of dishonesty and inconsistencies. The court held that, in the absence of clear consent and fulfillment of customary requirements, no valid customary marriage existed between the parties.

Court Disposition

Plaintiff's claim dismissed with costs, including costs of senior counsel and qualifying fees of Professor Bakker.

Orders

  • The plaintiff's claim is dismissed.
  • The plaintiff is to pay the costs of the action, including the costs consequent upon the employ of senior counsel and the qualifying fees of Professor Bakker.