Ngcwabe-Sobekwa v Sitela and Others (1155/2020) [2020] ZAECMHC 51 (20 October 2020)

Ngcwabe-Sobekwa v Sitela and Others (1155/2020) [2020] ZAECMHC 51 (20 October 2020)

The court found that a valid and binding customary marriage existed between the first respondent and the deceased, based on overwhelming evidence of compliance with customary requirements and confirmation from the deceased's family. The applicant's bare denial was insufficient to create a genuine dispute of fact. The subsequent civil marriage between the applicant and the deceased was declared null and void, as it was entered into during the subsistence of the customary marriage and without the first respondent's consent, in contravention of the Recognition of Customary Marriages Act and the Matrimonial Property Amendment Act. The failure to register the customary marriage did not affect...

Citation
[2020] ZAECMHC 51
Parties
Applicant: Lulama Nolubabalo Catherine Ngcwabe-Sobekwa; Respondent: Buyiswa Sitela; Respondent: Yonela Sitela; Respondent: AVBOB
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
20 October 2020
Case Number
1155/2020
Procedural Posture
Counter Application / Post Burial Determination of Marital Status and Validity of Marriages
Outcome
The court declared the customary marriage between the first respondent and the deceased valid and binding, and the civil marriage between the applicant and the deceased null and void. Each party was ordered to pay their own costs.
Judges
Dawood
Legal Topics
Recognition of Customary Marriages Act, Validity of Customary Marriage, Nullity of Civil Marriage, Registration of Customary Marriage, Spousal Consent, Matrimonial Property Amendment Act
Family and Children Civil Procedure Recognition of Customary Marriages Act Validity of Customary Marriage Nullity of Civil Marriage Registration of Customary Marriage Spousal Consent Matrimonial Property Amendment Act

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Parties

Lulama Nolubabalo Catherine Ngcwabe-Sobekwa

Applicant

Buyiswa Sitela

Respondent

Yonela Sitela

Respondent

AVBOB

Respondent

Procedural Posture

Counter Application / Post Burial Determination of Marital Status and Validity of Marriages

Legal Issues

  1. 1 Whether a valid customary marriage existed between the first respondent and the deceased.
  2. 2 Whether the subsequent civil marriage between the applicant and the deceased is null and void due to the subsistence of the customary marriage.
  3. 3 Whether failure to register the customary marriage affects its validity.

Ratio Decidendi

The court found that a valid and binding customary marriage existed between the first respondent and the deceased, based on overwhelming evidence of compliance with customary requirements and confirmation from the deceased's family. The applicant's bare denial was insufficient to create a genuine dispute of fact. The subsequent civil marriage between the applicant and the deceased was declared null and void, as it was entered into during the subsistence of the customary marriage and without the first respondent's consent, in contravention of the Recognition of Customary Marriages Act and the Matrimonial Property Amendment Act. The failure to register the customary marriage did not affect...

Court Disposition

The court declared the customary marriage between the first respondent and the deceased valid and binding, and the civil marriage between the applicant and the deceased null and void. Each party was ordered to pay their own costs.

Orders

  • It is declared that a valid and binding customary marriage existed between the deceased and the first respondent.
  • The civil marriage concluded between the deceased and the applicant is declared null and void and of no force and effect.