Peter and Others v Master of the High Court: Bisho and Another (547/2020) [2022] ZAECBHC 22 (2 August 2022)

Peter and Others v Master of the High Court: Bisho and Another (547/2020) [2022] ZAECBHC 22 (2 August 2022)

The court found that, although the applicants disputed the existence of a customary marriage, the evidence presented by the second respondent was more persuasive and consistent with the practices and lived experiences of the community. The marriage ceremony was attended by clan members, customary rites were performed, and the second respondent was recognised as the widow by the community. The absence of lobolo, a formal delegation, or the handing over of the bride did not invalidate the marriage, given the advanced age of the parties and the lack of surviving elders. Customary law is flexible and must adapt to social realities. The failure to register the marriage did not affect its...

Citation
[2022] ZAECBHC 22
Parties
Applicant: Thandeka Peter; Applicant: Siyasanga Blayi; Applicant: Unathi Mini; Applicant: Siyasamkela Blayi; Applicant: Libonge Pieters; Respondent: Master of the High Court: Bhisho; Respondent: Thobeka Joe
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
2 August 2022
Case Number
547/2020
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed; costs awarded against the applicants (excluding the fifth applicant).
Judges
Laing
Legal Topics
Customary Marriage, Recognition of Customary Marriages Act, Intestate Succession, Executor Appointment
Family and Children Customary Marriage Recognition of Customary Marriages Act Intestate Succession Executor Appointment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Thandeka Peter

Applicant

Siyasanga Blayi

Applicant

Unathi Mini

Applicant

Siyasamkela Blayi

Applicant

Libonge Pieters

Applicant

Master of the High Court: Bhisho

Respondent

Thobeka Joe

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether a valid customary marriage existed between the late Mr Blayi and the second respondent.
  2. 2 Whether the second respondent qualifies as the surviving spouse for purposes of appointment as executor under the Administration of Estates Act.
  3. 3 Whether the absence of lobolo, delegation, or formal handing over of the bride invalidates the customary marriage.

Ratio Decidendi

The court found that, although the applicants disputed the existence of a customary marriage, the evidence presented by the second respondent was more persuasive and consistent with the practices and lived experiences of the community. The marriage ceremony was attended by clan members, customary rites were performed, and the second respondent was recognised as the widow by the community. The absence of lobolo, a formal delegation, or the handing over of the bride did not invalidate the marriage, given the advanced age of the parties and the lack of surviving elders. Customary law is flexible and must adapt to social realities. The failure to register the marriage did not affect its...

Court Disposition

Application dismissed; costs awarded against the applicants (excluding the fifth applicant).

Orders

  • The application is dismissed.
  • The applicants, excluding the fifth applicant, are liable for the second respondent's costs.