Sarah v Mohononi and Others (22258/2015) [2022] ZAGPPHC 747 (4 October 2022)

Sarah v Mohononi and Others (22258/2015) [2022] ZAGPPHC 747 (4 October 2022)

The court found that a valid customary marriage existed between the Applicant and the First Respondent, as evidenced by the letter from the headman, lobolo payment, and lack of dispute from the Respondents. The subsequent civil marriage between the First and Second Respondent was entered into during the subsistence of the customary marriage and without the Applicant's knowledge or consent. The Recognition of Customary Marriages Act prohibits a spouse in a customary marriage from entering into a civil marriage while the customary marriage subsists, and only a court may dissolve a customary marriage by decree of divorce. The failure to register the customary marriage does not affect its...

Citation
[2022] ZAGPPHC 747
Parties
Applicant: Molatelo Sarah Ramathoka; Respondent: Maila Elias Mohononi; Respondent: Moloi Doreen Mohononi; Respondent: Minister of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 October 2022
Case Number
22258/2015
Procedural Posture
Review Application / Unopposed Motion Roll
Outcome
Application granted. The civil marriage between the First and Second Respondent is declared void ab initio. Directions given for registration of the customary marriage and possible institution of divorce proceedings. No order as to costs.
Judges
Phooko
Legal Topics
Customary Marriage, Recognition of Customary Marriages Act, Civil Marriage Nullity, Registration of Customary Marriage, Marital Status, Dissolution of Marriage
Family and Children Civil Procedure Customary Marriage Recognition of Customary Marriages Act Civil Marriage Nullity Registration of Customary Marriage Marital Status Dissolution of Marriage

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Parties

Molatelo Sarah Ramathoka

Applicant

Maila Elias Mohononi

Respondent

Moloi Doreen Mohononi

Respondent

Minister of Home Affairs

Respondent

Procedural Posture

Review Application / Unopposed Motion Roll

Legal Issues

  1. 1 Whether the civil marriage between the First and Second Respondent is void ab initio during the subsistence of a customary marriage with the Applicant.
  2. 2 Whether failure to register a customary marriage affects its validity.
  3. 3 Whether the Applicant is entitled to have the customary marriage registered and the civil marriage declared void.

Ratio Decidendi

The court found that a valid customary marriage existed between the Applicant and the First Respondent, as evidenced by the letter from the headman, lobolo payment, and lack of dispute from the Respondents. The subsequent civil marriage between the First and Second Respondent was entered into during the subsistence of the customary marriage and without the Applicant's knowledge or consent. The Recognition of Customary Marriages Act prohibits a spouse in a customary marriage from entering into a civil marriage while the customary marriage subsists, and only a court may dissolve a customary marriage by decree of divorce. The failure to register the customary marriage does not affect its...

Court Disposition

Application granted. The civil marriage between the First and Second Respondent is declared void ab initio. Directions given for registration of the customary marriage and possible institution of divorce proceedings. No order as to costs.

Orders

  • The civil marriage between the First and Second Respondent is declared void ab initio.
  • Should the First Respondent wish to remain in the customary marriage with the Applicant, he is to attend, together with the Applicant, to the registration of the customary marriage within 60 days of service of this order.