Sengadi v Tsambo (40344/2018) [2018] ZAGPJHC 613; 2019 (4) SA 50 (GJ) (3 November 2018)

Sengadi v Tsambo (40344/2018) [2018] ZAGPJHC 613; 2019 (4) SA 50 (GJ) (3 November 2018)

The court found that the applicant and the deceased had complied with the requirements of section 3(1) of the Recognition of Customary Marriages Act, having negotiated and celebrated their marriage in accordance with living customary law. The insistence on the physical handing over of the bride as an indispensable prerequisite was rejected as inconsistent with constitutional values of equality and dignity. The court held that the custom of handing over the bride is not a lawful requirement for the existence of a customary law marriage where the statutory requirements have been met. The applicant was declared the lawful customary law wife of the deceased and entitled to burial rights....

Citation
[2018] ZAGPJHC 613
Parties
Applicant: Lerato Roberta Sengadi; Respondent: Robert Tsambo
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 November 2018
Case Number
40344/2018
Procedural Posture
Urgent Application / Reasons for Order Following Urgent Application
Outcome
The applicant is declared the lawful customary law wife of the deceased, but the application to interdict the funeral is declined due to competing public interests.
Judges
Mokgoathleng
Legal Topics
Customary Marriage, Recognition of Customary Marriages Act, Gender Equality, Handing Over Custom, Constitutional Development of Customary Law, Burial Rights
Family and Children Constitutional Law Customary Marriage Recognition of Customary Marriages Act Gender Equality Handing Over Custom Constitutional Development of Customary Law Burial Rights

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Parties

Lerato Roberta Sengadi

Applicant

Robert Tsambo

Respondent

Procedural Posture

Urgent Application / Reasons for Order Following Urgent Application

Legal Issues

  1. 1 Whether the applicant is the lawful customary law wife of the deceased.
  2. 2 Whether the custom of handing over the bride is an essential prerequisite for a valid customary law marriage under section 3(1) of the Recognition Act.
  3. 3 Whether the applicant is entitled to arrange and conduct the burial of the deceased.

Ratio Decidendi

The court found that the applicant and the deceased had complied with the requirements of section 3(1) of the Recognition of Customary Marriages Act, having negotiated and celebrated their marriage in accordance with living customary law. The insistence on the physical handing over of the bride as an indispensable prerequisite was rejected as inconsistent with constitutional values of equality and dignity. The court held that the custom of handing over the bride is not a lawful requirement for the existence of a customary law marriage where the statutory requirements have been met. The applicant was declared the lawful customary law wife of the deceased and entitled to burial rights....

Court Disposition

The applicant is declared the lawful customary law wife of the deceased, but the application to interdict the funeral is declined due to competing public interests.

Orders

  • It is declared that the custom of handing over the bride is not a lawful requirement for the existence of a customary law marriage where section 3(1) of the Recognition Act has been complied with.
  • The applicant is declared the customary law wife of the deceased.