Shawn v Shabalala and Another (56880/2021) [2023] ZAGPPHC 2065 (5 September 2023)

Shawn v Shabalala and Another (56880/2021) [2023] ZAGPPHC 2065 (5 September 2023)

The court found that all statutory requirements for a valid customary marriage were met: both parties were over 18, consented to marriage, and the marriage was negotiated and celebrated in accordance with customary law. Lobola negotiations were held and the agreed amount paid. Umembeso was celebrated with both families present, and the applicant moved in with the respondent with family blessings and no objection. The court held that the Act does not require more than one celebration or strict adherence to all traditional rituals, and that substantial compliance suffices. The absence of umabo and other rituals did not invalidate the marriage, as customary law is flexible and evolving. The...

Citation
[2023] ZAGPPHC 2065
Parties
Applicant: Mokhoro Shawn; Respondent: Eusach Boy Shabalala; Respondent: Department of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 September 2023
Case Number
56880/2021
Procedural Posture
Review Application / Final Judgment After Oral Evidence and Written Submissions
Outcome
Application granted. The customary marriage between the applicant and first respondent is declared valid and in community of property and profit and loss. The Department of Home Affairs is ordered to register the marriage. The first respondent is ordered to pay costs.
Judges
Ceylon
Legal Topics
Recognition of Customary Marriage Act, Validity of Customary Marriage, Lobola Negotiations, Matrimonial Property Regime, Registration of Customary Marriage
Family and Children Recognition of Customary Marriage Act Validity of Customary Marriage Lobola Negotiations Matrimonial Property Regime Registration of Customary Marriage

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Parties

Mokhoro Shawn

Applicant

Eusach Boy Shabalala

Respondent

Department of Home Affairs

Respondent

Procedural Posture

Review Application / Final Judgment After Oral Evidence and Written Submissions

Legal Issues

  1. 1 Whether a valid customary marriage was entered into between the applicant and the first respondent on 9 December 2017 in terms of section 2(2) of the Recognition of Customary Marriages Act 120 of 1998.
  2. 2 Whether the marriage, if valid, should be declared in community of property and profit and loss in terms of section 7(2) of the Act.
  3. 3 Whether the marriage should be registered by the Department of Home Affairs in terms of section 4(7) of the Act.

Ratio Decidendi

The court found that all statutory requirements for a valid customary marriage were met: both parties were over 18, consented to marriage, and the marriage was negotiated and celebrated in accordance with customary law. Lobola negotiations were held and the agreed amount paid. Umembeso was celebrated with both families present, and the applicant moved in with the respondent with family blessings and no objection. The court held that the Act does not require more than one celebration or strict adherence to all traditional rituals, and that substantial compliance suffices. The absence of umabo and other rituals did not invalidate the marriage, as customary law is flexible and evolving. The...

Court Disposition

Application granted. The customary marriage between the applicant and first respondent is declared valid and in community of property and profit and loss. The Department of Home Affairs is ordered to register the marriage. The first respondent is ordered to pay costs.

Orders

  • The customary marriage entered into between the parties on 9 December 2017 is declared valid and of effect in terms of the Recognition of Customary Marriages Act 120 of 1998 and in community of property and profit and loss.
  • The Department of Home Affairs is ordered to register the marriage between the parties in terms of the Act.