T.S.N v J.K.M and Another (2023/120095) [2025] ZAGPJHC 215 (20 February 2025)

T.S.N v J.K.M and Another (2023/120095) [2025] ZAGPJHC 215 (20 February 2025)

The Court found that the customary marriage between the Applicant and First Defendant was validly concluded and celebrated in accordance with customary law, including payment of ilobola and cohabitation. The absence of registration with the Department of Home Affairs does not invalidate the marriage, as section 4(9) of the Recognition of Customary Marriages Act explicitly provides. The constitutional recognition of customary law and its practices means that the marriage enjoys legal status and proprietary consequences. The Department of Home Affairs is obliged to register the marriage and issue a certificate, ensuring the parties can exercise their rights, including dissolution under the...

Citation
[2025] ZAGPJHC 215
Parties
Applicant: T[...] S[...] N[...]; Defendant: J[...] K[...] M[...]; Defendant: Minister of Home Affairs
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 February 2025
Case Number
2023/120095
Procedural Posture
Declaratory Application / Final Judgment
Outcome
Declaratory order granted: the customary marriage is declared valid and the Department of Home Affairs is ordered to register the marriage and issue a certificate. No order as to costs.
Judges
Ntlama-Makhanya
Legal Topics
Customary Marriage, Recognition of Customary Marriages Act, Marriage Registration, Proprietary Consequences, Constitutional Rights, Declaratory Relief
Family and Children Civil Procedure Customary Marriage Recognition of Customary Marriages Act Marriage Registration Proprietary Consequences Constitutional Rights Declaratory Relief

Case Brief

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Parties

T[...] S[...] N[...]

Applicant

J[...] K[...] M[...]

Defendant

Minister of Home Affairs

Defendant

Procedural Posture

Declaratory Application / Final Judgment

Legal Issues

  1. 1 Whether the customary marriage between the Applicant and First Defendant is valid and exists despite non-registration.
  2. 2 Whether the Department of Home Affairs is obliged to register the customary marriage and issue a marriage certificate.
  3. 3 Whether non-registration of a customary marriage invalidates the marriage under South African law.

Ratio Decidendi

The Court found that the customary marriage between the Applicant and First Defendant was validly concluded and celebrated in accordance with customary law, including payment of ilobola and cohabitation. The absence of registration with the Department of Home Affairs does not invalidate the marriage, as section 4(9) of the Recognition of Customary Marriages Act explicitly provides. The constitutional recognition of customary law and its practices means that the marriage enjoys legal status and proprietary consequences. The Department of Home Affairs is obliged to register the marriage and issue a certificate, ensuring the parties can exercise their rights, including dissolution under the...

Court Disposition

Declaratory order granted: the customary marriage is declared valid and the Department of Home Affairs is ordered to register the marriage and issue a certificate. No order as to costs.

Orders

  • The customary marriage concluded between the Applicant and First Defendant entered on 01 April 2012 is declared valid.
  • The Minister of Home Affairs is ordered, within 30 days of receipt of this order, to register the marriage and issue a marriage certificate.