Authored By: Zinhle Shayi
University of South Africa
- Case Title & Citation 1
- N.N and Others v B.N and Others (5 June 2025)
- N.N and Others v B.N and Others (3932/2024) [2025] ZAECMHC 46; [2025] 4 All SA 197 (ECM) (5 June 2025)
- Court Name & Bench
- South Africa: Eastern Cape High Court, Mthatha2
- M. Mhambi AJ3
- Eastern Cape Division: Mthatha4
- Date of Judgment5
- 05 June 2025
- Parties Involved
- Brief description of the petitioner(s) / appellant(s)6
First Applicant N[…] N[…] is the primary applicant and the customary wife of the deceased (V[…] N[…]). She entered into a valid customary marriage with the deceased in 1978, which was never dissolved. She sought to have this marriage declared valid and the subsequent civil marriage between the deceased and the First Respondent declared null and void. Second, Third and Fourth Applicants: S[…] N[…], L[…] N[…], N[…] N[…] this are children of the First Applicant and the deceased. They have a direct interest in the outcome as the legitimate children of the customary marriage, which affects their rights to inheritance and status within the deceased’s estate. • Brief description of the respondent(s) / defendant(s)7
First Respondent B […] N […] she is opposing the application, was in a civil marriage with the deceased (V[…] N[…]), which was registered on or about 11 November 2017. She argued that the deceased’s prior customary marriage to the First Applicant had dissolved through desertion and expulsion before their civil marriage took place. She also claimed was welcomed into the deceased’s family through a traditional ceremony. The other respondents are state officials.
- Facts of the Case
- 1978 the First Applicant and the deceased her husband V[…] N[…] they concluded a valid customary marriage. Lobola was pay and she was formally hand over to the deceased’s family. 8
- 19989the First Applicant and the deceased here referred to the husband separated while he was working away from home. The marriage never formally dissolved by a court meaning no decree of divorce.
- 1999 10the deceased met the Fist Respondent, he inform her that he had “expelled” his first wife and no longer had a spouse.
- On the 11 November 201711, the deceased and the First Respondent entered into a civil marriage.
- On the 24 October 202312, the deceased passed away.
- Following the deceased’s death, the first wife discovered the existence of the civil marriage when she tried to register her customary marriage. She then initiated a legal action.13
- Issues Raised
- Was the marriage between the First Applicant and the deceased still legally valid when the deceased married the First Respondent?
- What is the proper method for dissolving a customary marriage?
- What is the legal status of the subsequent civil marriage?
7. Arguments of the Parties
- Key contentions by the Petitioner/Applicant
The First Applicant argued she entered into a valid customary marriage with the deceased in 1978, evidenced by lobola negotiations, payment, and her formal handover to the deceased’s family, confirmed by witnesses. Relying on the Recognition of Customary Marriages Act (RCMA) section 8(1)14, she argued that a customary marriage be dissolved by a court decree of divorce. Since no decree granted, her marriage was still valid when the deceased married the First Respondent, rendering the subsequent civil marriage null and void ab initio. She admitted that her consent was not legally required for the deceased’s civil marriage, as the 15 RCMA’s polygamy consent provisions (Section 7(6)) apply only to subsequent customary marriages, not civil ones.
- Key contentions by the Respondent/Defendant
The First Respondent did not dispute the existence of the initial customary marriage but argued it had dissolved prior to her civil marriage16. She claimed the deceased had expelled the First Applicant from the marital home and informed the First Applicant via telephone that he had taken a new wife (the First Respondent) 17. She asserted that she underwent a traditional bride welcoming ceremony into the deceased’s family and cohabited with him until his death, indicating that the family and community recognised her as the wife 18. Her legal argument was that through desertion, expulsion and the formation of a new union. The first customary marriage had effectively dissolved according to factual circumstances making her civil marriage valid.
- Cite relevant statutes or case laws referred
Recognition of Customary Marriage Act 120 of 1998.
The Constitution of the Republic of South Africa, 1996.
Alexkor Ltd and Another v Richtersveld Community and Other. Rudzani Netshituka v Joyce Munyadizwe Netshituka.
Bhe v Khayelitsha.
MBM v MG.
- Judgment / Final Decision
- What the court decided (verdict)
The court verdict found favor to the Applicants. The civil marriage declared null and void ab initio and concluded a valid customary marriage19.
- Whether the appeal was allowed, dismissed, or modified
This was not an appeal case but a direct application to the High Court. The court found favor to the Applicants and dismissed arguments of First Respondent.
- Any important orders/directions issued 20
The civil marriage between the First Respondent and the deceased declared null and void ab initio. The marriage to the First Applicant and the deceased concluded a valid customary marriage. The Director General of Home Affairs was direct to register the customary marriage between the First Applicant and the decease within 15 days of be served the court order. The Master of the High Court and the Executor are order to proceed with the administration and distribution of the deceased’s estate, recognising the First Applicant as the legal wife and the other three (3) applicants as the children of the deceased. The First Respondent is order to pay the costs of the application on scale A of the uniform rules 67A.
- Legal Reasoning / Ratio Decidendi
- Explanation of the court’s reasoning behind its decision
The court is reasoning behind its decision evolved in an interpretation of Recognition of Customary Marriages Act 120 of 1998 and the constitutional status of customary law. The customary marriage can dissolved by a competent court for a decree of divorce on the ground of irretrievable breakdown21. This statement supported by section 8(1) of the Recognition of Customary Marriage Act “a customary marriage may only be dissolved by a court by a decree of divorce on the ground of irretrievable broken down of the marriage.” The application facts of this case, the court found no decree of divorce granted by competent court which result the customary marriage between the First Applicant and the decease remain in force until his death22.
- Legal principles/doctrines evolved or applied
The legal principle conduct such as adultery and desertion in certain instances contribute to the reason for marital breakdown but not method of dissolution as refer to the court cited on MBM v MG. “Section 8(1) of RCMA it is only the courts that are empowered to dissolve the marriage and not the defendants mere desertion of the marital home.”23 The application facts of this case, the deceased’s alleged expelled24 of the First Applicant and his announcement of taking a new wife were deemed irrelevant to the marriage’s legal status. The court’s power to dissolve a marriage is exclusive and cannot be assume by the actions of the spouses. The civil marriage contracted while a prior customary marriage is still in existence is void. The court applied the Supreme Court of Appeal in the case of Rudzani Netshituka v Joyce Munyadizwe Netshituka held that in Thembisile v Thembisile. These cases firmly establish that a civil marriage entered into by a person already bound by a valid undissolved customary is a nullity25. The 1978 customary marriage concluded was never dissolve. The deceased was not legally free to marry the First Respondent in 11 November 2017. The civil marriage was declare null and void ab initio. The court confirmed that the failure to register a customary marriage does not affect its validity supported by section 4(9) of the RCMA. The court treated the marriage as valid based on the evidence of lobola and handover to the family.
- Significant precedents cited
Alexkor Ltd and Another v Richtersveld Community and Other this case affirms the constitutional status of customary law as an integral part of South African law26. Bhe v Khayelitsha this case reinforce that customary law must be accommodate and its validity determined by the constitution27. In Mbungela and Another v Mkabi and Others, the principle was that customary law is dynamic and flexible but its content must be determined with reference to the community’s practice and the constitution28. 29MBM v MG applied to reject desertion as a means of dissolving a customary marriage. 30Rudzani Netshituka v Joyce Munyadizwe Netshituka declare the subsequent civil marriage a nullity.
- Conclusion / Observations
The primary significance of this ruling is its resounding affirmation of legal formalism over social practice in the dissolution of customary marriages. It powerfully reinforces the RCMA’s objective of protecting vulnerable parties and ensuring legal certainty. However, the factual background of the case also exposes a critical gap between legal prescription and social reality. This difference underscores an urgent need for widespread legal education to ensure the rights confirmed by this judgment are both understood and accessible, thereby preventing similar crises in the future.
Reference(S):
N.N and Others v B.N and Others (3932/2024) [2025] ZAECMHC 46; [2025] 4 All SA 197 (ECM) (5 June 2025).
Recognition of Customary Marriages Act 120 of 1998.
The Constitution of the Republic of South Africa, 1996.
1 N.N and Others v B.N and Others (3932/2024) [2025] ZAECMHC 46; [2025] 4 All SA 197 (ECM) (5 June 2025)
2N.N and Others v B.N and Others Page 1
3N.N and Others v B.N and Others Page 13
4N.N and Others v B.N and Others Page 1
5 N.N and Others v B.N and Others Page 14
6 N.N and Others v B.N and Others p1
7 N.N and Others v B.N and Others p1-2
8 N.N and Others v B.N and Others para 4-6
9 N.N and Others v B.N and Others para 7
10 Para 11
11 Para 8
12 N.N and Others v B.N and Others para 7
13 N.N and Others v B.N and Others para 8
14 RCMA section 8(1)
15 RCMA section 7(6)
16 N.N and Others v B.N and Others para 12
17 N.N and Others v B.N and Others para 26
18 N.N and Others v B.N and Others para 13
19 N.N and Others v B.N and Others para 42 (2)
20 N.N and Others v B.N and Others para 42
21 N.N and Others v B.N and Others para 34
22 N.N and Others v B.N and Others para 34
23 N.N and Others v B.N and Others para 37
24 N.N and Others v B.N and Others para 12
25 N.N and Others v B.N and Others para 40
26 N.N and Others v B.N and Others para 19
27 N.N and Others v B.N and Others para 20
28 N.N and Others v B.N and Others para 31
29 N.N and Others v B.N and Others para 37
30 N.N and Others v B.N and Others para 40
