Tshivhase v Tshivhase N.O and Another

TITLE: Tshivhase v Tshivhase N.O and Another

Case citation: Tshivhase v Tshivhase N.O and Another (105/2023) [2025] ZASCA 131 (12 September)[1]

Court: In the Supreme Court of Appeal of South Africa

Parties involved:

Appellant: Elizabeth Thimbiluni Tshivhase

Respondents: Azwihangwini Francinah Tshivhase N.O and The Master of the High Court, Thohoyandou

Coram: Goosen, Mokqohola, Smith, Keightley JJA

Delivered Date: 12 September 2025

Introduction

This appeal concerns the validity of a customary marriage and its implications for inheritance and marital property rights. This case made clear that a customary marriage must meet both traditional requirements and statutory requirements under the Recognition of Customary Marriage Act 120 of 1998.[2]

Facts

The dispute involves completing claims over the vailidty of a civil marriage and a joint will following the death of Ndavheleseni Lazarus. In 1966, Azwihangwini Fancinal Tshivhase , the first respondent, claimed customary law marriage to the deceased and as a result requested.

A ruling that the appellant, Elizabeth Thimbuluni Tshivhase, and the deceased’s civil marriage was null and void from the beginning and the combined will they had executed was struck aside. In support of this customary marriage, the respondent cited a page from her identity document, which was issues in the former Republic of Venda. The High Court upheld her claim, declared the civil marriage void and set aside the will. The appellant challenged this outcome on appeal.

Legal issues

The issues determined by the court are:

1. Whether the ID relied on by the respondent constitutes prima facie proof of the alleged customary marriage concluded between the deceased and the respondent and whether same has been properly proved.
2. Whether it was appropriate to declare the civil marriage null and void from the beginning.
3. Whether it was correct for the High Court to reject the non-joinder of beneficiaries and to strike aside the joint will
4. Whether in accordance with the Recognition of Customary Marriages Act 120 of 1998 and relevant customary, id the respondent provides enough proof beyond the ID to establish a legitimate customary marriage.[3]

Arguments of the parties

Appellant’s arguments

The appellant argued that:

The respondent could not show any real proof that a customary marriage even happened. It seems like the identity documents they had did not count as solid evidence for a customary union according to section 4(8) of the RCMA.[4] The was just no evidence at all of those customary negotiations or rituals. There was nothing about lobola agreements and no witnesses mentioned for the supposed marriage, which make the whole claim is not substantiated by sufficient evidence. On the other hand, the civil marriage seems valid along with the joint will and should be upheld.

The High Court erred by dismissing the non-joinder issue. The beneficiaries of the directly affected by the order.

Respondent’s argument

The respondent argued that:

She got married to the deceased under customary law back in 1966. The identity document served as law back initial proof the marriage. So, because of that, the later civil one did not count, according to section 22 of the Black Administration Act 8 of 1927[5] and section 10 of the RCMA.[6]It just seemed invalid after the customary one. The High Court dismissed non-joinder right since the beneficiaries did not really have a direct stake in whether the marriage claim was valid or not in that case.

Court’s Reasoning and Legal Analysis

1. Burden of proof in establishing customary

The Supreme Court of Appeal starting its analysis by reaffirming that whoever claims a customary marriage exists to prove it, on a balance of probabilities. The South African law treats customary marriages the same as civil ones you need evidence to show it really happened under customary rules and applicable statutory provision.[7]

Under section 3(1) of the RCMA customary marriage is valid when,

1. Spouses are both over 18 years
2. They have consented to be married to each other under customary law
3. The marriage must have been negotiated and entered into or celebrated in accordance with customary law.[8]

Although the case here involved a marriage that happened before the RCMA was in place. But the court still insisted on proving the customary requirements which are important. Therefore, the SCA came into realization that the respondent has failed to provide any independent evidence of negotiations, rituals, witnesses or family participants which they are important to establish a customary marriage.

2. Identity documents as the evidence

Whether the entry in the respondent’s identity document represented prima facie proof of marriage was a key question in the Appeal. The High Court deemed the evidence adequate.[9]

This reasoning was rejected by the SCA, it ruled that an identity document is not a substitute for marriage certificates and does not serve as definite evidence of a customary marriage. A certificate of registration for a customary marriage existence, according to section 4(8) of the RCMA. This statutory category does not apply to identity document.[10]

The Court drew on its earlier reasoning in Manwadu v Manwadu (799/2023) [2025] ZASCA 10 (10 February), where it was held that if someone challenges what a document says about marital status, you need extra evidence to back it up. Without that evidence relying only on identity document is insufficient to discharge the burden of proof.[11] Thus, thus the SCA decided the High Court got wrong by treating ID entry as adequate proof.

Judgement

The SCA decided to allow the appeal all the way and made to other side pay costs. They set aside the High Court order and dismissed the application. The court held that:

1.The SCA emphasized in proving a customary marriage that an identity document entry is not a marriage and is not enough.[12]If someone challenges it the respondent party need to produce more evidence such as lobola agreements, a document of marriage negotiation or a testimony from people who were present at the customary law.

The Court applied its reasoning from Manwadu v Manwadu that once prima facie gets questioned, you really must pile on evidence to show the marriage followed the requirements of customary law.[13]

2 Validity of the Civil marriage

Since the customary was not proven to exist on the balance of probabilities, the civil marriage concluded in 1977 remained valid. The appellant had the certificate right there, all proper. No real reason to call it void from the beginning.

3.Non-Joinder of beneficiaries

The SCA agreed that the High Court was mistaken in dismissing the non-joinder point. The set aside the joint will, it would hit the beneficiaries hard, and those people who weren’t even in the court for this. The omission rendered the High Court’s order flawed because it prejudiced interests not presented in court cite.[14]In the case of Gordon v Department of Health KwaZulu Natal [2008] ZA SCA 99. 2008 (6) SA 522 SA, the court rules that the court or judgement sought cannot be sustained and carried into effect without necessarily prejudicing the interests “ of a party or parties not joined in the proceedings, then that party or parties have a legal interest in the matter and must be joined”.[15] In this situation, it’s kind of like that, where deciding if the joint will is valid could affect people who aren’t even part of the court case. You know, third parties like the appellant herself, outside of her role in the litigation, and then the beneficiaries who stand to get something from the will. Those beneficiaries include folks such as Lindelani Masalautshizwivhona Tshivhase. And Mulondo Musandiwa Johannes Tshivhase too. Nndavheleseni Jacobus Tshivhase is another one, along with Nkhumeleni Unarine Rejoyce Tshivhase.

4.Procedural fairness and judicial conduct

The SCA also called out the High Court for not giving reasons in the first judgement and handling the appeal inadequately. Without those reasons, it’s hard to see the fairness and accountability just isn’t there.

Significance of the decision

This case upheld important legal principles in South African family and customary law. The RCMA’s evidentiary requirements are reinforced by the fact that identity documents alone are insufficient to prove customary marriages, particularly when they are contested. Civil marriages, when properly registered, stand on solid legal grounds and previous alleged customary unions must be proven with corroborated evidence. Courts are required to maintain procedural justice, particularly when issues involving third party interests like estates and wills are involved.

The ruling promotes customary requirements with statutory and constitution obligations and encourages clarity in marital status disputes. It emphasizes the necessity of thorough documentation of customary practices and the defence of non-parties whose rights may be impacted by court rulings.

The ruling was also crucial for non-joinder as well, The SCA concluded that beneficiaries under the disputed will ought to have been included in the proceedings since they had a direct and significant state in the result.

This affirms the following strengthening the theory of non-joinder. All parties whose rights may be impacted must be joined according to the courts, failing to do so could result in procedural flaws in the proceedings. Procedural prudence is required in estate liquidation. This part of the ruling will probably affect future cases involving family law and estate.

Conclusion

The case of Tshivhase v Tshivhase N.O and Another comes from the Supreme Court of Appeal, and it gives a pretty good look and at how courts in Sout Africa handle disputes over customary marriages versus civil ones. While recognising the validity and importance of customary law, the court stressed strict adherence to statutory requirements under the RCMA and the importance of concrete evidence to prove such unions. The decision also highlights the significance of fairness, especially when it involves who gets what in an estate or if third parties are affected.

BIBLIOGRAPHY

CASE LAWS

1. Tshivhashe v Tshivhase and Another (105/2023) [225] ZASCA 131 (12 September 2025)
2. Manwadu v Manwadu (799/2023) [2025] ZASCA 10 (10 February 2025)
3. Gordon v Department of Health KwaZulu-Natal [2008] ZASCA 99 2008 (6) SA 522

LEGISLATION

1. Recognition of Customary Marriages Act 120 of 1998
2. Black Administration Act 8 of 1927

[1] Tshivhase v Tshivhase N.O and Another (105/2023) [2025] ZASCA 131(12 September 2025).

[2] Recognition of Customary Marriages Act 120 of 1998.

[3] Tshivhase v Tshivhase N.O and Another (105/2023) [2025] ZASCA 131 (12 September 2025) para 9.

[4] Recognition of Customary Marriages Act 120 of 1998, s 4(8).

[5] Black Administration Act 8 of 1927, s 22.

[6] Recognition of Customary Marriages Act 120 of 1998, s 10.

[7] Tshivhase v Tshivhase N.O and Another (103/2023) [225] ZASCA 131 (12 September 2025) para 16.

[8] Recognition of Customary Marriages Act 120 of 1998, s 3(1).

[9] Tshivhase v Tshivhase and Another (105/2023) [2025] ZASCA 131 (12 September 2025) para 17.

[10] Recognition of Customary Marriages Act 120 of 1998, s 4(8).

[11] Manwadu v Manwadu (799/2023) [2025] ZASCA 10 (10 February 2025) para 6.

[12] Tshivhase v Tshivhase and Another (105/2023) [2025] ZASCA 131(12 September 2025) para 10.

[13] Manwadu v Manwadu (799/2023) [2025] ZASCA 10 (10 February 2025) .

[14] Tshivhase v Tshivhase N.O and Another (105/2023) [2025] ZASCA 131 (12 September) para 18.

[15] Gordon v Department of Health KwaZulu Natal [2008] ZASCA 99 2008 (6) SA 522 SA.