Maluleke v Minister of Home Affairs & Radebe [2008] ZAGPHC 129

Authored By: Lerato Mati

University of Fort Hare

Maluleke v Minister of Home Affairs & Radebe [2008] ZAGPHC 129

High Court of South Africa, Gauteng Division

Date of Judgment: 09 April 2008

Applicants:

Maluleke Adelaide Thokozile, in her own capacity and as representative of the estate of the late Patrick Dumakude Mtshali (First Applicant)
Percival Lucky Tshabalala (Second Applicant)
Petunia Mogagabe (Third Applicant)
Floyd Makhubela (Fourth Applicant)

Respondents:

The Minister of Home Affairs (First Respondent)
Lindiwe Caroline Margaret Radebe, alleged customary wife of the late Patrick Dumakude Mtshali (Second Respondent)

Facts

The late Patrick Dumakude Mtshali and Lindiwe Caroline Margaret Radebe intended to enter into a customary marriage. Lobola negotiations were held, during which the first instalment of the agreed lobola was paid in December 2000. A further payment was made on 30 June 2001, at which point the lobola negotiations were finalised. The families agreed that an imvume ceremony would be held in October 2001 to conclude the marriage. The deceased, however, died on 16 September 2001, before the imvume could take place.

Following his death, the second respondent lodged an application for a marriage certificate, which was subsequently issued. The application was co-signed by the representative of the deceased’s family, Mr Cecil Mtshali (the deceased’s brother), and by the representative of the second respondent’s family, Mr Piet Msibi. Both signatories deposed to affidavits attesting to the lobola negotiations having been held for the purpose of concluding a customary marriage, the conclusion of which had been intended to take place at the imvume ceremony.

The first applicant, Maluleke Adelaide Thokozile, acting in her capacity as representative of the deceased’s estate, instituted proceedings seeking an order for the cancellation of the registration of the customary marriage between the deceased and the second respondent, and a declaration that no valid customary marriage existed between them.

Legal Issue

The central legal issue before the court was whether a valid customary marriage had been concluded between the deceased and the second respondent for the purposes of the Recognition of Customary Marriages Act 120 of 1998 (RCMA).

Section 3(1)(b) of the RCMA requires that a customary marriage must be “negotiated and entered into or celebrated in accordance with customary law.” This provision establishes three possible modes of conclusion: the marriage must be (i) negotiated and entered into, or (ii) negotiated and celebrated. Both parties accepted that lobola negotiations had been held, satisfying the negotiation requirement. The sole remaining question was therefore whether the marriage had been entered into within the meaning of the Act — given that the imvume ceremony, which would have constituted celebration of the marriage, had not yet taken place at the time of the deceased’s death.

Court’s Decision

The court dismissed the first applicant’s application with costs.

On the evidence before the court, the deceased’s family — including the deceased himself, through the lobola negotiations — had accepted the second respondent as the deceased’s wife. The court held that this acceptance, following the completion of the lobola negotiations, was sufficient to satisfy the requirement that the customary marriage had been entered into as contemplated in section 3(1)(b) of the RCMA. The fact that the imvume ceremony had not been held did not disturb this finding. The court was satisfied, on the totality of the evidence, that the customary marriage had been validly entered into, and the application for cancellation of the marriage registration was accordingly refused.

Legal Analysis

The “Entered Into” vs “Celebrated” Distinction

This case is principally concerned with the validity of a customary marriage in relation to the requirements of section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998. The section requires that a marriage be “negotiated and entered into or celebrated in accordance with customary law” before it will be recognised as valid. The significance of the disjunctive construction of this provision — “entered into or celebrated” — is that a customary marriage need not be formally celebrated through ceremony to be valid; it is sufficient that it has been properly entered into following negotiation.

The court’s application of this provision to the facts required it to address a gap in the legislation: the RCMA does not define what it means for a customary marriage to be “entered into.” This case provided an important judicial elaboration of that concept. The court found that the mutual acceptance of the parties as husband and wife — by both the parties themselves and their respective families, following the completion of lobola negotiations — constitutes an agreement that satisfies the “entered into” requirement. This interpretation is significant because it does not require the physical presence of the prospective spouse at the moment of acceptance, nor does it require a further ceremony.

Section 3(1)(a) Requirements

Section 3(1)(a) of the RCMA additionally requires that both prospective spouses must be above the age of 18 years and must both consent to the marriage. On the facts of this case, both the deceased and the second respondent were of legal age, and both had, through the lobola negotiations and the conduct of their respective families, consented to the marriage under customary law. These requirements were accordingly satisfied.

Comparative Case Law

Two prior decisions provide important context for the court’s reasoning.

In Mabena v Letsoalo [1998] (2) SA 1068 (T) at 1073 D-E, the court held that the mere payment of lobola and performance of marriage ceremonies does not, of itself, guarantee the validity of a customary marriage. The required formalities must be fully met. This case establishes that lobola payment is a necessary but not sufficient condition for validity.

In Mabuza v Mbatha 2003 (4) SA 218 (C) at 226 D-G, the court further refined this position by holding that both families must be in agreement for a customary marriage to be validly concluded. The decision reinforced the communal dimension of customary marriage — it is not concluded by the parties alone, but requires the consent and participation of both families. Applied to the facts in Maluleke, both families had participated in the lobola negotiations and their representatives had co-signed affidavits attesting to the conclusion of those negotiations — a finding that brought the case squarely within the principle confirmed in Mabuza v Mbatha.

Constitutional Dimensions

The case also engages important constitutional considerations. Section 9 of the Constitution of the Republic of South Africa, 1996 guarantees the right to equality, including equality on the grounds of gender — a right that is directly engaged by the institution of customary marriage, which has historically disadvantaged women. The court’s recognition and application of the RCMA’s requirements strikes a balance between giving effect to customary law and ensuring compliance with constitutional guarantees of equality and dignity.

Section 211 of the Constitution further recognises the institution, status, and role of customary law, and directs courts to apply customary law subject to the Constitution and any applicable legislation. This case is an example of that constitutional instruction in practice: the court applied the RCMA (the applicable legislation) while simultaneously recognising the validity of customary practices such as lobola negotiations and the imvume ceremony as expressions of customary law.

Conclusion

Maluleke v Minister of Home Affairs & Radebe makes a meaningful contribution to South African customary marriage law by judicially elaborating the meaning of the phrase “entered into” in section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 — a concept the Act leaves undefined. The case establishes that where lobola negotiations have been completed, and both parties and their families have mutually accepted each other as husband and wife, the requirement that a marriage be “entered into” is satisfied, even where no formal concluding ceremony has taken place.

Read alongside Mabena v Letsoalo and Mabuza v Mbatha, the case confirms that the validity of a customary marriage depends on more than the payment of lobola, and that the agreement and participation of both families is an essential element of the marriage’s conclusion.

The case is also notable for the way it navigates the intersection of customary law, legislation, and the Constitution — recognising the legitimacy and practice of customary marriage while ensuring that the legal framework within which it operates is consistent with constitutional values of equality and dignity.

Personal reflection: This case first drew my attention because of the way it positions a private family dispute — about the recognition of a customary marriage — against the backdrop of Home Affairs, legislation, and the Constitution. The combination of customary practice, statutory interpretation, and constitutional law in a single set of proceedings reflects the complexity of South African law as a pluralist legal system, and offers a compelling illustration of how these different sources of law interact in practice.

Bibliography

Legislation:

Recognition of Customary Marriages Act 120 of 1998
Constitution of the Republic of South Africa, 1996

Cases: