SCA's Landmark Decision Exposes Vulnerabilities OF Unregistered Customary Marriages

When a woman has to prove, years later, that her own marriage existed, the law’s distance from lived reality becomes painfully clear.

The judgment is important because it shows the ongoing tension between the formal requirements set by law and the traditional practices that many families continue to follow.

It also illustrates the real challenges that spouses, often women, face when trying to claim rights from customary marriages that may not have been officially registered but are nonetheless valid in practice.

Two wives, one customary, one civil

The first respondent, Azwihangwisi Francinah Tshivhase, alleged that she entered into a customary marriage with the deceased, Ndavheleseni Lazarus Tshivhase, on 24 December 1966. She sought to have a later civil marriage concluded between the deceased and the appellant, Elizabeth Thimbiluni Tshivhase, declared void ab initio.

If successful, this would also invalidate the joint will made by the appellant and the deceased, which had excluded the respondent and her children with the deceased as heirs.

The appellant disputed the existence of the customary marriage and relied on the civil marriage solemnised in 1977. She further relied on the fact that the respondent could not substantiate the existence of the marriage via any documentation, marriage certificate nor confirmatory affidavits.

In order to substantiate her claim, the first respondent used a page from her identity document, which was issued by the Republic of Venda (as it was known then). This is what the respondent contended was proof of her customary marriage.

This matter was initially heard at the High Court where the civil marriage was declared void ab initio and the joint will was set aside.

Was the customary marriage valid?

The SCA was required to determine whether the respondent had established the existence of a valid customary marriage with the deceased; whether an entry in her identity document, reflecting her ID number, her forenames, maiden name, and married surname (Tshivase), together with the deceased’s first name but excluding his ID number and the date of marriage, could serve as proof of registration in terms of section 4(8) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA); and, if the customary marriage was proven, whether the subsequent civil marriage contracted by the deceased was void for non-compliance with section 22 of the Black Administration Act 38 of 1927 and section 10 of the RCMA.

The SCA further had to consider whether the joint will executed by the deceased and his civil spouse could be set aside in the absence of the joinder of its beneficiaries.

Entry in an identity document not sufficient

The SCA held that the entry in the respondent’s identity document was not sufficient to prove the existence of a customary marriage once its validity was disputed. Unlike a marriage certificate, an identity document only records information and, in this case, did not indicate that the union was a customary marriage.

The Appeal Court emphasised that establishing a customary marriage requires proof of both customary law practices, such as negotiations, lobola, and related rituals, and compliance with the statutory requirements of the RCMA.

The respondent failed to provide any such evidence, including witness testimony from those involved in the negotiations or notes taken by the families, and therefore could not substantiate the existence of a customary marriage.

As a result, the civil marriage between the appellant and the deceased remained valid, supported by a proper marriage certificate. Consequently, the joint will executed by the appellant and the deceased could not be set aside.

The SCA also noted that the beneficiaries of the will had a direct and substantial interest in the proceedings. They shouldn’t have been excluded from the litigation, and the High Court had erred in dismissing the objection of non-joinder.

Outcome of the appeal

The SCA upheld the appeal, set aside the High Court’s order, and dismissed the respondents’ application with costs.

This judgment is significant for several reasons: The case clarifies that an identity document is not equivalent to a marriage certificate for purposes of section 4(8) of the RCMA. Claimants must provide sufficient evidence of customary requirements and compliance with statutory formalities.

Secondly, the decision demonstrates how the failure to prove a prior customary marriage preserves the validity of a subsequent civil marriage, with far-reaching implications for succession.

In relation to the joining of interested parties to litigation, the court reinforced that parties with a direct interest in the outcome, such as beneficiaries under a contested will, must be joined to proceedings, failing which the litigation is procedurally defective.

The broader implication of the case exposes ongoing vulnerabilities faced by women in customary marriages who may lack access to formal registration or documentation.

On the contrary it further gives clarity and guidance on the conclusion and validity of customary marriages and their registration, that parties who conclude these types of marriages need to use the requirements in the RCMA as a guidance to ensure the validity of their marriages.

Read the full judgment here

Conclusion

This case illustrates the critical importance of evidentiary rigour in disputes concerning customary marriages. It also highlights how issues of marriage, custom, and succession remain deeply intertwined in South African law.

For practitioners, the case underscores the need to ensure both compliance with the RCMA and procedural safeguards such as joinder.

For the broader public, it serves as a cautionary tale: recognition of a marriage, whether customary or civil, requires more than an entry in an identity document, regardless of when it was concluded.

It shows that not registering a customary marriage creates serious risks, particularly for women, who later carry a heavy burden to prove a marriage everyone once accepted.

Registration is thereafter essential legal protection, turning social recognition into secure, enforceable rights and helping to prevent future disputes over status, property and inheritance.