Archive | January 2012

How to Prove the Existence of a Customary Marriage



The plaintiff sued the defendant for maintenance on behalf of herself and her minor son, Bongani, arising out of the death of Lethusang Johannes Azor (the deceased). She alleged that she was married to the deceased in terms of a customary union.

The only issue for the court to decide was whether or not the plaintiff was married to the deceased in terms of a customary union. The plaintiff called the evidence of her grandfather, Simon Nthejane and she also testified.

Mr Nthejane’s testified that the plaintiff had a relationship with the deceased and they had a child, Bongani. After the birth of Bongani Mr Nthejane approached the deceased’s grandmother who indicated that her family would like to take the plaintiff as their daughter-in-law. They agreed to enter into lobolo negotiations, it was agreed that they would give him 10 cows. This would be done at a later date.

A traditional ceremony, in accordance with Sotho culture, was held at the house of the deceased’s family where the plaintiff was made to wear traditional bridal clothes and a sheep was slaughtered as part of the ceremony to welcome her as a daughter-in -law of the Azor family. She thereafter took up residence in the home of the deceased. It was also Mr Nthejane’s evidence that although the lobolo had not yet been paid, it was his intention to claim it from the Azor family.

The plaintiff corroborated her grandfather’s evidence in all material respects.

The plaintiff then closed her case. The defendant closed its case without leading any evidence.

The legislation regulating customary marriages is the Recognition of Customary Marriages Act 120 of 1998 (the Act). Section 3(1) of the Act provides as follows:

“For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.”

The defendant did not dispute that the lobolo negotiations had been concluded or that the traditional ceremony and celebration took place.

However, the defendant contended that the plaintiff cannot claim to have entered into a customary union as the lobolo had not been paid.

From Mr Nthejane’s evidence, it is clear that the arrangement regarding lobolo was acceptable to both families.

The court referred to the matter of FANTI v BOTO AND OTHERS 2008(5) SA 405 (C) in which the essential requirements to prove the existence of a customary marriage is set out:

“All the authorities are in agreement that a valid customary marriage only comes about when the girl…has been formally transferred or handed over to her husband or his family. Once that is done severance of ties between her and her family occurs. Her acceptance by the groom’s family and her incorporation into his family are ordinarily accompanied by well-known extensive rituals and ceremonies involving both families [para 22]… The importance of these rituals and ceremonies is that they indicate in a rather concretely visible way that a customary marriage is being contracted and that lobolo has been paid and/or the arrangements regarding the payment of lobolo have been made and that such arrangements are acceptable to the two families – particularly the bride’s family”

The court held that the evidence tendered on behalf of the plaintiff established that:

“11.1 The plaintiff and the deceased were both above the age of 18 years at the time they were married;
11.2 Both the plaintiff and the deceased consented to be married to each other by customary law;
11.3 The marriage was properly negotiated, and celebrated in accordance with customary law. Although lobolo was not paid, adequate arrangements, which were accepted by both families, were made for payment of lobolo.
11.4 The plaintiff was “handed over” to the family of the deceased and took up residence in his family home after the ceremonies were performed.”

The court held that the Plaintiff had proven a valid customary marriage existed between herself and the deceased.

Conceding Merits – The Scope of Liability

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CONCEDING MERITS – THE SCOPE OF LIABILITY – Gusha v The Road Accident Fund (158/2011) [2011] SCA 242

Red yield sign

On 14 February 2006 the appellant was a passenger in a motor vehicle when it swerved off the road to avoid an oncoming unidentified motor vehicle being driven on the incorrect side of the road. The vehicle capsized and the appellant sustained severe injuries which left him paralysed.

The appellant sued the respondent for R6,7 million in damages alleging that the accident had been due to the negligence of the driver of the unidentified motor vehicle.
Before the issue of summons the parties came to an agreement wherein the respondent accepted “liability for the damages still to be proven, which the (appellant) has suffered as a result of the bodily injuries he sustained in the accident”.

At the trial of the matter the court was asked to decide whether, on a proper construction of the agreement, it was still open to the respondent to apply to amend its pleadings to allege that there should be an apportionment due to the appellant’s contributory negligence by not wearing a seatbelt.

The parties agreed to separate this issue for adjudication.

After hearing the parties, the high court concluded that the terms of the agreement did not prohibit the respondent to amend its plea. The appellant appealed to the SCA.

Both parties accepted that the concession of ‘the merits’ meant no more than that the driver of the unidentified motor vehicle had been negligent.

However, the respondent also accepted ‘liability for the damages, still to be proven, which the Plaintiff has suffered’.

The respondent argued that it had thereby intended to do no more than to accept liability for the damage caused by the negligence of the driver and, if the appellant had not been wearing a seatbelt and his failure to do so contributed to his injuries, the respondent had not undertaken to be held liable for that harm. The acceptance of ‘liability’ had therefore been limited.

The SCA rejected the respondent’s argument. In interpreting the agreement, the correct approach is to have regard to the normal grammatical meaning of the relevant words, the context and the background circumstances.

At the time the respondent was facing a claim for damages it had accepted that the driver of the unidentified motor vehicle had been negligent. The respondent clearly gave no thought at the time to the possibility of any contributory negligence on the part of the appellant. In these circumstances the respondent accepted liability without qualification.

The appeal succeeded with costs.

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The car wreck.
A doctor and a lawyer got into a car accident, on a small country road. The lawyer had figured that nobody else would be on the road, and had raced through a stop sign. The doctor, on a cross street, had no time to react and couldn’t have missed the lawyer if he had tried. Fortunately, neither driver was hurt.
The lawyer, seeing that the doctor was a little shaken up, helped him from his battered car and offered him a drink from a hip flask.The doctor accepted, took a deep drink, and handed the flask back to the lawyer. The lawyer held the flask for a minute or two, and gave it to the doctor again. The doctor took another swig. He again returned the flask to the lawyer, who closed it and put it away.
“Aren’t you going to have a drink yourself?” asked the doctor.
“Not now,” answered the lawyer. “I’ll have something after the police leave.”