The Gauteng High Court, Pretoria ruled in favour of a widow that the subsequent death of her husband should not be a bar to the registration of her marriage to him.
The husband died before the couple could register their marriage with the Department of Home Affairs. When the wife attempted to register the marriage, the department refused.
She subsequently turned to court for an order for the posthumous registration of her customary marriage.
The court was tasked with the issue of whether the death of the deceased before registration of the customary marriage invalidates the customary marriage.
The widow told the court that the deceased proposed to her in 1991. She agreed to this and in November the following year, a meeting was held at her parental home. Both families were represented and participated in the lobola negotiations.
The families agreed to, among others, an amount of R4 000, which included eight cows valued at R500 each, a jacket for the bride’s father and blankets.
The amount was paid and the gifts were handed over.
She said the families concluded the lobola letter and they celebrated the union. She was welcomed by the family of the deceased as their daughter-in-law.
The couple were blessed with two children born out of the marriage. They stayed together until her husband’s death in 2022.
According to the widow she was not aware that she was to register the customary marriage. She attempted to register the estate of her late husband at the Master’s offices in Pretoria but she was denied because did not possess a marriage certificate.
It was argued on her behalf that her union was concluded in terms of customary law practices and, as such, should be recognised and registered despite the death of her husband.
Acting Judge ENB Khwinana said the evidence before the court suggested that all the requirements relating to the Recognition of Customary Marriages Act 120 of 1998 were fulfilled.
But, the judge said, the Act is silent on the effect of death of either party before the registration of a customary marriage.
He added that the legislature intended to recognise and validate customary marriages in the eyes of the law, granting them equal status with civil marriages. Thus the legislature allows anyone to approach home affairs provided they can prove the existence of the marriage.
“It must be highlighted that the purpose of registration is to provide formal recognition and documentation of what is, in essence, an already valid marriage.”
“To deny the applicant this recognition, simply because her husband passed away before the administrative act of registration, would not only be punitive but would also undermine the very essence and objectives of the Act,” the judge said.
He said this case serves as a salient reminder to all government officials that they must strictly adhere to the laws and regulations of this country without prejudice or bias.
“The law exists to serve and protect all its citizens equally, without any differentiation. It is of paramount importance that officials discharge their duties impartially and ensure that the rights and dignity of civilians are always upheld.”
Judge Khwinana added that disparate treatment not only erodes public trust but is antithetical to the principles of justice, equality and fairness enshrined in our Constitution.
“Government officials are strongly warned against such behaviour, and it is hoped that lessons are drawn from this matter to prevent similar future oversights.”
The judge said it is also encumbered upon the Master’s office to assist the applicants who are faced with this type of situation.
While Home Affairs simply said it would abide by the court’s judgment, the judge said one would anticipate a harmonious collaboration between the department and the Department of Justice and Constitutional Development.
“If such synergy is lacking, it is imperative to cultivate it to better assist individuals, such as the applicant.”
The judge said the ball was in the court of the departments to register the marriage, rather than adopting a wait-and-see approach for a court outcome, dragging their feet while holding all the cards needed to assist the applicant.
This not only jeopardises the rights of women and children but also undermines the integrity and credibility of both departments.
“I must implore upon the ministers to ensure the establishment of a standardised approach, aligning with the laws and regulations of our country to prevent potential future discrepancies or injustices.”
The judge also suggested that a standardised document that can be utilised in lobolo negotiations, regardless of whether they occur before, during or after the negotiations, may also be helpful in these matters.
“This would provide valuable assistance to African communities that engage in customary marriages exclusively. The document can also provide for Home Affairs to give a date for registration and the parties can after having finalised the process, proceed to the department’s offices to register similar to what is being done by the parties entering into a civil union.”
While urging the minister of Home Affairs to consider this route, the judge ordered the department to register this marriage.