Lina Sesi Nhlapo went to court to have her customary marriage to the late Thomas Jack Mahlangu declared valid after the home affairs department refused to register the marriage due to the existence of her husband’s civil marriage to another woman, Lillian Mahlangu.
Nhlapo argued that her husband’s civil and customary marriage to a second wife was invalid because she had not been aware of the marriage and had not agreed to it in terms of Ndebele customary union laws.
The second wife opposed the application, saying her husband had never told her he was already married.
She claimed her husband’s brother Jacob and her uncle were witnesses to the part payment of lobola but her late husband’s family submitted he had no brother named Jacob.
Their relationship started in 2005, but ended in 2007 because she could not bear children.
Nhlapo said her late husband’s family had never met the second wife and was not aware of her existence. She did not even attend his funeral to pay her respects.
She submitted that she was her husband’s only legal customary spouse even though the marriage had never been registered. They had four children together.
According to Nhlapo there had been customary marriage negotiations between the two families and the last payment of the agreed 16 heads of cattle as lobola was made in 2000 in terms of their agreement.
The two families had a big handing-over celebration through the ukuvunula ritual in 1986, cows were slaughtered and her family handed her over to her husband’s family. She still lived with her mother-in-law.
Judge Daisy Molefe ruled in favour of the first wife, finding that the failure to register the marriage did not affect its validity and that the marriage had been valid.
She set aside the second marriage, finding that Mahlangu’s civil marriage to a second woman had contravened the Recognition of Customary Marriages Act, which clearly provided that no spouse in a customary marriage could enter into a marriage under the Marriage Act while the customary marriage still existed.
A valid Ndebele customary marriage could also not be concluded without the active participation of the first wife, she added.
Molefe said the man’s second customary marriage had not been celebrated in accordance with customary law, his new wife was not handed over to his family through a traditional ceremony and the customary marriage therefore also did not comply with the Customary Marriages Act.
She said it was very strange that the second wife was not curious to meet her husband’s family during their marriage and did not even attend his funeral.
The judge declared that the first wife’s customary marriage was valid and declared the second civil marriage null and void.
She instructed the Master of the High Court to withdraw the second wife’s appointment to handle her late husband’s estate and ordered her to disclose all funds she had collected and pay it over into the trust account of the first wife’s attorney.
The second wife was also ordered to pay the legal costs of the court battle.