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The battle over a deceased man’s estate got heated as two women claimed to be married to him in customary and civil laws, respectively.
The appellant, who was in a civil marriage with the deceased, approached the Supreme Court of Appeal (SCA) after the lower courts declared the respondent the deceased’s customary wife.
The customary marriage was said to have occurred on 13 March 1979, and the civil marriage followed on 23 December 1996.
The dispute in the court centred on whether the respondent had proven the customary marriage of her and the deceased. The deceased passed away on 20 February 2017.
Following the deceased’s death, the respondent launched an application in the High Court in Polokwane seeking an order that she and the deceased, during his lifetime and until his death, were customary law spouses married in community of property.
She also wanted an order that the civil marriage between the appellant and the deceased, while he was alive, was null and void.
The respondent and the deceased became involved in 1978 while she was still at school. She became pregnant in 1978, and her family discovered the pregnancy in January 1979.
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The respondent said the deceased did not hesitate to admit he was the father and accepted the responsibility of marrying her.
Her paternal aunt sent her to the deceased’s family’s home. There she was joined by a few young girls who would stay with her for a few days to help her cook, clean and prepare food.
The deceased’s family negotiated an amount of R600 as lobola and paid it to her father.
The respondent said she and the deceased registered their customary marriage at the Thohoyandou Magistrate’s Office in 1993.
She alleged that they were issued a registration certificate, which was lost, and she could not locate it. She said that she approached the Department of Home Affairs in Makwarela to obtain a duplicate, where she was informed that such information was with the magistrate’s office. However, they also could not provide her with such a certificate.
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After registering for customary marriage, the respondent said she applied for a Republic of Venda ID document. It was issued to her on 11 March 1993, reflecting the deceased’s surname. As proof of this, she attached the ID document and alleged that it indicated that she and the deceased were married in terms of customary law on 13 March 1979.
However, there was no mention in the ID document of the parties being married according to customary law.
The respondent’s first child was born in 1979, and she claimed it was the deceased’s.
In 1982, the respondent fell pregnant again and once more claimed that it was the deceased’s. She claimed the deceased maintained their children.
The third child was born in January 1995.
However, according to relatives of the deceased, he denied paternity of all the children. In 2004, the two oldest children of the respondent approached the maintenance court. They were claiming maintenance from the deceased for tertiary education.
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The deceased disputed that he was their father.
Paternity tests were ordered, and the DNA test confirmed that the deceased was not the father of the two children.
The respondent did not disclose this information to the court in her application and insisted the deceased fathered her children.
She never claimed maintenance for the child born in 1995.
The respondent alleges that in December 1996, she discovered that the deceased was romantically involved with the appellant.
She then left the deceased’s home and went to her parental home. According to her, meetings were held between the two families. The matter could not be resolved.
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The respondent went to stay with the deceased’s mother for 10 years without the deceased. This was until she moved to her own house, alone with her children.
The appellant was married to the deceased for 20 years, since 1996 and during that period, the respondent did not challenge the marriage.
She attached a certified copy of the marriage certificate. The appellant and the deceased had four children, and the appellant attached copies of their birth certificates.
Regarding the respondent being brought to stay with the deceased’s family, members of the deceased’s family confirmed that the respondent only stayed for a few days and then went back home as the deceased insisted that he was not responsible for her last pregnancy.
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The appellant began staying with the deceased after the deceased’s family had started lobola negotiations with her family in 1996.
The appellant alleged that the immovable property purchased by the deceased was his alone and that the respondent played no part in the purchase.
The matter was heard on 23 August 2024, and the judgment was handed down on 10 February 2025.
In the majority judgment, it was found that the respondent failed to refer to even one person who confirmed her allegations about the traditional ceremony and other customs having been observed and a customary marriage having been concluded.
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She also did not show that the traditional rituals and celebrations occurred in terms of Venda law.
The court said the respondent relied on an uncertified copy of an ID to prove her customary marriage to the deceased.
It was held that her ID document was not a marriage certificate.
She also failed to produce a certificate of marriage or evidence that the required customs for the marriage were observed.
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