The Complexity of Proving the Existence of a Prior Customary Marriage
In the case of S.B v B.B and Another (6014/2022) [2024] ZAECMHC 45 (4 June 2024), the court grappled with the intricate task of determining the existence of a prior customary marriage between the applicant and a woman named L.S. The applicant, S.B., sought to have his civil marriage with the first respondent, B.B., declared null and void on the basis that he had previously entered into a customary marriage with L.S.
The case highlights the challenges associated with proving the existence of a customary marriage, particularly when key witnesses are deceased or unavailable. The applicant alleged that his maternal grandfather and other emissaries had negotiated and concluded his customary marriage to L.S. in December 2010. However, all the individuals who played significant roles in the alleged customary marriage were either deceased or their whereabouts unknown.
The absence of corroborating evidence from these key witnesses made it difficult for the court to verify the applicant’s claims. The court noted that the applicant’s version of events was curious and mind-boggling, especially since the issue of the prior customary marriage was only raised during divorce proceedings with the first respondent, when the proprietary consequences of their civil marriage were in dispute.
Furthermore, the court found it concerning that the alleged first spouse, L.S., was not aware of the proceedings and that the applicant did not seem to be troubled by her absence. This raised questions about the credibility of the applicant’s assertions regarding the prior customary marriage.
The case highlights the importance of having reliable evidence to support claims of a customary marriage, particularly when such claims are made in the context of a subsequent civil marriage. The court emphasised that the onus lies on the party alleging the existence of a customary marriage to provide sufficient proof to substantiate their claim.
In the absence of credible evidence from key witnesses or the alleged first spouse, the court was left with the difficult task of assessing the veracity of the applicant’s version based on the available evidence. This included considering the respondent’s counter-arguments, such as the lack of knowledge of the prior marriage among family members and the applicant’s failure to mention L.S. as his previous wife during their marriage.
The complexity of proving the existence of a prior customary marriage was further compounded by the fact that customary marriages often involve various rituals, traditions, and ceremonies that may not be well-documented or easily verifiable. The court must carefully evaluate the available evidence and consider the cultural context in which the alleged customary marriage took place.
In light of these challenges, the court recognised the need for a thorough examination of the evidence through oral testimony. By invoking Rule 6(5)(g) of the Uniform Rules of Court, the court referred the matter to oral evidence, allowing for the cross-examination of witnesses and the presentation of further evidence to assist in resolving the factual dispute.
The decision to refer the matter to oral evidence highlights the court’s commitment to ensuring a just and expeditious resolution of the case, as emphasised in MEC for Health: Eastern Cape v Mbodla (449/2013) [2014] ZASCA 60 (6 May 2014). The court acknowledged that where there are reasonable grounds for doubting the correctness of the allegations made by the applicant, oral evidence can be crucial in ascertaining the truth.
The Importance of Reliable Evidence in Customary Marriage Disputes
The court emphasised the crucial role of reliable evidence in resolving disputes related to the existence of customary marriages. The case revolved around the applicant’s claim that he had entered into a customary marriage with L.S. before his civil marriage to the first respondent, B.B. However, the court found several issues with the evidence presented by the applicant, which raised doubts about the credibility of his assertions.
One of the key concerns highlighted by the court was the absence of evidence from the alleged first spouse, L.S. The applicant claimed that he had married L.S. in December 2010, but he was unable to provide any information about her current whereabouts or involve her in the proceedings. The court found it worrying that the applicant did not seem troubled by the lack of participation from L.S., especially given the significance of the alleged prior customary marriage.
Furthermore, the court considered the evidence provided by the first respondent, B.B., who vehemently disputed the existence of any prior marriage. The respondent highlighted that during their lobola negotiations and the Utsiki ceremony, the applicant’s emissaries and family members expressly stated that she was his first wife. The respondent also pointed out that throughout their marriage, the applicant had never mentioned L.S. as his previous wife, and his family members had welcomed her as the first wife at their homestead.
The court also took into account the confirmatory affidavits provided by the Traditional Leader (Chief) of the applicant’s area and a long-standing neighbour at the applicant’s ancestral homestead. Both individuals denied the existence of any marriage other than the one between the applicant and the first respondent. This contradictory evidence further undermined the reliability of the applicant’s claims.
The Potential Consequences of Failing to Disclose a Prior Customary Marriage
The failure to disclose a prior customary marriage can have significant legal and personal ramifications for all parties involved. Firstly, it can lead to the invalidity of a subsequent civil marriage. If the court finds that a valid customary marriage existed prior to the conclusion of the civil marriage, the latter may be declared null and void. This can have far-reaching consequences for the parties involved, particularly in terms of the division of assets and the legal status of their relationship.
Secondly, the failure to disclose a prior customary marriage can impact the proprietary rights of the parties involved. In South Africa, the Recognition of Customary Marriages Act 120 of 1998 recognises customary marriages as valid and grants them legal protection. This means that the proprietary consequences of a customary marriage must be considered when determining the division of assets in the event of a divorce or the dissolution of a subsequent civil marriage.
The applicant’s failure to disclose the alleged prior customary marriage with L.S. raised questions about his motives and the timing of his claim. The court noted that the applicant only raised the issue of the prior customary marriage during the divorce proceedings with the first respondent, when the proprietary consequences of their civil marriage were in dispute. This led the court to question whether the applicant was attempting to avoid the legal consequences of the divorce by seeking to have the civil marriage declared null and void.
The potential consequences of failing to disclose a prior customary marriage extend beyond the legal realm and can have significant personal and emotional impacts on the parties involved. The first respondent in this case, B.B., expressed her surprise and disbelief at the applicant’s claim of a prior customary marriage. She argued that throughout their marriage, the applicant had never mentioned L.S. as his previous wife, and his family members had welcomed her as the first wife at their homestead. The revelation of a prior customary marriage can lead to feelings of betrayal, distrust, and emotional distress for the parties involved.
Furthermore, the failure to disclose a prior customary marriage can have implications for the rights and interests of the alleged first spouse. In this case, the court noted with concern that L.S. was not aware of the proceedings and that the applicant did not seem troubled by her absence. The lack of involvement of the alleged first spouse raises questions about the protection of their rights and interests, particularly if a valid customary marriage is found to exist.
The case serves as a reminder of the importance of full disclosure and honesty in matters related to customary marriages. Parties entering into a civil marriage have a legal and moral obligation to disclose the existence of any prior customary marriages. Failure to do so can lead to significant legal complications, emotional distress, and the potential infringement of the rights and interests of all parties involved.
Invoking Rule 6(5)(g) of the Uniform Rules of Court: Referring the Matter to Oral Evidence
Faced with conflicting evidence and the absence of key witnesses, the court invoked Rule 6(5)(g) of the Uniform Rules of Court to refer the matter to oral evidence. This decision highlights the court’s commitment to ensuring a just and expeditious resolution of the factual dispute.
Rule 6(5)(g) of the Uniform Rules of Court provides the court with broad powers to refer a matter to oral evidence when an application cannot be properly decided on affidavit. The rule states:
“Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as it deems fit with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the afore going, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for such deponent or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.”
In this context the court found that the applicant’s version of events was curious and mind-boggling, especially since the issue of the prior customary marriage was only raised during divorce proceedings with the first respondent, when the proprietary consequences of their civil marriage were in dispute. The court also noted the absence of key witnesses who could corroborate the applicant’s claims and the contradictory evidence provided by the first respondent and other parties.
Faced with these challenges, the court recognised that the matter could not be properly decided on affidavit alone and referred to the Mbodla case, where the Supreme Court of Appeal emphasised, the broad powers vested in the court under Rule 6(5)(g) to ensure that matters are decided justly and expeditiously. The court acknowledged that where there were reasonable grounds for doubting the correctness of the allegations made by the applicant, oral evidence would be crucial in resolving the factual dispute.
By invoking Rule 6(5)(g) and referring the matter to oral evidence, the court demonstrated its commitment to ensuring a thorough examination of the available evidence and allowing for the testing of the applicant’s version through cross-examination. The referral to oral evidence enables the court to hear testimony from witnesses, assess their credibility, and gain a more comprehensive understanding of the factual situation.
Furthermore, the court’s invocation of Rule 6(5)(g) demonstrated its willingness to exercise its discretion to ensure a just and expeditious resolution of the matter. The court recognised that the resolution of the factual dispute was critical to both parties, particularly the first respondent who could be prejudiced by the applicant’s new revelations. By referring the matter to oral evidence, the court sought to ensure that all relevant evidence was considered and that the parties had a fair opportunity to present their case.
Questions and Answers
Q: What is the main issue in the case of S.B. v B.B. and Another (6014/2022) [2024] ZAECMHC 1 (04 June 2024)? A: The main issue in the case is whether there was ever a marriage relationship between the applicant, S.B., and a woman named L.S. before he married the first respondent, B.B.
Q: Why did the applicant, S.B., seek to have his civil marriage with the first respondent, B.B., declared null and void? A: The applicant sought to have his civil marriage with the first respondent declared null and void on the basis that he had previously entered into a customary marriage with L.S.
Q: When did the applicant raise the issue of the alleged prior customary marriage with L.S.? A: The applicant only raised the issue of the alleged prior customary marriage with L.S. during the divorce proceedings with the first respondent, when the proprietary consequences of their civil marriage were in dispute.
Q: What were some of the concerns raised by the court regarding the evidence presented by the applicant? A: The court noted that all the individuals who allegedly played significant roles in the customary marriage between the applicant and L.S. were either deceased or their names were not mentioned at all. The court also found it concerning that the alleged first spouse, L.S., was not aware of the proceedings and that the applicant did not seem troubled by her absence.
Q: What evidence did the first respondent, B.B., provide to dispute the existence of a prior customary marriage? A: The first respondent highlighted that during their lobola negotiations and the Utsiki ceremony, the applicant’s emissaries and family members expressly stated that she was his first wife. She also provided confirmatory affidavits from the Traditional Leader (Chief) of the applicant’s area and a long-standing neighbour at the applicant’s ancestral homestead, both of whom denied the existence of any marriage other than the one between the applicant and the first respondent.
Q: What did the court decide to do in light of the conflicting evidence and the absence of key witnesses? A: Faced with conflicting evidence and the absence of key witnesses, the court invoked Rule 6(5)(g) of the Uniform Rules of Court to refer the matter to oral evidence.
Q: What does Rule 6(5)(g) of the Uniform Rules of Court provide? A: Rule 6(5)(g) provides the court with broad powers to refer a matter to oral evidence when an application cannot be properly decided on affidavit. It allows the court to direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact.
Q: What case did the court refer to when discussing the broad powers vested in the court under Rule 6(5)(g)? A: The court referred to the case of MEC for Health: Eastern Cape v Mbodla (449/2013) [2014] ZASCA 60 (6 May 2014), where the Supreme Court of Appeal emphasised the broad powers vested in the court under Rule 6(5)(g) to ensure that matters are decided justly and expeditiously.
Q: Why did the court find it necessary to refer the matter to oral evidence in this case? A: The court found that the applicant’s version of events was curious and mind-boggling, and there were reasonable grounds for doubting the correctness of the allegations made by the applicant. The court recognised that oral evidence could be crucial in resolving the factual dispute.
Q: What are some of the potential consequences of failing to disclose a prior customary marriage? A: Failing to disclose a prior customary marriage can lead to the invalidity of a subsequent civil marriage, impact the proprietary rights of the parties involved, and cause emotional distress and betrayal. It can also have implications for the rights and interests of the alleged first spouse.
Q: Why is it important for parties entering into a civil marriage to disclose any prior customary marriages? A: Parties entering into a civil marriage have a legal and moral obligation to disclose the existence of any prior customary marriages to ensure that the rights and interests of all parties involved are protected and to avoid the potential legal and personal consequences that may arise from non-disclosure.
Q: What did the court hope to achieve by referring the matter to oral evidence? A: By referring the matter to oral evidence, the court sought to ensure a thorough examination of the available evidence, allow for the testing of the applicant’s version through cross-examination, and involve all relevant parties in the proceedings. This approach aims to ensure that the court can make an informed decision based on the most reliable and credible evidence available.
Q: How does the referral to oral evidence safeguard the rights and interests of all parties involved? A: The referral to oral evidence safeguards the rights and interests of all parties involved by providing them with a fair opportunity to present their case, cross-examine witnesses, and have their evidence considered by the court. It also allows for the possible involvement of the alleged first spouse, L.S., whose testimony could shed light on the existence or non-existence of the alleged prior customary marriage.
Q: What does the case of S.B. v B.B. and Another (6014/2022) [2024] ZAECMHC 1 (04 June 2024) highlight about the court’s approach to resolving factual disputes in customary marriage cases? A: The case highlights the court’s commitment to ensuring a just and expeditious resolution of factual disputes in customary marriage cases. It demonstrates the court’s willingness to exercise its broad powers under Rule 6(5)(g) to refer matters to oral evidence when the evidence is in doubt or not fully ventilated, in order to make an informed decision based on the most reliable and credible evidence available.
Q: What can we learn from this case about the importance of full disclosure and honesty in matters related to customary marriages? A: The case serves as a reminder of the importance of full disclosure and honesty in matters related to customary marriages. It highlights the potential legal and personal consequences that may arise from failing to disclose a prior customary marriage and emphasises the need for parties entering into a civil marriage to be forthcoming about the existence of any prior customary marriages to protect the rights and interests of all parties involved.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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