The Factual Matrix: Competing Marital Claims and the Legacy of Customary Law
At the heart of Moloi v Nkosi and Others (1713/2025) [2025] ZAFSHC 153 (15 May 2025) lies a bitter dispute over the recognition of two rival marriages to the late Mthandeni Elphas Nkosi. The applicant, Ms Anna Moloi, sought an order declaring her customary marriage to the deceased valid under section 2(1) of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), with ancillary relief aimed at registering the marriage and securing her appointment as executrix of the deceased’s estate. In direct opposition, the first respondent, Ms Thabisile Nkosi (née Makhubu), relied on a civil marriage concluded with the deceased on 21 December 1982 in community of property and had already been appointed executrix based on that registration.
According to Ms Moloi, her relationship with the deceased dated back to 1978, culminating in a customary marriage on 11 April 1981 at her family home in Thabana-Tsoana Village, QwaQwa. She contended that the requisite elements for a valid customary marriage—consent of the parties, lobolo payment, and the formal handing over of the bride—had all been fulfilled. In support, she produced affidavits from family members and traditional leaders, including the local chief, attesting to the celebration and rites that accompanied the marriage.
However, Ms Moloi’s version was complicated by two critical developments. First, the customary marriage had never been registered, a fact that only came to light following the deceased’s passing on 6 August 2024. Second, and more fatally for her claim, the deceased had concluded a civil marriage with Ms Nkosi during the subsistence of the alleged customary marriage. The Department of Home Affairs refused to register Ms Moloi’s marriage on this basis, directing her to seek judicial relief.
Ms Nkosi denied the existence of any customary marriage between the deceased and the applicant. She presented documentary proof of the civil marriage and asserted that the deceased had introduced Ms Moloi merely as a girlfriend and mother of some of his children. She further claimed that no lobolo had ever been paid for Ms Moloi and denied that any traditional celebration or handing over had occurred. Supporting affidavits from the deceased’s aunt and other relatives were annexed to bolster her version.
Both unions produced children—four born of the relationship between the deceased and the applicant, and six from the civil union with the respondent. The deceased’s will, signed a day before his death, left his share of the joint estate to two sons, one from each woman. Notably, the deceased and the applicant cohabited at a property in Germiston, while the respondent resided with her children in KwaZulu-Natal, where the deceased was buried following arrangements made by the respondent and her children.
This conflict of narratives—one grounded in customary law and the other in civil law—framed the central legal question: whether a valid customary marriage predated the civil union, and if so, what legal effect it had on the deceased’s estate and the applicant’s status as spouse. The parties’ versions were diametrically opposed, with affidavits from both sides’ relatives contradicting one another, further entrenching the factual dispute.
Procedural Pitfalls: The Unsuitability of Motion Proceedings in Customary Marriage Disputes
The applicant’s decision to approach the court by way of motion proceedings was a central procedural miscalculation. In matters involving the existence of an alleged customary marriage—particularly where one party relies on oral tradition, undocumented rites, and competing affidavits from family members—proceeding by motion invites inevitable procedural limitations. As the court underscored, this case was saturated with material factual disputes, many of which were incapable of resolution on paper alone.
Once the respondents filed an answering affidavit denying key elements of the applicant’s claim—such as the payment of lobolo, the occurrence of traditional celebrations, and the existence of a marriage—the dispute transcended the realm of legal interpretation and entered that of contested fact. Despite this, the applicant did not seek a referral to oral evidence or a trial. On the contrary, she maintained during argument that proceeding on affidavit would suffice, even going so far as to deny the existence of genuine factual disputes. This procedural stance, while perhaps tactical, proved fatal.
The judgment observed that disputes concerning the validity of customary marriages, particularly those concluded before the enactment of the Recognition of Customary Marriages Act 120 of 1998, require careful evidentiary ventilation. Without the opportunity to cross-examine witnesses or assess credibility, the court was left to apply the Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A) rule, effectively favouring the respondent’s version unless it was shown to be inherently untenable. The court further noted that customary marriage disputes have, in multiple decisions, been declared unsuitable for resolution through motion proceedings—yet this procedural caution was not heeded by the applicant.
This misstep was compounded by the applicant’s own acknowledgement that the lobolo letter had been lost and that no documentary registration of the alleged marriage existed. These evidentiary deficiencies, coupled with the applicant’s choice of forum, prevented the court from making any meaningful findings on whether a valid customary marriage had existed. In effect, the applicant bore the burden of proof but opted for a mechanism ill-suited to discharging it.
The Role of the Plascon-Evans Rule in Determining Disputed Facts
The court’s application of the Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A) rule was decisive in the outcome. This principle holds that where final relief is sought on motion and material disputes of fact arise, the version of the respondent prevails unless the denials are palpably implausible, far-fetched, or clearly untenable. In this case, the court found no basis to reject the respondent’s version.
The answering affidavit set out a coherent and substantiated denial of the applicant’s claim, supported by affidavits from the deceased’s relatives. These statements contradicted the applicant’s narrative and raised serious doubts about the alleged marriage rites. Crucially, the respondent did not rest on bare denials; she provided specific allegations and contextualised facts regarding the deceased’s background, his family members’ knowledge, and their longstanding position that he had only one lawful spouse.
Citing Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA), the court reiterated that factual disputes cannot be avoided simply by relying on the strength of one’s own version. Where the respondent’s denials are not demonstrably false or illogical, the court is bound to accept them. It was in this light that the judge declined to accept the applicant’s affidavits as determinative and instead assessed the dispute within the confines of the Plascon-Evans framework.
The reliance on this rule also underscored the absence of any genuine challenge to the credibility of the respondent’s version. The applicant had not argued that the affidavits of the respondent’s witnesses were concocted or absurd. Instead, she relied on contested facts that required oral testing—something unavailable in motion proceedings. The court’s adherence to the established approach was both predictable and procedurally orthodox.
Judicial Conclusion: Evidentiary Failures and the Consequences of Procedural Choice
The court ultimately dismissed the application with costs on the punitive scale of attorney and client, a clear reflection of its view on the applicant’s conduct and the merits of the case. It held that, given the weight of the evidentiary shortcomings and the applicant’s refusal to seek referral to oral evidence, she had failed to discharge the onus required to obtain the declaratory relief sought.
Particularly damaging to the applicant’s case was the absence of documentary proof of the alleged customary marriage, the contradictory nature of affidavits presented in her support, and her failure to engage with or rebut the opposing affidavits in a manner that demonstrated their implausibility. The court considered the applicant’s election to persist with motion proceedings in the face of numerous factual disputes as fatal. It reinforced the judicial expectation that parties bringing such claims must adopt the appropriate procedure, especially where the facts are not only contested but go to the heart of the relief sought.
The judgment highlighted that in cases involving the recognition of customary marriages—especially those concluded prior to the Recognition of Customary Marriages Act—courts require more than conflicting affidavits. What is needed is a credible evidentiary foundation supported by oral testimony where credibility is at stake. In proceeding without such an evidentiary strategy, the applicant placed herself outside the scope of effective judicial intervention.
The court’s rejection of the applicant’s version did not rest on a finding of dishonesty but rather on the inability to test or resolve material contradictions within the confines of motion proceedings. That failure, coupled with a procedural strategy that did not accommodate the complexity of the factual matrix, meant that the relief sought was untenable. The outcome is a clear reaffirmation of the principle that litigants cannot bypass evidentiary rigour by relying solely on affidavit evidence where the dispute is real, genuine, and material.
Questions and Answers
What statutory framework governed the applicant’s claim to recognition of a customary marriage?
The applicant relied on section 2(1) of the Recognition of Customary Marriages Act 120 of 1998, which provides for the legal recognition of customary marriages entered into in accordance with customary law.
What was the legal consequence of the civil marriage concluded between the deceased and the first respondent?
In terms of section 10(4) of the Recognition of Customary Marriages Act 120 of 1998, a spouse in a civil marriage is prohibited from concluding a subsequent customary marriage, rendering any such union invalid while the civil marriage subsists.
Did the court accept the applicant’s version regarding the customary marriage?
No, the court did not accept the applicant’s version because the dispute of fact was material and could not be resolved on affidavits alone. The matter fell to be decided on the respondent’s version under the Plascon-Evans rule.
Why did the court find motion proceedings inappropriate in this matter?
Because the existence of a valid customary marriage was contested and hinged on factual disputes that required oral evidence, motion proceedings were procedurally unsuitable for resolving the matter.
What is the Plascon-Evans rule and how did it apply in this case?
The rule, as established in Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A), provides that where material factual disputes exist in motion proceedings, the version of the respondent must be accepted unless it is clearly untenable. The court applied this rule to dismiss the applicant’s claims.
Was the applicant able to produce a lobolo letter to support her case?
No, the lobolo letter was allegedly lost, and the applicant relied instead on affidavits from relatives and a traditional leader, which the court found insufficient given the contradictory versions.
How did the respondent counter the applicant’s allegations of a customary marriage?
The respondent provided her civil marriage certificate, supported by affidavits from the deceased’s family members who denied knowledge of any other marriage and affirmed that the applicant was merely a girlfriend.
Did the applicant request that the matter be referred to oral evidence?
No, despite the clear factual disputes, the applicant maintained throughout that no referral was necessary and that she would not be in a better position at trial.
Did the court consider the respondent’s version of events implausible or fictitious?
No, the court found that the respondent’s version was not palpably implausible, far-fetched, or clearly untenable and thus it could not be rejected summarily.
What did the court say about the affidavits submitted by the applicant’s witnesses?
The court noted that the affidavits were contradicted by other affidavits from the deceased’s family and that the credibility of those deponents could not be tested in motion proceedings.
Was the deceased’s will relevant in the court’s determination?
The will was relevant only in contextual terms, as it confirmed that the deceased left assets and nominated an executor, but it did not assist the applicant in proving the existence of a valid marriage.
What was the role of the Master of the High Court in this case?
The Master had appointed the first respondent as executrix of the deceased estate on the basis of the civil marriage, and had rejected the applicant’s objection without reversing the appointment.
Could the existence of children born of the relationship support the applicant’s claim of marriage?
No, while the existence of children may be relevant in customary contexts, it is not determinative of the existence of a valid marriage under customary law or for purposes of the RCMA.
What did the court indicate about the approach to disputes concerning customary marriages in previous judgments?
The court referred to judgments such as Manwandu v Manwandu and Others and MM v MN, confirming that disputes of this nature are often fact-driven and ill-suited to motion proceedings.
What final order did the court make in the matter?
The court dismissed the application with costs on an attorney and client scale, holding that the applicant had not made out a case for the relief sought and had failed to overcome the evidentiary and procedural barriers inherent in her chosen approach.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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