The Facts: A Mother Excluded from Her Son’s Rite of Passage
In S.Z.Z v S.Z (2026/196397) [2026] ZAGPJHC 1099 (25 September 2026) a divorced mother approached the Gauteng Division, Johannesburg, on a semi-urgent basis for declaratory and interdictory relief against her former husband. The parties were divorced on 20 May 2016 under an order awarding them joint parental rights and responsibilities in respect of their minor children, with primary residence with the mother. Their second child, a son born on 16 June 2008, turned 18 on 16 June 2026, and it is common cause that he will undergo the traditional Xhosa rites of passage known as Umngeno and Umgidi in December 2026, ceremonies which, as Mudau J recorded, ‘mark a young man’s transition from childhood to adulthood and hold profound cultural, spiritual and familial significance’ (para [5]).
In January 2026 the mother learned that the father had begun planning the ceremonies. Her WhatsApp suggestions of 12 January 2026 drew the reply that he had not confirmed details with his family and would let her know when he needed assistance. On 18 February 2026 she received a ‘save the date’ message the father had sent to their son, prompting her to question how a date could be fixed before his final examination timetable was known. Her request of 23 March 2026 for a meeting to discuss her role produced nothing; her messages were read but ignored and her calls were no longer taken. A formal letter of demand from her attorneys on 23 July 2026, requiring confirmation of her involvement by 30 July 2026, was met with silence, and the application was launched on 17 August 2026.
The father opposed on three broad grounds: that the relief was incompetent because the son is now a major and no longer subject to parental responsibilities and rights, that the application was not urgent and any urgency was self-created, and that the mother has no right to participate in the planning of the ceremony, her place being confined to ceremonial recognition as iZibazana. The significance of the family’s recent history would prove decisive: as recently as December 2025 the mother had performed the full range of duties expected of a mother at the Imbeleko ceremony of the parties’ daughter, and the family elders on whom the father relied confirmed without reservation that it would be wrong, offending both law and custom, for any ritual to be performed in respect of a child of the mother’s without her knowledge and active participation (para [24]).
Urgency and the Majority Point: No Intrinsic Magic in the Age of 18
On urgency, the court applied the settled framework of rule 6(12) of the Uniform Rules of Court. Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another 1977 (4) SA 135 (W) establishes that ‘mere lip service’ to the requirements of the subrule will not suffice, and East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2011] ZAGPJHC 196 refined the test: the applicant must explicitly set out the circumstances rendering the matter urgent and, more importantly, the reasons why substantial redress cannot be obtained at a hearing in due course.
The court also drew on Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) and on the Constitutional Court’s holding in SA Informal Traders Forum v City of Johannesburg [2014] ZACC 8; 2014 (6) BCLR 726 (CC); 2014 (4) SA 371 (CC) that a delay caused by good-faith engagement does not amount to self-created urgency, it being ‘only prudent and salutary that the applicants first sought to engage the City before they rushed off to Court’.
Measured against these principles the mother succeeded comfortably: the ceremonies require planning finalised well in advance, preparations were already under way with an event planner appointed, and a hearing in the normal motion court cycle would likely occur in the first term of 2027, after the ceremony had passed, rendering the relief moot. Her seven months of engagement, ignored messages and an unanswered demand letter reflected ‘the ordinary sequence of engagement, demand and, only then, litigation’ (para [16]), and the departure from the ordinary rules, on three weeks’ notice with a full answering affidavit filed, sat at the ‘lower, more modest end’ of the Luna Meubel ascending scale.
The father’s central point in limine, that the son’s majority extinguished every right the mother had, was dismantled on several independent grounds.
First, the exclusionary conduct commenced in January 2026 and persisted until August 2026, and for the greater part of that period the son was still a minor. Section 18 of the Children’s Act 38 of 2005 confers on a co-holder of parental responsibilities and rights the responsibility and right to care for the child and to contribute to the child’s upbringing and development, and section 31 obliges a co-holder, before taking any decision likely to significantly change or adversely affect a child’s living conditions, education or personal relations with a parent or family member, to give due consideration to the views of the other co-holder. The exclusion was therefore a breach of duties owed when the conduct occurred, and the father could not ‘escape accountability for conduct that was unlawful when it occurred simply by pointing, after the fact, to [the child’s] subsequent attainment of majority’, as if ‘the child’s eighteenth birthday will retrospectively sanitise that conduct’ (para [21]).
Secondly, the court invoked Z v Z [2022] ZASCA 113; 2022 (5) SA 451 (SCA), in which the SCA held that an interpretation of the law forcing a school-going or dependent young adult to sue their own parent creates an absurdity and violates constitutional rights, and reasoned that although Z v Z addressed maintenance, its core constitutional logic applied directly: forcing a school-going youth to institute proceedings against his father to secure his mother’s rightful place in his initiation ceremonies would create the exact absurdity the SCA sought to avoid.
The court fortified this with Centre for Child Law v Minister for Justice and Constitutional Development and Others [2009] ZACC 18; 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC), where it was stated that ‘there is no intrinsic magic in the age of 18, except that in many contexts it has been accepted as marking the transition from childhood to adulthood’, and with Centre for Child Law and Others v Media 24 Limited and Others [2019] ZACC 46; 2020 (3) BCLR 245 (CC); 2020 (4) SA 319 (CC), which observed that ‘a child’s vulnerability and their need for protection do not abruptly disappear when they turn 18’. The mother, moreover, sued in her own right, asserting her own independent interest as the initiate’s mother: she required no permission from her son ‘any more than the Respondent required [the son’s] permission before excluding her’ (para [26]).
Living Customary Law: The Imbeleko Precedent and the Constitutional Limits of Custom
The father’s substantive defence was that because Ulwaluko rituals traditionally take place under the auspices of the paternal home, the biological mother is reduced to a passive ‘guest’ confined to a symbolic role without operational input. The court tested this on two prongs: whether living customary law enforces such a sweeping exclusion, and if it does, whether it passes constitutional muster. Section 211(3) of the Constitution obliges courts to apply customary law when applicable, subject to the Constitution; sections 30 and 31 entrench respect for cultural diversity; and section 39(3) confirms that the Bill of Rights does not deny the existence of rights conferred by customary law consistent with it.
In Bhe and Others v Magistrate, Khayelitsha and Others [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) the Constitutional Court held that customary law must be accommodated, not merely tolerated, as an independent and living source of law. Shilubana and Others v Nwamitwa [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC) laid out the principle that living customary law is shaped by the actual practice of the community, and in Mbungela and Another v Mkabi and Others [2019] ZASCA 134; 2020 (1) SA 41 (SCA) the SCA observed that ‘customary law is a dynamic, flexible system, which continuously evolves within the context of its values and norms, consistently with the Constitution, so as to meet the changing needs of the people who live by its norms’. MM v MN [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) requires courts to ascertain the living customary law of the specific community involved rather than impose a textbook orthodoxy.
Applied to this family, those principles were decisive. The December 2025 Imbeleko ceremony served as ‘immediate, binding evidence of their specific living customary practices’ (para [40]): the mother did not function as a passive observer but exercised shared logistical, operational and structural participation in a single, unified family configuration. Having participated in and benefited from that joint structure less than twelve months earlier, the father had ‘actively consented to a dynamic, gender-inclusive application of custom within this family unit’ and could not ‘be permitted to embrace an inclusive, modern concept of customary law when it suits him, only to revert to a static, extreme-traditional concept of customary law when a dispute arises’ (paras [43] and [44]).
Importantly, the court did not disturb the boundary between the sacred and the administrative: the physical initiation camp and the sacred rites of Ulwaluko remain under traditional male guardianship, while the public homecoming feast and the administrative preparations of catering, invitations and logistics are fundamentally societal and domestic functions in which ‘modern Xhosa women are equal partners’ (para [47]). And even if a rule of total exclusion had been proved, it would fail constitutionally: Bhe abolished male primogeniture because it marginalised women and violated dignity and equality, and any customary rule reducing a biological mother to a passive spectator at her son’s foundational rite of passage while granting the father unilateral executive control ‘constitutes unfair gender-based discrimination’ violating section 9 of the Constitution (para [50]).
The Fatal Concession, the Relief Granted and Attorney-and-Client Costs
The father’s own affidavit undid him. Having pleaded that the mother had ‘no role to play’, he conceded that she would receive ceremonial recognition as iZibazana, acknowledging her as the initiate’s mother. Mudau J held the concession fatal: a ceremonial acknowledgment of motherhood without any substantive involvement in planning, preparation or decision-making ‘is not an answer to the Applicant’s complaint; it is the very exclusion she complains of, presented as an accommodation’ (para [52]). Beyond the points in limine, the answering affidavit consisted overwhelmingly of bare denials, with no explanation of the catering, seating, sanitation or marquee arrangements for the more than 150 guests expected from the mother’s side.
Applying Wightman t/a JW Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA), which holds that a real, genuine and bona fide dispute of fact exists only where the party raising it has seriously and unambiguously addressed the fact said to be disputed, the court found that unelaborated denials on matters squarely within the father’s own knowledge raised no genuine dispute. The best-interests standard in section 28(2) of the Constitution and section 9 of the Children’s Act had applied to the son for the greater part of the exclusionary period, and it was plainly consistent with those interests that both parents play a full and equal role in the milestone, free of unnecessary conflict.
The formal requirements followed readily. Under section 21(1)(c) of the Superior Courts Act 10 of 2013 the mother was plainly an interested person asserting her own statutory and customary rights in a live, concrete controversy, and a tangible and justifiable advantage flowed from the declaration.
The requirements for a final interdict in Setlogelo v Setlogelo 1914 AD 221 were met: a clear right founded on her joint parental responsibilities and rights under the divorce order and the Children’s Act together with her status as biological mother under living customary law; an injury actually committed, the father having expressly stated that she ‘has no role to play’ and that he has ‘no obligation to involve’ her; and no alternative remedy, damages being wholly inadequate for permanent exclusion from a once-in-a-lifetime cultural and familial milestone.
The court declared the mother entitled to participate on a full and equal footing in all planning, preparation and decision-making for the Umngeno and Umgidi ceremonies, directed the father to include her without limitation in planning meetings, the Umngeno preparations, the catering and hosting arrangements for the Umgidi, and the design and distribution of invitations, recognised her as a full decision-maker in equal standing, and interdicted him from excluding or obstructing her. Because the father’s conduct had been ‘unreasonable and dismissive’, ignoring repeated attempts to engage and a formal demand while advancing a defence contradicted by his own affidavit, he was ordered to pay costs on the attorney-and-client scale. For practitioners, the judgment is a compelling template for culturally embedded parenting disputes: living customary law is proved by the family’s own recent practice, majority is no guillotine on a parent’s rights where the offending conduct occurred during minority, and a litigant who proffers symbolic recognition in place of substantive inclusion should expect both defeat and a punitive costs order.
Questions and Answers
What must an applicant show to justify a departure from the ordinary rules under rule 6(12)?
The applicant must explicitly set out the circumstances rendering the matter urgent and, more importantly, the reasons why substantial redress cannot be obtained at a hearing in due course. Luna Meubel warns that mere lip service to these requirements will not suffice, and East Rock confirms that the procedure is not there for the taking.
When is urgency self-created, and why was it not self-created here?
Urgency is self-created where the applicant’s own dilatoriness produces the time pressure. Following SA Informal Traders Forum, a delay caused by good-faith engagement does not amount to self-created urgency, and the mother’s seven months of direct engagement, an unanswered letter of demand and a launch more than three months before the ceremony reflected the ordinary sequence of engagement, demand and, only then, litigation.
Did the son’s attainment of majority extinguish the mother’s rights?
No. The exclusionary conduct began in January 2026, when the son was still a minor and the mother held full parental responsibilities and rights jointly with the father. The court held that a parent cannot escape accountability for conduct that was unlawful when it occurred by pointing to the child’s subsequent eighteenth birthday, which cannot retrospectively sanitise that conduct.
What duties does section 31 of the Children’s Act impose on a co-holder of parental responsibilities and rights?
Before taking any decision likely to significantly change or adversely affect a child’s living conditions, education or personal relations with a parent or family member, a co-holder must give due consideration to the views of the other co-holder. Planning ceremonies of profound cultural and religious significance while excluding the other parent breached that duty.
Why did the mother have standing without her adult son’s permission?
She brought the application in her own right, asserting her own independent statutory and customary interest in being included on an equal footing in a matter of profound personal and cultural significance to her. The court held she required no permission from her son to assert her own right as his mother, any more than the father required the son’s permission before excluding her.
How did Z v Z, a maintenance case, assist in a dispute about cultural ceremonies?
In Z v Z the SCA held that an interpretation forcing a school-going or dependent young adult to sue their own parent creates an absurdity and violates the rights to dignity, emotional wellbeing and equality. The court held that this core constitutional logic applied directly: forcing the son to litigate against his father to secure his mother’s place in his initiation would create the exact absurdity the SCA sought to avoid.
What is the significance of the statement that there is no intrinsic magic in the age of 18?
The statement from Centre for Child Law recognises that the age of majority is a legal convention rather than a developmental reality. The court reasoned that turning 18 does not instantly grant a young adult the emotional strength or social independence required to be involved in a legal battle against a parent, so majority cannot operate as an absolute bar to a parent’s standing.
What did Media 24 contribute to the standing analysis?
The Constitutional Court’s observation that a child’s vulnerability and need for protection do not abruptly disappear when they turn 18 was applied as a recognition of developmental reality over arbitrary legal capacity. An initiate on the eve of his transition into manhood is exceptionally vulnerable and should be shielded from the trauma of direct litigation between or against his parents.
What is living customary law and how is it proved?
Living customary law is the dynamic, flexible system of rules continuously shaped and adapted by the community that lives by them, as recognised in Bhe, Shilubana and Mbungela. Following MM v MN, courts must ascertain the living customary law of the specific community or family involved, with reference to both history and present practice, rather than impose a textbook orthodoxy.
How did the family’s Imbeleko ceremony function as evidence?
The December 2025 Imbeleko ceremony, at which the mother exercised shared logistical, operational and structural participation, was treated as immediate, binding evidence of the family’s own living customary practice. Having consented to a gender-inclusive application of custom less than twelve months earlier, the father could not revert to a static, extreme-traditional concept of custom once a dispute arose.
Did the judgment interfere with the sacred elements of Ulwaluko?
No. The court expressly preserved the distinction between the sacred, gender-restricted rites of initiation, which remain under traditional male guardianship, and the public and administrative components such as the homecoming feast, catering, invitations and logistics, which are societal and domestic functions in which modern Xhosa women are equal partners.
What happens when a customary rule discriminates on the ground of gender?
Under section 211(3) of the Constitution courts apply customary law subject to the Constitution, and Bhe established that a customary rule discriminating against women on the basis of gender or marital status cannot survive constitutional scrutiny. A rule reducing a biological mother to a passive spectator at her son’s rite of passage while the father holds unilateral executive control violates section 9.
Why was the father’s iZibazana concession fatal to his case?
Having pleaded that the mother had no role to play, he simultaneously conceded that she would receive ceremonial recognition as the initiate’s mother. The court held that ceremonial acknowledgment without substantive involvement is not an answer to the complaint but the very exclusion complained of, presented as an accommodation, and his bare denials failed the Wightman test for a genuine dispute of fact.
What requirements govern the declaratory and interdictory relief granted?
A declaratory order under section 21(1)(c) of the Superior Courts Act requires an interested person and a proper case for the exercise of the discretion, both satisfied here. The final interdict satisfied the Setlogelo requirements of a clear right, an injury actually committed rather than merely apprehended, and the absence of any other satisfactory remedy, damages being wholly inadequate.
Why were costs awarded on the attorney-and-client scale?
The father’s conduct was unreasonable and dismissive: he ignored the mother’s repeated attempts to engage, failed to respond to a formal letter of demand, and advanced a defence contradicted by his own affidavit. The court held that the mother should never have been put to the expense of the litigation, warranting a punitive costs order.
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. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator and Accrual Calculator.
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