Securing Rights Beyond Life: The Landmark Case for Posthumous Registration of Customary Marriages in South Africa. – Khashane v Minister of Home Affairs and Others (052246/2023) [2024] ZAGPPHC 3 (12 January 2024).

In the case of Khashane v Minister of Home Affairs and Others (052246/2023) [2024] ZAGPPHC 3 (12 January 2024), the Gauteng Provincial Division of the High Court examined a unique and poignant application by Tshilidzi Petronella Khashane. The case revolved around the posthumous registration of a customary marriage, a request rooted in sections 2(1) and 4(7) of the Recognition of Customary Marriages Act 120 of 1998. This legal endeavour sought to retrospectively formalize the marital union between Tshilidzi Petronella Khashane and the late Nditsheni Samuel Mutswari, thereby addressing the legal nuances associated with customary marriages that have not been officially registered prior to one spouse’s demise.

The application underscored the complexities and challenges faced by surviving spouses in proving the validity of their customary marriages in the absence of formal registration, especially when such recognition becomes crucial for the administration of the deceased’s estate. The case not only highlighted the intricate interplay between customary law practices and statutory requirements but also posed significant questions regarding the legal implications of unregistered customary marriages upon the death of a spouse. Through this application, the court was tasked with navigating the delicate balance between customary marital traditions and the statutory mandates aimed at recognizing and safeguarding these unions within the legal framework of South Africa.

In the heartfelt case of Khashane v Minister of Home Affairs and Others, Tshilidzi Petronella Khashane brought forth an application to recognize and register posthumously her customary marriage to the late Nditsheni Samuel Mutswari. Their story began in February 1990 when they met and subsequently entered into a romantic relationship, culminating in a decision to marry under customary law. By December 1991, the late Mr. Mutswari had expressed his intentions to marry Ms. Khashane, initiating the traditional process of lobola negotiations between their families.

The lobola negotiations, a pivotal aspect of their union, took place on 21 November 1992, at Ms. Khashane’s parental home. These negotiations, attended by representatives from both families, concluded with an agreement on the lobola amount and the exchange of traditional gifts, solidifying their commitment to each other in accordance with customary practices. The culmination of these negotiations was marked by a celebration and the drafting of a lobola letter, further affirming the existence of their union.

On 6 February 1993, the families reconvened to finalize the lobola negotiations, completing the payment and formalizing the union with the exchange of agreed-upon items. That evening, Ms. Khashane was welcomed into the deceased’s family home, symbolizing her acceptance as their daughter-in-law. Affidavits from family representatives later substantiated the marriage’s existence, providing crucial evidence of the customary union.

Throughout their life together, Ms. Khashane and Mr. Mutswari were blessed with two children and shared a life reflective of a married couple, residing together first in Limpopo and later in Gauteng Province. However, the sudden passing of Mr. Mutswari on 27 February 2022 brought to light the oversight of not registering their customary marriage, a revelation that Ms. Khashane confronted when she attempted to register her late husband’s estate.

Faced with the legal challenge of unrecognized marital status due to the absence of a formal marriage certificate, Ms. Khashane sought judicial assistance to affirm her marriage’s validity and her rights as the surviving spouse. This backdrop sets the stage for a legal discourse on the recognition of customary marriages posthumously, underscoring the profound impact of such recognition on the rights and dignity of those left behind.

In this matter the court’s deliberation centred around the provisions of the Recognition of Customary Marriages Act 120 of 1998 (“the Act”). This pivotal legislation serves as the cornerstone for the recognition and registration of customary marriages within South Africa, offering a legal basis for marriages conducted in accordance with customary law.

The Act, specifically sections 2(1) and 4(7), plays a crucial role in the application brought forth by Tshilidzi Petronella Khashane. Section 2(1) of the Act states, “A marriage which is a valid marriage at Customary law and existing at the commencement of this Act is for all purposes recognized as a marriage.” This provision acknowledges the validity of customary marriages that existed before the Act’s implementation, ensuring their recognition under the law.

Furthermore, Section 4(7) of the Act, which directly pertains to the registration of such marriages, stipulates the importance of formalizing customary marriages through registration. It outlines the procedure and requirements for spouses of a customary marriage to ensure their union is officially recognized by the state, thereby affording it the same legal status as marriages conducted under civil law.

The application of these sections to the facts at hand involves a detailed examination of whether a customary marriage, not registered prior to the death of one spouse, retains its validity and can be posthumously registered. This legal inquiry is underpinned by a broader interpretation of Section 4, which includes subsections detailing the duties of spouses to register their marriage (Section 4(1)), the process for applying for registration (Section 4(2)), and the consequences of failing to register (Section 4(9)).

Section 4(9) explicitly states, “Failure to register a customary marriage does not affect the validity of that marriage.” This clause is particularly significant in the context of Ms. Khashane’s application, as it emphasizes that the essence of a customary marriage’s validity lies in its adherence to customary law practices, rather than the act of registration itself.

By invoking these sections of the Recognition of Customary Marriages Act, Ms. Khashane’s application challenges the court to reconcile the procedural requirements for registration with the substantive recognition of customary marriages. This case thus serves as a critical examination of the Act’s provisions, testing their applicability and flexibility in safeguarding the rights and dignity of individuals who enter into customary marriages, particularly in the face of unforeseen circumstances such as the death of a spouse.

In this case, the court meticulously applied the legal framework provided by the Recognition of Customary Marriages Act 120 of 1998 to the factual matrix presented by Tshilidzi Petronella Khashane. Ms. Khashane’s application for the posthumous registration of her customary marriage to the late Nditsheni Samuel Mutswari hinged on a detailed assessment of both the substantive and procedural aspects of customary marriage as delineated by the Act.

Ms. Khashane asserted that her marriage to Mr. Mutswari, solemnized through traditional lobola negotiations in 1992 and celebrated in the presence of both families, fell squarely within the ambit of a “valid marriage at Customary law” as recognized by the Act. This assertion required the court to navigate the intersection of customary practices with statutory mandates, particularly focusing on the implications of the Act’s provisions on marriages that were not registered prior to a spouse’s death.

The court’s analysis was grounded in Section 2(1) of the Act, which acknowledges the validity of customary marriages existing before the Act’s commencement, thereby affirming the recognition of Ms. Khashane and Mr. Mutswari’s union under South African law. Furthermore, Section 4(7) and its related subsections were scrutinized to determine the procedural requirements for the registration of customary marriages and the implications of non-compliance with these requirements.

Crucially, Section 4(9) of the Act, stating that “Failure to register a customary marriage does not affect the validity of that marriage,” became a cornerstone of the court’s deliberation. This provision underscored the principle that the essence of a customary marriage’s validity lies in its adherence to customary law practices rather than the formal act of registration.

By applying these legal principles to the facts, the court was tasked with assessing whether the non-registration of Ms. Khashane and Mr. Mutswari’s marriage before his death invalidated the customary union. The evidence provided by Ms. Khashane, including affidavits from family representatives and documentation of lobola negotiations, supported the existence of a valid customary marriage in accordance with the practices and rituals prescribed by customary law.

The court’s application of the law to these facts not only illuminated the legal status of unregistered customary marriages but also addressed broader issues of justice, equity, and the protection of rights within the context of South African family law.

In resolving the case, the court rendered a decision that highlighted the intrinsic value and recognition of customary marriages within South African law, particularly under the auspices of the Recognition of Customary Marriages Act 120 of 1998. The application by Tshilidzi Petronella Khashane sought judicial intervention for the posthumous registration of her customary marriage to the late Nditsheni Samuel Mutswari, a matter that tested the legal boundaries of customary marriage recognition and registration.

The court, guided by the principles enshrined in the Recognition of Customary Marriages Act, particularly Sections 2(1), 4(7), and the pivotal Section 4(9), which clarifies that the failure to register a customary marriage does not affect its validity, found in favor of Ms. Khashane. The evidence provided convincingly demonstrated the existence of a valid customary marriage as per the customary law and practices, fulfilled through the lobola negotiations and the subsequent familial acceptance and celebration of the union.

The judgment meticulously addressed the concerns raised regarding the posthumous registration of customary marriages, setting a precedent for the recognition of such unions even in the absence of formal registration prior to a spouse’s death. The court’s decision underscored the recognition and respect afforded to customary marriages, reinforcing their equivalence to civil marriages in terms of legal validity and societal acknowledgment.

The order issued by the court included:

  1. Condonation for Late Registration: The court granted condonation for the late registration of the customary marriage between Tshilidzi Petronella Khashane and the late Nditsheni Samuel Mutswari, acknowledging the legitimacy of their union despite the absence of formal registration.
  2. Registration of the Marriage: The Department of Home Affairs was directed to register the marriage between Tshilidzi Petronella Khashane and the late Nditsheni Samuel Mutswari as a valid customary marriage in accordance with Section 4(7) of the Recognition of Customary Marriages Act.
  3. Issuance of a Marriage Certificate: The court ordered that a marriage certificate be issued to Ms. Khashane, attesting to the said registration, thereby formalizing the recognition of the marriage within the statutory framework.
  4. Costs of the Application: The respondent, the Department of Home Affairs, was ordered to bear the costs of the application, reflecting the court’s acknowledgment of the undue burden placed on Ms. Khashane in seeking legal remedy for the registration of her marriage.

This landmark decision not only provided justice and legal clarity for Ms. Khashane but also reinforced the legal framework supporting the recognition and registration of customary marriages in South Africa. It emphasized the importance of accommodating customary law within the broader legal system, ensuring that traditional practices are harmonized with statutory requirements to protect the rights and dignity of individuals engaging in customary marriages.

Reflecting on this judgment, I firmly believe that the judge’s decision was not only correct but also profoundly significant in reinforcing the legal recognition and respect for customary marriages within South African law. This case presented a critical examination of the intricacies involved in recognizing and registering customary marriages posthumously, a scenario that has profound implications for the rights and dignity of surviving spouses.

The judge’s meticulous application of the Recognition of Customary Marriages Act 120 of 1998, especially the pivotal interpretation of sections 2(1), 4(7), and notably 4(9), was instrumental in arriving at a decision that aligns with the spirit and purpose of the Act. The Act’s primary intention is to recognize customary marriages as valid legal unions, equivalent in status and validity to civil marriages. By granting condonation for the late registration of the marriage between Tshilidzi Petronella Khashane and the late Nditsheni Samuel Mutswari, the judge upheld the principle that the essence of marriage’s validity lies in its adherence to customary practices rather than the bureaucratic act of registration.

Moreover, the judge’s decision to direct the Department of Home Affairs to register the marriage and issue a marriage certificate to Ms. Khashane within 30 days underscores the court’s commitment to ensuring that customary law is harmoniously integrated within the national legal framework. This directive not only affirms the marriage’s validity but also ensures that Ms. Khashane can rightfully assume her role as the executrix of her late husband’s estate, safeguarding her family’s future and honoring the union she and Mr. Mutswari entered into according to their traditions.

The judgment also serves as a critical reminder of the importance of registering customary marriages to protect the legal rights of spouses, particularly in matters concerning inheritance and estate administration. However, by stating that the failure to register a customary marriage does not affect its validity, the judge has reinforced a compassionate and just approach to cases where registration may not have occurred due to various reasons, including unawareness of legal requirements or unforeseen circumstances such as the untimely death of a spouse.

In conclusion, the judge’s decision in this case is a testament to the judiciary’s role in upholding the values of equality, dignity, and respect for cultural diversity as enshrined in the South African Constitution. It highlights the necessity of evolving legal interpretations to meet the needs of a changing society while ensuring that traditional practices are accorded the respect and recognition they deserve within the legal system. The judgment not only provides justice for Ms. Khashane but also sets a precedent that will benefit many others in similar situations, making it a landmark decision in the recognition of customary marriages in South Africa.

Summarised by Bertus Preller, a Family Law and Divorce Law attorney and FAMAC accredited Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.

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