In yet another battle between two women who both claim they are the customary wives of their now dead husband, the court declared that the first wife, who was married to him for 26 years and bore him 13 children, is in fact the lawful wife.
Wife no 1 turned to the Bloemfontein High Court for an order forcing Home Affairs to register her marriage to her late husband, who died in 2018. She asked the court to declare her marriage valid in terms of the Recognition of the Customary Marriage Act and to note that they were married in community of property
She issued a letter from the chief of the area where they resided, to the court as proof that she and the dead man were indeed married.
But wife no 2, who opposed the application, also issued her lobola letter to the court as “proof” that she was also married to the dead man.
The second wife simply opposed the application on the basis that the dead man and the applicant were never married and consequently no customary marriage came into being.
The first wife (applicant) meanwhile stated that she was married to the man terms of Zulu customary law in July 1992. Thirteen children, who are at present all majors, were born of the union.
They lived in uMzimkhulu in KwaZulu-Natal until the now late husband left for Bloemfontein to look for work during 2000. He had stayed in Bloemfontein since then, but came home every December holidays to be with her and the children, she said.
The marriage was never formally registered but she was advised that the failure to register the customary marriage did not affect its validity, she told the court.
The first wife added that at the time of the marriage, they had agreed to marry each other in terms of customary law, and the marriage was concluded in terms of the isiZulu customary procedures in that.
Their families started the negotiations in February 1992 for the intended marriage between them. The agreed lobola was 16 cows or the monetary equivalent of R 25 000.
The dead man’s family paid the applicant’s family R10 000 as part of the agreed lobolo on the day of the negotiations and the rest was paid a bit later.
The applicant explained that she was then handed over to her husband and his family. Both families celebrated the event in terms of the isiZulu custom.
She said they continued with their customary marriage until her husband died in February 2018.
The second wife, however, claimed that she and the dead man were indeed married. Apart from her lobola letter, she also furnished the court with a marriage certificate. She argued that as she had a marriage certificate and wife no 1 did not, as their marriage was never registered, she (wife no 2) was the true wife.
But the court found that the first wife and the dead man had complied with all the requirements of a valid customary marriage when they got married in 1992 – whether the union was registered at the time or not.
The evidence shows that the families met and concluded the marriage in accordance with Zulu custom.
The court explained that customary law is defined in the act as the customs and usages traditionally observed among the indigenous African people of South Africa and which form part of the culture of those people. It added that a customary marriage means a marriage concluded in accordance with customary law.
For a customary marriage entered into after the commencement of the Act to be valid, the prospective spouses must both be above the age of 18, and consent to be married to each other under the customary law. The marriage must be negotiated and entered into or celebrated in accordance with customary law.
Pretoria News
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