In Tshivhase v Tshivhase N O and Another, Ms Azwihangwisi Tshivhase ("Ms A Tshivhase") lodged an urgent application at the Limpopo Division of the High Court of South Africa, Thohoyandou to declare a civil marriage concluded between the deceased, Mr Ndavheleseni Tshivhase, and Ms Thimbiluni Tshivhase ("Ms T Tshivhase") void ab initio and to set aside their Joint Will.
Ms A Tshivhase's claim was based on the existence of a prior customary law marriage between herself and the deceased, which she claimed rendered the civil marriage invalid. Ms A Tshivase relied on a copy of a page from her identity document issued by the then Republic of Venda as proof of the customary marriage. The copy of the identity document included the deceased's first name and the date on which Ms A Tshivhase and the deceased were allegedly married.
When opposing the application, Ms T Tshivhase raised a point in limine of non-joinder of the beneficiaries of the Joint Will. The High Court ultimately granted an order declaring the civil marriage void and setting aside the Joint Will. In granting this order, the High Court held that the identity document was prima facie proof of the customary marriage and dismissed the non-joinder without furnishing reasons. It is this decision that was subject to an appeal before the Supreme Court of Appeal ("SCA").
SCA proceedings
The SCA had to consider whether: (a) Ms A Tshivhase made out a proper case for declaring the civil marriage concluded between Ms T Tshivhase and the deceased void; and (2) the High Court erred in setting aside the Joint Will and dismissing the non-joinder point in limine.
Ms T Tshivase submitted that the identity document did not constitute a marriage certificate in terms of section 4(8) of the Recognition of Customary Marriages Act, 1998 ("RCMA"), which requires specific particulars including proof of registration. Consequently, it did not constitute prima facie proof of the customary law marriage between Ms A Tshivhase and the deceased. Furthermore, Ms A Tshivhase did not furnish the court with a copy of the lobola letter or any confirmatory affidavits from people who were allegedly present during the purported lobola negotiations or the customary law marriage ceremony.
SCA findings
The SCA relied on the findings of Manwadu v Manwadu and Others, which were concerned with similar facts (i.e the case involved the reliance on a copy of an identity document as proof of the validity of a customary law marriage). In Manwadu, the SCA held that where reliance on an identity document has been challenged, the party alleging an existence of a customary law marriage must prove the marriage through extraneous evidence which support that all legal and customary requirements were adhered to. Such requirements include the marriage being negotiated and celebrated in accordance with customary law – customs and usages traditionally observed must be adhered to; parties must be over the age of 18 years; and the marriage must be registered if the registering officer is satisfied that a valid customary marriage has been concluded in terms of the applicable customary law requirements.
Despite Ms T Tshivhase's challenges regarding the evidence relating to the existence of the customary law marriage, Ms B Tshivhase failed to provide details of any person to confirm her allegations about the Venda customs having been observed and a customary marriage having been concluded.
The SCA held that the copy of the identity document was not a marriage certificate and thus it did not amount to proof of a customary law marriage between Ms B Tshivhase and the deceased. As per the decision in Manwadu, Ms B Tshivhase was obliged to prove the marriage through other means, which she failed to do. Consequently, Ms B Tshivhase failed to make a proper case for declaring the civil marriage concluded between Ms T Tshivhase and the deceased void.
Regarding the issue of non-joinder, the SCA found that the practical effect of invalidating the joint Will is that the deceased's estate would no longer be able to be devolved in terms of the joint Will but would have to be devolved in terms of the laws of intestate succession. Thus, the beneficiaries could be prejudiced by the outcome of the matter. The SCA thus held that the beneficiaries have a direct and substantial interest in the subject matter of the litigation.
Consequently, the SCA upheld the appeal and set aside the High Court's order. Click here to read the full judgment.
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