- The High Court has granted NIM leave to appeal to the Supreme Court of Appeal against findings that a customary marriage existed with MM.
- NIM challenges the court’s conclusions on consent, the invalidation of a civil marriage, and the enforceability of an antenuptial contract.
- The court found that conflicting judgments on customary marriages present compelling reasons for appellate intervention.
The Johannesburg High Court has granted leave to appeal to the Supreme Court of Appeal in a deeply contested family law dispute involving the existence of a customary marriage, the validity of a subsequent civil marriage, and the enforceability of an antenuptial contract.
In line with established practice in family law matters, the parties are referred to by initials and cannot be identified by name. The appeal is brought by NIM, a musician and the defendant in the divorce action, against findings made in the main judgment delivered on 10 October 2025.
In that judgment, the court held that NIM and MM, a popular actress and the plaintiff, entered into a valid customary marriage in May 2011, that the marriage was in community of property, that their antenuptial contract concluded in December 2016 was invalid, and that their civil marriage concluded in January 2017 was legally void.
NIM disputes each of these conclusions and contends that the court erred in its interpretation and application of customary law, matrimonial property legislation, and the law governing consent.
What NIM is appealing and why
In his application for leave to appeal, NIM set out several grounds on which he contends another court may reach a different conclusion. Central to the appeal is his argument that no valid customary marriage ever came into existence between himself and MM.
NIM argues that the court erred in finding that he consented to be married under customary law, maintaining that his intention was always to enter into a civil marriage regulated by an antenuptial contract. He contends that participation in certain customary rituals did not amount to consent to a customary marriage and that the court impermissibly elevated cultural practices above the parties’ stated intentions.
He further challenges the court’s declaration that the civil marriage between the parties is invalid, as well as the finding that the antenuptial contract is unenforceable. According to NIM, the court misdirected itself by holding that judicial oversight or postnuptial registration was required in the circumstances.
In addition, NIM appeals against the order awarding spousal maintenance to MM, arguing that she failed to establish need, quantum, and duration, and that the court erred in its assessment of her evidence while rejecting his version.
MM’s response to the appeal application
MM opposed the application for leave to appeal, arguing that NIM raised new issues that were never pleaded or ventilated during the trial. She maintained that the evidence showed clear compliance with customary law requirements and that NIM’s participation in family processes and rituals demonstrated consent.
She argued that customary marriage cannot be assessed through a narrow common-law lens and that consent in customary law is expressed through conduct, family involvement, and acceptance of communal processes. MM further contended that once a valid customary marriage was established, the later civil marriage could not coexist alongside it, rendering the civil marriage legally ineffective.
On spousal maintenance, MM pointed to extensive evidence led at trial regarding her financial needs, health, career sacrifices, and dependency arising from the marriage. She argued that the maintenance order was properly grounded in the evidence and judicial discretion.
How the court approached leave to appeal
Acting Judge M Ntanga reiterated that Section 17 of the Superior Courts Act sets a high threshold for granting leave to appeal. Leave may only be granted where an appeal “would have a reasonable prospect of success” or where “there is some other compelling reason why the appeal should be heard.”
The court emphasised that even where prospects of success are uncertain, compelling reasons such as important questions of law or conflicting judgments may independently justify an appeal. Judge Ntanga noted that “another court upon consideration of the issues raised in the application for leave to appeal may come to a different conclusion.”
A key factor influencing the decision was the existence of conflicting judgments on the legal consequences of customary marriages followed by civil marriages. The court referred to NP v LP, where the view was taken that customary marriage is often a process rather than a single legal event, and that parties may not regard customary and civil marriages as distinct legal institutions.
Judge Ntanga acknowledged that this approach contrasts with the position adopted in the main judgment, where he emphasised that customary law “should not be treated as secondary or subsidiary to any other law applied in our country.”
Why the Supreme Court of Appeal will decide
Although the default position is for appeals to be heard by a Full Court of the division, the court held that this matter falls within the category of cases that require determination by the Supreme Court of Appeal.
The judgment records that the issues raised involve questions of law of importance and general application, including how consent to customary marriage should be assessed, whether dual marriages can coexist, and how matrimonial property consequences should be regulated. Given the conflicting judicial approaches, the court concluded that appellate intervention is necessary to bring clarity and consistency to this area of law.
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