The customary marriage of Rose Nokuthula Masango and the late Zobani Petrus Mthimunye has been declared valid, despite its non-registration under the Recognition of Customary Marriages Act (120 of 1998).
This decision ensures that Masango’s property rights, as the lawful widow, are upheld, and extends an unwavering shield against any attempts by Mthimunye's family to evict her from the home they shared. The court’s ruling marks a significant moment for customary marriage recognition in South Africa, highlighting the reciprocal duties and support inherent in such unions.
Represented by Lawyers for Human Rights (LHR) in the Gauteng Regional Court in Mamelodi, Masango found her voice in a legal battle that potentiate the meaning of love and commitment beyond official ceremonies and regulatory registrations. Masango and Mthimunye, both from the Ndebele cultural group, first crossed paths in Mamelodi in 2010 during a visit by Masango to her brother. Their connection blossomed into an exclusive romantic relationship by early 2011, leading Masango to move into Mthimunye's home in Mamelodi Extension 22 the same year. They lived together as husband and wife until Mthimunye’s untimely demise on April 8, 2021.
Despite the couple having no children together—Masango has two children from a previous relationship—Mthimunye endeavoured to save for lobola, undertaking multiple odd jobs to fulfill this cultural obligation. However, uncertainty loomed after his passing, as Nganyana Druiwer Mthimunye, a relative, sought to evict Masango, denying the authenticity of any lobola negotiations while asserting that she was never integrated into their family. He went as far as to question the legitimacy of traditional marriage customs, stating that proper rituals, such as the slaughtering of cows and gift exchanges, were never completed.
However, the court found that for a customary marriage to hold weight in the eyes of the law, certain criteria must be met: both partners must be over 18, consent to the union, and enter into the marriage under customary law. While lobola is significant, the court affirmed that it is not singularly determinative of a marriage's validity.
The court scrutinised Nganyana's claims and found gaps in his narrative. Notably, he failed to acknowledge the expenses incurred by Masango for Mthimunye's funeral or confirm if his family contributed. Furthermore, the magistrate highlighted that the evidence indicated the couple had lived together for over a decade, establishing a meaningful partnership, and that the family never questioned this.
Acting Regional Magistrate M Erasmus remarked, “I am of the view that the applicant (Masango) has deduced evidence of a balance of probabilities that there exists a customary marriage between her and the deceased." This endorsement offers not only a legal victory for Masango but also reinforces the importance of acknowledging and respecting customary unions within South African law.
Nothando Shongwe from LHR expressed elation over the court’s recognition of Masango's marriage, particularly as it underscores her right to property and protection against eviction. “The law does recognise customary marriage; people just need to register it with the Department of Home Affairs and not wait till it's late," she emphasised, encouraging others in similar situations to seek clarification of their rights.
