- Applicant sought posthumous recognition of marriage to late partner to access inheritance and register estate.
- Court found DHA failed in its legal duty, leaving vulnerable women without recourse.
- Judge remitted matter for full customary enquiry and warned of risks of ignoring customary law obligations.
Zukiswa Njwaxu sought the court’s intervention to compel the Department of Home Affairs (DHA) to register her 2013 customary marriage to the late Mzwandile Komsana.
Without a marriage certificate, Njwaxu could not access vital benefits such as her late husband’s pension or manage his estate, leaving her in a vulnerable position emotionally and financially.
Justice DM Thulare criticised DHA for failing to respond adequately to the applicant’s plea. The department admitted to permanently closing its customary marriage registration units nationwide, resulting in the denial of a constitutionally mandated public service to vulnerable women like Njwaxu.
“It is shocking that the Minister and Director-General have no response to an allegation that the department they lead failed to provide her with a public service they are constitutionally obliged to provide,” the court said.
Njwaxu and Komsana lived together from 2010 and had a traditional marriage ceremony in 2013 involving lobola negotiations, public introductions to family and community, and customary rituals symbolising their union. Despite living as husband and wife with their son, the lack of formal registration complicated the legal recognition of their marriage.
Court’s orders appointment of registering officer and thorough enquiry
The court ordered DHA to appoint a qualified registering officer within five business days to investigate the existence of the marriage. This investigation must include testimony from both families, community witnesses, and expert evidence if necessary. The enquiry is to be completed by 26 September 2025, with a full report filed if registration is refused.
The judgment highlighted the essential role families play in customary marriage contracts and cited academic research emphasizing family involvement and public validation in such unions. The court urged DHA to promote understanding of diverse cultural practices rather than closing services that aid vulnerable persons.
Impact and wider implications of the judgment
Pending the enquiry, the court suspended decisions regarding the deceased estate. The ruling underscores the need for public institutions to uphold customary law rights and ensure that vulnerable South Africans are not left without legal protection in matters of marriage and inheritance.
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