- The court found the applicant failed to prove that her alleged customary marriage complied with statutory and customary requirements.
- Lobola payment alone was held to be insufficient without proof of proper customary rites and celebration.
- The second respondent’s later customary marriage to the deceased remained intact and legally recognised.
The High Court in Polokwane has dismissed an application by Elsie Moloko Lelagane, who sought posthumous recognition of an alleged customary marriage to the late Walter Cedric Mashele, after finding that she failed to prove that a valid customary marriage had been concluded.
Lelagane approached the court as the applicant. She cited the Minister of Home Affairs as the first respondent, Julia Gavaza Senwana as the second respondent, and the Master of the High Court as the third respondent, given the implications the dispute carried for the administration of the deceased’s estate.
Competing claims to customary marriage
Lelagane alleged that she and Mashele were married by customary rites on 26 September 2009. Senwana, however, disputed this claim and maintained that she was the deceased’s lawful customary wife, having entered into a customary marriage with him on 21 June 2014. Senwana stated that she lived with Mashele as husband and wife until his death and that her marriage was known and accepted by his family.
Acting Judge MZ Makoti framed the dispute succinctly, stating, “What this court has to determine is whether there existed a valid marriage between the applicant and the deceased. If it did, it would have implications for the relationship between the second respondent and the deceased. A finding to the contrary would not disturb the latter relationship.”
Legal framework and evidentiary burden
The court reaffirmed that customary marriages are governed by the Recognition of Customary Marriages Act, which requires that parties be over 18, consent to the marriage, and that the marriage be entered into or celebrated in accordance with customary law.
While age and consent were not in dispute, the judge held that Lelagane’s case faltered on proof of the third requirement. Although she relied on evidence that lobola negotiations took place and that an amount of R18 000 was paid, the court found that this did not, on its own, establish a valid customary marriage.
A letter from the Moletjie Traditional Authority confirming the alleged marriage was rejected as unreliable. Judge Makoti remarked, “From an evidence point of view, the letter is patently deficient and palpably hearsay. I cannot rely on it.” A photograph submitted by Lelagane described the event as an engagement, further weakening her claim that a marriage ceremony had taken place.
Failure to prove customary rites
Oral evidence was allowed because of the deficiencies in the papers, but the applicant’s witnesses were unable to clearly explain which customary rites were observed or how the marriage was concluded in line with Bapedi customs. One witness even conceded that matters were handled in an unusual way and not strictly in accordance with customary practice.
The judge stressed that customary practices vary between communities and must be proven in each case, noting, “No one among the applicant’s witnesses sought to testify as to what the customary practices are for the conclusion of a valid marriage, and whether they were actually observed.”
Second respondent’s marriage upheld
In contrast, Senwana produced a signed lobola agreement reflecting the amount paid and the gifts exchanged when she married the deceased in 2014. Her marriage was acknowledged by members of the deceased’s family and recognised during his funeral rites. Lelagane herself admitted that she was aware of Senwana’s marriage to Mashele while he was still alive, but did not challenge it at the time.
Weighing the evidence, Judge Makoti concluded, “On the balance of the facts, the evidence before me, and the applicable legal principles, I am not satisfied that the applicant has discharged the duty resting upon her to prove that she was indeed in a validly concluded customary marriage with the deceased. The application must therefore fail.”
The court dismissed the application with costs on the normal party and party scale.
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