M.L.M v J.M.L and Another [2023] ZALMPPHC 72
In proceedings in a magistrates court in Limpopo for a decree of divorce based on a customary marriage between the parties, the plaintiff (M) led substantial evidence about protracted negotiations between her family and the family of the defendant (L) over a period of seven months in 2005 and 2006. This with a view to conclude a customary marriage between the parties. At the time the negotiations started, the parties had been living together for thirteen years and had two children together. The negotiations led to lobolo being paid by L’s family, and the handing over of the bride (M) by her family to L’s family. In cross-examination of M and her witnesses, counsel for L put it to them that the marriage was not concluded, because M did not get her new name from L’s family at the occasions M and her witnesses testified about. L did not present any evidence and applied for, and received, absolution of the instance. After a successful appeal by M, the Limpopo High Court referred the matter back to the magistrate’s court. Both parties did not adduce any further evidence and the magistrate dismissed M’s claim for divorce on the basis that no customary marriage was proved. M appealed to the Limpopo High Court again.
The court (Muller J, with Naude-Odendaal concurring) held, with reference to Shilubana and Others v Nwamitwa [2008] ZACC 9, that customary law forms part of South African law and that the court must ascertain the contents of the particular customs in play in a particular matter. While this is usually an onerous task due to the fact that customary law is mostly contained in oral sources, the court should ascertain this from the evidence presented and other sources available to it. In the present matter, although disputed in cross-examination, L did not present any evidence gainsaying M and her witnesses’ evidence about the customs in play in the present matter. There was also no evidence presented disputing the events which M alleged led to the conclusion of the customary marriage. The appeal was upheld with costs and the court declared that the parties did in fact enter into a customary marriage.