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Court case: Posthumous recognition of customary marriage – Khashane v Minister of Home Affairs and Others

Khashane v Minister of Home Affairs and Others [2024] ZAGPPHC 3

TK applied to the court for an order: 1) condoning the late registration of her customary marriage to NM; 2) ordering the Director-General of Home Affairs (2nd respondent) to register the customary marriage under the provisions of section 4 of the Recognition of Customary Marriages Act, 120 of 1998 (the Act); and 3) directing the Master of the High Court, Pretoria (3rd respondent), to register the estate of the late NM and appoint her as executor in the estate.

TK and NM met in 1990 and in December 1991 NM indicated his intentions to marry TK. Lobola negotiations were entered into and were conducted between late November 1992 and the beginning of February 1993. On the evening of 6 February 1993 TK was taken to NM’s family and was welcomed there as a daughter-in-law. The two families were represented by TK’s sister and NM’s sister, and they both confirmed TK’s version of these events in affidavits. TK and NM lived together, had two children together and stayed together until NM’s death on 27 February 2022. TK indicated that she was unaware that the customary marriage had to be registered and she and NM never took any steps to do so. The Act requires all customary marriages which existed before the promulgation of the Act in 1998 to be registered and sets out procedures for doing so within stated time frames, as well as for interested parties to approach the court. Importantly, section 4(12) provides that failure to register a customary marriage does not invalidate such marriage. After NM’s death TK approached the Master to register the estate and to appoint her as executor. The Master refused on the basis that the marriage was not registered prior to NM’s death, despite TK providing proof of the existence of the marriage, on the basis that the Act does not make provision for posthumous registration. The Master referred TK to Home Affairs, but Home Affairs refused to register the marriage. None of TK’s assertions in her application were disputed by either the Master or Home Affairs.

The court (Khwinana AJ) held that the interpretation of both Home Affairs and the Master of the provisions of the Act is too narrow and ordered the 1st (the Minister of Home Affairs) and 2nd respondents to: 1) condone the late registration of the customary marriage of TK and the late NM; 2) register the marriage as a valid customary marriage; 3) issue TK with a marriage certificate within 30 days from the date of the order (12 January 2024); and 4) pay the costs of the application. The court also advised both Home Affairs and the Master to facilitate closer co-operation between their departments on matters relating to customary marriages and to ensure proper training of their staff on the provisions of the Act.

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