Mkhonta v Minister of Home Affairs and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Gumede AJ |
| Judgment Date | 11 August 2023 |
| Citation | 2023 JDR 3174 (MN) |
| Hearing Date | 25 May 2023 |
| Docket Number | 539/2023 |
| Court | Mpumalanga Division, Mbombela |
Gumede AJ:
2023 JDR 3174 p2
Gumede AJ
Applicant seeks an order, declaring that the customary marriage she entered into on 2 September 2017 with one Bongani Ephraim Madonsela who is now deceased (“the deceased”), is valid in terms of section 2 of the Recognition of Customary Marriages Act (“The Act”), as well as an order directing that the said marriage be registered by the Department of Home Affairs.
Applicant also seeks an order directing the Master of the High Court, Mbombela, to issue her with a letter of executorship in respect of the deceased estate.
The application is opposed by the third respondent, Mr Abel Andries Madonsela who is the father of the deceased.
Applicant contends that she is the customary wife of the deceased. She alleges that the customary marriage was concluded on 2 September 2017, when the deceased family, the Madonsela family went to her parental home in Swaziland to ask for her hand in marriage in terms of culture. According to her, lobola was negotiated and agreed by both families on that day. A lobola letter is attached to the papers together with a confirmatory affidavit of one Sizwe Silinda who was part of the delegation of the Madonsela family.
Applicant alleges that after the lobola negotiations, both families headed to her husband’s home in Barberton where they celebrated her hand over to the Madonsela family.
The third respondent denies that a valid customary marriage was concluded between the applicant and the deceased. Her avers that the marriage was not celebrated in terms of custom as required in terms of section 3 of the Act and contends that the following important customs were not complied with:
He alleges that in order to establish a relationship between two families, a written letter must be dispatched by the groom’s family to
2023 JDR 3174 p3
Gumede AJ
the bride’s family, to serve as proof of the proposal to form a relationship. The bride’s family would then indicate their acceptance. According to him, applicant failed to provide proof that a written letter was sent to her family and/or how such a letter was sent;
He contends that lobolo negotiations must be preceded by certain steps prescribed in terms of the Swazi custom and there was no observance of those cultural practice. According to him, the letter attached by the applicant to the founding affidavit does not resemble a standard letter of lobolo and the information contained in it is not sufficient as it does not indicate that gifts, such as snuff and blankets, were exchanged. He further alleges that a lobolo letter must be signed by the negotiators and points out that the letter attached by the applicant in the papers was signed by one person only.
He contends that in terms of Swazi culture, the father of the bride does not participate in the lobolo negotiations and points out that the...
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