## Facts

- The applicant and the deceased cohabited in a home the deceased bought in 2005 and lived together until the deceased’s death on July 21, 2009.
- In 2007 the deceased introduced the applicant to his parents and stated his intention to marry her.
- On August 10, 2008 the deceased’s family initiated lobolo negotiations with the applicant’s family; negotiations occurred on October 4, 2008.
- The families agreed to lobolo of R18,000; R5,000 was paid, leaving R13,000 outstanding at the time of the deceased’s death.
- After the death, the applicant sought posthumous registration of a customary marriage with the Department of Home Affairs but was unsuccessful.
- The applicant applied for (1) a declaration that a customary marriage existed, or (2) an order compelling the Department to register the marriage under § 4(7) of the Recognition of Customary Marriages Act 120 of 1998.
- The deceased’s parents opposed, asserting that no valid customary marriage came into existence because the applicant was never formally handed over to the deceased’s family.
- Evidence before the court indicated the families understood that handover would not occur until full lobolo was paid, and full payment never occurred.

## Issues

1. Whether a valid customary marriage existed under the Recognition of Customary Marriages Act 120 of 1998 and applicable living customary law, including whether formal handover of the bride was required and occurred.
2. If a valid customary marriage existed but was unregistered, whether the court should order posthumous registration under § 4(7) of the Act.

## Decision

- The court dismissed the application.
- The court found no valid customary marriage existed because the bride was not formally handed over to the deceased’s family as required by the applicable customary law on the evidence presented.
- The court refused to order registration under § 4(7) because the provision permits registration of a valid customary marriage, not the creation of one where validity requirements were not met.

## Legal Principles

- A customary marriage is valid only if it is negotiated and entered into or celebrated in accordance with applicable customary law, as required by § 3 of the Recognition of Customary Marriages Act 120 of 1998.
- Under living customary law, the formal handing over of the bride to the groom’s family may be an essential step in concluding a customary marriage, depending on the community practice and the families’ agreement.
- Cohabitation and a couple’s intention to marry do not, without required customary formalities, establish a valid customary marriage.
- A court order under § 4(7) may compel registration of a customary marriage only where the marriage is already valid but unregistered; registration cannot validate an incomplete customary marriage process.

## Conclusion

Because the families treated formal handover—linked to completion of lobolo payment—as a necessary condition for concluding the marriage and it never occurred, the court held that no customary marriage existed and denied both declaratory relief and posthumous registration.


Motsoatsoa v. Roro, 2011 (2) All SA 324 (Gauteng S. Afr. High Ct. 2010)