In a legal tussle between two widows regarding who is the true wife of the now deceased husband, the Supreme Court of Appeal held that an ID-document is not a marriage certificate and on its own, did not serve as proof that there was indeed a valid marriage.

The first wife, only identified as AT, earlier turned to court for an order declaring that she was married in terms of customary law to her now deceased husband. She said she had married him in 1966 and upon his death, they were still legally married.

The second wife, identified only as ET, entered into marriage with the now deceased in 1977 in terms of civil law and that she should be recognised as the lawful wife.

The high court, however, ruled in favour of the first wife who at the time gave the court a copy of a page in her ID document, issued by the then Republic of Venda, which she argued is proof of her marriage to the deceased.

The high court accepted this, but unhappy with the verdict, the second wife turned to the SCA to appeal that ruling.

The first wife, in turning to the high court in Limpopo attached, as proof of her customary marriage to the deceased, a copy of a page from her identity document issued by the then Republic of Venda (the ID), and which she contends is proof of the customary marriage.

The judge accepted that the entry in the ID was prima facie proof of the customary marriage and declared the civil marriage void. The second wife disputed that the ID constituted prima facie proof of the existence of such a customary marriage or that it constituted a marriage certificate in terms of the law.

The SCA noted that the ID includes an entry recording the respondent’s ID number, but It does not specify that she and the deceased were married under customary law. 

The SCA noted that at the time when the alleged customary marriage took place, the deceased was below the age of 18 and he would have required the assistance of a guardian. There is no reference made of who assisted him to conclude and register the marriage. 

This was one of the legal pre-requisites for a valid customary marriage and formed part of what the respondent was required to prove.

Furthermore, the marriage could only be registered if the registering officer was satisfied that the respondent and the deceased had concluded a valid customary marriage according to the applicable customary law requirements. It is not alleged by the respondent that it was demonstrated to the registering officer that she and the deceased had done so.

The SCA said despite the challenge on these issues, the respondent failed to provide any details of any person who could confirm her allegations about the traditional ceremony and other customs having been observed and a customary marriage having been concluded.

“She also did not provide details of what had transpired, when and where the traditional rituals and celebrations occurred in terms of Venda Law. It concluded that apart from the ID, the first wife had no proof of a valid marriage.”

The respondent was obliged to prove the marriage through other means, which she failed to do. The SCA concluded that the second marriage under civil law was the only valid marriage.

zelda.venter@inl.co.za

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