A husband who was married to two wives and kept it a secret until his death resulted in a legal dispute as to who is the legal spouse and stands to benefit from his estate.
Pertunia Malatjie (applicant) turned to the high court in Pretoria for an order declaring that her marriage to Hlakong Malatjie (the deceased) was valid.
Malatjie argued that she entered a civil marriage with the deceased in October 2011 and had the marriage certificate issued by the department of home affairs to prove it.
Malatjie explained that the deceased passed away on March 15 2014 and that she was called to the police station to complete the Government Employees Pension Fund (GEPF) forms.
On her arrival, she was met by a certain Capt Thobakgale and Zanale Sekgobela (first respondent).
Thobakgale informed Malatjie that Sekgobela would also complete the forms as she had a lobola letter as proof of a customary marriage.
After the payment of the lump sum of the pension fund, Malatjie approached the offices of the GEPF regarding a claim for spousal maintenance.
Malatjie was, however, informed that the GEPF had decided that she was not eligible to receive spousal maintenance because the marriage between the deceased and Sekgobela was still valid.
Malatjie indicated that she was never made aware by the deceased that he was married to Sekgobela and challenged Sekgobela to provide proof of the marriage.
The validity of Malatjie’s marriage was challenged by Sekgobela who claimed that she and the deceased concluded a customary marriage in December 2004.
She argued that she married the deceased years prior to his second marriage, in terms of customary law and had a lobola letter signed by both families and a village headman as proof of the customary marriage.
In determining the dispute, Judge Janse van Nieuwenhuizen referred to the requirements for a valid customary marriage in terms of the Recognition of Customary Marriages Act.
For it to be valid, both parties must be over 18, both must consent to be married in terms of customary law, and the marriage must be negotiated and entered or celebrated per customary law.
Malatjie did not dispute that Sekgobela and the deceased were above 18 years of age at the time, that they both consented to be married to each other under customary law and that the marriage was negotiated.
The issue in dispute was, therefore, whether Sekgobela and the deceased “entered into or celebrated their marriage in accordance with customary law”.
It was Sekgobela’s evidence as per the lobola letter that the customary marriage was celebrated at her parental home and then it proceeded to the deceased’s home.
After the celebration of the customary marriage, the deceased took the lobola letter to the tribal chief for certification.
In dismissing Malatjie’s case, the judge said that given the evidence by Sekgobela, it was clear that the deceased was already legally married when he married his second wife.
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