The Mpumalanga High Court issued a significant ruling declaring a second customary marriage invalid after finding it was entered into without the consent of the first wife. Deputy Judge President Ratshibvumo ruled that the marriage between the late L.D.M. and F.N. was invalid and unlawful because it occurred without the knowledge or consent of his first wife, N.R.M.
The case arose following the tragic death of the 43-year-old L.D.M. in a motor collision in February 2023, which triggered a legal battle over his estate and marital validity. L.D.M. initially married N.R.M. in January 2017 following customary negotiations between their families, where lobola of R12,000 in cash and thirteen cattle, was agreed. The cash portion was paid immediately. They lived together and had a child but did not register their marriage with the Department of Home Affairs (DHA).
In April 2019, L.D.M. began a relationship with F.N. and moved out of his family home. In November 2020, the two entered a civil marriage at the DHA in Tonga and in December 2021, he paid lobola of R20,000 for her, celebrating both civil and customary unions.
Throughout this time, N.R.M. was unaware of the second marriage and did not consent to it. Furthermore, their marriage (the first marriage) was never legally dissolved through divorce proceedings. N.R.M. argued that the second marriage should be declared void ab initio (from the beginning) because she did not consent to it and her marriage to L.D.M. had not been legally dissolved.
F.N. argued that the N.R.M’s marriage to L.D.M. had irretrievably broken down, as evidenced by L.D.M. moving out and paying child maintenance through a court order. She alternatively argued that both marriages should be recognised as valid customary marriages under the Recognition of Customary Marriages Act.1
The court relied heavily on the Constitutional Court’s Mayelane v Ngwenyama decision, which established that the consent of the first wife is a constitutional requirement for subsequent customary marriages. It noted that allowing a husband to marry without his first wife’s consent undermines her rights to equality and human dignity. Judge Ratshibvumo emphasised that the right to dignity includes “the right-bearer’s entitlement to make choices and to take decisions that affect his or her life,” and that a wife lacks effective autonomy over her family life if her husband can take a second wife without her consent.
Consequently, the court dismissed F.N.’s argument that the breakdown of N.R.M’s marriage validated the second marriage. Even if the allegations of an irretrievable breakdown were true, the court noted, it does not automatically validate a subsequent marriage. It stressed that only a court can grant a divorce decree, and until then, the first marriage remains valid.
And just like that, a two-year marriage evaporated into thin air, further illustrating (yet again) the need for the legislature to make it mandatory for customary marriages to be registered with the DHA.
You can read the full N.R.M v F.N judgement here.
Written by Theo Tembo
Read more on marriages from the courts:
- 120 of 1998. ↩︎
The Legal Desk 
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