The divorce proceedings between Black Coffee (Nkosinathi Maphumulo) and Enhle Mbali Mlotshwa turned primarily on whether the parties had concluded a valid customary marriage in terms of South African law. This question was decisive because, if a valid customary marriage existed and no valid antenuptial contract had been concluded prior to the marriage, the marriage would be regarded as in community of property, which bears significant consequences for the patrimonial consequences of the divorce – i.e. the division of assets.
Mlotshwa contended that the parties entered into a valid customary marriage in or about May 2011. She relied on evidence of family involvement, lobola negotiations, payment of lobola and the performance of traditional rituals in accordance with the Zulu custom. Her case was that both parties consented to enter into a customary law and that the marriage was negotiated and celebrated in accordance with customary practices, thereby meeting the requirements set out in the Recognition of Customary Marriages Act 120 of 1998. She further argued that the later civil marriage concluded in 2017, together with an antenuptial contract, could not displace the earlier customary marriage, as any attempt to change the matrimonial property system after the commencement of a marriage requires judicial approval.
Maphumulo disputed the existence of a valid customary marriage. He contended that, although certain cultural events took place, there was no intention on his part to enter into a customary marriage in 2011. According to him, those events did not culminate in a completed marriage under customary law. He relied on various factors including the fact that the parties later became engaged and entered into a civil marriage governed by an antenuptial contract, which he argued reflected their true intention regarding the nature of their marital relationship.
Under South African law, a customary marriage will be deemed to be valid if both parties are over the age of 18, both consent to be married customarily, and the marriage is negotiated and entered into or celebrated in accordance with the applicable customary law. Courts do not require proof of any single defining ritual, but instead evaluate the evidence as a whole, including family participation, the conduct of the parties, and whether the customary process had reached a point where a marriage was regarded as having come into existence. Registration of the marriage is not a requirement for validity, although the absence thereof creates disputes which often require judicial intervention.
Where a valid customary marriage is concluded after the commencement of the Recognition of Customary Marriages Act and no valid antenuptial contract is entered into before the marriage, the marriage is, by default, in community of property. This results in the creation of a joint estate, equal sharing of assets and liabilities and restrictions on certain transactions without spousal consent. Importantly, parties cannot unilaterally alter this property regime after the fact by signing an antenuptial contract at a later stage; a post-nuptial change generally requires a court order.
In a judgment delivered on 10 October 2025, Acting Judge M. Ntanga of the Gauteng Division of the High Court, Johannesburg, found that the parties had concluded a valid customary marriage in 2011. The court held that the marriage was in community of property and that the subsequent civil marriage and antenuptial contract concluded in 2017 were legally ineffective in altering the consequences of the earlier customary marriage. The court accordingly recognised the customary marriage as the operative marriage for purposes of the divorce and granted relief consistent with a marriage in community of property, including spousal maintenance.
Following the High Court’s decision, Maphumulo applied for leave to appeal the judgment. That application was granted, with the appeal to be heard by the Supreme Court of Appeal. The appeal is expected to focus primarily on whether a valid customary marriage was ever concluded, with particular emphasis on the issue of consent, as well as certain aspects of the maintenance order. Importantly, the granting of leave to appeal does not overturn the High Court’s findings, but confirms that the issues raised are of sufficient legal importance to warrant reconsideration by the SCA.
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