Am I Married Under Customary Law?”

Tsambo v Sengadi shows that you may be legally married under customary law even if some traditional rituals were not performed in the traditional manner.

In Tsambo v Sengadi (244/19) ZASCA 46, the Supreme Court of Appeal (“SCA”) gave important guidance on when a South African customary marriage will be regarded as valid, even if not every traditional ritual was performed in the classic way. The judgment is best known as the “HHP case”, because it concerned the late musician Jabulani “HHP/Jabba” Tsambo and his partner, Lerato Sengadi.

The central dispute was whether a valid customary marriage existed between HHP and Sengadi. His father argued that they were not married because a separate, formal “handing over of the bride” ceremony, with slaughtering of an animal and bile rituals (“go gorosiwa”), had never taken place. At most, he said, the parties had reached lobola agreement and held a celebration – but marriage, in the full customary sense, was still to come. Sengadi, on the other hand, argued that their lobola negotiations, the way she was treated on the day, and their life together afterwards all pointed to a completed customary marriage.

The SCA took a modern, realistic view of customary law. It emphasised that the Recognition of Customary Marriages Act 120 of 1998 requires three things for a post‑Act marriage: both parties over 18, both consenting to be married under customary law, and a marriage that is “negotiated and entered into or celebrated in accordance with customary law”. The Act deliberately does not spell out every ritual, because it defers to living customary law – how a particular community actually practices its customs today, not how they are described in old textbooks or case law.

On the facts, the couple’s story strongly supported a marriage. HHP proposed in Amsterdam; both families agreed to follow African custom; lobola was formally negotiated at Sengadi’s family home; a written agreement was signed; and HHP paid more than the required deposit immediately thereafter. During the celebrations, his aunts dressed Sengadi in what they expressly called her “wedding dress”, matching HHP’s attire, introduced her publicly as his wife and welcomed her into the Tsambo family. His father hugged and congratulated her as his son’s wife. Thereafter, the couple lived together as husband and wife, and she even registered him as her “spouse” on her medical aid.

The father tried to resist this by relying on earlier cases that treated the physical “handing over of the bride” at the groom’s homestead as a decisive requirement for validity. The SCA rejected such a rigid approach. Building on its earlier decision in Mbungela v Mkabi, the court reaffirmed that the handing over is important in many communities, but it is not always a strict, make‑or‑break element. Customary law is dynamic and evolving. In practice, families may abbreviate or adapt rituals due to cost, time pressures, or personal choices, and that flexibility has always existed in customary law.

What the court looked at was the overall picture: did the families and the couple themselves behave in a way that shows they intended and understood a customary marriage to have been concluded? In this case, the answer was yes. The dressing of the bride by the groom’s aunts, her formal introduction and acceptance as a wife, the father’s congratulations, the joint celebration, and subsequent cohabitation all pointed to a completed marriage, not an incomplete lobola process with a marriage still pending.

An important procedural aspect was that the matter came before the High Court on motion (affidavits), and the father argued there were factual disputes requiring oral evidence. The SCA applied the Plascon‑Evans rule and found there was, in truth, no genuine dispute of fact. Sengadi’s version was detailed and supported by affidavits and video; the father responded largely with bare denials, and failed to file confirmatory affidavits from the very people (such as the aunts) who could have supported his account. In such circumstances, courts are entitled to accept the applicant’s version and decide the case on paper.

The SCA upheld the High Court’s core outcome – that a valid customary marriage existed and that Sengadi was HHP’s lawful customary wife – but corrected one overreach. The High Court had gone on to declare the “handing over” custom unconstitutional, even though no one had pleaded or argued that issue. The SCA stressed that courts may not casually strike down customs or laws on their own motion; constitutional issues must be properly raised, necessary to decide, and fully argued by the parties.

For clients and practitioners, the practical messages are clear:

• A customary marriage will not fail just because a particular ritual (such as a formal handover ceremony) did not happen exactly as described in older precedent.
• Courts will look at intention, conduct and community practice: were lobola negotiations concluded, did the families celebrate the union as a marriage, and did the couple live as spouses with family acceptance?
• Registration at Home Affairs is important for record‑keeping, but non‑registration does not automatically invalidate an otherwise valid customary marriage.

In short, if your families and community treated you as married, a court may well agree – with major consequences for inheritance, maintenance, and funeral and decision‑making rights.

 

How to Register Your Overseas Marriage with Home Affairs (South Africans Married Abroad)

 

A client asked: I married a South African who is in America on a visa. How do we legally register our marriage with South Africa now?”

Many South Africans marry abroad and later discover that their marriage is not automatically captured on the South African population register. Here is a practical outline of how to register a U.S. marriage with the Department of Home Affairs while you are still overseas.

In theory – although not always smoothly in practice – you should be able to follow these steps to have your marriage recorded in South Africa:

1. Get a certified copy of your marriage certificate
   Obtain the official marriage certificate issued by the authority in the U.S. state where you got married.
   
   
2. Have the marriage certificate apostilled
   Because both the U.S. and South Africa are parties to the Hague Apostille Convention, the marriage certificate must be apostilled by the relevant U.S. authority (usually the Secretary of State in the state where the marriage took place).
   
   
3. Complete the required Home Affairs form
   Download and complete form BI‑130 (Notification of Marriage) from the South African Department of Home Affairs.
   
   
4. Submit your documents via the South African mission
   Lodge the following with the nearest South African Embassy, High Commission or Consulate in the U.S.:
• Certified copy of your marriage certificate with apostille
• Completed BI‑130 form
• Certified copies of both spouses’ passports
• If you are South African, a certified copy of your SA ID book or smart ID card
• Proof of South African citizenship (if applicable)
• Any additional documents the mission may request
  
  
5. Processing by Home Affairs
   The consulate will send your documents to Home Affairs in South Africa for processing. Once finalised, your marriage should be recorded on the National Population Register.
   
   
6. Follow up regularly
   Stay in contact with the consulate or mission to track progress. Processing times vary and delays are common.

Additional points to keep in mind

• If either spouse was previously married, you will usually need to provide proof that the prior marriage has legally ended (divorce decree or death certificate).
• There is no fee to register the marriage itself, but the mission may charge consular fees for certifying or notarising documents.

In practice, delays, lost documents and inconsistent feedback from Home Affairs are common, so it is wise to keep copies of everything and to follow up politely but persistently.

 

How Do You Contest a Will or Deceased Estate in South Africa?

When someone passes away, what happens to their belongings, money, and property can lead to disputes. This is especially true if family members or heirs feel the will is unfair, invalid, or was influenced improperly. South African law provides clear ways to challenge (contest) a will or the administration of a deceased estate, but the rules are strict to protect the true wishes of the deceased.

When Can You Contest a Will?

You cannot challenge a will simply because you don’t like its contents. South African law allows you to contest a will only under specific circumstances, including:

• Lack of Mental Capacity: If the deceased (the testator) wasn’t of sound mind when signing the will.
• Undue Influence/Coercion: If someone pressured or manipulated the deceased into changing their will.
• Fraud or Forgery: If you suspect the will is fake, includes forged signatures, or was signed under false pretences.
• Failure to Follow Formalities: The will must be in writing, signed by the testator, and signed in front of two competent witnesses. If these rules weren’t followed, it’s invalid.

Who Can Contest?

• Heirs or Beneficiaries: Those named in the will or those who would inherit if there was no will (for example, close family members).
• Interested Parties: People who believe they should have inherited, creditors, or anyone with a direct interest in the estate.

Step-by-Step: How Do You Contest a Will or Estate?

1. Lodge an Objection with the Master of the High Court

• File a written objection explaining why you believe the will or the estate administration is invalid. Attach any evidence you have (medical records, correspondence, proof of undue influence, etc.).

2. Place a Caveat (Hold) on the Estate

• This legal notice tells the Master and executor not to distribute assets until the dispute is settled. It prevents heirs from getting their share before your concern is addressed.

3. Await Review and a Possible Court Referral

• The Master of the High Court reviews your objection. If the matter isn’t resolved, it can be referred to the High Court for a judge to decide.

4. Go to Court (if needed)

• In court, both sides will present their evidence. If the court agrees the will is invalid, an earlier will may be used, or—if none exists—the estate is divided according to the Intestate Succession Act.

What If There’s No Valid Will?

If the will is thrown out or there was never a valid will, the estate is distributed using a fixed formula set by the Intestate Succession Act 81 of 1987. This law automatically prioritises spouses, children, and close family. In a landmark case, the Constitutional Court ruled that old rules excluding some heirs (like women and children under male-only inheritance) were outdated and unconstitutional.

Example Scenario

Imagine your father passes away, and a new will (signed shortly before his death) leaves everything to his new partner, excluding his children. If you believe he wasn’t of sound mind, or was pressured to sign, you can lodge an objection with the Master of the High Court. This can halt the estate’s distribution and may lead to a court hearing. If the court finds the will was invalid, inheritance will either follow a previous will or default to the intestate succession law, ensuring children and spouses are still protected.

In Summary

• Only certain grounds—like mental incapacity, undue influence, and legal technicalities—allow you to contest a will or estate.
• The process starts by lodging an objection with the Master of the High Court.
• The estate’s distribution can be paused until the dispute is resolved.
• If successful, either an earlier will applies, or default inheritance rules are followed.
• Early legal advice is vital to protect your interests.

Need advice?

Let’s chat about your options.

www.bregmans.co.za |☎️011 646 0335 | ✉️info@bregmans.co.za 

Can a Joint Bank Account Be Frozen After Death in South Africa?

 

Here is a straightforward, layman’s explanation of what happens to a joint bank account after one holder dies in South Africa:

Account Gets Frozen After Death
If one of the people on a joint bank account in South Africa dies, the bank will freeze the entire account as soon as they are notified (usually after seeing the death certificate). This means nobody (including the surviving account holder) can draw money or make payments from this account.

Why is the Account Frozen?
South African law does not treat joint accounts in the same way as some other countries. The money in a joint account is not automatically passed on to the survivor. The deceased’s portion becomes part of their estate, which must be sorted out and managed by a court-appointed executor.

No Access Until Estate Is Processed
All direct debits and transactions from the joint account stop. The surviving partner or spouse will need to open a new bank account in their own name. The money in the frozen account will only be released to the survivor once the executor finishes their work, which can take some time.

What Should You Do?
It’s wise to set up separate bank accounts, emergency funds, or life insurance, so that loved ones are not left without access to money immediately after a death. This is especially important to cover day-to-day living and funeral costs.

In Summary:
In South Africa, if you have a joint bank account and your co-account holder dies, the bank will freeze the whole account. You will not be able to get any of the money until the estate is sorted out. Plan ahead so you (and your family) have another way to pay for urgent needs during this time.

The account typically stays frozen for several weeks to a few months, depending on how quickly paperwork is sorted and the court-appointed executor is able to act. Delays are common, so it is wise to plan for this by having other funds available for immediate needs

If you need more details on the legal process or assistance with estate planning, it is recommended to speak to a lawyer or financial advisor familiar with South African law.

When Your Antenuptial Contract Locks in the Numbers: Lessons from Manelis v Manelis on the Accrual System

The Supreme Court of Appeal in Manelis v Manelis ZASCA 55 has delivered an important judgment on how commencement values in antenuptial contracts operate under the accrual system. The Court held that where spouses expressly record the commencement value of their estates in the antenuptial contract, those values are contractually binding and serve as conclusive proof between them, unless the contract is successfully attacked on recognised common-law grounds such as fraud, misrepresentation, duress, undue influence or common error (with rectification). ​

The dispute arose in a divorce between spouses married out of community of property with accrual. The husband’s commencement value was recorded in the ANC as R68,7 million, which the parties later agreed equated (after CPI adjustment) to R129 million shortly before dissolution of the marriage. The wife argued that this value was overstated and tried to rely on section 6(3) of the Matrimonial Property Act 88 of 1984 to “re-open” the commencement value and prove a lower figure, which would have created a substantial accrual claim in her favour.​

There were conflicting High Court decisions on whether section 6(3) makes the ANC only prima facie proof of commencement values or whether it applies only where no value is declared and a later notarial statement is used. The SCA resolved this by drawing a sharp distinction:​

• If a commencement value is declared in the antenuptial contract, the ANC is governed by ordinary contract law, and the value is binding and conclusive.​
• Section 6(3) applies only where no value is declared in the ANC and a later statement is made, or where the value is deemed nil under section 6(4)(b); in those situations, the statement or deemed nil value is only prima facie proof and may be rebutted by evidence.​

On the facts, the wife did not attack the ANC on contractual grounds and, crucially, even on her own expert’s evidence the husband’s estate at divorce was worth less (about R117,2 million) than the CPI‑adjusThe Supreme Court of Appeal in Manelis v Manelis ZASCA 55 has delivered an important judgment on how commencement values in antenuptial contracts operate under the accrual system. The Court held that where spouses expressly record the commencement value of their estates in the antenuptial contract, those values are contractually binding and serve as conclusive proof between them, unless the contract is successfully attacked on recognised common-law grounds such as fraud, misrepresentation, duress, undue influence or common error (with rectification). ​

The dispute arose in a divorce between spouses married out of community of property with accrual. The husband’s commencement value was recorded in the ANC as R68,7 million, which the parties later agreed equated (after CPI adjustment) to R129 million shortly before dissolution of the marriage. The wife argued that this value was overstated and tried to rely on section 6(3) of the Matrimonial Property Act 88 of 1984 to “re-open” the commencement value and prove a lower figure, which would have created a substantial accrual claim in her favour.​

There were conflicting High Court decisions on whether section 6(3) makes the ANC only prima facie proof of commencement values or whether it applies only where no value is declared and a later notarial statement is used. The SCA resolved this by drawing a sharp distinction:​

• If a commencement value is declared in the antenuptial contract, the ANC is governed by ordinary contract law, and the value is binding and conclusive.​
• Section 6(3) applies only where no value is declared in the ANC and a later statement is made, or where the value is deemed nil under section 6(4)(b); in those situations, the statement or deemed nil value is only prima facie proof and may be rebutted by evidence.​

On the facts, the wife did not attack the ANC on contractual grounds and, crucially, even on her own expert’s evidence the husband’s estate at divorce was worth less (about R117,2 million) than the CPI‑adjusted commencement value of R129 million. Since accrual is the amount by which the net value at dissolution exceeds the commencement value, there was no positive accrual in his estate and no claim arose. The SCA therefore dismissed the appeal with costs, including the costs of two counsel and the condonation application for late filing of the record.​

For practitioners and clients, the message is clear: commencement values recorded in an ANC are not just a formality; they are the backbone of future accrual calculations. Parties should ensure they understand and agree to these values at the time of contracting, because they will be bound by them unless the ANC itself can be set aside or rectified on solid legal grounds.​