By Lehlohonolo Lehana.
The Supreme Court of Appeal has granted Nkosinathi “Black Coffee” Maphumulo leave to appeal the 2025 High Court ruling that validated his customary marriage to Enhle-Mbali Mlotshwa.
The judgment had declared the couple’s May 2011 customary marriage valid and in community of property, and found that their civil marriage in January 2017 was void, which Black Coffee disputes.
At the heart of the appeal are two contested questions of law, whether a valid customary marriage ever existed, and whether the maintenance award in favour of Mlotshwa was correctly granted.
Black Coffee argues the high court judge erred in both respects, claiming there was no factual basis for the spousal maintenance order and that earlier evidence did not support consent to a customary marriage.
He further argued that the issues concluded in the main judgment are of considerable importance and that there is a reasonable prospect that the SCA will come to a different conclusion.
Regarding the order that he had to pay her maintenance, he argued that entitlement to maintenance must first be shown before a decision is made.
According to him, there was no factual basis for his wife’s claim as she failed to show need, quantum, and duration. He said that substantial amounts are paid regularly to her.
In opposing the leave to appeal application, Mlotshwa argued that Black Coffee raised new points that were not adduced as evidence during trial proceedings.
She said the evidence showed clear compliance with customary law requirements and that his participation in family processes and rituals demonstrated consent.
Mlotshwa added that the court was correct to state that customary law must reclaim its position among existing legal positions, and therefore, the matter has no prospects of success on appeal.
A customary marriage is a union between a man and one or more women, which is concluded in terms of African customary law. This means that the marriage must comply with traditional customs and ceremonies like negotiations between families, payment of bride wealth (lobolo), and handing over of the bride to the groom’s family.
A customary law union is recognised as a valid marriage by the Recognition of Customary Marriage Act of 1998 (RCMA). It makes a customary marriage automatically in community of property unless the parties exclude it in a contract before the marriage is concluded.
Community of property means that all wealth and liabilities that accrue during the marriage are shared equally between the parties if they divorce. This is the default position for all marriages in South Africa.
The parties contracted a marriage in terms of Zulu customary laws. After that, they contracted a civil law marriage. This later marriage included an antenuptial contract. This document underscores the dispute.
An antenuptial contract is a legally binding agreement undertaken before marriage, usually to regulate finances in the union. It allows parties to decide how to share their estate.
This case affirms the legitimacy of customary marriages in South Africa. Beyond this, it settles a longstanding question: how does a civil marriage between parties affect their earlier customary marriage to each other? Historically a later civil marriage legally replaced the customary marriage. But the marginalised status of customary marriages has been ended by the Recognition of Customary Marriages Act.