Judge seeks clarity in marriage dispute over a 12-year-old bride

A legal tussle between two widows over who was married to the deceased at the time of his death, with the applicant claiming she married him when she was 12 years old, was so unclear to a judge that he referred the matter for oral evidence to be presented to the court.

The Gauteng High Court, Johannesburg, said it could simply not determine the facts on papers, including how a 12-year-old was able to get married in the 1970s, as claimed by the applicant.

The applicant, Ms M, approached the court seeking a declaration that her marriage to B, who is now deceased, is valid at customary law.

The first respondent, Mrs T, in countering the application, said she was married to the deceased at the time of his death. She claimed that by that time, the deceased and the applicant were divorced.

M explained in court papers that at the time the marriage between her and the deceased took place, he was 20. She claimed that as a 12-year-old in the 1970s, her parents “gave” her to the deceased to marry.

She stated that by virtue of an agreement, the marriage was valid at customary law. Both her parents are now deceased.

Judge Stewart Wilson remarked that the evidence is insufficient on the papers concerning almost every material fact that he would have to determine to decide this application.

“I do not know what customs governed the marriage that allegedly took place in the 1970s between Ms M and Mr B, when Ms M was 12. I do not know whether those customs would have tolerated a marriage between a 20-year-old and a 12-year-old, even with parental consent.”

The judge added that he also does not know what customs would have been necessary to conclude an ordinary marriage between two adults under the applicable customary law. Nor does he know whether it is possible to divorce in terms of the customary law that applied to the parties at the time.

In their papers, neither of the parties dealt with the form of customary law applicable at the time, or the content of that law. “Much in these papers is done by way of bare assertion. It is asserted that Ms M married Mr B with her parents’ consent. It is asserted by her relatives that that marriage took place. It is equally starkly asserted by Ms T that the marriage was dissolved by the traditional leader with jurisdiction over Ms M’s ancestral home.”

The judge said the traditional leader’s evidence on affidavit is itself unsatisfactory, since it is common cause that he is blind, and yet he alleges in his affidavit that he has read the papers in this case.

“I do not say that a blind person cannot read legal papers. I say only that where a blind person claims to have done so, it is necessary to state the form in which the papers were made available to them.”

The judge also made it clear that he is not suggesting that anybody involved in this matter is lying or is in bad faith.

“What I do suggest is that the facts that have been placed before me are wholly insufficient for me to decide a matter as important to the parties as this.”

He concluded that this is a matter that ought to be referred to trial, but he advised that they first try to narrow their disputes down via mediation.

zelda.venter@inl.co.za