Customary Marriages in South Africa

One of the most widely interpreted and misunderstood Acts in South Africa in my opinion has to be the Recognition of Customary Marriages Act 120 of 1998. This Act provides for the proper governance and procedural structure of the customary law marriages.

Even after years of its promulgation, there is still majority of people living in South Africa being negatively affected by entering into a customary law marriage.

This article provides for the interpretation of the aforementioned Act, case law dealing with the institution of customary law marriages as well as the public opinion around the perception of what constitutes as a valid customary law marriage.

CUSTOMARY MARRIAGES IN SOUTH AFRICA

Section 3(1) of the Recognition of Customary Law Marriages Act 120 of 1998

The understanding of the procedure, stems from the principle of the Act that which deals with the requirements of entering into a valid customary marriage.

However, before we get into the requirements we should first deal with the definition of what customary marriages are. A customary marriage is understood as being entered into in accordance with the traditions and customs of indigenous African customary law.

Section 3(1) of the Act deals with the requirements of entering into a valid customary law marriage and explains it as follows:

  1. The marriage must be negotiated, and entered into or celebrated in accordance with customary law;
  2. The marriage must be entered into in line with the traditions and customs of the parties involved;
  3. The parties involved must be 18 years or older, and if not then consent is required from the minors parent or guardian;
  4. The parties must be competent to marry each other, i.e must not be blood relatives;
  5. Both the parties must consent
  6. The marriage must be lawful.

According to public perception it is a prerequisite for the man getting married to provide lobola or magadi to the woman’s family, or that lobola be exchanged between the parties involved. However we can make out from the above requirements that this is not the case.

SENGADI V TSAMBO (40344/2018) [2018] ZAGPJHC 613 (3 NOVEMBER 2018)

A recent and very popular case that had most of the public ranting was the case of Hip Hop Artist’s wife being restricted from attending and being involved in the funeral arrangements of her late husband married in terms of customary law.

The restrictions were made by the deceased’s family in that alleging that she was not their sons lawful wife in terms with customs and tradition and as a result should be banned from the proceedings as she did  not have  a claim to the deceased’s body or home.

The urgent application to the High Court.

The Applicant/Plaintiff in the above case, Lerato Sengadi, alleges in an affidavit to how her customary marriage to the deceased had been entered into. She makes reference to the deceased, Jabulani Tsambo also known as HHP (stage name), proposing to her and her accepting the marriage proposal. She makes reference to the Tsambo family writing a letter to discuss lobola negations with her family, as this is tradition and custom. The Tsambo family attended the negotiations days later and agreed upon a bride price/lobola to the amount of R45 000 .00. The deceased deposited R30 000.00 into the Applicant’s mothers account and promised to pay the outstanding amount in two instalments.

She further alleges that on the day of the negotiations the two families celebrated as per custom and tradition.

In closing she confirms that according to the Act, and customs she and the deceased entered into validate a lawful customary marriage.

The court agreed and declared that they had been in a valid customary marriage and thus she is entitled to be treated and seen as such by the deceased’s family.

It was submitted that the Applicant was wronged by the Respondents, whom are the deceased’s father and uncle, and they must therefore allow the Applicant to prepare her deceased’s husband funeral as she she’s fit.

This was a very interesting case since the public was convinced that Lerato Sengadi could not be recognized as the lawful wife since her deceased husband failed to pay the outstanding amount of lobola.

As much as it is custom, lobola does not regard a customary marriage valid or invalid.

The court also made reference to the fact that should a “husband” pay his “wife’s” bride price and a celebration in terms of custom and/or tradition not take place. Then the “husband” and wife” move into their “marital” home, this will merely be regarded as cohabitation and not a valid customary marriage.

Therefore what we tend to forget or ignore is that the validity of a customary marriage depends on the negotiation and celebration of the two families at the time of institution.

It is common cause to understand the effects of customary marriage before entering into it, as this will affect the termination thereof either through death or divorce.

Therefore moving forward it is imperative for these requirements and more like them to be interpreted in such a way as to make reference to each custom and culture individually and not generalize or blanket the issue of customary marriage to one meaning.