Abstract

Keywords

Customary marriages; customary union; Recognition of Customary Marriages Act; RCMA, registration of customary marriages; peremptory provision; directory provision; civil marriages; consent spouses; consent of the bride’s parents; lobolo; handing over bride; repugnancy clause; polygamy; Minister of Home Affairs.

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A customary marriage is defined as "a marriage concluded in accordance with customary law". 1

* Matthews Eddie Nkuna-Mavutane. B Mil (HOD) BPA (Hons) LLB MPA LLM. Lecturer in Public and Mercantile Law, Stellenbosch University, South Africa. ORCiD: https://orcid.org/0000-0002-1710-3159. Email: menkuna@sun.ac.za. The article is inspired by knowledge gathered while researching a LLM mini dissertation titled "The effect of the non-registration of customary marriages on the dissolution of the estates of deceased persons."

** Juanita Jamneck. BLC LLB LLD (UP). Professor in Private Law at University of South Africa. ORCiD: https://orcid.org/0000-0003-4282-7033. Email: jamnej@unisa.ac.za.

1 Section 1 of the Recognition of Customary Marriages Act 120 of 1998 (hereafter the RCMA). The same statute defines customary law as "the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples".

The last of the trilogy is not explored because within indigenous Africans, multiple tribes (ethnicities) 3

3 This is sometimes described as a nation, for instance, the Zulu nation.

The first segment (first and second parts of the trilogy) is vital as events need to be understood in line with the history of apartheid in South Africa which has influenced how customary marriages are perceived. The apartheid regime was replaced by a democratic and constitutional governance system which also had an impact on how we view customary marriages. These two eras make it important to appraise how the

requirements for the validity of a customary marriage were affected over time. Furthermore, their status over time is also important.

As part of the historical appraisal, it is vital to determine what changed due to the new democratic constitutional dispensation. This era is rich in terms of case challenges. It shapes what is now viewed as the current requirements for a customary marriage.

The above briefly sets the tone as to what the authors intend to achieve, namely an appraisal of the requirements set for the validity of a customary marriage in South Africa. This will ultimately determine whether a static or flexible approach is followed in determining if a customary marriage meets the set requirements of validity. To arrive at a conclusion on this matter, the following issues are explored: the distinction between peremptory and directory provisions (this is necessitated by the fact that similar terms are used in determining if a customary marriage meets the requirements for the validity), the requirements for the validity of a customary marriage prior to the RCMA and its legal status, the legal status and requirements for the validity of a customary marriage set by the RCMA, concretisation of requirements in the RCMA era and principles associated with the interpretation of customary law, such as principles embodied in the Constitution.

It is commonly accepted that when one interprets statutes, one must distinguish between provisions that are peremptory and those that are directory (see Table 1). The distinction between these two terms is not cast in stone in the new constitutional order; it merely serves as guidance and the dictates of the Constitution play a more pivotal role in determining how a provision should be comprehended. In addition to this, the purpose of whatever legislation one deals with and the consequences of the non-adherence to the legislation, are the final determinants of the status and interpretation of a provision or statute. 4

4 Weenen Transitional Local Council v Van Dyk [2002] 2 All SA 482 (A) para 13; Botha Statutory Interpretation 175-176. For more factors that may be considered in arriving at a decision whether a provision is peremptory or directory, see Du Plessis Re-interpretation 250-251.

Table 1: Distinction between peremptory and directory provisions 5

5 Adapted from Botha Statutory Interpretation 175-176.

In most instances where the statute states what will happen if there is non-compliance with its provisions, the distinction becomes unnecessary. However, the opposite may be true. When the statute does not prescribe what will occur if there is non-compliance, it is left to the courts to determine if a provision is either peremptory or directory. Over and above the issues stated in the preceding paragraph, a court can rely on semantic guidelines, jurisprudential guidelines and presumptions about specific circumstances. 7

7 Botha Statutory Interpretation 175-180. See Du Plessis Re-interpretation 250-254 for a discussion of these guidelines without putting them in the three broad categories.

The above distinction not only applies to statutes but has also been applied in determining the requirements for the validity of a customary marriage. 8

8 In Fanti v Boto [2008] JOL 21238 (C) (hereafter the Fanti case), the court ruled that in the absence of the handing over of the bride, there is no customary marriage.

Customary marriages existed prior to the new constitutional order and the RCMA. As such, one must examine the requirements for its validity prior to the commencement of the RCMA. This is further necessitated by the fact that the RCMA recognises monogamous and polygynous customary marriages concluded prior to its commencement and the validity of such marriages may also be at the centre of court proceedings. 9

9 Section 2(2) of the RCMA. See, for instance, Gumede v President of the Republic of South Africa 2009 3 SA 152 (CC) para 6 (hereafter the Gumede case). The marriage between Mr and Mrs Gumede was entered into on 29 May 1968.

As previously stated, the requirements for validity vary from ethnicity to ethnicity. As a result, the below narration is based on what is commonly

accepted to apply to the various tribes and does not incorporate any changes related to the codification of customary law.

When one deals with the requirements for the validity of a customary marriage prior to the commencement of the RCMA, one comes across the words "essential and non-essential requirements." 10

10 Mmutle v Thinda (20949/2007) [2008] ZAGPHC 352 (hereafter the Mmutle case) para 12; Bekker Seymour's Customary Law in Southern Africa 105-109. Prior to the RCMA these requirements were found in academic writings and in case law. Thus they had the status of law through their application by our courts (through the principle of stare decisis). Courts are still guided today by legal academic writings when addressing customary law challenges. Over and above this general avenue, Natal (which was a province) and Transkei (which was a homeland), had legislative instruments dealing with customary marriages. In Natal the Natal Code of Zulu Law, Proc R151 in GG 10966 of 9 October 1987 applied to Zulu customary marriages and Transkei customary marriages were regulated by the Transkei Marriage Act 21 of 1978.

The requirement of consent of the bride and bridegroom (spouses) was not always strictly adhered to. Due to public policy 13

13 This relates to the so-called "repugnancy clause". The failure to obtain consent from the spouses was viewed as being against this clause. See Zulu v Mdhletshe 1952 NAC 203 (NE); Mgomezulu v Lukele 1953 NAC 143 (NE); Bennet Customary Law in South Africa 199.

consent can further be inferred if the parents allowed the spouses to cohabit without demanding that lobolo be negotiated prior to such continued cohabitation. 16

16 Bekker Seymour’s Customary Law in Southern Africa 106; Bennet Customary Law in South Africa 205-207.

When all the consents are attained, the actual negotiation for a customary marriage commences. This culminates in the payment of lobolo. Traditionally, this was in the form of cattle. 17

17 See Lutoli v Dyubele 1940 NAC (C & O); Mvolo v Bokleni 1948 NAC (S) 62.

After the payment of lobolo, it is anticipated that there will be a handover of the bride. 20

20 Bakker 2022 PER 3 states that it is more desirable to use the term "integration of the bride." This shows the purpose as opposed to an activity.

The handover is premised on the notion that the bride still lived with her parents. The handing over is aimed at ensuring that the bride officially becomes part of her husband’s family (is integrated) and symbolises that the bride has been brought and accepted into the kraal of her new in-laws. 23

23 Mbungela v Mkabi [2019] JOL 45887 (SCA) para 25 (hereafter the Mbungela case); Bakker 2022 PER 3.

was ukuthwala 25

25 Himonga et al African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives 294 define this custom as "literally meaning 'to carry away', the custom to which a man and a woman resort where they agreed to marry each other, but there is an obstacle to their marriage and that becomes a delict when it does not result in a negotiated marriage because of the refusal of the bride’s family to consent to the marriage". This needs to be differentiated from the abduction and forced marriage of children. Last mentioned must be treated as abduction and be prosecuted since it is against the law.

During the handing over certain ceremonies are performed to introduce her to her in-laws’ ancestors. During this process, she will be introduced to how her in-laws do things. 27

27 Moropane v Southon 2014 JOL 32177 (SCA) para 40 (hereafter the Moropane case); Himonga et al African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives 100; Mwambene 2017 AHRLJ 42; Bakker 2018 PER 3; Manthwa 2021 TSAR 207.

If all the above requirements were met, there was a possibility that the government of the day prior to the commencement of the RCMA would recognise such a union (not marriage). 28

28 Section 1 of the Black Administration Act 38 of 1927 defines a customary marriage as "an association between a man and a woman". See also Osman 2019 PER 3. There is a distinction between a mere association and a marriage. Maithufi 1986 De Rebus 555 advances the notion of the unequal status of a customary marriage and a civil marriage. Rautenbach 2008 EJCL 2-3 states that this unequal status began in 1652 and continued over a long period of time. See also in this regard: Mwambene and Kruuse 2015 IJLPF 237; Maithufi and Bekker 2002 CILJSA 183-184. Chidoori 2009 Agenda 51-52 also advance the argument that prior to the adoption of the Interim Constitution (Constitution of the Republic of South Africa Act 200 of 1993), no recognition was given to customary marriages; instead, they were viewed as unions. See also Mrapukana v Magwaxaza [2008] JOL 22875 (C) para 20 (hereafter the Mrapukana case); Jamneck 2014 PER 978; Mamashela 2004 SAJHR 617; Herbst and Du Plessis 2008 EJCL 1.

It should be noted that prior to the RCMA, customary marriages did not have the legal status of a marriage. They were merely recognised as customary

unions and their recognition was not on the same footing as that of civil marriages.

The recognition of customary marriages reached a milestone with the promulgation and commencement of the RCMA. 30

30 This brought about an end to an era of non- or partial recognition of customary marriages. Prior to the RCMA customary marriages were merely seen as unions at most - see s 1 of the Black Administration Act 38 of 1927; Osman 2019 PER 3; Maithufi 1986 De Rebus 555.

Customary marriages concluded after the commencement of the RCMA are valid if they comply with section 3 of the RCMA. 32

32 Himonga et al African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives 294.

The requirement of age and consent of the spouses is twofold. Both spouses need to be 18 years or older. In addition to the age requirement, both spouses need to consent to getting married to each other in terms of customary law. 35

35 Section 3(1)(a) of the RCMA; Bennet Customary Law in South Africa 203-204; Bakker 2018 PER 2; Bakker 2022 PER 2.

or any person duly delegated by the minister to consent to a marriage of a minor if it is in the best interest of a minor. 37

37 Section 3(4) of the RCMA; Bennett Customary Law in South Africa 203-204. This stipulation is most likely to remain an illusion as customary marriages often occur outside the ambit of administrative authority. In most instances, authorities only know about their existence after their first year of existence or when disputes arise (divorce or estate matters). As a result, it is less likely that the provision will be given effect to or tested in real life.

When all the consent issues are settled, there is a negotiation or celebration(s) of the marriage. 38

38 According to Himonga et al African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives 103, this requirement was left open ended. This was due to the difficulty of attempting to capture the requirements of different ethnicities. The advantage of this being open ended is that it allows for culture to evolve with time and for courts to apply the actual living customary law. See also Bakker 2022 PER 1-2, who argues that s 3(1)(b) of the RCMA brings the living law into the Act. This view is supported by cases such as the Moropane case 39-40 and the Gumede case para 29. In essence, issues discussed in paragraph 3 find meaning and/or existence in this subsection. It should be further noted that requirements in this subsection only need to be "generally" observed. This classifies them as directory. See further Ngwenyama v Mayelane 2012 10 BCLR 1071 (SCA) para 23; Bakker 2022 PER 14.

It should be noted that negotiation is an important aspect of a traditional marriage. It should not be used as a mere formality of simply agreeing on the lobolo terms. The two families must agree on what must occur for the marriage to be valid. 41

41 Cultural differences may come into play when consensus on the requirements of validity is discussed during negotiations. If both spouses are of the same ethnicity, they are most likely to adhere to the same requirements of validity for the customary marriage. However, this may not always be the case. In instances where the prospective spouses come from different ethnicities and have, to some extent, been influenced by the area in which they live, there is a strong need for them to be clear on the requirements to be met.

The issue pertaining to a celebration 43

43 In the Maluleke case para 8, it was accepted that the term refers to "festivities or performance of a rite or ceremony". See also Himonga et al African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives 103.

The presence of relations through blood or affinity is one of the matters that must also be concretised when one deals with the requirements set by section 3 of the RCMA. In fact, if it is discovered that all the requirements above are met but the spouses are related in a way that will cause their culture to not recognise their marriage, compliance with the above requirements would be in vain. The RMCA left it up to the customs of the prospective spouses to determine if the spouses are related or not related in a way that would prohibit a marriage between them. This requirement is aimed at preventing incest. In most instances, persons from the same clan or same surname are prohibited from marrying each other. Other provisions include the prohibition of marrying stepchildren, maternal and paternal aunts and uncles, etcetera. 47

47 Section 3(6) of the RCMA; Bennet Customary Law in South Africa 207-208; Himonga et al African Customary Law in South Africa Post-Apartheid and Living Law Perspectives 102-104.

Over and above the above-noted matters, one must also consider the requirements regarding polygamy according to the RCMA. The RCMA provides that those polygamous marriages concluded before its commencement would remain valid. In relation to those that came into existence after it, a husband must obtain a court-approved contract before

concluding any other further marriage. 48

48 Sections 2(1) and 7(6) of the RCMA; Himonga et al African Customary Law in South Africa Post-Apartheid and Living Law Perspectives 95-97; Bennet Customary Law in South Africa 247-248.

The concretisation of the work covered thus far links two vital sources of customary law, namely statutes and customs. Statutes are written by the legislature. Customary law is determined by those practising it. However, the eventual meaning of these sources of law (including how they must be interpreted) is ordinarily determined by the courts. This is often referred to as concretisation, contextualisation, harmonisation, correlation, or actualisation. 49

49 Botha Statutory Interpretation 159-161.

5.1 Payment of lobolo

The requirement of the payment of lobolo does not feature as an absolute requirement in the RCMA era. Despite this not being stated as a requirement, the practice itself is defined in the Act. Regulations made in terms of the RCMA make provision for the details of the lobolo agreement to be inserted into the customary marriage registration form. 50

50 See Form A in GN 1101 GG 21700 of 1 November 2000 (giving effect to reg 2).

Case law dictates otherwise. Based on the Maluleke case, the negotiation of a customary marriage culminates in the payment of lobolo. It was set as a requirement before the RCMA era. The payment of lobolo is thus mandatory. 51

51 The Maluleke case para 12; Bekker Seymour’s Customary Law in Southern Africa 107-108; Bennet Customary Law in South Africa 209-213; Bakker 2022 PER 7

A great deal of freedom is given to the negotiating families regarding the terms of marriage. As to what the quantum and type of lobolo are, the duty to pay it in full and how it will be paid are left to the two families. It is

advisable that this needs to be well documented in the lobolo agreement. This determines if a marriage is completed with or without lobolo. 52

52 The Mathaba case para 17; Himonga et al African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives 101.

5.2 Handing over of the bride

As with the payment of lobolo, the RCMA is not clear on the handing over of the bride. For many years, the handing over of the bride was seen as an essential item when one considers the requirements for a valid customary marriage to have been concluded. Many marriages were found to be invalid by the courts due to not complying with the requirement of handing over of the bride. 53

53 The Fanti case; Motsoatsoa v Roro [2011] 2 All SA 324 (hereafter the Motsoatsoa case); Machika v Mthethwa (55842/2011) [2013] ZAGPPHC 308 (hereafter the Machika case); Mxiki v Mbata [2014] ZAGPPHC 825 (hereafter the Mxiki case); Nhlapo v Mahlangu (59900/14) [2015] ZAGPPHC 142 (hereafter the Nhlapo case); DRM v DMK [2017/2016] [2018] ZALMPPHC 62 (hereafter the DRM case).

Some authors argue that the handover of the bride should be peremptory 56

56 Bakker 2018 PER; Bapela and Monyamane 2021 OBITER. See also Sibisi 2020 De Jure 95, who states that integration needs to occur but the manner in which it is done needs to change (some of the ceremonies associated with it may be "waived, varied or abbreviated"). Sibisi’s idea can be traced back to Bekker Seymour’s Customary Law in Southern Africa 108, who stated that the handing over need not be in a formal ceremony. In his recent article, Bakker 2022 PER 3 puts this in clear light. He argues that it is a requirement; however, parties are free to have it "waived, abbreviated, or modified". He further argues that s 3(1)(b) of the RCMA grants a court freedom to dispense of strict compliance with requirements. However, this should never be interpreted to mean that the customary law requirements are no longer essential.

by the importance of the custom (see paragraph 3) and certain case law stemming from the era before and after the RCMA. 57

57 The Fanti case; the Motsoatsoa case; the Machika case; the Mxiki case; the Nhlapo case; the DRM case.

There has, however, been a substantial departure from seeking strict compliance with this requirement. The current view is that the handing over can be dispensed with in a manner that does not require strict compliance. There is a strong and growing view that parties are free to dispense with this requirement or settle for alternative ways on how it should be done. 58

58 As already indicated, cases which opted for a strict interpretation of the handing over of the bride include the following: the Fanti case; Motsoatsoa case; Machika case; Mxiki case; Nhlapo case; DRM case. There is now a move towards a less strict adherence of the requirement as seen in the following cases: the Mbungela case; Tsambo case; FM v NR (CA04/2020; 6254/2018) [2020] ZAECMHC 22 (hereafter the FM v NR case); Pilato v Fakude [2021] JOL 53602 (MM) (hereafter the Pilato case); M v Road Accident Fund (28602/2017) [2020] ZAGPPHC 63 (hereafter the M v RAF case).

There is case law to the effect that if the parties were already cohabiting, the handing over can be done away with, and be deemed to have occurred constructively. 59

59 Road Accident Fund v Mongalo; Nkabinde v RAF [2003] 1 All SA 72 (SCA); Msutu v Road Accident Fund (18174/14) [2011] ZAGPPHC 232 (hereafter the Msutu case); the Mmutle case. In Mabuza v Mbatha 2003 4 SA 218 (C) (hereafter the Mabuza case), the integration (ukumekeza) and the handing over of the bride are not used interchangeably. From a purpose perspective, there should be no variance between these two. See also Bakker 2022 PER 7, who states that ukumekeza is but one of many traditions associated with the handing over of the bride.

As a result of the above-mentioned factors, parties are free to agree to do away with the physical handing over of the bride. This was the case in Mbungela v Mkabi. 60

60 The Mbungela case para 30.

An alternative view on the matter can be presented based on section 3(1)(b) of the RMCA. If parties negotiate and agree that there is no marriage in the absence of handing over the bride and such an agreement is put in writing, in their lobolo agreement, it is most likely to stand in court. 63

63 The Mmutle case para 11; the Maluleke case para 17.

5.3 Polygamy (dual marriages)

Polygamy 64

64 In its original meaning, it denotes having more than one spouse. With gender specifications, if a man has more than one wife, such an instance is referred to as polygyny. If it is a wife with more than one husband, it is called polyandry. In South African customary law, the latter is not recognised. The former is ordinarily referred to as the general term. See Himonga et al African Customary Law in South Africa Post-Apartheid and Living Law Perspectives 94.

The former situation presented many challenges prior to the RCMA. If such marriages complied with the essentials contained in paragraph 3, such polygamous marriages were recognised.

The issue is with the latter example. In the early days when customary marriages were still not afforded full recognition, a civil marriage was deemed to have "extinguished" the first customary marriage. 65

65 Nkambula v Linda [1951] 1 All SA 412 (A); Himonga et al African Customary Law in South Africa Post-Apartheid and Living Law Perspectives 102-104; S 3(6) of the RCMA; Bennet Customary Law in South Africa 207-208.

changes brought about the same protection afforded to spouses married in terms of civil rites. The Marriage and Matrimonial Property Law Amendment Act made the requirement of not being in a civil marriage peremptory. This has been strengthened in the RCMA which states that parties in a customary marriage are not eligible to conclude a civil marriage. 67

67 Section 3(2) of the RCMA; the Nhlapo case; Bennet Customary Law in South Africa 239-240. The only exception is in terms of s 10 which allows parties in a monogamous customary marriage to convert their marriage to a civil one. Note that the protection is not only afforded to customary marriages. In instances where the civil marriage was first, it will enjoy preference over any other customary marriage. See Ntsukunyane v Moleko [2013] JOL 30594 (GSJ); None v Tshabalala [2016] JOL 36713 (GSJ); K v P (09/41473) [2010] ZAGPJHC 93.

The matter regarding polygamous customary marriages was not addressed in the context of the RCMA and polygamy is allowed. 68

68 This is so even though s 9 of the Constitution prohibits unfair discrimination based on gender. The fact that only men are allowed to marry more than one wife can be argued to constitute unfair discrimination. Both genders must enjoy equal benefits and protection of the law.

In addition to a court-approved contract, the consent of the first wife has been elevated to a requirement. There is case law in relation to the Tsonga, Ndebele, and Xhosa traditions. Of the three noted cases, only the Mayelane

case can be stated to have application throughout the country, since it was decided by the Constitutional Court. 72

72 Mayelane case (Tsonga custom); the Nhlapo case (Ndebele custom); the Mrapukana case (Xhosa custom).

5.4 Registration of customary marriages

Registration was never a universal requirement for the validity of a customary marriage. Before the RCMA, it was a requirement in Natal and Transkei. However, not registering a customary marriage during the pre-RCMA era would not render the marriage void, voidable, or invalid.

During the RCMA era, there were attempts to change the approach to the registration of customary marriages. The RCMA placed a duty on spouses to register their customary marriage. It further states that non-registration has no effect on the customary marriage. 73

73 Section 4(1) of the RCMA read with s 4(9); Mamashela 2004 SAJHR 616; Herbst and Du Plessis 2008 EJCL 9; Mwambene and Kruuse 2015 IJLPF 238; Chidoori 2009 Agenda 52; De Souza 2013 Acta Juridica 243; West 2002 De Rebus 47.

For many years, customary law has been viewed as inferior when compared to other sources of law in South Africa. It was applied subject to the repugnancy clause. Whenever it conflicted with common law and statutes, it would not be given a fair chance to succeed in any instance. Granting it partial recognition was done to control the indigenous population as opposed to granting indigenous African people the ability to regulate their

affairs. 76

76 The Gumede case para 20; the Mrapukana case para 22; Himonga et al African Customary Law in South Africa: Post-Apartheid and Living Law Perspectives 7-8; Bennet Customary Law in South Africa 34-44; Bekker Seymour's Customary Law in Southern Africa 57-58; Bakker "Patrimonial Consequence of the Conversion of a South African Customary Marriage to a Civil Marriage" 61. In Bhe v Khayelitsha Magistrate 2005 1 BCLR 1 (CC) para 41 (hereafter the Bhe case), the Constitutional Court used the word "tolerated" to describe an instance where customary law was given minimal recognition.

The Constitution recognises and advocates for customary law to be applied when it is appropriate. 77

77 See s 211 of the Constitution; Shilubana v Nwamitwa 2008 9 BCLR 914 (CC) para 42 (hereafter the Shilubana case); the Gumede case para 12.

The jurisprudential guidelines need to be comprehended in terms of the Constitution which is the highest law of the land. 78

78 See ss 2, 7, and 8 of the Constitution.

The presence of an act that deals with cultural rights and thus also constitutional rights necessitates further comprehension as to how such an act and rights are to be interpreted. This is done in the next two sub-paragraphs. The guidelines and principles that are discussed next are not

comprehensive. The ones chosen and discussed are most relevant to the comprehension of the requirements for the validity of a customary marriage.

6.1 Jurisprudential guidelines on the interpretation of customary law

With a new Constitution advocating for equal human rights, there were numerous challenges to customary practices. In deciding such disputes, courts also played a role in helping with the interpretation and understanding of customary law. The following guidelines have been lain down by the courts:

6.2 Principles of constitutional interpretation

Cultural rights are recognised in Chapter 2 of the Constitution, the Bill of Rights. Therefore, when one interprets constitutional rights, section 39(1) of the Constitution applies. Institutions 89

89 Section 39 of the Constitution specifically mentions "courts, tribunals and forums". The last two mentioned entities may include organs of state such as the Department of Home Affairs and institutions mentioned in Chapter 9 of the Constitution such as the Public Protector and the Commission for Gender Equality.

Over and above the interpretation clause in the Constitution, courts have given guidelines as to how the Constitution (including customary rights) must be interpreted. The following guidelines are applicable to the interpretation of the Constitution (arguably also to the RCMA):

This submission sought to appraise the requirements set for the validity of a customary marriage in South Africa, through various eras. It also examined the legal status of such marriages through the various eras. This

paragraph concludes whether a static or flexible approach is followed in determining if a customary marriage meets the set requirements of validity.

Customary marriages existed prior to the current legal system in South Africa. Prior to the RCMA, they were recognised as unions, as opposed to marriages. Before delving more into the subject, a distinction was drawn on peremptory and directory provisions. It was explained that this distinction is not cast in stone. The Constitution and the purpose of the statute in question determine if a provision in a statute requires exact or substantial compliance. In arriving at a decision, institutions must ultimately be guided by the Constitution, the purpose of the statute in question, semantic guidelines, jurisprudential guidelines and presumptions about specific circumstances.

Prior to the RCMA, a static approach regarding the requirements for a recognised customary marriage was followed. The following were accepted as essential elements for a customary marriage to be viewed as concluded and binding: consent of the bride and bridegroom (spouses), consent of the bride’s father or guardian (parents), payment of lobolo, and the handing over of the bride. These requirements still find application in the RCMA era but there have been instances where strict adherence was not required. There was also an evolution in the payment of lobolo; from cattle to cash or a combination of the two.

The RCMA was enacted with the intention of moving away from non- to partial recognition of customary marriages. This further complied with the dictates of the Constitution and certain international conventions such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages. For instance, the age issue was not addressed in requirements predating the RCMA. The RCMA has a tone of making marriage voluntary and for persons of a consenting age. It also makes provision for other formalistic requirements.

The RCMA is clear that before anything can be put in motion, the prospective spouses must be of the right age and consent to get married in terms of customary law. This is followed by a negotiation and/or celebration of their customary marriage, according to customary law requirements.

Section 3(1)(b) of the RCMA has been a bone of contention in many court battles. When parties negotiate a customary marriage, they most often dwell too much on the lobolo. This is a missed opportunity for a true negotiation between the families of the prospective spouses. According to the Maluleke and Mmutle cases, the prospective in-laws were supposed to delve deeper

and agree on all potential terms. This includes issues such as the terms of payment for lobolo and handing over of the bride. These issues eventually affect how the clause of the celebration is comprehended. It is accepted that if the prospective spouses are of the appropriate age, they consent to being married in terms of customary law, and there is a negotiation between the two families (acceptance of the marriage, which culminates in a lobolo agreement), then one can state that a valid customary marriage exists.

The consent of the spouses to wed in terms of customary law is peremptory. There is room for flexibility on the issues of age and negotiation. Alternatives are set in instances where either or both spouses may still be minors. On the negotiation aspect, the RCMA only determines that it needs to occur but the format or content of such a negotiation is left to the ethnic groups or negotiating families involved. This will also impact on whether there will be a big or a small celebration of the agreement and the actual wedding ceremony.

The interplay between the requirements that were set prior to and by the RCMA has led to numerous court challenges. It is now settled by the South African courts that the negotiation will culminate in the payment or delivery of lobolo. Parties are free to determine for themselves if partial or complete payment constitutes a valid customary marriage. It is peremptory that there should be payment or delivery of lobolo.

The issue of the handing over of the bride has also come before the courts. In the past it used to be a deal breaker in that its non-compliance would entail that there was no valid customary marriage. This has been reviewed by the Supreme Court of Appeal in Mbungela v Mkabi and can now be dispensed with, abbreviated, or modified. It is no longer the sole reason why a customary marriage is found to be invalid. This development makes the handing over of the bride directory.

As part of further battles pertaining to customary marriage, the issue of polygamous and dual marriages also featured in the courts. Dual marriages relate to having marriages concluded in terms of both customary and civil rites by either spouse to any other person. A party to a civil marriage is not allowed to conclude a customary marriage. The opposite is also true, with the exception of monogamous customary marriages. This thus makes it peremptory that any party intending to conclude a customary marriage must not be a party to an existing civil marriage. Despite this legislative certainty, persons in unregistered customary marriages may not enjoy this benefit. This makes this part of the requirement peremptory.

In relation to polygamy, the section 7(6) of the RCMA requires the husband to obtain a court-approved contract before marrying a subsequent wife. This is not classified as part of the requirements for the validity of a customary marriage. From a compliance perspective, however, it should be. Courts have condoned non-compliance with this obligation and, as a result, it is viewed as a directory requirement.

In some cultures, such as the Tsonga culture, the consent of the first or preceding wives is required. There is case authority that supports the view that this is also applicable to the Ndebele and Xhosa ethnic groups. This entails that for people within these ethnic groups, the consent of the first or preceding wives is peremptory, and, in its absence, any subsequent customary marriage would be invalid ab initio. When all requirements are met, there is a duty on the parties to register their customary marriages. This duty is, however, directory and does not affect the validity of the customary marriage.

Before the current constitutional era, customary law did not enjoy the same status as common law and statutes. It was subject to the repugnancy clause, of which utilisation was minimal and aimed at the control of the indigenous African population. This deprived it of natural growth and development. It remained static for a long time and was subjected to distortion.

With its recent recognised status as an independent source of law and the need to comply with constitutional and international imperatives, customary law is now rapidly developing. As alluded to in paragraph 6.1, courts have provided guidelines as to how it needs to be understood and interpreted. These guidelines must be understood in line with principles of constitutional interpretation. In summation, the guidelines propose the following:

At the end of this appraisal, one needs to draw a conclusion on whether a static or flexible approach needs to be followed in determining if a customary marriage meets the set requirements of validity. Customary law has never been a rigid system. In the era before the RCMA, strict compliance with the requirements for the validity of a customary marriage was sought. This is associated with the development of official customary law (codification). This is slowly changing, and there is a call for flexibility and for communities to develop their living customary law to be in line with the Constitution and international law. As a result, a flexible approach must be followed in determining if a customary marriage meets, or fails to meet, the set requirements.

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Lutoli v Dyubele 1940 NAC (C & O)

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Mabena v Letsoalo [1998] JOL 3523 (T)

Mabuza v Mbatha 2003 4 SA 218 (C)

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Maluleke v Minister of Home Affairs [2008] JOL 21827 (W)

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Mayelane v Ngwenyama [2010] JOL 25422 (GNP) (commonly cited as MM v MN)

Mayelane v Ngwenyama 2013 8 BCLR 918 CC

Mbungela v Mkabi [2019] JOL 45887 (SCA)

Mgomezulu v Lukele 1953 NAC 143 (NE)

Mmutle v Thinda (20949/2007) [2008] ZAGPHC 352

Monyepao v Ledwaba [2020] JOL 47353 (SCA)

Moropane v Southon 2014 JOL 32177 (SCA)

Motsoatsoa v Roro [2011] 2 All SA 324

Mrapukana v Magwaxaza [2008] JOL 22875 (C)

Msutu v Road Accident Fund (18174/14) [2011] ZAGPPHC 232

Mvolo v Bokleni 1948 NAC (S) 62

Mxiki v Mbata [2014] ZAGPPHC 825

Ngcwabe-Sobekwa v Sitela [2020] JOL 48747 (ECM)

Ngwenyama v Mayelane 2012 10 BCLR 1071 (SCA)

Nhlapo v Mahlangu (59900/14) [2015] ZAGPPHC 142

Nkambula v Linda [1951] 1 All SA 412 (A)

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Pilato v Fakude [2021] JOL 53602 (MM)

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S v A Juvenile 1990 4 SA 151 (ZSC) 176

S v Makwanyane 1995 3 SA 391 (CC)

S v Zuma 1995 2 SA 642 (CC)

Seedat’s Executors v The Master 1917 AD 302

Sengadi v Tsambo In re: Tsambo 2019 4 SA 50 (GJ)

Shabalala v Attorney-General of the Transvaal 1995 12 BCLR 1593 (CC)

Shilubana v Nwamitwa 2008 9 BCLR 914 (CC)

Sila v Masuku 1937 NAC (T & N)

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Weenen Transitional Local Council v Van Dyk [2002] 2 All SA 482 (A)

Wormald v Kambule [2005] 4 All SA 629 (SCA)

Zulu v Mdhletshe 1952 NAC 203 (NE)

Legislation

Black Administration Act 38 of 1927

Constitution of the Republic of South Africa, 1996

Constitution of the Republic of South Africa Act 200 of 1993

Marriage Act 25 of 1961

Marriage and Matrimonial Property Law Amendment Act 3 of 1988

Promotion of Access to Information Act 2 of 2000

Promotion of Administrative Justice Act 3 of 2000

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Recognition of Customary Marriages Act 120 of 1998

Transkei Marriage Act 21 of 1978

International law instruments

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1964)

Convention on the Elimination of All Forms of Discrimination Against Women (1979)

Government publications

GN 1101 GG 21700 of 1 November 2000

Proc R151 in GG 10966 of 9 October 1987

List of Abbreviations

CILJSA Comparative and International Law Journal of Southern Africa

EJCL Electronic Journal of Comparative Law

IJLPF International Journal of Law Policy and Family

PER Potchefstroom Electronic Law Journal

RCMA Recognition of Customary Marriages Act 120 of 1998

SAJHR South African Journal on Human Rights

TSAR Tydskrif vir die Suid-Afrikaanse Reg (Journal of South African Law)