Left in Limbo: The Status of the Handing Over of the Bride in Customary Marriages Post Sengadi v Tsambo

Abstract

Courts are regularly tasked with determining the validity of a customary marriage using the requirements stipulated in the Recognition of Customary Marriages Act. This entails an assessment of whether certain fundamental rituals and practices occurred. One such ritual that appears frequently in recent jurisprudence is the handing over of the bride to the bridegroom’s family, although courts have differed on whether this is a necessary requirement for a valid customary marriage. In the case of Sengadi v Tsambo, the High Court conceptualised the handing over ritual as an extraneous requirement additional to the Recognition of Customary Marriages Act that could be imposed on an otherwise valid marriage, and ruled it unconstitutional to this extent. This article argues that the High Court's declaration of unconstitutionality, while peculiar for positioning the practice of handing over as extraneous to the statutory provisions, was within its powers, effective without further confirmation, and binding on lower courts within its jurisdiction. Upon appeal, rather than clarifying the matter, the Supreme Court of Appeal did not substantively deal with the High Court’s peculiar conception of handing over and ruled that the High Court should not have pronounced on its constitutionality. In doing so, we argue that the Supreme Court of Appeal may have tacitly overturned the High Court’s declaration of constitutional invalidity