In our previous discussion on this topic, we noted that the Recognition of Customary Marriages Act 120 of 1998 (the Act) [as amended] was promulgated to formalize customary marriages in South Africa. These are marriages concluded according to the customary laws of the vast indigenous cultures in South Africa. That being the case, we noted that this could have been the key reason why section 3(1)(b) of the Act was phrased in the way it is.
In this second part of the discussion, we will take a glimpse at Court decisions in development of customary law and how, this affects legal certainty.
It is an established and well-known fact that the payment of lobola is an integral part of customary marriage rites/procedures. However, it is not explicitly listed as a requirement for the conclusion of a valid customary marriage in section 3 (1) of the Act. In effect, the legislature opted for an all-encompassing approach by wording section 3 (1) in such a way that will accommodate (a catch all approach) the different marriage customs prevailing in South Africa.
3. Requirements for validity of customary marriages
(1) For a customary marriage entered into after the commencement of this Act to be valid-
(a) the prospective spouses-
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law (bold, our emphasis)
The inquiry as to what constitutes custom will be decided by the Courts on a case-by-case basis as disputes arise, using principles as outlined in such cases as Van Breda And Others v Jacobs And Others 1921 AD 330. It is not that communities and tribes are unfamiliar with the marriage practices recognized and accepted within their group, but that during the determination of succession and division of matrimonial assets is where disputes usually arise.
This has consequently resulted in the Courts having to develop customary law through disputes brought before them. South Africa has eleven (11) official languages and within the various indigenous cultures there are subcultures to add onto the number. To codify all the practices and customs in a single volume, in harmony with and applicable to all the cultures and subcultures, would be difficult if not impossible.
Having accepted that the payment of lobola is an integral part of the customary marriage rites, it is reasonably agreeable that in order for this to be deemed as having been fulfilled and fully manifest, the man ought to have paid lobola for the woman in full, right? The Court disagreed in the case of Mbungela And Another v Mkabi And Others (820/2018)  ZASCA 134 where the brother of the deceased (the late Ms Mbungela) argued that there existed no valid customary marriage between Mr Mkabi and the late Ms Mbungela because lobola had not been paid in full. Emanating from this judgment, it is now a principle of our law that even where lobola had not been paid in full whilst the requirements laid out in section 3 (1) had been complied with, a valid marriage may still exist.
In most customary marriage practices, the handing over of the woman from her family to the family of her new husband is another integral practice, which symbolises that the bride has now been released by her family and accepted/welcomed into the family of the husband. In other words, the family of the woman has given their blessing and consent for the woman to be identified with the family of her new husband. Most people would accept that where this has not taken place therefore, it means the new ‘spouses’ have not been given the blessings (consent) to start their new home. In the cases of Tsambo v Sengadi (SCA) (unreported case no 244/19, 30-4-2020) and Mbungela And Another v Mkabi And Others (820/2018)  ZASCA 134, it was held that the handing over of the woman is not indispensable and would not affect the validity of the customary marriage where other requirements were met. It may also be argued that despite the handing over not being done, where the family of the woman do not contest or protest her moving into her new home with the family of the man, it may well be argued that they have given their consent and blessings, at least tacitly.
In conclusion therefore, section 3 (1) (b) of the Act ought to be seen as having been formulated in that manner for pragmatic reasons, wary of the diversified nature of the indigenous cultures in South Africa. The Constitution of the Republic of South Africa Act 108 of 1996 gives communities with distinct cultures the privilege to practice their customs to the extent that they are not inconsistent with the Constitution. The burden on our Courts to interpret and make careful inquiries as to what constitutes custom to a particular culture or community, and develop customary law, is undeniable. The Court decisions coupled with provisions of the Act work in favour of legal certainty, which rests at the core of the concept of legality. Indeed, the law must be certain, and clear.
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