Understanding Customary Marriage in South Africa

Parties enter a customary marriage when they marry according to the traditions and customs of Indigenous African law. A valid marriage is concluded once the requirements, as stipulated in the Recognition of Customary Marriages Act 120 of 1998, have been met, i.e.:

(a) The prospective spouses:

• (i) must both be above the age of 18 years;
• (ii) must both consent to be married to each other under customary law; and
• (iii) the marriage must be negotiated and entered into or celebrated in accordance with customary law.

When to Enter into an Ante-nuptial Contract

For a customary marriage to be recognized as out of community of property, the parties must execute the ante-nuptial contract before concluding the customary marriage, i.e., before proceeding with any rituals, customs, and traditions. Failure to do so will result in the marriage automatically being in community of property.

Registration & Dissolution of the Marriage

Failure to register the marriage at the Department of Home Affairs within three months of its conclusion does not invalidate the marriage. In the event of seeking dissolution, parties with a valid customary marriage, whether in or out of community of property, must obtain a decree of divorce through court proceedings. This is necessary even if the marriage was not registered at Home Affairs and lacks a marriage certificate.

Common Misconceptions and Disputes

It often happens that parties enter lobola negotiations and make a partial payment of the agreed amount. Later, the relationship may end, and the parties might not consider themselves married due to the misconception that a marriage is only concluded and valid after a formal wedding ceremony. However, the Recognition of Customary Marriages Act stipulates that a marriage must be negotiated and entered or celebrated in accordance with customary law.

Numerous disputes regarding the validity of customary marriages arise, and the court will have to assess the facts of each case individually to determine the validity of the marriage.

Case Study: Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020)

In this case, the Supreme Court of Appeal of South Africa considered whether Lerato Sengadi was the customary wife of the late musician Jabulani Tsambo, also known as HHP. The father of HHP, Tsambo being the appellant, argued that no customary law marriage had been concluded. He contended that while the necessary customs, rituals, and procedures for a customary marriage may have begun, they were neither proceeded with nor completed. Specifically, he asserted that the meeting on 28 February 2016 was solely for lobola (bride price) negotiations, followed by a celebration of its successful conclusion. They argued that the lobola agreement indicated the need for a subsequent meeting. Additionally, he emphasized that Sengadi was never formally handed over to Tsambo’s family, which he claimed was a crucial step for a valid customary marriage.

Sengadi’s representatives contended that the handing over of the bride was not a determinative requirement for a valid customary marriage. They argued that there had been a symbolic handing over to Tsambo’s family, which they claimed constituted a tacit waiver of the formal handing over ceremony.

The High Court found that the formal handing over of the bride was not an absolute requirement for a valid customary marriage and could be waived. It determined that a symbolic handing over had occurred after the lobola negotiations, which the court deemed sufficient for establishing a customary marriage. The High Court rejected the appellant’s argument that the absence of a formal handing over invalidated the marriage. The Supreme Court of Appeal upheld the High Court’s decision, ruling in favor of Sengadi. The court recognized that the essential elements of a customary marriage had been satisfied, despite the incomplete adherence to all traditional formalities.

Conclusion

Understanding customary marriages in South Africa requires knowledge of both legal and cultural practices. By ensuring compliance with the Recognition of Customary Marriages Act and recognizing the nuances of customary rituals, couples can navigate their relationships with greater clarity and legal certainty. If disputes arise, the courts will carefully consider the specifics of each case to determine the validity of the marriage. It is always advisable to seek legal guidance before entering any traditional formalities to determine the matrimonial regime the parties wish to govern their marriage.

Written by Erusha Reddy