Name and Surname: Mbalenhle Ndlovu

Student Number: ST10092290

Module Code: LEDI6212
ICE TASK 2: CUSTOMARY MARRIAGES

Q.1.1 According to the Recognition of Customary Marriages Act1, a person married

according to customary customs cannot enter a civil marriage. Before 1988 this type of
agreement could occur where individuals could simply and freely conclude civil marriages
between themselves or other people however after the commencement of the Recognition
of Customary Marriages on 15 November 2000 this no longer was the case 2. Hence Mfundi
and Reabestwe not being able to conclude one while he is still married to Nomusa. A reason
for this could be that both custom conflict each other and having to figure out with custom
or law to implement at a particular time (for example law of succession) could bring about
more confusion that solutions. Also, the act essentially brought an end to the uncertainties
of customary marriages.

Q.1.2.1 Section 8 of the Recognition of Customary Marriages Act3 contains the provision for
the dissolution of customary marriages. According to this section the only ground for the
dissolution of such marriages to be granted an order is if there is an irretrievable breakdown
of the marriage. The court may grant an order if they believe that relationship and marriage
between the two parties cannot be normal again and that the parties have reached a state
of disintegration. These grounds essentially come from the Code of Zulu Law. There are
examples of scenarios that would warrant the dissolution of a customary marriage on behalf
of the wife. These are as following: serious assault and physical ill-treatment caused by the
husband, If the husband has to accuse the wife of witchcraft, If the husband has to drive the
wife away and if he fails to fetch her, when the husband abandons his wife for a long time
and if the husband is impotent and the wife is ignorant about him being impotent 4. Just
from the scenarios mentioned above Nomusa it is obvious to assume that the court would
be grant an order for the dissolution of her marriage to Mfundi.

1
Recognition of Customary Marriages Act.
2
Rautenbach, C Introduction Legal Pluralism in South Africa. 5th ed. 2018LexisNexis
3
Recognition of Customary Marriages Act, section 8.
4
Rautenbach, C Introduction Legal Pluralism in South Africa. 5th ed. 2018LexisNexis
Q.1.2.2 The relevant courts that have Jurisdiction to dissolve the marriage are high courts,
family courts or divorce courts. Section 8 of the at however states that the provisions are
not to be construed as limiting the role of certain leaders recognised by leaders in
customary law5. Hence traditional leaders would be able to serve as a mediator in any
dispute which usually occurs way before the dissolution of the marriage.

Q.1.2.3 With regards to the interests and welfare of children in divorce cases suitable laws
are the Mediation in Certain Divorce matters Act6 and the Divorce Act7. The Mediation in
Certain Divorce Matters deals with the appointment of family advocates as well as family
counsellors would assist with providing information in regards to custody and control of
minor children The act also allows for the Court to make orders regarding to guardianship,
custody, access and maintenance of the minor children. Before the commencement of the
Recognition of Customary Marriages Act children were seen to have been of absolute
custody of the father and could not be taken away from him however now the best interests
of the children are emphasised. This is one by taking into account the African cultural values
and belief systems into account for example the link children have with their ancestors.
However, it should be made clear that both parents could award joint custody by the court
unless they find a need not to8.

Q.1.3 According to customary law the dissolution of a marriage has effect on the return of
lobola to either party. The most important of these effects are: the number of children born
within the marriage, the amount of lobola paid as well as the amount still outstanding, and
the party who is responsible for the dissolution of the marriage. If the marriage is broken
down by the woman, then lobola is to be returned to the other party. However, if the
breakdown of the marriage is of the man’s fault, then he forfeits his lobola. In a case where
both parties are responsible for the dissolution of their marriage then a settlement is usually
conducted by both parties involved in the agreement. It should also be mentioned that
according to the recognition of marriages act the lobola is not required to be returned as
the dissolution of the marriage is of judicial matter. In the Zulu culture the return of lobola is
also not a requirement as the bride is also provided to gift her parents in law with gifts and
furniture essentially using the money that came to her through lobola to buy these
necessary gifts9. In the Thembisile v Thembisile10 case the court held that the return of
lobola was necessary however it should be noted that this case happened before the
commencement of the Act. Lobola relates to the spouse’s patrimonial property hence the
return of lobola involving the father. From the information mentioned above it is strong to
say that Mfundi would not receive his lobola as he had gone against the third effect on the

5
Rautenbach, C Introduction Legal Pluralism in South Africa. 5th ed. 2018LexisNexis, 102.
6
Mediation in Certain Divorce matters Act 24 of 1987.
7
Divorce Act 70 of 1979.
8
Rautenbach, C Introduction Legal Pluralism in South Africa. 5th ed. 2018LexisNexis, 102-103.
9
Rautenbach, C Introduction Legal Pluralism in South Africa. 5th ed. 2018LexisNexis, 105.
10
Thembisile v Thembisile 2002 (2) SA 209 (T).
return of lobola. The dissolution of the marriage is of his fault so he forfeits his ability to
receive that lobola.
REFERENCE LIST

Textbook:
Rautenbach, C Introduction Legal Pluralism in South Africa. 5th ed. 2018LexisNexis

Legislation
Recognition of Customary Marriages Act 120 of 1988.
Mediation in Certain Divorce Matters Act 24 of 1987.
Divorce Act 70 of 1979

Case law:
Thembisile v Thembisile 2002 (2) SA 209 (T)