AFRICAN CUSTOMARY LAW

LCL 201

Customary Marriages
 TOPICS
❑THE RECOGNITION OF CUSTOMARY MARRIAGES
ACT 120 OF 1998 (RCMA)

❑THE RECOGNITION OF CUSTOMARY MARRIAGES

❑THE REQUIREMENTS FOR A VALID CUSTOMARY

PROPRIETARY CONSEQUENCES OF CUSTOMARY
MARRIAGES
 TOPICS
❑DISSOLUTIONS OF CUSTOMARY

❑ CHANGE OF MARRIAGE SYSTEM

MARRIAGE

❑ REGISTRATION OFCUSTOMARY MARRIAGES

 LEARNING OUTCOMES
At the end of this session, the following
outcomes should be achieved:
• Students should be able to understand the importance of
regulating customary marriages;
• Students should be able to differentiate between a
validly and invalidly entered into customary marriage;
• Students should understand the importance of
registration of customary marriage, the manner in which
the proprietary consequences of customary marriages
are regulated and how such marriages are dissolved.
 Introduction
In South Africa, before the promulgation of the Recognition of
Customary Marriages Act 120 of 1998, indigenous people concluded
customary marriages. These marriages were concluded in accordance
with living customary law. One of the fundamental base of concluding a
customary marriage under living customary law was to connect two
families. It has always been a practice that whenever a marriage was
concluded, an affinition relationship came into existence to join the two
families, not just the two spouses. Hence one of the requirements for a
valid customary marriage under living customary law included
“agreement between two families”. The phenomenon of two families
gave rise to two realities viz the conversion of all the members of the
husband’s family into the brothers and sisters of the husband’s in-laws.
Equally, all the members of the wife’s family regard themselves as the
husband’s sisters and brothers.
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Both the husband and the wife were seen as the spouse of his or her
collective block of in-laws hence if any one of the members of the
husband’s family attended a funeral, wedding or any event taking place
at the wife’s family, the husband himself was regarded as having
attended. This is premised on the fact that the wife belonged to the
entire marital family through her husband, in the same way as her
entire maiden group were connected to her husband’s group through
her. In order to forge this type of a bond, certain requirements had to be
met, to wit (a) agreement between two families, (b) payment of lobolo
and transfer of the bride to the groom’s family. This long-standing
customary marriages set up was altered by the coming into effect of the
Recognition of Customary Marriages Act 120 of 1998 (RCMA). The
RCMA is the current legislation that regulates customary marriages in
South Africa. The RCMA introduced new requirements for a valid
customary marriage.
The Requirements for a valid Customary
Marriage in terms of the RCMA
The introduction of these requirements as stipulated in
terms of Section 3(1) of the RCMA discarded the core
intention of customary marriages being the connection of
two families. These requirements individualised the
concept of customary marriage by demanding consensus
between the individual spouses and no longer between the
families. Age is now a peremptory factor which the law
requires parties to take into cognisance when concluding a
customary marriage. The Act requires both parties to be
above the age of maturity in order to conclude a valid
customary marriage. In the event one of the parties is still
a minor the Act provides direction in terms of Section 3(1)
– (5) of the RCMA.
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Over the years, the courts had on frequent basis found themselves confronted with
disputes pertaining to the validity of customary marriages. Thus, you are directed to
read judgments made in the following cases:
• Moropane V Southon (755/2012) [2014] ZASCA 76
• Motsoatsoa V Roro and Others (46316/09) [2010] ZAGPJHC
• Tsambo V Sengadi (244/19) [2020] ZASCA 46
• Mbungela and Another v Mkabi and Others (820/2018) [2019] ZASCA 134;
2020 (1) SA 41 (SCA); [2020] 1 All SA 42 (SCA)
Having read these cases, it is my opinion that there is much a need for continuous
monitoring of the “revolving door” of the requirements for validity of customary
marriages. The revolving door in action is created by the courts’ attitude and the
desire to arrive to a certain judgment at all costs. This attitude fits to what was
opined in the case of Bhe v Magistrate Khayelitsha [2004] ZACC 17 para 112)
as follows“ The problem with the development of living customary
law by the courts on a case by case basis is that, changes will
be very slow; uncertainties regarding the real rules of customary
law will be prolonged and there may be different solution to
similar problems”
 Registration of a Customary Marriage
The Recognition of Customary Marriages Act 120 of 1998 provides for the
registration of a customary marriage after its conclusion. This is found is
section 4 of the Act. Without undermining the existence of other subsections, let
us examine the passage contained in section 4(1) and section 4(9) read
together. These sections read together effectively mean that registration of a
customary marriage is optional. The influx of cases pertaining to the validity of
customary marriages in South African courts is heightened by the fact that
registration of customary marriages is optional. Often times, husbands who are
married customarily, proceed to marry women in terms of civil marriages behind
their customary wives’ back. This creates a problem to spouses who are
married in terms of customary law and who did not register their customary
marriage. Registration of a customary marriage results in a customary marriage
certificate being issued to the spouses as a prima facie proof that a valid
customary marriage was entered into. The absence of that certificate makes it
difficult for spouses married customarily to prove that a valid customary
marriage preceded a civil marriage.
Proprietary Consequences of Customary
Marriages
The proprietary consequences of customary marriages are regulated by
section 7 of the Recognition of Customary Marriages Act (RCMA). This section
is very important because it provides clarity to the misconception that
customary marriages can ONLY be concluded out of community of property.
This misconception emerged as a result of living customary law set up in
respect of customary marriages. Before the commencement of the RCMA,
customary marriages were regulated in terms of living customary law.
Husbands had absolute control of matrimonial estate and wives were declared
to be under the guardianship of their husbands. Thus, they had no say and
were excluded in any matter relating to matrimonial estate. The coming into
effect of the RCMA changed this position by giving both spouses an opportunity
to have a say in their matrimonial estate. Thus, you are directed to section 7(2)
of the RCMA which in the clearest of terms invites both spouses who are in a
monogamous marriage to decide on the matrimonial property system that
should govern their custom
 Cont..
Since the RCMA recognises polygynous marriages,
section 7(6) and 7(7) read together deal with proprietary
consequence of a husband who wishes to conclude a
polygynous marriage. Such husband is obliged to make an
application to court to approve of a written contract which
will regulate the future matrimonial property system of his
marriage and the court will deal with such application
accordingly. Having read all these sections, you are
mandated to read the case of Mayelane v Ngwenyama
and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA
415 (CC); 2013 (8) BCLR 918 (CC) that dealt with the
proprietary consequences.
 Dissolution of customary marriages
The dissolution of customary marriages is
governed by section 8 of the RCMA. Couples
who wish to dissolve their customary marriage
must comply with the conditions that are stipulated
in terms of section 8(1) and 8(2) respectively. Any
purported dissolution of a customary marriage that
did not follow the dictates of section 8 of the
RCMA is not recognised as a dissolution. Thus,
those parties/spouses are still legally married.
 Dissolution
As a side note:
Having read these sections, by and large, one is tempted to differ with the
manner in which the RCMA deals with the dissolution of a customary marriage
in terms of section 8. It is worth noting that section 3(1)(b) of the RCMA
requires the spouses to ensure that their marriage is negotiated and entered
into or celebrated in accordance with customary law. In order to satisfy this
requirement, families of the prospective spouses must intervene and play a
vital role of ensuring that the negotiations part is concluded, the process of
handing over the bride to the groom’s family is performed and other roles
related thereto are a success. It is through the intervention and the role played
by the prospective spouses’ families in ensuring that a valid customary
marriage is concluded, that a bond/connection between these families and the
marriage of the spouses is created. Now, to later exclude them from the
dissolution of a customary marriage that they have played a role in its
conclusion is to undermine the importance of that bond/connection created by
that marriage.
 Change of Marriage System
Parties who concluded a customary marriage and who wish to convert
their customary marriage into a civil marriage may do so provided that
they are in a monogamous customary marriage. The conversion of a
customary marriage to a civil marriage is stipulated in terms of section
10(1) of the RCMA. When coming to the issue of proprietary
consequences, the converted marriage is automatically in community of
property unless such spouses indicate that they wish to conclude their
marriage out of community of property, this is found in section 10(2) of
the RCMA. Take note that, although the RCMA allows the conversion of
a customary marriage to a civil marriage, the Marriage Act, 1961 that
governs civil marriages does not allow conversion of a civil marriage
into a customary marriage.