CUL 2641 UNIT 2

CUSTOMARY FAMILY LAW

10 MINUTES EXERCISE: STUDY THIS SCENARIO AND
GIVE YOUR OPINION ON THE CHAT BOX

Mseleku married Dodo in 1987 by giving 8 cattle in lobolo, followed by a huge ceremony at his
village in Nkandla. Years later he fell in love with his secretary DIDI and they had twins from the
relationship. DIDI’s father insisted that Mseleku must marry his daughter. DODO refused to accept
DIDI as her husband's second wife. Mseleku built a house for DIDI and the twins, and later at
DIDI’s demand they went and signed for a civil marriage together, which they did in 2000. Mseleku
has just passed on last month, and only then did DODO find out about the civil marriage between
her husband and DIDI. Furthermore, to the surprise of both DODO and DIDI, they discovered that
Mseleku once paid lobolo for DUDU years before he met DODO in 1984 and had a child in that
union though it never lasted. DUDU is married to another man now and has 3 more children in that
marriages.
Which of these women is the lawful wife of Mseleku? Give a short reason for your answer.
 CUSTOMARY MARRIAGES
In this unit we are going to learn the following:
o Definition and Concept of CUM
o Historical background of CUM in South Africa
o Introducing the Recognition of Customary Marriage Act
o Essentials of CUM
o Registration of CUM
o Status and competencies of spouses in CUM
o Consequences of CUM
o Dissolution of CUM
 LEARNING OUTCOMES OF THE UNIT

At the end of this unit you should be able to:

• Explain different types of customary marriages 
• Critically analyze the requirements of a valid customary marriage
• Explain the consequences of a customary marriage 
• Explain the process of dissolution of customary marriages
RECOGNITION OF CUSTOMARY
MARRIAGES IN SA
CUSTOMARY MARRIAGES IN SA
 2.1 Definition and Concept of Customary
Marriage
• CUM is marriage entered into according with customary law (s1 RCMA)
• It derives its nature from the customs and traditions of the parties entering into it. (who can enter into a
CUM?)
• CUM involves integration of the families of the spouses
• CUM is private in its nature, it is not officiated by external parties but the family groups involved
• It starts with betrothal – where the families negotiate the marriage, usually initiated by groom’s family and
to be considered by the bride’s family
• Betrothal may include exchange of gifts as determined by the particular custom, including lobolo
• Once, the families reach an agreement in the negotiations, then a marriage may be entered into
• CUM is polygamous in its nature – it allows a man to marry more than one wife
 LOBOLO/MAGADI/
BOHALI,XUMA/
LUMALO/THAKA

Lobolo is property in cash or kind

which the prospective husband or
the head of his family undertakes
to give to the head of the
prospective wife’s family in
consideration of a customary
marriage (s1 RCMA)
 CONCEPT OF LOBOLO

• In most traditions, giving of lobolo is an integral part in the conclusion of a CUM

• There are different sentiments and values attached to the giving of lobolo, such as:
 To show appreciation to the bride’s family for raising her and giving her to the
groom and his family in marriage
 For transfer of bride’s reproductive rights to grooms family
 To legitimize the children born of the marriage
 As means test towards the groom to determine whether he will be able to provide for
his wife and family
2.2 HISTORICAL BACKGROUND ON LEGAL
RECOGNITION OF CUM IN SOUTH AFRICA
• Until the year 2000 , CUMs were not legally recognized in South Africa
(except in KZN)
• spouses in CUM were not considered to be husband and wife, the
relationship was a union instead of legally binding marriage
• Their children were considered to be illegitimate
• Civil marriage entered into by one of the spouses in CUM with another
party automatically disolved the CUM
 CONTINUE…
• Limited recognition for CUM was introduced through statutory enactment
such as the Natal Code of Zulu Law Proc of 1987 which applied only in
KZN
• in 1988 the Marriage and Matrimonial Property Law Act 3 of 1988
provided that a CIVM with another party would no longer disolve an
existing CUM (see Netshituka v Netshituka)
• But still, there was no recognition of CUM. It would only be considered in
estate matters for the purposes of identifying beneficiaries.
 2.3 RECOGNITION OF CUSTOMARY
MARRIAGES IN POST-APARHEID SA
• First statute to give full recognition to CUM is the Recognition of
Customary Marriages Act 120 of 1998 (applicable since year 2000)
• Came as a result of the work and recommendations of the SALC Project
90 of 1998 on the Harmonization of COM and INL Report on CUM
• It allows for CUM to be entered into according to traditional practices
• It also provides for administrative regulation of CUM
 2.4 THE PURPOSE OF THE RCMA
• To make provision for recognition of CUM
• To specify requirements for valid CUM
• To regulate registrations of CUM
• To provide for equal status and capacity of spouses in CUM
• To regulate proprietary consequences of CUMs
• To regulate dissolution of CUMs
• To repeal certain provision of certain laws
 2.5 CUMs RECOGNIZED BY THE RCMA
s2

• All CUMs valid and existing at the commencement of the Act are fully
recognized (including polygamous marriages)
• All CUMs entered into after the commencement of the RCMA, and which
complied to all requirements of the Act are recognized (including
polygamous marriages)
Netshituka v Netshituka
REQUIREMENT FOR VALID CUM
 2.6 REQUIREMENT FOR VALID CUM
s3
1. Prospective spouses must be above age of 18 years
2. Prospective spouses must consent to marry each other according to customary law
3. Marriage must be negotiated and entered into or celebrated in accordance with CUL
 Parties under age of 18 year require parental/guardian consent in order to enter into the marriage (see s5)
 RCMA allows CUL to determine which persons are prohibited from marrying each other under CUM based on blood
relation or affinity.
 Parties in CIVM may not enter into a CUM

See Maluleke v Minister of Home Affairs (02/24921) [2008] ZAGPHC 129 (9 April)
Moropane v Southon (755/12) [2014] ZASCA 76 (29 May 2014)
 BETROTHAL
• Betrothal is the stage where a customary marriage has or is being negotiated but not yet concluded or
entered into. –Engagement
• Reaching consensus leads to a formal betrothal
• The giving of lobolo alone does not amount to a valid customary marriage
• What are the consequences of betrothal?
• It can be terminated, and patrimonial loss may be claimed where property was transferred. E.g lobolo
• It can be terminated by mutual agreement, unilaterally or by the death of one of the prospective
spouses.
• See HHP case
 QUESTION OF LAW
• Can a same sex couple enter into a customary marriage?

• Would it be a valid customary marriage where a woman gives lobolo for a

man to marry him?
 TRANSFER OF THE BRIDE
• This an essential requirement in the conclusion of a customary marriage.
• Mkabe v Home Affairs – transfer is not the primary requirement alone. Families can waive
the transfer especially where parties were already leaving together as husband and wife
before or during the negotiations.
• Mabuza v Mbatha – transfer does not have to be a celebration. Rituals or ceremonies are
not in themselves transfer of the bride, instead the agreement between the families to
transfer the bride and the relocation of the bride to live with her husband is what is crucial.
• Sengati v Tsambo - The court assessed the conduct of all significant parties and the
transactions that took place, in order to determine whether the marriage was valid or not.
 STATUS AND CAPICITY OF SPOUSES
s6
• Spouses in a CUM have equal status and capacities
• They can acquire and dispose assets equally
• Can enter into contracts and litigate

Ramuhovhi v Netshituka
REGISTRATION OF CUSTOMARY
MARRIAGES
 REGISTRATION OF CUM
s4
• Parties in a CUM have the duty to register their marriage within prescribed time period
• Either spouse may register the marriage, provided they produce required information to the existence
of the marriage, identities of the spouses, date of marriage and lobolo agreed together with witnesses
• Any other person with sufficient interest may also register the CUM e.g. children
• CUM may only be registered by a competent official qualified to do so, who must be satisfied that
indeed there is an existing and valid CUM
• Registering officer will issue certificate of registration, which will serve as prima facie proof of the
existence of the CUM
• However, failure to register a CUM does not invalidate the marriage. Registration of CUM only serves
as proof of existence of the marriage.
 PROPRIETARY CONSEQUENCES OF
CUM, s7
• All monogamous CUM are in community of property, except where such is excluded by an Ante Nuptial
Contract
• Polygamous marriages entered into after commencement of RCMA will be out of community of property
• S 7(1) and (4) were repealed by the Con Court decision in the Gumede case
• All CUM entered into before RCMA are in community of property (see Ramuhovhi case)
• A husband in CUM may only enter to further CUM with another woman through making an application
to court, to approve a written contract that will regulate the future matrimonial property system of his
marriages. (see Mayelane case)
• All persons with sufficient interest including existing spouses MUST be joined in the application
proceedings.
 CONTINUE..
• When considering the application, the court will have to:
 Terminate the existing matrimonial system if it was in community of property
 Effect division of matrimonial property
 Ensure equitable distribution of the property
 Take into consideration other circumstances of the family groups which will be
affected
 Make further amendments to the contract where necessary
 Grant the order if satisfied or refuse to grant it if not satisfied.
DISSOLUTION OF CUSTOMARY
 DISSOLUTION OF CUSTOMARY
MARRIAGES, s8
• A CUM can only be dissolved by a court order by decree of divorce
• On grounds of an irretrievable breakdown of the marriage
• Statutory provisions applicable in dissolution of civil marriages are also applicable in the process of
dissolution of a CUM
• When dissolving a CUM involving a husband in a polygamy, the court must take into consideration
all relevant factors and parties involved and make an equitable order that it deems just
• The court may make an order with regards to the custody of minor children and payment of their
maintenance, taking into account any arrangement made in accordance with customary law
• The role of family and traditional leaders in the dissolution of CUM is only limited to mediation of
any disputes in accordance with customary law prior to the dissolution
 CHANGE OF MARRIAGE SYSTEM
s10
• Parties in a monogamous CUM may change their marriage to a civil
marriage under the Marriage Act 25 of 1961
• Such marriage will be in community of property unless such is excluded
by an ANC which regulates the matrimonial property system of their
marriage
• No spouse in a civil marriage is, during the subsistence of such marriage,
competent to enter into any other marriage including a CUM