The Supreme Court of Appeal has firmly affirmed the legal principle that the absence of a full payment of lobola and the handover process of the bride from her family to the groom’s family does not render the customary union invalid. Customary unions are recognized in our law as valid marriages.
Section 3(1) of the Recognition of Customary Marriages Act 120 of 1998 (“the Act”) sets out the requirements for a valid customary marriage as follows: -
“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.”
Customary law is defined in section 1 of the Act as “customs and usages traditionally
observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.” It is established that customary law is a dynamic, flexible system which continuously evolves within the context of its values and norms, consistently with the Constitution.
The question of whether non-observance of the bridal transfer ceremony invalidates a
customary marriage has been decisively answered by our courts. In the matter of Mbungela & Another v Mkabi & Others (820/2018) [2019], the court delivered judgment clarifying the criteria for a valid customary marriage. In this case, the bride’s family did not hand her over to the groom’s family, nor had lobola been paid in full. The court looks at the intention of the parties. The Supreme Court of Appeal noted that “it must be recognized that an inflexible rule that there is no valid customary marriage if…[ a handover ceremony] has not been observed, even if the other requirements…[for a valid customary marriage] have been met…could yield untenable results.”
Over the years, the courts have made various decisions about customary marriages and
specifically lobola payments and the handover of the bride to the groom’s family. In the case of Maloba v Dube [2008] ZAGPPHC 434 (23 June 2008), the court inferred that if parties live together, then the bride was handed over.
The purpose of the ceremony of the handing over of a bride is to mark the beginning of a couple’s customary marriage and introduce the bride to the groom’s family. It is not an
important, nor a determinant factor of a valid customary marriage. Thus, it cannot be placed above the couple’s clear intent where, as happened in the Mbungela v Mkabi decision. The court recognized that sometimes families come from different ethnic groups and there are occasions where they do not specify that the marriage would be validated upon bridal transfer. They do not make this an agreed requirement. The court under those circumstances would not impose a requirement which was not agreed and the absence of a fulfillment of such a requirement would not invalidate the customary marriage.
In conclusion, it is advisable for couples and their families to clearly agree on the
requirements for the valid customary marriage. Families should also continue the tradition of recording the lobola agreement in writing. The importance of observing culture and tradition is of paramount importance, but couples should always exercise their right to govern their customary marriage as suitable for them and in accordance with the relevant governing laws.
This article is written to create an awareness about the evolvement of the law in so far as customary marriages are concerned and should be not in any way, be construed as advice to any reader. In the event that you require legal advice, you may contact us using the details on the website.
Written by Yolanda Silindane, legal practitioner and associate in the firm.
