BOOK A CONSULTATION

ARTICLES

Customary Relationships

Courts are often tasked with the issue of determining whether a relationship which is not legally recognised fulfills the same function as a marriage.

If the courts find that the relationship does, in fact, fulfill the same function as a marriage, being long term mutually supportive financially interdependent relationships, the courts would then aim protect the relationship and legally recognise it.

This is the functional approach.

The formal approach is to adhere to rules, guidelines, and requirements.

Section 3 of the Recognition of the Customary Marriages Act 120 of 1998 (the Act) sets out the requirements for a valid customary marriage.

S 3(1) For a customary marriage entered into after the commencement of this Act to be valid 

     a) The prospective spouses:

          i) must be above the age of 18 years; and

          ii) must both consent to be married to each other undercustomary law; and

     b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.” 

Although the act does not provide for further requirements in section (3)(1)(b), the courts have interpreted this clause to incorporate additional requirements such as family participation, a lobolo agreement, and integration of the bride into the husband’s family.

The case law below illustrates how the courts have come to different conclusions on these issues.

In Mabuza v Mbatha 2003 (4) SA 218 (C) the courts found that even though formal ukumekeza (integration) had not been met there was still held a valid marriage. The Court said that “it is inconceivable that integration has not evolved and that it cannot

be waived by agreement between the parties and/or their families in appropriate cases.”

In Maluleke and Others v Minister of Home Affairs and Another [2008] ZAGPHC 129 [16], held that although the parties also intended to celebrate the marriage by holding an imvume (celebration), the fact that the celebration did not occur, does not detract from the conclusion that there was a valid marriage.

In Motsoatsoa v Roro and Others (2011) 2 All SA 324 (GSJ), Matlapeng, AJ, found that it would be difficult to imagine a customary marriage existing where any lobolo or part thereof has not been handed over to the bride’s family.  However, the mere fact that lobolo was handed over to the applicant’s family, significant as it is, is not conclusive proof of the existence of a valid customary marriage. Further the court stated that the mere fact that the parties lived together does not transform their cohabitation into a valid customary marriage. The court concluded that even if the deceased’s parents acquiesced to the living arrangement between the parties, that could not have transformed what was primarily a mere cohabitation into a valid customary marriage and that would be an unfortunate perversion of customary law. The court found there to be no valid marriage.

In the case of Mkabe v Minister of Home Affairs (2016) ZAGPPHC 460 [35] (Mkabe), the court found that full payment of lobolo is not a requirement for a valid Customary marriage, and placed more emphasis on the intention of the parties, by taking into account that the deceased had been living with the husband at the time the ilobolo was negotiated and paid. The court found there to be a valid customary marriage. On Appeal, the SCA held that 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 an important but not necessarily a key determinant of a valid customary marriage. Thus, it cannot be placed above the couple’s clear volition and intent where, as happened in this case, their families, who come from different ethnic groups, were involved in, and acknowledged the formalisation of their marital partnership and did not specify that the marriage would be validated only upon bridal transfer. The SCA was satisfied in all the circumstances that the essential requirements for a valid customary marriage were met.

Since the courts have been left to decide what the further essential requirements are as set out in section (3)(1)(b) of the Act, this has led to conflicting decisions regarding lobolo and customary ceremonies. This leaves women without legal certainty and directly affecting their own perception of their marital status.

The Act allows for a marriage to be registered after the death of one or both spouses, but issues have arisen as the Department of Home Affairs have refused to register marriages if husbands are not present or are deceased. Women must approach the courts for the marriage to be registered. Women in rural arears and communities do not have the funds nor the means to access courts in this regard.

Issues which arise is that spouses cannot access pension benefits, inherit property, or obtain a divorce without a registration certificate.

The problems arise when the courts and state view Customary law or marriages as a body of rules rather than as an ongoing historical phenomenon.

A strict approach is attributed to a legal culture which is conservative, highly structured, technical, literal and rule bound. The Act clearly incorporates living Customary Law which does not sit well with western legal tradition that law should be certain or at the very least easily ascertainable. Marriage and families are inseparable in African Customary law and cannot be approached strictly.

The functional approach seems the only sensible solution to these relationships. A family law system based on equality would protect these vulnerable family relationships and the functional approach is consistent with a true equality determination.

If adopting the functional approach is a step too far for the courts, then at least the courts should consider emotional intimacy and economic interdependence and enforce the doctrine of putative marriage which focuses on intent and belief.

Should a party have evidence to prove there has been, or is a bona fide belief of a valid marriage, even if de facto void due to non-compliance, then the courts should recognise these marriages and allow for patrimonial consequences and inheritance from estates.