Written by Natasha du Preez

6 September 2023

Customary marriages are recognized under the Recognition of Customary Marriages Act 120 of 1998 (hereinafter “The Act”). In terms of the Act, certain requirements must be met by the parties entering into the customary marriage for the marriage to be deemed a legally valid and existing marriage under South African law.

In this article, we will evaluate whether a valid customary law marriage can legally exist if all requirements as set out in the Act have not been met by the parties involved, specifically the “handing over of the bride” requirement.

WHAT ARE THE REQUIREMENTS FOR A LEGALLY VALID CUSTOMARY LAW MARRIAGE?

  • Both parties entering into the marriage must be over the age of 18;
  • Both parties must consent to be married in terms of customary law;
  • The marriage must be negotiated in terms of customary law;
  • The marriage must be celebrated in terms of customary law in the presence of witnesses.

WHAT DOES IT MEAN TO CELEBRATE A MARRIAGE IN TERMS OF CUSTOMARY LAW?

In terms of the Act, the marriage being entered into by the parties must be celebrated in terms of customary law in the presence of witnesses.

The reason for the importance of this requirement is based on the fact that customary marriages are not merely concluded between the bride and groom, but also extend to the respective families of the parties.

Thus, a customary marriage must be celebrated by means of a traditional ceremony wherein the bride and groom’s respective cultures and customs are celebrated, with their respective families playing an actively involved and important part of the ceremony.

During this ceremony, the bride removes her own cultural traditional clothing, and the bride is proudly clothed in the traditional and cultural clothing of the groom which symbolizes the bride being integrated into the groom’s culture.

HOW DOES “HANDING OVER OF THE BRIDE” COMMENCE?

After the traditional ceremony has been conducted, the bride must be “handed over” to the groom’s family.

This process is usually physically conducted at the residence of the groom, wherein the bride is introduced to the groom’s family as his wife, and the bride is counselled and welcomed by the groom’s family.

Usually, an animal is slaughtered and enjoyed by both the bride and the groom’s family as a symbol of the union of the respective families.

The “handing over” of the bride is therefore an important requirement as it symbolizes the start of the marital consortium between the bride and groom and it furthermore establishes the familial bond between both parties’ respective families.

IS A CUSTOMARY MARRIAGE INVALID OR VOID IF THE “HANDING OVER” REQUIREMENT WAS NOT MET?

Whilst the Act specifically contains certain requirements that have to be met for a customary marriage to be considered legally valid, the Courts have adapted to account for the flexibility of customary law, as well as the ever-changing cultural customs in accordance with living law.

The Courts have been faced with many cases wherein the validity of customary marriages was disputed on the basis that the customary marriages were concluded without the bride having been handed over to the groom’s family.

Spectacularly, the Courts have in many instances ruled that whilst the “handing over” requirement is important for the conclusion of a valid customary marriage; taking into account living law and the flexibility and ever-changing nature of customary law itself, the “handing over” requirement can in certain instances be conducted as a “symbolic hand over” or may even in some instances be waived in its entirety.

Although stipulated in the Act as a strict requirement, it has been established by the Courts that non-compliance with the “handing over” requirement will not invalidate or void a customary marriage entered into between parties.

Therefore, a customary marriage can be legally valid marriage under South African law, if the “handover” requirement has not been met.

CASE LAW WHEREIN THE COURTS DECLARED THAT LEGALLY VALID CUSTOMARY MARRIAGES EXISTED DESPITE THE “HANDING OVER” REQUIREMENT HAVING NOT BEEN MET BY THE PARTIES:

Below are some revolutionary approaches of the Court in relation to the validity of customary marriages that were concluded without the “handing over” requirement having been met:

In the case of LS v RL [2018] ZAGPJHC 613; [2019] 1 All SA 569 (GJ); 2019 (4) SA 50 (GJ):

The High Court held that the custom of “handing over” of the bride is unlawful as it “unfairly and unjustly discriminates against the gender of the applicant as a woman and denies her the constitutional right of dignity and equality, because only women, after consenting to enter into a customary law marriage are subject to this unequal treatment by the custom of handing over.’”

This landmark judgment further supports the view that African Customary Law is ever-evolving and is always flexible, and subject to cultural changes.

Therefore, the Court indicated that non-compliance with the bridal transfer custom or “hand over” tradition does not invalidate a customary marriage.

In the case of MABUZA V MBATHA 2003 (4) SA 218 (C):

Hlophe JP, was confronted with a contention that, SiSwati custom of ukumekeza namely, the “handing over the bride” was not done.

The Judge argued that ‘African customary law has evolved and was always flexible’ and further stated that “the practice of ukumekeza has no doubt evolved and could thus be waived”.

Therefore, the Judge held that “non-compliance with the strict rules pertaining to rituals and ceremonies, cannot invalidate a customary marriage that has been negotiated, agreed, or celebrated in accordance with customary law”.

In the case of: MBUNGELA AND ANOTHER V MKABI AND OTHERS [2020] 1 ALL SA 42 (SCA):

In this case the parties had concluded the lobola negotiations and exchanged gifts, but the bride was not physically handed over to the in-laws.

The Supreme Court of Appeal held that a handing over ceremony is “an important but not necessarily a key determinant of a valid customary marriage” and the “handing over of a bride is simply a means of introducing a bride to her new family and signifies the start of the marital consortium”.

The Supreme Court of Appeal thus declared that a valid customary marriage does exist between the parties.

In the case of TSAMBO V SENGADI (244/19) [2020] ZASCA 46 (30 APRIL 2020):

The court set a landmark precedent with regard to the “symbolic handover”.

In this appeal case, the central issue was whether a customary law marriage came into existence between the deceased and the Respondent. Ancillary to that issue was whether a handing over of the bride ensued in satisfaction of the requirement that the marriage be negotiated and entered into or celebrated in accordance with customary law.

M B Molemela J, held that the court a quo correctly found that a valid customary marriage existed between the parties in that “the physical handing over of the bride was waived in favour of a symbolic handing over” since the parties have been co-habituating as husband and wife ever since the conclusion of the customary marriage.

CONCLUSION

From the outset, it is clear that whilst the Act specifies certain requirements for a legally valid customary marriage to exist, recognition must be given to the flexibility and ever-evolving nature of customary law, cultural customs and living law.

The Courts have been cognisant of the nature of customary law and have been amenable to considering living law and the flexibility thereof by adopting a more lenient approach in relation to the requirements for the validity of customary marriages.

Whilst the responsibility of compliance with the requirements of the Act, without doubt, falls on the parties who wish to enter into the customary marriage, in instances where the parties to the customary marriage erroneously failed to comply with the requirements contained in the Act, the Courts will take into consideration all aspects such as the flexible and adaptive nature of customary law and living law in conjunction with the bona fide intention of the parties, when they entered into the customary marriage upon deciding if the customary marriage is legally valid. Contact Burger Huyser Attorneys, an experienced team of customary law and family lawyers, to advice you on the requirements for the validity of customary marriages in South Africa.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE