Introducing the bride – when is a customary marriage deemed to have been condoned by the families?

October 1st, 2020
x
Bookmark

Picture source: Gallo Images/Getty

One of the main aims of the Recognition of Customary Marriages Act 120 of 1998 (the RCMA), is to specify the requirements of a valid customary marriage. Section 1 of the RCMA also defines a ‘customary marriage’ as a ‘marriage concluded in accordance with customary law’. Section 3 of the RCMA stipulates requirements that have to be complied with for the conclusion of a valid customary marriage and these are:

‘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’ (my italics).

Although the first two requirements are not onerous, the last requirement (s 3(1)(b)) turns out to be the most controversial in customary marriages. The controversy these customary marriages are faced with mostly relate to payments, namely, when there is no full-payment or payment made for lobola (bride price) and/or there was no handing over or integration thereof including, but not limited to, the performance of a certain ritual inherent in customary marriages. This article, therefore, aims at unpacking the content of s 3(1)(b) in line with the recent Supreme Court of Appeal (SCA) judgments.

By virtue of s 3(1)(b), traditional communities are at liberty to perform their flexible customs for the conclusion of a customary marriage (Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA) at para 17).  It is trite in African traditions that lobola be paid and this falls within the ambit of negotiations. Families will meet to agree on the payment of the bride price and in doing so, they further agree on how and when same should be paid (Christa Rautenbach, Jan Christoffel Bekker and Nazeem Muhammad Ismail Goolam Introduction to Legal Pluralism 3ed (Durban: LexisNexis 2010) at p 52 and 56). When this happens, the marriage is entered into in accordance with customary law. Due to various cultural traditions, this section affords various communities the leeway to make use of their own customs. The confirmation of ‘in accordance with customary law’ is further required by the declaration contained in the regulations under s 11 of the RCMA. Section B of Form A of the Annexures to the regulations require that parties specify the custom that is inherent in their customary marriage (Regulations under the RCMA published under GN R1101 GG21700/1-11-2000).

The intricacy of s 3(1)(b)

Section 3(1)(b) is the life-blood of a customary marriage in that non-compliance thereof may lead to an invalid customary marriage (Fanti v Boto and Others 2008 (5) SA 405 (C)). In order to determine such requirements regard must be made to the customary practices of the relevant community (MM v MN and Another 2013 (4) SA 415 (CC) at para 29). In Moropane v Southon [2014] JOL 32177 (SCA) the SCA found that the handing over of the makoti (bride) to her in-laws is the most crucial part of a customary marriage (at para 40). It is through this symbolic customary practice that the makoti is finally welcomed and integrated into the groom’s family, which henceforth becomes her new family. In other words, there will be no customary marriage in the event the handing over did not take place.

Purpose of handing over

While noting the purpose of bridal transfer and the view that the legislature intended to leave open s 3(1)(b) for communities to give content to it in line with their cultural practices, it is in the hands of the families to agree about their customary law practices inherent in the conclusion of a valid customary marriage. According to Mkabe v Minister of Home Affairs and Others (GP) (unreported case no 2014/84704, 9-6-2016) (Twala AJ) it is neither a requirement that lobola be paid in full nor that bridal transfer should take place in the event lobola is negotiated notably if there was an exchange of gifts between the two families, unless the families involved agree otherwise.

Noteworthy is that cohabitation precedes most customary marriages if not all, and this may under certain circumstances attenuate the purpose for which bridal transfer or handing over or integration may be sought. In other traditions, when a marriage is preceded by cohabitation the family of the bride will, during negotiations, impose a fine on the groom’s family to indicate displeasure against cohabitation (JC Bekker Seymour’s Customary Law in Southern Africa 5ed (Cape Town: Juta 1989) at 108 – 109). What happens in the event the cohabitation precedes a customary marriage and there is neither a fine nor any agreement as to when a customary marriage will be deemed concluded? The decision of Mkabe answers this question in that it held that parties can do away with the integration of the bride by agreement.

What is more, the decision of Mbungela elaborates even further on this question by stating that the s 3(1)(b) requirements, insofar as they relate to the conclusion of customary marriages, may be waived by agreement or conduct or even condoned.

The appellants being Piet Mbungela and Thobile Carol Mkhonza (the latter in her capacity as the executrix in the estate of the deceased) appealed against the decision of the Gauteng Division of the High Court in Pretoria to the SCA.

The appellants contended that the marriage between the respondent and the deceased was not a valid customary marriage because the deceased was not handed over to the Mkabi family and lobola was not paid in full with the effect that not all the requirements of s 3(1)(b) were complied with. In determining the question of whether the first respondent and the deceased complied with s 3(1)(b) of the RCMA and concluded a valid customary marriage, even when the deceased was never handed over to the respondent’s family in terms of custom, the following considerations were made –

  • the RCMA does not specify the payment of lobola but it is accepted that same is covered under s 3(1)(b);
  • it is accepted that it was the intention of the legislature to leave it open for various communities to give content to s 3(1)(b) in line with their living customary law (Mbungela at para 17).

In support hereof, the SCA cited with approval the view expressed in Moropane that although various African cultures generally observe the same customs and rituals, it is not unusual to find variations and even ambiguities in their local practice because of the pluralistic nature of African society (Mbungela at para 7).

The SCA pointed out ‘[t]he purpose of the ceremony of the handing-over of a bride is to mark the beginning of a couple’s customary marriage and to introduce the bride to the groom’s family. It is an important but not necessarily a key determinant of a valid customary marriage’ (Mbungela at para 30).

In deciding whether the non-observance of bridal transfer invalidates the customary marriage, the SCA cited with approval Mabuza v Mbatha 2003 (4) SA 218 (C) where it was decided that the ukumekeza custom like so many other customs, has evolved and that it is inconceivable that it cannot be waived by agreement between the parties or their families. The court held that the customary marriage in the Mabuza case was valid despite the non-observance of the bridal transfer through the custom of ukumekeza.

In the Mbungela matter, the parties had an intimate relationship and cohabited for three years before the marriage process began. After the lobola negotiations, the deceased immediately resumed her life with Mr Mkabi without the approval from her family. If for all intents and purposes the family did not condone the cohabitation between the deceased and Mr Mkabi, the bride’s family should have expressed this disapproval by way of, including but not limited to, a fine and this was not done. The condonation of this fact led to the conclusion that the families accepted the parties as husband and wife (Mbungela at para 25).

It was, therefore, concluded that due to evolution of living customary law, certain rituals may be waived or condoned by agreement and this means that the customary marriage will still be deemed valid unless the families specify that there will be no marriage until the ceremony of bridal transfer takes place (Mbungela at para 30). The court still found that a valid customary marriage could be concluded without the full payment of lobola in light of the evolution of customary law if other requirements of a customary marriage were met and the appeal was dismissed.

In Tsambo v Sengadi (SCA) (unreported case no 244/19, 30-4-2020) (Molemela JA (Maya P, Mbha, Zondi JJA and Mojapelo AJA concurring)) at para 26 the SCA repeated ad nauseam especially on the point of handing over that it is simply to mark the beginning of a couple’s customary marriage and introduce the bride to the bridegroom’s family. It was ruled that having accepted the bride by declaring her as makoti was sufficient to constitute handing over (Tsambo). The reasoning of the court in this case is similar to that of Mbungela as the conduct of the parties in both cases was similar.

Conclusion

Although unregistered customary marriages are not invalid marriages, the tussle that surviving spouses and/or parties in unregistered customary marriages face, always leads to a litigious dispute that ultimately invokes the interpretation of s 3(1)(b). However, it appears today, that if parties were already cohabitating before concluding a customary marriage, and during the entering into, negotiation and celebration of such marriage, the families do not agree in terms of their customs about certain requirements subject to s 3(1)(b), the parties or families will be deemed to have condoned or waived any additional requirement in terms of customary law with the result that the customary marriage will be valid. The judiciary is weaving the thread of s 3(1)(b) to incorporate societal aspect of marriage to embrace fairness and equity in the lives of parties whose marriages are not registered.

It is, therefore, crucial to inquire into all factors that may assist members of the public in determining the existence of a valid customary marriage and not be limited by full-payment of lobola or lack of a marriage certificate. This is because to conclude that a customary marriage is invalid without considering various aspects may lead to far-reaching consequences on the parties and/or families involved hence each case is determined in line with its own circumstances. The intricacy of s 3(1)(b) is evident that to weave the validity of customary marriage, requires a factual inquiry.

Clarrence Mangena LLB (University of Venda) is a legal practitioner at Espag Magwai Attorneys in Polokwane. 

This article was first published in De Rebus in 2020 (Oct) DR 12.