Consent as a requirement in customary marriages

April 1st, 2024
Mashisane v Mhlauli (SCA) (unreported case no 903/2022, 14-12-2023) (Weiner JA (Mbatha, Mothle, Hughes JJA and Keightley AJA concurring))

‘Culture is not just a set of customs; it’s a vital part of who we are as individuals and communities. … Culture encompasses traditions, customs, rituals, and practices that have been passed down through generations. These traditions connect people to their ancestors and provide a sense of continuity with the past. Preserving cultural heritage ensures that these traditions are not lost’ (Dibakar Yadav ‘Why we must preserve our culture?’ (, accessed 5-3-2024)).

Cultural practices are a means of preserving our cultural identity. In the judgment of Mashisane, the Supreme Court of Appeal (SCA) grappled with the question of whether a cultural practice was an exercise of custom or whether it gave rise to a valid customary marriage. The matter was an appeal from the Gauteng Local Division of the High Court, Johannesburg (per Siwendu J), where the respondent (Ms Nosiphiwe Linda Mhlauli) obtained declaratory relief that she and the appellant (Mr Moses Muxe Mashisane) concluded a valid customary marriage as contemplated in s 3 of the Recognition of Customary Marriages Act 120 of 1998 (RCMA). The respondent further obtained an order that the antenuptial contract (ANC) between herself and the appellant is null and void.

The court a quo (Gauteng Local Division of the High Court, Johannesburg) refused the appellant leave to appeal. The appellant brought an application for leave to appeal to the SCA, which was granted.

Facts in dispute

At the core of the dispute between the parties was whether the appellant and the respondent were married in terms of customary law, and particularly whether the parties intended the marriage to be in or out of community of property. The appellant remained adamant and steadfast that he did not consent to the customary marriage nor was he intending to be married under customary rites.

However, although the appellant contested the customary marriage, he did not contest that he observed certain traditional customs after the conclusion of the lobola contract. He maintained that the observation of these certain traditional customs was to ‘embrace the parties’ traditional customs’ (para 3) and it further was ‘a precursor’ to the civil marriage, with the accrual system (para 9). He was not in any way or manner consenting to be married under customary rites or by civil law in community of property. According to the appellant, it has always been the intention of the parties to be married by civil law and out of community of property from the outset of their relationship.

The respondent disputed the aforementioned and maintained that the parties intended to enter into a customary marriage (para 4). However, it appeared that from her replying affidavit, the respondent actually conceded to consenting to be married out of community of property but was now arguing for a customary marriage and for the ANC to be declared invalid (para 10). The consequence of the ANC being declared invalid would be that the marriage would be in community of property, as that is the default position for marriages under customary law.

Legal position on the validity of customary marriages

For there to be a valid customary marriage, the requirements as set out in s 3(1) of the RCMA must be met, and in addition, the marriage must be registered in accordance with s 4. According to s 3(1), the requirements for a valid customary marriage entered after the commencement of the RCMA are as follows:

‘(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).

Section 4(1) further provides that there is a duty on the spouses to ensure that their marriage is registered, and s 4(2) stipulates the manner in which registration of the marriage is to occur.

The Constitutional Court (CC) in MM v MN and Another 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) called for caution, patience and respect when faced with matters dealing with living customary law, as it is crucial that it aligns with the Constitution’s principles and values, from which it draws its legal force (para 46). The CC held that the determination of customary law is a question of law. As such, a court must be satisfied, as a matter of law, on the content of customary law. However, that alone is not enough, and courts must further understand concepts such as ‘consent’ within customary law and must take great precaution in not inflicting common law or other interpretations of the concept. Discernment is pivotal, as courts must guard against imposing a universal meaning to concepts, such as ‘consent’, whether within the framework of customary law or across all legal sources. Customary law itself is not homogenised and ‘a particular custom may have one of various acceptable manifestations of a consent requirement’ (para 12).

Court’s application and analysis of legal position

The SCA, taking into consideration what was said by the court in Mayelane, found that it is insufficient for such matters to be decided on affidavits alone (para 13). Since there was a genuine dispute of fact between the parties, namely, the appellant’s consent to be married according to customary law and the validity of the ANC, the court found that the matter fell well within the ambits of the Plascon-Evans rule (para 15). However, the respondent made the duty to prove her case onerous by often contradicting herself and raising new evidence in her replying affidavit (para 16). Hence, the relief declaratory relief sought by her was inappropriate in these circumstances.

The court reached the conclusion that motion proceedings were not the appropriate forum for recourse, due to the nature of facts in dispute. Expert evidence would have to be led to establish the concept of ‘consent’ in both parties’ customs. The respondent (who is Xhosa) would have to establish her case that the parties consented and were married under customary law. The appellant (who is Tsonga) would also have to lead evidence and establish his case (para 13).

The court further found the principle laid down in Gounder v Top Spec Investments (Pty) Ltd [2008] 3 All SA 376 (SCA); 2008 (5) SA 151 (SCA) applicable, where it was emphasised that a party who elects to proceed with motion proceedings, while being aware of existing dispute of facts, risks having their application dismissed than being referred to evidence or trial (para 26).

As such, the appeal was upheld with costs, with the order of the High Court set aside and replaced with ‘the application is dismissed with costs’.

Nosiphiwo Nzimande LLB LLM (UKZN) in Durban.

This article was first published in De Rebus in 2024 (April) DR 32.