By Sipho Nkosi

This is an appeal which was heard in the North Gauteng High Court, Pretoria, on the 23 October 2014. Teffo J had granted an order in favour of the respondent (the applicant in the court a quo), that there was a valid customary marriage between her and the deceased (the son of the appellant, the third respondent in the court a quo). She also ordered that the marriage be registered, and that the Registrar of Marriages in the Department of Home Affairs issue a certificate to that effect.

In her founding affidavit, the respondent averred that on 3 November 2007 a valid customary marriage was entered into between her and the deceased (who died on the 19 February 2009). She further stated that the emissaries of the two family groups met at her parent’s home for that specific purpose: To negotiate and pay lobolo. It was agreed that 11 cattle plus a goat would be paid. An amount of R 10 000 was paid on that day; and it was agreed that that amount was the equivalent of five cattle. This meant that a balance of six cattle and a goat was still outstanding. She also averred that in October 2008 she visited the deceased’s parents’ home and spent three days; and that, on one of those days, the deceased’s father told her that ‘she was (now) his daughter in law.’

In his answering affidavit, the father of the deceased (the appellant) admitted that an amount of R10 000 was indeed paid on the 3 November 2007, as part of the lobolo, but denied that what was entered into on that day was a customary marriage. He contended that ‘certain essentials of a customary union were not finalised, in particular in that the applicant was never handed over to the deceased’s family as required by customary law so that certain rituals including a marriage ceremony could be conducted.’

In her judgment Teffo J said: ‘The events of 3 November 2007 objectively taken indicates that the marriage was negotiated and entered into in terms of s 3(1)(b). Once the amount of lobolo has been agreed upon and there is an undertaking to pay there can never be any other negotiations. The argument by the Third Respondent that on that particular day it was the initial stage of the negotiations and that the negotiations were still not complete is without merit. After lobolo has been fixed what else could still be negotiated?’ Teffo J seems to have placed primacy on lobolo, at the expense of all the other requirements.

On appeal, the court held that the payment of lobolo was not in dispute, but that lobolo, on its own, did not constitute a customary marriage. Matojane J said: ‘In my view, the most essential requirement of a customary marriage, the handing over of [the] appellant to her husband’s family was never done. Accordingly a customary marriage though negotiated was never entered into or celebrated in accordance with customary law as required by the [Recognition of Customary Marriages Act 120 of 1998].’ And, the appeal was dismissed. Matojane J, too, characterised the physical (virilocal) handing over the bride to the groom’s family group as being the be-all and end-all of customary marriages. This is not correct, it is submitted. This is because the handing over can also take a symbolic or uxorilocal form. Also, there seems to be no indication that the decision of the court a quo is itself reported, nor are the factors which influenced its decision as set out above. It is not clear whether cohabitation ever took place between the respondent and the deceased, before or after the 3 of November 2007. There is also no indication whether the respondent’s assertion that the appellant referred to her as ‘his daughter in law’, was ever ventilated, or disputed.

I agree with the court that a customary marriage is not an event but a process that involves two families. I also agree with the court that while lobolo is an essentiale of a customary marriage, it need not be paid in full (as long as there is an undertaking to pay the balance in due course). However, I disagree with the manner in which Matojane J interpreted the provisions of s 3 of the Recognition Act. Just like the court a quo said with regard to the payment of lobolo, the court seems to have placed undue weight on the physical handing over of the bride. There is no hierarchy of requirements where customary marriages are concerned. The court was rather rigid in its application of the provisions of s 3(1)(b) of the Act, particularly if one considers the fact that there are many decisions from the Constitutional Court, and that court itself, which are a study in judicial flexibility (see Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) at para 49-55; see also Mabena v Letsoalo 1998 (2) SA 1068 (T) at 1074-5 and Mabuza v Mbatha 2003 (4) SA 218 (C) at 226).

Section 3(1)(b) provides that a customary marriage must be ‘negotiated and entered into or celebrated in accordance with customary law’ (my emphasis). The italised words indicate that the legislature acknowledges that there are many different communities in South Africa whose marital matters are regulated by some or other body of customary law and that there exists many different strands of customary law. Each community is governed by a set of customs and usages that change and develop all the time and the Constitution has been a major catalyst in this regard (see the Shilubana case at 54 – 55). These developments have not left the handing over of the bride – as a requirement of a customary marriage – untouched. It is also true that the adherence to this ritual has never been monolithic. As indicated above, the different communities practise it differently, and execute it differently (see the Mabuza case at 226, where the court condoned the non-performance of ukumekeza (a siSwati version of handing over which also involves the bride appearing naked in front of the female elders of the groom’s family), and also accepted that the bride had cohabited with the groom for about eight years, and had regarded herself as the groom’s ‘lawful wife’; see also the Letsoalo case at 1072 – 1074). In some of the communities, the handing over of the bride takes a physical form, manu in manum, on the day of the wedding (JC Bekker Seymour’s Customary Law in Southern Africa (Cape Town: Juta 1989) at 109 and 114). And, in others, the ritual is symbolic or uxorilocal in nature. The uxorilocal handing over may involve the slaughtering of a beast by the father or guardian of the bride, to signify the acceptance of the groom by the family; or as an indication that she is free to join him and his people, if she so wishes (ibid). This is very much in line with the view that, in customary law, ‘scrupulous attention to the rule is seldom vital’, particularly where a man is already married (another woman) or is a widower, or where there is (premarital) pregnancy and elopement involved, and the intending parties seek to expedite matters for themselves (see TW Bennett Customary Law in South Africa (Cape Town: Juta 2004) at 214 – 216).

Cohabitation is another factor that needs to be considered in these circumstances, particularly where the bride’s family never objected to it, or did not display any opprobrium by, for example, exacting a fine from the groom’s family. Bekker makes this point, concisely, when he says: ‘[P]roof of cohabitation plus the receipt by the woman’s guardian of a substantial number of cattle … may raise presumption that a customary marriages exists’ (Bekker op cit at 116). And, if there is no cogent evidence in rebuttal of that presumption, the court will definitely conclude that a valid customary marriage exists (or existed) between the parties (ibid). In KwaZulu-Natal, for instance, all that is required is a ‘declaration’ on the day of the wedding in the presence of an ‘official witness’ from the office of the local traditional leader (see s 38(1) of the Natal Code of Zulu Law 1987 (see Proc R151 of GG10966/9-10-1987 1967) and s 38(1) of the KwaZulu Act on the Natal Code of Zulu Law Act 16 of 1985). It is also important to note that lobolo itself is not even a legal requirement in that province (see s 38 of the Codes).

That is why it is difficult to agree with this passage in Motsoatsoa v Roro and Another [2011] 2 All SA 324 (GSJ) at para 19 –20 (which is cited with approval by Matojane J): ‘[The handing over of the bride] is the most important and final step in the chain of events [that] happens in the presence of both the bride and groom’s families. One can even describe this as the official seal in the African context, of the customary marriage.

The handing over of the bride is what distinguishes mere cohabitation from (a customary) marriage. …

In terms of practised or living customary law the bride cannot hand herself over to the groom’s family. She has to be accompanied by her relatives.’

While there are some salutary aspects in Matlapeng AJ’s judgment, including the fact that he did not completely close the door on the probative value of cohabitation in cases of this kind, and that each case would have to turn on its own facts, there are aspects of it that lie ill in one’s mouth.

First, the judge began by traducing the works of academics as unreliable in this regard, but ended up cherry-picking the selfsame works (and court decisions) to support his views. Second, it is not clear from the judgment what the customs and usages of the two family groups were, or to what extent they had evolved and developed with regard to the handing over of the bride. Nor were the elders of the community called in as experts to clarify the issue for the court. Third, while Matlapeng AJ acknowledged the fact that customary law differs from one community to another, and the need to, at all times, ascertain the applicable ‘living law’ of the affected community, he seemed to recoil back to rigidity. Fourth, even though the judge celebrated the diversity of the different brands of customary law, he paradoxically concluded by proffering a one-size-fits all, and dogmatic, formulation of the applicable principles on this regard. Fifth, most of the women who are involved in these rituals are adults; they are not chattels to be shunted around at the whim of their families. They are entitled to all the fundamental rights as enshrined in the Constitution, which customary law should always conform to (see s 211(3)).

Customary law is not just an infrangible continuum of rituals and usages. It is also not frozen in time. It is very malleable. And, in dealing with matters of this nature, the courts have to take cognisance of whatever developments and changes which might have taken place within a particular community, provided the process is consonant with the ‘spirit, purport and object of the Constitution’ (see Pilane and Another v Pilane and Another 2013 (4) SA BCLR 431(CC) at para 35; see also the Shilubana case at para 49-55). This is because these developments represent the ‘living law’ which is ‘actually observed by African communities’ in this regard (Mabena at 1074). It is also the preserve of any community (and its constituent family groups) to regulate and simplify the rituals and requirements that pertain to customary marriages; or to abridge them as they see fit (see Bennett op cit at 194). As the Constitutional Court put it in Alexkor Ltd and Another v The Richtersveld Community and Others 2004 (5) SA 460 (CC) at para 53: ‘Throughout its history [customary law] has evolved … to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistent with the Constitution’ (see also in this regard, the Shilubane case at para 54-55; the Pilane case at para 35 and Letsoalo case at 1075). In the last-mentioned case, the court held that because the mother of the bride was the head of her household, she had the right to negotiate for and receive the payment of lobolo from her daughter’s suitor (at 1075). The court also considered the fact that the power relations between men and women had changed: Women are now financially independent, and do, from time to time, pay back (from their own pockets or kraals) the lobolo to their erstwhile husbands and ‘dissolve’ their customary marriages, without any further involvement of the two families (see Letsoalo at 1074, and the authorities cited therein).

If South African women (or mothers) can now perform all the juristic acts mentioned above, then surely fathers can, as a corollary, accept their sons’ intending spouses into their homes, as their ‘daughters in law’ – as a species of the handing over? Moreover, there is nothing constitutionally reprehensible about this deviation, particularly where there was cohabitation between the bride and groom after the payment of lobolo – or a portion thereof. This would ensure that the dignity of the women involved in these seemingly inchoate marriages is protected; and that the children are not rendered extramarital. After all, there is no universal, rigid, catechismal formula that exists for all customary marriages, and the handing over of the bride is not the sine qua non that it is made out to be.

Sipho Nkosi BJuris LLB (UNIZULU) LLM (UJ) is a lecturer (advocate) at the University of Johannesburg.

This article was first published in De Rebus in 2015 (Jan/Feb) DR 67.