Lijane v Kekana and Others (GJ) (unreported case no 21/43942, 3-1-2023) (Wilson J)The Recognition of Customary Marriages Act 120 of 1998 (the RCMA) provides for the requirements of valid customary marriages in South Africa. Section 3(1)(b) provides that ‘the marriage must be negotiated and entered into or celebrated in accordance with customary law’. This article seeks to provide an objective opinion and an analysis of the judgment in the Lijane case.
The case between the parties was an opposed application, in which Mr Lijane sought an order declaring that he indeed had entered into a valid customary marriage with Gracious Katrinah Sauls (the deceased) on 27 and 28 August 2016. The respondents (Solomon Kekana, the Sauls family’s principal representative in the negotiations, and the deceased’s two children from a previous relationship) opposed the application on the basis that the marriage was not negotiated and entered into or celebrated in accordance with customary law.
Section 1 of the RCMA defines ‘customary law’ as ‘the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples’. The phrase ‘negotiated and entered into or celebrated in accordance with customary law’ basically entails those customs and procedures, be it cultural rituals or traditions that are required to be performed either for the bride by the groom’s family or for the groom by the bride’s family must have been done, for the marriage to be recognised as a valid customary marriage according to the prospective spouses’ respective cultures. In Moropane v Southon [2014] JOL 32177 (SCA), the court stated that this requirement entails examining whether the customs, traditions, or rituals, that must be observed in the negotiations and celebrations of customary marriages, have been complied with.
However, are these customs, traditions or rituals culturally observed in different communities, the determining factors as to the validity of customary marriages? In Mbungela and Another v Mkabi and Others [2020] 1 All SA 42 (SCA), the court held that the handing over of a bride ‘is an important but not necessarily a key determinant of a valid customary marriage’. The court stated further that it cannot be placed above the couples’ clear volition and intent where 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 only be validated on bridal transfer. The position in this suggests that such a marriage will only be invalid where both families have agreed, either verbally or in writing that the validity of the customary marriage between the prospective spouses will only be valid on handing over of the bride to the groom’s family. The Mbungela case seems to have changed the position in LS v RL 2019 (4) SA 50 (GJ), in which it was held that the practice of handing over of the bride to the groom’s family can no longer be considered a prerequisite for the validity of a customary marriage. Although the handing over of the bride prerequisite seems to have been disposed of, if such requirement is in writing, then it must be complied with for the customary marriage to be valid. The Mbungela case, like as in many cases, including the present case on the requirements of a valid customary marriage only adds to complexity of these requirements.
In the Lijane case, there were quite a number of contentions by the respondents, including that the bride was not properly handed over to the groom’s family, the fact that the bride was not dressed in Basotho traditional clothing by the applicant’ family, that there was non-payment of the lobolo price, which in many cultures forms an integral part of the negotiations and celebrations of the customary marriages between prospective spouses and lastly that the parties could not conclude a customary marriage under customary law, simply because they are interracial. In this case, the court held that despite the contentions by the respondents that certain customs and traditions were not performed, the same respondents accepted throughout that Mr Lijane and the deceased intended to marry, and that not only did they intend to marry, but their families also intended to conclude a customary union according to Basotho tradition.
The judgment in Lijane is a clear indication that unless the parties contesting the validity of a customary marriage between two spouses can present the strongest evidence to persuade the court that the integrity or rather the validity of an otherwise valid customary marriage could turn on what the court considered to be ‘minor’ details. In this present case, the requirement in s 3(1)(b) has been summed up to ‘what were the true intentions of the prospective spouses’ rather than whether the customary marriage was indeed ‘negotiated and entered into or celebrated in accordance with customary law’ and in the absence of persuasive and strong evidence, the former seems to be the point of inquiry into the validity of an existing customary marriage.
From the judgment of the Lijane case, it appears that the intentions of the parties, including their families will be the determining factor as to whether there was a valid customary marriage concluded or not. Each case should be decided on its own merits. As customary law continues to evolve and change with time and impact the values, customs and norms of our indigenous cultures, the question is whether it was judicious for the legislature to leave the door open for various communities to give differing context to s 3(1)(b) of the RCMA?
Mulalo Tshililo LLB (Univen) is a legal practitioner at Selamolela Inc in Louis Trichardt.
This article was first published in De Rebus in 2023 (April) DR 26.
