Customary marriages in South Africa are governed by the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Registration of customary marriages is provided for in s 4 of the RCMA. This section provides that the spouses in a customary marriage have a duty to ensure that their marriage is registered with the Department of Home Affairs. Parties who have concluded their customary marriages before the commencement of the RCMA were and are still afforded the option to register their marriage within a period of 12 months or such longer period as may be allowed by the minister, whereas parties who have concluded their customary marriages after the commencement of the Act are afforded a period of three months within which to register their marriage after the date of conclusion of such a marriage.
However, these requirements or rather provisions seem to be continuously overlooked, simply because of what we would call an ‘enabling provision’, which is s 4(9) of the Act. Section 4(9) states in clear and unambiguous terms that the failure to register a customary marriage does not affect the validity of such a marriage. Non-registration of customary marriages has seen many parties to such marriages face the long legal battles of having to prove the existence of such a marriage, more particularly when the other spouse has passed away and the remaining spouse has to prove their rights to the properties forming part of the joint estate. This article aims to discuss objectively the legal ramifications of non-registration of customary marriages, specifically when the surviving spouse is acquiring immovable property and the Deeds Registries requirements.
In terms of regulation 44A of the Deeds Registries Act 47 of 1937, the person signing the preparation certificates prescribed by regulations 43 and 44A(1) accepts, in terms of s 15A(1) and (2) the responsibility for the correctness of the facts stated in a deed or document concerned, which are relevant in connection with the registration or filing thereof. Such a person who may be an attorney, notary or a conveyancer accepts the responsibility for the correctness, identity number, date of birth and marital status of any natural person being a party to a deed or document. A marriage certificate, particularly in the case of a customary marriage, though not lodged at the Deeds Registries, is one of the documents that is used to prove the marital status of a party to a deed or document and such must be kept in the conveyancer’s file. It has previously been accepted that an affidavit regarding the marital status of a party was sufficient in the case of a conveyancer making an inquiry into the correct state of affairs when obtaining instructions to attend to the transfer and registration of immovable properties.
Conveyancers are faced with stumbling blocks, when attending to the transfer and registration of properties into names of the surviving spouse who is entitled by virtue of the marriage in community of property, to part of the assets in the joint estates. During one of their meetings to discuss contentious issues to the deeds office practice and procedures, the Registrars resolved that the only proof that may be accepted for proving the existence of a valid customary marriage is proof from the Department of Home Affairs or an order of court and that an affidavit by the spouse(s) is not acceptable. This is terms of the Registrars’ Conference Resolution(s) RCR 31 of 2005 as confirmed by RCR 8 of 2006. This simply means, the conveyancer cannot rely on a lobola letter which contains the minutes of the negotiations or on the affidavits from the delegations from both families to prove the existence of a valid customary marriage when transferring property into the names of the surviving spouses at the deeds office.
An unregistered customary marriage may attract problems, especially where inheritances are involved. It is easier for spouses who are both still alive to register their customary marriage when its validity is challenged, as they can simply go to Home Affairs and have same registered, but the odds are against a surviving spouse in a customary marriage that was never registered. Unlike spouses in civil marriages, spouses in customary marriages seem to continuously overlook the need to register their customary marriages. One would assume that this ‘ignorance’ might be because customary marriages are based more on customs and practices rather than one big ceremony which is a wedding that compels the spouses to sign the marriage register immediately after the ceremony. Parties after conclusion of their marriage negotiations, tend to just continue with their lives without worrying much about formalising their marriage by registering it with the Department of Home Affairs. When attending to the administration of an estate, most legal practitioners are faced with challenges of having to rely on the lobola letter as proof of the existence of a customary marriage and such has attracted a lot of challenges especially when such lobola letter is nowhere to be found and the witnesses to the negotiations of such unions have all passed away.
Although the proprietary consequences of a customary marriage entered before or after the commencement of the Act is a marriage in community of property, meaning that spouses in a customary marriage are equally entitled to a share of the joint estate, such proprietary consequences often come under attack when one spouse passes away without the parties having formalised their union, prior to the death of the other spouse. At the centre of these attacks, we find the majority of these surviving spouses being women who have to seek the court’s assistance through legal practitioners, in formalising their customary marriages for the purposes of proving the existence of such a marriage and acquisition of property from the joint estate thereafter.
Despite the challenges mentioned above, the door is not completely closed to a surviving spouse who was in an unregistered customary marriage. Such spouses have the option to access justice and equality and in the same way, protect their dignity through the assistance of legal practitioners, to bring an application in terms of
s 4(7) of the Act. Section 4(7) provides that the court may upon application made to that court, and upon investigation instituted by that court, order the registration of such marriage, the cancellation or the rectification of registration of any customary marriage by the registration officer.
Although the law may be in favour of these surviving spouses, these court processes can be lengthy, emotionally draining and very costly especially when disputed. In the recent case of Khashane v Minister of Home Affairs and Others (GP) (unreported case no 052246/2023, 12-1-2024) (Khwinana AJ), a case of which we will not dwell much into the facts, the court had to decide whether the posthumous registration of the customary marriage between Ms Khashane and the deceased, invalidated their union, which was negotiated and entered into in 1992. The court found in favour of Ms Khashane and ordered that the Department of Home Affairs registers and issues her with a marriage certificate. A similar judgment was handed down in the case of Nduli v Minister of Home Affairs and Others (KZP) (unreported case no 1789/21P, 3-3-2023) (Bezuidenhout J). In a more complex matter, in Njilo v Minister of Home Affairs and Others (FB) (unreported case no 4051/2023, 16-2-2024) (Mhlambi J), the court also found in favour of the applicant that the marriage entered into between Ms Njilo and the deceased was valid and should be registered and a marriage certificate be issued. It is also safe to say that it was never the intention of the legislature to exclude parties in an unregistered customary marriage.
Although there is currently no uniform rule in the 11 deeds offices on the documents to be lodged wherein a surviving spouse inherits property in intestate succession or a spouse looking to prove ownership or claim their rights in a customary marriage, and the surviving spouses having the option to utilise s 4(7), it is strongly advised that parties who enter into such a marriage register their marriage with Home Affairs to comply with the Registers Conference Resolutions and the Deeds Registries requirements. It is also safe to say that it was never the intention of the legislature to exclude parties in an unregistered customary marriage.
Mulalo Tshililo LLB (Univen) is a legal practitioner and notary at Letsoalo and Associates Inc in Polokwane. Queen Anna Khoza LLB (Univen) is a legal practitioner, notary and conveyancer at Queen Anna Khoza and Associates Inc in Johannesburg.
This article was first published in De Rebus in 2024 (September) DR 15.
