The modern customary  marriage – can the  handing over of a  bride be waived?

September 1st, 2021
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Picture source: Gallo Images/Getty

Customary law has – for decades – dealt with the standards in communities and each community has practiced these long established customs in each area. With the dawn of the Constitution, customary law was then recognised to have ‘equal status’ as the common law in terms of s 39(2) of the Constitution South African courts are given wider powers to interpret and develop customary law. The courts must appreciate any developments and changes, which are put in place within a particular community, on condition that the process is in harmony with the aim of the Constitution.

In recent years, there have been big debates and legal disputes on the concept of ‘handing over the bride’, to the husband as part of validating their customary marriage. The questions, which must be dealt with are:

  • How do we determine the handing over of the bride?
  • When is the bride deemed to have been handed over?
  • Does the finalisation of lobola alone – without handing over the bride – conclude
    a customary marriage?

The object of this article is to dichotomise the concept of ‘handing over the bride’.

Statutory requirements for customary marriages

The starting point is found in s 3(1) of the Recognition of Customary Marriages Act 120 of 1998 (the Act), which sets out the requirements to be met for validity of customary marriages.

For customary marriages that are entered into after the commencement of the Act to be valid, the following must be met:

‘(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 in to or celebrated in accordance with customary law’ (my italics).

Lobola is one of the all-important requisites for a customary marriage, but on its own lobola negotiations do not conclude a customary marriage. A lobola payment is followed by a celebration or any ceremonies practiced within that community/society. The payment of lobola can be in full or in partial payment with both families agreeing on how the remaining payments will be concluded. The objective of lobola is not to ‘buy’ the bride. Any alignment to this view is mortifying as it creates an unacceptable perception held by unscrupulous individuals of different ethnic groups, that a woman is a possession or a trophy. Rather the intent of lobola is to show love, respect, and sacrifice. Lobola further shows that there is consent by the two parties to get married.

In the case of Moropane v Southon (SCA) (unreported case no 755/122, 24-5-2014) (Bosielo JA (Mthiyane DP, Maya and Theron JJA and Van Zyl AJA concurring)), the Supreme Court of Appeal (SCA) held that by the virtue of both parties initiating and entering lobola negotiations, which is an ‘integral part of a customary marriage, the parties [have] consented to being married in terms of customary law’ (my italics) (Siyabonga Sibisi ‘Is the requirement of integration of the bride optional in customary marriages?’ (2020) 53 De Jure 90).

The Act does not state any style of celebration of customary marriage, nor does it specify the process of the handing over of the bride (makoti) to the bridegroom’s family.

In the case of Mabuza v Mbatha 2003 (4) SA 218 (C), Hlophe JP, when he was confronted with a contention that, SiSwati  custom of ukumekeza namely, the handing over the bride was not done (the formal integration of the bride into the bridegroom’s family), he argued that ‘African customary law has evolved and was always flexible’ (para 26). Therefore, non-compliance with the strict rules pertaining to rituals and ceremonies, cannot invalidate a customary marriage that has been negotiated, agreed, or celebrated in accordance with customary law. I further submit that entering into and celebrating a customary marriage are one and the same thing, which succeeds the lobola negotiations.

It is a common practice that once there is consent between a man and a woman to get married, their respective families will meet and enter into lobola negotiations. The Act is silent when it comes to the manner in which a customary marriage should be negotiated and entered into or celebrated in accordance with customary law. ‘The reason for this omission lies in under our beautiful rainbow nation and the different ethnic groups of South
Africa’ (Sibisi (op cit)). It is appreciated that different ethnic groups celebrate marital unions in their unique ways.

The Constitutional Court has cautioned ‘courts must be cognisant of the fact that customary law … regulates the lives of people. The need for flexibility and the imperative to facilitate development must be balanced against the value of legal certainty, respect for vested rights, and the protection of constitutional rights’. The courts must strive to recognise and give effect to the principle of the living law, actually observe customary law, as this constitutes a development in accordance with the ‘spirit, purport and objects’ of the Constitution within the community (Shilubana and Others v Nwamitwa and Others 2008 (9) BCLR 914 (CC) at para 47).

The court is faced with the question, whether the waiving of the integration (handing over of the bride) be excusable, considering that one of the requirements for customary marriage is that the two parties must have consented to be married in terms of customary law. Subsequently, how will the handing over be proceeded with and will this be a physical handing over where the bride is accompanied by her family to the groom’s place of residence. Or will the integration take place before or after the full payment of the agreed amount of lobola. As the Act requires that all the requisites set out in
s 3(1) must be complied with to validate a customary marriage, the question, which now needs to be unpacked is whether the customary law permits the waiving of the integration of the bride as a requirement.

How are courts approaching integration?

The belief that the integration of the bride is a dispensable requirement, which the parties may, if they decide, to waive, was discussed in the case of Mabuza. This case lends itself to scholars, and most court decisions that profess to follow it, do so on the argument that the integration of the bride is a flexible and a dispensable requirement.

The court accepted that according to SiSwati customary law, there were three requirements for a valid customary marriage, namely –

  • the payment of lobola;
  • ukumekeza; and
  • the formal handing over of the bride to the bridegroom’s family.

It was common cause that these requirements had been met except ukumekeza. The question was whether ukumekeza a sine qua non? Both the parties answered this in the affirmative. The plaintiff explained that, essentially, they regarded themselves as married. She regarded herself as the defendant’s wife and the defendant regarded her as his wife. She had all the benefits of being the defendant’s lawful wife. Further, the defendant had said that he was happy with the type of marriage that they had and there was no need for ukumekeza.

The court settled with ukumekeza as the integration of the bride into the groom’s family and the handing over as a separate act. The finding that parties may waive compliance with ukumekeza inevitably led to the conclusion that parties could waive compliance with the integration of the bride into the groom’s family.

The real issue in the Mabuza case was, whether the bride had been integrated into her in-laws and not whether the ukumekeza is practiced differently than what it was centuries ago. The judgment was then criticised by JC Bekker (see ‘Requirement for the validity of a customary marriage: Mabuza v Mbatha 2003 (4) SA 218 (C)’ (2004) 67 THRHR 146 at 149).

How should the handover be observed?

The bride must at least be handed over to the groom’s family in compliance with the integration requirement. This process must take place at the residence of the groom or in-law. During this process, the bride (makoti) is welcomed and counselled by her in-laws. An animal is then slaughtered and enjoyed by both families. Taking into regard the flexibility of customary law and the different ways of how this process may be done by different communities. Some families may opt to waive the physical handing over the bride, and instead welcome a ‘symbolic handing over’.

In LS v RL 2019 (4) SA 50 (GJ), the court set a precedent of the ‘symbolic’ handing over of the bride. In that there was a valid marriage between applicant and the deceased, the court noted that the handing over of the bride is not an ‘indispensable sacrosanct essentialia’ for a lawful customary marriage. The applicant and the deceased, including both families waived the compliance of handing over of the bride, by allowing the parties to cohabit and opted for a ‘symbolic handover’. In particular, the court held that both parties (the applicant and the deceased) complied with the requirements set out in s 3(1) of the Act. This demonstrates that their marriage was concluded on reaching an agreement in lobola negotiations.

Taking it further, in the case of Mbungela and Another v Mkabi and Others [2020] 1 All SA 42 (SCA), the parties had concluded the lobola negotiations and exchanged gifts, but the bride was not physically handed over to the in-laws. The court adopted the decision in the Sengadi case. The SCA held that a handing over ceremony is ‘an important but not necessarily a key determinant of a valid customary marriage’. The ‘handing over of a bride is simply a means of introducing a bride to her new family and signifies the start of the marital consortium’.

Conclusion

To conclude that a customary marriage is invalid without considering the various aspects that may lead to far reaching consequences on both sides, each customary marriage must be looked at in terms of its own facts. For the court to decide whether the customary marriage is indeed invalid, it must take the various customs practised in different societies into regard. However, it appears to have been accepted that customary marriages have a lot in common despite the diversity in ethnic groups.

One of the aims of the Act, is to determine the requirements of a valid customary marriage. The handing over of the bride is the capping stone of the customary marriage to be deemed valid but it is not a necessary feature as it is done differently within various communities. With the Act in place, parties including the in-laws may decide to waive the handing over of the bride.

 

Koketso Masutha LLB (UniVen) is an advocate at the Polokwane Bar.

This article was first published in De Rebus in 2021 (Sept) DR 14.

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