The article is aimed at ensuring equal treatment and protection of homosexual individuals who wish to marry within the Recognition of Customary Marriages Act 120 of 1998 (Recognition Act). It seeks to ensure that individuals who are identified as LGBTQ+, do not face discriminatory or differential treatment based on their sexual orientation. To ensure that every individual has the opportunity to express themselves in accordance with their cultural traditions and customs and not be denied an essential part of self-expression and identity. Despite attempting to address the historical injustices, the Act remains exclusionary. To date there is no recorded court case in South Africa that has specifically addressed the issue of same-sex customary marriages, leaving a significant gap in the jurisprudence and highlighting the need for legal clarity on this matter.

According to s 9 of the Constitution, ‘the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.’ Section 31 then goes on to provide that:

‘Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community –

(a) to enjoy their culture, practise their religion and use their language; and

(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.’

This, therefore, means that the discrimination of anyone based on their sexual orientation is against the law, which should protect same-sex couples to participate in the cultural practices and traditions of their choice, without fear of exclusion. South African courts have acknowledged same-sex marriages and unions in diverse contexts (see Minister of Home Affairs and Another v Fourie and Others; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC)).

A crucial question remains: Does this existing judicial recognition provide a sufficient basis for interpreting the Recognition Act in a manner that inclusively recognises same-sex customary marriages? The Act defines customary marriage as a marriage entered into in accordance with the traditions and customs of indigenous African customary law, which may not include same-sex unions. This omission raises concerns about potential discrimination against same-sex couples, who may be denied the same rights afforded to heterosexual couples under customary law. Likewise, the definition of ‘lobolo’ in s 1 of the Recognition Act, specifically refers to a transaction where a prospective husband (male) or his family provides livestock or goods to the family of a prospective wife (female). As a matter of fact, the requirements of a valid customary marriage are expressed in the context of a woman and man or their respective families.

Further analysis of the Recognition Act reveals additional sections with heteronormative provisions. For instance,
s 6 grants wives in customary marriages equal status and capacity as their husbands while s 10 allows a husband and wife in an existing customary marriage to change their marital system and enter into a marriage under the Marriage Act 25 of 1961. Customary marriages in some African cultures can be polygamous, involving more than two spouses. Typically, this arrangement involves one male spouse and multiple female spouses. However, as highlighted in the Moja Love show ‘Umndeni’, polygamy can also occur between a man and his same-sex partners, challenging traditional notions of polygamous relationships as it is recognised in the Recognition Act. Thus, it can be concluded that the Act is too exclusionary and discriminatory.

Polygamous marriages are not allowed under the Civil Union Act 17 of 2006, creating a challenge for same-sex individuals who practice or wish to enter into polygamous marriages, highlighting the need for a more inclusive and diverse relationship recognition framework. Some traditional leaders and communities may object to recognising same-sex customary marriages, citing that homosexuality does not exist, it is un-African or ungodly. However, the Constitution remains the supreme law. It guarantees equal rights and protection for all individuals, regardless of their sexual orientation.

As such, the Constitution’s provisions take precedence over cultural or religious beliefs, necessitating the recognition and protection of same-sex customary marriages. Perhaps we should look into amending the Recognition Act to explicitly recognise same-sex customary marriages. Considering the evolving nature of customary law and the need for inclusivity, it would also go a long way towards promoting a culture of tolerance, acceptance, and human rights for all individuals, regardless of their sexual orientation. Clearly, this issue at hand is the result of categorising marriages in South Africa along with race, religion or culture rather than adopting a gender-neutral approach that recognises and respects the diversity of all relationships, regardless of sexual orientation or gender identity.

Duduetsang Ramolebatsane LLB (NWU) is a candidate legal practitioner at TL Seeletso Attorneys in Mahikeng.  

This article was first published in De Rebus in 2025 (March) DR 18.