Tsambo v Sengadi (SCA) (unreported case no 244/19, 30-4-2020) (Molemela JA (Maya P, Mbha, Zondi JJA and Mojapelo AJA concurring))

Envisage this: Your partner asks for your hand in marriage, subsequently sends a letter to your family, a date is set, lobola is negotiated and the families agree on a figure and a portion of that amount is paid. The delegation is offered lunch and while the mood is jubilant, the families sing in celebration of the newly founded union. Although the couple may not know it, they may be presumed to be married in terms of customary law. This is why.

Section 3(1) of the Recognition of Customary Marriages Act 120 of 1998 (the Act) sets out the requirements for a valid customary marriage. These are:

‘For a customary marriage entered into after the commencement of this Act to be valid –

(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 into or celebrated in accordance with customary law.’

The Act, often deemed to be one of the most misinterpreted pieces of legislation in postdemocratic South Africa (SA), has in recent times been under the spotlight in the Supreme Court of Appeal (SCA). Whether you believe in the culture of lobola or not, the courts have and are still grappling with this customary practice and this is often illustrated in cases where litigants request the courts to make declarations regarding the existence and validity of a marriage.

Section 3 of the Act was dealt with by the SCA and brought this very issue back into the spotlight in the recent decision by the SCA in Tsambo v Sengadi (SCA) (unreported case no 244/19, 30-4-2020) (Molemela JA) (Maya P, Mbha, Zondi JJA and Mojapelo AJA concurring). This was an appeal against the decision of the Gauteng Local Division of the High Court in Johannesburg, which found that the respondent was the customary wife of the deceased and that the two had concluded a valid customary marriage on 28 February 2016. The appellant in the SCA was the deceased’s father who contended that the respondent was not the customary wife of the deceased because the deceased family had not followed an important ritual of formally handing over the bride. The deceased’s father considered this ritual as the most crucial part of the customary marriage and that without this being done, there could not be a valid customary marriage between the respondent and the deceased. In essence, the contention of the deceased’s father was that the third requirement, as stipulated in s 3(1), which requires that a marriage be negotiated and entered into or ‘celebrated in accordance with customary law’, had not been satisfied.

While the SCA observed that the ritual of handing over the bride did not in fact occur, the SCA did not end the inquiry there. The SCA took into consideration various factors to conclude that the respondent was in fact the customary wife of the deceased. The court considered that –

• the deceased’s aunts had provided the respondent with matching attire to that of the deceased;
• the attire was referenced as a ‘wedding dress’;
• the respondent was formally introduced as the deceased’s wife and finally, the deceased’s father had congratulated the respondent on her marriage to the deceased.

An important consideration made by the SCA in concluding that the respondent and the deceased were in fact married in terms of customary law was the fact that the couple, after the lobola celebration, continued cohabiting. In this instance, the SCA relied on the writings of Professor Bennett (TW Bennett A Sourcebook of African Customary Law for Southern Africa (Cape Town: Juta 1991)), who holds the view that where parties are cohabiting without objection from their families, a marriage will be presumed.

In his final remarks, Molemela JA, reversed the decision of the High Court, which found that the practice of handing over the bride is unconstitutional. The SCA, in this regard, held that the parties had not pleaded such a case in the High Court to rule that the ritual was unconstitutional.

Similarly, an earlier decision of the SCA in Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA), examines whether the practice of handing over the bride is a requirement for the conclusion of a valid customary marriage. Briefly on the facts, the first respondent (Mr Mkabi) sought an order confirming that he and the deceased had met the requirement in s 3(1)(b) of the Act and that they had concluded a customary marriage in terms of the Act. Mr Mkabi had sent his delegation to ask for the deceased’s hand in marriage. The lobola was negotiated and the families agreed on a sum of R 12 000. Of this sum, R 9 000 was paid, which was accompanied by various gifts. The couple did not register their customary marriage in accordance with s 4 of the Act, but they travelled to the Traditional Council to confirm their marriage. The appellants were of the view that the deceased and Mr Mkabi were not married as the relevant rituals (such as handing the bride to Mr Mkabi’s family) had not been completed in terms of their customs. In this regard, the SCA held that ‘[i]t is important to bear in mind that the ritual of 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’. Again, as is in the above decision, the SCA had due regard to the fact that the deceased and Mr Mkabi were cohabiting and held that proof of cohabitation alone may raise a presumption that a marriage exists, especially where the bride’s family has failed to raise objection.

The SCA’s interpretation of s 3(1)(b) of the Act is wide. It is evident that courts will take into account various factors when considering whether a marriage has been validly concluded. The first two requirements in s 3(1) of the Act are fairly easy to prove, namely that both parties must be over 18-years-old and that both parties must have consented to enter into the marriage. It is the last requirement, that ‘the marriage must be negotiated and entered into or celebrated in accordance with customary law’, which the courts have grappled with. This is likely due to the vast cultural regimes in SA that require different rituals and practices to conclude a marriage. Some legal commentators have gone so far as to conclude that inviting the ‘grooms’ delegation for a ‘lunch’ may be deemed a celebration that satisfies the requirement in s 3(1)(b). Moreover, couples that cohabit after the conclusion of a successful lobola negotiations, will be deemed to be married.

Important lessons from the SCA’s interpretation of s 3 of the Act

• Couples who intend to commence lobola negotiations and intend to marry out of community of property are advised to consider approaching a legal practitioner to assist them with drafting an antenuptial contract before the commencement of the lobola Although many couples may feel as though this approach is jumping the gun as it precedes negotiations between the two families, this may ideally be the best option for couples who want to avoid being presumed to be married in community of property (this being the automatic marital regime for couples who meet the requirements of s 3 of the Act).
• Couples who wish to marry out of community of property but have already commenced and concluded their lobola negotiations irrespective of whether they may have not concluded the various ‘rituals’ as required in terms of their customs may, if the various interpretations of the court are anything to go by, be regarded as being married in community of property. Although this, of course, will depend on the circumstances of each case. However, this does not mean that the martial regime cannot be altered. However, altering the martial regime is not as simple as signing a document at the Department of Home Affairs. It requires the couple to approach a High Court with an application to alter the marital regime. A legal practitioner specialising in family law can assist with such an application in terms of s 21(1) of the Matrimonial Property Act 88 of 1984.
• Finally, for couples who wish to marry in community of property, although there is no need to protect themselves by signing an antenuptial contract, it is advised that such a customary marriage be registered in accordance with s 4 of the Act.

Tshidi Malete BA Law LLB (Wits) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2020 (Aug) DR 31.