lcp4802

Advanced Indigenous Law: Assignment 02

Thashni Moodley
 (i) Comment on whether Z could possibly have had two valid customary
marriages, referring to any law/legislation recognising it.

The RCMA discourages dual marriages by making it impossible for a customary

marriage and a civil marriage to coexist in respect of the same couple. The RCMA
does, however, allow a couple to convert their customary marriage into a civil
marriage.1
Because pre-RCMA marriages are recognised, and because ‘new’ marriages under
the RCMA must be negotiated and celebrated according to customary law, it
continues to be relevant to discuss the traditional rules and practices relating to the
formation of marriage according to customary law. 2

The RCMA introduces registration of customary marriages but does not make
validity of the marriage dependent on registration. This provision has been criticised
as a failure on the part of the RCMA to remove once and for all the uncertainty
around proof of a customary marriage.3 A counter-argument to this criticism is to
point out the difficulty of changing cultural behaviour by legislation and the reluctance
to expose women in particular to non-recognition again when, but for the registration,
the marriage is valid and sound in all other respects. 4
The RCMA grants recognition equally to customary marriages concluded before the
commencement of the Act on 15 November 2000 and those concluded after that
date, whether monogamous or polygamous5

(ii) What would your comment be if R says Z never told her about his
customary marriage with P and that R and Z subscribed to Tsonga
customary law which does not recognise Z's further customary marriage,
contracted without her consent as Z's senior wife.

This dispute emerged in the ‘Mayelane’ case where the Constitutional Court agreed
that the Recognition of Customary Marriages Act does not make the consent of the
first wife a requirement to the husband’s further marriage.6 It looked at the Xitsonga
customary law to determine if such consent is required by collecting evidence from
the relevant community.7 Some community members confirmed that the consent of
the first wife is indeed required, whereas others claimed that the first wife needed to
be informed of the husband’s intention to marry another wife. Because the
1
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 110
2
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 112
3
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 120
4
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 110
5
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 130
6
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 121
7
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 130
community was not unanimous, the Constitutional Court developed Xitsonga
customary law to make it a requirement that the consent of the first wife has to be
obtained if the husband intends to contract a further marriage.8
The definition of customary law in section 1 of the RCMA shows that customary law
is the law of a particular community. Therefore, the requirement of consent of the
first wife should not affect communities that do not have such a requirement.
The Constitutional Court collected evidence from the Tsonga community only to
prove the alleged consent. 9

(iii) What would be the position if K, being Z's father, says he does not
recognise both R and P as his son's (Z's) widows as he never negotiated
these marriages.
For a customary marriage entered into after the commencement of this Act to be
valid –
(a) The prospective spouses –
(i) must be above the ages 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.10

Before the passage of the RCMA and its promulgation on 15 November 2000, South
African common law did not recognise customary marriages as valid marriages.
Many anomalies flowed from non-recognition, famously illustrated by court decisions
striking down applications for relief in dependants’ actions based on the unlawful
killing of a breadwinner. These anomalies had to be corrected by legislation in many
cases. Since the date of commencement of the RCMA, customary marriages have
been governed by the Act.
The RCMA recognises as valid those marriages, whether monogamous or
polygamous, contracted before the date of commencement and those entered into
after that date if they conform to the provisions of the Act.
The texts that do exist set out the requirements for a marriage by customary rites
followed in most systems of customary law in the country as the following:
- the consent of the father or guardian of the prospective husband under certain
circumstances

(iv) Would R's and P's situation be any different if K's issue with their
customary marriages was their invalidity for no-observance of the
necessary imvume/ukumekeza traditions.

8
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 131
9
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 110
10
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 138
The Court considered the meaning of the words ‘the marriage must be negotiated
and entered into or celebrated in accordance with customary law’ in section 3(1)(b)
in Maluleke v Minister of Home Affairs.11 As already stated, the case involved the
custom of imvume. The validity of the marriage was challenged on the ground that
imvume did not take place. 12
Both counsels accepted that the word ‘negotiated’ refers to negotiations in respect of
the marriage, including lobolo, and that these negotiations had been completed. In
dispute, however, was whether a valid customary marriage had been ‘entered into or
celebrated’.
The case of Mabena v Letsoalo in 1998, doubt was cast not only on the requirement
of the consent of the bridegroom’s father or guardian but also on the assumption that
only men could head the lobolo negotiations. Ndlovu v Mokoena confirmed the
position that the payment of lobolo does not on its own bring a valid customary
marriage into existence.13

Therefore, based on the above it would be a different situation based on their

customary marriages rules where all the rules have to be adhered to in order to be a
valid marriage as the brides were not integrated into the groom’s family.

(v) What would be the position if Q appeared claiming to be the only

descendant of Z by an earlier relationship. Q discredits R's customary
marriage because her lobolo was never paid in full; and P's one because
she was never delivered to the groom's family.
For a customary marriage entered into after the commencement of this Act to be
valid –
(a) The prospective spouses –
(i) must be above the ages 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.

Ndlovu v Mokoena60 confirmed the position that the payment of lobolo does not on
its own bring a valid customary marriage into existence

The Court furthermore held that since the RCMA requires the validity of a customary
marriage to ‘be negotiated and entered into or celebrated’, the negotiations which
culminate in the payment of lobolo ‘seem to be the fundamental stage in the conclusions
of customary marriages.

11
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 151
12
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 138
13
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 75
Essentials of a customary marriage in KwaZulu-Natal are found in section 38(1) of
both Codes and are set out as follows: 14
(a) The consent of the father or the guardian of the intended wife (if she is a minor),
which may not be withheld without good reason;
(b) The consent of the father or guardian of the prospective husband (if he is a
minor); a
(c) A declaration in public by the prospective wife to the official witness49 at the
wedding ceremony that she voluntarily submits to the marriage and gives her
consent.
In its preoccupation with consent, the section does not mention lobolo at all. The
practice does appear in other provisions of the Codes which are concerned with the
delivery of lobolo, its source and its quantum. Outside KwaZulu-Natal, the customary
law is applicable.15
Lobolo is defined in the RCMA but is not made a compulsory requirement for the
validity of a customary marriage. It is clear from other evidence, though, that the
lobolo negotiations and agreement are abiding features of customary marriage in
South Africa.16
The texts that do exist set out the requirements for a marriage by customary rites
followed in most systems of customary law in the country as the following:17
 the consent of the father or guardian of the prospective husband under certain
circumstances
 the consent of the guardian of the prospective wife
 the consent of the prospective husband
 the consent of the prospective wife
 the handing over of the prospective wife to the family group of the prospective
husband or the prospective husband himself as the case may be
 an agreement that lobolo will be delivered
 that there should be no existing civil marriage.

Therefore, delivery is also a requirement for the validity of the customary marriage.

Bibliography

1. Himonga, C (2013) The right to health in an African cultural context: The role of
Ubuntu in the realisation of the right to health with special reference to South
Africa Journal of African Law 57(2):165–95
14
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 175
15
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 175
16
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 176
17
Himonga C, and others, African customary Law is SA, Post – Apartheid and Living Law
Perspectives pg 176
2. Himonga C and others, African customary Law is SA, Post – Apartheid and
Living Law Perspectives

3. Himonga, C and Manjoo, R (2009) Challenges of formalisation, regulation, and

reform of traditional courts in South Africa Malawi Law Journal3(2):157–81