By Phathu Ratshitanga and checked by Wesley Pons
This is an appeal in which the Supreme Court of Appeal (the “SCA”) upheld the findings of the Gauteng Division of the High Court, Pretoria (the “Trial Court”) where Twala AJ sat as the court of first instance.
The issue before the trial court was whether a valid customary marriage was concluded between Mr Madala Philemon Mkabi (the “First Respondent”) and the late Ms Ntombi Eunice Mbungela (“the deceased”) where her family never handed her over to the First Respondent’s family as part of celebrating the customary marriage. The question of the validity of the marriage only arose after the death of the deceased when the administration of her estate was concerned.
The First Respondent and the deceased began a romantic relationship in 2007. In 2010 the First Respondent sent emissaries from his family to the deceased’s family in Bushbuckridge to ask for the deceased’s hand in marriage in terms of customary law. The applicable customs were those of the Swati and Shangaan cultures, the respective cultures of the First Respondent and the deceased. The families met and negotiated a lobola agreement in terms of which, the First Respondent would give one live cow and pay an amount of R12,000.00 (Twelve Thousand Rand).
After successful lobola negotiations the families exchanged gifts to signify the beginning of a new relationship as in-laws. The First Respondent proceeded to give the one live cow and pay R9,000.00 (Nine Thousand Rand) of the lobola amount. The remaining R3,000.00 (Three Thousand Rand), he intended to pay in due course. The couple had a church wedding ceremony at the deceased’s church to consummate their marriage and thereafter continued to live together as husband and wife until the deceased’s death in 2014. While she was still alive, the family of the deceased never stated that the marriage would be invalid unless a ceremony to hand her over was conducted, neither did they demand the outstanding lobola amount.
After her death, the deceased’s older brother, Mr Piet Mbungela (the “First Appellant”) and her daughter, Ms Thobile Carol Mkhonza (the “Second Appellant”) prevented the First Respondent from participating in the administration of her estate and so, he stood to be disinherited. They claimed that he and the deceased were never married, and had been mere lovers, as he never paid the full lobola amount and a ceremony to hand over the bride was never conducted. The First Respondent approached the trial court seeking an order declaring that a valid customary marriage existed between him and the deceased and further ordering the Minister of Home Affairs (“the Second Respondent”) to register the marriage and issue a certificate to that effect.
The question before Twala AJ in the trial court was whether the ceremony of handing over of the bride was an essential requirement of customary marriages. The trial court found that it was not necessarily a key determinant of a valid customary marriage, its waiver was permissible and did not invalidate the marriage. In the circumstances of the First Respondent’s marriage to the deceased, it had so been waived and their marriage was therefore valid.
The SCA agreed that the marriage was valid and upheld the decision of the trial court. In coming to its decision, the court considered section 3(1) of the Recognition of Customary Marriages Act which sets out the requirements for a valid customary marriage as follows:
‘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 court found that only s3(1)(b) was at issue in this case. It held that the legislature did not set out the requirements for celebration of customary marriages because customary law is ‘a dynamic, flexible system which continuously evolves within the context of its values and norms, consistently with the Constitution, so as to meet the changing needs of the people who live by its norms’. Since African society is pluralistic in nature, as in the case of the First Respondent and the deceased, the court found that, this approach ensures that s3(1)(b) is informed by the lived experiences of the people whose lives customary law regulates.
The court also considered the judgment in LS v RL and supported the view that the ceremony of bridal transfer cannot be taken as an absolute prerequisite for a valid customary marriage as this approach would be rigid, formalistic and inconsistent with the spirit, purport and objects of the Constitution.
The court further considered the judgment in Mabuza v Mbatha where it was held that non-observance of the bridal transfer ceremony does not invalidate a customary marriage as African customary law has evolved and was always flexible in application. It is inconceivable that a custom such as bridal transfer has not evolved to the point where it cannot be waived by agreement in appropriate cases.
Finally, faced with the evidence in this matter, the court found that the trial court had rightfully found in favour of the First Respondent. It was in the First Appellant’s own words that the lobola negotiations were successful. Both Appellants referred to the couple as husband and wife, at points during the trial, indicating that they recognised the marriage. The deceased had listed the First Respondent as ‘husband’ in the next of kin section of her diary. When funerals arose, the two families attended each other’s burial ceremonies as in-laws. A large portion of the lobola amount was paid off and an undisputed church wedding ceremony conducted by the couple who then continued to live together as husband and wife until her passing. The court therefore dismissed the appeal with costs.
This decision serves as an important step towards the development of customary law in line with the spirit, purport and objects of the Constitution. It highlights the value of legal certainty, respect for vested rights and the protection of constitutional rights.
In this matter the court had to decide whether in customary law, the ceremony of bridal transfer served as an absolute prerequisite for the validity of a customary marriage as in terms of s3(1)(b) of the Recognition of Customary Marriages Act, 120 of 1998.
Customary Law, customary marriages, requirements, interpretation, Recognition of Customary Marriages Act, vested rights.