Written by Eileen Dexter, Candidate Attorney and Dingumuzi Ndhlovu, Associate
The Recognition of Customary Marriages Act (120 of 1998) (the “RCMA”) brought about fundamental changes to the legal position of a customary marriage in South African law. The RCMA ensured that a customary marriage is, for all purposes in South African law, recognised as a valid marriage.
A key question that arises is how will our courts go about determining the validity of a customary marriage when such marriage was concluded outside the borders of South Africa. This question was dealt with in the case of ND v MM (18404/2018)  ZAGPJHC 113 (12 May 2020). This article will explore the various considerations that our courts take into consideration when determining the validity of a customary marriage in terms of the ‘RCMA’ concluded outside of the Republic of South Africa.
FACTS OF THE CASE
The plaintiff in this matter sought an order for divorce in the High Court of South Africa. The plaintiff contended that a customary marriage was concluded between herself and the respondent in 2011 and that such marriage had broken down irretrievably.
The particulars of claim in this case alleged that a customary marriage was concluded between the parties “during 2011” at Steelpoort, South Africa. The material facts relied upon in the particulars of claim for the conclusion of the customary marriage were that:
1. The negotiated lobolo was paid on 3 September 2011. In the plaintiff’s affidavit attached to the summons, she stated that the defendant’s family, the M family, went to her family’s place of residence (in the Kingdom of eSwatini) for the “purposes of negotiating and subsequently paying lobolo”.
2. The two families celebrated by slaughtering two cows which is a symbol of welcoming and appreciating what the M family has been paid.
3. The plaintiff was delivered in terms of Bapedi custom to the defendant’s family on 4 September 2011 (at Steelpoort). The plaintiff stated that the M family took her to their family home in Steelpoort “where they held a welcoming event for my arrival”.
4. Both parties consented to the customary marriage.
In determining if an order for divorce could be granted, the court first had to determine if a valid customary marriage was indeed concluded in 2011.
THE REQUIREMENTS FOR A VALID CUSTOMARY MARRIAGE IN SOUTH AFRICA
The court considered the requirements for a valid costumery marriage which are set out in Section 3(1) of the “RCMA”.
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 first two requirements were not at issue in this case, but the third requirement was the crux of the problem in determining the validity of the marriage in question. The court had to further also establish whether it had the necessary jurisdiction to hear the case as the marriage in question was presumably entered into in Swaziland.
COURT FINDINGS ON THE ISSUE OF “THE MARRIAGE MUST BE NEGOTIATED AND ENTERED INTO OR CELEBRATED IN ACCORDANCE WITH CUSTOMARY LAW”
The customs of the community to which a party belongs is the proper source of customary law. In this matter, it was a common cause that the amaSwati (Swazi tribe) customs had to be applied. Within amaSwati customs, there could be further customs of smaller communities that could have become customary law. One community could warrant the ‘marriage dance by the bride’ as a crucial requirement for the concluding of a customary marriage whilst a neighbouring community might not consider this custom as a crucial requirement.
The wording of section 3 of the RCMA suggests that a customary marriage must be proven by way of proving compliance of such a marriage with “customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”.
In determining if this particular marriage was concluded in accordance with the amaSwati culture the court looked into the formalities of a marriage solemnized in accordance with Swazi Law and customs which included:
(i) the bride must be smeared with libovu (red ochre) during the marriage ceremony (umtsimba);
(ii) Lobolo (emabheka) cattle must be delivered in full or guaranteed.;
(iii) The “lugege” and “insulamnyembeti” beasts must be handed over, and, the “lugege” beast must be slaughtered.” The court found that there were a number of ceremonies performed at the wedding, but the legally significant one is the anointing of the bride with red ochre (libovu). Unless and until this has been done, she is not regarded as having been married.
Furthermore, where the marriage takes place in a chiefdom, the chief is informed of such an event so that he could send a member of the Chief’s Inner Council to represent him. This is done partly to provide proof of the marriage having been solemnized and partly to ensure that peace prevails during the ceremony.
The court stated that the question that arises in the light of the aforesaid is what facts a court must find in order to determine that the customary marriage was negotiated and entered into in accordance with “customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”, as required by section 3 of the RCMA.
The degree of compliance with customary law requirements is relevant in determining if a customary marriage has been concluded on the facts of each case. A court necessarily must determine what the living customary law is, and to what degree it has been complied with. In case of non-compliance, it is the duty of the court to find that a valid customary marriage had not been concluded.
In the given case there was never any mention made about the “anointing of the bride with red ochre (libovu)” nor the presence of the Chief’s inner circle.
THE COURT’s FINDING
The court in this matter stated that at best for the plaintiff, a customary marriage was concluded in eSwatini. It was further established that in our law, the validity requirements for such a marriage would be determined by lex Loci celebrationis, the law of eSwatini where the wedding was celebrated.
The court was of the opinion that they would have been unable to grant the relief that the plaintiff seeks under the RCMA, as it is a marriage concluded in a foreign country and due to the definition of customary law in the RCMA bring limited to marriages concluded in terms of South African customary law.
If the proper law pertaining to the marriage is eSwatini law, the court also found that it may have no jurisdiction to grant an order of divorce in the case of a customary marriage concluded in eSwatini (dependent on its status in that country as an official marriage), or may not have such jurisdiction before a customary law dissolution has taken place. The authorities that the court referred to, suggested that a customary marriage concluded in eSwatini could only be dissolved in a civil court in that country after following the customary law (and then it is a dissolution and not a divorce that serves before the High Court in that country).
After the decision in DN v MM all customs including the smear of libovu (red ochre) must be practised as the official requirement for a valid customary marriage in the official customary law. A deviation can be allowed only if it can be proved that the living customary law of a certain tribe has evolved to such an extent that the bride being smeared with libovu (red ochre)can no longer be regarded as an essential requirement for a valid customary marriage. In this particular case, this is still one of the crucial customs that the amaSwati- tribe still practice today. In this matter, the court found that besides the presumption that no valid customary marriage came into existence the court also did not have the necessary jurisdiction to hear the matter because the law that was to be followed in the matter was determined by the lex loci celebrationis, the law of eSwatini (law of Swaziland) where the wedding was celebrated. Because of these facts, the court noted that an order of absolution from the instance would be the appropriate order and not a dismissal of the action.
Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case by case basis and you should consult an attorney before taking any action contemplated herein.