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The Recognition of Customary Marriages Act 120 of 1998 sought to formalize and attach legal effect to customary marriages in South Africa, as well as to bring certainty on how such marriages can achieve formal status. Indigenous customs in South Africa are so vast that it would have been difficult to harmonize all of them into one single accepted code. This is evident from the wording of section 3(1)(b) of the Act. The question then becomes, does this pull against legal certainty? 

3. Requirements for validity of customary marriages

(1) 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 (bold, our emphasis)

It is the provisions in section 3 (1)(b) above that constitute the source of most disputes. This is because customary practices differ from one culture to another, and further within the same tribe there are subcultures that are different from place to place. The harmonization of the different practices and customs to have a universal customary practice is not easily attainable, if at all possible. Customs and cultures are an identity, which communities take pride in and find their being.

The immediately above is what led the legislature to formulate the provision in section 3 (1)(b) as it is, thereby resulting in it being open to an influx of deliberations.

Mbungela And Another v Mkabi And Others

The Supreme Court of Appeal (SCA) for example, was approached to determine if a valid marriage existed at all in the case of Mbungela And Another v Mkabi And Others (820/2018) [2019] ZASCA 134. Central to the dispute was whether a valid customary marriage had been concluded between Mr Mkabi and the late Ms Mbungela. It was the argument of Mr Mbungela (brother to the late Ms Mbungela) that lobola had not been paid in full and that a handover ceremony of the bride never took place. Thus, it was his contention that no valid customary marriage ever existed.

The SCA upheld the judgment of the trial court, noting that customs such as the handover ceremony could be dispensed with and could not invalidate the existence of the marriage. The SCA upheld that handing over the bride was not a key determinant of the existence or validity of the marriage.

It must be emphasised that the way section 3 (1)(b) is formulated, allows communities with a distinct identity to practice their customs in conclusion of marriages in a way recognisable and identifiable to them, as long as it is widely accepted in that community.

In Part 2 of this discussion, we shall borrow wisdom through various decided cases where the object of section 3 (1)(b) was put on trial.

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