Customary Marriages In The Modern Day And Age

Moropane v Southon was a recent case brought before the SCA and the key issue on which this appeal was based was as follows – when will a customary marriage entered into after the commencement of the Recognition of Customary Marriages Act (120 of 1998) be valid?

In terms of section 3(1) of the Act, for a customary marriage in terms of the Act to be valid, the prospective spouses must both be above the age of 18 years and both must consent to be married to each other under customary law. In addition to this, section 3(1) states that it is also necessary that the marriage be negotiated and entered into or celebrated in accordance with customary law.

The parties had fallen in love during 1995.  Although the Appellant was married at that time, he later divorced his former wife in 2000, whereafter the Respondent moved into his home with him.  At the beginning of 2002 the Respondent accepted the Appellant’s proposal of marriage. 
There was however no agreement between the parties as to what type of marriage they would enter into – i.e. customary or civil.

During the ensuing court proceedings both parties held firm to their assertions as to the type of marriage they believed they had agreed on – the groom stated it was to have been a civil marriage and the bride stated that it had in fact been a customary one in terms of Pedi customs.
According to the Respondent, the groom’s family had attended on the bride’s home with a delegation of family members; there were negotiations and an amount of R6 000 changed hands. The families even exchanged gifts, among them blankets, after the negotiations in terms of Pedi custom. It transpired that there was a celebration indicative of a marriage. A sheep was given by the bride’s family to the groom’s family, and this sheep was duly slaughtered to signify the new union. In terms of Pedi custom, the bride wore one of the blankets around her shoulders and received advice on how to behave towards her in-laws. The bride was accompanied to the groom’s house and so the bride and groom started their lives together as man and wife.

The Appellant, however, had another version of events: the Respondent only came to his house to drop off his sister after what he called “exploratory” discussions were concluded, and not to move in; the R6 000 that was paid over was not lobola, but merely a payment akin to a deposit in order to “ring-fence” the girl which gave him certain marital privileges, and to open the lobola negotiations.

It was accordingly important for the Court to determine if the requirements for a marriage had been fulfilled.

There was no dispute as to the first requirement for a valid customary law, namely that both parties had to be over the age of 18 years, which they were. The other two requirements for such a marriage, namely that the parties agree to marry by customary law and that it must have been negotiated and entered into in accordance with customary law, were under dispute.

Whether a marriage is negotiated and entered into or celebrated in accordance with customary law is not always clear, as a result of customary law being dynamic and constantly growing, changing and developing. As a result of this, a particular ethnic group’s cultural practices must be examined in order to determine what it means that a marriage was negotiated and entered into. There are three ways to ascertain indigenous law: the Court can either take judicial notice thereof, and where this cannot be easily ascertained, the Court can adduce expert evidence to establish it, or even consult text books and case law.

In this case, two expert witnesses were called to testify on Pedi customary marriages, and they agreed that it is the handing over of the bride to the groom’s family which is the most crucial part of a customary marriage.

The Court held that the essential requirements for a valid customary marriage in terms of the customary law of the Pedi people had taken place and that the Appellant and Respondent were in fact husband and wife.

Bisset Boehmke McBlain Attorneys
27 October 2014