By Clement Marumoagae
In Tsambo v Sengadi, the Supreme Court of Appeal was required to determine whether a customary marriage was entered into between the deceased and the ‘surviving spouse’. The marriage was disputed by the deceased’s father after the deceased’s death. The ‘surviving spouse’ argued that the deceased proposed marriage to her and insisted that they get married in terms of customary law. The deceased sent a letter, written by the deceased’s uncle, to the surviving spouse’s mother requesting a meeting between the two families to discuss the deceased and the surviving spouse’s marriage. The two families met to negotiate the marriage. The negotiating parties agreed to the payment of lobola and the method which payment was to be effected.
After the negotiation, food was prepared and the surviving spouse was provided a special dress to wear by the elders, which matched that of the deceased. The deceased’s aunts introduced her as the deceased’s wife and welcomed her into the deceased’s family. There was a celebration by members of both families which was even recorded in a video. The marriage was not registered but the deceased and the ‘surviving spouse’ lived together in their matrimonial house as husband and wife. The deceased had health challenges which led the surviving spouse to leave the matrimonial home. She told the deceased that she will only return if the deceased submitted himself to a rehabilitation programme. The deceased committed suicide.
After the deceased’s death, the surviving spouse approached the high court to declare the customary marriage valid. The deceased’s father opposed this application, arguing that the necessary customs, rituals, and procedures required for the conclusion of a customary marriage may have commenced, but were not proceeded with or completed. In particular, that the surviving spouse had not been handed over to the deceased’s family. The deceased’s father contended that the performance of that ritual would signify the union of the couple and the joining of the two families. He also argued that the lobola was not paid in full. On this point, the SCA first held that historically, significance was paid to the conclusion of the lobola agreement, and not necessarily the full payment thereof.
The high court found that the handing over was not a strict requirement for a valid customary marriage and could be waived. The high court further held that there was a tacit waiver of the custom of the handing over of the bride because a symbolic handing over of the ‘surviving spouse’ to the deceased’s family had occurred after the conclusion of the customary marriage. The high court declared the practice of handing over of a bride unconstitutional, even though the ‘surviving spouse’ did not pray and argue for that relief.
The Supreme Court of Appeal accepted with approval the academic view that in relation to the Sotho-Tswana people, the wedding is celebrated at the bride’s family home, where the lobola negotiations take place. In some of the communities, the handing over of the bride takes a physical form on the day of the wedding. After assessment of the official statutory requirements for the conclusion of customary marriage in section 3(1) of the Recognition of the Customary Marriages Act 120 of 1998 (hereafter Recognition Act) and in line with the Constitutional Court decision Ngwenyama v Mayelane, the SCA observed that the Recognition Act does not specify the requirements for the celebration of a customary marriage and that celebrations are generally in accordance with the customs applicable in those particular circumstances. The SCA further noted that customary law is by its nature, a constantly evolving system and strict compliance with rituals has, in the past, been waived. Most importantly, the SCA held that given the fact that the purpose of the handing over ceremony is to mark the start of the spouses’ customary marriage and introduce the bride into the groom’s family, a handing over in the form of a declared acceptance of the ‘surviving spouse’ as the daughter in law, satisfied the requirements of the handing over of the bride. The court also accepted that the parties’ intention to conclude the customary marriage could also be inferred from their cohabitation, particularly when the woman’s father has not taken any step to indicate that he does not recognise such a marriage. The SCA held that a valid customary marriage was concluded in this matter. Most importantly, the SCA of appeal held that there was no basis for the high court to declare the practice of handing over of a bride as unconstitutional.
This decision confirms that technical aspects relating to the living customary law cannot be used to invalidate otherwise valid customary marriages. It is clear from this decision that once the requirements established in section 3(1) of the Recognition Act are met, a customary marriage will come into existence. We are well vest with the law regulating customary marriages and ready to assist you with any aspect relating thereto.
Feel free to contact us should you wish to receive legal assistance, including court representation in customary marriages.
