Does the recognition of customary marriages act recognise same sex marriages?
Author: Hopewell Sathekge – Director
It has always been understood that a customary marriage is concluded once a male pays lobola to the female’s family and the female is handed over to the male’s family through a traditional handover ceremony.
Traditionally, lobola negotiations and handover ceremonies have always involved heterosexual couples, either getting into monogamous or polygamous marriages. It then begs the question, are two males or two females able to conclude a customary marriage in terms of the Recognition of Customary Marriages Act 120 of 1998 (Act), which recognises customary marriages?
In terms of the Act, a customary marriage is defined as “a marriage concluded in accordance with customary law” and customary law is defined as “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.”
It is not explicitly stated what exactly those customs and usages are and as such it is left open to the indigenous African people of South Africa to give content to such customs and usages in accordance with their lived experiences.
What is clear in the Act and explicitly defined is that lobolo “means the property in cash or in kind,…which a prospective husband or the head of his family undertakes to give to the head of the prospective wife's family in consideration of a customary marriage.” Thus, in terms of the Act lobola negotiations and payment may only be concluded between a prospective “husband” and “wife”, which is understood to refer to spouses of the opposite sex only.
Customary law has never recognised two males or two females getting into a customary marriage and so lobola negotiations have never been conducted between two families of a same-sex couple. As a result there are no known customs and usages traditionally observed among the indigenous African peoples of South Africa for same-sex customary marriages.
The question is raised: does the South African Constitution enable customary law to evolve to enable same-sex couples to enter a customary marriage?
In the matter of Mbungela & another v Mkabi & others (820/2018)  the Supreme Court of Appeal (SCA) passed judgement, relating to a heterosexual couple, that full payment of lobola by a male to the female’s family and the handover of the female from her family to the male’s family is not a requirement for the legal conclusion of a customary marriage in South Africa. The SCA stated that a customary marriage would be concluded once the essential requirements for a valid customary marriage are met in terms of the Act, which are that “the marriage must be negotiated and entered into or celebrated in accordance with customary law.”
In reaching the judgment, the SCA made the point that “it is established that 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.”
It remains to be seen whether customary law will over time evolve within its values and norms – considering the Constitution – so as to meet the needs of the very same people that are able to enter into same-sex marriages in terms of the Civil Union Act 17 of 2006.
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