Author: Hopewell Sathekge – Director
A recent decision by the Supreme Court of Appeal (SCA) affirms that the full payment of lobola and the handover of the bride from her family to the groom’s family is not a requirement for the legal conclusion of a customary marriage in South Africa.
In the matter of Mbungela & another v Mkabi & others (820/2018) [2019] the court delivered judgment clarifying the criteria for concluding a valid customary marriage. In this case the bride's family did not hand her over to the groom's family, and lobola had not been paid in full.
“From the judgment, a conclusion may be reached that a customary marriage will be regarded as being legally concluded once a marriage is negotiated and entered into or celebrated in accordance with customary law,” says Hopewell Sathekge, senior associate at Lawtons Africa.
The SCA observed that "it must… be recognised that an inflexible rule that there is no valid customary marriage if…[a handover ceremony] has not been observed, even if the other requirements … [for a valid customary marriage] have been met… could yield untenable results."
When debating whether a customary marriage has been confirmed, payment of lobola in full or the handing over of a bride into the groom's family, when viewed in isolation, is not the key determinant.
Over the years, the legal fraternity and the courts have made various decisions about customary marriages and specifically lobola payments and the handover of the bride into the groom's family.
In 1998 in the matter Mabena v Letsoalo 1998(2)SA 1068 (T), the court ruled that in order for there to be a valid customary marriage there must be an agreement between the two families, lobola negotiations and handing over/incorporation of the bride into the groom's family home.
The court inferred from the facts in Maloba v Dube [2008] ZAGPPHC 434 (23 June 2008) that if parties live together then the bride was handed over.
Two matters in 2016 added to the complication surrounding customary marriages. In EXN v SRD (2011/3726) [2016] ZAGPPHC, the court accepted evidence of one of the parties who asserted that lobola negotiations only form part of a process of a customary marriage.
A similar decision was reached in Mkabe v Minister of Home Affairs and Others (2014/84704) [2016] ZAGPPHC 460, where the court held that customary law has evolved over the years in such a way that payment of lobola in full cannot be an essential requirement for a customary marriage.
The opposing party in the Mkabe matter did not agree with the findings of the High Court and took the matter on appeal. In handing down judgement, the SCA made the point that the ritual of handing over of a bride into the groom's family is simply a means of introducing a bride to the new family and signifies the start of the marital consortium. The SCA held that a handover ceremony is "an important, but not necessarily a key… determinant of a valid customary marriage."
As a consequence of this judgement, Lawtons Africa recommends that a couple who intends on concluding a customary marriage sign an ante-nuptial contract before commencing with lobola negotiations. Failure to do so may result in the couple being regarded as married in community of property as a result of section 7(2) of the Recognition of Customary Marriages Act 120 of 1998 which provides that a customary marriage is marriage in community of property, unless a valid ante-nuptial contract is executed before date of marriage.
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