Our courts have highlighted the difficulties they experience in determining which customary law applies to a particular case. This challenge also has a bearing on customary marriages.
In 2000, the Recognition of Customary Marriages Act 120 of 1998 came into effect. Section 3(1) of the Act lists the requirements for a customary marriage to be valid:
- The prospective spouses –
- Must both be above the age of 18 years; and
- Must both consent to be married to each other under customary law; and
- The marriage must be negotiated and entered into or celebrated in accordance with customary law.
These requirements were tested in a number of cases. In Moropane v Southon (755/12)  ZASCA 76 (29 May 2014), the court examined the requirements in section 3(1)(a)(ii) and (b).
In this case, the respondent stated that on 17 April 2002 a customary marriage was entered into when a delegation from the appellant’s family negotiated, concluded and paid a lobola sum to her family. The appellant disputed this, asserting that it was not a lobola payment but a gesture for opening lobola negotiations – traditionally referred to as “go bula molomo” or “go kokota”. The appellant asserted that he never consented to marry in terms of customary law as he does not live according to African customs. Further, he had been married by civil ceremony before and would have no reason to marry under customary law when marrying for a second time.
To ascertain whether consent was given or not, the courts indicated that the matter would have to be analysed in its entirety – the big picture would have to be examined before delving into the various issues. The court therefore considered the events which took place before, during and after the “customary marriage” began, including the traditional events and the ethnic groups involved. In this instance, only the customs of the Bapedi were relevant, as both parties belonged to that ethnic group.
The judge stated that the requirements for a valid customary marriage seem clear and unambiguous when you read them. However, if you step back and consider the number of ethnic groups in South Africa, as well as the diversity within those ethnic groups, there might be blurred lines around some customs and rituals.
This diversity of culture was highlighted in Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC), where the judge stated that “African law and its customs are not static but dynamic”. The law changes with the society in which it is exercised. As a result, it is close to impossible to note down every custom and ritual to be performed in marriages according to each culture.
Because the customs of each culture change over time, each matter has to be examined on its own merits. Questions need to be asked about the ethnic groups involved in the marriage, the customs and rituals they follow and whether these customs and rituals are specifically practiced in the society where they live. These are only a few of the questions that need to be asked in the case of each customary marriage to be concluded.
In this case, the court referred to the Bhe v Magistrate matter, where the Constitutional Court stated:
There are at least three ways in which indigenous law may be established. In the first place, a court may take judicial notice of it. This can only happen where it can readily be ascertained with sufficient certainty. Section 1(1) of the Law of Evidence Amendment Act 45 of 1988 says so. Where it cannot be readily ascertained, expert evidence may be adduced to establish it. Finally, a court may consult text books and case law. (The latter is the least preferred).
Two expert witnesses were used, one for each party. Although both experts were Pedi, they had different opinions on the cultural rituals to be performed to conclude a Pedi customary marriage.
One of the experts testified that there is a difference between a Bapedi customary marriage observed in a rural area and one observed in an urban area. According to him, the latter is influenced by modern developments like “urbanisation, western culture, and the all-pervasive Christianity”. He referred to the urbanised as a “cosmopolitan type of African people”. This reiterates the point in the Bhe matter that the “living” customary law changes, not only in relation to different ethnic groups but also within a single ethnic group. It also underscores the judge’s opinion in the Moropane judgment that disputes regarding the validity of a customary marriage need to be analysed against the backdrop of the ethnic groups involved and the customs and rituals they practise.
Thus, in order to conclude a customary marriage in South Africa, one has to understand the cultures of the different ethnic groups. Although the Recognition of Customary Marriages Act specifies the requirements for concluding a valid customary marriage, the question is whether one can truly claim to understand these requirements without a clear understanding of the customs and rituals of a certain group. About 20 years after the Act came into effect, courts are still seeking an answer to this question. It can only be resolved through understanding living customary law – that is, customary law as it is currently practiced by the ethnic group in question.