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Customary marriages seminar

Updated presentation presented on 11 March 2016
by

Pieter Bakker

on 18 March 2016

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Transcript of Customary marriages seminar

Customary Marriage
Seminar
by
Prof Pieter Bakker
Dept of Private Law
Unisa
bakkep@unisa.ac.za

Definition of "Customary Marriage":
"A marriage concluded in accordance with customary law"
Section 1 Recognition of Customary Marriages Act 120 of 1998
Definition of "customary law":
"The customs and usages traditionally observed among the indigenous peoples of South Africa and which forms part of the culture of those peoples"
S 1 of the Recognition of Customary Marriages Act 120 of 1998
S 1 of the Reform of Customary Law of Succession Act 9 of 2009
(c) Francios van Zyl Wedding photographers
African Customary Law as a source of law
Primary source of law
Section 211(3) of the Constitution of the Republic of South Africa, 1996
Section 39 of the Constitution
"The courts must apply customary law when the law is applicable, subject to the Constitution and any legislation that specifically deals with customary law"
Section 211(3)
Alexkor Ltd v Richtersvel Community [2003] ZACC 18 [51]
"...independent source of norms within the [SA] legal system...[that] feeds into, nourishes, fuses with and becomes part of the amalgam of South African law"
Nature of African Customary Law
Unwritten rules
Oral tradition
Flexible and adaptable
Guidelines to decision making
Minimum requirements
Stylistic devices
Western legal perspective
Reliable?
Origin?
Certainty?
Living customary law
Official Customary law
Van Breda v Jacobs 1921 AD 330
Custom can be regarded as law if
in existence for a long period
must be observed by the community
must be reasonable
Sources of Customary Law

Customs and usages*
Legislation
Judicial precedent
Scholarly writings
consistent with the Constitution and other legislation
1. Nature and Application
2. Preliminaries
3. Requirements
4. Registration
5. Consequences
6. Dissolution
7. Dual Marriage

Preliminaries to concluding a customary marriage
Customary Marriage only
between Africans?

Recognition of Customary Marriages Act
Marriage concluded prior to 15 November 2000
Validity determined by customary law
Customary Marriage concluded in
KwaZulu-Natal
Consent of the father or guardian of the intended bride if she is a minor
Consent of the father of guardian of the prospective husband if he is a minor
A public declaration of the prospective bride

S 38 of the KwaZulu-Natal Codes
Customary Marriage concluded outside KwaZulu-Natal
Consent of father/guardian if prospective husband*
Consent of father/guardian of the prospective bride*
Consent of the spouses
Integration*
lobolo agreement*
No existing civil marriage
No mention of lobolo
Mabena v Letsoalo 1998 (2) SA 1068 (T)
"At present many unmarried men live on their own and fend for themselves. There is no reason to hold that an independent, adult man is not entitled to negotiate for the payment of lobolo in respect of his chosen bride, nor is there any reason to hold that such a man needs the consent of his parents to marry." Lack of consent of husband's father or participation in lobolo negotiations does not affect validity of the marriage (1073C-E)
The court indicated that customary law is adaptable to social need and the court found that where a woman acts as the head of the household, especially in instances where the husband has abandoned them, she can negotiate and receive lobolo.
Mabuza v Mbatha 2003 (4) SA 218 (C)
Al the requirements for a valid marriage was complied with except for the integration of the bride into the family (ukumekeza). The parties did however live together with the permission of the bride's mother. Spouses agreed that ukumekeza is not necessary. Parties can waive requirement and the customary marriage is valid. Divorce and relief granted.
Lobolo is determined by:
Tradition
Negotiation and agreement
Unilaterally by man's family
Not agreed, depends on circumstances (theleka)
Purpose of lobolo
Reproductive capacity of the bride
Compensation
Maintenance
Enforce proper treatment of bride
Stabilise the marriage
The Recognition of Customary Marriages Act
Customary marriages concluded after
15 November 2000
Section 3(1)
Spouses both 18 years of age*
Spouses must both consent to be married with each other under customary law
The marriage must be "negotiated and entered into or celebrated in accordance with customary law"
Not in customary law forbidden degrees of relationship
No existing civil marriage or civil union
Marriage of a minor
Both parents consent
YES
Marriage desirable?
YES
In the parties' interest?
Minister's written consent
YES
Valid marriage
YES
NO
Consent presiding officer Children's Court
YES
NO
High Court
Minister of Home Affairs
NO
Withheld without adequate reason?
Contrary to minor's best interest?
YES
YES
Consent withheld?
NO
No marriage
NO
NO
NO
`
YES
s 25 Marriage Act
Marriage of a minor without consent
Section 24A of the Marriage Act:

Marriage can be set aside by

Guardian: before majority/6 weeks after became aware

Minor: majority/within 3 months thereafter
Without Minister's consent
Marriage can be ratified
desirable
in both parties' interest
Complies with the Act
MM v MN 2013 (4) SA 415 (CC)
"Section 3(1)(b) goes on to stipulate that 'the marriage must be negotiated and entered into or celebrated in accordance with customary law'.
Customary law may thus impose validity requirements in addition to those set out in ss (1)(a). In order to determine such requirements a court would have to have regard to the customary practices of the relevant community." (425B)
Visits
lobolo
agreement
Integration
Essential requirements under 3(1)(b)
Agreement between two family groups*
Lobolo negotiations*
Handing over / incorporation of bride*
confirmed Mabena v Letsoalo 1998 (2) SA 1068 (T) followed in Fanti v Boto 2008 (5) SA 405 (C)
Consent of the first wife?
Ukumekeza refers only to "coaching", still need to integrate the bride.
Maloba v Dube [2008] ZAGPHC 434
Court inferred from the fact that lobolo was negotiated and the parties life together that the parties were married.

No clear explanation but the court seems to presume that if the parties life together the bride was handed over / integrated.
Southon v Moropane [2012] ZAGPJHC 146
Saldulker J:
"In present times customary law has become flexible, the rituals are abbreviated to the extent that they combine the traditional ceremonies with modern western culture especially in urban areas.
Consent of the first wife
MM v MN 2013 (4) SA 415 (CC)
Decision of Court:
Group interests are framed in favour of men

The wife's right to equality is undermined

The wife's right to dignity is infringed
"She cannot take an informed decision on her personal life, her sexual or reproductive health, or on the possibly adverse proprietary consequences of a subsequent customary marriage" [72]
"the right to dignity includes the right-bearer's entitlement to make choices and to take decisions that affect his or her life - the more significant the decision, the greater the entitlement. Autonomy and control over one's personal circumstances are a fundamental aspect of human dignity"
NAC:
MG v BM 2012 (2) SA 253 (GSJ):
"the applicant bears the onus of
proving on a balance of probabilities
that a customary marriage existed"
Presumption that requirements were complied with
Presumption of marriage
Conversion of a customary marriage (s 10(1))
Parties in a monogamous customary marriage
convert by concluding civil marriage
In community of property
Practical consequences?
NATURE AND APPLICATION
PRELIMINARIES
REQUIREMENTS
Registration of customary marriages
Entered into before 15 Nov 2000:
Registered by 31 Dec 2016

Entered into after 15 Nov 2000:
within 3 months after marriage or by 31 Dec 2016

REGISTRATION
(s 4(3)(a) + GN1000 in GG38290 of 12 Dec 2014)
(s 4(3)(b) + GN1001 in GG38290 of 12 Dec 2014)
Not a requirement for a valid marriage
(s 4(9))
Department of Home Affairs
Register at department of Home Affairs
OR traditional leader (no HA)
Present:
Two spouses (+IDs)
At least one witness of bride's family
At least one witness of groom's family
and/or representative of each family
Minor - both parents / guardian(s)

BI-1699
Separate section for particulars of husband and wife (includes declaration of consent, details parents, traditional leader)
Date and place of marriage and lobolo agreement
Optional declaration by traditional leader/delegate indication
which traditional communities laws are applicable
Declarations of the representatives of bride and groom
Declaration of consent if one of the parties is a minor
Declaration of registering officer - approved/not and reasons
BI-700 acknowledgement of receipt
CONSEQUENCES
Equal status of spouses (s 6)
Women have equal capacity to men in customary marriage
to acquire and dispose of assets
enter into contracts and litigate
and any powers she might have ito customary law

Patrimonial Consequences
Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC)
Monogamous
Polygynous
prior Act
after Act
s 7(2)
s 7(1)
customary law
s 7(6)
court approved contract
Patrimonial Consequences Monogamous Customary Marriage
in community of property
ante-nuptial contract
Rules of civil marriage apply

s 7(2)
Change of patrimonial system
s 7(4)(a) - concluded prior to Act
s 21 Matrimonial Property Act - concluded after the Act
Patrimonial Consequences Polygynous Customary Marriage
Concluded prior to 15 November 2000
Patrimonial consequences are regulated by customary law
Family property
House
property
House
property
Personal
property
Private
property
"Customary matrimonial property law"
Nature cannot be classified in terms of common law matrimonial property systems
Patrimonial Consequences of Polygynous Customary Marriage
After 15 November 2000
s 7(6) applicable
Written contract approved by High Court
Regulate future matrimonial property
Contract applicable to all marriages
First marriage matrimonial property system is terminated and not marriage
Equitable distribution
"take into account all the relevant circumstances of family groups that will be affected if the application is granted" (s 7(7)).
Amendments, subject to condition, refuse
certified copies to parties and registrar of deeds in area of court.
Nature of future matrimonial property contract?
Out of community or property
Community of property
Accrual
Section 7(6)?
Consequence of non-compliance with section 7(6)
Compliance with section 7(6)
Expensive
Time consuming
Paper law
MG v BM 2012 (2) 253 (GSJ)
Confirmed in MN v MM 2012 (4) SA 527 (SCA)
Second marriage is valid
Out of community of property
Traditional Customary Law of Divorce
Terminated by spouses and their families
No authority involved
Negotiated consequences
No such issues as maintenance, division of matrimonial estate, care and contact of children.
Wife moves back to her family
Children stay with father's family (if lobolo was paid)
Lobolo played important part
Marriage was not easily terminated
Traditional Grounds for Divorce
Agreement between the spouses

Repudiation of the wife

Conduct of the husband
Grounds for repudiation of wife
Repeated adultery
Pregnancy prior to marriage
Reproductive disease or defect
Conduct of the wife
Grounds for divorce without return of lobolo
Assault
Accusation of witchcraft
Fails to fetch wife
Abandons wife
Impotency
Divorce ito the Recognition of Customary Marriages Act (s 8)
A customary marriage can only be terminated by a court order
High Court and Regional Divisions of the Magistrates Court
irretrievable breakdown of the marriage
Interest of children (s 8(3))
Position similar to children in civil marriage divorce
The Mediation in Certain Divorce Matters Act 24 of 1987
s 6 Divorce Act
Best interest of children
Court can make any order regarding guardianship, custody, access and maintenance of minors of the marriage
DIVORCE
Patrimonial consequences of divorce (s 8)
In general similar to civil marriage divorce
S 7-10 Divorce Act is applicable to customary marriage - court can make an order with regard to:
settlement agreement
post divorce maintenance
redistribution of assets*
forfeiture order
costs
Polygynous marriage - regard to s 7(6) & relevant factors to make "any equitable order it deems just"
Redistribution of assets ito s 8(4)(a)
Wording of s 7(3) of the Divorce Act limits redistribution to:
civil marriages out of community of property concluded before 1 November 1984 for white, coloured and asian persons
or
2 December 1988 for black persons
Can section 7(3) be applicable to customary marriage?
If applicable only applicable to customary marriage out of community of property?
Gumede v President of the Republic of South Africa 2009 (3) SA 152 (CC)

"properly understood, customary marriages should not be seen through the prism of marital property regimes under the common law or divorce legislation that regulates civil marriages"
Customary law "does not place a premium on the dichotomy between marriages in and out of community of property"
s 7(3) applicable to all customary marriages
date concluded irrelevant
matrimonial property irrelevant
Court has a wide discretion ito redistribution at divorce
Proof of contribution required
Redistribution of assets ito s 8(4)(b)
Application is limited to polygynous customary marriages
Court can make any order it deems just
Take into account s 7(6) contract
Any patrimonial changes ito 7(4)
all relevant facts
No need to prove contribution
Maintenance
s 7 of the Divorce Act is applicable
Can make settlement agreement order of court - maintenance and distribution of property
in absence of agreement make a order court deems fit
"take into account any provision or arrangement made in accordance with customary law"
Return of lobolo
Traditionally marriage could not be dissolved without return of all or part of the lobolo
Return of lobolo is not a requirement for divorce under the Recognition of Customary Marriages Act
Our courts regard lobolo as an ancillary contract
Agreement for return part of divorce settlement can be made an order of court
If return is disputed father of bride must be joined as party to the divorce
Only the High Court has inherent jurisdiction ito lobolo
How much lobolo needs to be returned?
Number of children born out from the marriage
lobolo already delivered or outstanding
Which party was primarily responsible for divorce
Joinder
Any party with sufficient interest
all the wives
lobolo holder
Procedure
Adversarial similar to civil marriage divorce
The court has to acknowledge
"the role, recognised in customary law, of any person, including any traditional leader, in the mediation, in accordance with customary law, of any dispute or matter arising prior to the dissolution of a customary marriage by court"
Interim relief
Divorce parties may apply for
contribution to costs
maintenance pendente lite
interim care / contact of a child
ito Rule 43 Uniform Court Rules
(Baadjies v Matubela [2002] All SA 623 (W))
DEATH
Dissolution of customary marriage by death
Recognition of Customary Marriages Act no provision
s 36(1) of the Zulu Codes
sororate/seantlo
levirate/ukungena
Reform of Customary Law of Succession and Regulation of Related Matters Act
Maintenance of Surviving Spouses
Hassam v Jacobs [2008] 4 All SA 350 (C)
polygynous Muslim marriage
"survivor" in Maintenance of Surviving Spouses Act 27 of 1990 can be applied to more than one surviving spouse

Hassam v Jacobs 2009 (5) SA 572 (CC)
did not comment on this interpretation and agrees by implication
court deal with constitutionality of Intestate Succession Act
considered exclusion of polygynous Muslim marriage as discriminatory
Co-existence of a customary and civil marriage
1 January 1929 - 2 December 1988
2 December 1988 - 15 November 2000
15 November 2000 -
Prior to amendment of the Black Administration Act
Customary unions
No obstacle to a civil marriage
Declaration under oath
in front of magistrate/commissioner of district
state names of all his wives and children born of marriage
state property allotted to the houses
under no obligation to allot property
offense not to make a declaration
Malaza v Ndhlovi 1937 BAC 80 (N&T)
civil marriage is valid
status of customary marriage determined by common law = invalid = discarded spouses*
S 22 did provide limited protection:
Property allotted to them had to be declared
"Material rights" were not affected by the civil marriage - civil wife no greater right to estate
Civil wife regarded as customary union wife for purpose of inheritance
Civil marriage out of community of property
s 22 amended by Marriage and Matrimonial Property Law Amendment Act 3 of 1998
Not retrospective
Spouses could conclude civil marriage with each other
Not with other party = void
Recognition of Customary Marriages Act repealed s 22
Not retroactive
Recognises all valid customary marriages prior to the Act
Customary spouses can enter civil marriage with each other (s 10(4)), polygynous terminate other marriages first
Not allowed to enter into a civil marriage with another = void (s 3(2))
s 8(3) Civil Union Act 17 of 2006
may not conclude a civil union
consequence of contravention = unclear
s 13(2) reference to marriage include civil union not applicable to Recognition of Customary Marriages Act
Netshituka v Netshituka 2011 (5) SA 453 (SCA)
4 customary marriages prior to 1988
entered a further civil marriage prior 1988
divorce civil wife 1984
entered into another civil marriage in 1997
died 2008
Court found 4 discarded marriages revived on date of divorce in 1984
Marriage in 1997 is void
Cannot enter into a civil marriage under s 22 at the time
Nkambula v Linda 1951 (1) SA 377 (A)
Court incorrectly stated that this case did not clearly indicate that customary unions dissolved when a civil marriage was concluded prior to 1988.

Proper reading of the case:
One man with two women "is entirely repugnant to our idea of a civil marriage"
And to force a customary wife to return to her husband who is also in a civil marriage was to condemn her to "a life of adultery"

In Netshituka it was held that the customary marriages "revived" - cannot revive court probably meant they marriages continued to exist.
Correct approach:
Marriages prior to 2 December 1998 was terminated
Civil marriage in 1997 is valid.
MM v MN 2013 (4) SA 415 (CC)
people in the community living in polygynous marriages
traditional leaders
Academics (expert witnesses)
s 1(1) of the Law of Evidence Amendment Act 45 of 1988
ascertained readily and with sufficient certainty
principle not opposed to public policy and natural justice
lobolo cannot be regarded as opposed to public policy and natural justice
Consent to marry each other - error in personam
Consent to conclude customary marriage - error in negotio
Moropane v Southon 2014 ZASCA 76
Except for minor and inconsequential differences on cultural rituals, both experts were agreed that the current customary requirements for a valid customary marriage amongst the Bapedi people include
amongst others, negotiations between the families in respect of lobola; a token for opening the negotiations (go kokota or pula molomo); followed by asking for the bride (go kopa sego sa metsi); an agreement on the number of beasts payable as lobola (in modern times this is replaced by money); payment of the agreed lobola; the exchange of gifts between the families; the slaughtering of beasts; a feast and counselling (go laiwa) of the makoti followed by the formal handing over of the makoti to her inlaws by her elders.
(1) A man and a woman between whom a customary marriage subsists are competent to contract a marriage with each other under the Marriage Act, 1961 (Act No. 25 of 1961), if neither of them is a spouse in a subsisting customary marriage with any other person.
(2) When a marriage is concluded as contemplated in subsection (1) the marriage is in community of property and of profit and loss unless such consequences are specifically excluded in an antenuptial contract which regulates the matrimonial property system of their marriage.
Stats SA Marriage and Divorce 2014 P0307 9/2/2016
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