Earlier this month, all eyes were on the Gauteng South High Court when the court ruled in favour of Lerato Sengadi who had sought to be recognised as the rightful wife of the late rapper Jabulani “HHP” Tsambo in terms of customary law. The Tsambo family (HHP’s family) contested that no valid customary marriage was concluded between the deceased and Sengadi as there was no formal delivery of a bride to the groom’s family. Despite her victory, the judge misapplied the living customary law regarding customary marriages and even though the courts have had to deal with this issue on multiple occasions over the years it is worrisome that no uniform and consistent position or stance has been reached.
Prior to the adoption of the Constitution, customary law marriages were not offered the same recognition as civil marriages. Interestingly, this position drastically changed after the introduction of the 1996 Constitution which recognised customary marriages in the provisions of section 15 of the Constitution. In giving effect to the latter provision, the legislature promulgated the Recognition of Customary Marriages Act (RCMA) 120 of 1998 (RCMA), the legislation which ensures full recognition and protection of customary marriages in South Africa. However, the RCMA is silent as to whether the “handing over” of the bride to the groom’s family constitute an essential requirement for a valid customary marriage, which carries an effect of invalidating the marriage if not convincingly established.
This debate has been sparked by the recent unreported High Court judgment in Sengadi v Tsambo, the judgment of great controversy in recent times. It is against this backdrop that I seek to put in perspective the correct position of our law in relation to the subject.
Quite correctly, the RCMA provides for the requirements that need to be met for a customary marriage to be valid and such requirements are contained in section 3(1) therein. In terms of this section, both parties to a customary marriage must be 18 years of age and/or above, they must also consent to the conclusion of their marriage under customary law and lastly, their marriage must be negotiated and entered into or celebrated in accordance with the customary law. It is the latter requirement that has received jurisprudential and scholarly debate as to whether the “handing over of a bride to the bridegroom’s’ family” constitute an essential custom for the validity of the customary marriage. The emerging jurisprudence, in light of the Tsambo decision (which is relatively flawed in principle and otherwise), suggests that this requirement plays a trivial role in ascertaining the validity of customary marriage and it matters not.
The courts have had to deal with this issue on multiple occasions over the years and to date, it still appears that no uniform and consistent position or stance has been reached to that effect, which is worrisome.
This is apparent from the different judgements handed down by the Courts relative to the “handing over of a bride” custom. To that end, reference ought to be drawn from the Supreme Court of Appeal Judgement in Moropane v Southon  ZASCA 76 (29 May 2014), in which it was held that the handing over of a bride to the groom’s family is an essential element in the validation of a customary marriage. Consistently, this was further confirmed in the case of Motsoatsoa v Roro  2 All SA 324 GSJ (1 November 2010) and K v Road Accident Fund (37392/12)  ZAGPPHC 855 (17 October 2014), where the court respectively held that customary marriage could not be said to be concluded in the absence of the handing over of the bride to the groom’s family.
Flowing from the above precedents, it is apparent that the decision of the High Court in Tsambo is, with due respect, flawed.
Moreover, the Tsambo decision diametrically opposes and contradicts the well-established customary practice of “handing over” the bride to the groom’s family as an integral requirement upon which the validity of customary marriage lies. In the Tsambo decision, the court misdirected the law by declaring Lerato Sengadi to be Tsambo’s customary wife, regardless of her having been “handed over” or not. To this end, it is apparent that the High Court in Tsambo case relied on inarticulated and unknown customary rule(s). The judge displayed a major deviation from the well-known custom to the long-practised custom by the Batswana as well as to some extent the Pedi people among other tribes known to follow this custom, and no plausible reason was presented by the Honourable for this deviation. At best, the deviation suggests that where the requirements of section 3(1)(a)(i)-(ii) are met, as well as where the lobola (A token money paid to the family of the bride) negotiations has been completed, then the valid customary marriage exists, even in the absence of the ‘handing over of the bride to the groom’s family’.
After a careful consideration of the above deliberations, I hold a strong view that disregarding the custom of ‘handing over of bride to the groom’s family’ is an insult to the living customary law of traditionalists who still respect their customs and wish to uphold and practise them. It is further submitted that the refusal to recognise the ‘handing over of a bride to the groom’s family’ renders section 3(b) purposeless in that its intended purpose of permitting different cultures to celebrate their marriages in accordance with their distinctive customs is suppressed and neglected.
Furthermore, the judgement handed down in the Moropane, Motsoatsoa and K v RAF are commendable and they should be a way forward in dealing with the question of whether the ‘handing over of a bride to the groom’s family’ is an important essentialia in the validation of the customary marriage. It is therefore, concluded that the ‘handing over’ custom is a decisive factor in the validation of customary marriage and in the absence of this essential custom the customary marriage is invalid.
There has to be the interpretation guideline incorporated in section 3 of the RCMA which will enable the courts to interpret section 3(b) with absolute certainty as to what constitute essential custom for a valid customary marriage (Radebe:2016). Secondly, there must be traditional tribunal courts to deal with issues related to customary marriages for each culture recognised in South Africa.
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