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Customary marriages – the handing over of the bride - is the requirement of integration of the bride optional in customary marriages?

Introduction 

As far as the recognition of customary marriages is concerned, the Recognition of Customary Marriages Act 120 of 1998 (“the Act”) came into operation on 15 November 2000. “Customary Marriage” is defined as a marriage concluded in accordance with customary law, being the customs and usages traditionally observed amongst the indigenous African people of South Africa and which form part of the culture of those people. The Act recognises marriages that are valid at customary law and existing before 15 November 2000 or that are customary marriages entered into after 15 November 2000 that comply with the provisions of the Act. The recognition applies to each of a person’s customary marriages where a person is a spouse in more than one customary marriage. 

To be recognised as a valid customary marriage in terms of section 3 of the Act, the prospective spouses must both be over 18 years, 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. It must be noted that failure to register a customary marriage does not affect its validity. 

Whilst the requirements mentioned in section 3(1)(a) of the Act are self-explanatory and clear, one of the biggest contentions with regards to section 3(1)(b) of the Act is that “celebrated in accordance with customary law”, is very vague and it does not specify the actual requirements for a valid customary marriage. Is handing over of the bride therefore a key determinant of a valid customary marriage? 

Imagine the scenario: where a bride has been proposed to, the parties have agreed to conclude a marriage in terms of customary law, the lobola was negotiated and paid and where the wife was asked to wear the families’ traditional clothes. According to the parties, they are married, however the husband passes away a few years later and now the deceased’s family refuse to accept the wife and deny that a customary marriage was in fact concluded. 

The question, is customary law being practised in a manner that infringes on the rights to equality, dignity and freedom of women? In today’s society people should be afforded equal protection in line with the Constitution. 

In the case of Tsambo v Sengadi (244/19) [2020] ZASCA 46, the High Court and then the Supreme Court of Appeal (SCA) on 30 April 2020, had to make the decision whether the handing over of the bride occurred and whether a customary marriage came into existence in terms of section 3(1)(b) of the Act.

Relevant facts of the case 

1. The deceased, a Mr Tsambo, proposed marriage to a Ms Sengadi during their holiday in Amsterdam. Ms Sengadi immediately accepted the marriage proposal. The deceased considered African culture to be important and insisted that the couple conclude a marriage in terms of customary law which Ms Sengadi agreed to. 

2. A meeting took place between the parties’ families at Ms Sengadi’s families’ home. The lobola negotiations were discussed, finalised and a lobola agreement was drafted and signed. On the same day, an amount of R 35 000-00 was paid to Ms Sengadi’s mother’s bank account. Ms Sengadi was also provided with attire from the deceased’s family. They had advised her that this would be her traditional wedding dress. 

3. The celebration that ensued after the lobola negotiations was recorded on video camera by one of the attendees. Ms Sengadi was introduced as the deceased’s wife to everyone that was present at the celebrations, and she was welcomed into the Tsambo family. The deceased’s father also embraced and congratulated Ms Sengadi on her marriage to the deceased. Ms Sengadi and the deceased had been residing together in the matrimonial home for approximately three years before they got married. 

4. The deceased then committed suicide. The deceased’s father refused that Ms Sengadi make funeral arrangements for the deceased and advised that he did not consider her to be his son’s wife. The deceased’s father even went so far as refusing her access to the matrimonial home. She, therefore, had no option but to approach the High Court for relief in the circumstances. 

High Court decision 

Ms Sengadi issued an urgent application in the High Court seeking a declaratory order confirming her status as the deceased’s customary spouse. Ms Sengadi’s application was opposed by the deceased’s father on the basis that the “handing over of the bride” did not occur and therefore there was no valid customary marriage. 

The Court held that is it undeniable that South African living customary law, which represents the practices, customs, rules and usages and conduct in African communities, has evolved and is dynamic. Living customary law is flexible and adapts to social and economic necessities. Therefore, the symbolic “handing over of the bride” does not entail physical handing over. 

The Court further considered whether the custom of “handing over of the bride” to the bridegroom’s family is constitutionally complaint. The Court held that the courts have a constitutional obligation to develop living customary law in order to align it with constitutional values. 

The Court decided that the custom of “handing over the bride” as a prerequisite in validating the existence of a customary law marriage is inconsistent with the constitutional values of equality, dignity, and non-discrimination. This custom entrenches a system of customary law that discriminates against women because it institutionalises gender inequality and the female spouse’s freedom of opinion and control over her marital status. 

The Court therefore decided in favour of Ms Sengadi and made the following order: 

1. The “handing over of the bride” is not a lawful requirement for the existence of a customary marriage where the marriage was concluded in compliance with Section 3(1)(b) of the Act. 

2. The customary law of “handing over the bride“ is self-evidently discriminatory on the grounds of gender and equality; and 

3. Ms Sengadi was therefore declared the lawful customary wife of the deceased. 

Supreme Court of Appeal (SCA) decision – 30 April 2020 

On appeal to the SCA, the court decided to uphold the order made by the High Court that a customary marriage had been concluded between the deceased and Ms Sengadi. The SCA therefore concluded that the “handing over of the bride” is not a key determinant of a valid customary marriage and the appeal was dismissed with costs. 

The SCA further concluded that the constitutionality of the custom of handing over of the bride had not been raised in argument and the prerequisites had not been met, therefore there was no basis for the High Court to declare that the handing over custom was unconstitutional. 

Conclusion 

With the advent of our new democracy, the Act was passed in an attempt to clarify the legal status of customary marriages, however, as stated above, section 3(1)(b) of the Act is vague and therefore a factual determination still needs to be made by the courts in order to reach a finding as to whether this requirement “celebrated in accordance with customary law” has been complied with. The courts must also take the various customs practiced in different societies into regard. 

It is clear from the abovementioned judgment that the decision made by the High Court which was upheld by the SCA is a progressive step and that the courts have recognised that customary law is not static but vibrant and dynamic in the communities practising it and that the legislation dealing with customary law must reflect the reality of how customary law is practised today.

The judgment is in line with the “’New Marriage Act” which is being developed by the Department of Home Affairs. The aim of the “New Marriage Act” is to enable South Africans of different sexual orientation, religious and cultural persuasions to conclude legal marriages that will accord with the doctrine of equality, non-discrimination and human dignity as encapsulated in the Constitution of the Republic of South Africa. 

The judgment is also in line with the primary aim of the Recognition of Customary Marriages Amendment Act, 2019 (“the Bill”), which is to amend the Act and bring it in line with the constitutional values so that it does not discriminate unfairly against women in customary marriages.