In the matter of Mlamla v Rubushe and others the Court found that “handing the bride to the groom’s family” is an integral part of the conclusion of a Customary marriage and a requirement for the validity of a Customary Marriage.
Although Section 3 of the Recognition of Customary Marriages Act 120 of 1998, states the following requirements namely; both parties has to be 18 years of age, both parties have to consent to being married to each other in terms of Customary law, the marriage must be negotiated and entered into or celebrated in accordance with Customary law, it was found in the above matter that the handing over of the bride to the groom is also a requirement.
The Court dismissed the Applicant’s application for a declaratory order that her marriage to the diseased was concluded in terms of Customary marriage. The Court however held that the Applicant did not make a case in her Founding Affidavit that she was ever handed over to the family of the deceased. In fact, the Applicant became engaged to another man during her so-called marriage to the deceased.
The Applicant did not make out a case that handing over of the bride to the groom’s family was not a requirement of their specific tradition and attempted to give vague evidence in her replying affidavit of how the handing over took place. The Court held that handing over the bride to the groom’s family is an integral part of the element: negotiate and entered to or celebrated in terms of customary law. The Court held that the handing over need not be a big formal occasion, but can consist of the authorized members of the bride’s family delivering her to the groom’s family.
Marga van Aardt (LL.B, LL.M); source: https://www.lexisnexis.co.za/
Mlamla v Rubushe and others
[2019] JOL 46219 (ECM)
Case Number: | 6254 / 2018 |
Judgment Date: | 29 / 10 / 2019 |
Country: | South Africa |
Jurisdiction: | High Court |
Division: | Eastern Cape, Mthatha |
Bench: | MS Jolwana J |
Keywords:
Family Law and Persons – Marriage – Customary law – Requirements for valid customary marriage – Handing over of bride
Mini Summary:
The applicant sought a declaratory order that a valid customary marriage between herself and her late husband (the deceased) was concluded. She also sought an order directing the sixth respondent to register the said customary marriage so that she could claim the benefits that would accrue to her as the customary law wife of the deceased.
According to the applicant, she and the deceased were both above eighteen years of age at the time the lobola negotiations took place culminating in the lobola being paid in full; the said marriage was concluded and consummated and she and the deceased had consented to the customary marriage.
Held that the issue was whether a valid customary marriage was concluded between the applicant and the deceased. Section 3 of the Recognition of Customary Marriages Act 120 of 1998 prescribes three requirements for a valid customary marriage to be concluded. The prospective spouses must both be above the age of 18 years; 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. That involves the traditional handing over of the bride.
The applicant’s founding affidavit made no mention of the applicant being handed over. The applicant appeared to attempt to avoid providing proper evidence on that issue. The court therefore found that she had failed to establish all the requirements for the validity of her customary marriage to the deceased.
The application was dismissed with costs.