Litigation: Customary marriage requirements again clarified

Gauteng High Court (Pretoria) Acting Judge EK Tsatsi has again confirmed there does not need to be a specific list of requirements which must be complied with to prove a valid customary marriage exists. The Star reports this issue came under the spotlight when a widow (35) wanted to claim loss of income from the Road Accident Fund (RAF) following the death of her husband. The woman said the man had paid the customary lobola for her, and although the marriage was never registered or celebrated, they had lived together as husband and wife.

The RAF disputed her claim for support and funeral costs for her husband’s burial. It said she had to prove she was dependent on him. The woman said the lobola agreement was signed by representatives of both families. She also handed a letter to the court from the tribal authority confirming the marriage between her and the man. In addition, and in a bid to prove the marriage, three affidavits were attached to the court application – one from a neighbour, the second from the uncle of the dead man, and the third from the woman’s mother.

Tsatsi said the Recognition of Customary Marriages Act provided that for a customary marriage to be valid, various requirements had to be complied with. But the SCA, in Mbungela & Another v Mkabi & Others, noted this provision did not restrict itself to a specific list of requirements which must be complied with for a valid customary marriage to exist. According to The Star, Tsatsi said looking at these principles, it was clear that customary marriage came into existence between the appellant and the deceased. According to him and looking at other judgments, the Act does not specifically prescribe the way negotiations must be undertaken or how the marriage must be entered into or celebrated. ‘A court in each specific case must consider the practices of the tribe of the parties. In fact, a factual determination must be made to reach a finding whether the requirement has been complied with,’ he said. He concluded the RAF was liable to pay spousal maintenance towards the widow and her children, as well as pay the burial costs.

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