NOTES

Summary of the course :

Law Of Life Partnerships

It is a subdivision of family law, which researches,
describes, and regulates

the origins, contents and dissolution of all legal

relationships btn: Husband and wife

 Parties to a civil union

[partners in domestic cohabitation?]

[non-sexual relations?]

We thus make a study of:

 The (non?)-law of engagement

Matrimonial law

Matrimonial property law

Law of divorce

Law governing civil unions / other intimate relationships

SOCIAL CHANGES AND THE EVOLUTION OF TRADITIONAL

CONCEPTS

TEXTBOOK CHAPTER 16-20

Customary Marriages
1
 According to Heaton, a customary marriage is a
marriage which is concluded, not in terms of the
common law and the Marriage Act 25 of 1961 or a
system of religious law, but in terms of customary
law and the Recognition of Customary Marriages
Act 120 of 1998.
 Customary law – customs and usages traditionally
observed among the indigenous African peoples of
South Africa and which form part of the culture of
those peoples.
 Prior to the coming into operation of the
Recognition of Customary Marriages Act on 15
Novemeber 2000, customary marriages were
recognised only for limited purposes,
 Because they permit POLYGYNY and are not
solemnised in terms of the Marriage Act.
 Section 2 of the Recognition of Customary
Marriages Act conferred full legal recognition on
monogamous and de facto polygynous customary
marriages regardless of when they were concluded.
 THE TERMS AND CONSEQUENCES IMPOSED ARE LIKE
THOSE OF CIVIL MARRIAGES.

CONSTITUTIONALITY OF CUSTOMARY MARRIAGES

 Argued that equality and dignity are infringed by
polygamy and lobola.
 Sections supporting recognition: ss9 (3) & (4), 15
(3) – ss30 and ss31

2
 Sections against recognition: ss9 (3) & (4) & 10.
 If these rights are unjustifiably infringed, is the
non- recognition of customary marriages a feasible
option ?
 KEEP IN MIND- THE DIFFERENT TREATMENT OF
CUSTOMARY & MUSLIM MARRIAGES AND
MONOGAMOUS AND POLYGAMOUS MUSLIM
MARRIAGES.

LEGAL REQUIREMENTS OF MARRIAGES BEFORE THE

ACT
 A customary marriage concluded before the
operation of the Act, is only valid if it complies with
customary law requirement for a customary
marriage: Section 2 of the RCMA.
 There is an exception as Zulu customary law has
been codified.
 Uncodified systems of customary law apply in the
rest of the country.
 The requirements are ;
1. Both spouses must provide consent to the
marriage.
2. The brides guardian/ father must also provide
consent.
3. If the groom is a minor the same applies.
4. The spouses must be over the age of puberty.
5. They must not be within the prohibited degrees
of relationship.

3
  LOBOLA IS NOT A REQUIREMENT BUT IS
CUSTOMARILY DELIVERED.

Prior to 2000 – customary marriages only received

limited recognition.

Recognition of Customary Marriages Act – now fully

recognised.

NB Ss 3 (formalities) and 7(6) (court-approved written

contract)

Basically under constitutionality – they argued that

equality and dignity are infringed by: PLOYGYNY AND
LOBOLO!

And the sections supporting the above notion is ss9 (3)

& (4), 15(3) – also ss30 and 31

Sections against recognition:

Ss9 (3) & (4) & 10.

TEXTBOOK:

Legal requirements for a customary marriage

Marriages entered into before the coming into operation

of the Act.

 The Legal requirements for a valid customary

marriage depend on whether the marriage was
concluded before or after the coming into operation
of the Act.
 A customary marriage concluded before the coming
into operation of the Act is valid only if it complies

4
 with the customary law requirements for a valid
marriage.
 As Zulu customary law has been partly codified for
KZN, the codes on Zulu law are the starting point in
ascertaining the customary law- requirements for a
valid customary marriage in that province.
 In so far as customary marriages are concerned the
codes virtually identical.
 They require that the bride must publicily declare
to the official witness that the marriage is taking
place of her own free will and with her consent, and
that if either future spouse is a minor, his or her
father or legal guardian must also consent to the
marriage.
 The codes further provide that certain family
members are not within the prohibited degrees of
relationship for purposes of entering into a
customary marriage.
 The spouses must be over the age of puberty and
must not be within the prohibited degrees of
relationship.
 The wife must e handed over to her husbands
family and live with her husband.
 Lobolo is customarily delivered.

MARRIAGES ENTERED INTO AFTER THE COMING INTO

OPERATION OF THE ACT.

Requirements.

5
A customary marriage that is concluded after the
coming into operation of the Act is valid if:

 The bride and groom are over the age of 18years,

both of them consent to the marriage, and the
marriage is negotiated and entered into or
celebrated in accordance with customary law.
 In MM V MN the constitutional court had to decide
whether a husband may enter into another
customary marriage without his first wife’s consent.
 In this particular case, the parties were married in
terms of Xitsonga customary law.
 The majority of the court held that even though the
Act does not expressly require the first wifes
consent, Xitsonga customary law does so.
 It arrived at this findng after examining evidence
provided by experts, individuals in polygynous
marriages under Xistsonga customary law,
traditional leaders, and an advisor to traditional
leaders.
 It concluded that when a Va Tsonga man decides to
enter into a further customary marriage, he must
inform his first wife.
 The first wife is expected to agree to the marriage.
 If she withholds consent, attempts are made to
persuade her.
 If she remains unpersuaded, divorce may follow.

6
 The majority further held that the constitutional
rights to dignity and equality dictate that the first
wife’s consent is required.
 If a further customary marriage is entered into
without the first wife’s consent or knowledge, her
right to equality with her husband is completely
undermined because she is unable to to consider or
protect her position as regards her personal life,
her sexual and reproductive health, and the
possible negative proprietary consequences of the
further marriage.
 Also, because of the highly personal and private
nature of marriage, “it would be a blatant intrusion
on the dignity of one partner to introduce a new
member to that union without obtaining that
partners consent
 The majority further held that the equal status and
capacity that section 6 of the ACT confers on
spouses includes the requirements that both of
them consent to the marriage and that the first wife
consents to the future matrimonial property system
that will operate in the polygynous marriage.
 The majority concluded that the first wife’s consent
is required for the husbands further customary
marriage, and that the first wife’s consent is
required for the husbands further customary
marriage, and that the further marriage is invalid if
this consent is not obtained.

7
  The order of the majority concluded that the first
wife’s consent is required for the husbands further
customary marriage, and that the further marriage
is invalid if this consent is not obtained.
 The order of the majority specifically refers to
Xitsonga law, but the statements on equality and
dignity strongly suggest that the court will arrive at
the same conclusion in respect of other south
African systems of customary law that may not
require the first wife’s consent.
 Consequently, the implication of the jusgement is
that the consent of the first wife in any customary
marriage is required for her husbands further
customary marriage.
 The Act expressly states that the forbidden degrees
of relationship for purposes of a customary
marriage must be determined in accordance with
customary law.

Additional requirements in respect of a minors

customary marriage.

 Age of majority is 18 years for all men and women

 If either party a customary marriage is a minor, the
minor’s parent or legal guardian must consent to
the marriage.
 If such consent cannlt be obtained, SECTION 25 OF
THE MARRIAGE ACT APPLIES.

8
 Thus, the minor may ask the presiding officer of the
children’s court to consent to the marriage.
 If a parent, legal guardian or presiding officer
withholds consent, the minor may approach the
High Court for consent.
 The court will grant consent if it is of the opinion
that the refusal by the parent, legal guardian or
presiding officer is without adequate reason and
contrary to the minors best interest.
 Unless the High Court authorises the marriage, the
minor must also obtain the written consent of the
Minister of Home Affairs or the person designated
by the Minister.
 Such Consent will be given only if the marriage is
desirable and in the parties interests.
 Ministerial consent does not release the minor from
the need to cmply with all the other requirements
for a valid customary marriage, such as obtaining
parental consent.
 If a minor enters into a customary marriage without
the consent of his or her parent or legal guardian,
or the presiding officer, section 24 A of the
Marriage Act Applies.
this section provides that the marriage is voidable
at the instance of the minor or his or her parent or
legal guardian.
 The application to have the marriage set aside
must be made by the parent or legal guardian

9
 before the minor attains majority and six
weeks from the date on which the parent or
legal guardian becomes aware of the existence
of the marriage, or by the minor before he or
she attains majority or within three months
thereafter.
 The court may not dissolve the marriage unless
it is satisfied that dissolution is in the interests
of the minor.
 If the minister’s consent to the customary
marriage was not obtained, the minister may
ratify the marriage if the marriage is desirable
and in the parties interests and in all other
respects complies with the recognition of
customary marriages act.

Summary of the above:

Requirements of a Minor’s customary marriage:

 The age of majority is 18 for both men and women :

section 20 of the RCMA
 The guardians of both spouses must provide
consent to the marriage.
 They must also obtain consent from the Minister of
Home Affairs or the designated person
 This will be given if the marriage is desirable and in
the parties best interests.

10
  If consent is refused they may approach the
children’s court to gain consent from the presiding
officer: section 25 marriage act .
 If a marriage is entered without the necessary
consent, the marriage becomes voidable at the
instance of the minor or their guardian: section 24
of the Marriage Act.
 This application must be done before the minor
attains majority or within 3months after.
 If done by the guardian, it must be within 6 weeks
after they became aware of the marriage and
before they attain majority.
 It will only be dissolved if it is in the interests of the
minor.
 If the Ministers consent was not initially granted,
she may ratify the marriage thereafter.

RECOGNITION OF THE MARRIAGE

Non – registration does not affect the validity of the

marriage

Marriages concluded before the Act, had to be

registered by 31 December 2010.

Those after the Act, must be within 3 months of the

wedding date, or within a longer period as prescribed by
the minister in the government gazette.

Either spouse may register the marriage by furnishing

the necessary information: section 4.

11
 MUSLIM ( AND HINDU MARRIAGES): EXAMPLES OF
STATUTORY RECOGNITION:

S195(2) CRIMINAL PROCEDURE ACT 51 OF 1977:

For the purposes of the law of evidence in criminal
proceedings, marriage shall include any marriage
concluded under any system of religious law.
S1 Children’s Act 38 of 2005:
Marriage means a marriage – (4) recognised in
terms of South African law or customary law; or
concluded in accordance with a system of religious
law subject to specified procedures, and any
reference to a husband, wife, widower, widow,
divorced person, married person or spouse must be
construed accordingly.

NB- THROUGH INTERPRETATION BY COURTS:

 Statutes that do not expressly provide for
recognition can be interpreted in such a way as
to apply to Muslim marriages (eg Daniels v
Campbell).

JUDICIAL RECOGNITION-

Pre- constitution – recognition seen as retrograde step

and entirely immoral

Also non- recognition – unlikely to cause real hardship

( ismail – para 25 of Hassam

12
Ryland v Edros – courts can enforce contract arising
from (monogamous) Muslim marriaes

Amod v MMVF – action based on whether applicant

meets the requirements of the dependants action.

Daniel v Campbell- the Maintenance of surviving

spouses Act (MSSA) and the intestate succession Act
(ISA) can be applied to monogamous Muskim marriages.

Kahn v Kahn – spouses in polygnous Muslim marriages

have a legally enforceable duty to support one another (
s2(1) of the Maintenance Act.

HASSAM (Both cape and CC Decision)

Issue: do the benefits provided by the ISA & MSSA

accrue also to surviving spouses of polygamous Muslim
Marriages? (para 9 of Cape High Court Decision).

ISA & MSSA – OBJECTIVE TO ENSURE THAT WIDOWS

RECEIVE at least a child’s share instead of their being
precariously dependant of family benevolence.

Violation of rights?

MOOSA CASE

Context of polygnous marriages.

CC confirmation of an CT high court order of

constitutional invalidity

13
The High Court declared section 2C(1) of the Wills Act 7
of 1953 to be inconsistent with the Constitution and
invalid.

Section 2C(1): If a descendant of a testator renounces a

benefit in terms of a will, that benefit will vest in the
surviving spouse of the testator.

Why unconstitutional?: Section does not recognise the

right of a surviving spouse in a polygamous Muslim
marriage to the benefits of her deceased husband’s will.

Draft Muslim Marriages Bill (cf Single Marriage

Statute SALRC DISC PAPER.
 History and context
 Important contents:
 No automatic application (it is an ‘opt-in’
system)
 Men can marry up to four wives (court approval
required – wife/wives joined in proceedings)
 Recognises a husband’s right to talaq his wife
but regulates the practice
 Option for dispute mediation before finalisation
of divorce
 Maintenance issues

Litigation on non- recognition

2009: WLC approach the CC directly

14
  Direct access denied (decision on jurisdiction, not
on substance)
 Justice Cameron: multi- stage litigation important to
clarify issues.
 2015: Western Cape HC litigation – separate
matters joined
 Esau
 Faro
 WLC
 Respondents? 9 to WLC, 8 to Faro
 Defendants to Esau? 6
 Amicus Curiae? 7
 Key questions in the litigation:
 Is the absence of comprehensive legislation
regulating Muslim marriages unconstitutional?
 What is the appropriate remedy?
 The wheels of justice grind slowly in the WCHC:
 Part 1: September 2016
 Part 2: August 2017
 Part 3: April 2018
 Judgment: August 2018

Judgement in WCHC- KEY QUESTIONS

1. Is the absence of comprehensive legislation

regulating Muslim marriages unconstitutional ? YES
Discrimination by non- recognition
Failure to fulfil international law obligations despite
obligationa not being domesticated.

15
What is the appropriate remedy?
What is the appropriate remedy?
Respondents asked for variously:
Declaration of Muslim marriages as valid marriages
(various ways)
Declaration of invalidity
Structural interdict
Interim relief

3. Actual relief given?

NO interim relief (‘too much confusion’) – NB for
SCA decision
MM legislation must be brought into effect within
24 months of the order

16