Tag Archive | Marriage

How to Prove the Existence of a Customary Marriage



The plaintiff sued the defendant for maintenance on behalf of herself and her minor son, Bongani, arising out of the death of Lethusang Johannes Azor (the deceased). She alleged that she was married to the deceased in terms of a customary union.

The only issue for the court to decide was whether or not the plaintiff was married to the deceased in terms of a customary union. The plaintiff called the evidence of her grandfather, Simon Nthejane and she also testified.

Mr Nthejane’s testified that the plaintiff had a relationship with the deceased and they had a child, Bongani. After the birth of Bongani Mr Nthejane approached the deceased’s grandmother who indicated that her family would like to take the plaintiff as their daughter-in-law. They agreed to enter into lobolo negotiations, it was agreed that they would give him 10 cows. This would be done at a later date.

A traditional ceremony, in accordance with Sotho culture, was held at the house of the deceased’s family where the plaintiff was made to wear traditional bridal clothes and a sheep was slaughtered as part of the ceremony to welcome her as a daughter-in -law of the Azor family. She thereafter took up residence in the home of the deceased. It was also Mr Nthejane’s evidence that although the lobolo had not yet been paid, it was his intention to claim it from the Azor family.

The plaintiff corroborated her grandfather’s evidence in all material respects.

The plaintiff then closed her case. The defendant closed its case without leading any evidence.

The legislation regulating customary marriages is the Recognition of Customary Marriages Act 120 of 1998 (the Act). Section 3(1) of the Act provides as follows:

“For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.”

The defendant did not dispute that the lobolo negotiations had been concluded or that the traditional ceremony and celebration took place.

However, the defendant contended that the plaintiff cannot claim to have entered into a customary union as the lobolo had not been paid.

From Mr Nthejane’s evidence, it is clear that the arrangement regarding lobolo was acceptable to both families.

The court referred to the matter of FANTI v BOTO AND OTHERS 2008(5) SA 405 (C) in which the essential requirements to prove the existence of a customary marriage is set out:

“All the authorities are in agreement that a valid customary marriage only comes about when the girl…has been formally transferred or handed over to her husband or his family. Once that is done severance of ties between her and her family occurs. Her acceptance by the groom’s family and her incorporation into his family are ordinarily accompanied by well-known extensive rituals and ceremonies involving both families [para 22]… The importance of these rituals and ceremonies is that they indicate in a rather concretely visible way that a customary marriage is being contracted and that lobolo has been paid and/or the arrangements regarding the payment of lobolo have been made and that such arrangements are acceptable to the two families – particularly the bride’s family”

The court held that the evidence tendered on behalf of the plaintiff established that:

“11.1 The plaintiff and the deceased were both above the age of 18 years at the time they were married;
11.2 Both the plaintiff and the deceased consented to be married to each other by customary law;
11.3 The marriage was properly negotiated, and celebrated in accordance with customary law. Although lobolo was not paid, adequate arrangements, which were accepted by both families, were made for payment of lobolo.
11.4 The plaintiff was “handed over” to the family of the deceased and took up residence in his family home after the ceremonies were performed.”

The court held that the Plaintiff had proven a valid customary marriage existed between herself and the deceased.