Authored By: Aphelele Vava
University of Fort Hare
INTRODUCTION
Customary marriages are celebrated according to the rites, practices, and customs of the African community to which one or both of the parties belong. Section 3(1)(b) of the Recognition of Customary Marriages Act prescribes that for a customary marriage to be valid; it must be negotiated and entered into or celebrated in accordance with customary law.
These requirements are vague and practiced differently across all cultures. If such a marriage is not concluded, attained, or observed in accordance with customary law, it is not recognized as a marriage. Swati customary marriages are one of the customs and practices that are given recognition by customary law.
JURISDICTION OF THE COURT
This case was heard in the High Court of South Africa, Cape of Good Hope Division. The case was about the validity of the siSwati marriage. The court had a duty to check whether the plaintiff’s claims were valid. African Customary Law recognizes siSwati marriages and the integration of the bride.
SUMMARY OF FACTS
The wife (hereafter referred to as the plaintiff) sought a decree of divorce against the husband (hereafter referred to as the defendant), alleging that a valid Swati customary law marriage. The defendant disputed this, citing the non-performance of the ukumekeza custom. The couple started a relationship in 1989, had a child, and the defendant paid lobolo (bride price) at an amount of R2500. The plaintiff was officially handed over to the defendant in 1992, and they lived together as husband and wife until their relationship broke down in 2000.
ISSUES
- The court was faced with an issue of whether a valid customary marriage existed between the parties despite the non-performance of ukumekeza?
- The court had to determine the validity of a siSwati customary marriage between the parties. Taking into consideration the requirement of ukumekeza, whether it invalidated siSwati marriage.
- The court also determined whether section 7(1) of the Recognition of Customary Marriages conflicts with section 9 of the Constitution of the Republic of South Africa.
ANALYSIS OF THE DECISION
Considering the Mabuza case, the court had a mandate of developing customary law as a part One of the requirements was not met, according to the defendant. In respect of section 39 (2)
The Constitution, which stipulates that –
“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal, or forum must promote the spirit, purport
and the objects of the Bill of Rights.”
After a thorough cross-examination of witnesses, the court held that there was a valid customary marriage between the parties and that the plaintiff was entitled to the decree of divorce.
The court held that ukumekeza has evolved, and it is probably practiced differently than it was centuries ago. This fact was supported by Bennet, who came with an argument that customary law always had flexibility and was pragmatic. Furthermore, Bennett contended that in close-knit, rural communities where certainty was neither a necessity nor a value, strict adherence to ritual formulae was never necessary.
Therefore, the celebration of a man’s second marriage, for example, would often be less complicated; likewise, a wedding may be shortened due to financial constraints or the desire to continue quickly.
In his judgment, Hlophe J also held that after African Customary Law was officially given recognition by the Black Administration Act, it was never allowed to develop and to take its proper position within the Republic.
In the case Ex Parte Minister of Home Affairs in re Yako v Beyi, the court held that customary law could only be recognized when it did not conflict with public policy or natural justice and common law principles in general.
The court went on to the current recognition of customary law in terms of the Constitution and the Recognition of Customary Marriages Act to support the fact that our courts should develop customary law, and thus, due to the provision of section 2 of the Constitution, which states that the Constitution is supreme and any law (custom of ukumekeza in this case) Or conduct inconsistent with the Constitution may be declared invalid.
In the same case, it was held that the test is not whether customary law is contrary to public policy or justice that it should currently be that the supremacy of the Constitution should be accepted and that customary law is evolving.
The court concluded that customary Law in South Africa needs to be developed to be consistent with the South African Constitution. The court ruled in favour of the plaintiff, granting a divorce decree and custody. The court also mandated the defendant to pay the maintenance of the child and other expenses.
CORRECTNESS OF THE DECISION.
The decision in the case was correct. According to Bakker, one of the rituals, such as ukumekeza, can be waived by an agreement between the families. Ukumekeza is one of the rituals performed during the integration (handing over) of the bride, together with other rituals such as libovu (the smearing of red ochre), and cannot be regarded as an important or rather mandatory requirement in such a way that the marriage cannot continue without it having been performed. Families in Mabuza did not agree to waive the integration, but rather waived only ukumekeza, as both parties’ families agreed to the handing over of the bride.
This case proves the decision, which was reached in the Mabuza case, that, in instances where there is an agreement between the parties of families, rather, some requirements can be waived, and this supports the view that African Customary Law is not absolute but is subject to certain exceptions. For as long as such exceptions are in line with the Constitution as the supreme law of the country, then the courts have no option but to accept the agreements.
IMPACT OF THE DECISION IN FUTURE CUSTOMARY LAW CASES.
In respect of the doctrine of judicial precedent, which denotes a court’s ruling that is used as precedent to decide a case with like facts; a case that establishes the legal concept that the court decided, the courts, when being faced with a challenge, where part thereof the requirements of the conclusion of a valid customary marriage, they will be bound by this decision.
Similarly, this is evident in the case mentioned above of Mkabi v Minister of Home Affairs. In that case, the integration of the bride did not take place. The court held that where there has been an agreement between the parties and families involved, such integration of the bride can be waived. However, even though this decision received criticism because it relied on the Mabuza v Mbatha decision, it is still binding in our law.
The main impact of the Mabuza case is that it would be favourable for courts when faced with the challenge of integration of the bride; they will rely on Judge Hlophe’s decision and ratio decidendi. In the case of Tsambo v Sengadi, the court held that the bride’s handover was not a strict requirement for a valid customary marriage. The court emphasized that indigenous law must align with the spirit, purpose, and values of the Constitution, including freedom, equality, and dignity.
PURPOSE OF THE SUMMARY
The purpose of this case summary is to prove that Customary Law is not static; it is also evolving to meet halfway the Constitution. As life changes daily, the customary law also changes to meet human needs.
CONCLUSION
Section 3(1)(b) of the Customary Marriages Act prescribes that for a customary marriage to be valid, it has to be negotiated and entered into or celebrated in accordance with customary law. Ukumekeza fits in part of the integration of the bride, which, according to this piece of legislation, would fall under the celebration part. However, such a custom can be waived through an agreement. It is evident in the case of Mabuza v Mbatha and the Tsambo case that these requirements are not strict, differ across various societies, and that customary law continues to develop throughout.
BIBLIOGRAPGY
Books
TW Bennett A sourcebook of African Customary Law for Southern Africa (1991) Juta & Co.
C Rautenbach and JC Bekker Introduction to Legal Pluralism in South Africa 3 ed (2010)
Durban: LexisNexis.
Chapters in Books
CRM Dlamini “Family Law” in Bekker, Labuschagne and Vorster Introduction to Legal
Pluralism in South Africa (2002).
Journal Articles
P Bakker “Integration of the Bride as a Requirement for a Valid Customary Marriage:
Mkabe v Minister of Home Affairs [2016] ZAGPPHC 460 2018 Potchefstroom Electronic Law Journal.
18 AT Manthwa “An Analysis of the Significance of Integration of the Bride in Customary Marriages and its Potential Constitutionality” 2023 Potchefstroom Electronic Law Journal.
Legislation
Recognition of Customary Marriages Act 120 of 1998.
Black Administration Act 38 of 1927.
Constitution of the Republic of South Africa, 1996.
Case Law
Ex Parte Minister of Home Affairs in re: Yako v Beyi 1948 1 All SA 337 (A).
Mabuza v Mbatha 2003 (4) SA 218 (C).
Mkabe v Minister of Home Affairs (2014/84704) [2016] ZAGPPHC 460.
Tsambo v Sengadi (244/19) [2020] ZASCA 46
Internet sources
Law Insider Judicial Precedent Definition https://www.lawinsider.com/dictionary/judicial precedent (accessed 29-09-2025).
