Authored By: Ayabonga Ndamase
University of Fort Hare
INTRODUCTION
Customary marriage is a marriage that is celebrated and negotiated according to indigenous African customary law, it is governed and recognized by Recognition of Customary Marriages Act 120 of 1998 the key requirements of the act include the age of the spouses which must be at least 18, Consent from both spouses and marriage being entered to, negotiated and celebrated in accordance to indigenous customary law. The requirements of customary marriage were further expanded by other jurisprudential laws which emerged from different authors, whereby the families of the bride and groom must negotiate and agree to the marriage this is usually conducted by seniors of that family, Families must negotiate and agree on the amount of lobolo to be paid in respect of the marriage and there must be a formal handing over of the bride. The act further allows polygamous marriages, meaning a husband can take multiple wives.
despite the enactment of the Recognition of Customary Marriages Act which was meant to protect women’s right and to make sure that customary marriages aligned with the constitution of South Africa. Many South Africans who are married under customary marriage still face difficulties concerning inequalities when it comes to their legal rights and ambiguities that undermine their marital rights and protection.
BACKGROUND
Customary Marriage is derived from customary law, which is rooted in the indigenous traditions of African people. Customary law encompasses both unwritten practices and written laws that are applied in court. Customary marriages were not recognized in South Africa before the enactment of the Recognition of the Customary Marriages Act because of its polygamous nature. As modern times evolved, the indigenous traditions of South African people were legally formalized and recognized by the Recognition of Customary Marriages Act 120 of 1998. The RCMA brought many changes in the law and certain requirements for the validity of marriage, such as the age of the parties, the change of marital power, during historical periods woman’s legal and social standing was often considered similar to that of a minor which placed her at a lower status than her husband and this meant that she was legally subjected to her husband’s authority and control. Consent, before the RCMA came into effect was governed by the family’s approval, which sometimes overshadowed the informed and free consent. This led to individuals being forced to get married or get into arranged marriages. RCMA now requires consent from both parties for the marriage to be valid. This act improved protection against coercion however, consent is still a challenge to some traditional practices.
CRITICALLY ANALYSIS OF CUSTOMARY MARRIAGES
Customary law consists of several factors and a broad nature of its origin which makes it a custom that is followed such as having lobolo negotiation, polygamous marriage, acquiring consent and registration of customary marriages.
LOBOLA NEGOTIATION
Lobola is a crucial custom in customary marriages which is a token of appreciation given by the husband’s family to the wife’s family which symbolizes unity amongst the family of the bride and the family of the groom. Lobolo is also a requirement for a customary marriage which emerged from jurisprudential case laws. Different communities practice the usage of lobola in diverse ways, it is known as Bogadi or Bohali in some customs. Both families must agree on amount of lobola to be paid. Communities have different approaches to how lobola should be paid, it does not have to be paid in cash. In other communities, “Ukumeza” which is used as symbolic of combining both the ancestors of the bride and the groom sometimes, there is no need for the lobola to be paid in full for the customary marriage to be regarded as a valid marriage. In the past it was only senior men of that family who were allowed to conduct lobola. In the case of Mabena v Letsoalo, Mr. Mabena negotiated and paid lobolo with the family, specifically the bride’s mother as the respondent’s father abandoned the family after Mr. Mabena’s death his parents denied consent to the marriage disputing its validity, the key issue was whether the mother of the bride was legal entitled to negotiate and receive lobola. The High Court gave effect to the living customs which allowed the mother of the bride to perform the task of negotiating and receiving lobola.
POLYGAMOUS MARRIAGE
The RCMA 120 of 1998 recognizes polygamous marriages, which enables a man to participate in having more than one wife, for a husband who is already in a customary marriage to marry another wife these requirements must be met to ensure validity of the marriage. The husband should first consult with his wife properly before he can consider taking another then the husband must make an application in court in terms of Section 7(6) of the RCMA which provides that “If a husband in a customary marriage wishes to enter into a further customary marriage with another woman he must make an application to the court to approve a written contract regulating the existing matrimonial system to the existing and future marriages”. This act is not specific on whether the present wife should agree to the terms of the marriage, however, the wife does have the right to not agree to the contract that is stipulated in section 7(6). The laws further stipulate that if the husband takes another wife without consulting the first wife then that second marriage will be regarded as void, if he consults the wife and she does not consent to the marriage, the husband must persuade the wife if she does not agree even after the persuasion, then he has the right to divorce the wife. In the case of MM v MN ,the respondent who was married to the deceased according to Limpopo customary law lived together and had three children but their marriage was not registered after the death of the deceased, the respondent tried to register the marriage, in the processing of registration it was revealed that the appellant MS MN also asserted that she had entered into a customary marriage with the deceased. The respondent challenged the validity of the marriage claiming that the deceased did not comply with section 7(6) of RCMA. The respondent also argued that she was not consulted before the second marriage. The court had to decide whether failure to comply with section 7(6) rendered the marriage void and if failure to consult with the first wife violated customary law. The high court ruled that failure to comply with section 7(6) of the RCMA invalidated the second marriage however, the Supreme Court Appeal overturned that decision and claimed that non-compliance with section 7(6) does not invalidate customary marriage, it affects the patrimonial system of the second marriage which will be automatically out of community of property. The SCA also concluded that not getting consent from the first wife does not invalidate marriage.
ACQUIRING CONSENT
In terms of customary marriage, acquiring consent is one of the crucial requirements for validity of the marriage, according to section 3 (1)(a)(ii) of RCMA both spouses must consent to be married to each other under customary marriage. If either spouse is under the age of 18 a written consent from their parents or legal guardians is required. Consent must given freely and voluntarily unlike the olden days where consent was rooted in the agreement of family members not the spouses , the father of the bride was the core requirement because customary marriage was viewed as the union between the families not the spouses the consent of the head representatives was sufficient enough to constitute the marriage valid.
REGISTRATION OF CUSTOMARY MARRIAGE
The RCMA governs the registration of customary marriages. Registration of customary marriage is a key step that formalizes the union between the spouses and ensures that there will be no difficulties in matters of properties, inheritance and maintenance if one spouse passes away or they decide to divorce. The act requires that marriages that were entered into after the commencement of this act should be registered within three months, but it may be extended. The registration officer is responsible for registration of customary marriages by recording the names of the spouses , date of the marriage, details of any lobolo agreement and other important information, if he is satisfied with the information that is provided, then he can declare the marriage is valid in accordance to RCMA. Section 4(1) of the RCMA imposes a duty on either spouse to register their customary marriage however Section 4(3) of RCMA clarifies that failure to register customary marriage does not affect the validity of the marriage itself, while the registration is legally required to formalize the customary marriage and to protect the spouses rights , unregistered marriages are still valid under South African law.
THE AMBIGUITIES AND INEQUALITIES FACED BY PEOPLE MARRIED UNDER CUSTOMARY MARRIAGE
Although the RCMA was enacted to correct the historic injustices faced by spouses married under customary marriages, inequalities remain deeply entrenched. Many individuals continue to face legal ambiguities, gender imbalances and barriers that undermine their rights within the union.
AMBIGUITIES AND INEQUALITIES IN LOBOLA NEGOTIATIONS
Although culturally, lobola negotiations are important because they symbolize unity between two families, most of the time they often reinforce and reflect patriarchy power imbalances where by women’s consent are usually viewed as secondary when it comes to the price of the bride, Morden courts are starting to recognize the change in customs whereby they accept written lobolo agreements and partial lobolo payments as sufficient under RCMA furthermore disputes over unpaid and partial paid lobolo payments can delay registration of the customary marriage which will leave the spouse that does not have legal recognition in a vulnerable space.
AMBIGUITIES AND INEQUALITIES IN POLYGAMOUS MARRIAGE
Property rights in polygamous marriages in SA are usually vague and complex, which leaves many wives without legal protection, especially in rural areas where the wives are usually not aware of the steps they must take because they are not exposed to the legal side of polygamous marriages. This can lead to women being vulnerable to issues concerning maintenance and inheritance, which can lead to disputes following the death of the husband or divorce. Furthermore, the law allowing only men to take multiple wives but not women entrenches gender inequality by upholding patriarchal social norms.
AMBIGUITIES AND INEQUALITIES IN ACQUIRING CONSENT IN CUSTOMARY MARRIAGE
In many customary contexts, consent is not always given voluntarily or informed, social factors or family pressures on individuals often blur the line between consent that is genuine and coercion. Consent in customary marriage is not only need from the spouses but it is also extended to the family members who must also consent to the marriage, this dual system of consent creates ambiguity and tension around the individual’s autonomy because the family’s decision can override the unduly spouses’ decision, which can compromise their freedom to consent freely and voluntarily.
AMBIGUITIES AND INEQUALITIES IN THE REGISTRATION OF CUSTOMARY MARRIAGE
While the RCMA requires that marriage must be registered within three months, failure to register a customary marriage does not affect the validity of the marriage. This has created ambiguity because making marriage registration optional has left many marriages to remain unregistered which has left many spouses without official proof of marriage. In rural areas many people are limited to registering authorities which can also lead to lack of awareness. Additionally, the inequalities arise when the registrations are delayed or incomplete, which negatively affects individuals who rely on inheritance and maintenance. The discretion performed by registration officers based on whether they are satisfied that a valid marriage exist creates several ambiguities as this discretion symbolizes inconsistency on how the law can be applied, especially in cases where the officer may not have enough cultural knowledge. As a result these ambiguities and discretional powers have led to inequalities whereby some marriages are registered and protected by the law whilst others are not registered due to the satisfaction of the registration officer.
NEW DEVELOPMENTS
In 2025 few developments have been made to address the inequalities and ambiguities faced by people who are married under customary marriages, such as the landmark court ruling which held that a customary marriage was valid despite the disputes regarding lobolo negotiations. This ruling reflected the court’s recognition of the cultural and difficulties surrounding customary marriages and clarified RCMA that marriages are still valid even if not all traditional rituals are followed. Legislative reforms particularly the Recognition of Customary Marriages Amendment Bill focused on eliminating gender inequality by granting women equal propriety ownership in both polygamous and monogamous marriages.
WAY FORWARD
A clear and a respectful approach that combines the law, enforcement and culture is needed to address the unclear and unfair parts of customary marriages, codifying important traditional practices like lobola specifically the bride price to avoid future confusion while respecting the law is a crucial step that must be taken. The rights and properties of the wives that are in polygamous marriages should be protected, it is also important to make sure that both partners consent freely to the marriage. There should be an amendment in RCMA that allows to marry more than one husband for gender equality purposes. Lastly, registration of marriage should be compulsory to avoid disputes over property
CONCLUSION
In conclusion, dealing with the ambiguities and inequalities of customary marriages require clear legal rules for traditions like lobolo negotiations, equal rights for spouses in customary marriages, consent before marriage and registration of customary marriages under the RCMA The courts must interpret the laws in a way that protects constitutional rights and clarify uncertainties especially to protect the rights and interests of vulnerable spouses in customary marriages. This is important because customary marriages are the foundation of many South African families without legal protection and law certainty many individuals face many inequalities. By strengthening the laws, improving registration and fair rulings, we can ensure that customary marriages will be respected and they will be fair. The time for comprehensive reforms is now to make sure that the rights and dignity of everyone who are married under customary marriages are protected so that they can have confidence in our laws.
BIBLIOGRAPHY
CASES
Mabena v Letsola (2) SA 1068 (T)
MM v MN 4 SA 286 (GNP)
Moloi v Nkosi and Others (1713/2025) ZAFSHC 153 (28 June 2025)
N.V.M v D.S.R (1327/2024) ZANCHC 9 (7 February 2025)
Ramuhovhi and Others v President of the Republic of South Africa and Others ZACC 41
Legislation
Recognition of Customary Marriages Act 120 of 1998
SECONDARY SOURCES
Books
Heaton J, South African Family Law (4th edn, Juta 2015)
Jansen in C Rautenbach et al (eds), Introduction to Legal Pluralism in South Africa (LexisNexis 2021) 68
Mabogane R, Customary Law in South Africa (Juta 2017) 88
Articles and Journals
Donda Attorneys, ‘The procedure to enter into a polygamous marriage’ (18 April 2022) https://www.dondaattorneys.co.za/2022/04/19/polygamous-marriage-process/ accessed 24 November 2025
Heeren GA, ‘Cattle for Wives and Extramarital Trysts for Husbands? Lobola, Men, and HIV/STD Risk Behavior in Southern Africa’ (2011) 21 Journal of Human Behavior in the Social Environment 73
Nzimande N, ‘Consent as a requirement in customary marriages’ (Derebus, April 2024) https://www.derebus.org.za/consent-as-a-requirement-in-customary-marriages/ accessed 25 November 2025
VDM Attorneys, ‘Customary Marriages Cape Town’ (31 October 2024) https://www.vdm.law/legal-services/marriage-and-matrimonial-property/customary-marriages/cape-town accessed 24 November 2025
