Mbungela v Mkabi 2019 (4) SA 77 (SCA)

Case Note: Mbungela v Mkabi 2019 (4) SA 77 (SCA)

Case Note: Mbungela v Mkabi 2019 (4) SA 77 (SCA)

1. Introduction

The case of Mbungela v Mkabi heard in the Supreme Court of Appeal (SCA) of South Africa is a landmark decision in the jurisprudence of customary marriages. The central legal question revolved around the strict adherence to traditional rituals, specifically the handing over of the bride (ukumekeza) and the full payment of lobolo, for a valid customary marriage under the Recognition of Customary Marriages Act 120 of 1998 (RCMA). The appellants, the family of the deceased wife, sought to invalidate the marriage to deny the widower any right to inherit from her estate. The SCA’s judgment provides a significant and progressive interpretation of the RCMA, affirming that customary law is a living system that must be applied in a manner consistent with the spirit, purport, and objects of the Bill of Rights.

2. Facts

The relationship between the late Ms. Ntombi Eunice Mbungela (the deceased) and the first respondent, Mr. Madala Philemon Mkabi, began in 2007. On 2 April 2010, Mr. Mkabi’s family representatives visited the deceased’s family home in Bushbuckridge to initiate lobolo negotiations. The families agreed on a lobolo of R12,000 and one live cow. A partial payment of R9,000 was made promptly, followed by the delivery of the cow. Furthermore, there was a significant exchange of gifts between the families: the Mkabi family presented gifts including a suit for the guardian, outfits for the mother, a blanket, and snuff boxes, while the Mbungela family reciprocated with gifts for the Mkabi representatives.

Following the negotiations, the deceased remained at her home for a few days before returning to reside with Mr. Mkabi. The couple lived together as husband and wife from that point until the deceased’s passing in 2016. Although they did not formally register their marriage, they sought and obtained a letter from their local Traditional Council in 2013 confirming their marital union. Upon the deceased’s death, a dispute arose between her family and Mr. Mkabi regarding the validity of the marriage, which directly impacted the administration of her estate.

        3. Issue

The core legal issue on appeal was whether a valid customary marriage had been concluded in compliance with section 3(1)(b) of the RCMA, notwithstanding two alleged deficiencies:

1. The failure of the deceased’s family to formally hand her over (ukumekeza) to the Mkabi family; and
2. The non-payment of the full lobolo amount.

4. Ratio Decidendi

The Supreme Court of Appeal, per Mathopo JA, found in favour of Mr. Mkabi, holding that a valid customary marriage had indeed been concluded. The court’s reasoning was grounded in a constitutional and dynamic understanding of customary law.

4.1. On the Full Payment of Lobolo

The court held that the full payment of lobolo is not an absolute prerequisite for a valid marriage. It recognized that lobolo negotiations are often a process, and partial payment, especially when coupled with a demonstrable intention to fulfil the obligation and a subsequent exchange of gifts and cohabitation, can be sufficient to indicate a consensus between the families. The court emphasized that the essence of lobolo is to cement relationships between families, a purpose that was achieved in this case through the negotiations, partial payment, and gift-giving.

4.2. On the Handing Over Ceremony (Ukumekeza)

This was the pivotal aspect of the judgment. The appellants argued that the absence of this ritual was fatal to the validity of the marriage. The court rejected this formalistic approach. It reasoned that:

• The handing-over ceremony, while of considerable importance, is not an end but a means to signify the integration of the bride into her new family and the union of the two families.
• In modern contexts, couples often cohabit before or during the lobolo process. To insist on a handover ceremony after the couple has already established a marital home would be to elevate form over substance.
• The court found that the ritual had been waived, or its necessity condoned by the parties’ conduct. Mr. Mkabi’s evidence that he was never informed of its necessity, combined with the families’ extensive engagement in other rituals and their eight years of cohabitation as a married couple, demonstrated a clear intention to be married without it.

The court concluded that the essential requirements of section 3(1)(b) were met: the marriage was negotiated and entered in accordance with customary law, and the key stakeholders (the prospective spouses and their families) had consensus on the union.

5. Significance of the Decision

The Mbungela judgment is profoundly significant for several reasons:

5.1. Dynamic Interpretation of Customary Law: The decision firmly entrenches the principle that customary law is not a static set of archaic rules but a living body of law that evolves to meet the needs of the community it serves. The SCA applied section 39(2) of the Constitution, which mandates courts to develop the common and customary law to promote the spirit, purport, and objects of the Bill of Rights.

5.2. Promotion of Gender Equality and Dignity: By rejecting a rigid insistence on formalities that often disadvantage women (e.g., leaving a woman without marital protections because a ceremony was delayed or not performed), the court protected the dignity and security of women in customary marriages. It focused on the reality of the relationship rather than a checklist of rituals.

5.3. Legal Certainty and Protection of Vested Rights: The judgment provides clarity and certainty for thousands of couples who have undertaken lobolo negotiations and cohabited in good faith, believing themselves to be married. It prevents families from using the absence of a single ritual to retrospectively invalidate a marriage for ulterior motives, such as disinheriting a surviving spouse.

5.4. Judicial Consistency: The SCA’s reasoning was later affirmed and applied by the Constitutional Court in the high-profile case of Tsambo v Sengadi. In Tsambo, the Court was even more explicit, stating that the handing over of the bride is a customary norm rather than a legal requirement for a valid customary marriage. This consistent jurisprudence from the highest courts solidifies the precedent set in Mbungela.

6. Criticism Surrounding the Decision

Despite its progressive stance, the decision has attracted some criticism:

• Traditionalist Perspective: Some traditional leaders and scholars argue that the court undervalued the deep cultural significance of the handing-over ceremony, which is not merely a formality but a crucial rite of passage that confers legitimacy and social recognition on the union within the community.
• Legal Uncertainty: Critics contend that by making the validity of a marriage contingent on the subjective “intention of the parties,” the court may have introduced an element of uncertainty. It could lead to future litigation where families must lead evidence to prove or disprove whether a ritual was waived.
• Balance between Law and Culture: The case highlights the ongoing tension between the constitutional imperative to reform discriminatory practices and the need to respect cultural autonomy. The judgment represents a shift in authority from traditional custodians to the judiciary in determining what constitutes valid custom.

7. Conclusion

Mbungela v Mkabi is a cornerstone case in South African law that successfully navigates the complex intersection of customary practices, constitutional rights, and modern social realities. The Supreme Court of Appeal correctly moved away from a strict, formalistic application of the RCMA towards a substantive and purposeful one. By finding that the validity of a customary marriage does not solely hinge on the full payment of lobolo or the literal performance of the handing-over ceremony, the court ensured that the law reflects the genuine lived experiences of couples. This decision, reinforced by the Constitutional Court in Tsambo, powerfully affirms that the essence of customary marriage lies in the agreement and intention of the parties and their families, thereby promoting justice, fairness, and the constitutional values of dignity and equality.

Bibliography 

Cases

1. Mbungela v Mkabi (820/2018) [2019] ZASCA 134; 2019 (4) SA 77 (SCA).
2. Tsambo v Sengadi [2020] ZACC 28; 2021 (3) SA 565 (CC).

Legislation

1. Constitution of the Republic of South Africa, 1996.
2. Recognition of Customary Marriages Act 120 of 1998.

Books

1. Bennett TW, Customary Law in South Africa (Juta 2004).

Journal Articles

1. Claassens A and Budlender D, ‘Redefining Boundaries: The Controversy over Ukumekeza and Customary Marriage Validity’ (2020) 137 South African Law Journal 454.
2. Fishbayn J, ‘Litigating the Right to Culture: Family Law in the New South Africa’ (2008) 13 International Journal of Law, Policy and the Family 261.

Online Sources

1. Law Guide, ‘South African Customary Law’ (https://lawguide.co.za/south-african-customary-law) accessed 20 May 2024.
2. De Rebus, ‘Equality for All Religions and Cultures in South Africa Legal System’ (1 July 2018) (https://www.derebus.org.za/equality-for-all-religions-and-cultures-in-sa-legal-system/) accessed 20 May 2024.