Authored By: Tsoseletso Confidence Mokgoatsane
University of South Africa
Abstract.
The non-registration of customary marriage causes numerous legal difficulties and many, South African couples in such marriages mistakenly believe that long term separation means that they are divorced mainly because their marriage was never registered at the Department of Home Affairs.
This article focuses on challenges that usually occur when customary marriage is not registered although it is recognised by the law. It also includes how the state of South Africa can resolve this issue especially on matters such as marital status, inheritance and dignity without compromising the right to culture which was conferred by the Constitution of the Republic of South Africa.
Keywords
Customary marriage, recognition and registration.
List of abbreviations
Constitution The Constitution of the Republic of South Africa BAA Black Administration 38 of 1927
MPA Matrimonial Property Act 88 of 1984
RAF Road Accident Fund
RCMA Recognition of Customary marriage Act 120 of 1998
Introduction
Customary marriage is entered into mainly by indigenous people of South Africa although it is not only limited to this group of people. Customary law is unique in that it largely consists of unwritten laws and most of these laws is uncodified. This article aims to provide a clear understanding to couples in customary marriages of the importance of registering their marriages, because the non-registration has more cons than pros. The groups that are mostly vulnerable are women and children.
The Black Administration Act 38 of 1927(‘the BAA’) was the legislation that exclusively governed the marriages of black people in South Africa. In terms of this Act, when black couples enter into marriage, their matrimonial property would automatically be out of community of property except in certain limited circumstances.1 This section of BAA was discriminating women mainly because most of black women were housewives and the husbands would be the ones to go seek job opportunities in the cities while the wives took care of their households. Section 22(6) of the BAA was later challenge and corrected by the Matrimonial Property Act 88 of 1984.
Research Methodology
The doctrinal legal research methodology is used in this study. It analyses statutes, case law and the provisions that are contained in the Constitution of the Republic of South Africa in order to examine the challenges that usually occur when a customary marriage is not registered.
Legal Framework
1.1. From Out of Community of Property to In Community of Property When the Matrimonial Property Act 88 of 1984 (‘the MPA’) came into effect, it also stated that black couples that got married before the Act came into effect remained out of community of property.2
Section 21(2)(a) of the MPA was declared unconstitutional and invalid to the extent that they perpetuate the discrimination created by section 22(6) of the BAA as it was discriminating certain black couples that got married before 1988.3In Sithole v Sithole, the couple got married out of community of property in 1972 under section 22(6) of the BAA. Mrs Sithole was a housewife, in the year 2000 the couple bought a house, which was registered in Mr Sithole’s name, the couple started having marital issues and Mr Sithole threatened to sell the house as it was in his name.4 Mrs Sithole was granted an interdict to stop her husband from selling the house, the court held that chapter 3 of the Matrimonial Property Act applies to all the marriages unless the couple chose to conclude their marriage out of Community of Property.5
Many black men would enter into civil marriages during the subsistence of customary marriage and the marriage that would be considered to be valid would be the civil marriage whenever there was a dispute with the customary marriage, this was common in the 1980s.6 This left the wives in customary marriages in distress because most of them were depending on their husbands and they would be left in poverty as they would not be entitled to anything that is owed by the husband. Such acts were prohibited when the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 came into effect, it prohibited couples that are already in an existing customary marriage to enter into civil marriage with other people without dissolving the customary marriage first and where second marriage exists, the first marriage would be the one that is legally binding.7
1.2. Recognition of customary marriage by the South African law Customary marriages were officially recognised by traditional laws that were followed by indigenous people and these laws are different from culture to culture for example Zulu marriages were governed by the Natal Code of Zulu law (Proc R151 of 1987). Most of the traditional laws were not treating men and women the same, they gave men more power than women which is inconsistent with section 9 of the Constitution of the Republic of South Africa. The court ruled that customary marriages that were entered into before 1998 must be treated the same as those that were entered into after 1998 in order for men and women to have equal property rights.8
Customary marriages were officially recognised by the South African law in 1998 by the Recognition of Customary Marriage Act 120 of 1998 (‘the RCMA’) which came into force in year 2000. The RCMA regulates all matters relating to customary marriage and it repealed certain provisions of certain law. Before RCMA customary marriages were not registered with the Department of Home Affairs (‘the DHA’), when the Act came into effect it allowed couples in customary marriages to register their marriages. The spouses have a duty to register their marriage at DHA and should the spouses choose not to register their customary marriage, the non-registration of their customary marriage wouldn’t affect the validity of that marriage.9
This section of the registration of customary marriages brings many challenges especially the one where a spouse to a non-registered customary marriage, concludes a civil marriage without dissolving the customary marriage first. Although the law prohibits such acts, people are still committing bigamy mainly because the sanction is lighter.
Case analysis
The South African courts deal with many cases relating to unregistered customary marriages and all the cases brought before the courts have different facts and they all have their own challenges In N.N v B.N,10the deceased entered into customary marriage with the first applicant, the couple separated in 1998 and their customary marriage wasn’t registered but they never divorced. The deceased later entered into civil marriage with the first respondent in 2017 without dissolving the first marriage.11 The first respondent argued that the deceased told her that he had dissolved his first marriage and that he had also told the first applicant about his decision to enter into a civil marriage with the first respondent, the first applicant denied the allegations and claimed that she only found out about the civil marriage when she went to register her customary marriage.12
The court had to decide on whether the 2nd marriage (civil marriage) is valid or not and its validity depends on whether the first marriage was dissolved or not.13 After analysing the facts, the court found that the first marriage wasn’t dissolved, meaning that the first applicant and the deceased were still legally marriage and that they have concluded a valid customary marriage, the court then declared the second marriage (marriage between the deceased and first respondent) null and void ab initio.14
From this case we can clearly see how the choice of not registering customary marriage has a negative impact on spouses and those that enter into marriages bona fide. The people who are mostly vulnerable are those that enter into civil marriages without knowing whether or not the other party is married, their right to dignity and their marital status are deeply affected because of the other party’s actions.
In the case of Kashane v Minister of Home Affairs and Others,15in this case the applicant and the deceased have been married for many years under customary law but they didn’t register their marriage until the deceased died. Due to non-registration of their customary marriage, the Master of the High Court declined her application to register for her late husband’s estate because she didn’t have a marriage certificate.16 She approached the High Court in terms of section 2(1) of the RCMA because she got married before the Act came into effect and her customary marriage was recognised as marriage.17 The court ordered the DHA to register the marriage between the applicant and the deceased as a valid customary marriage and must issue marriage certificate to the applicant.18
From this case we can tell that the main issue is that many spouses especially those that got married before the commencement of the RCMA are still unaware of the fact that they can register their customary marriage at the DHA.
TZ obo Minors v Road Accident Fund,19 the plaintiff in this case was a mother to two minors and one adult, she was claiming for loss of support for both her and her children against RAF.20 The plaintiff claimed that the deceased was her husband in accordance to the customary marriage that they have entered into and he is also the father of her three children.21 The two main issues in this case was whether a valid customary marriage existed between the plaintiff and the deceased existed and whether or not the plaintiff and her children were entitled to claim for loss of support.22
The plaintiff had to prove that she and her children were depending on the deceased and to also prove that the customary marriage between her and the deceased was valid. After applying the law to the facts, the court concluded that there was a valid customary marriage between the deceased and the plaintiff and that the plaintiff and her three children were entitled to support from the deceased.23
The claim to RAF was going to be much easier had the plaintiff and the deceased register their customary marriage, in this case the burden to prove on the balance of probability that the customary marriage was valid was on the plaintiff.
Suggestions
African customary law is a law that is more flexible mainly because it changes from time to time and because there is no group of people that are responsible for creating customary laws, it’s based on laws that were passed from generations to generations. The flexibility of this law can be used to the advantage of the legislators by creating a provision that makes it compulsory to register customary marriages. Looking at the cases above we can clearly tell that the allowance to not register customary marries bring heavy burden on those that want to make claims. Making it compulsory to register customary marriage wouldn’t violate the right to culture (section 30 and 31 of the Constitution) because the registration can still be registered in accordance to the traditional laws of every culture and not that people are not allowed to get marriage in terms of customary law. The registration will also be promoting equality because spouses in civil marriages don’t usually experience such challenges when they want to claim due to the availability of marriage certificates. It would be a fair and just to give spouses in customary the same level of protection in marriages.
Most people that enter into customary marriages, are the people that are staying at the rural areas and townships. The DHA must ensure that at least ones a week they visit and make it their mission to inform people about the importance of registering their customary marriages this will be helpful because: the administration of customary marriages will be more efficient and easier; spouses will save lots of money because they won’t have to go through the process of litigation which is stressful and expensive; the right to dignity will be protected especially in cases like N.N v B.N.
Conclusion
The RCMA has been in force since year 2000, yet many customary marriages are still unregistered. Most cases that involve non-registration of customary marriages are spouses that got married before the commencement of the RCMA and they do not have a knowledge about the option to register. Although South Africa is still a developing country and not everyone has access to technology such as tv and smartphone but a lot of the people who need to hear about this information have access to radios. The DHA can use radios to spread awareness about the importance of registering customary marriages. Registering marriage where one spouse has already passed is not easy as registering customary marriage while both spouses are still alive. As someone who grew up in the rural part of Limpopo province, I have witnessed women and children going through hardships when they attempt to claim from their late husbands or late fathers, due to non-registration of customary marriage. The admin of registering customary marriage after one spouse has passed becomes a severe burden for the surviving spouse as they end up having to depend on the deceased’s family to produce evidence to prove the existence of the marriage, what will happen in a situation where the deceased family doesn’t like the surviving spouse? It is important to protect vulnerable spouse and to provide them with legal certainty in cases that deal with succession.
Bibliography
Nkuna-Mavutane ME & Legislation
Black Administration Act 38 of 1927
Constitution of the Republic of South Africa
Matrimonial Property Act 88 of 1984
Recognition of Customary Marriage Act 120 of 1998
Case law
Gumede v President of the Republic of South Africa and Others (CCT50/08) [2008] ZACC23 Khashane v Minister of Home Affairs and Others (052246/2023) [2024] ZAGPPC 3 N.N and others v B.N and others (3932/2024) [2025] ZAECMHC 46
Sithole and Another v Sithole and Another (CCT 23/20) [2021] ZACC 7 TZ and Minors v Road Accident Fund (29192/2017) [2021] ZAGPPHC 367 (22 June 2021) Articles
Jamneck J “Improving Compliance with Section 4(1) of the Recognition of Customary Marriages Act 120 of 1998: Registration of Customary Marriages” PER/PELJ 2024(27)
1 Section 22(6) of the Black Administration Act 38 of 1927.
2 Section 21(2)(a) of the Matrimonial Property Ac 88t of 1984.
3 Sithole and Another v Sithole and Another (CCT 23/20) [2021] ZACC 7 [56].
4 Sithole [7].
5 Sithole [56].
6 Nkuna-Mavutane ME & Jamneck J “Improving Compliance with Section 4(1) of the Recognition of Customary Marriages Act 120 of 1998: Registration of Customary Marriages” PER/PELJ 2024(27).
7 Section 1 of the Marriage and Matrimonial Property Law Amendment Act.
8 Gumede v President of the Republic of South Africa and Others (CCT 50/08) [2008] ZACC 23.
9 Section 4(1)(9) of the Recognition of Customary Marriage Act 120 of 1998.
10 N.N and Others v B.N and Others (3932/2024) [2025] ZAECMHC 46.
11 N.N v B.N [8].
12 N.N v B.N [8] & [12].
13 N.N v B.N [33].
14 N.N v B.N [42]
15 Khashane v Minister of Home affairs and Others (052246/2023) [2024] ZAGPPC 3.
16 Khashane v Minister of Home Affairs [9].
17 Khashane v Minister of Home Affairs [10].
18 Khashane v Minister of Home Affairs [44].
19 TZ and Minors v Road Accident Fund (29192/2017) [2021] ZAGPPHC 367 (22 June 2021).
20 TZ and Minors V RAF [3].
21 TZ and Minors v RAF [8].
22 TZ and Minors v RAF [12& 13]
23 TZ and Minors v RAF [40-43]
