The RCMA
The Recognition Act
Customary marriages are fully recognised by statute.
Recognition
The Recognition of Customary Marriages Act 120 of 1998 (RCMA) gives full legal recognition to customary marriages — both those existing when the Act commenced and those concluded afterwards, including polygynous marriages.
Requirements (s 3)
- Both prospective spouses are 18 years or older
- Both consent to be married to each other under customary law
- The marriage is negotiated and entered into or celebrated in accordance with customary law
Registration
Customary marriages should be registered (s 4), but non-registration does not affect validity — registration provides proof, not existence.
Key Rule
Under the RCMA (s 3): both spouses 18+, both consent, and the marriage is negotiated and celebrated per customary law. Registration is proof, not a validity requirement.
Common Mistake
Thinking a customary marriage is invalid if unregistered. Registration is not a validity requirement — an unregistered marriage meeting s 3 is valid.
Lobolo & ritual
Lobolo & the Handing Over
The customary essentials — and how living law has relaxed them.
Lobolo
Lobolo (bridewealth) is property — traditionally cattle, now often money — that the groom or his family undertakes to give the bride's family. It is central to custom and evidences the negotiation of the marriage, but it is not a statutory validity requirement under s 3.
Handing over of the bride
Historically the handing over of the bride to the groom's family (integration into his family) was regarded as essential. Living customary law has relaxed strict formalism: courts have held that a marriage may be valid even where the handing over is incomplete, where the parties clearly intended and celebrated a customary marriage (Mbungela v Mkabi; cf Motsoatsoa).
Consent of the families
A customary marriage is a union of families, not only individuals: the consent and involvement of both families in the negotiation is important (Fanti v Boto; Mabuza v Mbatha).
Key Rule
Lobolo and family involvement are central to custom but not rigid statutory requirements. Living law has relaxed the "handing over" formality where the parties clearly intended a customary marriage (Mbungela).
Common Mistake
Treating full lobolo payment or a completed handing-over as strict validity requirements in every case. Living customary law looks at the parties' intention and the substance of the customary celebration.
Leading Cases
Mbungela v Mkabi2020 (1) SA 41 (SCA)The handing over of the bride is not always essential; living customary law can dispense with strict formalism where a customary marriage was clearly intended and celebrated.
Facts. A customary marriage was challenged because the formal handing over of the bride had not been completed, although lobolo had been paid and the marriage celebrated and intended by the parties and families.
Legal question. Is the handing over of the bride an indispensable requirement for a valid customary marriage?
Judgment. The SCA upheld the customary marriage despite the incomplete handing over, giving effect to the parties' intention and the living law.
Significance. The leading modern authority that strict formalities (like handing over) can yield to the substance and intention of the customary marriage — a triumph of living law.
Exam tip. Use Mbungela as the modern, flexible position on customary-marriage formalities; contrast with the stricter Motsoatsoa.
Mabuza v Mbatha2003 (4) SA 218 (C)Customary law is flexible and adaptive; a specific custom (ukumekeza) was not an indispensable requirement for a valid marriage.
Facts. The validity of a customary marriage was challenged on the basis that a particular Swazi custom (ukumekeza, the integration of the bride) had not been observed.
Legal question. Is a specific traditional custom (ukumekeza) an indispensable requirement for a valid customary marriage?
Judgment. The court recognised the marriage, holding that strict observance of ukumekeza was not essential to validity.
Significance. An important recognition of the flexibility of living customary law and against rigid formalism in customary marriage.
Exam tip. Use Mabuza for the flexibility of living customary law — specific customs are not always indispensable. Pair with Mbungela (handing over).
Fanti v Boto2008 (5) SA 405 (C)Emphasised the requirements of a valid customary marriage, including the consent and involvement of both families.
Facts. A man claimed that a valid customary marriage existed; the alleged wife's family disputed it, and it appeared the required customary negotiations and family consent had not been completed.
Legal question. What are the essential requirements for a valid customary marriage, and were they met?
Judgment. The court held that no valid customary marriage had been proved, as the customary requirements and family consent were not satisfied.
Significance. Emphasises that a customary marriage is a union of families requiring genuine customary negotiation and consent, not merely cohabitation.
Exam tip. Use Fanti for the requirement of family consent/involvement and the customary process; contrast with cases relaxing strict formality where a marriage was clearly concluded.
Consequences
The Marriage Consequences
Property, polygyny, equality and dissolution.
Proprietary consequences (s 7)
A monogamous customary marriage is in community of property unless excluded by an antenuptial contract. In Gumede the Constitutional Court struck down provisions that denied wives in old monogamous customary marriages equal proprietary rights.
Polygyny
Customary marriages may be polygynous. A husband wishing to take a further wife must apply to court under s 7(6) to approve a written contract regulating the matrimonial property system. In Mayelane v Ngwenyama the CC held the first wife's consent is required for a valid further marriage; Ramuhovhi secured equal proprietary rights for wives in polygynous marriages.
Equality and dissolution
Spouses have equal status and capacity (s 6). A customary marriage may be dissolved only by a court, on the ground of irretrievable breakdown (s 8), applying the Divorce Act framework and protecting the children.
Key Rule
Monogamous customary marriage = in community unless an ANC (Gumede). Further wife → s 7(6) court-approved contract + first wife's consent (Mayelane); equal rights in polygyny (Ramuhovhi). Dissolution by a court (s 8).
Common Mistake
Thinking a husband may simply take a further wife. He must obtain a court-approved s 7(6) contract, and the first wife's consent is required (Mayelane).
Leading Cases
Gumede v President of the RSA2009 (3) SA 152 (CC)Wives in old monogamous customary marriages are entitled to equal ownership and control of marital property (in community of property).
Facts. A wife in an old (pre-Act) monogamous customary marriage was denied equal rights over the marital property under the RCMA's transitional provisions and old KwaZulu/Natal codes.
Legal question. Do provisions denying wives in old monogamous customary marriages equal proprietary rights violate the Constitution?
Judgment. The Constitutional Court struck down the offending provisions, equalising the proprietary rights of wives in old monogamous customary marriages.
Significance. A landmark securing gender equality in the proprietary consequences of customary marriage.
Exam tip. Use Gumede for equality in customary-marriage property (monogamous marriages); pair with Ramuhovhi (polygynous marriages).
Mayelane v Ngwenyama2013 (4) SA 415 (CC)Under Tsonga customary law the consent of the first wife is required for the validity of a subsequent polygynous customary marriage.
Facts. A husband entered a second customary marriage without the knowledge or consent of his first wife. On his death, the first wife challenged the validity of the second marriage under Tsonga customary law.
Legal question. Is the consent of the first wife required for the validity of a subsequent polygynous customary marriage?
Judgment. The Constitutional Court held the second marriage invalid for want of the first wife's consent, developing the living customary law to require it.
Significance. The leading authority that the first wife's consent is required for a valid subsequent customary marriage — a key development of living customary law for gender equality.
Exam tip. Combine Mayelane with s 7(6) of the RCMA (court-approved contract) when discussing further customary wives. Note the case developed living customary law under s 39(2).
Ramuhovhi v President of the RSA2018 (2) SA 1 (CC)Wives in polygynous customary marriages are entitled to equal proprietary rights, remedying the RCMA's treatment of pre-Act marriages.
Facts. Wives in old polygynous customary marriages lacked equal rights to marital property under the RCMA, which left the proprietary consequences of such marriages governed by (discriminatory) old customary law.
Legal question. Are wives in old polygynous customary marriages entitled to equal proprietary rights?
Judgment. The Constitutional Court declared the provision invalid and imposed an interim regime giving wives equal proprietary rights pending legislation.
Significance. Extends Gumede's equality to polygynous customary marriages.
Exam tip. Pair Ramuhovhi with Gumede (monogamous) and Mayelane (first wife's consent) for the customary-marriage picture.