Section 17(2)(a) of the Deeds Registries Act (47 of 1937) provides that every deed and other document lodged in the Deeds Office must state the full name and marital status of the person concerned. In this regard, conveyancers are required to establish the marital status of all parties to a transaction. We know that in terms of our law, the marital status of a natural person may either be unmarried; widowed; married, with legal consequences governed by another country; and married, either in or out of community of property.
We also know with reasonable certainty that civil marriages are concluded once certain prescribed formalities have been observed in terms of the Marriages Act 25 of 1961, which makes the date of such marriages determinable. The same cannot be said, however, about customary marriages concluded in terms of the Recognition of Customary Marriages Act 120 of 1998. There is a great deal of uncertainty as to the point at which customary marriages are concluded. And, if the date of the marriage is hard to determine, then a conveyancer is unable to establish and describe the marital status of the parties in relevant documents.
The uncertainty regarding the date of marriages under customary law perhaps stems from the fact that these marriages are concluded in accordance with customary law, which entails customs and usage traditionally observed differently from culture to culture. In order for a customary marriage to be valid, s3(1) of the Customary Marriages Act (120 of 1998) provides that the prospective spouses must be older than 18, and both consent to be married to each other under customary law. The marriage must be negotiated and entered into or celebrated in accordance with customary law. The Act defines customary law as customs and usages traditionally observed among South Africans, which form the culture of those South Africans. Adding to this open-ended definition, the court in the matter of MM v MN 2013 (4) SA 415 (CC) stated that customary law may impose additional requirements to those set out in s3(1).
The matter of Mabena v Letsoala 1998 (2) SA 1068 set parameters to try to make the date of customary marriages determinable. In this matter, the court ruled that for a valid customary marriage, there must be an agreement between the two families, lobola negotiations and handing over/incorporation of the bride into the groom's family home. From what was stated in the Mabena matter, the question is, from which date does a valid customary marriage come into being:
- Would it be the date when the families agree, or
- The date when lobola negotiations are concluded and paid in full, or
- The date when the bride is handed over?
Some experts in customary law have come to the conclusion that a customary marriage comes into being on the date of the handing over or incorporation of the bride into the home of the groom's family, which is usually done in the form of a ceremony. This conclusion provided a yardstick to determine the date of customary marriages until, in the matter of Maloba v Dube  ZAGPPHC, the court presumed that if parties live together, then the bride was handed over, thus giving the impression that the date of the handover ceremony may not necessarily be the date of marriage. In the matter of Mabuza v Mbatha 2003 (40) SA 218 (C), the court held that there is no reason why failure to observe some of the ceremonies cannot be waived or condoned by the parties. Other experts believe that the payment of lobola determines the date of marriage. However, more often than not, lobola is never paid in full and this creates further uncertainty as to the exact date when a customary marriage come into being. In the matter of Mkabe v Minister of Home Affairs and Others (2014/84704)  ZAGPPHC 460, the court held that customary law has evolved over the years in such a way that payment of lobola in full cannot be an essential requirement to invalidate a customary marriage. In this matter the court held that suitable arrangements can be made for payment of lobola and, if the other requirements of a customary marriage have been met, a valid customary marriage can be entered into.
This decision does not, however, determine how to establish the exact date of a customary marriage. In the Mkabe matter the court also commented that the requirement of handing over a bride to the groom's family cannot outweigh other requirements. It made a further comment to the effect that handing over ceremonies come at a huge cost, and financial constraints may sometimes result in such ceremonies being postponed. This makes it even more difficult to determine the date of customary marriages. If lobola has been paid and the parties, despite no handing over ceremony, live together, then, as per the Mkabe decision, one would perhaps need to determine the date when the bride moved in with the groom.
In certain instances lobola is paid in full and handing over ceremonies are not postponed because there are no financial constraints. This was the case in the matter involving the former CEO of MTN and the CEO of Joburg City Theatres. The court had to determine whether payment of lobola in full was enough to seal their marriage. In his judgment of EXN v SRD (2011/3726)  ZAGPPHC, the presiding officer held that although the alleged husband had willingly entered the lobola process, he had not given consent to be married.
As previously mentioned, one of the requirements for a valid customary marriage is consent by both parties. The court in the EXN matter was of the view that since the alleged husband did not give his consent to be married, he was not married. This conclusion made it unnecessary for the court to decide on the effect of the ceremony of lobola negotiations. The decision by the court in EXN stems from accepting evidence led by the alleged husband to the effect that lobola negotiations form only a part of a marriage process. The alleged husband put it to the court that the marriage process would only be completed once the ceremonial handing over of the bride to the groom's family had taken place. His stance was that he had not consented to the marriage if the lobola negotiation process had taken place without the handing over ceremony having also taken place. The EXN decision, among others, highlights the fact that in many instances to try to determine the date of marriage under customary law is in not easy. Conveyancers must be prudent when dealing with parties married according to customary law.
As published in Without Prejudice in October 2016.