AFRICAN CUSTOMARY LAW

Assignment 1

Mmabutsi Jequelyn Mmatshepho Mathabathe

Student no: 59719826

Email address: 59719826@mylife.unisa.ac.za

Unique no: 540396

Due date: 5 April 2023

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Question 1

(i) Identify the customary marriage applicable to the set of facts and state

the marriage requirement that is affected by the legal question here.

The customary marriage applicable to the set of facts is the customary marriage entered
into after the 15th of November 20001.

The legal requirements affected by the legal question are as follows:

Age restriction - Boths parties are required to be above the age of 18 for their customary
marriage to be concluded.

Consent - Both parties must consent to be married to each other in terms of customary
law. This means that forced or arranged marriage conducted without the approval or
consent of one or both parties is invalidated and will not be regarded as valid customary
marriage in terms of Customary law.

Negotiation and celebration of marriage – According to the Recognition of Customary

Marriages Act 120 of 1998, it is a requirement that a negotiation and a celebratory
ceremony is conducted to validate the customary marriage2. We should also bear in
mind that as much as negotiation is a requirement for a valid customary marriage, the
act does not give prescription over ilobolo for a requirement for the validity of customary
marriage.

(ii) Using decided cases advise Merry on her response of the alleged invalidity of
her marriage due to the fact that she was not delivered as a bride to her marital
family in a celebration.

The transfer of the bride to the man’s family group brings effect to the customary
marriage. In the case of a bridal transfer, the bride is brought by her family to the man’s
family home and there are also accompanying ceremonies conducted when she is
delivered/handed over to the groom’s family to officially qualify her as their bride. It is
not essential or necessary for the groom to be present because the bride is handed

1
Christa Rautenbach, Introduction to Legal Pluralism in South Africa (5th edn, LexisNexis 2018) 88.
2
Christa Rautenbach, Introduction to Legal Pluralism in South Africa 90.
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over to the home stead to not only be his wife but for her to also be a part of his family
group, by change of surname, cultural practices and to also be guarded by the family’s
ancestors. However, as we refer to case law, we find cases that Merry can utilize as
instruments to defend her case against Thabiso’s mother claims as she was not handed
over to Thabiso’s family.

In the case of Mabuza v Mbatha 2003 (4) SA 218, the validity of a customary marriage
was challenged due to the wife’s alleged non-integration into her husband’s family
according to the ukumekeza customary practice regulated by Swazi law3. The court
found that the parties could agree to set aside the ukumekeza requirement of a valid
customary marriage and that the performance of these specific ritual conducts was not
a strict requirement4. The marriage was held to be valid in terms of customary law.

In the case of Motsoatsoa v Roro 2010 JDR 1392 (GSJ), the court dismissed the
application for registration of a customary marriage as the handing over the bride in the
presence of the families of both spouses did not take place, spite thereof that the lobolo
negotiations had been done and part of it had been delivered5. The court held that a
wife cannot hand herself over; she must be accompanied by family members.

In the case of Mkabe v Minister of Home Affairs 2016 JDR 1157 (GP), The court
however submitted that the transfer of the bride cannot be over emphasized and
referred to the financial constraints and huge cost of traditional ceremonies6. The court
found that there was indeed a customary marriage in light of the other rituals performed
as well as the fact that part of the lobolo paid7.

In Fanti v Boto 2008 (5) SA 405 (C), the importance of performing customary practices,
ceremonies and rituals was again emphasized. The non-performance of the ceremonial
handing over of the bride to the husband’s family and the fact that there was no

3
Mabuza v Mbatha 2003 (4) SA 218
4
The Mabuza case
5
Motsoatsoa v Roro 2010 JDR 1392 (GSJ)
6
Mkabe v Minister of Home Affairs 2016 JDR 1157 (GP)
7
The Mkabe case
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agreement on or lobolo paid, resulted in a finding that no customary marriage came into
existence8.

(iii) How far is the validity of the marriage affected by non-registration?

Section 4(9) of the Recognition of Customary Marriage provides that the non-
registration of customary marriage does not make the marriage invalid9. However, an
unregistered customary marriage makes it difficult to prove the marriage’s existence
with de facto proof which is the marriage certificate. Although a non-registered
customary marriage is not invalidated in terms of the act, it might be a challenge to
prove the customary marriage to institutions such as the Master of the High Court
(Master’s office) as the registration of the marriage is the fundamental requirement for
validity10.

Question 2

State the general principles of succession in terms of original customary law.

• Succession takes place only on the death of predecessors; there is thus no

question of succession while the family head is still alive.
• In the original customary law, the distribution or the passing over of the family
head’s property/estates was not decided over or concluded through a will,
however in modern customary law, indigenous family heads dispose their estate
by means of a will.
• A distinction is made between succession to the general status of the deceased
family head and the succession to the position of head of various houses of the
deceased family head.
• In the original customary law, successor succeeded to the deceased family
head’s assets and liabilities. However, in modern Customary law, in the case of
succussion in KZN, the successor only succeeds the predecessor’s assets and

8
Fanti v Boto 2008 (5) SA 405 (C)
9
Christa Rautenbach, Introduction to Legal Pluralism in South Africa (5th edn, LexisNexis 2018) 176.
10
University of South Africa, African Customary Law (University of South Africa 2017) 66.
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debts concerned with marriage agreement, ilobolo. In the rest of South Africa, the
successor succeeds both the assets and debts of the predecessor.
• Succession in respect of status is limited largely on males, especially those with
a patrilineage; a man cannot be succeeded by a woman, except in certain
places.
• The original customary law follows the principles of primogeniture, which means
that the deceased family head is succeeded by his first son.
• Succession cannot be relinquished nor renounced. It is a duty bestowed upon
the successor.
• The male descendants enjoy preference over male ascendants, while male
ascendants enjoy preference over collateral male relatives or relatives in the
lateral line.
• A successor may be removed from the line of successors, provided there are
valid reasons and the disinheritance is done on good grounds.
• In original customary law, succession was linked to social standing and it was
only in modern customary law that properties were also succeeded by
successors.

Question 3

(i) According to section 2 of the Traditional Leadership and Governance

Framework Act 41 of 2003, the recognition of traditional communities is
conditional to complying with certain standards.

A community must be recognized as a traditional community and must be subject to a

system that involves traditional leadership in terms of that community’s customs and the
community should also observe the system if customary law11.

The premier of the province may, by notice in the Provincial Gazette, in accordance with
the provincial legislation and after consultation with the provincial house of the
traditional leaders in the province12, the community concerned and if applicable, the

11
Section 2 of the Traditional Leader and Governance Framework Act 41 of 2003
12
The Traditional Leader and Governance Framework Act
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King or queen under whose authority that community would fall, recognize a community
envisaged in subsection 1 of the act as a traditional community. In terms paragraph “a”
in section 2, provincial legislation must provide for a process that would allow for
reasonably adequate consultation with the community concerned; and prescribe a fixed
period within which the premier of the province concerned must reach a decision
regarding the recognition of the community envisaged in subsection 1 as a traditional
community.

A traditional community must transform and adopt customary law and customs relevant
to the application of the act so as to comply with the relevant principles contained in the
Bill of Rights in Constitution of the Republic of South Africa, 1996 in particular by
preventing unfair discrimination13, promoting equality and seeking to progressively
advance gender representation in the succession to traditional leadership positions.

(ii) When the Constitution of South Africa of 1996 became effective courts of
Traditional leaders were discontinued.

Chapter 2 of the Constitution of the Republic of South Africa makes provision for the
continuation of tradition authorities in section 211(2) and by implication for traditional
leaders.

This section states the following:

A traditional authority that observes a system of customary law may function subject to
any application legislation and customs which includes amendments to, or the repeal of
that legislation or those customs. According to section 211(1), “the institution status and
role of traditional leadership, according to customary law, are recognized, subject to the
constitution”.

The inclusivity of the traditional leadership in a democratic constitutional dispensation,

which is also included in the new constitution which came into effect in 1997, leads to
certain inconsistencies. The difference in degree between traditional and modern

13
Section 2(3) of the Traditional Leader and Governance Framework Act 41 of 2003
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governments, and the meaning of these differences, greatly depends on the various
functions of the government and the levels of government at which the function are
exercised.

(iii) In terms of African customary law, a child is not criminally liable.

According to Customary law, a small child and an insane person are not criminally liable
for their unlawful conduct14. It is said a child’s brain is too weak. This implies that they
do not have the mental ability to judge their actions and from this, it is evident that in
customary law consideration is also given to whether a person can be held liable for this
actions or not, that is, whether he is criminally liable15.

There is no fixed aged at which children may be held criminally liable. In former times in
would be a consideration whether a particular boy was just herding goats or whether he
has already herding cattle16. From this, it appears that there are various degrees of
liability. Also, in former times, a person who had not yet undergone the initiation
ceremonies was not considered a mature person17. Such a person was therefore not
considered fully criminally liable, regardless of age.

14
University of South Africa, African Customary Law (University of South Africa 2017) 150
15
University of South Africa, African Customary Law 150
16
University of South Africa, African Customary Law 150
17
University of South Africa, African Customary Law 150
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Bibliography

Legislation

Traditional Leader and Governance Framework Act 41 of 2003

The Constitution of the Republic of South Africa, 1996

Case law

Mabuza v Mbatha 2003 (4) SA 218

Motsoatsoa v Roro 2010 JDR 1392 (GSJ)

Mkabe v Minister of Home Affairs 2016 JDR 1157 (GP)

Fanti v Boto 2008 (5) SA 405 (C)

Books

Christa Rautenbach, Introduction to Legal Pluralism in South Africa (5th edn, LexisNexis
2018)

University of South Africa, African Customary Law (University of South Africa 2017)
 ACADEMIC INTEGRITY DECLARATION

Mmabutsi Jequelyn
Declaration: ............................................. Mmatshepho Mathabathe
1. I understand what academic dishonesty entails and am aware of U NISA’s
policies in this regard.

2. I declare that this assignment is my own, original work. Where I have used
someone else’s work I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to this style.

3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.

4. I did not make use of another student’s work and submitted it as my own.

NAME: Mmabutsi Jequelyn Mmatshepho Mathabathe

…………………………………………………………………….

59719826
STUDENT NUMBER: ……………………………………………………

IND2601
MODULE CODE: .........................................................................

SIGNATURE: …………………………………………………………….

31/03/2023
DATE: ……………………………………………………………………..

Approved – Council – 10.06.2017 -14-

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