LESSON 2

LECTURE 1
This lesson introduces you to the study of African family law. Under this law, we explore how
personality is conceived in terms of customary law. This conception will assist us to really
understand the position of an individual in customary law and in relation to the bigger group to
which they belong.
In most cases, a person is a member of a certain family group or an ethnic group.
In a typical African group, there will be several families under it. These families also have
different houses. Get a full understanding of the picture on page 36 of the study guide. In so
doing
- Family unit = household(kraal)
- A house (for each wife) = a polygamous man (as head of the household) may have
several wives; thus two or more houses under him.
Next we need to explore the legal subjects to these families. Who is/are the bearer of rights and
duties occupying the household? See para 1.2 page 37
Who is a juristic person?
What influenced the conception of legal personality in customary law: A person’s status?
Status explained: a person’s competency
In customary law rights and duties shared in a group. Extent of share, depended on status
within the group. What influences status in customary law
- AGE
- SEX/GENDER
- RANK- (family rank and house rank)
NB you must be able to explain the above factors that contribute to conception of a person’s
status. Moreover, be able to distinguish between Family rank and House rank.

LECTURE 2

Now that you understand who and how a person could be a bearer of rights and duties in
customary law, proceed to explore the right to founding a family under customary law.
-Important to distinguish from the outset the three types of customary marriages that have
historically existed/exist in South Africa. THE IMPORTANT POINT here is that all three are still
valid and recognized now in South Africa. SEE Page 48- 49 of the guide.
Take time to distinguish between Traditional customary marriages; Customary Union
marriages as well as Customary Marriages!!

First step to marriage! Betrothal

NB refer to your prescribed book for a discussion on the topic.
Specifically read on consequences of betrothal in customary law as well as ways of
terminating betrothal contracts in customary law.
Questions on page 50 of your study guide will assist you to understand the above.

LECTURE 3
Prescribed book: page 84-91
NOTE: The Introduction of the RCMA has a retrospective effect towards the recognition of
customary marriage. This means that marriages existing before and after the Act became
effective are fully recognized and legal.
Marriages before = Traditional and the Customary Union marriages
Marriage after = The Customary marriage
Legal requirements of marriages entered before the RCMA
Do a three-column table:
TRADITIONAL CUSTOMARY UNIONS IN CUSTOMARY
MARRIAGES KwaZulu Natal/outside MARRIAGES
KZN
PLEASE NOTE:
1. There are absolute marriage requirements and there are ancillary requirements to a
marriage. The former usually means that if they are not fulfilled, they will make a
purported marriage invalid. The ancillary requirements will render a marriage voidable to
the extent of that requirement.
2. For instance, in customary marriages note the absolute requirements of this marriage on
page 61 to 64 (3.3.1to3.3.3) of the study guide.
3. Therefore, Registration of a customary marriage is for instance not an absolute
requirement for a customary marriage in terms of the RCMA.
4. Please read the contents of all the above marriage requirements and understand what
they entail.
5. THEREFORE, a question may be posed (maybe a scenario) where you would need to
show that you understand and distinguish which marriage type is relevant and thus what
requirements are applicable.
6. Therefore, the year in which the marriage is said to have been concluded is very
important for you to make this distinction. NOTE that as much as the RCMA is cited as a
1998 legislation, it only became effective on 15 November 2000, and thus only making
these marriages only valid for persons contracting or entering into customary marriages
after this date!

LECTURE 4

1. You will note that the consequences of customary marriages are broadly discussed by
comparing marriages before and after the RCMA.
2. We distinguish between 3 types of consequences.

 General consequences
 Personal consequences
 Proprietary consequences
Note
1. Section 6 of the RCMA120 of 1998 which accords equal status to spouses in customary
marriages as opposed to the previous marriage relationships where the man is the
overall guardian of all family members including the wife.
2. Proprietary consequences of all customary marriages are regulated and provided for
specifically in the RCMA. See s7 (1) and s7 (2). However, reforms to the interpretation
 of these sections have been pronounced by the courts, particularly in the case of
Gumede v The President of the RSA 2009 (3) SA 152 (CC). Read this case and
understand how the reforms have been formulated.
3. Equally important are the reforms to the conception of polygamous marriages in terms of
section 7(6) to section 7(9). Again interpretation of section 7(6) has been raised before
the courts in the case of Mayelane v Ngwenyama 2013 (4) SA 415 (CC). Please read
the case as well.

LECTURE 5
Prescribed reading: pages 101-107
It is a known fact that some marriages will end up being subject to termination.
Although methods of terminating a marriage can either be through divorce or death, the former
method of dissolving a marriage, is the one that will be focused on.
The general rule is that in terms of the RCMA ALL CUSTONARY MARRIAGES (BEFORE OR
AFTER) are to be dissolved by a court order.
Note:
1. The ground for dissolving a customary marriage. (Section 8(1) of the RCMA.
2. Proving the existence of the ground
3. Effect of other legislation ( Divorce Act as well as the Mediation in Certain Divorce
Matters Act)
Note that divorce will have effect on various factors;

 Marriage goods- what happens to these when marriage is dissolved? ( See pages 83-84
of the study guide)
Factors taken into account regarding the return of marriage goods; namely
- The amount of blame on either side
- Number of children born
- Portion of marriage goods already delivered
 Consequences for dissolution of the marriage
-These may relate to how it affects the spouses and how it affects children of the marriage.
(The personal consequences). See pages 84-86 of the study guide.
- These may relate to how the property of the marriage will be distributed after the divorce.
See page 86 of the study guide.
Note
1. How the RCMA specifically provides for the regulation of sharing the property upon
divorce. (Section 8(4)(a).
2. The application of the divorce Act on this regulation.
3. Forfeiture of benefits.
4. The order that the courts have to make relating to customary marriage circumstances.
MULTIPLE CHOICE QUESTIONS

1. Which of the following statements is NOT true in accordance with the

simple ranking system?

A) A married woman cannot establish a house.

B) The wives are ranked by their order of marriage.
C) The husband has control of the property of the group as a whole.
D) The wives and children only have a claim to their individual house property.

3. Which of the following statements is NOT correct? The Recognition of

Customary Marriages Act 120 of 1998 gives recognition to …

A) customary marriages entered into before the Act.

B) all customary unions.
C) customary marriages entered into before the Act.
D) customary and civil marriages.

4. Which one of the following is considered a method of dissolution of a

customary marital union?
A) Automatic dissolution if the wife cheats
B) Dissolution by the King’s court
C) Dissolution by death of one spouse
D) when either spouse leaves their matrimonial home
 5. Which of the following is NOT a requirement for a customary Union
marriage according to the Code of Zulu Law?

A) A public declaration by the bride consenting to the customary marriage.

B) A public declaration of the groom consenting to the marriage.
C) Consent of the bridegroom’s father to the customary marriage.
D) Consent of the bride’s father to the customary marriage

6. Which of the following statements apply to Lobolo?

A) It is a separate contract in a customary marriage.

B) It may be described as cattle or other property which, in consideration of an
intended customary or civil marriage, the intended groom delivers to the bride’s
family
C) It entitles a man to the child-bearing capacity of his wife after it has been paid to
her family group
D) It may be delivered and transferred only during the bride’s lifetime.

7. X and Y entered into a marriage on the 26 of August 1998 in Kwa-Zulu

Natal. X, the husband, manages the family assets and controls the
acquisition and disposal of such assets as the family head. According to
the judgement in the case of Gumede v The President of the RSA (3) SA
152 (CC) which of the following statements is correct regarding the legality
of X’s actions?

A) The proprietary consequences of customary marriages entered into before the

commencement of the Act should continue to be governed by customary law and
thus, the husband has the right of control over the marriage property.
B) Both spouses in a customary marriage, irrespective of when it was concluded,
have the right to control the marriage property thus the husband’s actions are
incorrect.
C) Section 20 of the Natal Code of Zulu law states that the husband is the head of
the family and therefore X has exclusive rights to control the marriage property.
D) Customary marriages entered into before the commencement of the act are not
regulated by Act 120 of 1998 and therefore X’s actions valid.

8. Which one of the following is not a requirement for a traditional customary

marriage?
 A) The man and the woman concerned must not be related to one another within
the prohibited degree of kinship.
B) There must be consensus between the two family groups concerned regarding
the negotiations to the marriage.
C) The bride must be transferred by her family to the man’s family group.
D) The man must not already be involved in a marital union.

9. Regarding the important requirements of a lobolo contract, which one of

the following is NOT correct?

A) The father of the bride must accept the lobolo payment.

B) Lobolo payment must only be in the form of cattle.
C) The conclusion of the lobolo will result in the transfer of the bride to effect the
marriage.
D) All or part of the lobolo payment must be transferred to the bride’s family before
the bride is transferred.

10. Which of the following sections of legislation was NOT considered

constitutionally invalid in the case of Gumede v The President of the RSA
(3) SA 152 (CC)?

a. Section 7(1) of the Recognition of Customary Marriages Act.

b. Section 7(2) Recognition of Customary Marriages Act.
c. Section 20 of the Kwa Zulu Act on Code Law
d. Section 6 of the Recognition of Customary Marriages Act

11. In 1960, A (a 17-year-old boy)) and B (a 16-year-old girl) and their respective
fathers concluded an agreement in terms of which A had to deliver six head
of cattle and R5 000 as lobolo to B’s family. A delivered the lobolo agreed
upon and, shortly afterwards, B was allowed to reside with A and his
family. In 1962, twin daughters were born to them, namely C and D.
However, B experienced some complications during childbirth and died
shortly afterwards. A few years after her death, A discovered that B was
actually a member of the clan of his mother’s people. Which of the
following statements is false?
A) A and B entered into their marriage in 1960, which was before the Recognition of
Customary Marriages Act 120 of 1998 came into operation. Therefore, in
KwaZulu- Natal, section 38(1) of the Codes of Zulu Law would apply.
B) The prohibition against marrying within the prohibited degrees of kinship extends
to KwaZulu-Natal, their marriage is not valid.
C) Their marriage is invalid because at the time of their union, they were considered
to be minors in Kwa-Zulu Natal.
D) The facts do not indicate that B made a public declaration to the official witness
to the effect that her union with A was taking place with her consent. As a result,
there is no legally valid customary union between B and A

12. A and B are married under customary law. During the subsistence of the
marriage, A becomes involved me with C and desires to marry under
common law. In lieu of the Recognition of Customary Marriages Act, which
of the following statements is true?

a. A and C can enter into a civil marriage under the condition that A and B convert
their marriage into a civil marriage.
b. A and C cannot enter into a civil marriage but can only enter into a customary
marriage.
c. A and C can enter into a civil marriage which will automatically nullify A and B’s
customary marriage.
d. A and C may only enter into a civil marriage with the express consent of B.

13. A (Husband) and B (wife) are betrothed to one another. While in the initial
stages of the betrothal, A and B proceed to have sexual relations and B
falls pregnant. A transfers the marriage goods to B’s family and before the
marriage process is completed is awaiting the completion of the betrothal
process when his B falls into labour and tragically passes away. In
consideration of the marriage goods, which of the following statements
apply?

A) Where the betrothal is terminated by the death of one of the betrothed, the
marriage goods are returned to the giver (the man’s group).
B) A is considered to be the cause of the B’s death so the marriage goods should
not be returned to A.
C) B passed away therefore A should be compensated for his loss.
D) B’s family must deduct a damage price from the cattle and return the remainder
to A