Lecture 17

Question 1

Customary law

Answer 1

“customs and usages traditionally observed among the
indigenous peoples of South Africa and which form part of the culture
of those people”

Question 2

Customary marriage

Answer 2

“a marriage concluded in terms of customary law”

Question 3

Section 2 of the RCMA

Answer 3

1) (1) A marriage which is a valid marriage at customary law and existing at the commencement of this Act is for all purposes recognized as a marriage.

(2) A customary marriage entered into after the commencement of this Act, which complies with the requirements of this Act, is for all purposes recognized as a marriage.

(3) If a person is a spouse in more than one customary marriage, all valid customary marriages entered into before the commencement of this Act are for all purposes recognised as marriages.

(4) If a person is a spouse in more than one customary marriage, all such marriages entered into after the commencement of this Act, which comply with the provisions
of this Act, are for all purposes recognised as marriages.

Question 4

Customary law engagement
* Section 3(1)(b) of the RCMA:

Answer 4

1) The marriage must be negotiated and
entered into or celebrated in accordance with customary law”
2) Negotiation between the two families

Question 4

Lobolo

Answer 4

“property in cash or kind whether known as lobolo, bogadi,
bohali, xuma, lumalo, thaka, ikhazi, magadi, embheka or by any other
name, which a prospective husband or the head of his family undertakes
to give to the head of the prospective wife’s family in consideration of a
customary marriage”

Question 5

Customary law engagement

Answer 5

Claim for breach of promise?
* Transfer of property
* Gifts
* Lobolo

Question 6

Validity requirements for a customary marriage

Answer 6

1) Consensus
2) Capacity to act
3) Lawfulness
4) Celebratory
formalities

Question 7

Validity requirements

Answer 7

1) Applicable to marriage concluded after the commencement of the
RCMA
2) Prospective spouses must both be above the age of 18 years
3) Both must consent to the be married to each other under customary law
4)The marriage must be negotiated and entered into or celebrated in accordance with customary law

Question 8

Ukuthwala and consensus