Module 8

Question 1

When did the Recognition Act come into existence?

Answer 1

Recognition of Customary Marriages Act came into existence in November 2000, to regulate customary marriages.

Question 2

What is customary law in section 1 of the REcognition Act defined as?

Answer 2

Customary law is defined by section 1 of the Recognition Act as the customs and usage traditionally observed among the Indigenous African peoples of South Africa and which form part of culture of those people

Question 3

How was customary law treated in colonial times?

Answer 3

During colonial times customary marriages were treated differently from civil marriages, this included a separate court system. Colonial legal systems often retained pluralism in relation to marriage and inheritance but imposed colonial rules in areas of commercial importance.

Question 4

What are the common elements in South Africa customary marriage?

Answer 4

• Linkage between families- cooperation and involvement of the families is important
• Payment of lobola
• Possibility of polygyny (more than one woman)
• Communal ownership of marital property

Question 5

What does section 2(1) of the Recognition Act state?

Answer 5

Section 2(1) of the Recognition Act states that a valid customary marriage is for all purposes recognised as a valid marriage. Customary marriages now have the same status and standing as non-customary civil marriages.

Question 6

What is the objective of the Recognition Act?

Answer 6

The objective of the Recognition Act was to improve the position of women in customary marriages and in this way ensure that the customary marriage rules don’t infringe section 9(3) of the Constitution.

Question 7

Which marriage takes precedent customary and civil marriage?

Answer 7

Civil marriage took precedence and ‘dissolved’ customary marriages. They were different property systems applying to customary marriages than those to civil marriages.

Question 8

What are the requirements for a valid customary marriage according to section 3 of the Act?

Answer 8

• Both prospective spouses must be 18, if under 18 consent from guardians and the Minister of Home Affairs is needed
• Both must consent to the marriage
• No one must be a spouse in an existing civil marriage with another person
• The marriage must be entered into and celebrated in accordance with customary law

Question 9

What are the 3 requirements of celebrating a customary marriage in the Motsoatsoa v Roro case ?

Answer 9

• The families must negotiate and agree on the marriage - their must be a negotiation between representatives of the two families in which they agree that the two families will be linked through the proposed marriage
• Bridewealth must be agreed upon however it doesn’t have to be paid in full or at all and doesn’t have to be in cattle.
• The bride must be handed over to the groom’s family

Question 10

What is stated in Mabena v Letsoalo case?

Answer 10

In the Mabena v Letsoalo case it was stated that the negotiation of bridal wealth can be negotiated by mothers, and received by them when the father has abandoned the family.

Question 11

What are the cases that deal with the handing of the bride?

Answer 11

In Mbungela v Mkabi case it shows that the handing over of the bride is not an absolute requirement and can be waived by the families. The marriage will still be a valid civil marriage. As stated in Malukeke there must be some evidence that the wife has been formally incorporated into the husband’s family

Question 12

What does section 3(6) of the recognition Act state?

Answer 12

Section 3(6) of the recognition Act provides that spouses may not conclude a customary marriage if they are prohibited from marrying each other by blood or affinity

Question 13

What does section 10(4) of the recognition Act state?

Answer 13

Section 10(4) states that people who are involved in a civil marriage may not enter into a customary marriage during the subsistence of the civil marriage

Question 14

How can parties enter into a customary and civil marriage?

Answer 14

To get into a customary marriage and a civil marriage it needs to be between two of the same people, and only when the customary marriage comes first. If you have a civil marriage then a customary marriage your customary marriage is not recognised

Question 15

When can a customary marriage be polygamous?

Answer 15

• The recognition act provides for polygyny, it is possible for a man to have more than one wife simultaneously.
• A marriage to a second wife must meet all the requirements of section 3.
• In the Mayelane case it was found that if the first wife is not informed of the impending marriage, the second marriage will not be recognised.

Question 16

What does section 4 of the Recognition Act state?

Answer 16

Section 4 of the Recognition Act states that the marriage must be registered by any of the spouses within 3 months. Although it is compulsory, failure to register does not render the marriage invalid, you can still prove the marriage through other means. Customary marriage entered into before the commencement of the Act must be registered within 12 months.

Question 17

What does section 4(4) of the REcognition Act state?

Answer 17

According to section 4(4) if the registering officer is satisfied that the spouses concluded a valid customary marriage, they will register the marriage by recording the identity of the spouses, the date of the marriage, any lobola agreed to and other prescribed particulars, then a marriage certificate will be granted. The registration provides prima facie proof of the marriage

Question 18

What does MG v BM state?

Answer 18

In MG v BM the court held that post mortem registration is allowed.

Question 19

What does section 6 of the Recognition Act state?

Answer 19

Section 6 of the Recognition Act provides for the equal status and capacity of spouses. The abolition of marital power and equalisation of the spouse’s status and capacity is one of the important changes to the traditional patriarchal nature of customary marriage. This applies to both polygamy and monogamous marriages

Question 20

What does section 4(7) of the REcognition Act state?

Answer 20

Section 4(7) of the Recognition Act empowers the court to cancel the registration of a customary marriage upon application

Question 21

What is the matrimonial property system in customary marriages according to the Recognition Act?

Answer 21

The Recognition Act states that monogamous marriages concluded after the enactment of the Recognition Act are in section 7(2) it states that the marriages are in community of property as applied by civil marriages and is the default. Spouses in customary marriage can conclude an ANC to introduce accrual or if stated to exclude it

Question 22

What is the patrimonial property system in customary marriages according to the Recognition Act?

Answer 22

The patrimonial consequences of monogamous marriage are regulated in the same way as civil marriages. If spouses in a customary marriage enter into an antenuptial contract that excludes community of property their marriage will be subject to the accrual system according to section 2 of the Matrimonial Property Act, unless expressly excluded.

Question 23

What was held in Gumede case?

Answer 23

In the Gumede case, Mrs Gumede married in terms of the Zulu custom and challenged the rules that gave her husband everything but left her penniless. The Constitutional Court found that the sections of Zulu code were unconstitutional because they constituted unfair discrimination on the grounds of sex and gender. Section 7(1) and (2) of the Recognition Act were unconstitutional and invalid because they discriminated against women depending on when they had married.

Question 24

What was the held in Gumede regarding the matrimonial property systems of monogamous marriages before the Recognition Act?

Answer 24

The court held in Gumede that all monogamous customary marriages entered into without an antenuptial agreement should be deemed to be in community of property, regardless of the date of the marriage. Spouses who entered into a monogamous customary marriage after the commencement of the Recognition Act may apply to change their matrimonial property system in terms of section 21 of the Matrimonial Property Act.

Question 25

What does section 7(4) of the Recognition Act state?

Answer 25

Section 7(4) deals with the property consequences of polygynous marriages, It states that if a man wants to take a subsequent customary marriage he must go to court for permission to change the system of the existing and future marriages.

Question 26

What was the held in Ramuhovhi regarding the matrimonial property systems of polygnous marriages before the Recognition Act?

Answer 26

Polygnous customary marriages before the enactment of the Recognition act states that the old customary marriages such as out of community of property applied. The Ramuhovhi case declared section 7(1) in regards to polygynous marriages unconstitutional. Personal property remains out of the community of property, however the house property is equally shared by the husband and wife of each house and further family property is shared equally by the husbands and wives. This matrimonial system as stated in Ramuhovhi has been incorporated into section 7(1) of the Recognition Act

Question 27

What does section 7(6) of the RecognitionAct state?

Answer 27

Section 7(6) of the Recognition Act regulates the proprietary consequences of polynous customary marriages entered into after the commencement of the Recognition Act. It provides that if a husband in a customary marriage wishes to enter into a further marriage with another woman, he must make an application to the court to approve a written contract regulating the matrimonial system applicable to his existing and future marriages. All interested parties must join the application

Question 28

What does section 7(7) of the RecognitionAct state?

Answer 28

Section 7(7) states that the court may refuse the application, or to approve it subject to amendment. When considering the application the court must take into account all the relevant circumstances of family groups that would be affected if the application were granted. The court must ensure equitable distribution of the matrimonial property.

Question 29

What did the Mayelane the SCA state?

Answer 29

In Mayelane the SCA adopted a purposive interpretation of section 7(6) and found that the main purpose of the section was to regulate the proprietary consequences of a polygamous marriage and protect the proprietary of both the existing and prospective spouses. It was held that non-compliance with section 7(6) of the Recognition Act would not affect the validity of the second marriage. It was held that the second customary marriage would be valid but out of community of property.

Question 30

What does section 8 of the Recognition Act state?

Answer 30

Section 8 of the Recognition Act provides that a customary marriage may be dissolved by divorce only on the grounds of irretrievable breakdown of the marriage. The Recognition Act does not provide for divorce on the grounds of mental illness or continuous unconsciousness. Divorce may only be granted by leave of the court.

Question 31

What does the Gumede case state about Divorce?

Answer 31

In Gumede case it is concluded that section 8(4)(a) of the Recognition Act empowered a divorce court to divide marital assets without the limitations imposed in section 7 of the Divorce Act.

Question 32

What does section 8(4)(a) of the Recognition of the Act state?

Answer 32

The purpose of section 8(4)(a) is to give the court the discretion to effect an equitable outcome when dissolving the marriage. This power is regardless of their matrimonial property system or time they entered into it.

Question 33

What does section 10(1) of the Recognition Act state?

Answer 33

Section 10(1) of the Recognition Act states that couples who are married to each other in terms of a monogamous customary marriage may marry each other in terms of civil law; this marriage will be converted into a civil law marriage.

Question 34

What does section 10(4) of the Recognition Act state?

Answer 34

Section 10(4) states that couples married in terms of civil law may not enter into a valid customary marriage with each other