Customary marriages are marriages which are “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”.

Although the promulgation of the Recognition of Customary Marriages Act 120 of 1998 (“RCMA”) has created a regulatory framework for customary unions and sets a basis for how the Courts should resolve disputes arising out of customary unions, the Courts continue to demonstrate a great effort in developing African customary law to exist in harmony with the constitutional principles. Harmonizing the two systems requires interpretation of conflicting areas without hindering the individuality of each system.

It is difficult for Courts to enforce laws that are not legally recognized, however, precedent proves that the Courts have shown an increasing reliance on living customary law, as opposed to merely applying the official laws, when adjudicating the validity of Customary Unions.

The recent Supreme Court of Appeal judgment, handed down in the case of M.M v R.A.N (A07-2022) [2023] ZALMPTHC 2, considered and relied upon the living cultural practices in which a Venda community regards as legally binding when concluding a customary union to determine whether the Appellant actually consented to the customary marriage allegedly entered into. The Supreme Court of Appeal was also tasked with determining whether the Trial Court was correct in finding that the parties in this matter concluded a valid customary marriage.

The Supreme Court of Appeal ultimately upheld the Trial Court’s decision and found that the Appellant had indeed consented to the marriage due to the common practices and customs adopted by the parties which were considered as legally binding by their community. The consent of the parties was confirmed and found to be rooted in the following factors:

1. The Venda practice of lobola is presumed to be agreed upon and delivered from the family home of the groom or his father before the bride is handed over by her guardian – the payment of lobola creates the presumption that customary marriage followed;
2. Cohabitation of the parties creates the presumption of consent by the spouses – cohabitation in itself raises a presumption that customary marriages exist;
3. A customary marriage is presumed to have existed where children are born from the relationship.

Considering the above, the Supreme Court of Appeal found that the bride’s guardian consented to the bride being married to her suitor (the Appellant) from 1983 and thereafter, the parties moved into the Appellant’s homestead and remained in cohabitation for 17 years. In addition to the aforementioned, two children were born out of the relationship and during the subsistence of the cohabitation.

As such the Court found that, all factors considered and in light of the living customary practices of the community of the parties, that the presumption of consent is created and, therefore, the Appellant did indeed consent to the customary union by conforming to the living customs of their community.

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