AFRICAN CUSTOMARY LAW 171 CASES:
Study Unit 4 Cases: Family Law:
Mabena v Letsoalo 1998 (2) SA 1068 (T)
● Nature of application:
○ Appellant: father of the deceased
○ Respondent: Ms Letsoalo (her deceased husband was Mr Mabena)
○ The late Mr Mabena passed away in April 1994, and his estate was administered by the
magistrate of Pretoria-North in accordance with s 23 of the Black Administration Act; the
Minister of Justice may determine that the property of the deceased shall devolve in as if
he had been out of community of property. The respondent averred that she and the
deceased were parties to a customary marriage; the magistrate requested the Director-
General of Justice to request the Minister to obtain confirmation from the deceased’s
parents that the customary marriage existed. The parents denied its existence and the
minister held an inquiry to ascertain whether the marriage existed or not, whereafter she
found one did exist. The father of the deceased then lodged an appeal against this
decision.
○ The respondent testified that she became pregnant in 1988, that the family of the
deceased paid R200 ‘damages’ to the respondent’s family, and that the deceased
purchased a house for them in 1988. Lobolo needed to be arranged, but since relations
between the respondent and the deceased’s parents were poor and the latter weren’t
prepared to agree to a marriage, the deceased entered into negotiations with the
respondent and her mother for a lobolo of R600; there was no father figure around
because he abandoned the family when the respondent was very young. The uncle of
the defendant was present to receive the lobolo.
○ The respondent is Pedi while the deceased was Ndebele; the marriage was apparently
performed according to Pedi custom. A marriage ceremony took place.
○ The parents of the deceased denied any knowledge of the customary marriage, and
testified that the couple had never lived together.
● Legal question:
○ Was there a valid customary marriage (between the deceased and respondent) when
the mother of the bride was involved in lobolo negotiations and was the one who gave
consent?
● Arguments:
○ Appellant:
■ The appellant and his wife didn’t consent to the customary marriage, therefore it
could not exist; the father of the bride did not consent to the marriage, nor was he
, involved in the negotiations of lobolo; a customary marriage is a union between
two family groups.
■ It was argued that the bride was not handed over.
■ In terms of customary law, a female person cannot be the guardian of the bride, it
has to be a male person, in the ordinary course her father. As the lobolo
agreement in casu was contracted by the respondent's mother, no valid customary
marriage ensued.
○ Respondent:
■ According to Pedi law, the respondent claimed that they felt this customary law to
be valid according to customs at the time.
● Decision:
○ There was a valid customary marriage; the mother of the future bride could enter into
lobolo negotiations and act as the guardian in giving consent to the marriage under living
customary law.
● Ratio decidendi:
○ Family union and consent: While it is true that a customary marriage is ‘a group concern,
legalising a relationship between two groups of relatives’, it does not follow that the
father of the bridegroom’s consent or his participation in the lobolo negotiations is
essential to the existence of a customary marriage. The judge agreed with previous
decisions that felt if the prospective bridegroom is independent and has his own estate
(no longer under the guardianship of his father), he can start lobolo negotiations and is
the one who must consent to the marriage. Therefore, it is not necessary for the father to
consent. It is merely usual that a young man does not possess sufficient means to
deliver lobolo for his first wife, thus the father provided lobolo, consented to the marriage
and participated in negotiations.
○ Handing over of the bride: it is clear that the respondent did go and live with the
deceased after the marriage; as customary law then required no strict requirements for
the handing over of the bride, the appellant's argument that the bride was not handed
over is not valid.
○ Women unable to be the guardian: According to traditional customary law the mother of
the bride could not be the guardian of her daughter, as she was herself under the
guardianship of her husband or of her own father or of their successors; however, the
evidence in this case was that the respondent’s father had abandoned the family and the
mother functioned as head of the family (consisting only of the two women); the court felt
that living customary law, developing traditions, and Pedi customary law allowed for
instances in practice where mothers can negotiate lobolo and consent (as various
reports and court decisions have similarly found).
, ■ Customary law is living, flexible and ever-changing, and courts must develop
customary law in line with the constitution (s9 of the constitution: everyone must
be treated equally). A rule that a bridegroom can negotiate for and pay lobolo has
met the demands of society; moreover, customary law exists not only in the
‘official version’ as documented by writers but in ‘living law’.
Mabuza v Mbatha 2003 (7) BCLR 743 (K)
● Nature of application:
○ Plaintiff: wife
○ Defendant: husband
○ The plaintiff instituted a divorce action against the defendant, sought custody of the
minor child and an order directing the defendant to pay maintenance. The defendant
opposed the divorce action and claimed that no customary marriage ever existed.
○ The parties agreed that the constitutional challenges set out in (c) (s 7(1) of the
Recognition of Customary Marriages Act is unconstitutional as it conflicts with s (9) of
the constitution) & (d) (customary marriage should be regarded as a marriage in
community of property as envisaged by the Act) of the plaintiff’s particulars of claim be
dealt with separately, and after the court decides whether there is a valid customary
marriage.
○ Facts that are common case: siSwati law would be applicable; the plaintiff and defendant
entered into a relationship in 1989; the plaintiff fell pregnant in 1989 and damages and
lobolo were paid; the plaintiff and defendant lived together as husband and wife; the
defendant had indicated that he was married and referred to the plaintiff as his wife; the
defendant attempted to get a divorce in terms of customary law.
○ It was argued that no customary marriage took place in terms of Siswati customary law
(the ukumekeza custom).
● Legal question:
○ Is ukumekeza a requirement for a valid siSwati customary marriage?
● Arguments:
○ The plaintiff felt there were three requirements to be met: lobolo, ukumekeza (integration
of the bride into the bridegroom’s family), and the form of handing over; the plaintiff felt
these were met except the requirement relating to the ukumekeza custom because the
husband and his family waived this requirement, and were okay with them not complying
with the customs. The plaintiff further said that because both families were involved, she
consented to the marriage, lobolo was paid, and she was handed over, that the
requirements for siSwati customary law had been met.
■ Witness for the plaintiff: an expert professor who held that, though he was not an
expert in siSwati custom, there should be no reason that failure to observe some
, of the rituals or ceremonies cannot be waived or condoned by the parties in terms
of an agreement between them. He felt it was inconceivable that ukumekeza was
so vital that it could not be dispensed with by agreement between the parties.
○ The defendant argued that the custom is integral to a valid customary marriage and
cannot be dispensed with.
■ Witness for the defendant: expert and chief advisor to the Matsamo Tribal
AUthority Council in Mpumalanga; claimed that siSwati custom never changes or
evolved, and that ukumekeza is indispensable as it makes a woman a wife; for
purposes of valid marriages according to siSwati customary law, all that one needs
is simply the ukumekeza custom, and the other requirements, such as payment of
lobolo and consent of the parties, are not so material.
● Decision:
○ There was a valid customary marriage; a decree of divorce is granted; custody is
awarded to the plaintiff; the defendant is ordered to pay maintenance.
○ The court believed the plaintiff’s version and was not impressed with the defendant;
found it impossible to believe that the only requirement for becoming a wife was through
ukumekeza.
○ The judge appreciated living customary law in acknowledging that the ukumekeza
custom had probably developed to be different from traditional application, like so many
other customary traditions.
● Ratio decidendi:
○ African customary law has evolved and was always flexible in application. There is thus
no doubt that the siSwati custom of ukumekeza (ie the formal integration of the bride into
the family of the bridegroom, the custom being one of the three requirements for a valid
marriage according in siSwati customary law), like so many other customs, has
somehow evolved so much that it is probably practised differently from what it was
centuries ago. It is inconceivable that ukumekeza has not evolved and that it cannot be
waived by agreement between the parties and/or their families in appropriate cases.
○ 1) It is problematic to continue to apply customary law as it was codified under apartheid;
after African customary law was formally recognised in terms of the Black Administration
Act 38 of 1927, it was never allowed to develop and therefore take its rightful place in
this country. Section 11(1) of the Black Administration Act recognised African law
provided that it was not opposed to the principles of public policy or natural justice. To
continue to apply it as such is fundamentally flawed as it reduces African law (which is
practised by the vast majority in this country) to foreign law in Africa!
○ 2 & 3) If it is accepted that African customary law is recognised in terms of the
Constitution of the Republic of South Africa Act 108 of 1996 [see ss 9(3) (equality), 15(3)
(a) (allowing legislation recognising customary marriage), 30 and 31 (right to culture)]
