2 July 2009 by

Customary marriage still alive and well

On 13 December 2007, the Constitutional Court handed down judgment in the matter of Fanti v Boto & Others 2008 (5) SA 405(C).

The court had to consider the requirements for a valid customary marriage and whether such marriage had been concluded in the present case. It also examined the relationship between the applicable customs and the Constitution, in light of the fact that the deceased woman's father was no longer alive.

The dispute between the parties arose from a refusal by the deceased's family to allow Fanti to bury her near his home. Fanti alleged that he had been married to Boto's deceased daughter in terms of a customary marriage. In terms of Xhosa custom, and if they were indeed so married, he would be entitled to control of her body and to bury her as he wished. The deceased's family denied the existence of any customary marriage between Fanti and the deceased. The parties were further in dispute as to the exact customs and requirements necessary for the alleged marriage to exist, and whether or not Fanti followed these customs and met the requirements.

The essential requirements for a customary marriage are: (i) a consensual agreement between two family groups with respect to the two individuals who are to be married and the lobolo to be paid; and (ii) the transfer of the bride by her family group to the family of the man (Olivier, Bekker et al; Indigenous Law (LexisNexis)).

The court, in applying these principles to the matter at hand, made the following comments:

  • Payment of lobola is merely one of the essential requirements for a valid customary marriage.
  • Where the Kraalhead (a position usually filled by the bride's father) is deceased or absent, the bride's mother can act as her 'father' and 'legal guardian'.
  • In the absence of a male Kraalhead, merely notifying the bride's mother of the intended marriage will not suffice. The marriage must take place in the head of the family or his/her representative's presence.
  • The bride must be formally handed over to the husband or his family. This takes the form of well-known ceremonies involving both families. A customary marriage is an agreement between two families and it is impossible for only one of the families to be involved therein.
  • The relevance of the above ceremonies lies in the fact that they are viewed as incorporating the essential legal requirements for a valid customary marriage to exist.

The court concluded that the applicant failed to prove the existence of a valid customary marriage. His mere notification to and the subsequent absence of the bride's family at the alleged marriage ceremony rendered the proceedings devoid of customary recognition.

Although the court confirms the requirements for a valid customary marriage, the importance of this judgment lies therein that the court empowers a bride's mother to discharge the duties of a male Kraalhead in his absence, including the negotiation and acceptance of lobola. The court accordingly develops the customary law to be in accordance with the 'spirit, purport and objects' of the Constitution.

Burton Meyer and Albert Aukema

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