UNIVERSITY OF SOUTH AFRICA (UNISA)
College of Law
⋄
Customary Law: Marriage and
Traditional Leadership
Assignment 2 — Semester 2, 2026
⋄
Module Code: LCP4804
Module Name: Customary Law
Assignment No.: Assignment 2
Due Date: September 2026
Semester: Semester 2, 2026
Submitted in partial fulfilment of the requirements for LCP4804
at the University of South Africa.
, UNISA | LCP4804 Customary Law: Marriage & Traditional Leadership
Question 1: Validity of the Customary Marriage between Mokgadi and Matome
The question requires an assessment of whether the exchange between the two families,
culminating in the payment of damages for the pregnancy and a set of concluded lobolo
negotiations, amounts to a valid customary marriage under the Recognition of Customary
Marriages Act 120 of 19981 (RCMA). Section 3(1) of the RCMA sets three requirements for a
valid customary marriage concluded after the commencement of the Act: both prospective
spouses must be eighteen years or older; both must consent to the marriage under custom-
ary law; and the marriage must be negotiated and entered into or celebrated in accordance
with customary law.2 Nothing on the facts suggests a difficulty with age or general consent to
a relationship, so the entire dispute turns on section 3(1)(b): whether what occurred between
the families satisfies the requirement of negotiation, entry, and celebration in accordance with
customary law.
1.1 The Statutory Framework and the Role of Living Customary Law
The RCMA deliberately refrains from prescribing a fixed checklist of rituals that every commu-
nity must observe.3 Instead, it defers to the customs of the particular community concerned,
recognising that customary law is not static but evolves through the practices communities
actually follow. The courts have consistently emphasised that this is a matter of living cus-
tomary law, not the version recorded in nineteenth-century ethnographies or textbooks, and
that the practices of the specific family and community at the relevant time carry the greatest
evidential weight.4 Two further principles frame the enquiry. First, courts have moved away
from treating any single ritual, such as the formal handing over of the bride, as an inflexible,
make-or-break requirement, since doing so risks defeating marriages the parties themselves
plainly intended and treated as valid.5 Second, because lobolo negotiations and marriage
negotiations are family matters rather than purely personal ones, the involvement of family
delegates, rather than the prospective spouses themselves, is the ordinary and expected form
the negotiation takes.6
1
Recognition of Customary Marriages Act 120 of 1998 (RCMA).
2
RCMA s 3(1)(a)–(b).
3
Mgenge v Mokoena and Another (4888/2020) [2023] ZAGPJHC 222; [2023] 2 All SA 513 (GJ) para 34, citing
the earlier SCA dictum that the Act does not specify the requirements for celebration and thereby defers to living
customary law.
4
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) paras 44–49, discussing the courts’ duty to give
effect to a community’s contemporary development of custom rather than treat historical practice as immutable.
5
Mbungela and Another v Mkabi and Others [2020] 1 All SA 42 (SCA) para 24.
6
See the description of the basic formalities of a customary marriage negotiation set out in argument before
the Constitutional Court, noting that emissaries are sent by the man’s family and that lobolo is negotiated and
Page 1 of 12
College of Law
⋄
Customary Law: Marriage and
Traditional Leadership
Assignment 2 — Semester 2, 2026
⋄
Module Code: LCP4804
Module Name: Customary Law
Assignment No.: Assignment 2
Due Date: September 2026
Semester: Semester 2, 2026
Submitted in partial fulfilment of the requirements for LCP4804
at the University of South Africa.
, UNISA | LCP4804 Customary Law: Marriage & Traditional Leadership
Question 1: Validity of the Customary Marriage between Mokgadi and Matome
The question requires an assessment of whether the exchange between the two families,
culminating in the payment of damages for the pregnancy and a set of concluded lobolo
negotiations, amounts to a valid customary marriage under the Recognition of Customary
Marriages Act 120 of 19981 (RCMA). Section 3(1) of the RCMA sets three requirements for a
valid customary marriage concluded after the commencement of the Act: both prospective
spouses must be eighteen years or older; both must consent to the marriage under custom-
ary law; and the marriage must be negotiated and entered into or celebrated in accordance
with customary law.2 Nothing on the facts suggests a difficulty with age or general consent to
a relationship, so the entire dispute turns on section 3(1)(b): whether what occurred between
the families satisfies the requirement of negotiation, entry, and celebration in accordance with
customary law.
1.1 The Statutory Framework and the Role of Living Customary Law
The RCMA deliberately refrains from prescribing a fixed checklist of rituals that every commu-
nity must observe.3 Instead, it defers to the customs of the particular community concerned,
recognising that customary law is not static but evolves through the practices communities
actually follow. The courts have consistently emphasised that this is a matter of living cus-
tomary law, not the version recorded in nineteenth-century ethnographies or textbooks, and
that the practices of the specific family and community at the relevant time carry the greatest
evidential weight.4 Two further principles frame the enquiry. First, courts have moved away
from treating any single ritual, such as the formal handing over of the bride, as an inflexible,
make-or-break requirement, since doing so risks defeating marriages the parties themselves
plainly intended and treated as valid.5 Second, because lobolo negotiations and marriage
negotiations are family matters rather than purely personal ones, the involvement of family
delegates, rather than the prospective spouses themselves, is the ordinary and expected form
the negotiation takes.6
1
Recognition of Customary Marriages Act 120 of 1998 (RCMA).
2
RCMA s 3(1)(a)–(b).
3
Mgenge v Mokoena and Another (4888/2020) [2023] ZAGPJHC 222; [2023] 2 All SA 513 (GJ) para 34, citing
the earlier SCA dictum that the Act does not specify the requirements for celebration and thereby defers to living
customary law.
4
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) paras 44–49, discussing the courts’ duty to give
effect to a community’s contemporary development of custom rather than treat historical practice as immutable.
5
Mbungela and Another v Mkabi and Others [2020] 1 All SA 42 (SCA) para 24.
6
See the description of the basic formalities of a customary marriage negotiation set out in argument before
the Constitutional Court, noting that emissaries are sent by the man’s family and that lobolo is negotiated and
Page 1 of 12
