, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
Question 1
(a) Is her customary marriage legally recognised and, if yes, which Act regulates her marriage?
Yes, Mrs. Xitsonga's customary marriage is legally recognised. It is regulated by the Recognition of
Customary Marriages Act 120 of 1998.¹ This is because the Act confers full legal recognition on all
customary marriages, regardless of when they were concluded.²
(b) Is the customary marriage between Mr Xitsonga and Ms Ntswaki legally recognised?
Provide reasons for your answer.
No, the customary marriage between Mr Xitsonga and Ms Ntswaki is not legally recognised (void)
for the following reasons:
Section 3(2) of the Recognition of Customary Marriages Act 120 of 1998 provides that the
parties to a customary marriage are not competent to enter into a civil marriage with another
person.³ In January 2023, Mr Xitsonga was already a party to a valid customary marriage with
Mrs Xitsonga, making him legally incompetent to enter into a subsequent civil marriage with
Ms Ntswaki.
Section 10(1) of the Recognition of Customary Marriages Act allows a man in a customary
marriage to enter into a civil marriage with his customary wife, provided his other customary
marriages (if any) have been dissolved.⁴ In this scenario, Mr Xitsonga did not marry Mrs
Xitsonga in a civil ceremony, but rather married Ms Ntswaki, a different person, in a civil
marriage. This violates the requirement that a subsequent civil marriage must be with the
existing customary spouse.
Consequences: Because Mr Xitsonga lacked the capacity to enter into a civil marriage with Ms
Ntswaki due to his existing customary marriage, the subsequent civil marriage with her is
void.⁵
Polygyny requirements: For a polygynous customary marriage concluded after 15 November
2000 to be valid, the husband must enter into a court-approved contract regulating the future
matrimonial property system of his marriages.⁶ The facts do not indicate that Mr Xitsonga
obtained such a court-approved contract, which is another reason the attempted marriage with
Ms Ntswaki is not legally recognised.
¹ PVL2601, Study Guide, p. 124.
² J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 217.
³ PVL2601, Study Guide, p. 128; J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 235.
⁴ J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 235.
⁵ J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 235.
⁶ PVL2601, Study Guide, p. 126; J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 223.
Question 1
(a) Is her customary marriage legally recognised and, if yes, which Act regulates her marriage?
Yes, Mrs. Xitsonga's customary marriage is legally recognised. It is regulated by the Recognition of
Customary Marriages Act 120 of 1998.¹ This is because the Act confers full legal recognition on all
customary marriages, regardless of when they were concluded.²
(b) Is the customary marriage between Mr Xitsonga and Ms Ntswaki legally recognised?
Provide reasons for your answer.
No, the customary marriage between Mr Xitsonga and Ms Ntswaki is not legally recognised (void)
for the following reasons:
Section 3(2) of the Recognition of Customary Marriages Act 120 of 1998 provides that the
parties to a customary marriage are not competent to enter into a civil marriage with another
person.³ In January 2023, Mr Xitsonga was already a party to a valid customary marriage with
Mrs Xitsonga, making him legally incompetent to enter into a subsequent civil marriage with
Ms Ntswaki.
Section 10(1) of the Recognition of Customary Marriages Act allows a man in a customary
marriage to enter into a civil marriage with his customary wife, provided his other customary
marriages (if any) have been dissolved.⁴ In this scenario, Mr Xitsonga did not marry Mrs
Xitsonga in a civil ceremony, but rather married Ms Ntswaki, a different person, in a civil
marriage. This violates the requirement that a subsequent civil marriage must be with the
existing customary spouse.
Consequences: Because Mr Xitsonga lacked the capacity to enter into a civil marriage with Ms
Ntswaki due to his existing customary marriage, the subsequent civil marriage with her is
void.⁵
Polygyny requirements: For a polygynous customary marriage concluded after 15 November
2000 to be valid, the husband must enter into a court-approved contract regulating the future
matrimonial property system of his marriages.⁶ The facts do not indicate that Mr Xitsonga
obtained such a court-approved contract, which is another reason the attempted marriage with
Ms Ntswaki is not legally recognised.
¹ PVL2601, Study Guide, p. 124.
² J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 217.
³ PVL2601, Study Guide, p. 128; J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 235.
⁴ J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 235.
⁵ J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 235.
⁶ PVL2601, Study Guide, p. 126; J Heaton & Hanneretha Kruger, South African Family Law, 4th edn (LexisNexis, 2015) p. 223.
