ADVANCED
INDIGENOUS LAW
LCP4804
, QUESTION 1
This extract was taken from the judgement of Tshiqi J in the matter of Maluleke v
Minister of Home Affairs Case no 20/24921 [2008] ZAGPHC 129 (April 2008)
(unreported), wherein he said, “Once it is clear that the negotiations have taken
place, the next inquiry, applying the Act is whether there are any factors that show
that the marriage was “entered into” or “celebrated”. In this case, the validity of a
customary marriage was brought into question because the traditional Zulu ritual of
imvume that is meant to integrate the bride into a groom’s family was not followed
or observed before the husband passed away (died). The section of the law that
deals with the validity of customary marriage is section 3 of the Recognition of
Customary Marriages Act, which states that the prospective spouses must both be
above the age of 18 years; must both consent to be married to each other under
customary law and that the marriage must be ‘negotiated and entered into or
celebrated in accordance with customary law’.1
The Court had to consider the meaning of the words “the marriage must be
negotiated and entered into or celebrated in accordance with customary law” as set
out in section 3(b)(1) and determine how big a role the imvume ritual played in
fulfilling this requirement. The word “negotiated” was accepted by the two counsel
and referred to as negotiation in respect of the marriage, including lobola and
concluded that though the imvume had not taken place, negotiations had taken
place and had been completed.2
The dispute, however, was whether a valid customary marriage had been “entered
into or celebrated”. And the Court agreed with the Oxford English Dictionary
meaning of “celebrated” as “festivities or performance of a right or ceremony”.3
The term “entered into” was then taken to be used in the same manner that it would
have in terms of any contract.4 This term is defined by the Cambridge dictionary as
“to start to be involved in something, especially a discussion or agreement’5,
meaning that as long as the parties have chosen to be involved in something (in this
case, a customary marriage) and are in agreement, the customary marriage can be
deemed to have been entered into. The main question was thus whether the parties
to the marriage had agreed to that marriage and deemed themselves as being
married, whether or not the agreement was tacit or express.
From this case it was established that the South African courts have noticed and
accepted the evolution of customary marriage in accordance with African
Indigenous law over the years.6 Tshiqi J thus rejected stance that existed prior to
the said transformation, whereby the non-observance of the imvume ritual would
1 Section 3(a)(1) of Recognition of Customary Marriage Acts 120 1998.
2 Maluleke v Minister of Home Affairs Case no 02/24921[2008] ZAGPHC 129 (9 April 2008)
(Unreported) para 8.
3 Maluleke v Minister of Home Affairs Case no 02/24921[2008] ZAGPHC 129 (9 April 2008)
(Unreported) para 8.
4 Maluleke v Minister of Home Affairs Case no 02/24921[2008] ZAGPHC 129 (9 April 2008)
(Unreported) para 13.
5 Dictionary.cambridge.org/dictionary/English/enter-into-sth
6 Maluleke v Minister of Home Affairs Case no 02/24921[2008] ZAGPHC 129 (9 April 2008)
(Unreported) para 10
1
INDIGENOUS LAW
LCP4804
, QUESTION 1
This extract was taken from the judgement of Tshiqi J in the matter of Maluleke v
Minister of Home Affairs Case no 20/24921 [2008] ZAGPHC 129 (April 2008)
(unreported), wherein he said, “Once it is clear that the negotiations have taken
place, the next inquiry, applying the Act is whether there are any factors that show
that the marriage was “entered into” or “celebrated”. In this case, the validity of a
customary marriage was brought into question because the traditional Zulu ritual of
imvume that is meant to integrate the bride into a groom’s family was not followed
or observed before the husband passed away (died). The section of the law that
deals with the validity of customary marriage is section 3 of the Recognition of
Customary Marriages Act, which states that the prospective spouses must both be
above the age of 18 years; must both consent to be married to each other under
customary law and that the marriage must be ‘negotiated and entered into or
celebrated in accordance with customary law’.1
The Court had to consider the meaning of the words “the marriage must be
negotiated and entered into or celebrated in accordance with customary law” as set
out in section 3(b)(1) and determine how big a role the imvume ritual played in
fulfilling this requirement. The word “negotiated” was accepted by the two counsel
and referred to as negotiation in respect of the marriage, including lobola and
concluded that though the imvume had not taken place, negotiations had taken
place and had been completed.2
The dispute, however, was whether a valid customary marriage had been “entered
into or celebrated”. And the Court agreed with the Oxford English Dictionary
meaning of “celebrated” as “festivities or performance of a right or ceremony”.3
The term “entered into” was then taken to be used in the same manner that it would
have in terms of any contract.4 This term is defined by the Cambridge dictionary as
“to start to be involved in something, especially a discussion or agreement’5,
meaning that as long as the parties have chosen to be involved in something (in this
case, a customary marriage) and are in agreement, the customary marriage can be
deemed to have been entered into. The main question was thus whether the parties
to the marriage had agreed to that marriage and deemed themselves as being
married, whether or not the agreement was tacit or express.
From this case it was established that the South African courts have noticed and
accepted the evolution of customary marriage in accordance with African
Indigenous law over the years.6 Tshiqi J thus rejected stance that existed prior to
the said transformation, whereby the non-observance of the imvume ritual would
1 Section 3(a)(1) of Recognition of Customary Marriage Acts 120 1998.
2 Maluleke v Minister of Home Affairs Case no 02/24921[2008] ZAGPHC 129 (9 April 2008)
(Unreported) para 8.
3 Maluleke v Minister of Home Affairs Case no 02/24921[2008] ZAGPHC 129 (9 April 2008)
(Unreported) para 8.
4 Maluleke v Minister of Home Affairs Case no 02/24921[2008] ZAGPHC 129 (9 April 2008)
(Unreported) para 13.
5 Dictionary.cambridge.org/dictionary/English/enter-into-sth
6 Maluleke v Minister of Home Affairs Case no 02/24921[2008] ZAGPHC 129 (9 April 2008)
(Unreported) para 10
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