lOMoAR cPSD| 48433225
Downloaded by Vincent master ()
, lOMoAR cPSD| 48433225
ADVANCED INDIGINOUS LAW CASES
(LCP 4804)
PART 1: FAMILY LAW
Mabuza v Mbatha 2003 (7) BCLR 743
(C)
Facts
In a divorce action between two black persons, the plaintiff sought inter alia a
declaration that Section 7 (1) of the Recognition of Customary Marriages Act 120 of
1998 should be declared unconstitutional on the grounds that it conflicted with
Section 9 of the Constitution, and a declaration that the customary marriage between
the parties regarded as a marriage in community of property as envisaged by Section
7 (2) in the Recognition of Customary Marriage Act. Section 7 (1) of the Recognition
of Customary Marriages Act provides that “the proprietary consequences of a
customary marriage entered into before the commencement of this Act continue to
be governed by customary law”.
Plaintiff instituted a divorce action against defendant. In terms of the particulars of
claim plaintiff sought a decree of divorce, custody of the minor child born of the
marriage and an order directing defendant to pay maintenance in respect of the child
born of the marriage.
The defendant opposed the divorce action. In terms of the plea filed on behalf of the
defendant, the essence of the defence was that no marriage existed between the
parties. The defendant’s position was simply that there was no valid customary
marriage between the parties.
Common cause
siSwati customary law would be applicable in the dispute between the parties; the
plaintiff and the defendant entered into relationship in 1989; the plaintiff fell pregnant
in September 1989; in or about November 1989 the defendant’s family approached
the plaintiff’s family to start negotiations for the penalty payment related to the fact
that the plaintiff fell pregnant out of wedlock, i.e. before the parties got married;
agreement was reached with regard to the payment of lobolo in the amount of R2 500
which the defendant paid in full; plaintiff and defendant lived together as husband
and wife since about 1992 when plaintiff moved into the house with the defendant;
in 1992 the plaintiff decided not to go back to the University of the North and spent
her time with the defendant as though they were married as husband and wife; in or
about June 2000 and after the parties had relocated to the Western Cape, the
relationship between them terminated; and that there was no reasonable prospect of
their relationship being normalised.
Downloaded by Vincent master
()
Downloaded by Vincent master ()
, lOMoAR cPSD| 48433225
ADVANCED INDIGINOUS LAW CASES
(LCP 4804)
PART 1: FAMILY LAW
Mabuza v Mbatha 2003 (7) BCLR 743
(C)
Facts
In a divorce action between two black persons, the plaintiff sought inter alia a
declaration that Section 7 (1) of the Recognition of Customary Marriages Act 120 of
1998 should be declared unconstitutional on the grounds that it conflicted with
Section 9 of the Constitution, and a declaration that the customary marriage between
the parties regarded as a marriage in community of property as envisaged by Section
7 (2) in the Recognition of Customary Marriage Act. Section 7 (1) of the Recognition
of Customary Marriages Act provides that “the proprietary consequences of a
customary marriage entered into before the commencement of this Act continue to
be governed by customary law”.
Plaintiff instituted a divorce action against defendant. In terms of the particulars of
claim plaintiff sought a decree of divorce, custody of the minor child born of the
marriage and an order directing defendant to pay maintenance in respect of the child
born of the marriage.
The defendant opposed the divorce action. In terms of the plea filed on behalf of the
defendant, the essence of the defence was that no marriage existed between the
parties. The defendant’s position was simply that there was no valid customary
marriage between the parties.
Common cause
siSwati customary law would be applicable in the dispute between the parties; the
plaintiff and the defendant entered into relationship in 1989; the plaintiff fell pregnant
in September 1989; in or about November 1989 the defendant’s family approached
the plaintiff’s family to start negotiations for the penalty payment related to the fact
that the plaintiff fell pregnant out of wedlock, i.e. before the parties got married;
agreement was reached with regard to the payment of lobolo in the amount of R2 500
which the defendant paid in full; plaintiff and defendant lived together as husband
and wife since about 1992 when plaintiff moved into the house with the defendant;
in 1992 the plaintiff decided not to go back to the University of the North and spent
her time with the defendant as though they were married as husband and wife; in or
about June 2000 and after the parties had relocated to the Western Cape, the
relationship between them terminated; and that there was no reasonable prospect of
their relationship being normalised.
Downloaded by Vincent master
()
