, (a) Did a valid customary marriage come into being between Bantu and Dineo?
To determine whether a valid customary marriage came into existence, the requirements set out in
the Recognition of Customary Marriages Act 120 of 1998 must be applied. Since the events
occurred in June 1999 (after the Act but before its commencement date of 15 November 2000), the
validity of the marriage must still be assessed against the statutory requirements for recognition.
In terms of section 3(1) of the Act, a customary marriage is valid if:
both prospective spouses are above the age of 18 years;
both consent to be married under customary law; and
the marriage is negotiated and entered into or celebrated in accordance with customary law
(Recognition of Customary Marriages Act 120 of 1998 s 3(1)(a)–(b)).
Where one of the parties is a minor, additional requirements apply. Section 3(3) provides that if
either prospective spouse is under 18, the consent of both parents or a legal guardian is required,
and the Minister may grant written permission for such a minor to enter into the marriage
(Recognition of Customary Marriages Act 120 of 1998 s 3(3)–(4)).
Academic commentary confirms that a person below 18 cannot conclude a valid customary
marriage without the necessary parental or guardian consent or other authorised consent
mechanisms.
In this case:
Bantu (22) meets the age requirement.
Dineo (17) is a minor; therefore parental consent and possibly ministerial consent were
required.
Although lobolo was agreed upon and delivered and Dineo was allowed to reside with Bantu —
which may indicate negotiation in accordance with custom — lobolo payment itself is not
decisive for validity and merely evidences negotiation under customary law.
There is no indication that the required parental consent (beyond the lobolo agreement) or
ministerial consent was obtained. If these formal requirements were not satisfied, the marriage
would not meet the statutory validity requirements. Moreover, the Act emphasises that even full
payment of lobolo does not make a marriage valid where other legal requirements are not met.
Conclusion:
On the available facts, a valid customary marriage likely did not come into being because Dineo was
a minor and there is no evidence that the legally required consent and authorisation were obtained.
The negotiation and payment of lobolo and subsequent cohabitation alone are insufficient to
establish validity under the Recognition of Customary Marriages Act.
To determine whether a valid customary marriage came into existence, the requirements set out in
the Recognition of Customary Marriages Act 120 of 1998 must be applied. Since the events
occurred in June 1999 (after the Act but before its commencement date of 15 November 2000), the
validity of the marriage must still be assessed against the statutory requirements for recognition.
In terms of section 3(1) of the Act, a customary marriage is valid if:
both prospective spouses are above the age of 18 years;
both consent to be married under customary law; and
the marriage is negotiated and entered into or celebrated in accordance with customary law
(Recognition of Customary Marriages Act 120 of 1998 s 3(1)(a)–(b)).
Where one of the parties is a minor, additional requirements apply. Section 3(3) provides that if
either prospective spouse is under 18, the consent of both parents or a legal guardian is required,
and the Minister may grant written permission for such a minor to enter into the marriage
(Recognition of Customary Marriages Act 120 of 1998 s 3(3)–(4)).
Academic commentary confirms that a person below 18 cannot conclude a valid customary
marriage without the necessary parental or guardian consent or other authorised consent
mechanisms.
In this case:
Bantu (22) meets the age requirement.
Dineo (17) is a minor; therefore parental consent and possibly ministerial consent were
required.
Although lobolo was agreed upon and delivered and Dineo was allowed to reside with Bantu —
which may indicate negotiation in accordance with custom — lobolo payment itself is not
decisive for validity and merely evidences negotiation under customary law.
There is no indication that the required parental consent (beyond the lobolo agreement) or
ministerial consent was obtained. If these formal requirements were not satisfied, the marriage
would not meet the statutory validity requirements. Moreover, the Act emphasises that even full
payment of lobolo does not make a marriage valid where other legal requirements are not met.
Conclusion:
On the available facts, a valid customary marriage likely did not come into being because Dineo was
a minor and there is no evidence that the legally required consent and authorisation were obtained.
The negotiation and payment of lobolo and subsequent cohabitation alone are insufficient to
establish validity under the Recognition of Customary Marriages Act.
