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Sello married Mapule by customary law on January 1999. He later married Mpume also by customary
law rites on 10 December 2006. Three girls were born from the marriage with Mapule and two boys
were born from the marriage with Mpume. At the time when he married Mpume, Sello used the
property allotted to the house of Mapule to provide lobolo for Mpume. The lobolo received from the
customary marriage for one of his daughters of Mapule was also used to settle lobolo for one of the
sons of Mpume. Sello, Mapule and Mpume approach you for advice regarding the following issues:
1.1. The proprietary consequences of the customary marriage between Sello and Mapule.
In a customary marriage, the proprietary consequences are typically governed by the principles of
customary law. In the case of Sello and Mapule, their marriage, which took place in January 1999,
follows the traditional pattern under South African customary law. This means that property acquired
within the marriage is typically regarded as "house property" and controlled by the husband, who is
the family head. According to customary law, property that is designated to a specific wife’s house is
allocated for the benefit of that house1 . In this context, the house property may include things such
as livestock, agricultural products, and lobolo (bride price) paid for daughters from the house 2.
Therefore, the proprietary consequences of Sello’s marriage to Mapule would include property
allocated to her house, controlled by Sello but used for the benefit of the house.
1.2. The question whether the customary marriage between Sello and Mpume is valid despite
failure by Sello to obtain a court order, in terms of section7(6) of the Recognition of Customary
Marriages Act 120 of 1998, for the approval of a contract which regulates the future
matrimonial property system of his marriages.
Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 requires that when a
husband in a polygynous customary marriage wishes to marry another wife, a court order is needed
to approve a written contract regulating the property system of the marriages. However, in cases
where a second marriage is conducted without such an order, the marriage is not invalid, but it may
result in the marriage being out of community of property, and the property rights of each wife may
be separate3 . In the case of Sello and Mpume, even though Sello did not obtain the court’s approval
for the marriage, the marriage remains valid but falls outside the community of property, meaning
that the property allocated to each marriage is distinct. This reflects a broader approach to the
recognition of marriages under the Recognition of Customary Marriages Act1.
1: (IND2601 Study Guide, p. 79)
2: (Rautenbach, 2021, p. 127)
3: (Rautenbach, 2021, p. 168)
Sello married Mapule by customary law on January 1999. He later married Mpume also by customary
law rites on 10 December 2006. Three girls were born from the marriage with Mapule and two boys
were born from the marriage with Mpume. At the time when he married Mpume, Sello used the
property allotted to the house of Mapule to provide lobolo for Mpume. The lobolo received from the
customary marriage for one of his daughters of Mapule was also used to settle lobolo for one of the
sons of Mpume. Sello, Mapule and Mpume approach you for advice regarding the following issues:
1.1. The proprietary consequences of the customary marriage between Sello and Mapule.
In a customary marriage, the proprietary consequences are typically governed by the principles of
customary law. In the case of Sello and Mapule, their marriage, which took place in January 1999,
follows the traditional pattern under South African customary law. This means that property acquired
within the marriage is typically regarded as "house property" and controlled by the husband, who is
the family head. According to customary law, property that is designated to a specific wife’s house is
allocated for the benefit of that house1 . In this context, the house property may include things such
as livestock, agricultural products, and lobolo (bride price) paid for daughters from the house 2.
Therefore, the proprietary consequences of Sello’s marriage to Mapule would include property
allocated to her house, controlled by Sello but used for the benefit of the house.
1.2. The question whether the customary marriage between Sello and Mpume is valid despite
failure by Sello to obtain a court order, in terms of section7(6) of the Recognition of Customary
Marriages Act 120 of 1998, for the approval of a contract which regulates the future
matrimonial property system of his marriages.
Section 7(6) of the Recognition of Customary Marriages Act 120 of 1998 requires that when a
husband in a polygynous customary marriage wishes to marry another wife, a court order is needed
to approve a written contract regulating the property system of the marriages. However, in cases
where a second marriage is conducted without such an order, the marriage is not invalid, but it may
result in the marriage being out of community of property, and the property rights of each wife may
be separate3 . In the case of Sello and Mpume, even though Sello did not obtain the court’s approval
for the marriage, the marriage remains valid but falls outside the community of property, meaning
that the property allocated to each marriage is distinct. This reflects a broader approach to the
recognition of marriages under the Recognition of Customary Marriages Act1.
1: (IND2601 Study Guide, p. 79)
2: (Rautenbach, 2021, p. 127)
3: (Rautenbach, 2021, p. 168)
