, Question 1
1.1 Proprietary consequences of the customary marriage between Sello and
Mapule
Under South African law, a customary marriage such as that between Sello and
Mapule is formally recognised in terms of the Recognition of Customary Marriages
Act 120 of 1998. The Act provides that all marriages concluded under African
customary law before or after the commencement of the Act are valid if they comply
with customary rites and practices. In the absence of a court-approved contract
regulating the matrimonial property system, the default position is that the marriage is
in community of property, meaning that all assets and liabilities acquired before and
during the marriage are jointly owned by both spouses. This includes immovable
property, movable property, bank accounts, debts, and any income generated by the
spouses’ efforts. Consequently, both Sello and Mapule have equal fiduciary
responsibilities and rights concerning the estate, and both share equally in profits and
obligations arising from the estate.¹
Children born from the marriage automatically acquire rights in the joint estate,
including rights to maintenance and inheritance, reflecting the principle that customary
marriages create both proprietary and familial obligations. South African courts, in
cases such as Shilubane v Nwamitwa [2008] ZACC 16, have emphasised that the
proprietary consequences of customary marriages must be interpreted in light of both
statutory provisions and constitutional principles, particularly equality under Section 9
of the Constitution. In practice, this means that Mapule is entitled to participate fully in
managing the joint estate and may seek redress through the courts if Sello acts
unilaterally in disposing of property. The Act further recognises that parties may enter
into contracts regulating future property systems, but these require court approval
to be enforceable. If no such contract exists, the community of property principle
governs, and all benefits and liabilities are shared equally. The recognition of joint
property ownership thus protects both the surviving spouse and children in the event
of dissolution or death.²
1.2 Validity of the customary marriage between Sello and Mpume despite failure
to obtain a court order
1.1 Proprietary consequences of the customary marriage between Sello and
Mapule
Under South African law, a customary marriage such as that between Sello and
Mapule is formally recognised in terms of the Recognition of Customary Marriages
Act 120 of 1998. The Act provides that all marriages concluded under African
customary law before or after the commencement of the Act are valid if they comply
with customary rites and practices. In the absence of a court-approved contract
regulating the matrimonial property system, the default position is that the marriage is
in community of property, meaning that all assets and liabilities acquired before and
during the marriage are jointly owned by both spouses. This includes immovable
property, movable property, bank accounts, debts, and any income generated by the
spouses’ efforts. Consequently, both Sello and Mapule have equal fiduciary
responsibilities and rights concerning the estate, and both share equally in profits and
obligations arising from the estate.¹
Children born from the marriage automatically acquire rights in the joint estate,
including rights to maintenance and inheritance, reflecting the principle that customary
marriages create both proprietary and familial obligations. South African courts, in
cases such as Shilubane v Nwamitwa [2008] ZACC 16, have emphasised that the
proprietary consequences of customary marriages must be interpreted in light of both
statutory provisions and constitutional principles, particularly equality under Section 9
of the Constitution. In practice, this means that Mapule is entitled to participate fully in
managing the joint estate and may seek redress through the courts if Sello acts
unilaterally in disposing of property. The Act further recognises that parties may enter
into contracts regulating future property systems, but these require court approval
to be enforceable. If no such contract exists, the community of property principle
governs, and all benefits and liabilities are shared equally. The recognition of joint
property ownership thus protects both the surviving spouse and children in the event
of dissolution or death.²
1.2 Validity of the customary marriage between Sello and Mpume despite failure
to obtain a court order
