In closing this year on a high note, Lawyers for Human Rights have secured a judgment securing the property rights of a widow.
The Gauteng Regional Court in Mamelodi declared that Rose Masango had in fact been in a valid customary marriage with her deceased husband.
Their failure to register this customary marriage in terms of the Recognition of Customary Marriages Act does not mean there was no valid customary marriage, because registration is not a validity requirement.
This declaration means that Masango’s property rights, as the lawful widow of the deceased, are protected and cannot be interfered with or denied by the deceased’s family.
Most importantly, she cannot be evicted from the home she and her husband shared, Nothando Shongwe of LHR said. Masango (the applicant) faced eviction after her deceased husband’s family disputed that they were married.
She subsequently turned to court for a declaratory order to recognise the customary marriage entered into between herself and the deceased, Zobane Mthimunywe.
They are both from the Ndebele culture and met in 2010 when she visited her older brother in Mamelodi. They stayed in contact when she returned to Limpopo and committed to an exclusive romantic relationship in early 2011.
She, however, left her former partner and moved into Mthimunywe’s Mamelodi home. They lived together as husband and wife until his recent death.
The deceased worked on odd jobs and saved money to pay lobola for the applicant.
Following his death, the applicant signed the burial order of the deceased as his spouse. The deceased was registered as a beneficiary on the funeral policy of the applicant, and she incurred the funeral costs of the deceased.
His family is contesting the marriage, as they said the last part of a Ndebele marriage, the hlabisa, was never celebrated by the couple. The brother of the deceased also instituted a pending eviction application against the applicant.
According to the brother, there was never any lobola negotiations between their respective families. He also denied the authenticity of the lobola letter which the widow had handed to court. The brother said the letter does not comply with the Ndebele culture.
He told the court that the bridal handover and celebration of the marriage never took place and that there was no compliance with the customary rituals such as the slaughtering of cows and the celebration of the marriage.
There was no exchange of gifts between the two families and no physical handing over of the bride, which the brother said is an integral part of the customary marriage in terms of custom.
Magistrate M. Easmus commented that customary law is a dynamic system of law which is continually evolving to meet the changing circumstances of the community in which it operates.
“It is not a fixed body of classified rules. Customary law and its various institutions, including marriage, is the subject of an evolutionary process and continues to be so, to which factors such as urbanisation, exposure to western culture, and other religious practices contributed,” the magistrate said.
The court noted that lobola is one of the all-important requisites for a customary marriage, but on its own, lobola negotiations do not conclude a customary marriage.
The payment of lobola can be in full or in partial payment with both families agreeing on how the remaining payments will be concluded.
“The intent of lobola is to show love, respect, and sacrifice. Lobola further shows that there is consent by the two parties to get married.”
It was further noted that the law does not state any style of celebration of customary marriage, nor does it specify the process of the handing over of the bride (makoti) to the bridegroom's family.
In previous similar cases, the courts found that “African customary law has evolved and was always flexible.” Therefore, non-compliance with the strict rules pertaining to rituals and ceremonies cannot invalidate a customary marriage that has been negotiated, agreed, or celebrated in accordance with customary law.
The magistrate said that registration of a customary marriage is not a validity requirement for a customary marriage, but both spouses have a duty to register the marriage.
The court ruled in favour of the widow, stating that, on the evidence and on a balance of probabilities, a customary marriage exists.
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