Court rules coloured people can wed under customary marriage law, after late wife’s children argued lobola did not apply to them

File Picture: PxHere

File Picture: PxHere

Published Jan 13, 2023


Pretoria – The South Gauteng High Court in Johannesburg has ruled that a customary marriage between a black man and his deceased coloured wife was valid, after the late wife’s children contested its validity.

They claimed that due to her ethnicity, it was impossible for her to get married under customary marriage law.

The judgment was made after the husband, Monamodi Lijane, brought an application to the court seeking to be declare his customary marriage to his late wife, Gracious Sauls, valid.

Sauls’ children from her previous marriage, Bronwin Sauls and Mbalenhle Sauls, opposed the application saying their mother was a coloured woman and a customary marriage would have been impossible.

They claimed that interracial marriages cannot be conducted under customary law.

Their legal representative contended that, because customary law must involve customs forming part of the culture of indigenous African people, coloured people, not being “indigenous Africans” are not people to whom customary law applies.

According to court papers, Lijane’s and Sauls’ families met on August 2016 where some customary marriage rites were performed.

On the day, Sauls was dressed in Basotho traditional clothing.

Her children argued that she dressed herself in the Basotho costume rather than being dressed by Lijane’s family as required by tradition, and because of this, the marriage should be declared invalid.

They further argued that lobolo was never paid by Lijane’s family and even if it was eventually paid, it was not accepted as lobolo, but as something else.

For that reason, the marriage to Lijane could not be a valid customary marriage.

Judge Stuart Wilson did not agree with their arguments. He said what was critical was that Sauls was dressed in a traditional costume on the day of the wedding.

“Whether that is itself a requirement for the validity of the marriage is also a matter on which no evidence was presented. However, it would require the strongest evidence to persuade me that the integrity of an otherwise valid customary marriage could turn on such a minor detail as who dresses the bride in traditional garb.”

He said Sauls dressing herself in traditional clothes could have been anything more serious than a minor ritual error.

On the issue of lobolo, Wilson found evidence in a form of a note indicating that both families had agreed that Lijane would compensate the Sauls family in the sum of R10 000 for the marriage.

“There is no evidence before me relating to whether the amount was actually paid, but that there was an agreement to pay... It seems, at worst for Lijane, that a payment was agreed, but that the Sauls family did not accept the money as lobolo, but as some form of dowry or contribution to the costs of the wedding,” Wilson said.

In his judgment, Wilson said indigeneity and culture are attributes of customary laws themselves, not the people who choose to be governed by them.

“The Act has nothing at all to say about whether a coloured person can contract a marriage under customary law, so long as those laws have their origins in indigenous African cultural practices.”

He said it was unnecessary to address the startling assertion that coloured people do not count as either “indigenous” or “African”.

“Accordingly, I reject the argument that interracial marriages may not be contracted under customary law…

“The respondents accepted throughout that Lijane and Sauls intended to marry, that they were of the necessary age and had legal capacity to do so, and that they and their families intended to conclude a union according to Basotho tradition.

“That really should have been the end of the matter.”