No specific requirement to prove customary marriage exists - court
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Pretoria - The Gauteng High Court, Pretoria has confirmed once again that there is no list of requirements which must be complied with for a valid customary marriage to exist.
This issue came under the spotlight when a widow wanted to claim loss of income from the Road Accident Fund (RAF) following the death of her mine manager husband.
The 35-year-old woman, who cannot be identified to protect her minor children, said the man had paid the customary lobola for her, and although the marriage was never registered or celebrated, they had ever since lived together as husband and wife.
The RAF disputed her claim for support and funeral costs as it said she had to prove that she was dependent on him.
The woman told the court that the lobola agreement was signed by the representatives of both families. She also handed a letter to court from the tribal authority, confirming the marriage between her and the man.
In addition and in a bid to prove the marriage, three affidavits were attached to the court application – one from a neighbour, the second from the uncle of the dead man and a third from the woman’s mother.
Acting Judge EK Tsatsi said in terms of the Recognition of Customary Marriages Act, a customary marriage was valid if both parties consented to it, were older than 18 and that the marriage was negotiated and entered into or celebrated in accordance with customary law.
Apart from the fact that the marriage in this case was not registered, the widow admitted that the deceased’s family did not hand her over to her family in accordance with custom.
But the Supreme Court of Appeal in an earlier and similar case noted that this provision did not restrict itself to a specific list of requirements which must be complied with for a valid customary marriage to exist. That court stated that this was so because “customary law is a dynamic, flexible system which continuously evolves within the context of its values and norms”.
“It also evolves consistently with the Constitution so as to meet the changing needs of the people who live by its norms”.
Judge Tsatsi said that with these principles in mind, it was clear that customary marriage came into existence between the appellant and the deceased.
He concluded that the RAF was liable to pay spousal maintenance towards the widow and her children, as well as the cost of burial.