ADVANCED AFRICAN CUSTOMARY LAW CASES PART 1 FAMILY LAW

Mabuza v Mbatha 2003 (7) BCLR 743 (C) Facts: In a divorce action between two black persons, the plaintiff sought inter alia a declaration that section 7(1) of the Recognition of Customary Marriages Act 120 of 1998 should be declared unconstitutional on the grounds that it conflicted with section 9 of the Constitution, and a declaration that the customary marriage between the parties be regarded as a marriage in community of property as envisaged by section 7(2) in the Recognition of Customary Marriages Act. Section 7(1) of the Recognition of Customary Marriages Act provides that “(t)he proprietary consequences of a customary marriage entered into before the commencement of this Act continue to be governed by customary law” Plaintiff instituted a divorce action against defendant. In terms of the particulars of claim plaintiff sought a decree of divorce, custody of the minor child born of the marriage & an order directing defendant to pay maintenance in respect of the child born of the marriage The defendant opposed the divorce action. In terms of the plea filed on behalf of the defendant, the essence of the defence was that no marriage existed between the parties. The defendant's position was simply that there was no valid customary marriage between the parties Common cause: iSwati customary law would be applicable in the dispute between the parties; the plaintiff and the defendant entered into a relationship in 1989; the plaintiff fell pregnant in September 1989; in or about November 1989 the defendant’s family approached the plaintiff’s family to start negotiations for the penalty (damages) and ilobolo payments; the penalty payment related to the fact that the plaintiff fell pregnant out of wedlock, ie. before the parties got married; agreement was reached with regard to the payment of ilobolo in the amount of R2500 which the defendant paid in full; plaintiff and defendant lived together as husband and wife since about 1992 when plaintiff moved into the house with the defendant; in 1992 the plaintiff decided not to go back to the University of the North and spent her time with the defendant as though they were married as husband and wife; in or about June 2000 and after the parties had relocated to the Western Cape, the relationship between them terminated; and that there was no reasonable prospect of their