ADVANCED INDIGENOUS LAW LCP4804

QUESTION 1 This extract was taken from the judgement of Tshiqi J in the matter of Maluleke v Minister of Home Affairs Case no 20/24921 [2008] ZAGPHC 129 (April 2008) (unreported), wherein he said, “Once it is clear that the negotiations have taken place, the next inquiry, applying the Act is whether there are any factors that show that the marriage was “entered into” or “celebrated”. In this case, the validity of a customary marriage was brought into question because the traditional Zulu ritual of imvume that is meant to integrate the bride into a groom’s family was not followed or observed before the husband passed away (died). The section of the law that deals with the validity of customary marriage is section 3 of the Recognition of Customary Marriages Act, which states that the prospective spouses must both be above the age of 18 years; must both consent to be married to each other under customary law and that the marriage must be ‘negotiated and entered into or celebrated in accordance with customary law’.1 The Court had to consider the meaning of the words “the marriage must be negotiated and entered into or celebrated in accordance with customary law” as set out in section 3(b)(1) and determine how big a role the imvume ritual played in fulfilling this requirement. The word “negotiated” was accepted by the two counsel and referred to as negotiation in respect of the marriage, including lobola and concluded that though the imvume had not taken place, negotiations had taken place and had been completed.2 The dispute, however, was whether a valid customary marriage had been “entered into or celebrated”. And the Court agreed with the Oxford English Dictionary meaning of “celebrated” as “festivities or performance of a right or ceremony”.3 The term “entered into” was then taken to be used in the same manner that it would have in terms of any contract.4 This term is defined by the Cambridge dictionary as “to start to be involved in something, especially a discussion or agreement’5, meaning that as long as the parties have chosen to be involved in something (in this case, a customary marriage) and are in agreement, the customary marriage can be deemed to have been entered into. The main question was thus whether the parties to the marriage had agreed to that marriage and deemed themselves as being married, whether or not the agreement was tacit or express. From this case it was established that the South African courts have noticed and accepted the evolution of customary marriage in accordance with African Indigenous law over the years.6 Tshiqi J thus rejected stance that existed prior to the said transformation, whereby the non-observance of the imvume ritual would