Daughter loses bid to nullify dad’s customary marriage to stepmom

A WOMAN has taken her stepmother to court, saying her stepmother had never been married to her father, who is now deceased, as the “bride was never handed over” to his family.

The daughter, identified as ZK, asked the Eastern Cape High Court, sitting in Mthatha, to declare that the customary marriage entered into between the deceased and her stepmother was invalid on the grounds of non-compliance with the Recognition of Customary Marriages Act.

Apart from the bride never being handed over, the daughter said the lobola negotiations were conducted by emissaries who were not members of her family.

The stepmother, on the other hand, said she was legally married to the deceased and her marriage had complied with all the requirements for a valid customary marriage.

The dispute initially also concerned the burial rights of the deceased. The parties buried the hatched in this regard and agreed to bury the deceased jointly.

Regarding the validity of the customary marriage, the daughter said that after her mother had died in the 1980s, she was raised by her father and his family.

They were close to each other. The deceased, she said, was never married during his lifetime.

She said she was only recently informed that the deceased, without informing her, purportedly concluded a customary marriage with her stepmother.

She viewed such customary marriage as invalid as it did not meet the prescripts of the law. The daughter said a woman could enter into a valid customary marriage only when the two families (husband and prospective wife) entered into negotiations and agree about lobolo.

The daughter said the families did not engage in such negotiations. She alleged that the deceased’s family knew nothing about the marriage. In addition, there was no celebration of the customary marriage between the deceased and the woman said to be her stepmother.

One of her family members, in support of the daughter’s application, told the court that the deceased wanted to get married. He saw that the deceased was not well and tried to stop him from thinking about marriage. However, the deceased insisted and advised them that he would send someone else to pay lobolo for him if they refused.

The witness said the family, however, agreed that they would not proceed with the payment of lobolo on behalf of the deceased because he was “mentally disturbed, confused and of unsound mind”. In their view, the father was not a fit person to conclude a marriage.

The stepmother said she and the deceased had a long relationship before he had proposed marriage. Both were adults above the age of 18 years, and of sound and sober minds. Neither of them was declared mentally unsound, as had been suggested, she said.

The stepmother said lobolo was paid and everything was done according to the book.

An amount of R10 000 was paid for two cows and later, an additional R25 000 before she was formally handed over.

Acting Judge M Motyesi said that under the legislation, the handing over of a bride in a customary marriage had not been formally set out as a requirement.

“The handing over, in my view, is a mere formality which serves as one of the evidential materials for confirmation that a customary marriage was indeed concluded. Handing over should never be elevated to a level of a statutory requirement.”

He said customary law was a living law of the people, and it did not incorporate inflexible rules that were cast in stone.

“The temptation to infuse inflexible rules on customary law principles would be contrary to the living of the people and their ever-changing circumstances. I do find that handing over of a bride may always be condoned if other requirements set out for the validity of a customary marriage have been met.”

The judge said that one should also bear in mind that the envisaged ceremonial handing over in a customary marriage was “not akin to the off-loading of a cement bag from a truck and handed to a builder”.

“In my view, the envisaged handover could take any form for as long as the final effect is to ensure that both the bridal and groom families have been made reasonably aware that the parties have concluded a customary marriage.”

The judge added that it would serve no purpose to deny recognition of a customary marriage of two adult consenting parties based on demanding strict adherence to some form of rituals and practices.

“The day has come for an acceptance that a mere symbolic or constructive delivery of the bride is sufficient for confirming that a customary marriage was concluded. For as long as the bride’s family is aware that their daughter has married in terms of customary law and raised no objections, there should be no demand for further compliance with rituals such as handing over. Constructive delivery would have taken place in circumstances where the groom’s family is also aware that their son is married.”

The judge turned down the application as he found that there was a valid customary marriage.