REVISITING THE ESSENTIALIA FOR CONCLUDING A VALID CUSTOMARY MARRIAGE IN SOUTH AFRICA: THE CASE OF B.C.G V S.J.M [2024] ZAFSHC 92

Abstract

In South Africa, the requirements for a valid marriage are well established in both common law and statutory law, rendering the process relatively straightforward. However, the validity of customary marriages remains less clear due to the uncodified nature of customary law. Although the Recognition of Customary Marriages Act 120 of 1998 has introduced some codification, section 3 remains open-ended, creating interpretative uncertainty and legal complexity. This ambiguity has allowed varying understandings of what constitutes a valid customary marriage, which some parties may exploit to evade marital obligations. This note revisits the essential requirements (essentialia) for a valid customary marriage by analysing the Recognition of Customary Marriages Act and the recent judgment in B.C.G v S.J.M. The court held that a written lobola contract is not essential for validity if other customary rites have been fulfilled. Importantly, where the written contract cannot be located, the existence of the marriage may still be proven through oral evidence, including testimonies from the spouses and witnesses to the negotiations or celebration. The judgment underscores the critical role of judicial interpretation in disputes concerning the validity of customary marriages and highlights the ongoing need for customary law to evolve in harmony with constitutional principles.