Is the requirement of integration of the bride optional in customary marriages?

• Published date: 01 June 2020
• DOI: 10.17159/2225-7160/2020/v53a6
• Date: 01 June 2020
• Author: Siyabonga Sibisi
• Pages: 90-103

90 2020 De Jure Law Journal

Is the requirement of integration of the

bride optional in customary marriages?

Siyabonga Sibisi

LLB LLM (UKZN)

Lecturer, School of Law, University of KwaZulu-Natal, Howard College Campus

SUMMARY

Section 3(1) of the Recognition of Customary Marriages 120 of 1998

provides for the requirements for a valid customary marriage entered into

after the commencement of the Act. The requirements are, the parties

must be 18 years of age or above; they must consent to being married

under customary law and the marriage must be negotiated and entered

into or celebrated in terms of customary law. The result of entering into or

celebrating a customary marriage is the bride be integrated into her new

family. The question is, may the parties agree to waive the integration of

the bride? This depends on whether this is a dispensable or indispensable

requirement. The article forwards two school of thoughts; the first favours

the view that integration of the bride is dispensable, whereas the second

forwards the view that integration of the bride is indispensable. These two

schools are analysed using largely case law. The article begins from the

premise that integration of the bride is an indispensable requirement. This

being said, it forwards the view that integration comprises many events,

some of which are dispensable; one of these event is the handing over of

the bride, which cannot be waived.

1Introduction

The recent judicial and popular treatment of customary law creates the

impression that there exist uncertainty regarding various aspects of

customary marriages; central to this uncertainty is the question of when

is a valid customary marriage concluded? This perceived uncertainly is

further fueled by the fact that, in South Africa, various ethnic groups

differ in practices. Nonetheless, there are common practices such as the

negotiation and payment of ilobolo. Does finalisation of ilobolo alone

conclude a valid customary marriage? Is there a need for further

practices such as the handing over of the bride or the integration of the

bride? Is it permissible for parties to omit any of the practices? In

addition, what are the consequences should any of the practice be

omitted? In light of various judicial decisions, some recent, answers to

these questions are not unanimous.

The purpose of this article is to investigate whether, under customary

law, the parties may waive the requirement of integration of the bride. It

will focus heavily on how the courts have approached matters dealing

with this topic. It will open by introducing the two schools of thoughts to

integration of the bride. The first school argues that integration of the

How to cite: Sibisi ‘Is the requirement of integration of the bride optional in customary marriages?’

2020 De Jure Law Journal 90-103

http://dx.doi.org/10.17159/2225-7160/2020/v53a6