Is the requirement of integration of the bride optional in customary marriages?
Author | Siyabonga Sibisi |
DOI | 10.17159/2225-7160/2020/v53a6 |
Published date | 01 June 2020 |
Date | 01 June 2020 |
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
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